Reported Decision : 162 A Crim R 233 New South Wales Court of Criminal Appeal CITATION: GARDINER v REGINA [2006] NSWCCA 190 HEARING DATE(S): 14 March 2006 JUDGMENT DATE: 21 June 2006 JUDGMENT OF: McClellan CJ at CL at 1; James J at 115; Simpson J at 116 DECISION: 1. Appeal upheld; 2. Conviction quashed and new trial ordered. CATCHWORDS: CRIMINAL LAW – Appeal against conviction – whether jury's verdicts were inconsistent – CRIMINAL LAW – subpoenas – identity of police informers – whether legitimate forensic purpose – CRIMINAL LAW – public interest immunity – police informers – whether defence could show that desired evidence would help demonstrate innocence – EVIDENCE – whether evidence of guns at one location is tendency or coincidence evidence that is probative of knowledge of guns at another location – whether admission of evidence led to a substantial miscarriage of justice – whether to apply the proviso in s 6(1) of the Criminal Appeal Act – EVIDENCE – definition of identification evidence – recognition evidence – whether trial judge's directions complied with s 116 and s 165 of the Evidence Act. Evidence Act s 97 and s 98 LEGISLATION CITED: Firearms Act 1996 s 4A Weapons Prohibition Act 1998 s4 Alister v The Queen (1984) 154 CLR 404 Carroll v Attorney-General for NSW (1993) 70 A Crim R 162 Cornwall v R [2006] NSWCCA 116 Dhanhoa v The Queen (2003) 217 CLR Domican v The Queen (1992) 173 CLR 555 Festa v The Queen (2001) 208 CLR 593 R v Abdullah & Ors [1999] NSWCCA 188 R v Ali (2001) 122 A Crim R 498 R v Anna Zhang [2005] NSWCCA 437 R v Aziz [1982] NSWLR 322 CASES CITED: R v Clarke (1997) 97 A Crim R 414 R v Coe [2002] NSWCCA 385 R v Filippetti (1978) 13 A Crim R 335 R v Fletcher [2005] NSWCCA 338 R v Lockyer (1996) 89 A Crim R 457 R v Meher [2004] NSWCCA 355 R v Saleam (1989) 16 NSWLR 14 R v Shamouil [2006] NSWCCA 112 R v Zammit [1999] NSWCCA 65 Travel Compensation Fund v Blair [2002] NSWSC 1228 Weiss v The Queen [2005] HCA 81 PARTIES: Steven Gardiner (Appl) The Crown FILE NUMBER(S): CCA 2005/2168 P Hamill SC/M Avenell (Appl) COUNSEL: Dr P Power SC (Crown) R Grady (Commissioner of Police) Carty Cox (Appl) SOLICITORS: Director of Public Prosecutions (Crown) Crown Solicitor's Office (Commissioner of Police) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/51/0001 LOWER COURT JUDICIAL OFFICER: Ducker ADCJ LOWER COURT DATE OF DECISION: 2 June 2005 IN THE COURT OF CRIMINAL APPEAL 2005/2168 McCLELLAN CJ at CL JAMES J SIMPSON J WEDNESDAY 21 JUNE 2006 GARDINER, Steven v REGINA Judgment 1 McCLELLAN CJ at CL: The appellant pleaded not guilty to an indictment which contained seven counts as follows: Count One On 20 November 2002 at Toormina in the State of New South Wales, did possess more than three firearms, namely five firearms that were not registered, of which five were prohibited firearms and he was not a person authorised by a licence or permit to possess those firearms. The maximum penalty pursuant to s 51D of the Firearms Act 1996 is imprisonment for twenty years. Counts two to seven On 20 November 2002 at Toormina in the State of New South Wales, did possess (various prohibited weapons), without being authorised to do so by a permit. The maximum penalty provided by s 7 of the Weapons Prohibition Act 1998 is a term of imprisonment for fourteen years. 2 The appellant pleaded not guilty and was tried before his Honour Acting Judge Ducker and a jury of twelve. The jury returned with a verdict of guilty to count one and not guilty to counts two to seven. 3 The appellant was sentenced to a non-parole period of three and a half years to commence on 1 June 2005 and expire on 30 November 2008 with a balance of parole of 18 months to expire on 31 May 2010, making a total term of five years to commence on 1 June 2005 and expire on 31 May 2010. 4 The appellant appeals against the conviction and seeks leave to appeal against the sentence. 5 The grounds of appeal with respect to the conviction are: 1. The trial judge erred in law in his ruling admitting the "tendency" evidence. 2. The trial judge failed properly to direct the jury in relation to the use that could be made of the "tendency" evidence. 3. The trial judge erred in failing to properly direct the jury, and failing to give any or any adequate warning to the jury, in relation to identification evidence. 4. There was a miscarriage of justice as a result of the appellant's legal advisers being unable properly to investigate or present his defence by exploring the actions of the police informer and that person's opportunity to put the weapons in the storage unit. 5. The learned trial judge erred in upholding the objection to a subpoena issued by the defence. 6. The learned trial judge erred in unduly restricting counsel for the accused in establishing the opportunity of the informer to put the weapons in the storage unit. 7. The trial miscarried as his Honour's summing-up was unbalanced and unfair. In relation to sentence the grounds of appeal are: 8. His Honour erred in failing to find the facts of the offence consistently with the jury's verdicts on the charges under the Weapons Prohibition Act 1998 and on the evidence. 9. His Honour erred by effectively considering that the weapons must have been for a hostile purpose. 10. His Honour erred in taking into account: 1. The applicant being the President of the Club; 2. The character of other members of the Club; 3. The character and conduct of members of other motorcycle clubs and in failing to take account, or to take adequate account, of the applicant's subjective circumstances, other than relating to the Club. 11. The sentence is manifestly excessive. The facts 6 The firearms and prohibited weapons the subject of the charges were located when the police executed a search warrant on storage unit 38 of the Hi-Tech storage facility at Toormina. The unit was accessed by the police cutting a padlock with bolt cutters. Inside the storage unit the police found two large rectangular metal boxes containing the firearms and prohibited weapons except for the handcuffs, which were, along with a prescription in the name of the appellant, inside a plastic bucket inside a cardboard box on top of one of the metal boxes. Some of the firearms and prohibited weapons in the metal boxes were wrapped in clothes or blankets or were in plastic or gun bags. The police also found a number of documents in the name of the appellant. The only document not in the name of the appellant was a driving manual for a car which had, at one stage, been owned by the appellant. 7 It was agreed that on 20 November 2002 the appellant was not authorised by licence or permit to possess a prohibited firearm or ammunition under the Firearms Act, and was not authorised by a permit to possess a prohibited weapon under the Weapons Prohibition Act. It was also agreed that the firearms were not registered firearms. 8 From October 1999 to November 2002 the storage unit in which the weapons were located was leased by the appellant. Two witnesses, Patrick Herrity, the Assistant Manager of Hi-Tech and Karen Windows the manager of Hi-Tech gave evidence that the appellant had leased the premises in his own name. They both said that the appellant was the only person to pay the account for the storage unit and the only person they had observed to access the unit. 9 One of the problems faced by the trial judge was whether to admit the evidence gained from the execution of another search warrant at premises known as 21 Turf Street at Grafton. Those premises are the clubhouse of the Gladiators Motorcycle Club. The appellant was not present at the clubhouse when the police arrived to execute this search warrant. However, other members of the Club, Scot McCombie, Tim Smith and Matt Horwood were present. Mr McCombie remained in the clubhouse and the others were told to leave. The appellant arrived at the clubhouse at about 4.20 pm that afternoon when the police were still present. He was arrested in relation to the firearms and prohibited weapons which had previously been found at the storage unit. He was searched and a key to the unit and an access card ("swipe card") to the facility were found in his possession. 10 The search of the club premises revealed three firearms and a small quantity of drugs. A long wooden box was found behind the bar area of the club. On the lid of the box were the words "Keep clear at all times, fine 25 bucks." The box was unlocked. Inside the box police discovered a Remington pump action 12 gauge shotgun loaded with four live rounds; one Winchester .30-30 rifle loaded with two live rounds; and one Greenfield .30-30 rifle loaded with two live rounds. A variety of ammunition and a box of disposable gloves were also located with the firearms. In the vicinity of the wooden box, and built into the brickwork of the bar, were two safes. These safes were able to be opened using keys found in the possession of the appellant. 11 In respect of the firearms found in the wooden box at the club it was accepted that the Remington Model 870 pump action shotgun is a prohibited, unregistered firearm and that the appellant was not licensed or permitted to possess the firearm. In respect of the remaining two rifles it was accepted that the appellant had no permit or licence to possess them. No charges have been laid with respect to these firearms. 12 The police had been made aware of the location of the firearms and prohibited weapons by an informer. Although the defence sought further details and issued a subpoena, following argument, the evidence in relation to the informer was confined to evidence to establish (1) that there was an informer whose disclosures to police had given rise to the searches, (2) that the informer had antipathy towards the accused and (3) that the informer had provided information that there were firearms behind the bar of the clubhouse. The evidence of Patrick Herrity 13 Mr Herrity gave evidence that he knew the appellant as a customer of Hi-Tech and he remembered when he first attended to fill out a storage agreement/lease document. Mr Herrity said that he did not ask the appellant whether the storage unit would be used by others and the appellant gave no indication that this might occur. It was suggested to him that the appellant had asked to lease the storage unit on behalf of a club but he rejected this suggestion. He confirmed that Hi-Tech was able to enter into storage agreements with companies or clubs although it had not done so. Under cross-examination Mr Herrity accepted that he had some difficulty in remembering all of the details of the circumstances surrounding the execution of the lease on 21 October 1999. 14 Mr Herrity gave evidence that he had discussions with the appellant about an alternate contact person for the unit during which he said: "We need an emergency contact, someone other than yourself or your partner but someone who is close to you on a personal basis that would know of your whereabouts and your activities in case we needed to contact them in the case of an emergency." 15 Mr Herrity said that the appellant gave the name "Robert Gardiner" as a contact person. Mr Herrity also gave evidence that the lessee/storer could not assign the lease agreement and highlighted conditions 12 and 15 of that agreement. Conditions 12 and 15 are in the following terms: "[12] Deliveries and removals from the storage space will not be permitted by any person other than the storer unless the storer gives personal or telephone instructions to the owner. The storer must identify themselves by use of a password (if any) and name the person (persons) authorised by the storer to enter the storer's space. [15] The storer acknowledges and agrees to comply with all relevant laws including acts and ordinances, regulations, by-laws and orders as are or may be applicable to the use of this space. This includes the laws relating to the material which is stored and the manner in which it is stored. The liability for any and all breach of such laws rests absolutely with the storer and includes any and all costs resulting from such a breach." 16 On 21 October 1999 the appellant was given an access card numbered 068802148 also referred to as a proximity card or swipe card. The card was issued to the appellant at the time that he signed the agreement with Hi-Tech and enabled access to the facility during identified hours. These hours extended beyond the times at which an employee of the business may have been present at the premises. 17 Mr Herrity said that subsequent to 21 October 1999 and up to November 2002 he saw the appellant approximately eight times a year when he came to pay his account. Mr Herrity could not recollect anyone apart from the appellant paying the account. Mr Herrity identified from the payment history for unit 38 that the account was processed predominantly by either himself or Karen Windows, there being only three occasions when someone else processed the payment. The rent had been most recently paid on 17 October 2002. Mr Herrity conceded that although he believed that the appellant paid the rent on that day he had no independent recollection of that occurring and was relying on the documentary record of the payment. It could have been Ms Windows who received the payment. A receipt for this payment was found in the appellant's car although the appellant denied putting it there and said he did not know how it came to be there. 18 Mr Herrity gave evidence that if the appellant had wanted someone else to have access to the unit, the appellant would have to give them the access card and the key to the storage space, so that the person could enter without coming into the office. If someone arrived without a key the office staff could not help because they did not have keys to individual units. If someone arrived with a key but without the access card, the person had to identify themselves with their licence and know the password before the sales person contacted and checked with the customer that they were acting on their authority. 19 Mr Herrity explained that users of the storage facility had access to their units from 7.00 am to 7.00 pm using their access cards and that from 7.00 pm to 7.00 am the facility had alarms, and a guard dog. There were people living on the premises which were secured by sound sensors and six surveillance cameras. The evidence of Karen Windows 20 Ms Windows said that in her estimate she saw the appellant probably half a dozen times each year. In total she estimated that she had seen him 15 to 18 times at Hi-Tech between October 1999 and November 2002. She agreed that this estimate was "probably based on computer records of payments made on the accounts for the storage and that she did not have a precise recollection of each occasion when Mr Gardiner attended at the premises." She agreed that she had served many customers over the period. 21 Ms Windows recalled the appellant making payments for the storage unit but did not recall any other person making these payments. Ms Windows did not recollect any other person wanting access to space 38 including during the weeks before 20 November 2002. Ms Windows had a particular recollection of the appellant because he drove a car "very similar" to her own. 22 Ms Windows described the access arrangements to the storage space in similar terms to those described by Mr Herrity. She also said that if a customer had contacted them about other people accessing the unit there would have been a record of it on the computer system. There was no record of the appellant having done this and Ms Windows did not have a recollection of anyone apart from the appellant wanting access to unit 38. 23 Ms Windows had no recollection of any person apart from Mr Gardiner making payment on the appellant's account. 24 The evidence disclosed that there had been 67 instances when the facility was accessed between 21 October 1999 and 17 October 2002. There were 34 occasions when payment was made. The unit was last accessed on the morning of 17 October 2002 which was the same day on which the last rental payment was made. 25 When the appellant was arrested and searched at the club premises police found that he had two sets of keys containing six keys. He was also carrying the swipe card with the reference number 068802148. This was the card which gave access to the storage space. The appellant's case 26 The appellant gave evidence. He said that he had no prior knowledge of the long metal boxes and did not know who had put the weapons and firearms in the storage unit. However, he said that he had suspicions. He admitted that there was some animosity between him and another member of the club, Steve Edmonds, over a woman with whom they had both had a relationship. 27 He said that it was at the request of the (then) President of the Gladiators Motorcycle club, Scott McCombie, that he signed the lease agreement in October 1999 for the storage unit. Mr McCombie also gave evidence stating that the reason for leasing the storage unit was to clear out the existing clubhouse and to keep items for a proposed new club chapter at Coffs Harbour. 28 The appellant said that when he came to arrange the lease for the storage unit in the name of the Gladiators Motorcycle Club or Gladiators Real Estate or just Gladiators he was asked by Mr Herrity if he had any authorisation or anything relating to the club. The appellant replied that he did not have anything. The appellant said that Mr Herrity told the appellant to put the lease in his name "because we're going to have to have your name on the lease with your licence details." When the appellant was asked to put down a next of kin as a contact person, he said that he named his brother. 29 The appellant and Mr McCombie both gave evidence that the appellant gave the lease papers and the access card to Mr McCombie, who made the access card available to other club members by placing it on the shelf of the fridge door at the club. The appellant said that he had about ten keys cut to the storage unit for other club members. The appellant said that he used Lock Solid Security Locksmiths in Grafton. 30 The locksmith gave evidence and indicated that the appellant had been a customer of his business since 1998. He said that he had cut maybe fifteen or twenty keys for him. 31 The appellant gave evidence that during the lease period he probably visited the unit about eight or ten times. He said that he and other club members stored some personal belongings in the unit, in addition to materials for the club. The appellant said that the last time he visited Hi-Tech Self Storage was in May 2002. He said that he had the access card in his possession when he was arrested because he had obtained the card from Sniper Edmonds a few days earlier because he planned to get a box of books from the unit. 32 The appellant gave evidence that the last time he had seen the box found behind the bar it had contained tent pegs not weapons. Similar evidence was given by Mr McCombie. There was a suggestion that on an earlier occasion an unlicensed weapon had been found at the clubhouse, although this was not proven, and at the time he had laughed it off as a lie. On this occasion the inference which the defence sought to have the jury draw was that the guns were planted by the police. 33 Including himself the appellant indicated that there were fifteen members of the Grafton chapter of the Gladiators at the time of the offence. He said that most, if not all, had keys to the unit and they all had access to the unit. 34 The appellant said that he had observed other members of the Club to have stored personal belongings at Hi-Tech and had, on one occasion, noticed a Christmas tree in the unit. He said that on one occasion he was let into the storage area without his access card, simply by honking his horn and yelling to the office. 35 Other members of the motorcycle club gave evidence about having access to the storage unit. Mr McCombie said that he visited the unit about six times and that he was always accompanied by someone else as he did not have a licence. He said that he went with Sniper Edmonds (Steve Edmonds) about three times, and that he also went with Matt Horwood and "Swifty." He said that the rent had been paid by post, or by other members as well as the appellant. When cross-examined he gave a description of the storage unit which was clearly inaccurate. At one point he said that although he had been to Hi-Tech he never got out of the car. 36 Mr Benjamin Gilson gave evidence that he had a key to the storage unit and knew the access card was in the door of the fridge at the club. He said that he had visited the unit with other people about five or six times in the 18 months before November 2002. Mr Gilson also said that he ended up with two keys to the storage unit because on one occasion he had forgotten his key and took the key that was with the card in the fridge. Mr Gilson described in his evidence delivering an air conditioning unit to the storage unit with Craig Williams and also on another occasion taking a freezer from the unit with Sniper Edmonds. 37 Mr Shayne Fowler gave evidence that he also had a key and knew that there was a card in the fridge at the club to access the unit. Mr Fowler said that he used his key to the storage unit about three times, once to drop off some club stuff with the appellant, another time with his wife to store some Christmas presents for his children, and another time to retrieve the presents. Mr Fowler said that on the last occasion he went there, in late 2000, he remembered paying the fee for the unit in cash and dealing with a female sales person. 38 Mr Michael Reimer, Mr Craig Williams and Mr Mark Laming, each gave evidence of having been once to the storage unit at Hi-Tech Self Storage. Mr Reimer gave evidence that he had keys to the storage unit and the clubhouse. When he went to the unit in March 2002 he went with Albert Atkins who also had a key. Mr Reimer said that he drove the appellant's gold Ford Fairlane. Mr Reimer said the purpose of the visit was to pick up an ice making machine from the unit. 39 Mr Craig Williams said that he had keys to the storage unit and the clubhouse. He gave evidence that when he went to the unit in early 2001 with Mr Gilson it was to drop off an air conditioner. Mr Williams recalled cardboard boxes but could not recall metal boxes in the unit. In cross-examination Mr Williams said that Sniper Edmonds had told him to drop off the air conditioner. 40 Mr Mark Laming gave evidence that in late 2002 on a day which could have been 17 October, but in any event, a couple of weeks prior to a bike show he drove Sniper Edmonds to the storage unit. Mr Laming said that Sniper Edmonds handed him the access card which he had taken out of his wallet and told him to hold it up so that the gate would open. Mr Laming said that he saw Sniper Edmonds carry a dark coloured bag that was about two thirds of a metre long into the unit and returned with two chairs. He said that he saw Edmonds go to the office. 41 Mr McCombie also gave evidence of the appellant's car being taken to Hi-Tech by other club members. He said the appellant's car was used by the whole club for just about anything which required a car. 42 It was the defence case that all of this evidence established that there were a large number of people with equal opportunity for access to the storage unit and a large number of keys in existence for the padlock. Accordingly, the defence submitted that it could not be established that the appellant was in possession of the firearms. Furthermore, it was submitted that the appellant neither knew nor ought to have known the firearms were in the storage unit. 43 Significantly, apart from the suggestion that Sniper Edmonds had carried a bag into the premises no one gave evidence of having put any guns there. Furthermore, no one suggested they had observed guns in the storage unit. The statutory framework 44 There is no relevant distinction between the sections of the Firearms Act and the Weapons Prohibition Act providing for the offences with which the appellant was charged. However, the statutes define (or extend the definition of) "possession" in significantly different ways. 45 Section 4A of the Firearms Act is in the following terms: "(1) Without restricting the meaning of the word 'possession', for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that: (a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or (b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or (c) on the evidence before it, the person was not in possession of the firearm. (2) In this section, 'premises' means any place, vehicle, vessel or aircraft. 46 Under s 4 of the Weapons Prohibition Act: "'possession' of a prohibited weapon includes any case in which a person knowingly: (a) has custody of the weapon, or (b) has the weapon in the custody of another person, or (c) has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person." 47 The jury found the appellant guilty of the charge under the Firearms Act but not guilty of the charges under the Weapons Prohibition Act. The appellant suggests, I believe correctly, that the explanation for the jury's decisions is that it was not satisfied beyond reasonable doubt that the appellant knew that the firearms and prohibited weapons were in the storage unit and thus acquitted him in relation to the Weapons Prohibition Act charges. However, the conviction in relation to the Firearms Act charge indicates that the jury was not satisfied, on the balance of probabilities, that the appellant did not know and could not reasonably be expected to have known that the firearms were in the storage unit. The appeal Ground One: the trial judge erred in law in his ruling admitting the "tendency" evidence Ground Two: the trial judge failed properly to direct the jury in relation to the use that could be made of the "tendency" evidence 48 It is convenient to deal with these grounds together. A tendency notice pursuant to s 97 of the Evidence Act was served by the prosecution before the trial. It identified the appellant as the subject of the evidence and indicated that the relevant evidence was to be found in the statements of various police witnesses and the transcript from the "conducts/execution of search warrant at Gladiator's clubhouse, Turf Street, Grafton – 20 November 2002." 49 The essential thrust of the Crown submission was that in circumstances where the appellant denied any knowledge of the weapons at the Hi-Tech storage unit it was relevant for the jury to know that on the same day as the weapons were found at the unit weapons were also found at Turf Street, being the club premises of the motor cycle club of which the appellant was President. The Crown Prosecutor submitted: "The Crown really says that it is doubly remarkable – I use the term 'doubly' not in a precise arithmetical sense, but it's increasingly unlikely and relevantly so that there should be weapons found in each of the two premises of which he is utterly unaware, giving [sic] the leading role that he plays." 50 The trial judge admitted the evidence and in doing so delivered a short judgment. His Honour said: "The evidence which the Crown has indicated its intention to place before the jury, does have significant probative value. It provides a nexus between the accused and the two premises in which the firearms were found. The defence raised by the accused in the first trial, that the items alleged to have been found must have been planted by some person or persons whom he cannot identify, or by the police. The coincidence that the weapons that were allegedly found by the police on the same day, both in the club in Grafton, of which the accused was at the time President, and in the accused's storage number 38 at Toormina near Coffs Harbour, if accepted by the jury, would be powerful evidence for the prosecution. Given the explanation put forward by the accused, the jury might consider it very difficult to accept that somehow someone could have gained access to both those premises and planted the various items. In my view, given the defence which has been foreshadowed, the tendency evidence does have a high degree of probative value because it goes to the very heart of the case, which is, whether or not the accused had the items charged in his possession. When one speaks of the prejudicial effect, one does not mean the effect that may be quite legitimate of destroying the accused's case. It means evidence unfairly suggesting that the accused was responsible. It seems to me that if the Crown establishes in the mind of the jury the nexus which is relied upon as a result of the evidence of tendency, then it will be powerful evidence indeed. If it is not accepted by the jury it should not cause any unfair prejudice to the accused. The cases that are to be relied upon by the prosecution and the defence make this evidence highly important. It may be detrimental in the effect that it may destroy or help to destroy the veracity of the claim made by the accused of his total lack of knowledge or association with any of the firearms but that does not mean that it would be unfair or prejudicial. I admit the evidence as significant evidence of tendency." 51 In my opinion there are a number of difficulties with his Honour's reasons. The reasons are brief. This is not of itself a problem. However, nowhere does his Honour identify the tendency which the evidence supports. Was it a tendency to own weapons? If so how does the finding of weapons at the Club premises support the alleged tendency in the appellant? 52 The trial judge said that he had formed the conclusion that the evidence would have significant probative value. His Honour said it went to the "heart of the case" which is "whether or not the accused had the items charged in his possession." However, his Honour does not explain his reasons for reaching this conclusion. For my part I would have difficulty arriving at the same conclusion. 53 In one respect the prosecution case against the appellant turned upon his knowledge of the presence of the weapons at the storage unit. Apart from the fact that the appellant was the President of the motorcycle club there was nothing to connect him with the weapons found at the club premises or from which it could be inferred that he knew they were there. Furthermore, even if he was aware that there were weapons at the club, this could not be probative of his knowledge of weapons at the storage facility. 54 It is apparent that the Crown took the course which it did because it was known from the appellant's first trial that he proposed to offer as his defence that the weapons had been placed in the storage facility by the informer or the police. The argument was that it was less likely that this would be the case if weapons were found at two premises associated with the appellant requiring the informer to have "planted" weapons in both places. 55 For my part this is not an attractive theory. If the informer had planted the weapons at the storage facility, with its difficulties of access, there would seem little reason why he or she would not also plant them at the club premises and alert the police to the opportunity of discovering weapons in both places. If the suggested informer was a club member, as the defence inferred, or the weapons had been planted by the police, which was another theory, the opportunity to "fit up" the appellant by planting weapons at the club was readily available. 56 But leaving the question of probative value to one side, before his Honour could admit the evidence he was required to consider the safeguard provided by s 101(2) of the Act. Section 101(2) provides that: "Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." 57 His Honour does not expressly address the section and refers to prejudicial effect only in terms of an understanding of the proper meaning of that term. His Honour correctly identifies that the enquiry is as to whether or not the appellant would suffer "unfair prejudice" but does not proceed to consider that matter. 58 There were in my opinion a number of ways in which the evidence could unfairly prejudice the appellant and could have been misused by the jury. The tender of the evidence raised in the minds of the jury the possibility that the appellant was involved in other offences which had not been charged against him. It also involved the disclosure of associations with others who may have illegally possessed or stored guns at the clubhouse, leading to the suggestion that he would be more likely to own guns or store them in his storage unit. This would create a significant risk that the jury would be diverted from their task which was to consider the appellant's ownership or knowledge of the weapons found at Hi-Tech: see Festa v The Queen (2001) 208 CLR 593 at [51]; R v Shamouil [2006] NSWCCA 112. 59 The difficulties for the appellant are apparent in the manner in which the trial judge dealt with this evidence when summing-up to the jury. His Honour said referring to the evidence: "Now that evidence was let in as tendency evidence. It is not evidence which can be in any sense substituted for admissible evidence of the guilt of the accused, or to prove the case against the accused. In other words the evidence is there to show that on another occasion involving allegations of firearms having been present in circumstances where the accused was present and the learned representative for the Crown told you that it was just to show that the accused had particular tendencies , that you could have regard to what happened at the clubhouse. There are some connections of course because this whole event became a trial here now because of information provided to the police, the actual date on which it is said to have been supplied to the police has not been stated in evidence." 60 Later, his Honour said: "I just want to deal now with the question of what we call tendency evidence. Where tendency evidence is relied upon, the elements of it must be satisfied beyond reasonable doubt that the accused had in fact been involved in the behaviour or acts relied upon as showing a tendency on the part of the accused. Evidence of tendency cannot be used unless you are satisfied beyond reasonable doubt that those events occurred as alleged, that those events gave rise to the suggestion of tendency on the part of the accused. In considering the evidence, you look to see whether the similarities relied on are so striking or of such clear underlying unity as to make coincidence a very unlikely explanation; and whether the similarities indicate that the same person was responsible for each transaction . You must be satisfied that the similarities exist only because the accused was a party to each transaction that the accused in effect has put a certain stamp upon those items. I must warn you that if you find that the accused was guilty of one or more of the charges you must not conclude from that alone that he has a generally bad character or propensity to commit such crimes and is therefore likely to be guilty of other charges. So, members of the jury, bear that in mind. Before the evidence which is relied upon arising from the happenings at the club can be used as tendency evidence, you have to be satisfied beyond reasonable doubt that those things did occur." The prosecution has referred to the high likelihood that the same person was involved in both in so far as both of the premises are concerned, and suggests that there is a clear underlying unity because of the persons who were involved and the fact that the accused at the relevant times was the President of the Gladiators Motorcycle Club, and where the motorcycle club had, it is suggested, items that were put into the space no 38. In other words, that you will find that the accused was active in relation to both the premises of the club and also – and there was a similarity between what actually happened at both the club and the space 38. … That is a matter for you to decide, but unless you are satisfied beyond reasonable doubt that the accused was involved in those matters at the clubhouse then you cannot use his behaviour and any tendency that he may have shown as evidence in relation to the charges that arise from the weapons that were said to be found at the space 38." 61 There is apparent confusion in the proper categorisation of the evidence. His Honour appears to be speaking in terms of coincidence and nowhere identifies the tendency which it is said the evidence could support. This is hardly surprising for, at best, the evidence points to the fact that weapons were found at both the premises which the appellant had leased and at other premises of the motorcycle club of which he was the President. The issues at the trial were either the ownership of the weapons found at the storage unit or the appellant's knowledge of them. There was nothing in the evidence to indicate that the appellant was the owner of the weapons at the clubhouse and accordingly it could not have been admitted on that issue. Perhaps it was thought to be admissible as evidence of a tendency to mix with people who had weapons or to frequent premises where weapons were present. If this was the case, to my mind its probative value on any relevant issue was of limited if not negligible value. 62 I have emphasised some of the more significant elements of his Honour's directions. Apart from a failure to identify the relevant tendency the generality of his Honour's language served merely to reinforce some of the unsavoury aspects of the appellant's acquaintances and the presence of weapons at the club, creating a real possibility that the jury would be diverted from their proper task of determining whether the appellant owned the weapons found at Hi-Tech or knew or ought to have known they were stored there. There was a significant possibility that the jury would reason that merely because weapons were found at premises of which he was President his evidence that he did not know that they were in the Hi-Tech unit should not be accepted. Such a reasoning process carries with it a risk, if not a likelihood, that the jury would fail to adequately evaluate the evidence which otherwise indicated that the appellant did not know of the weapons. To my mind any probative value which the evidence may have had was significantly outweighed by its likely prejudicial effect. 63 The evidence was the subject of objection and in my opinion no occasion for the application of Rule 4 arises. 64 However, whether the proviso should be applied is a matter requiring further consideration. Ground three: the trial judge erred in failing properly to direct the jury, and failing to give any or any adequate warning to the jury, in relation to identification evidence. 65 As I have previously related both Mr Herrity and Ms Windows gave evidence identifying the appellant as being present at Hi Tech on many occasions. Although the rent was paid on 17 October 2002 there was a dispute as to whether the appellant was present on that day. The appellant's case was that he did not attend Hi-Tech as often as the witnesses suggested and he said that he did not attend on 17 October 2002. Neither Mr Herrity or Ms Windows had a clear recollection of the rent being paid on that day. However, neither of them recall anyone other than Mr Gardiner paying the rent. Of great significance is the fact that the receipt for the rent paid on that day was found in the appellant's car. It was suggested to both Mr Herrity and Ms Windows that they were mistaken and that they have confused Mr Gardiner with other members of the club who attended to pay the bill or gain access to the storage unit. 66 The appellant submitted that relevant portions of Mr Herrity's and Ms Windows' evidence was identification evidence as defined in the Evidence Act 1995. That definition is as follows: "Identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted is committed, or (ii) an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or (b) a report (whether oral or in writing) of such an assertion." 67 There is a difficulty in applying the definition to the facts of the present case. The offence was allegedly committed on 20 November 2002 when the weapons were located. They could have been put there on any occasion prior to that when the storage unit was accessed. The indictment merely alleged that the offence was committed on 20 November 2002, the date of the search. However, because the most recent occasion for access was 17 October whether the appellant, or some other person, accessed the premises on that day was of significance to the question raised by s 4A(1)(b) whether "the person did not know and could not reasonably be expected to know that the firearm was in or on the premises." If someone other than the appellant had been present the allegation that the appellant had no knowledge of the weapons may obtain some support. In this sense the evidence that the appellant was at the premises on 17 October was evidence of an act connected to the offence. Furthermore, because the offence was dependent upon the weapons having been placed there at some time prior to 20 November it was relevantly "at about the time at which the offence was committed." 68 Although in my opinion falling within the definition of identification evidence, the evidence of both Mr Herrity and Ms Windows is appropriately described as recognition evidence. It is evidence of seeing someone they knew, not evidence that a person who they observed and who was presently unknown to them was the defendant. 69 As identification evidence the trial judge was obliged to give consideration to s 116 and the need for the jury to exercise appropriate caution. In an exchange with counsel his Honour indicated that he would tell the jury that they needed to be very careful about the evidence. However, complaint is made that his Honour failed to do as he intended and that he gave directions which were calculated to encourage the jury to accept the evidence uncritically. 70 In his summing up, Ducker ADCJ addressed the evidence of Mr Herrity and Ms Windows at various points. For example, his Honour told the jury that the Crown case was "built, you might think, heavily on the evidence of the two witnesses who were employees of Hi-Tech Storage" and went on: "The defence suggests they are not reliable witnesses, that they are people, although they might be honest, who have relied only upon their records. To what extent that would be regarded as criticism is a matter for you. What did you think of Mr Herrity's evidence is very much a matter for you. Was he a person who was trying to give honest evidence? Was he a person who got rattled now and then, who at times did not seem to get the real thrust of the questions that were put to him? Was he attempting to tell what he believed to be the truth? Was his evidence accurate? It is a matter for you to make up your mind. The suggestion was also made, on behalf of the defence that both Herrity and Ms Windows may well have mistaken other persons as being the accused, particularly if they were persons in or nearby the gold Ford motor vehicle, similar to the one which Ms Windows knew about; that they were really taking it for granted because that car was there, they thought that he was there. Well you heard their responses, particularly the response of Ms Windows. She would have none of that. She insisted that she knew the accused. One of the reasons was the motor car which he had, but she did not believe that there was any chance that she would mistake the accused, whom she knew by name and by appearance. That evidence, if accepted, you might think, is powerful evidence for the prosecution." 71 On an occasion when the jury had been sent home part way through the summing up, defence counsel reminded the judge of his request for an "identification evidence warning." The judge said "I will say something about that … but it may not be terribly favourable to your client." When, a short time later, defence counsel said "it gets back to this displacement effect of whether Ms Windows was recognising the car or recognising Mr Gardiner himself" the judge said "Well, I've dealt with that." It is submitted by the appellant that his Honour had not "dealt with" it to that point in the summing up and notwithstanding that his Honour continued the summing up from 9.30 am until 3.30 pm the following day, he at no stage directed the jury properly in relation to the matter of identification. 72 On the second day of the summing up the judge again touched upon the evidence of Mr Herrity and Ms Windows noting: "… the prosecution urges you to accept Mr Herrity and Ms Windows as honest, unbiased, disinterested and accurate witnesses as to the vital matters involved … . Both Herrity and Ms Windows' evidence is relied upon by the prosecution as reliable evidence." 73 In these circumstances, the appellant submitted that the directions given by the judge failed to comply with the law relating to identification evidence: see Evidence Act ss 116 and 165; Domican v The Queen (1992) 173 CLR 555; Dhanhoa v The Queen (2003) 217 CLR; R v Clarke (1997) 97 A Crim R 414; R v Zammit [1999] NSWCCA 65 at [117] and R v Coe [2002] NSWCCA 385 at [67]. 74 In particular it was submitted that: (i) The evidence was disputed and s 116 mandated a direction: Dhanhoa per Gleeson CJ and Hayne J at 8-9, per McHugh and Gummow JJ at 61, 26-27 and per Callinan J at 26-27. (ii) The jury was not directed as to the "special need for caution before accepting identification evidence": s 116(1)(a) Evidence Act. (iii) The jury was not directed as to the reasons for that need for caution either generally or in the circumstances of the case: s 116(1)(b), Zammit at [117]; Coe at [67]. (iv) The jury was not directed that the "special need for caution" arose due to the courts' experience of proved miscarriages of justice whereby innocent people have been convicted on mistaken identifications: R v Aziz [1982] 2 NSWLR 322 at 330; Domican at 561; Clarke per Hunt CJ at CL at 428. (v) The judge did not direct the jury that a completely honest witness may be mistaken and warn the jury against the seductive nature of evidence given by a witness who is completely honest and yet who may be genuinely mistaken in their identification. (vi) The judge did not, at the request of counsel, warn the jury that the identification evidence may be unreliable and the reasons it may be unreliable: s 165 Evidence Act. (vii) The summing up failed to convey to the jury the need to exercise caution before accepting the identification evidence and that the danger that it may be unreliable must be overcome before accepting it: Clarke. (viii) The summing up did no more than put the defence submission that the identification evidence was unreliable which is "insufficient discharge of the trial judge's duty": Domican at 564. (ix) The judge did not warn the jury that more than one witness (Mr Herrity and Ms Windows) can equally be mistaken: R v Ali (2001) 122 A Crim R 498 at 501. (x) The summing up did not identify particular reasons why the evidence may have been unreliable or instruct the jury on "the factors which may affect consideration of [the identification evidence] in the circumstances of the case" or draw its attention to weaknesses in the identification evidence: Domican at 561-562; Clarke per Smart J. 75 It is now settled that, as with the common law, a warning is only required when identification evidence is disputed: Dhanhoa Gleeson CJ and Hayne J at 9; McHugh and Gummow JJ at 16; Callinan J at 26-27. Furthermore, as the joint judgment of Glesson CJ and Hayne J in that case makes plain, if a warning is required its content will depend upon the nature of the evidence which has been given and the issues debated at the trial. When evidence is given that a person previously known to the witness was recognised the warning required will be significantly confined. 76 In the present case the evidence with respect to the recognition of the appellant was both as to seeing him when paying the rent on 17 October, and never seeing any other person paying the rent or going to the rented space either on 17 October or on any other occasion. The latter which is not identification evidence, called for no warning although it was appropriate to remind the jury to consider the evidence carefully. 77 The substantial issue at the trial was not whether Mr Herrity and Ms Windows had correctly identified the appellant but rather whether they had a recollection of him paying the rent on 17 October or whether they were merely relying on the rental records which showed the rent as paid and assumed the appellant must have paid it. The only other issue was whether Ms Windows' insistence that she recognised the appellant's car may have meant that she assumed the appellant to have been there rather than having actually observed him. In other words the challenge was to the witness's recollection. 78 In my judgment the trial judge appropriately identified these issues for the jury and made plain that before concluding that the appellant had been recognised they would need to carefully evaluate the accuracy of the evidence and consider the possibility that a mistake may have occurred. Although his Honour could have given directions warning the jury about difficulties which can exist when recognising other people in the circumstances of this trial the fact that he did not do so did not, in my opinion, lead to a miscarriage of justice. 79 As the High Court recognised in Dhanhoa the requirement in s 116 of the Evidence Act 1995 for a warning has to be assessed in light of the issues in the case as a whole. Both the content of any warning, or whether a warning is required at all, must be considered. In my opinion, the trial judge's directions were adequate in the circumstances. Ground 4: There was a miscarriage of justice as a result of the appellant's legal advisors being unable to properly investigate or present his defence by exploring the actions of a police informer and that person's opportunity to put the weapons in the storage unit. Ground 5: The learned trial judge erred in upholding the objection to a subpoena issued by the defence. Ground 6: The learned trial judge erred in unduly restricting counsel for the accused in establishing the opportunity of the informer to put the weapons in the storage unit. 80 It is appropriate to consider these grounds together. 81 I have already related that the appellant's case was that he did not know that the firearms were in the storage unit and evidence was adduced at the trial to establish that other people had access to the unit. In the course of the trial a number of keys were produced which fitted the padlock. No other member of the Club who was called to give evidence admitted to ownership or possession of the weapons in the storage unit. The jury were asked to accept that it may have been the police informer who had "set up" the appellant by planting the weapons. 82 The appellant sought to investigate the matter by subpoena to the Commissioner of Police. The subpoena sought: "All records including notes, running sheets, day books, COPS event entries information reports, statements, memoranda, transcripts, audio and video footage, briefing notes and search warrant applications concerning: 1. (a) the preparation for searches by police of Space 38, Hi Tech Storage Toormina and the Gladiators Motor Cycle Club clubhouse at Turf St, Grafton on 20 November 2002 (the raids); (b) The raids themselves; (c) Information provided to police by the registered informant who spoke about the accused to Det David Johnston of Coffs Harbour Police on 19 November 2005 (the registered informant); (d) Any threats made or inducements offered to the registered informant by police; (e) Any payments made by police to the registered informant; (f) Any malice or antipathy shown by the registered informant towards the accused; (g) All firearms and prohibited weapons surrendered to or seized by the Coffs/Clarence Area Police between 1 October 2002 and 31 December 2002. 2. All records of ownership, transfer or registration of the following firearms: (a) SKS rifle serial no. 16318 (b) SKK rifle serial no. 22017414 (c) SKK rifle serial no. 2308001 (d) SKK rifle serial no. 8906078 (e) SKK rifle serial no. 22017414 (f) Gevarm rifle serial no. 101322 3. All records pertaining to the existence of a firearms amnesty in NSW between November 2002 and January 2003." 83 In the course of argument the parties reached agreement that the Commissioner of Police would produce the material referred to in paras 1(a) and 1(b) and 2 of the Schedule to the subpoena. His Honour ruled that the defence had failed to show a legitimate forensic purpose in relation to the material referred to in paras 1(c) to 1(g) of the subpoena. Apparently, the material sought in para 3 of the subpoena was not pursued and that matter was effectively resolved by agreement. Accordingly, the material sought by the defence was confined to information in relation to dealings with the informant, evidence of any malice which he might have had towards the appellant and details of firearms seized. 84 An "objection" was taken to the subpoena which was upheld by the trial judge. The trial judge then made an order pursuant to s 130 of the Evidence Act that the defence be limited in the trial to establishing: 1. That the police had received information from an informer; 2. That the informer had antipathy towards the appellant and 3. That the informer had told police that the weapons in the clubhouse were behind the bar. 85 The police had already disclosed the existence, but not the identity, of the informer and other related matters in proceedings relating to an application for a liquor licence. The report disclosed that the informant claimed knowledge of meetings of the club both in Grafton in December 2002 and Maitland in November 2002. 86 The trial judge was satisfied that the subpoena constituted a "fishing expedition." In his judgment of 16 May 2005 his Honour said: "I cannot see any real prejudice at all to the accused in taking the course that I have. I have considered s 192 of the Evidence Act in this regard, and consideration of that section leads me to the view that the material which is being sought in the subpoena falls into the category of 'fishing' for evidence, attempting to investigate whether such evidence does exist." 87 The appellant made the following submissions: "It is submitted that this passage shows that his Honour erred in several respects. The test of whether there is a legitimate forensic purpose is whether it was "on the cards that the documents sought would materially assist his defence" ( R v Saleam (1989) 16 NSWLR 14 at 18; Alister v The Queen (1984) 154 CLR 404 at 414). It is submitted that s 192 of the Evidence Act was irrelevant to the question of whether it was "on the cards that the [information] would materially assist his defence" and his Honour's reference to the section appears to be misconceived. Furthermore, it was not open to find the defence was on a "fishing expedition" in circumstances where the material sought to be explored was directly relevant to the defence being put forward. Defence counsel identified the legitimate forensic purpose: Because of the reverse onus, your Honour it simply may not be good enough for him [the appellant] to stand up and say 'well I didn't put them there' and 'I didn't know they were there, someone else must have put them there' … It is really incumbent upon him to put before the jury evidence that supports the inference that he has been set up. … We have no way your Honour of testing the good faith if you like of Officer Breton without being able to double check on what he says … extremely important that we be able to pursue these matters, look at these documents, check on the real situation … ." It is also submitted that his Honour erred in failing to consider the matter in stages. The application to set aside the subpoena on the basis of an absence of a legitimate forensic purpose should not be determined in advance of a claim of public interest immunity: Attorney General for NSW v Stuart (1994) 34 NSWLR 667 at 676, 681. Ducker ADCJ stated that there is "in fact no evidence which would be of any assistance to the defence." There was no basis on which Ducker ADCJ could make this determination unless he had inspected the documents produced. It seems that no such inspection was undertaken. Finally, the learned trial judge appeared to disregard the fact that there had been disclosure, in other proceedings, by the police of information relating to, and giving rise to inferences as to the identify of, the informer. Under s 130(5)(d) a relevant factor is "the means available to limit its publication" (which could have been achieved by a non-publication order) and s 130(5)(e) required the judge to take into account whether the substance of the information or document has already been published (which it had). In Alister Murphy J said at 431: The processes of criminal justice should not be distorted to prevent an accused from defending himself or herself properly. If the public interest demands that material capable of assisting the accused be withheld, then the proper course may be to abandon the prosecution or for the court to stay the proceedings. It is submitted that these remarks have resonance in the present case where an onus was placed on the appellant to establish that he had no knowledge of the weapons but the state sought to restrict his ability to put his case properly before the jury on the grounds of public interest immunity." 88 Although a party may obtain the leave of the court to issue a subpoena, if objection is taken, inspection of any documents which are produced will only be allowed if the court is satisfied that it has a legitimate forensic purpose. In Carroll v Attorney-General for NSW (1993) 70 A Crim R 162 Mahoney AP stated: "… it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding. But mere relevance is not enough: thus it is not enough for the party to show only and without more that the document plainly shows and shows only that his case cannot be made out. It is not enough for the party to say: 'The documents are relevant in the sense that prima facie they establish the case against me: therefore I am entitled to see them and to tender them.' In the case in which the party did not know what was the nature of the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case … He must be able to indicate that the document is relevant in the sense that it may assist his case. At best the claim [in Carroll ] was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." 89 In other cases the relevant test has been expressed in terms that the court must be satisfied that it is "on the cards" that the documents would materially assist the accused in his defence." (R v Saleam (1989) 16 NSWLR 14 at 18). Care must be taken in criminal proceedings to attach "special weight to the fact that the documents may support the defence of an accused person in criminal proceedings" when deciding whether inspection should be allowed (see Alister v The Queen (1984) 154 CLR 404 at 414). A mere fishing expedition is not permissible and it has to appear to be "on the cards" that the disputed documents will materially assist the defence (Alister at 414). 90 It is plain that mere suspicion or speculation is not sufficient and it is not appropriate for the judge to allow inspection of the documents simply because of a bare unsupported assertion that upon such an inspection something may be found which is helpful to the accused (Alister at 671 and the discussion in Travel Compensation Fund v Blair [2002] NSWSC 1228 at [20]ff). 91 I do not believe the appellant's submission that the trial judge failed to consider the subpoena and the public interest immunity claim in stages is correct. The relevant steps which is Honour took were: · On 14 April 2005 a subpoena was served on the Commissioner of Police. · The subpoena was objected to by the Crown Solicitor for the Commissioner of Police; · On 16 May 2005 argument took place before Ducker ADCJ in relation to the subpoena. On that day Ducker ADCJ handed down a judgment in relation to the subpoena. The Commissioner of police agreed to produce the material sought in paras 1(a), 1 (b) and 2 of the subpoena. Ducker ADCJ ruled that the appellant had failed to show a legitimate forensic purpose in relation to the matters in paras 1(c)-(g). The appellant did not pursue the production of the matters in para 3 of the subpoena. · On the next day (17 May 2005) the Crown Solicitor applied to have oral evidence in the trial in relation to informers restricted to three matters on the basis of public interest immunity. These three matters were namely (a) that the police had received information from an informer; (b) that the informer had antipathy towards the accused; (c) that the informer had told the police that the weapons in the clubhouse were behind the bar. The application was supported by the affidavit of Norman Hazzard. Ducker ADCJ granted the application, ultimately adopting the same approach that Hosking DCJ had taken in the first trial. 92 Accordingly, the subpoena was dealt with separately to, and in advance of, the public interest immunity application. 93 In his judgment of 16 May 2005 Ducker ADCJ concluded that the parts of the subpoena which his Honour disallowed amounted to a fishing expedition. His Honour said: "I cannot see any real prejudice at all to the accused in taking the course that I have. I have considered s 192 of the Evidence Act in this regard, and consideration of that section leads me to the view that the material which is being sought in the subpoena falls into the category of 'fishing' for evidence, attempting to investigate whether such evidence does exist." 94 The reference to s 192 in this passage gives the impression that his Honour has misdirected himself. Both the appellant and the Crown agree that s 192 does not contain the relevant test. However, it may well be that what his Honour meant by the reference to s 192 was that he had considered the subpoena in light of the nature of the proceedings and the importance of the evidence (see ss 192(2)(c) and (d)). This would be consistent with what Gibbs J said in Alister v The Queen (1984) 154 CLR 404 at 414: "the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence." 95 If what Ducker ADCJ meant by his reference to s 192 was that he had had regard to the fact that the subpoena was being sought by a defendant in a criminal trial, and to the question of whether or not the evidence being sought could materially assist his case, then his Honour did not in fact misdirect himself. His choice of words was perhaps inapt, but the substance of his Honour's decision was correct. In this regard, it is worth noting what Simpson J said in a different context in R v Anna Zhang [2005] NSWCCA 437 at 145: "Bearing in mind that reasons such as these are given under considerable pressure, during the course of a criminal trial, with a jury waiting, and without the luxury of time for reflection and refinement of expression, it seems to me that, although the steps in the process may have been, to an extent, concertinaed, the reasons suggest that the correct questions were addressed." 96 Ducker ADCJ was correct to find that the subpoenaed documents had no legitimate forensic purpose. The appellant's case was that either the police or the informer had "set him up." Even if this was true, it was hardly likely that the appellant would find evidence supporting this assertion in documents made and retained by the police force. If it was the police who "set up" the appellant – and I in no way imply that this was the case – then it would seem highly improbable that they would make a permanent record of their own corruption. To my mind the appellant was "fishing" for evidence. It could not be said that it was "on the cards" that the subpoenaed information would materially assist the defence. At its highest the appellant's claim was that "I wish to see the document to see if it may assist my case." This is precisely what Mahoney AP said was insufficient in Carroll v Attorney General for NSW (1993) 70 A Crim R 162 at 182. 97 The appellant's submission that the decision not to disclose the identity of the informer should have led to a stay of proceedings cannot be supported. A stay will only be granted if otherwise the accused would not receive a fair trial (Dietrich). In the present case, the appellant was entitled to establish that the police had received information from an informer, that the informer was antipathetic to the appellant, and that the informer had told police about the weapons in the clubhouse. Disclosure of the informer's identity would not have taken the appellant's case any further than the establishment of these matters could have done. To the extent that any unfairness was occasioned to the appellant by the Crown's successful public immunity claim, it was not such as to warrant a stay of proceedings. 98 Courts have been reticent to allow the disclosure of the name or identity of an informant. In R v Abdullah & Ors [1999] NSWCCA 188 this Court considered the approach that should be adopted when attempts had been made to discover the identity of a police informer. Barr J said: "The identity of a police informer has, as a matter of public policy, been protected against disclosure at least since Marks v Beyfus (1890) 25 QBD 494 at 498 and 500. This species of public interest immunity was recognised in many cases, including Duncan & Anor v Cammell Laird and Company Limited [1942] AC 624 at 633 and 634; Rogers v Home Secretary [1973] AC 388 at 401-407; Sankey v Whitlam (1978) 142 CLR 1 at 61; and Cain v Glass (No 2) at 233-234, 242 and 246-247. It covers any material by which a shrewd idea might be conveyed as to the identity of the informer: Rogers v Home Secretary at 401. 21 The rationale is that if the identity of an informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 232 and 241; Sankey v Whitlam at 65-66; and Cain v Glass (No 2) at 247. 22 There is an exception to the rule, in that disclosure of the identity of the informer will be ordered when required to establish the innocence of an accused person.: Marks v Beyfus at 498 and 500; D v National Society for the Prevention of Cruelty to Children at 218 and 232; Sankey v Whitlam at 42. See also Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667, in the judgment of Hunt CJ at CL beginning at 669, but particularly at 674 and 675. 23 This exception was dealt with in the judgment of McHugh J in Cain v Glass (No 2) at 246 and 247. His Honour referred to the judgment of Lord Diplock in D v National Society for the Prevention of Cruelty to Children at 218: By the uniform practice of the judges which by the time of Marks v Beyfus 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except whereupon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure. 24 Public interest immunity applies as much to proposed oral evidence as well as to the contents of documents: Sankey v Whitlam at 38; Young v Quin (1985) 4 FCR 483 at 485 in the judgment of Bowen CJ; Marks v Beyfus at 491; and Signorotto v Nicholson [1982] VR 413 per Fullagar J at 423 and 424. 25 His Honour was required in conformity with these authorities to enquire as to the factual basis upon which defence counsel justified the proposed examination. It was only if defence counsel could show that the desired evidence could help to show that the defendant was innocent that the claim of public interest immunity could be rejected and the proposed cross-examination permitted." 99 As the authorities make plain only where revelation of the identity of an informer may assist a person to establish their innocence will the rule requiring that it not be disclosed be varied. In the present case there was nothing to suggest that if the defence knew the name of the informer it would assist his case. That case was that he had no knowledge of the weapons in the storage facility which he claimed were put there by others. The jury had to assess his evidence and the evidence of others who said they had been there against the evidence of Mr Herrity and Ms Windows that no one else had paid the rent or accessed the facility. Defence counsel did not show that the desired evidence could help demonstrate the defendant's innocence. 100 It was submitted that the defence wished to test the "good faith" of Officer Brereton, one of the investigating police. Even if his credibility was relevant and I cannot see that it was, there was nothing to suggest that the file would be of any assistance in dong so. 101 Beyond these matters the parties to the appeal agreed that it was appropriate for this Court to examine the subpoenaed material. 102 Accordingly, both the confidential affidavit sworn on 13 May 2005 and referred to in the open affidavit of Norman Hazard sworn on 13 May 2005 and the documents exhibited to that affidavit have been considered by this Court. Consideration of those documents leads conclusively to the view that disclosure of the confidential documents would not have helped the appellant to show that he was innocent of the relevant offences. Ground 7: The trial miscarried as his Honour's summing up was unbalanced and unfair. 103 The trial judge was required to put the case of the parties in a fair and balanced way (see R v Meher [2004] NSWCCA 355). It was submitted by the appellant that his Honour's summing-up in the present case lacked balance and contained rhetorical flourishes which were favourable to the prosecution. In this respect the appellant emphasised that his Honour said that he was required to outline the evidence of each of the defence witnesses in order to "satisfy the academics who scrutinize transcripts and summing ups for appeal points." These remarks were prompted by complaint from defence counsel about the judge's summary of the defence case. 104 I am not satisfied that the trial miscarried by reason of the trial judge's summing-up. His Honour was careful to remind the jurors of the evidence of defence witnesses but warned them that his view in relation to the facts was in no way binding upon them. Although his Honour made some sarcastic remarks about the requirements of higher courts and academics, which should not have been made, his Honour was receptive to the views of both counsel and his summing-up to the jury reflected their concerns. Summary submission on conviction 105 For the various reasons to which I have referred the appellant submitted that the trial miscarried. He further submitted that the verdicts of acquittal on counts 2 to 7 showed that the jury had misgivings about the prosecution case and a reasonable doubt as to the appellant's knowledge of the guns in the storage unit. 106 As to the latter submission the explanation for the verdicts of acquittal on counts 2 to 7 may well be because the jury was not satisfied beyond reasonable doubt that the appellant "knowingly" had possession. However, this does not mean that he was able to satisfy the jury that he did not know or perhaps more significantly "could not reasonably be expected to have known" of the presence of the firearms. Section 4A(1)(b) of the Firearms Act is clearly aimed at a situation where the Crown could not prove knowledge to the requisite standard but the accused cannot adequately explain his alleged lack of knowledge of the presence of the weapons. By contrast, the test in s 4 of the Weapons Prohibition Act contains no deeming provisions. It requires the prosecution to prove, beyond reasonable doubt, that the accused "knowingly" had custody of the weapon, "knowingly" had the weapon in the custody of another person, or "knowingly" had the weapon in or on any premises, vehicle, vessel or aircraft, whether or not belonging to or occupied by the accused. An accused can quite reasonably be convicted under the Firearms Act provisions while being acquitted under the Weapons Prohibition Act. The proviso 107 Although, in my opinion, none of the other grounds of appeal can be sustained I am satisfied that the evidence of the weapons located at the Club premises should not have been admitted. Does this matter? The Crown submitted, relying on s 6(1) of the Criminal Appeal Act ("the proviso") that the appeal should in any event be dismissed. 108 In Cornwell v R [2006] NSWCCA 116 I considered the proviso and the appropriate circumstances for its application. The issue had been recently considered by the High Court in Weiss v The Queen [2005] HCA 81 and in Cornwell I endeavoured to summarise the relevant principles in the following terms at [110]: "The Court identified a number of relevant principles of which the following may be a useful summary: · The appellate court must decide whether a substantial miscarriage of justice has actually occurred; [42] · The task of the appellate court is an objective task and is to be carried out by consideration of the record of the trial; [42] · the appellate court must make its own independent assessment of the evidence having regard to the whole of the record of the trial including the fact that the jury returned a guilty verdict; [43] · it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty; [44] · there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded as to the requisite degree of the appellant's guilt; [45]" 109 There was no issue that the appellant was the lessee of the premises on which the weapons were found. However, on the first count the appellant carried the onus of satisfying the jury that "he did not know and could not reasonably be expected to have known" that the weapons were on the premises or that he was "not in possession of the firearm." 110 As I have related there was evidence of other members of the motorcycle club having access to the premises. In particular there was the evidence of Mark Laming who said that he took Sniper Edmonds to HI-Tech on a day which could have been 17 October. However, he believed that they went there on a Wednesday because that was the day of the week on which he regularly went to the club premises. The 17 October 2002 was a Thursday. He said that Edmonds deposited a bag which resembled the bag in which the shorn off shotgun was found. There was also evidence that Sniper Edmonds carried animosity toward the appellant. 111 Although the evidence of Mark Laming could possibly explain the presence of the shotgun no explanation for the presence of the other weapons was offered. Various members of the club said they had accessed the storage unit but none of them said they had left a weapon there or saw anyone else put one into the storage facility. In many respects their evidence was difficult to accept where it was in conflict with Mr Herrity and Ms Windows. Although Mr Herrity was criticised, and his recollection was, at least, unsure, it could not be suggested that he was not endeavouring to tell the truth. However, because of the opportunity for access to the storage unit out of hours when the premises were not supervised the opportunity for someone to leave weapons without the management being aware was available. 112 It follows that the evidence of the appellant was of fundamental significance. Before he could discharge the onus which he carried his evidence that he had not recently accessed the facility would have to be accepted by the jury. As a consequence his credit was critical. To my mind the evidence of the weapons at the clubhouse and the directions given to the jury in relation to them could not but have damaged his credit in the minds of the jury. The possible effect was that, whatever the appellant's evidence of infrequent attendance at the premises and of no recent visit there, the jury were less likely to accept his claim that he had no knowledge of the weapons and that they must have been put there or "planted" by others. 113 In these circumstances I have come to the conclusion that the proviso cannot be applied. I do so with considerable hesitation because to my mind the Crown case is strong. However, because of the prejudice to the appellant and the potential impact on his credit from the admission of the evidence of the weapons at the club I have concluded that a new trial must be ordered. He lost the chance of an acquittal. 114 It is unnecessary to consider the matter of sentence. ORDERS 1. Appeal upheld. 2. Conviction quashed and new trial ordered. 115 JAMES J: I agree with McClellan CJ at CL. 116 SIMPSON J: I have read in draft and generally agree with the judgment of McClellan CJ at CL. I wish to add only a little about the grounds concerning the evidence of tendency. It is unnecessary to restate the facts and circumstances. These remarks should be read in conjunction with the principal judgment. 117 Tendency (and coincidence) evidence remain largely misunderstood. In R v Fletcher [2005] NSWCCA 338 and R v Anna Zhang [2005] NSWCCA 437 I endeavoured to set out what, in my opinion, is required by the relevant provisions of the Evidence Act 1995 in the determination of the tender of tendency evidence under s97 or coincidence evidence under s98. It remains the case that, frequently, the two are treated as interchangeable, or at least as overlapping, and are confused with one another. There are strong suggestions in the language used in the present case in both the decision to admit the evidence of tendency and in the directions to the jury, that that is what happened here. Much of the language used by the trial judge was the language of coincidence evidence, or what was, in pre-Evidence Act days, more commonly known as similar fact evidence, and is not apt in the determination of the admission of evidence tendered as tendency evidence. 118 In this case the Crown served a tendency evidence notice. It did not seek to rely upon the evidence as coincidence evidence. 119 The admission of tendency evidence is governed by s97 of the Evidence Act. That section is relevantly in the following terms: " 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." 120 "Probative value" is defined in the Dictionary to the Evidence Act as: "…the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." "Significant" in s97 means "important" or "of consequence": see R v Lockyer (1996) 89 A Crim R 457 per Hunt CJ at CL. The significance of the probative value of tendency evidence depends upon the nature of the fact in issue to which it is said to be relevant and the significance or importance which may be attributed to that evidence in establishing that fact. The distinction between a "fact in issue" and a "fact relevant to a fact in issue" is not to be overlooked. For present purposes, I am prepared to accept, as proposed in Odgers' Uniform Evidence Law , Sixth Edition, that a "fact is issue" means "ultimate fact in issue". In criminal cases that includes (even if it is not limited to) each factual element of the offence charged. 121 The "tendency" with which s97 is concerned is a tendency to act in a particular way, or a tendency to have a particular state of mind. Evidence tendered for that purpose is not to be admitted if the court (making an assessment of the evidence already adduced and evidence anticipated to be adduced by the party tendering the evidence) thinks that it would not, either by itself or having regard to that other evidence, have significant probative value. 122 In a criminal case a further layer is imposed by s101(2) of the Evidence Act, which provides as follows: " 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) … (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3)… (4)…" 123 The task of assessing the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (that is, of assessing whether the evidence has probative value) is necessarily committed, even where a jury is the tribunal of fact, to the trial judge. (Where a jury is the tribunal of fact the determination of the extent to which a particular item of evidence does in fact affect the assessment of the probability of the existence of a fact in issue lies within the province of the jury. The role of the judge under s97 is to evaluate the likelihood that the jury would attribute significant probative value to the evidence.) In both Fletcher and Zhang I commented on the peculiarities of the drafting of s101(2), but accepted that to enable it to have any operation, it ought (despite the apparently contrary terminology) to be treated as laying down a rule of admissibility. On that basis, the exercise it involves is also one committed to the trial judge. 124 Underlying s97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion. 125 Where tendency evidence is tendered, the judicial process involves: (i) determining whether the evidence has probative value; that is, determining whether it is capable rationally of affecting the assessment (by the tribunal of fact) of the probability of a fact in issue; (ii) if it is determined that the evidence is so capable (and therefore has probative value), determining whether that probative value is capable of being perceived by the tribunal of fact as significant (as explained in Lockyer ); (iii) (in a criminal case) if it is determined that the evidence is capable of being so perceived, applying the s101(2) test, and determining whether the probative value of the evidence substantially outweighs any prejudicial effect upon the defendant. The first step in the process necessarily further involves the identification of the fact in issue the probability of the existence of which is said to be affected by the evidence tendered as tendency evidence. 126 I have spent some time re-stating these propositions because, I think, it helps to cast some light upon the processes that were undertaken in the present trial. 127 I remind myself that, by s6 of the Criminal Appeal Act 1912, an appeal lies to this Court on three grounds: (i) that the verdict is unreasonable or cannot be supported; (ii) the wrong decision of any question of law; (iii) miscarriage of justice on any other ground. A ground of appeal raising the admission of evidence is a ground asserting the wrong decision of a question of law. That may involve an assertion of error in the process of determining the admission of the evidence, or it may involve assertion of the erroneous application of a rule, or rules, of evidence. 128 A properly drafted tendency evidence notice should, in my opinion, explicitly identify the fact or facts in issue upon which the tendering party asserts the evidence bears. It should also explicitly identify the tendency sought to be proved. 129 Essentially, the evidence proffered as tendency evidence in this case was evidence of the presence of the firearms in the clubhouse, being the clubhouse of an organisation of which the appellant was president, and to which he daily had open access. 130 The tendency evidence notice was, to put it mildly, terse. It expressly identified the appellant as the person whose "tendency" was the subject of the evidence sought to be adduced, and it listed the prosecution statements containing the evidence upon which it proposed to rely as tendency evidence. As the presiding judge has pointed out, at no point did it descend to the specification of the tendency which the evidence was tendered to prove. Nor did it specify any fact (or facts) in issue upon which the evidence was said to bear. 131 Let it now be assumed that, in the present case, the "tendency" of the appellant that the prosecution sought to prove was a tendency to possess firearms. Let it be further assumed that the (or a) fact in issue upon which the evidence was said to bear was the appellant's knowledge of the presence of the firearms in the storage facility. That was one ultimate fact in issue, and, in the circumstances of this trial, it was the only fact in issue truly in dispute. That firearms were present was accepted. Was the presence of the firearms in the clubhouse rationally capable of affecting the probability of the existence of knowledge in the appellant of the presence of the firearms in the storage facility? If not, then the evidence was not capable of having probative value, and was not admissible. If it were so capable, it still remained for the judge to determine whether that probative value could have been perceived by the jury as "significant". If the judge assessed that, in all of the circumstances (including his knowledge of the evidence already adduced and that which he then anticipated would be adduced by the prosecution, as the party tendering the evidence), it would not have been open to the jury to regard the probative value of that evidence as "significant" then, again, the section required the exclusion of the evidence. If, on the other hand, the judge concluded that the jury could reasonably have regarded the probative value of the evidence as significant, then the evidence was admissible under s97. In that event, however, s101(2) required a further exercise, of balancing the probative value of evidence against any prejudicial effect it may have had upon the appellant. Unless the assessment were that the probative value substantially outweighed its prejudicial effect, then s101(2) mandated that the evidence could not be used against the appellant. 132 With that analysis as backdrop, I now turn to consider its application in the facts and circumstances of this case. The trial was the second trial of the appellant on these charges. An earlier trial had been conducted in which the jury was unable to agree. By reason of the conduct of that trial, a somewhat clearer than usual picture of the issues truly in dispute was available. The appellant denied knowledge of either cache of firearms; he claimed that all had been deceitfully planted there either by the informer, or by police. Proof of his knowledge of their presence in the storage facility was therefore crucial to the prosecution case. The Crown sought to prove that the appellant did have the requisite knowledge, in the first instance, by quite extensive evidence of his association with and attendance at the storage facility – that it was leased in his name, that it was he who, on a regular basis, paid the lease fees; that it was he who frequently attended; and that few, if any, others had been known to have (regular) access to it. But the Crown also sought to prove the appellant's knowledge by the evidence – as "tendency evidence" – of the existence of a second arms cache at the clubhouse. The Crown's written submissions in this Court contained the following: "15 The Crown relied upon the evidence of finding the three weapons at the club as being highly probative and going to the question of the accused's knowledge of the presence of the firearms and other prohibited weapons found at [the storage facility]." 133 I am at a loss to understand how the presence of the weapons at the clubhouse – relied upon as tendency evidence – throws any light upon the appellant's knowledge of the presence of the weapons at the storage facility. (It would be different if the Crown had relied upon the evidence under s98 of the Evidence Act, as rebutting the coincidental presence, without his knowledge, in two locations to which the appellant had ready and frequent access, of illicit firearms, but this it did not do or seek to do. That may, however, explain the use of coincidence evidence language, and the apparent confusion, in the consideration of the admission of the evidence as tendency evidence.) 134 In my opinion, if the fact in issue in respect of which the evidence was tendered was the appellant's knowledge of the presence of the firearms in the storage facility, then the evidence was not capable of having the requisite probative value. Axiomatically, it was not capable of having significant probative value. 135 Further, if the "tendency" to which the evidence was said to go was an asserted tendency on the part of the appellant to possess illicit firearms, it's probative value had to be assessed in the light of the evidence showing the extent to which the appellant had exclusive access, not to the storage facility, but to the clubhouse. The evidence as to this is outlined in the judgment of McClellan CJ at CL. I incline to the view that evidence of the presence, on the same day, in two locations to which the appellant had ready, frequent and virtually unrestricted access, was capable of establishing a tendency in him to possess firearms. But his tendency to possess firearms cannot be the fact in issue, to prove the probability of the existence of which the evidence was tendered. As I have said earlier, proof of tendency is merely a step in the process of proving particular conduct or particular state of mind at a relevant time. The fact in issue must have been, not the appellant's tendency to possess firearms, but his possession (with knowledge) of the firearms in the storage facility on 20 November 2002. 136 I am unable to accept that the evidence of the presence of the firearms in the clubhouse was capable of rationally affecting the assessment of the probability of that fact. The evidence was therefore not capable of having probative value. 137 It follows that the evidence was not capable of having significant probative value for the purposes of s97. 138 Even if the evidence of the presence of the firearms in the clubhouse were capable of having probative value, the significance of that probative value had to be assessed in the light of the evidence of the comings and goings from the clubhouse of other members of the club. This must have weakened any inferences available as to the appellant's possession of those firearms: see R v Filippetti (1978) 13 A Crim R 335. 139 I otherwise agree with the orders proposed by McClellan CJ at CL, and with his Honour's reasons therefor. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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