Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Azzi v R [2013] NSWCCA 249 Hearing dates: 5/06/2013 Decision date: 08 November 2013 Before: Beazley P at [1] Hidden J at [2] Fullerton J at [3] Decision: 1. Leave granted to appellant to file amended notice of appeal. 2. Appeal against conviction dismissed. Catchwords: CRIMINAL LAW - conviction appeal - supply of prohibited drug - credibility evidence - coincidence evidence Legislation Cited: Criminal Appeal Rules Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Cases Cited: Peacock v R [2008] NSWCCA 264; 190 A Crim R 454 R v Chen [2002] NSWCCA 174; 130 A Crim R 300 R v Rymer [2005] NSWCCA 310; 156 A Crim R 84 R v Soma [2003] HCA 13; 212 CLR 299; 140 A Crim R 152 Category: Principal judgment Parties: John Azzi (Appellant) The Crown (Respondent) Representation: Counsel: P Lange (Appellant) S Dowling (Crown) Solicitors: Hanna Legal (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/268976 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-03-12 00:00:00 Before: King DCJ File Number(s): 2010/268976 Judgment 1BEAZLEY P: I agree with Fullerton J. 2HIDDEN J: I agree with Fullerton J. 3FULLERTON J: John Azzi appeals his conviction for supply of a prohibited drug, namely 16.4 grams of heroin, following a jury trial in the District Court. The Crown relied upon the deeming provisions in s 29 of the Drug Misuse and Trafficking Act 1985 to make out the supply charge laid contrary to s 25(1) of the Act. 4The appellant was sentenced to a term of imprisonment of 4 years and 6 months to commence on 18 February 2012 with a non-parole period of 3 years. There is no appeal against sentence. 5The appellant relies upon two grounds of appeal, each of which concerns a conversation he had with police during the execution of a search warrant at his home in the course of which the heroin was located in a wardrobe in his bedroom. The conversation under challenge related to 0.38 grams of methylamphetamine which was also found by police in the wardrobe. As to that drug, the appellant did not deny knowing the powder was where the police found it, but said that he did not know what it was and that he thought it was "sugar or probably sugar". The appellant later pleaded guilty in the Local Court to being in possession of the methylamphetamine. The earlier claim that he believed the powder was sugar or probably sugar was referred to on the appeal as "the sugar lie". 6The first ground of appeal (the only ground the subject of the filed notice of appeal) alleges error in the trial judge permitting the jury to use "the sugar lie" as credibility evidence contrary to s 108 of the Evidence Act 1995. In written submissions the Crown emphasised that credibility evidence is defined in s 101A of the Evidence Act as evidence relevant to the credibility of a witness or other person only because it affects the assessment of that person's credibility. In the Crown's submission, because the sugar lie was admitted in the trial as coincidence evidence under s 98 of the Evidence Act it was not admitted only as credibility evidence and, for that reason, the appellant's reliance on the operation of s 108A and s 108B in support of the error contended for in the first ground of appeal had no application. The Crown also submitted that the prosecutor's duty of fairness required the sugar lie to be led and this also displaced the operation of s 108A and s 108B of the Evidence Act. 7Following receipt of the Crown submissions, the appellant filed an amended notice of appeal alleging error in the admission of the sugar lie as coincidence evidence. Counsel for the appellant acknowledged that the second ground of appeal was drawn to meet the Crown's filed submissions addressing the first and (at that time) only ground of appeal. The appellant also conceded that Rule 4 of the Criminal Appeal Rules applied to the proposed second ground of appeal. 8The Court heard argument directed to the second ground of appeal reserving the question whether to grant leave to file the additional ground of appeal until determination of the appeal. For the reasons that follow, I propose that leave be granted to allow consideration of the second ground of appeal. The Crown case at trial 9On 12 August 2010 police executed a search warrant at the appellant's family home where he resided with his parents and two younger brothers. 10In the wardrobe in the appellant's bedroom police located 16.4 grams of heroin within a knotted freezer bag on a narrow shelf above the sliding door track to the wardrobe. A mixed DNA profile was identified on the freezer bag, the major component of which was a match with the DNA profile of the appellant which was expected to occur in approximately one in six million in the general population. 11Police also located in the wardrobe five blue heart-shaped tablets inside a sunglasses case which was later analysed to contain 10mg of the steroid methandienone; three white tablets of the prescription drug Xanax which contained 2mg of alprazolam under some clothing; a glass vial of testosterone amongst some paperwork; and a white crystalline substance, later analysed to contain 0.38 grams of methylamphetamine, in a plastic bag inside a locked safe on a shelf in the wardrobe. The safe was opened with a key in the appellant's possession. Police also located a set of digital scales capable of weighing a maximum of 50 grams in a drawer in the wardrobe; a roll of aluminium foil; and $1,030 in cash inside a jacket hanging in the wardrobe. A certificate was tendered at trial (without objection) which identified heroin and cocaine on a swab that was applied to the scales. 12In the course of a conversation recorded by police during the search the appellant said the white tablets (the Xanax tablets) were sleeping tablets he had been given by a friend and the five heart-shaped tablets were steroids he had also received from a friend. He said he believed the glass vial of clear liquid to be steroids, but could not say whether it was in fact a steroid. He said he needed the scales because he had used drugs and he wanted to be sure that "nobody ripped him off". He said that the money was his savings earned while working. He denied any knowledge of the heroin. 13When asked about the white crystal substance (the methylamphetamine) the appellant said: Q. And also we found inside your safe, we opened it with your keys, we found this resealable plastic bag with white powder in it, what can you tell us about that? A. I don't know, probably sugar. Q. Sugar? A. Probably yeah. Q. Do you know where it was? A. No, I wouldn't have a clue. Q. So who would have put it in there if it wasn't you? A. I didn't say I didn't put it in there. I said I don't know what it is. 14On 5 December 2011 the appellant pleaded guilty in the Local Court to possessing the methylamphetamine and the other restricted substances. Fines were imposed. 15In advance of trial the Crown served a notice under s 98 of the Evidence Act of its intention to adduce coincidence evidence. 16The notice served by the Crown specified the appellant's possession of the methylamphetamine, the other restricted substances and the scales that contained traces of heroin and cocaine as the events relied upon by the Crown to prove the improbability that the appellant was not also in possession of the heroin. The notice did not specify that the Crown also relied upon what the appellant said to police in the course of the search as part of the events or occurrences relied upon as coincidence evidence. The material identified in the notice as the source of the coincidence evidence did however nominate a paragraph of the statement of a police officer where the sugar lie was set out, together with the appellant's admission that he was in possession of the other items. The notice also identified the video recording of the search when those conversations were recorded. The statements and a transcript of the conversations recorded on the video were tendered in support of the Crown's application for the admission of the coincidence evidence. 17Section 98 provides as follows: (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, 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. (2) ... 18Defence counsel objected to the admission of the coincidence evidence because it failed to meet the test for admissibility in s 98(1)(b) and s 101 of the Evidence Act. No separate objection was taken to the sugar lie being admitted as coincidence evidence. In particular, no submission was advanced that the sugar lie was not an "event" or "occurrence" capable of meeting the test for admission as coincidence evidence in the circumstances of the trial. This was the submission advanced by counsel under the proposed second ground of appeal. Although this evidence was objected to, no submission was directed to whether the admission of the sugar lie would be in breach of s 108 of the Evidence Act, the error contended for in the first ground of appeal. 19The Crown submitted that the appellant should be refused leave under Rule 4 to argue the proposed second ground of appeal in circumstances where defence counsel could have been under no misapprehension that the coincidence evidence, the subject of the notice, was not limited to the bare fact that other prohibited items were found in the accused's wardrobe, but that it also included the accused's admissions that he was in possession of some of those items and his effective denial that he was in possession of the methylamphetamine. 20The trial judge did not refer to the conversations the accused had with police at the time the scales and the other restricted substances were found in his reasons for admitting the coincidence evidence, as to which his Honour said: In respect of the methamphetamine and the restricted substances the accused has already entered pleas of guilty and been sentenced in the local court, hence acknowledging his possession, without authority, of those items. 21In his reasons for admitting the evidence, his Honour said: The question for the Court is whether the Court thinks the evidence intended to be adduced by the Crown as to the substances other than the heroin, will either by itself or having regard to other evidence adduced or to be adduced by the Crown, have significant probative value. Considering the location of all the items, to a greater or lesser degree secreted within the wardrobe, it is the view of the Court that there is indeed significant probative value justifying the admission of the evidence as being relevant to the question or fact in issue, that is did Mr Azzi also possess the 16.4 grams of heroin. Indeed, in the Court's view the evidence has not merely significant probative value but is highly probative of the fact in issue, although that is a matter for the ultimate determination of a jury. The connection between the scales, acknowledged at the time of their location as being the accused's scales, having on them heroin traces, provides an inferential link to the 16.4 grams of heroin located also in the wardrobe, that is, in close proximity. Section 101(2) of the Evidence Act 1995 provides coincidence evidence about an accused that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In the Court's view the probative value of the evidence is very high and does substantially outweigh any possible prejudicial effect that it may have on the accused. It is particularly relevant in the circumstances where the defence is an assertion that the accused was not in possession of the 16.4 grams of heroin. The revelation to the jury that the accused also possessed small quantities of methylamphetamine, Danabol, Xanax and Testosterone is certainly capable of having some prejudicial effect in the sense that it discloses him to be a person possessed of one other prohibited drug and a number of restricted drugs that he was not authorised to possess. However, in the Court's view it is not unfair to the accused to admit the evidence. To the extent that a jury might inappropriately reason from his possession of those items the Court is confident that appropriate directions as to the use to be made of the evidence will protect the accused's interest. 22Immediately following the ruling on the admission of the coincidence evidence, the Crown opened to the jury on the basis that he did not expect there would be any dispute that the methylamphetamine and other restricted substances were found by police at the time the heroin was found, or that these items were in the accused's possession. The Crown also alerted the jury to the fact that the accused was asked questions by police about the things that were found in his wardrobe at the time of the search and that a video recording of the search would be tendered in evidence. 23When defence counsel opened the accused's case he confirmed that the accused's possession of the methylamphetamine and the restricted substances would not be in issue. He submitted that this was in contrast to his client's repeated and sustained denials in respect of the heroin. 24The Crown called Senior Constable Sarosi as the first witness. The video recording of the search was tendered through him without objection, including, so far as is relevant to the appeal, the sugar lie set out in [13] above. Cross-examination of the officer commenced but did not conclude that day. 25In the absence of the jury, on the next hearing day, there was discussion as to how the jury were to be informed that the accused had pleaded guilty in the Local Court to possession of the methylamphetamine and the other restricted substances. The Crown informed his Honour that he was content to rely upon the accused's admissions to police during the search that he was in possession of the restricted substances already in evidence but there was an issue as to what the Crown would be permitted to lead to prove his possession of the methylamphetamine. 26Defence counsel accepted that the plea of guilty constituted an admission that the drug was knowingly in the accused's custody and control at the time of the search (being the essential elements of a charge of possession) and that it was admissible on that basis, but objected to the Crown's reliance on the sugar lie to attack the accused's credit because it lacked sufficient probative value to justify its admission. Neither counsel referred his Honour to Part 3.7 of the Evidence Act or to the operation of ss 101A or 108A or 108B. 27In the course of ruling that the Crown could use the sugar lie for credit purposes, his Honour also expressly extended his ruling on the coincidence evidence the previous day to include both the sugar lie and the accused's plea of guilty as an admission that he knew the powder was methylamphetamine and not sugar when he spoke to police. His Honour did so, however, without addressing the question whether the sugar lie and the plea of guilty were "events" or "circumstances" of a kind with which s 98 of the Evidence Act is concerned. There were no submissions directed to that question by either trial counsel. His Honour ruled as follows: The purpose of the coincidence evidence was not simply to show the context within which the heroin was found, ie a wardrobe in which other restricted or prohibited substances were found, but that the accused was in fact aware of the identity of the restricted substances and particularly, the methylamphetamine. The pleas of guilty to the two charges in the Local Court constitute admissions as to the elements of those two offences, in particular, as to him being not only in possession of them, but knowing their identity. The Crown seeks to draw, as coincidence evidence, on the fact that the accused has pleaded guilty to knowing the identity of the prohibited substance methylamphetamine and the restricted substances for the purpose of arguing that there is an improbability of coincidence that he was not also the person who had secreted the heroin in his wardrobe, and that he, in the circumstances, must have been aware of its nature. Evidence of the accused's possession and knowledge of those substances may well have been capable of being dealt with by appropriate admissions. As it stands at the moment, the other substances to some extent being covered by admissions in the course of the conversation with police officers, with respect to the methylamphetamine, the position is that the conversation indicates that although the accused admitted to putting the bag of white crystalline substance in his safe, that he thought that it might be sugar. I should say, his actual words were, "I don't know, probably sugar". That conversation is now before the jury without objection. The Crown is entitled to lead evidence of the plea of guilty, particularly in respect of the methylamphetamine, on the basis that [it] is an admission that at the time of the location of the substances, the accused not only knew he possessed it, but that he also knew that it was methylamphetamine. Relevant to that is, of course, the conversation in which he said it was probably sugar. The Crown seeks to use, in the absence of any admission otherwise, the plea as demonstrating that the answer "probably sugar" was for the purpose of allowing the jury to assess his credibility in relation to the answers that he gave during the course of the conversation already before the jury. 28In his closing address the Crown invited the jury to use the sugar lie to assess the truthfulness of the accused's claim that he did not know the heroin was hidden in his wardrobe. He said: ... You've heard, members of the jury, that [the appellant] has pleaded guilty to the fact that on that day he was in possession of a drug. His Honour I expect will explain to you the legal definition of possession, but he must have known at that time as he said from his mouth, "I don't know what it is," that it was a drug. So he told the police, "Don't know what it is"; he later stands up and pleads guilty, accepting he knew it was a drug. Members of the jury, he lied to the police about that, and I submit to you that you can and you should consider that carefully when you consider whether you should believe him when he said to the police that he knew nothing about the heroin. 29In his summing up the trial judge said: The Crown suggested to you in the course of the submissions that Mr. Azzi, when he said that he did not know what it was, that is, the white substance in the bag in the safe in the Tag Heuer instruction booklet, that it was a lie that the Crown asked you to use as a matter of credibility in assessing what he said in relation to the heroin when he denied knowing anything about it. 30He then continued: On the basis of that, you know that he entered a plea of guilty to the possession of methylamphetamine charge in the Local Court. That plea in itself was an acknowledgement as to knowing or to actually knowing or believing that what he had custody or control of was a prohibited drug, or being aware that there was a significant or real chance that it was. That is, that he was being less than frank when he suggested that it was probably or possibly sugar, because he in fact knew that it was either methylamphetamine or at least there was a significant or real chance that it was in fact a prohibited drug. 31His Honour had earlier given the jury directions about the co-incidence evidence, during which he did not refer to the sugar lie. Was the sugar lie credibility evidence as defined in s 101A of the Evidence Act? 32In order to consider the challenge to the use of the sugar lie as credibility evidence under the first ground of appeal, it is necessary to consider Part 3.7 of the Evidence Act which operates to limit the manner in which evidence relevant to the credibility of a witness or person may be admitted. 33Section 101A (within Division 1 of Part 3.7) defines credibility evidence as follows: Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person, or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person, and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6. 34It was the Crown's primary submission that because the sugar lie was properly admitted as part of the coincidence evidence, it was not credibility evidence as defined in s 101A, and the limits on the admissibility of such evidence in s 108A and s 108B in Division 3 of Part 3.7 had no application. 35Before considering that submission, it is necessary to address what the Crown relied upon as an additional basis for eschewing the operation of s 108A and s 108B in this case, namely that the Crown was obliged to lead evidence of all that the accused said to police during the search in discharge of its duty of fairness, and that leading evidence of the sugar lie was justified for that reason. 36Reliance was placed upon R v Soma [2003] HCA 13; 212 CLR 299; 140 A Crim R 152 where the majority (Gleeson CJ, Gummow, Kirby and Hayne JJ) noted at [31] that to put the prosecution case fully and fairly, the Crown must adduce any admissible evidence of what an accused person tells police when interviewed, requiring the Crown to take "the good with the bad and put it all before the jury". The question that survives that unassailable statement of principle is whether, on the appeal, it is open to the Crown to invoke the principle to avoid the limitations on admissibility that would otherwise apply on the admission of credibility evidence, assuming that s 108A and s 108B are called into operation, when the purpose in leading that evidence at trial, and its ultimate use in submissions to the jury, was to attack the appellant's credit. For my part, I do not see that the obligation on the Crown to present its case fully and fairly extends that distance. Indeed, on one view, it is in conflict with it. 37Reliance was also placed upon the judgment of this court in R v Chen [2002] NSWCCA 174; 130 A Crim R 300 at [28] (and its citation with approval by Simpson J in Peacock v R [2008] NSWCCA 264; 190 A Crim R 454 at [43]) and R v Rymer [2005] NSWCCA 310; 156 A Crim R 84 as authority for the same proposition. (I note that although the current formulation of credibility evidence in s 101A was inserted by an amending Act that was operational as at 1 January 2009, it is analogous to s 102, the section with which the Court in Chen was concerned, despite the fact that s 102 was confined to the evidence concerning the credibility of a witness whereas s 101A was extended to include the credibility of a person not called as a witness.) 38The consideration given to the operation of s 102 of the Evidence Act in Chen arose in circumstances where it was argued that in leading evidence that the principal Crown witness (a conspirator in a commercial drug importation) had provided a written undertaking to cooperate with law enforcement authorities, and that an undertaking to that effect was tendered, s 102 of the Evidence Act was breached because that evidence could only have been relevant to bolster the witness' credit. The Court rejected that submission. The Crown in the present appeal relies upon the following passage as obliging the Crown at trial to have led evidence of the sugar lie: [28] Section 102 of the Evidence Act provides simply that "[e]vidence that is relevant only to a witness's credibility is not admissible". The first question now to be decided is, therefore, whether the evidence led by the Crown of the witness Chan's having undertaken in writing to cooperate with law enforcement authorities breached the rule established by section 102. In that connection we observe: [1] The appellant's present contention that there was such breach, seems to us to be weakened by the concession, which we understand to be carried by the written submissions previously quoted, that it did not breach the section 102 rule to lead in chief from Chan the fact that he was himself complicit in the relevant importation; and that he had pleaded guilty to the offence constituted by his complicity, receiving in that behalf a sentence discounted in consideration of his agreeing to give evidence at the trial of, relevantly, the present appellant and his co-appellants. If it does not breach the section 102 rule to disclose at least so much of the true status of such a witness as Chan, then we do not see the logic in holding that the frank and truthful disclosure of the additional circumstance that he, Chan, was prepared to protect his own interests as he saw them by giving a written undertaking, should constitute such a breach of section 102. [2] There is authority of long standing in this Court for the proposition that the true status of such a witness as the witness Chan in the present case is relevant in a sense that extends beyond credibility alone: Reg v Booth (1982) 8 A Crim R 81; followed in Reg v Gonzalez-Betes [2001] NSWCCA 226. [3] In Booth each member of the Court, (Street CJ, O'Brien CJ of Cr D and Lee J) gave concurring but separate judgments. It will suffice for present purposes to quote the following passages from the judgment of Lee J: "The direction which practice requires a judge to give when an accomplice gives evidence for the Crown is intended to achieve a particular purpose: namely to bring to the attention of the jury that the evidence of such a witness may be in a different position from the point of view of reliability from that of other witnesses. The trial judge is expected to bring home to the jury that it is dangerous to convict on the uncorroborated evidence of such a witness; and this direction has the consequence that the witness is, in a real sense, held up as a witness whose testimony is suspect. It is left to the jury to appraise the evidence of the witness in the light of the warning given. In my opinion the requirement that the judge give the direction and that the jury then assesses the witness' evidence in the light of that warning provides the justification for the admissibility into evidence of evidence showing the position of the accomplice vis-à-vis the Crown which is the party calling him. In order for the jury to assess the degree of danger involved in evaluating his uncorroborated testimony, it is necessary for the Crown to disclose whether the witness has for instance been offered or granted a pardon, or whether it is not intended to proceed against him, or whether in fact he has been charged with an offence arising out of or related to the matter with which the accused is charged. Such evidence, in my opinion, goes to the witness' status as an accomplice, and that is a relevant matter for the jury to consider. It is particularly relevant in regard to the extent to which the evidence of that accomplice can be called upon to found a conviction of the accused." [8 A Crim R, 86,87] [4] We agree, with respect, with that analysis of Lee J. We are not persuaded that those responsible for the drafting of section 102 of the Evidence Act intended simply to abrogate the principles thus explained. The evidence is not tendered as evidence relevant only to a witness's credibility because it is tendered pursuant to the Crown's duty of fairness to the accused to lay out before the jury the status of the witness without that status being dragged out in cross-examination in a manner which might not be favourable to the interests of the accused. Section 9(1) provides that the Act does not affect the operation of a principle or rule of common law in relation to evidence except in so far as the Act provides otherwise expressly or by necessary implication. Section 102 does not provide otherwise. There are other forms of evidence in chief which might, on one approach, be said to relate to credibility, while not being excluded by s 102. It is customary to obtain the address and occupation of witnesses at the start of the examination in chief. Strictly speaking the address and occupation of a particular witness at the time of the trial is irrelevant to any issue, though either an address or an occupation at the time of the events in issue can be. The evidence is received simply in order to locate the witness in society. Similarly, the qualifications of an expert do not go to an issue, and, if there is no objection to the witness's expertise, can only be relevant to the reliability of the opinions or other evidence to which the witness testifies. Yet s 102 cannot be construed to render that kind of evidence inadmissible when for centuries it has been admissible. We reject, therefore, the proposition basal to paragraph (a), as did this Court in R v Gonzales-Betes [2001] NSWCCA 226. ... 39I am not persuaded that the decision in Chen is authority for the approach to the construction of s 101A in the way contended for by the Crown on the appeal, or that the Crown was obliged to lead evidence of the sugar lie in discharge of any duty of fairness over the objection of defence counsel. Was the sugar lie properly admitted as part of the coincidence evidence led by the Crown? 40Counsel for the appellant conceded that there was no error in the admission of the appellant's possession of the various restricted substances, the methylamphetamine and the scales with traces of heroin and cocaine, as coincidence evidence. He accepted that those separate acts of possession were properly considered by the trial judge to be a series of related events under s 98(1) and that the tests for admissibility in s 98(1)(b) and s 101 were satisfied for the reasons set out in [21] above. He also conceded that there was no error in the appellant's plea of guilty in the Local Court being admitted to prove that he was in knowing possession of the methylamphetamine at that time, contrary to the appellant's assertion to police at the time of the search that he believed the powder was "probably sugar". Counsel's challenge in the proposed second ground of appeal was limited to the sugar lie being relied upon by the Crown on the appeal as part of the coincidence evidence admitted at trial in order to meet the error contended for in the first ground of appeal. 41I do not understand it to be submitted that a statement or verbal utterance cannot, in appropriate circumstances, be an "event" or "occurrence" for the purposes of the application of s 98 of the Evidence Act. Rather, it was submitted that the telling of the sugar lie in this case was not an event the occurrence of which was relevant to whether the appellant was in possession of the heroin (the purpose for which his possession of the other items was admitted as coincidence evidence) because, what he said about the methylamphetamine (that it was sugar or probably sugar) was not relevantly similar to what he said about the other items in his possession (in fact it was markedly dissimilar from those statements since they constituted admissions that he was in possession of those items) and, for that reason, the sugar lie could not bear upon the probability that he was in possession of the heroin and, for that reason, should not have been admitted as coincidence evidence under s 98. 42Even if that were not the precise analysis of the operation of s 98 contended for by the appellant's counsel as it applied to the sugar lie, in my view it is the correct analysis and in admitting the sugar lie as part of the coincidence evidence his Honour was in error. That being the case, the Crown submission that s 108A and s 108B have no operation because the sugar lie was part of the coincidence evidence and not relevant only to the appellant's credibility is rejected. That said, it appears from the Crown's closing submissions, and his Honour's summing up, that the evidence was treated as going only to the accused's credit in any event although, as I have noted, no consideration was given to s 101A of the Evidence Act in that connection. 43In the somewhat unusual circumstances of this case, I would grant leave to the appellant to file the additional ground of appeal. I would also grant leave under Rule 4. Although I am persuaded that the error contended for in the second ground of appeal is made out, for the reasons which follow, because the evidence was properly treated (or admitted) as credibility evidence, no miscarriage of justice has resulted and the appeal should be dismissed. Was the evidence properly admitted in compliance with s 108 of the Evidence Act? 44Division 2 of Part 3.7 concerns credibility evidence adduced in relation to witnesses in the proceedings. As the appellant did not give evidence, Division 2 has no application to the appeal. 45Division 3 of Part 3.7 concerns credibility evidence of persons who are not witnesses but who have made out of court representations that have been admitted into evidence. 46Section 108A provides that "credibility evidence" about such persons is not admissible unless the evidence could "substantially affect the assessment of the person's credibility". Section 108B imposes further restrictions where person who made the representation is the accused. 108A Admissibility of evidence of credibility of person who has made a previous representation (1) If: (a) evidence of a previous representation has been admitted in a proceeding, and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation. 108B Further protections: previous representations of an accused who is not a witness (1) This section applies only in a criminal proceeding and so applies in addition to section 108A. (2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave. (3) Despite subsection (2), leave is not required if the evidence is about whether the defendant: (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates, or (c) has made a prior inconsistent statement. (4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecution has a tendency to be untruthful, and (b) is relevant solely or mainly to the witness's credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted, or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave. 47The appellant's counsel analysed the operation of s 108A as it concerns the sugar lie in the following way. He submitted that the previous representation with which the operation of the section is concerned in this case, is the appellant's denial that he was in possession of the heroin, led through the police officer. Counsel submitted that credibility evidence about the appellant was not admissible unless it was capable of substantially effecting the jury's assessment of his credibility. Although not openly conceding that the sugar lie satisfied that test (but proceeding on the assumption that the Court would take the view that it was), counsel submitted that it did not satisfy the further exclusionary provision in s 108B and, for that reason, the Crown should not have been permitted to use the evidence to attack the accused's credit. For my part, I am satisfied the sugar lie was capable of substantially affecting the jury's assessment of the appellant's credibility generally and, in particular, the weight which might be given to his denial that he was in possession of the heroin. 48Counsel then submitted that none of the exceptions in s 108B(3) applied and, accordingly, it was necessary for the Crown to be granted leave to adduce the credibility evidence. He further submitted that since leave was not sought (and if sought would not have been granted under s 108B(4)) the evidence should not have been admitted. He submitted that the accused's lie about the methylamphetamine being sugar, or probably sugar, is not inconsistent with his denying any knowledge of the heroin and for that reason the exception in s 108B(3)(c) is not engaged. 49The Crown submitted that it was the sugar lie, proved to be such by the appellant's admission that he was in possession of the methylamphetamine implicit in his plea of guilty in the Local Court, that is the evidence about which the accused made a prior inconsistent statement as provided for in s 108(3)(c), and leave was not required for the admission of the sugar lie for that reason. 50In my view, the sugar lie is the evidence "about whether the accused made a prior inconsistent statement" (namely his denial that he was in possession of the heroin) as provided for in s 108B(3)(c) and for that reason leave was not required for the admission of the evidence. 51In the result, I am satisfied that the sugar lie was properly admitted as credibility evidence and available to be used by the jury to assess the credibility of the appellant's denials to police that he was in knowing possession of the heroin. I would reject the first ground of appeal. 52The orders I propose are as follow: 1. Leave be granted to permit the appellant to file an amended notice of appeal. 2. The appeal against conviction is dismissed. ********** 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: 08 November 2013