Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Castagna v R [2012] NSWCCA 181 Hearing dates: 14 October 2011 Decision date: 23 August 2012 Before: McClellan CJ at CL Latham J Harrison J Decision: Appeal against conviction dismissed Catchwords: CRIMINAL LAW - appeal against conviction - supply of more than a large commercial quantity - deemed supply - whether trial judge erred in refusing to sever count 2 - whether trial judge erred in refusing to direct a verdict - whether trial judge erred in directions to the jury - whether unreasonable verdict Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: R v BD (1997) 94 A Crim R 131 Papakosmas v The Queen (1999) 196 CLR 297R v Serratore [1999] NSWCCA 377 R v Hamzy (1994) 74 A Crim R 341 M v R [1994] HCA 63; (1994) 181 CLR 487 MFA v R [2002] HCA 53; (2002) 213 CLR 606 SKA v R [2011] HCA 13; (2011) 243 CLR 400 R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8 Category: Principal judgment Parties: Alexander Robert Castanga - (Applicant) Regina - (Respondent) Representation: Counsel M Ramage QC - (Applicant) P Ingram SC - (Respondent) Solicitors Jeffreys Lawyers - (Applicant) S Kavanagh, Solicitor for Public Prosecutions - (Respondent) File Number(s): 2007/13252 Decision under appeal Date of Decision: 2009-09-10 00:00:00 Before: PR Zahra SC DCJ File Number(s): 2007/13252 Judgment 1McCLELLAN CJ at CL : I agree with Latham J. In particular having myself reviewed all of the relevant evidence I do not doubt that the appellant was rightly convicted. 2LATHAM J : The appellant was found guilty by a jury on 10 September 2009 of three offences, namely, (Count 1) supply not less than a large commercial quantity of a prohibited drug (methylamphetamine), (Count 2) supply a prohibited drug (methylamphetamine) and (Count 3) possess money being the proceeds of crime ($129,650). 3The appellant appeals against his conviction on counts 1 and 2 on the basis that the verdicts are unreasonable and cannot be supported by the evidence. An additional ground in relation to count 2 alleges error in the trial judge's refusal to separate count 2 from count 1, error in refusing to direct a verdict in respect of count 2, and error in directing the jury that the presence of methylamphetamine in a wardrobe in the appellant's home (the subject of count 2) was capable of supporting the evidence of the principal Crown witness (Dow). There is no appeal against conviction in respect of count 3 and there is no appeal against sentence. 4In summary, the Crown case consisted of the evidence of a Mr Dow, a flight attendant, who was allegedly instructed by the appellant to transport amounts of methylamphetamine from Sydney to Perth and to remit amounts of money in payment for the drugs from Perth to Sydney by way of return flights. Count 1 alleged the supply by the appellant between 1 June 2004 and 12 April 2006 of more than a large commercial quantity (more than 1kg) of methylamphetamine, of which 1.9 kg was supplied on 11 April 2006 in a blue bag, which Dow took to Perth. Count 2 alleged that the appellant possessed for supply a quantity of methylamphetamine found in a wardrobe in a spare bedroom of the appellant's home following his arrest on 12 April 2006. The Evidence at Trial. 5Anthony Dow was a flight attendant with Qantas. In April 2006 he was living at 79 Francis St Bondi. He had previously lived in Old South Head Road, Rose Bay. The appellant and Mr Dow's wife had been friends for some period of time. 6On Friday, 7 April 2006 Mr Dow was on holidays. He was ill and at home when he received a phone call from the appellant asking him where he was. Telephone records produced at trial demonstrated that a phone call was made by the appellant to Mr Dow's mobile number at about 12:36 pm from a public payphone in Francis Street Bondi. Supply of More than a Large Commercial Quantity of Methylamphetamine (Count 1). 7About 10 to 20 minutes later, the appellant and Mr Lee Pereira arrived at Mr Dow's home and went inside. The appellant had a blue bag from which he removed a vacuum sealed package containing a white substance and bundles of $50 and $100 notes. The appellant asked Mr Dow when he was going to Perth again. The appellant wanted Mr Dow to go to Perth that weekend, however Mr Dow declined because he was ill. He agreed to go to Perth on Tuesday. 8Mr Dow told the appellant that a training supplement which the appellant had requested from Mr Dow was in Mr Dow's bedroom. The appellant and Mr Pereira left Mr Dow in the living room and later left the house. The appellant took the blue bag with him when he left the living room. 9Dow denied the suggestion that the appellant had left wedding invitations with him to be given to Dow's wife so that she could provide the addresses of their friends for the appellant's pending wedding celebrations. 10Det Hawkins was carrying out surveillance in Francis Street Bondi on 7 April 2006. At 12:33 pm he saw the appellant and Pereira stop and park in the street. The appellant walked to the front gate of the units at 79 Francis St, returned to his vehicle, then walked back to the building with a long white round object in his hand. He returned once more to the vehicle, then walked from the vehicle to the building with a small blue sports bag. At 12:41 pm detective Hawkins saw the appellant and Pereira leave the building and return to the vehicle. 11Later that afternoon, Mr Dow went to a medical centre at Bondi Junction where he was diagnosed with tonsillitis and prescribed antibiotics. On Saturday his condition worsened and he went to Prince of Wales Hospital at Randwick where he stayed overnight. On Sunday he went home and stayed there during the day. 12On Monday 10 April 2006, Dow went to lunch with his wife and a friend at Bondi Beach. On his return to his home that afternoon, he noticed the blue bag behind the sliding mirror door of his bedroom cupboard. He was surprised to find the bag in his cupboard, given that the appellant had not told him that he had placed it there. He shared the bedroom with his wife and his wife's daughter lived in the house with them. Dow went upstairs to the attic to his computer to check Qantas flights from Sydney to Perth. He was unable to get access to the web site. 13Later that night, the appellant and Pereira returned to 79 Francis St. The appellant said he wanted to talk to Dow. The appellant grabbed Dow by the shirt and told him to "just fucking do it". The appellant, Pereira and Dow went to the attic where Dow tried once again to access the Qantas website. The appellant gave Dow the flight number of the flight which the appellant was taking to Perth the following day. The appellant also produced an address for delivery of the blue bag. Dow wrote the street address (Roscorla Ave) on a business card that he had kept from the doctor at Bondi Junction medical centre. He incorrectly wrote the address and was corrected by the appellant (although the copy of the business card produced at trial appeared uncorrected). The appellant told Dow that he would tell him the suburb in Perth at the airport the following day. 14Dow initially told police after his arrest that he had gone to the address in Roscorla Avenue to see a girl and that he did not recognize the writing on the rear of the doctor's business card that was found in his possession. When interviewed by police on 11 April, Dow told them that he had written the address down the previous week, not the previous day. He also told police that the drugs were given to him "last night", whereas his evidence at trial suggested that the appellant brought the blue bag and left it in Dow's bedroom cupboard on 7 April. 15Pereira gave Dow a white Nokia phone (the number ending in 491) and the appellant told Dow he would call him using that phone after he had delivered the drugs. (The phone number was subscribed to a Sam Li of 222 Pitt St, Sydney. No records existed of that person at that address. The phone was in Dow's possession when he was arrested.) Pereira and the appellant left. Dow then booked the flight to Perth. 16Dow admitted that soon after the appellant left on 10 April, after allegedly threatening him, Dow called a friend in relation to the appellant's pending wedding. Dow's explanation for this apparent inconsistent conduct was that the appellant asked him to make the call. Dow admitted that there had been a conversation about the appellant's wedding. 17An Australian Crime Commission officer conducting surveillance on 79 Francis St on 10 April 2006 saw the appellant and Pereira arrive by car and enter those premises at 8:38 pm. He saw them leave the premises at 8:58 pm. The premises were not under surveillance between 6:30 pm and 7:20 pm that night. 18Detective Senior Constable Hawkins confirmed that there was no surveillance conducted on Dow or on 79 Francis St between 9:10 pm on 10 April and 6:50 am on 11 April 2006. 19On the morning of that day, Dow strapped the drugs from the blue bag around his waist using masking tape. He maintained at trial that this was his idea, albeit he later told police that he had been instructed to adopt that method. The money that he had previously seen in the blue bag was no longer there. The drugs were in a white powdery crystalline form in a see-through vacuum sealed plastic bag. He took the blue bag with him in his carry-on bag, together with runners and the white Nokia phone. 20Dow travelled to the airport, went through security and then went to the male toilets where he took the drugs and placed them in the blue bag, which he placed in turn inside the carry-on bag. He sat down in the staff travel area. The appellant walked in front of him and then sat down behind him, before whispering "Yokine", the suburb in Perth where the drugs were to be delivered. 21Detective Senior Constable Robison saw the appellant look at and smile at Dow at about 7:58 am at gates 6/7 of the Qantas domestic terminal. He saw the appellant sit in the row of seats behind Dow in the lounge area. Dow turned and appeared to have a conversation with the appellant. The appellant then stood up and walked in front of Dow, where both appeared to be having a conversation. 22Dow arrived in Perth and got a taxi to the Yokine address. Dow asked the driver to wait. He took the blue bag out of his carry-on bag and walked to the garage of the middle town house, opened the garage door, placed the blue bag inside and returned to the taxi. He then returned to the airport where he was arrested at about midday. He was about to fly from Perth to Melbourne because it was easier to get standby tickets on that route. Dow denied that he was going to Melbourne to report to whomever had given him the drugs. 23The taxi driver, Mr Sinagra, stated that when they arrived at the Yokine address, Dow said "I'm not sure of the number, but I know the place". The taxi driver confirmed that Dow took a bag and went to the second of the three units. After a few minutes he came back without the bag. 24Shortly after Dow's departure from Roscorla Ave, To Tan Pham was seen to approach the townhouse. This man was known to the appellant, who was in his company when a vehicle was stopped by police in Perth on 7 March 2005. 25Sergeant Anderson conducted a search of the garage at 6A Roscorla Ave Yokine at 1:20 pm. He saw a blue sports bag sitting on top of a stack of boxes just inside the garage door. Inside the blue bag was a white crystalline substance inside a red plastic bag. When shown the video of the search of the garage in the course of his evidence, Dow said that he had no memory of the red bag. Dow's DNA was later found on the masking tape that secured the drugs. There was no DNA or fingerprint evidence that linked the appellant with the blue bag, the red plastic bag or the drugs. 26Dow gave evidence of previous occasions when he transported drugs from Sydney to Perth on the instructions of the appellant. He said there were about five or six such occasions. 27Dow gave evidence of an occasion in early 2004 when he took a package to Perth, which was collected from him at the Rydges Hotel. Dow was paid about $4,000 or $5,000 for this delivery. On another occasion in 2004, the appellant came to Dow's apartment and gave him a vacuum sealed package containing methylamphetamine. Dow put it down the front of his pants when he walked through security at Sydney airport. In Perth, he handed the package to Pereira in the toilet of the McDonald's food outlet. Dow was paid about $10,000 for this delivery. 28On another occasion in early to mid-2005, the appellant came to Dow's apartment in Rose Bay and gave him a package for delivery to Perth. It was also a vacuum sealed clear plastic bag containing a white crystalline substance. Dow took the package through security tucked down his pants. He gave this package to Pereira at the McDonald's outlet in Perth. 29On another occasion in 2005, Dow was given a vacuum sealed bag containing a white crystalline powder by the appellant or Pereira. He transported the package to Perth where he telephoned the appellant. Consistent with the appellant's instructions, Dow got into the back seat of a car near the McDonald's outlet and placed the package in the car before being driven back to his hotel. 30A further trip from Sydney to Perth in December 2005 was said to be the subject of a drug delivery, although Dow could not remember any of the details in relation to that occasion. 31Dow's evidence was that he thought he had been paid a total of about $80,000 to deliver drugs on the appellant's instructions. He had earlier given evidence that the total payment was in the vicinity of $80,000 to $120,000, whereas he had also previously told the police that it was in the vicinity of $60,000 to $70,000. 32Dow accepted in cross-examination that he had told the Australian Crime Commission that he transported drugs to Perth on only one occasion, namely 11 April 2006. However, he said that as at 22 August 2006, he was prepared to lie on oath when it suited him, including telling the Australian Crime Commission that his statement to police on the morning of 12 April 2006 was not true in so far as it maintained that there was more than one delivery. 33Dow also accepted that he had lied to police when he told them that he had only taken drugs to Perth on two occasions. He gave evidence at the committal proceedings that he had transported drugs on three or four occasions in total. He could not remember what he had said in the course of his evidence in the aborted trial, namely that it was "5, 6, .. 7, 3, 4, 5, 6 - it was a few times, sir". He later said it may have even been as many as seven or eight times. 34In mid March 2006, Pereira came to Dow's apartment and gave him a vacuum sealed bag containing money. The package contained $50 and $100 notes. When Dow arrived in Perth, he called the appellant who came to his hotel with an Asian man. Dow was not paid for this trip. 35An Australian Crime Commission investigator conducting surveillance in Perth on 16 March 2006 saw the appellant leaving the Rydges Hotel shortly after 10 pm. The appellant was carrying a white plastic shopping bag containing an object about the size of an AFL football. At 11:57 pm he saw the appellant leave the lift area of the hotel in the company of an Asian/Malaysian man. On 17 March 2006 he saw the appellant enter the hotel restaurant where Dow was sitting, wink and nod to Dow and then sit at a table in the corner. 36Under cross-examination, Dow agreed that he had banked $8,000 on 16 March 2006, but he denied that this was a payment from Pereira. He accepted that he had told the Australian Crime Commission that Pereira had never given him any money, probably because he had forgotten about this occasion. He also told the Australian Crime Commission that more than $50,000 which he deposited in May 2006 was from gambling. Dow's evidence was that it was either the proceeds of gambling or moneys that he had accumulated from payment for drug runs, or both. 37Dow also gave evidence of taking money from Perth to Sydney on behalf of the appellant. Dow did this on about five or six occasions, the first time being late 2003 or early 2004. The appellant came to Dow's hotel room in Perth and asked him to take money back to Sydney. He emptied a bag onto the bed containing $5,000 and $10,000 bundles. On this occasion, Dow did not have enough room in his bag so he only took $80,000. The appellant came to Dow's apartment in Sydney the following day and retrieved the money. 38On another occasion in mid to late 2004, Dow transported $30,000 or $40,000 to Sydney from Perth. There were one or two trips in 2005, relating to the delivery on each occasion of about the same amount of money. 39According to his evidence at trial, Dow transported money from Sydney to Perth perhaps once or twice. He acknowledged that he had told the Australian Crime Commission that he had taken money from Sydney to Perth five times and from Perth to Sydney once. Dow denied that he had lied in this respect. He had simply transposed the number of trips. Deemed Supply of Methylamphetamine 40The appellant was arrested at 6:45 am on 12 April 2006 at Sydney domestic airport. He was cautioned and declined to be interviewed. A search of his home carried out later that day resulted in the discovery of 7.1 gms of methylamphetamine in a cupboard of a spare bedroom. 41A video recording of the search was before the jury. The hanging space of the cupboard contained male clothing and the drawers contained, among other things, male business socks. Two passports in the appellant's name, a number of Qantas documents linked to Dow and a box containing two resealable bags of methylamphetamine were removed from the top drawer. There was also a bag containing $129,650 on a shelf above the drawers. (This was the subject of count 3) 42The appellant pointed to evidence of a New Year's Eve party at the premises on 31 December 2005 in order to suggest that a number of persons who had access to the spare room may have been responsible for the presence of the drugs. Dow's Credibility. 43The appellant's case at trial was advanced by way of cross-examination of Dow. It was put to Dow that he had given false evidence against the appellant and that his transportation of drugs and money was for someone other than the appellant. It was also suggested that the falsity of his evidence was unlikely to be detected by a jury, given that Dow had been a paid professional actor since about 1998 and had developed skills in engaging an audience and presenting a character. It was also put and denied that the reason the appellant would try to find out when Dow was flying to Perth was so that Dow could upgrade the appellant from economy to business class. 44It was not disputed that the appellant had taken numerous flights to Western Australia, which was said to be consistent with his legitimate business interests in the timber industry. The appellant did not dispute that he had flown to Perth on 11 April and that he had spoken to Dow at the airport. Such contact as there was between the appellant and Dow was explained by reference to the appellant's friendship with Dow's wife. Dow had been out socially with his wife, the appellant and the appellant's partner and Dow was to be invited to the appellant's wedding. 45Dow acknowledged that there were occasions when the appellant asked him when he was flying to Perth, independent of any drugs or money transactions, and that Dow had previously upgraded the appellant from economy to business class. He agreed that when he and the appellant were in Perth at the same time they would communicate with one another and that there were meetings in Perth that had nothing to do with carrying drugs or money. 46Dow confirmed that in the course of his preliminary conversations with police he had lied to them in the hope of avoiding prosecution. He did not know of the police surveillance and telephone intercepts. He also acknowledged lying on oath to the Australian Crime Commission, at least until he was made aware that he could receive additional prison time if his answers were found to be false. 47When Dow gave evidence against the appellant in May 2009 in the course of the aborted trial, he had collected and studied all of his police records of interview (of which there were three), the transcripts of his Australian Crime Commission evidence, the transcripts of his evidence during the appellant's committal and the transcripts of his evidence during his own sentencing proceedings. For the purposes of the September 2009 trial, he had regard to the transcript of his sentencing proceedings and the transcript of the aborted trial, although he had not studied them. 48Dow acknowledged that he had promised to give evidence against the appellant in the hope of securing a discount on his own sentence. He also acknowledged that should he not give evidence against the appellant in accordance with his undertaking he could receive a longer sentence. Dow received a sentence of 6 years and one month, reduced from a starting point of 11 years on account of his assistance to the authorities. 49In summary, the appellant's case on count 1, put in cross-examination of Dow, and denied by him, was that the appellant had never supplied him with methylamphetamine, that he had received the drugs on 10 April 2006 from someone other than the appellant, that he knew the appellant had been to his apartment on 10 April 2006 and that he was trying to "fit up" the appellant in order to obtain for himself the least possible punishment. Evidence Confirmatory of Dow. 50There were a number of telephone intercepts that were the subject of evidence at the trial. These intercepts related to telephone subscriber numbers ending in 778 (Dow's phone), 436 (falsely subscribed to Jason Simonds at an address in Abbotsford, but primarily used by the appellant), 434 (falsely subscribed to Sam Li at 438 Sussex St, Sydney, but primarily used by the appellant and in his possession on his arrest) and 634 (falsely subscribed to Sam Li with a different birth date of 438 Sussex St, Sydney). This latter phone was not found. The Crown maintained that this number was also primarily used by the appellant. 51The appellant left Perth airport at 11:30am on 11 April and entered a vehicle registered to Michael Simich, said to be the appellant's business associate in a timber enterprise. The route travelled by the vehicle between midday and 6:15pm coincided with cell towers in various locations receiving and transmitting 14 calls from the subscriber number ending in 634 (the appellant) to the subscriber numbers ending in 491 (the white Nokia given to Dow) and 778 (Dow). All of these calls were made after Dow's arrest. Shortly after 6pm, the appellant called Dow's wife using subscriber number 434 to tell her that he had been trying to contact Dow without success. 52The call charge records and surveillance evidence also established that, between 6:20pm and 6:32pm while the appellant was staying at the Duxton Hotel in Perth on 11 April 2006, he received two calls on the subscriber number ending 434. At 7:55pm there is a call placed from the Duxton Hotel to Dow on the number ending 778. 53In addition to the evidence set out immediately above, the Crown also relied upon the finding of the methylamphetamine in the appellant's premises as confirmatory of Dow. It is therefore convenient to deal with the grounds of the appeal that relate to count 2, before turning to a consideration of the unreasonable verdicts ground. Error in Refusing to Sever Count 2. 54At the beginning of the trial, prior to the empanelment of the jury on 18 August 2009, the appellant's legal representative made an application to sever counts 2 and 3 from the trial of count 1 on the indictment. 55In relation to count 2, the application before the trial judge relied upon the fact that the quantity of methylamphetamine, the subject of count 2, could not be said to relate in any way to the quantity or composition of the methylamphetamine, the subject of count 1. It was submitted that Dow was unable to give evidence of any relevant comparison between the drugs that he carried to Perth on 11 April and the small quantity of methylamphetamine found in the appellant's premises. 56Dow was able to say that the drug supplied from time to time by the appellant was granular, powdery or in solid form. The Crown acknowledged that the methylamphetamine in the two separate resealable bags did not appear to resemble each other. One appeared granular while the other appeared more powdery. 57It was argued that the fact that methylamphetamine was readily available, the different packaging referable to count 2 as opposed to count 1, and the absence of evidence relating to the composition of the respective quantities of methylamphetamine, rendered the subject of count 2 of marginal relevance and therefore visited the danger of unfair prejudice on the appellant that outweighed the probative value of the finding of 7.1 g of methylamphetamine. 58The trial judge gave a preliminary ruling on 17 August 2009 declining to sever count 2 from count 1. In the course of that ruling, his Honour said :- ... having considered her Honour's ruling in relation to the application that was made in the same way when the matter was previously listed for trial l decline the application. I need not say anything further than, I, having considered her Honour's reasons, adopt her reasons. It does appear to me that there may be an additional basis for the counts remaining together as I have flagged with counsel, that it may be relevant to rebut the case of the accused, however, it is unnecessary for me to consider that matter further in the light of my adopting her Honour's reasons for judgment. That matter, on its own, is not determinative, though it does appear to me to be another basis upon which the finding of the drugs, the subject of count 2, are relevant in relation to count 1. 59The first paragraph was a reference to the reasons of Judge Flannery SC delivered on 7 November 2008 in the course of the aborted trial. The second paragraph dealt with an "additional" basis for refusing to sever count 2 from count 1. 60The application before Judge Flannery SC proceeded on the basis that the appellant only sought the severance of the charge relating to possession of the proceeds of crime from the remaining charges. It was submitted by the appellant's legal representative (the same legal representative in the later trial) that the appellant would be prejudiced or embarrassed in his defence of the drug charges, given that Dow claimed to have had conversations with the appellant about the commission of armed robberies by the appellant and others. In order to cross-examine Dow on the subject of the proceeds of crime charge, it was submitted that it was necessary to raise the subject matter of these alleged conversations with Dow. 61Her Honour accepted that the finding of the cash in the same cupboard as two resealable plastic bags containing methylamphetamine was probative, in the sense that the offences (that is, all three counts) arose out of the same set of circumstances (s 29(1)(b) Criminal Procedure Act). Her Honour was also not persuaded that the danger of unfair prejudice outweighed the probative value of the evidence relating to the finding of the cash and the two resealable plastic bags. Accordingly, the application to sever was rejected. 62On 19 August 2009, the trial judge delivered further reasons that included the following :- The application before her Honour was different in some respects; the application before her Honour involved an application to sever the count of possession of the proceeds of crime count from the other counts in the indictment. The application before me is that, one, that there be a separate trial in relation to the first count in the indictment. In the alternative, two, that there be a separate trial in relation to the second count in the indictment. The grounds of the application as stated in the notice of motion are as follows :- A The accused will be prejudiced or embarrassed in his defence of the first count in the indictment if the trial of the other counts in the indictment proceeds at the same time. B In the alternative, the accused will be prejudiced or embarrassed in his defence of the first and third counts in the indictment of the trial if the other count in the indictment proceeds at the same time. The application here therefore contains the additional application that the second count of supply be separated from the first count. ............................................................................... As I have previously indicated, the finding of the items, the subject of count 2 are relevant to count 1. They are relevant as circumstantial evidence of the accused having a ready supply of methyl amphetamine. They are relevant even though the amount found was considerably less than the quantity alleged to be involved in the transactions, the foundation of count 1. Amongst other things the appearance of the drug, the subject of count 2, is consistent with the appearance of the drug described by the key Crown witness allegedly provided to him by the accused. In the first trial there was no application that count 2 be separated from count 1. ... I am of the view on the material provided to me that the finding of the items, the subject of count 2, having similar characteristics is also relevant to rebutting the case of the accused that the key Crown witness is lying when he asserts that methylamphetamine, having the particular characteristics described, was provided to him by the accused. However, as I have indicated, this view is not determinative of the application before me and I reserve judgement as to whether the evidence of the finding of the drug, the subject of count 2, is relevant for that purpose and whether the Crown may put its case to the jury in that way. .... I am of the view, having considered the matters referred to in s 29(1) and (3) of the Criminal Procedure Act that the counts be heard together. The accused is not prejudiced or embarrassed in his defence of the other counts in the indictment if they proceed together and it is not an abuse of process for the trial to proceed on the present indictment. 63The appellant now contends that the trial judge erred in the following respects :- (a)His Honour failed to take into account or sufficiently take into account the very different nature of the items, both as to quantity and packaging. (b)His Honour failed to consider or apply the appropriate test to the admission of tendency evidence. (c)His Honour gave no consideration himself as to the risk that the evidence might be used by the jury in an unfair way. (d)His Honour gave no consideration himself to the unfair prejudice that would be caused to the appellant's case. (e)His Honour gave no consideration to the effect on the jury's consideration of their verdict on count 2 when it was being heard in conjunction with count 1. 64At the outset, it is necessary to observe that the complaints under this ground of the appeal are fundamentally misconceived. The application with which his Honour was dealing was an application to sever counts on the indictment on the basis that the appellant's defence would be prejudiced or embarrassed. That defence consisted of attempting to demonstrate to the jury that Dow was an inveterate liar who had in effect "set up" the appellant. There was no aspect of the evidence relating to the finding of the methylamphetamine that prejudiced the appellant in any way in his cross-examination of Dow. It was not suggested that Dow had anything to do with the methylamphetamine in the appellant's premises. 65It was not an application under s 135 and/or s 137 of the Evidence Act to exclude the evidence of the finding of the methylamphetamine on the basis that the evidence was more prejudicial than probative of count 2 on the indictment. Nor could it have been, given that the finding of the methylamphetamine was entirely probative of count 2. 66In truth, the appellant's proposition was that the evidence of the finding of the methylamphetamine prejudiced the appellant's defence in relation to count 1 on the indictment. In other words, the fact that a quantity of methylamphetamine was found in the appellant's premises rendered it less likely that the jury would accept the appellant's contention that Dow was a liar. That was precisely the basis upon which the Crown foreshadowed its reliance on count 2 in support of Dow. 67The capacity of evidence, which is relevant and admissible towards proof of one count on an indictment, to compromise an accused's defence in respect of another count on the same indictment, is not necessarily a basis for characterising that evidence as "prejudicial" in the sense in which that term is used in ss 135 and 137 of the Evidence Act. The relevant prejudice "is not that the evidence merely tends to establish the Crown case" : R v BD (1997) 94 A Crim R 131 at 139 ; Papakosmas v The Queen (1999) 196 CLR 297 at 325. Rather, it refers to the danger that the jury may use the evidence on a basis logically unconnected with the issues in the trial, by way of, for example, appealing to the jury's sympathies, arousing a sense of horror, or provoking an instinct to punish. 68There was no basis upon which the jury would approach the evidence of the finding of the methylamphetamine on a basis logically unconnected with the issues in the trial. To the contrary, the finding of the methylamphetamine at the appellant's premises was central to proof of count 2 and of significance to the jury's assessment of Dow's credibility. Any residual prejudice that might arise was capable of being addressed by directions. Appropriate directions were given. 69Early in the course of the summing up, the judge directed the jury that they must consider each of the counts against the appellant separately. The judge went on to say that :- the accused is entitled, as is the Crown, to separate consideration of each of the counts. It would be quite wrong to say simply because you find the accused guilty or not guilty on one count that the accused must be guilty of the other. Each count must be considered separately, in the light of the evidence that applies to it, by asking as to each count separately, am I satisfied beyond reasonable doubt by the evidence that the accused is guilty or not guilty of that count. What you must not do is arrive at a decision about one count and then apply that decision to the other count. The decision to convict the accused on one count should be put out of your mind when proceeding to consider the other counts. The trials of each count are heard together as a matter of convenience and because there is a body of evidence that is common to the counts. So in summary, you must consider each count separately and decide in relation to each count whether the Crown has proved that count beyond reasonable doubt. 70Later in the summing up, when the judge was dealing with the evidence relied upon by the Crown as supportive or confirmatory of Dow, his Honour said of the finding of the methylamphetamine in the drawer :- The Crown relies upon this finding to provide support or confirmation of the evidence of Mr Dow as I have indicated. The evidence can only be used in the way the Crown asks you to if you are, firstly, satisfied beyond reasonable doubt that the accused had possession of the methylamphetamine in the drawer. And I remind you of the written directions relating to proof of possession. You may only consider this evidence for the limited purpose of providing support or confirmation of the evidence of Mr Dow. So if you are satisfied that the accused did in fact have possession of the methylamphetamine then you may use that fact as providing support for or confirmation of the evidence of Mr Dow. The evidence, ladies and gentlemen, must not be used in any other way. It would be completely wrong to reason that because the accused has possession of the methylamphetamine in the drawer that he is therefore generally a person who has possession of methylamphetamine, and for that reason must have committed the offences in count one and count three in the indictment. Ladies and gentlemen, there is a danger about which I must warn you, and that is, the danger that such evidence will set off in your minds that prohibited line of reasoning. The jury is never permitted to use such evidence for the purpose of concluding that the accused person is guilty of the crime with which he or she is charged simply because he or she is the sort of person who would be likely to commit that crime. As I say, ladies and gentlemen, that is a prohibited line of reasoning and my firm direction to you is that you must not allow that reasoning to enter into your deliberations. 71Against this background, I turn to the appellant's particular complaints. 72As to (a), it is clear that the judge gave appropriate consideration to the issue of packaging and quantity. The "similar characteristics" borne by the drug the subject of count 2 and the drug alleged to have been supplied by the appellant to Dow over a period of 22 months, that is, that it was a powdery or crystalline form of methylamphetamine, was correctly taken into account as a factor in the application. 73As to (b), at no stage did the Crown purport to rely upon the finding of the methylamphetamine in the appellant's premises as tendency evidence. Nor was there any application on the part of the appellant's legal representative to exclude it on that basis. In any event, the directions to the jury set out at [70] above were sufficient to guard against the employment of any tendency reasoning by the jury. 74As to (c), and (d), the complaints appear to be based upon the judge's adoption of Flannery SC DCJ's reasons of 7 November 2008. The appellant overlooks the effect of s 130A(1) of the Criminal Procedure Act 1986, which provides that a pre-trial order made by a judge in proceedings on indictment is binding on the trial judge in those proceedings unless, in the opinion of the trial judge, it would not be in the interests of justice for the order to be binding. Although the ruling of Flannery SC DCJ of 7 November 2008 was not strictly a pre-trial ruling, it was nonetheless a ruling which ought to have been followed in the interests of comity, unless the trial judge considered that it was plainly wrong. 75In any event, the trial judge did turn his own mind to the basis of the appellant's application, as demonstrated by the reasons set out at [62]. As I have endeavoured to explain above, there was no relevant unfair prejudice to the appellant that could not be cured by directions. 76As to (e), this complaint appears to be a variant of (c) and (d). Ultimately, his Honour did turn his attention to the confined way in which the jury could use the evidence of the finding of the methylamphetamine and directed the jury accordingly. 77The appellant has failed to establish any error in the judge's approach on this ground. Error in Refusing to Direct a Verdict on Count 2. 78At the close of the Crown case, the appellant's legal representative made an application for a directed verdict on count 2. Essentially, his argument was that the Crown could not exclude possession of the drug in another, including the appellant's partner who lived in the premises and any number of persons who had attended a New Year's Eve party in December 2005. 79After reviewing the recording of the search during which the drugs were found, his Honour declined the application on the basis that all of the physical circumstances relating to the particular drawer where the drugs were found constituted sufficient evidence to go to the jury on the issue of possession. Those physical circumstances are referred to at [41] above. 80The test for determining whether there is a case to answer is uncontroversial. In R v Serratore [1999] NSWCCA 377, Dunford J (James J and Smart AJ agreeing) said at [127] :- the question to be decided is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted: May v O'Sullivan (1955) 92 CLR 654 at 658. In considering such an application, the judge does not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case: R v Towers (1984) 14 A Crim R 12 at 14, Doney v The Queen (1990) 171 CLR 207 at 214-5, R v R (1989) 18 NSWLR 74; 81In Doney v The Queen, the High Court stated that :- if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. 82The evidence pertaining to the drawer within which the drugs were found, and to the cupboard within which the drawer was located, was, taken at its highest, capable of supporting a finding of fact by the jury that the appellant knowingly possessed the two resealable bags of methylamphetamine to the exclusion of others. The physical circumstances were entirely consistent with the sole use of, and access to, the cupboard by the only male occupant of the premises, namely the appellant. 83It is of some relevance to this ground that there is no appeal against the verdict on count 3. Acceptance by the jury of the Crown case that the money was the proceeds of the appellant's supply of methylamphetamine, and the fact that the money was found within the cupboard, strengthens the Crown case on the deemed supply charge. 84There is no substance to this ground. Error in Directions to the Jury Relating to Count 2. 85This ground complains of the directions given by the trial judge in respect of the finding of the methylamphetamine at the appellant's premises as supportive or confirmatory of Dow. To the extent that the appellant now maintains that the evidence of the finding of the methylamphetamine was not supportive or confirmatory of Dow, I would reject that submission for the reasons set out at [66] to [68] above. 86The appellant submits that the trial judge's reference to R v Hamzy (1994) 74 A Crim R 341 reveals error in his approach. In the course of a discussion with the appellant's legal representative, the judge expressed the view that because the Crown was relying upon a course of conduct over a 22 month period towards proof of count 1, the evidence of the methylamphetamine in the appellant's premises tended to support the evidence of Dow that he was given a white crystalline substance over that period of time by the appellant. 87In Hamzy, Hunt CJ at CL observed (Abadee and Simpson JJ agreeing) :- Where the Crown seeks to establish a particular activity or enterprise, it relies upon every act which it intends to prove (although, obviously enough, it does not have to establish every such act in order to succeed). .......................................... Next, it is said that proof of an activity or enterprise in accordance with this principle permits the Crown to call what is in effect propensity evidence without the protection of proper directions as to the use which may legitimately be made of that evidence. But the evidence is not of mere propensity to commit this particular crime. Each individual act of supply is directly relevant to the issue which the Crown seeks to prove - namely, in the present case, that the appellant was engaged in the criminal enterprise of dealing in heroin. There is nothing said in either Hoch v The Queen (1988) 165 CLR 292 or Harriman v The Queen (1989) 167 CLR 590 which would prevent such a course being followed. If it is thought that a direction is needed in the particular case in order to avoid any misuse by the jury of such evidence, such a direction should be given: cf The King v Marley (1932) 47 CLR 618 at 621; Harriman v The Queen (at 609); Regina v Martin (1990) 48 A Crim R 208 at 212. (Italics not in original) 88This passage from Hamzy supports the approach taken by the trial judge. It was the Crown case that the appellant was engaged in the criminal enterprise of supplying methylamphetamine. It did not matter that the Crown did not seek to accumulate the methylamphetamine the subject of count 2 with the other amounts said to be supplied for the purposes of count 1. Once the jury were, in accordance with the trial judge's directions, satisfied beyond reasonable doubt that the appellant was in possession for supply of the methylamphetamine found in his premises, that fact tended to support the evidence of Dow. 89To the extent that the appellant also complains of the impermissible use of the evidence relating to count 2 as tendency evidence, I have already dealt with the adequacy of the trial judge's directions in that respect. 90This ground has not been made out. Unreasonable Verdicts 91The principles to be applied in a consideration of this ground are well settled : M v R [1994] HCA 63; (1994) 181 CLR 487, MFA v R [2002] HCA 53; (2002) 213 CLR 606; SKA v R [2011] HCA 13; (2011) 243 CLR 400, and R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8. 92In M v R, at 493, and 494 - 495, the High Court stated :- Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt... 93It is not sufficient in order to discharge this function to determine whether there is evidence upon which a jury could have convicted, but whether the jury ought to have experienced a reasonable doubt. 94The appellant's principal submission on this ground is that the Court should find Anthony Dow unworthy of belief and that he could not be accepted by any reasonable jury as a witness of honesty and reliability. The bases for this submission are :- (i)The fact that Dow pleaded guilty and gave evidence pursuant to an undertaking, resulting in a substantial discount on the sentence he received. This factor predisposed Dow to maintain a false version of events lest he receive a larger gaol sentence. (ii)The fact that Dow was an admitted liar in that he had lied to the arresting police, to the Australian Crime Commission, in the course of the committal proceedings, in the course of the aborted trial and, it was submitted, in the course of the trial resulting in the appellant's conviction. (iii)The fact that Dow's credibility was not amenable to assessment by a jury, because of his training and employment history as an actor, his capacity to learn to play a role and engage an audience and his capacity to memorise the transcripts of his records of interview and court proceedings, in order to deal with the inconsistencies contained therein. 95The appellant relied upon a number of inconsistencies in Dow's evidence. (1)The date upon which he received the drugs from the appellant. Having told the arresting police that he received the drug the night before (10 April), his account before the jury established that he had received the drugs from the appellant on 7 April. (2)The provision by the appellant of the address in Perth for delivery of the drugs. Dow told the arresting police that he had written the address on the card "last week". He acknowledged before the jury that that was a lie. Dow claimed to have written the street name on the card and then altered it, following correction by the appellant. The exhibit produced at trial contained no corrections. The cross examination at trial went some way towards demonstrating that Dow only had access to his wallet, from which the card was obtained, after the appellant left the premises. (3)The variation in the number of trips from Sydney to Perth and/or from Perth to Sydney, relating to the supply of drugs and the transportation of money. Dow's accounts of drug deliveries given to police, to the Crime Commission, to the committal proceedings and at trial varied from once, through to three or four times, six or seven times, "maybe even seven or eight". His account of the transportation of money to the Crime Commission amounted to five times from Sydney to Perth and once from Perth to Sydney. At trial, his evidence was four or five times from Perth to Sydney and once or twice from Sydney to Perth. (4)The variation in the sums of money obtained by Dow as reward. Dow told police the sum was $60000-$70000 in total, and he told the jury at the aborted trial that he had been paid $80,000 to $120,000. (5)Dow's observation of the contents of the blue bag. Dow's evidence was that he was shown the vacuum sealed package containing a white substance and bundles of money inside the blue bag. Dow was unable to account for a red plastic bag within which the drugs were found by police in the garage of the townhouse. (6)The lack of any explanation for the removal of a large quantity of money from the blue bag, after the appellant is said to have left it in a bedroom cupboard on 7 April and the inherent unlikelihood that the appellant would leave a bag containing a large quantity of methylamphetamine in a cupboard to which Dow's wife and stepdaughter had access. (7)Dow's evidence before the jury that the appellant told him to book on the same flight to Perth on 11 April was inconsistent with his statement to the arresting police that he had chosen the flight himself. (8)Dow"s evidence that it was his idea to tape the packet of drugs to his body was inconsistent with his statement to arresting police that he had been instructed to do so. (9)Dow's evidence that Pereira had given him a vacuum sealed packet of money on 16 March 2006 is inconsistent with his statement to the Crime Commission that Pereira had never given him money. 96The appellant also enumerated the many lies that Dow told to police immediately after his arrest, to the Crime Commission on 22 and 23 August 2006, and to the jury. Principal among the lies told in the course of his evidence, the appellant relies upon the fact that Dow falsely complained of unlawful conduct by interviewing police at the Crime Commission, namely that he had been denied medication, told what to say in the interview, threatened by interviewing police and denied the services of a lawyer. The appellant further pointed to aspects of Dow's evidence which he claimed were inherently suspect. 97The combination of these matters requires any tribunal of fact to approach an assessment of the credibility of Dow with the utmost caution. That requirement was recognized by the trial judge who gave a full and forceful direction to the jury (about which no complaint is presently made) pursuant to the terms of s 165 of the Evidence Act. 98The judge's warning referred to the fact that Dow was criminally concerned in the supply of a large commercial quantity of methylamphetamine and to the fact that Dow had admitted giving false evidence on oath. The potential unreliability of Dow as a witness was brought to the jury's attention. They were instructed that Dow fell into that category of witness who may wish to falsely accuse others of conduct for which the witness was solely responsible or out of motives of revenge or feelings of dislike or hostility. They were also instructed that Dow may have been strongly motivated to give false evidence in order to preserve the discount on the sentence he had received for his part in the offence. The details of that discount were conveyed to the jury. The jury was instructed that the fact that Dow's conduct and conviction qualified him as a witness of bad character affected his reliability and honesty as a witness. The jury were also warned that Dow may have had motives to lie, of which the appellant was unaware, and which may not be able to be explored in cross-examination. 99Immediately after the direction outlined above, the jury were warned of the consequences of the reliance by the Crown on the evidence of Dow towards proof of count 1. The jury were directed that :- unless you are satisfied beyond reasonable doubt that Mr Dow is both an honest and accurate witness when he tells you that it was the accused who supplied him with the methylamphetamine for delivery to Western Australia, you cannot find the accused guilty. And before you can convict the accused you should examine the evidence of Mr Dow very carefully in order to satisfy yourself that you can safely act upon the evidence. ..... and I warn you, ladies and gentlemen, that it would be dangerous for you to be satisfied beyond reasonable doubt of the guilt of the accused on the evidence of Mr Dow unless you are satisfied that his evidence is supported or confirmed by other evidence which indicates that such evidence is true. In this respect what you must look for is evidence from an independent source which tends to show not only that the crime charged was committed, but the accused was implicated in it in the way alleged by the Crown. 100These directions constitute an entirely orthodox and sound approach by the trial judge to the critical issue in the trial, namely the honesty and reliability of Dow. It is appropriate therefore to turn to the evidence which was said to provide support for the conclusion that Dow was a truthful and reliable witness. 101There was independent evidence concerning the appellant's delivery of the methylamphetamine in the small blue bag on 7 April 2006. Dow had only recently moved to the Francis Street address. Telephone intercepts recorded the appellant contacting Dow's wife in order to obtain the street number of the residence, and confirming that number with Dow from a public phone booth in the same street. Police surveillance of the appellant and Pereira established that both men entered the residence and the appellant twice returned to his car, carrying a "long, white, round object" (consistent with a package of methylamphetamine) and secondly, a small blue sports bag. 102There was independent evidence of the events of 10 April 2006. A telephone intercept on that day recorded Dow's enquiries in relation to a Qantas flight from Sydney to Perth. Police surveillance established that the appellant and Pereira returned to the Dow residence at about 8:38 pm that evening. A further telephone intercept after the appellant and Pereira left the Dow residence confirmed Dow's further efforts to make a booking for a Qantas flight from Sydney to Perth. 103There was independent evidence of the events of 11 April 2006. The appellant and Dow were seen at Sydney domestic terminal and they were seen in conversation in the Qantas departure lounge. Telephone intercept material established a call from Dow to his wife after his arrival in Perth while in a taxi cab. The appellant also placed a call to his fiancee after arriving in Perth. The evidence of the taxi driver confirmed that Dow went to an address in Roscorla Avenue, Yokine where he took a small bag to the middle townhouse, returned to the taxi without it, and then requested to be driven back to the airport. A police search of the garage of that town house located the blue sports bag containing a long, white, round plastic bag containing methylamphetamine. 104Police surveillance of Pham in the driveway of the Roscorla Avenue townhouse was relevant to the appellant's connection with the supply of the methylamphetamine, given the appellant's association with Pham in Perth in March 2005. 105There was independent evidence of the use by the appellant of two mobile phones falsely subscribed to Sam Li in the course of the appellant's journey around Perth in the afternoon of 11 April 2006. There were repeated attempts on the part of the appellant to contact Dow, using these mobile phones, on a third falsely subscribed mobile phone which was in Dow's possession on his arrest. The appellant's efforts to contact Dow were confirmed by the appellant's call to Dow's wife that evening. One of the falsely subscribed mobiles (the number ending in 434) was in the appellant's possession on his arrest at Sydney domestic airport on 12 April. 106There was independent evidence of the appellant's connection with the supply of methylamphetamine and his relationship with Dow, that is, the contents of the cupboard in the spare room of the appellant's home on 12 April 2006. 107There was independent evidence in relation to the delivery of money by Dow to the appellant in Perth on 15 and 16 March 2006. Surveillance evidence established the presence of both Dow and the appellant at the Rydges Hotel. The appellant was seen carrying an object consistent with a large package of money. 108There was independent evidence in the form of a "Master Schedule of Travel Movements and Deposits Made by Dow" (part of Ex A) of the appellant's numerous trips (on 20 occasions) to Perth at about the same time as Dow between 6 March 2005 and 12 April 2006. The Schedule established that there were deposits of relatively large sums of money into Dow's bank accounts at times consistent with Dow's trips to Perth. 109Having reviewed the evidence at trial and having regard to the evidence outlined above that supported Dow's evidence in material respects, I do not entertain any doubt in relation to the appellant's conviction. In arriving at this conclusion, I do not disregard or discount any of the inconsistencies, lies and/or discrepancies in the evidence of Dow. However, many, if not most, of the lies can be, and were, explained by Dow's own admission that he was prepared to lie to police and to the Crime Commission to avoid the consequences of his conduct, until it became clear to him that he had been under surveillance for some time and that there was no utility in attempting to maintain his innocence. Furthermore, many, if not most, of the inconsistencies and discrepancies relied upon by the appellant related to matters of detail (for example, when Dow wrote the address on the card, the red plastic bag containing the drugs, the number of trips, and whether Dow was instructed to tape the drugs to his body) which ultimately fell away when considered against the considerable body of independent evidence implicating the appellant. 110The use of falsely subscribed mobile phones by the appellant and the presence of a large quantity of cash, along with two resealable bags of methylamphetamine in the appellant's premises are powerful indicia of supply. These features of the trial were in no way dependent on the evidence of Dow. The fact that the appellant may have been able to advance an entirely legitimate reason for his many trips to Perth, for his activities in Perth on 11 April 2006 and for his relationship with Dow, does not reduce the combined force of Dow's evidence and the independent evidence summarised above. 111These were all matters that were brought home to the jury by counsels' respective addresses and the directions in the summing up. Most importantly, given the appellant's criticisms of the practised nature of Dow's testimony, the jury enjoyed the advantage of hearing and seeing Dow. His admitted lies and the inconsistencies in his evidence were laid bare before the jury. The jury was clearly satisfied beyond reasonable doubt of his honesty and reliability on the critical issue in the trial, namely the appellant's involvement in the ongoing supply of methylamphetamine, notwithstanding the criticisms by the appellant's counsel and the warnings given by the trial judge. 112Any doubt that arose as a result of the attack on the credibility of Dow, which was justified and extensive, was plainly capable of being resolved by the objective evidence that confirmed the appellant's ongoing supply of methylamphetamine and, more importantly, by the opportunity afforded to the jury to consider the content and manner of Dow's responses to very lengthy and probing cross examination. 113I would dismiss this ground of the appeal. 114I propose the following order :- (1)Appeal against conviction dismissed. 115HARRISON J : I agree with Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2012