Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Davis v R [2017] NSWCCA 257 Hearing dates: 17 July 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Before: Hoeben CJ at CL at [1]; Price J at [2]; Schmidt J at [109] Decision: (1) Appeal upheld. (2) The applicant's conviction is quashed. Catchwords: CRIMINAL LAW – conviction appeal – whether trial counsel's decision to adduce evidence of the applicant's drug use and prior convictions for credit card fraud occasioned a miscarriage of justice – whether Crown's cross-examination of the applicant's dishonesty and convictions for other offences required leave under s 104(2) Evidence Act – whether evidence was inadmissible – whether the Proviso should be applied – whether tendency direction was required – whether "anti-tendency direction" given by the judge occasioned a miscarriage of justice – whether new trial should be ordered Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 6, 6(1) Criminal Appeal Rules (NSW), r 4 Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29 Evidence Act 1995 (NSW), ss 38, 97, 101A, 103(1), 104, 104(2) Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 John Wayne Tsiakas v R [2015] NSWCCA 187 Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1 Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Younan v R [2016] NSWCCA 248 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Category: Principal judgment Parties: Annette Lisa Davis (Applicant) Regina (Respondent) Representation: Counsel: Mr R. Pontello (Applicant) Ms M. Cinque SC (Respondent) Solicitors: Mr B. Goh (Applicant) Mr C. Hyland – Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/182343 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 4 December 2015 Before: Syme DCJ File Number(s): 2011/182343 Judgment 1. HOEBEN CJ at CL: I agree with Price J and the orders which he proposes. 2. PRICE J: On 21 September 2015, Annette Lisa Davis ("the applicant") was found guilty by a jury of having supplied the prohibited drug methylamphetamine at Caringbah on 2 June 2011. This is an offence contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW). 3. The Crown case at trial was that the applicant had supplied the methylamphetamine by being in sole possession of 25.64 grams of the prohibited drug, which was found by police in the bedroom that she occupied at a house in Cook Street, Caringbah ("the premises") on 2 June 2011. 4. The applicant's case was that she was not a drug supplier. It was put to the jury that the possessor of the drugs was likely to be Martin Hogan, with whom she had a sexual relationship and had been staying with her for a couple of days prior to 2 June 2011. Alternatively, the drugs may have been in the possession of Lauren Ironside who left the premises about one month before the execution of the search warrant. Ms Ironside had previously occupied the same bedroom as the applicant occupied when the methylamphetamine was located. The grounds of appeal 1. The applicant appeals against the conviction on the following grounds: "Ground 1: A miscarriage of justice was occasioned by the admission of evidence that the applicant was a drug-user and funded her drug habit by committing credit card fraud. Ground 2: There was a miscarriage of justice occasioned by the failure to treat evidence that Hogan and Ironside had supplied drugs as tendency evidence." The evidence at trial 1. As the focus of the appeal is confined to these issues, it is unnecessary to detail all of the evidence in the trial. A convenient summary of the relevant evidence is as follows. 2. When the search warrant was executed, Paul Doyle (one of the lessees of the premises), Eric Gannon (the other lessee), Andrew Pedretti (a visitor), Mr Hogan, and the applicant were present. Mr Gannon occupied bedroom one, Mr Doyle bedroom two, and the applicant bedroom three. 3. Police found 1.38 grams of methylamphetamine in Mr Doyle's bedroom and a set of silver electronic scales in the entertainment unit in the lounge room. The premises was in a mess and a number of "fit boxes" for syringes were located by police. 4. At the time police entered bedroom three, Mr Hogan and the applicant were present. Mr Hogan was searched. Located in his rear left pocket was $1,110 in various denominations of Australian currency, and within the folded bank notes was a small resealable plastic bag containing 0.8 grams of methylamphetamine. 5. During a search of bedroom three, the police found: 1. 13.4 grams of methylamphetamine with a purity of 79 per cent inside a portable air-conditioning unit; 2. a set of scales and 3.9 grams of cannabis leaf; 3. a number of plastic bags containing a total of 12.24 grams of methylamphetamine, 6 grams of which had a purity of 81.5 per cent, inside a blue and white zip-up bag that was behind a bamboo screen; and 4. another set of scales and a bag containing small resealable plastic bags inside the wooden drawer of a bedside table. 1. The applicant was arrested by Detective Senior Constable Robert Wahhab. Detective Wahhab gave evidence that the applicant indicated that she was renting bedroom three for $100 a week, nobody else was staying with her, and she was unable to say how long she had been there. In cross- examination Detective Wahhab agreed that when he arrived at the premises, the applicant was sick and was taken to the hospital by ambulance. He confirmed that no money was found on her at the time of her arrest. 2. The applicant declined to participate in an electronically recorded interview. 3. Detective Senior Constable Daniel Phillis gave evidence of the criminal histories of the occupants of the premises as follows: 1. the applicant had no criminal record for drug possession or supply; 2. Mr Hogan had been convicted of offences of possess prohibited drug on 5 July 2000, 17 November 2000; 4 February 2005; 9 May 2005; and 26 July 2012. In addition, Mr Hogan was convicted of the supply of 14.6 grams of cocaine on 19 May 2008 with the supply of 1.4 grams of methylamphetamine taken into account on a Form 1; 3. Ms Ironside had been convicted of the supply of a prohibited drug in circumstances where she was found with 32 grams of methylamphetamine in 27 small resealable plastic bags on 9 July 2008. Seven of those bags were found in the jacket she was wearing, however she denied that the jacket belonged to her. She was also convicted for offences on 26 September 2008, when 14 grams of methylamphetamine were on her person and 18.9 grams of methylamphetamine were in a safe at her home; and 4. Mr Doyle had been convicted of one count of possess a prohibited drug on 17 August 1995 and of two counts of possess a prohibited drug on 2 November 2006. 1. Detective Sergeant Nicholas Glover was called by the Crown to give expert evidence. The opinions he expressed included that the quantity and purity of the methylamphetamine found in bedroom three had a value of $12,000 which was at the top end of the range. In cross-examination, Detective Glover agreed that it was likely that drug dealers would not carry a huge amount of drugs with them, but rather would have a stash ready to supply. He noted drugs are typically hidden where it is most difficult for others to find them. He also agreed that if drugs are close in purity, it might indicate that they are from the same source. Detective Glover gave evidence that the term "perso" generally refers to personal use. The intercepted telephone call 1. The Crown played an intercepted telephone call between the applicant and Mr Hogan that took place on 6 December 2011, while the applicant was in custody. The conversation included the following: "Applicant: I just had a legal visit. Hogan: … Applicant: They're getting me for 28 gram[s]. Hogan: Yeah? Applicant: Yeah, not 14. Hogan: So, this, they're, so 28 they're tryin' to say? Applicant: Yeah. Hogan: Well um… ahhh just squeezing a pimple. Fuckin' hell. Applicant: Fuckin' hell's right ah. Hogan: What are they tryin' to say, what are they tryin', which… - - - Applicant: 14, 14 - - - Hogan: - - - … - - - Applicant: - - - 14 in that, in the fuckin' air-conditioning unit - - - Hogan: Yeah. Applicant: - - - and 14 in a makeup bag sitting on a shelf. Hogan: There was more but you know what I mean? Applicant: What?" 1. The conversation also included: "Hogan: So, 20, 28 grams, eh? Applicant: Yeah. Hogan: That's fuckin' shithouse. Applicant: Yeah, but 14 of 'em they were in the air-conditioning unit, he reckons that I won't get done for 'cause it's common area - - - Hogan: Yeah, yeah. Applicant: - - - the other 14 I can go for perso. Hogan: Yeah, fair enough. All in one bag. Applicant: Yeah. Hogan: - - - no more to the story." Ms Ironside's evidence 1. Ms Ironside gave evidence that she resided in bedroom three of the premises prior to 2 June 2011. She had been released from custody in October 2010 and entered into custody again on 18 May 2011 after being picked up on a warrant. Mr Hogan was her partner in early 2011. 2. Ms Ironside stated that she moved out of the premises about a week prior to going to gaol in 2011; later in her evidence-in-chief she stated that she had moved out about a month prior. She could not recall how long she had lived at the premises, but said it was "not too long". When she moved out, she left only a bed and a clothes rack in bedroom three, as these were there prior to her moving in. She said that she was "100 per cent certain" that she took all of her belongings with her and moved them to her Auntie's house. 3. During cross-examination, Ms Ironside's evidence was that she had completely moved out before the applicant moved into bedroom three and there was no cross-over period. She said that the applicant was aware that she was leaving. 4. Ms Ironside testified that she "wouldn't leave [drugs] behind" (Tcpt, 16 September 2015, p 75) and any drugs that police found did not belong to her. She denied that she owned a blue and white zip-up bag and a set of scales. She also denied that an air conditioner was in the bedroom and that she put up a bamboo screen. Further, she denied knowledge of the drugs in the air conditioning unit and in the blue and white zip-up bag. She said that after she moved out, she was picked up on the warrant and went to gaol. 5. Ms Ironside agreed that she used a lot of drugs at the time and that she has served time in prison for the supply of drugs. She denied that between October 2010 and May 2011 she had contacts from whom she could source large amounts of drugs. She agreed that Mr Hogan had supplied her with drugs in the past. Mr Hogan's evidence 1. Mr Hogan gave evidence that the drugs found in the applicant's bedroom did not belong to him and that he had no knowledge of those drugs. 2. At the commencement of the applicant's trial counsel's ("applicant's counsel") cross-examination, Mr Hogan was asked the following questions (Tcpt, 17 September 2015, pp 104–105): "Q. Mr Hogan, you have known [the applicant] for some time? A. Yes. Q. During that time you have never known her to deal drugs, have you? A. No. Q. Pardon? A. No, I haven't. Q. You would know because you know that she is a person who has used drugs? A. Yes. Q. And that her method of sourcing drugs was by committing credit card fraud, wasn't it? A. Yes. Q. She would go to shops and obtain items through the use of credit card fraud around that time, and she would give those items to her dealers? A. Yes." 1. In further cross-examination he stated that he had never known the applicant to deal drugs or to smoke marijuana. He said that he did not think that the drugs belonged to the applicant and that he knew both Mr Doyle and Ms Ironside to be suppliers of drugs. Mr Hogan admitted that he himself was a drug supplier. He agreed that he had possessed scales previously and had seen both Ms Ironside and Mr Doyle in the possession of scales. Mr Hogan said that he had never seen the applicant with a set of scales. 2. Mr Hogan said that when the applicant moved in she brought a bag of clothes and an Xbox. He said that she did not bring any furniture because there was already a bed and drawers in the room. The applicant moved in a few days or a week prior to 2 June 2011. Mr Hogan was in a sexual relationship with her and had been staying with her for a few days. On the night of 1 June 2011, he observed Mr Doyle go into the applicant's bedroom a couple of times and he also saw Mr Pedretti go into the room. 3. When asked whether he was aware of the drugs in bedroom three, Mr Hogan replied, "I was aware of it as anyone else so what?" (Tcpt, 17 September 2015, p 112). He was asked whether the drugs in the air conditioner were his and he said, "they could have been, yeah" (Tcpt, 17 September 2015, p 112). He was asked about the drugs in the blue and white zip-up bag behind the bamboo screen and he said "they all could have been mine, yes" (Tcpt, 17 September 2015, p 112) Mr Hogan agreed that it was difficult for him to remember what drugs he had at various times. 4. Mr Hogan was asked whether he agreed that the drugs were his and he replied, "yes, whatever you want, whatever you want me to agree to I'll agree to it, this is just ridiculous, went on four fucking years" (Tcpt, 17 September 2015, p 113). He also agreed that it was possible that the cash that was found on him on the night could have been obtained from supplying drugs from the blue and white zip-up bag. When questioned as to whether he had previously said in court that he put drugs in the air conditioner, Mr Hogan replied "yeah, well I probably did to get it over and done with" and then "[l]ook, I don't, I don't, I don't know any of this, I don't believe they're hers I don't know whose stuff it is, I don't know if it's mine whatever, look I don't know" (Tcpt, 17 September 2015, p 116). He said that he was no longer in a relationship with the applicant and denied lying to protect her. 5. Mr Hogan gave evidence that the applicant had given him items of clothing, jewellery, and electronic goods to pay for her drugs. On one occasion, she had given him a fridge. 6. The Crown made a successful application for leave to question Mr Hogan pursuant to s 38 of the Evidence Act 1995 (NSW). He agreed that in a signed statement he stated that he did not know anything about the drugs located in the bedroom. When asked to explain the inconsistency between his evidence and the statement, his evidence included (Tcpt, 17 September 2015, p 122): "… they kept asking me, so last time I turned around and said, yeah, yeah, I know about them, they're all mine…I don't know what youse want… to hear from me, I don't know anything about them, it's as easy as that." 1. In further questioning of Mr Hogan by the Crown, the following appears (Tcpt, 17 September 2015, p 128): "Q. And it's the case is it that the payment that [the applicant] would give would include by way of items that were the subject of her fraudulent activities, do you agree with that? A. Yes. Q. And one such item was a refrigerator— [Applicant's Counsel]: I object to this line of questioning. In my submission the Crown is just simply splitting his case – has split his case. He had the opportunity to ask all these questions in the earlier part of his – in-chief, he didn't. HER HONOUR: Well those questions do though arise out of cross-examination. [Applicant's Counsel]: Sorry, your Honour. HER HONOUR: They arise out of cross-examination. You elicited this evidence in cross-examination. [Applicant's Counsel]: Well - - HER HONOUR: You did. You opened the door [applicant's counsel]. [Applicant's Counsel]: Yes, your Honour." 1. After the applicant's counsel's objection was overruled, Mr Hogan was taken to a document and questioned as follows (Tcpt, 17 September 2015, p 129–130): "Q. You see about halfway down the page it starts about here, showing you halfway down? A. Yeah, talking about the fridge, yeah. Q. You see the reference to [the applicant] going to Bing Lee with the stolen credit card and purchasing a fridge valued at $2,415? A. Yes. Q. You received that fridge shortly after 15 May 2011 didn't you? A. Yes. Q. That was in exchange for you providing her with drugs wasn't it? A. Yes. Q. There was also, if you look at the top of the page, there was a transaction involving a laptop to the value of $1,222 wasn't there? A. Yes. Q. And [the applicant] obtained that with a fraudulent credit card or a credit card that wasn't hers, is that right? A. Yes. Q. And she provided you with that laptop, didn't she? A. I'm not sure, I can't remember. Q. These are the facts to which you were convicted weren't they? A. I'm not sure. Q. It doesn't ring any bell that? A. I can't remember, I said it was years ago. I remember the fridge, I just can't remember the laptop and that. I don't think I ever got convicted of any laptop. I think it was just the fridge. Q. And there was a further laptop wasn't there in the next under offence 3, there's a further laptop there-- A. Yeah. Q. - - to the value of $839 that arose out of transactions as well as 15 May 2011 wasn't there, a Toshiba laptop? A. Yeah. Q. And you received the benefit, you received that laptop as well didn't you? A. What's that? Q. You got that laptop as well didn't you? A. I'm not sure." 1. Mr Hogan agreed after the intercepted telephone call was played, that he knew of the existence and quantity of the drugs in the bedroom when the police raided it. Mr Pedretti's evidence 1. Mr Pedretti denied that any of the drugs located at the premises belonged to him. 2. In cross-examination he said that he had never known the applicant to supply methylamphetamine or smoke marijuana and that he had only known her to have small quantities of methylamphetamine for personal use. 3. On the night of 1 June 2011, he bought "a couple of hundred dollars' worth" of methylamphetamine from Mr Hogan and used the drug at the premises alone. He had previously purchased drugs from Mr Hogan. 4. Under cross-examination by the Crown, Mr Pedretti agreed that in court on the previous occasion he said that he had not purchased drugs from Mr Hogan on that night. Mr Pedretti confirmed that he did purchase the drugs and explained that previously he did not want to tell on Mr Hogan. Mr Doyle's evidence 1. Mr Doyle gave evidence that he and Mr Gannon held the lease for the premises in 2011. Mr Doyle denied that the drugs located in bedroom three belonged to him. He said that the applicant resided in bedroom three on 2 June 2011, and that Ms Ironside had lived in bedroom three prior to this. He stated that when Ms Ironside left, she took all of her belongings except her bed and some drawers or a rack. He confirmed that Ms Ironside and the applicant were not living in the room at the same time, and there was a little gap in time between their occupancies. After Ms Ironside moved out, Mr Doyle tidied up the room and did not find any drugs. 2. Mr Doyle stated that he found the air conditioning unit on the side of the road, took it apart to fix it up, and then put it into bedroom three. He did not see any drugs inside it. 3. In cross-examination, Mr Doyle said that there was not much left in the room when Ms Ironside left. He thought the bamboo screen may have been put up by Ms Ironside. He agreed that he never knew the applicant to supply drugs, and that neither Mr Hogan nor the applicant supplied him with drugs on the night of 1 June 2011. The applicant's evidence 1. During the applicant's evidence-in-chief, she stated that by 2 June 2011 she had been residing at the premises for roughly two to three weeks. It was her understanding that she would be staying at the premises with Ms Ironside, however, as soon as she moved in, Ms Ironside said that she was going out and never came back. 2. The applicant testified that when she moved in she brought a couple of bags of clothes and her Xbox. Furniture was already in the room, including bedside tables and the air conditioning unit. 3. The applicant denied that the drugs found in the air conditioner and the drugs located behind the bamboo screen were hers. The applicant said that she never saw either of the two parcels of drugs and she only came to know about them after her arrest. She denied that the scales located in the bedroom were hers but said that there were always scales around the premises. She said that she did not smoke marijuana and denied that the marijuana in the room was hers. 4. Her evidence was that she had been using "ice" since about 2004 and had become addicted. She said that in May or June 2011 she was using "maybe one to two points a day" (Tcpt, 17 September 2015, p 170) and that the most methylamphetamine she would have had on her at a time was half a gram, worth about $250. 5. The applicant had known Mr Hogan since 2004 as a "dealer" and he supplied her with methylamphetamine over that period of time. She stated that she and Mr Hogan had been in a sexual relationship for about a month before she moved into the premises. The applicant also knew Ms Ironside as her "dealer", with whom she had been best friends for a little while. She denied selling drugs for Mr Hogan. She said that she obtained her drugs from Mr Hogan and paid for them by exchanging items, which she purchased through the use of credit card fraud. She said that she would buy all different kinds of things, such as phones, clothes, a fridge and whatever Mr Hogan asked for. In exchange for the fridge purchased on 15 May 2011, Mr Hogan gave her three or five points of methylamphetamine and another couple of points upon delivery. 6. The applicant agreed that she was using methylamphetamine at the time of her arrest but said that on the night of 1 June 2011 she did not take any drugs. During the search and arrest, she thought that she was miscarrying and was taken to hospital. 7. The applicant explained that in the intercepted telephone call conversation, she was recounting the advice that she had obtained from Legal Aid. She explained that she was indicating that if the 14 grams were classified as drugs for personal use she would not be sentenced as heavily as if it were a supply charge. 8. In cross-examination, the applicant denied that Ms Ironside had moved out before she moved in, but she agreed that the sexual relationship with Mr Hogan had started about a week prior to her moving in. 9. The applicant gave evidence that the two parcels of drugs that were found in her bedroom were worth way more than the fridge. She denied that she put drugs from the fridge transaction in the blue and white zip-up bag. She denied giving Mr Hogan the $1100 cash that was found in his possession in addition to the fridge for the drugs. 10. The applicant said that she may have had between half a gram and one gram of methylamphetamine on her person at any particular time, but never more than that. She conceded that on the last occasion before the court she said that the most she would have had was one gram. Mr Hogan last supplied her two days before the search on 2 June 2011. She could not recall how much he supplied, but said it would not have been more than one point. She denied having drugs in her possession for personal use on 2 June 2011. 11. The applicant agreed that she supported her drug habit by credit card fraud. She accepted that she sold some of the items obtained by fraud to buy drugs. In further cross-examination, the applicant said that she would obtain a credit card number, not knowing whose card it was, put the number into a machine at the shops, and purchase goods with it. Ground 1: A miscarriage of justice was occasioned by the admission of evidence that the applicant was a drug-user and funded her drug habit by committing credit card fraud Argument 1. It was submitted that the decision of the applicant's counsel to adduce evidence that she was a drug-user who supported her habit by committing offences of credit card fraud led to a miscarriage of justice. The contention was that this issue became a major focus in the trial. The Crown's lengthy cross-examination included questions about the applicant's prior convictions for dishonesty and the suggestion that she was a dishonest person generally. 2. The applicant argued that the introduction of this evidence could not be explained on the basis of a forensic advantage. The evidence that the applicant was a drug-user was said to be inadmissible tendency evidence and the evidence of funding her drug habit by committing credit card fraud was credibility or bad character evidence. 3. A further submission was that the Crown's cross-examination on the applicant's dishonesty required the leave of the court pursuant to s 104(2) of the Evidence Act and leave was not sought. 4. The Crown submitted that the course taken by the applicant's counsel was a considered one. The Crown pointed to the evidence of the search of the premises, which revealed a number of "fit boxes" for syringes and contended that it would have been difficult, if not impossible, to leave the jury with an impression that the applicant was not a drug-user, but came, unfortunately, to live in a "drug house". The Crown said that it was important to the applicant's case to show that all of the others in the premises were drug addicts and that some were suppliers, in order to shift the blame for the drugs found in her room. 5. The evidence of being an "ice user" was not, the Crown argued, "inadmissible tendency evidence" and the evidence of the applicant's credit card fraud was not bad character or credibility evidence given the way the applicant's case was presented. 6. As to the applicant's argument that the court's leave was required under s 104 of the Evidence Act, the Crown submitted that the cross-examination was not relevant only to the assessment of the applicant's credibility but went to the issue raised by the applicant's counsel. 7. Further reference was made by the Crown to the judge's directions to the jury. The Crown's submission was that no miscarriage of justice has been established. Consideration 1. The applicant's contention is that the manner in which her counsel conducted the trial resulted in a miscarriage of justice. The applicant's complaint is directed at the decision of her counsel to adduce evidence that she was a drug-user whose habit was supported by credit card fraud. The topic was first introduced at the outset of the cross-examination of Mr Hogan at [23] above. 2. In order to establish a miscarriage of justice, the applicant must do more than "simply point to some failing, even a gross failing, of the legal representative who appeared…": John Wayne Tsiakas v R [2015] NSWCCA 187 at [44]; Younan v R [2016] NSWCCA 248 at [96]. The applicant must demonstrate that there is a significant possibility that the acts of which she complains affected the outcome of the trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 ("TKWJ"); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614. 3. Where the course taken by the applicant's counsel is the result of an informed and deliberate decision which could have resulted in a forensic advantage to the applicant, the applicant will not establish a miscarriage of justice unless, "the advantage is slight in comparison with the disadvantage resulting from the course in question": TKWJ at [33] (Gaudron J); see also [84]–[85] (McHugh J). 4. I do not agree with the applicant's submission that the introduction of the evidence could not be explained on the basis of a forensic advantage. The choice made by the applicant's counsel had the advantage of explaining to the jury that the applicant's drug addiction was funded by her dishonest use of other people's credit cards and not by the sale of prohibited drugs. The evidence before the jury included the methylamphetamine secreted in her bedroom, the "fit boxes" for syringes in the premises, and the intercepted telephone call during which the applicant said "…the other 14 I can go for perso". Whilst it is often difficult to predict the outcome of a jury trial, in these circumstances, an attempt by the applicant to put herself before the jury as anything other than a drug-user would, in all likelihood, have been unsuccessful. Her evidence that she was not a drug supplier, but a personal user, was supported by Mr Hogan, Mr Pedretti, and Mr Doyle, all of whom had been called by the Crown. 5. The evidence of the applicant's drug use and credit card fraud was not, as the applicant argues, inadmissible tendency evidence or bad character evidence. Rather it was evidence that could rationally affect the assessment of the existence of the critical issue at trial which was whether the applicant was the possessor of the methylamphetamine hidden in the air-conditioning unit and blue and white zip-up bag behind the bamboo screen. 6. Experienced counsel may have differing views as to the suitability of putting the evidence before the jury, however, the decision of the applicant's counsel is understandable. I am not persuaded that the course taken by the applicant's counsel, resulted in a miscarriage of justice. 7. Another issue, however, arises from the Crown's cross-examination of the applicant. The applicant contends that some of the questions asked by the Crown were solely relevant to her credibility and should not have been asked without the court's leave. The definition of "credibility evidence" is found in s 101A of the Evidence Act: "101A Credibility evidence 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." 1. Section 104 of the Evidence Act relevantly provides: "104 Further protections: cross-examination as to credibility (1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor 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 evidence relates, or (c) has made a prior inconsistent statement. (4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecutor 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. …" 1. The Crown cross-examined the applicant at length concerning her drug use and credit card fraud. This evidence was relevant to the critical issue in the trial (see [62] above) and was not relevant only to the applicant's credibility. The Crown's cross-examination on these topics did not require the court's leave under s 104(2) of the Evidence Act. 2. The focus of the applicant's complaint, however, were the following questions asked by the Crown (Tcpt, 17 September 2015, p 174): "Q. And there's no question, is there, that you became dishonest, there's no question about that, is there, after 2004? A. Desperate. Q. Well, in fact dishonest? A. Yeah, it was after, actually after 2009 I believe, after I lost my father and both my kids that's when I started doing my, yeah, that's when my habit got really bad to numb my pain and that's when I started doing fraud to pay for it. Q. But in any event then even from 2009 you accept that you became a dishonest person? A. After 2009, yes. Q. And you became dishonest to get money for your ice habit, didn't you, yes? A. Yes and I wasn't proud." 1. Later on, the Crown questioned the applicant as follows (Tcpt, 17 September 2015, p 179): "Q. Well you were in fact convicted, weren't you, of using and holding a fake licence in 2010? A. Not a – I don't know if it was a fake licence. Q. Do you accept that you were convicted in 2010 of using a fake licence? A. I don't remember that, no. Q. You don't remember that? A. No. Not a fake licence. Q. Do you accept that you were convicted of having equipment to make false documents in 2010? A. I believe that they found like a nail file kind of thing in my – and sticky tape, or something – yeah, and a Stanley knife it was, as well." 1. In oral argument in this Court, Senior Counsel for the Crown did not accept that this evidence was solely relevant to the applicant's credibility but conceded that "it might have gone just a little bit further" (Tcpt, 17 July 2017, p 5). 2. The difficulty in deciding whether particular evidence is relevant only to credibility is well-recognised. In Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, McHugh J said at [43]: "[43]… It is also often difficult to maintain the distinction between evidence that affects only the credit of a witness and evidence that is relevant to a fact in issue. The credibility of a witness is inevitably indirectly relevant to establishing facts in issue. Sometimes, the credibility of a witness is decisive of the facts in issue. It is a matter of degree, both in relation to relevance and to whether a fact is collateral. Whether a fact bears on the credit of a witness depends not only upon what the witness represents to the court, but also upon the nature of the party's case." 1. In my view, questions about the applicant's dishonesty after 2004, the use of a fake license and the possession of equipment to make false documents had no relevance whatsoever to the critical issue in the trial which was the possession of the prohibited drugs. Nor could it be said that the evidence could either directly or indirectly rationally affect the assessment of any other fact in issue. The relevance of the evidence was confined to the assessment of the applicant's credibility. 2. The Crown did not argue that the credibility rule did not apply as the evidence "could substantially affect the assessment of the credibility of the witness": s 103(1) of the Evidence Act. The Crown's submission was that the evidence was of "minor moment" in the case. 3. There was also some debate as to whether the applicant's counsel objected to the questions being asked by the Crown. In the passage quoted at [30] above, an objection was raised by the applicant's counsel to a line of questioning by the Crown of Mr Hogan concerning the applicant's fraudulent use of the credit card and the purchase of the fridge on the basis that the Crown was "splitting his case". No further objection was taken. 4. In any event, the evidence was not admissible unless the court gave leave: s 104(2) of the Evidence Act. The Crown was obliged to seek leave from the judge before asking these questions but did not do so. Furthermore, if leave had been sought, the conditions required by s 104(4) for the grant of leave would not have been met. No evidence had been adduced by the applicant that tended to prove that a Crown witness had a tendency to be untruthful and was relevant solely or mainly to the witnesses' credibility. 5. Before considering further what impact the inadmissible evidence had upon the trial, the judge's directions to the jury concerning the applicant's drug use and dishonesty should not be overlooked. Her Honour gave the following instructions to the jury (SU 23–24): "… Now you may come to the conclusion, it wouldn't be too hard, that she was involved in some criminal activity, including drug use and dishonesty. You will have to consider how this affects your assessment of the truth of her evidence. You must keep in mind however that she does not have to prove anything. However you should be careful not to assume that because she was involved in some form of criminal activity, including using drugs, that she is therefore guilty of the charged offence. The Crown must prove the charged offence against her on the evidence that is before her. So the fact that she has been involved in criminal offences might affect your assessment of her credibility, but remember she does not have to prove anything. There is a danger that I have to warn you about, and it is a normal human failing I would think, members of the jury, that you would use the fact that she has been involved in criminal activity to set off in your mind a form of reasoning a bit like this. You might think that the evidence that she has been involved in criminal activity means that she was a person of bad character. Crimes are more often committed by people of bad character. Therefore the accused is more likely to be guilty of this crime with which she is charged. Now a jury is never permitted to use such evidence for the purpose of concluding that the accused is guilty of a crime with which she is currently charged simply because she has been guilty of other offences or might be the sort of person who might commit a crime. It is a prohibited line of reasoning and my firm direction to you is that you must not allow it to enter into your deliberations. The evidence is not led before you for that purpose. It is led really to put context to the circumstances of the house at this time and to give some real sense to the circumstances in which these drugs were found. It is not put before you so you can reason or that you can use it in that impermissible way. If you do think she is a person of bad character, that is a conclusion that you may or may not draw, it is entirely up to you. But if you do draw that conclusion you cannot draw a conclusion that therefore she must be guilty of this offence charged. You must look at all the other things that I have told you about to consider whether the Crown has proven its case to the required standard or not. But of course you can take that evidence into account in general when considering whether you accept her evidence or not, keeping in mind that the onus remains on the Crown and never on the accused." The Proviso 1. The Crown contended that if this Court determined that the applicant's ground of appeal was established, the Court should apply the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) as no substantial miscarriage of justice occurred. 2. The present issue relates to the third limb of s 6 of the Criminal Appeal Act to which the proviso may operate namely where "on any other grounds whatsoever there was a miscarriage of justice". This Court is to decide whether a "substantial miscarriage of justice has actually occurred": Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81. 3. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, French CJ, Bell, Keane and Nettle JJ said at [15]: "[15] That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By 'substantial miscarriage of justice' what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. … Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada and more recently noticed in Lindsay v R, that, although the proviso is expressed in permissive terms, 'if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied' the proviso must be applied." 1. In my opinion, the Crown's argument that the inadmissible evidence was of little moment in the trial should be accepted. The members of the jury had heard a great deal of evidence about the applicant's dishonest use of other people's credit cards before she was asked about being dishonest after 2004 and the other offences. These questions would have had little impact upon the jury. Furthermore, the judge directed the jury of the prohibited line of reasoning arising from other offences. 2. Whilst I do not agree with the Crown's submission that the evidence in the trial overwhelmingly established the applicant's guilt, it was a fairly strong Crown case. The strength of the case coming in particular from the combined force of the applicant's occupation of bedroom three where the drugs were located, the evidence of Ms Ironside as to when she moved out of the bedroom taking all of her belongings with her, Mr Doyle's testimony of the gap in time between the occupancies and the items left in the bedroom after Ms Ironside moved out, and the intercepted telephone call. It is hardly surprising that the jury rejected Mr Hogan's inconsistent accounts that the drugs were his. Also, it is clear that the jury did not accept the applicant's evidence. They were not obliged to do so. 3. I am satisfied that neither the course taken by the applicant's counsel nor the inadmissible evidence deprived the applicant of a chance of acquittal that was fairly open to her. No substantial injustice has been established arising from these matters and I would apply the proviso. Ground 2: There was a miscarriage of justice occasioned by the failure to treat evidence that Hogan and Ironside had supplied drugs as tendency evidence Argument 1. The applicant submitted that the evidence establishing that both Mr Hogan and Ms Ironside had possessed and supplied prohibited drugs, including methylamphetamine in the past was tendency evidence. The basis for this submission was that this evidence was relevant to a fact in issue, namely, whether Mr Hogan or Ms Ironside possessed the drugs found in the applicant's bedroom because it was said to show that both persons had a tendency to act in a particular way, that is, to possess prohibited drugs for the purposes of supply and to in-fact supply those prohibited drugs. The applicant acknowledged that a tendency notice was not served, but said that the evidence was admitted without objection from the Crown. 2. The applicant contended that the jury should have been directed that they could use this evidence to conclude that Mr Hogan and Ms Ironside had a tendency to possess drugs for the purposes of supply and in determining whether either was in possession of the drugs found in the applicant's bedroom. The applicant accepted that no such direction was sought at trial. 3. The applicant was critical of the Crown's request to the judge for an "anti-tendency" direction and the direction made by her Honour, which was said to be the opposite of what the jury should have been told. 4. A further argument was that the members of the jury were not told in any meaningful way how they could use the evidence and whilst the significance of the evidence was probably obvious to the jury, her Honour's direction had the effect of neutralising the force of the evidence. The applicant's counsel's failure at trial to have the evidence admitted as tendency evidence and to seek a direction was not explicable on the basis of a forensic advantage. The applicant submitted that the judge's direction deprived her of a chance of acquittal that was fairly open. 5. The Crown did not accept that, if the judge had been requested, a direction would necessarily have been made that Ms Ironside had a tendency to possess methylamphetamine for supply on the basis of one conviction for an offence which occurred three years earlier. The Crown, however, conceded that the case may have been different with respect to Mr Hogan, as he had previously supplied methylamphetamine on numerous occasions. 6. The Crown argued that the jury accepted that the totality of the evidence established that the reason that two sets of methylamphetamine were found carefully hidden in the applicant's bedroom was that she had possession of them. The Crown argued that absence of directions in terms submitted by the applicant did not cause her to suffer a miscarriage of justice. Consideration 1. After the completion of addresses and in the absence of the jury, the Crown asked the judge for an "anti-tendency direction" (Tcpt, 18 September 2015, p 246): "CROWN PROSECUTOR: I don't know what your Honour is proposing to say. I imagine your Honour would cover it in any event, particularly having regard to my learned friend's eloquent submissions to the jury, anti-character as such, first time supply possibility, anti-tendency clearly in relation to - - HER HONOUR: An anti-character and anti-tendency direction I think is tied up in one direction and there's a standard anti-character, anti-tendency direction. It doesn't quite fit with the circumstances of this case but that's the direction that I would propose to give. CROWN PROSECUTOR: Thank you, your Honour. I figured your Honour may have that. The concern in relation to tendency is clearly levelled at Hogan and Ironside, the fact of prior conviction was clearly amounting to tendency. In my submission it would be important to indicate that, one can't use facts - - HER HONOUR: It was almost part of [the applicant's counsel's] submission to the jury, wasn't it? CROWN PROSECUTOR: That's the concern and the fact of a prior conviction dose not lead to a conclusion that the person - - HER HONOUR: Well, the issue in relation to Ironside, Hogan and whoever else is running around the house or whoever else had conviction but I think it's Ironside and Hogan that are the people who had convictions of supply. The Crown have to rule out as being a reasonable possibility that they were the possessors of the drugs and that's certainly true. What I would certainly add to that in light of [the applicant's counsel's] submissions to the jury that they cannot assume just because they've been convicted of supply once they have a tendency to supply on more than one occasion. I don't know how that's going to fly with the jury in light of Mr Hogan's evidence but anyway - -" [Emphasis added.] 1. The applicant's counsel did not take issue with what was said by the judge. 2. In the course of the judge's directions, the jury was instructed as follows (SU 18–19): "So, if after having considered all of the evidence as a whole you accept the version given by [the applicant] which, in general was, 'didn't know anything about it, it wasn't mine, first time I saw it was then', if you accept that version then of course you must find her not guilty. If, however, after having considered all of the evidence the version suggested to you by [the applicant's counsel] on behalf of [the applicant], and having considered all of the other evidence in the trial, you do not positively accept the version or possibilities outlined by [the applicant's counsel] but, nevertheless, you are left with some doubt as to the issue of possession then again you must find her not guilty as it would follow that the Crown has not proven their case beyond reasonable doubt. It is only if you reject the evidence of the accused completely and reject the possibility that the drugs were actually the drugs belonging to either Ms Ironside or Mr Hogan, or somebody else who left them there. Only if you reject those scenarios as a possibility then you can find the accused guilty but of course you must also be satisfied of all of the other elements of the offence." 1. Later on in the summing-up, her Honour said (SU 21): "Now when you are considering the evidence of Mr Hogan and Ms Ironside, and the evidence of previous convictions for drug supply. That evidence was put before you and it was fairly put before you. You must not however consider that just because they have convictions for drug supply on a prior occasion then of course the drugs must have been theirs for the purpose of supply on this occasion. When assessing their evidence you should not assume that just because they have been drug suppliers in the past then they have some kind of tendency that you can take into account when assessing their evidence on this occasion. In any event, I would say to you you're not being asked to make a finding whether the drugs were Mr Hogan's or Ms Ironside's or [the applicant's]. You are not being given… a choice. You are being asked only whether the Crown have proven beyond reasonable doubt that they were [the applicant's]. Do you understand the difference? I guess you do." [Emphasis added.] 1. The applicant's counsel neither complained to the judge about these directions nor did she ask for a tendency direction. 2. There appears to have been no discussion prior to the Crown's application to the judge for an "anti-tendency" direction on the basis upon which the evidence of the prior convictions for drug supply of Mr Hogan and Ms Ironside had been admitted. The applicant did not give notice under s 97 of the Evidence Act of the intention to adduce the evidence nor did the Crown object to its admissibility. 3. Section 97(1) of the Evidence Act, so far as is relevant to the circumstances of the trial, applies where: "… evidence of the… conduct of a person [is tendered] to prove that a person… had a tendency to act in a particularly way". 1. Evidence of conduct, however, may be relevant to a fact in issue "independently of its tendency to show that a person had a propensity to act in a particular way": Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 at [67]. What then is the relevance of the prior convictions of persons other than the applicant in the context of the issues in the trial? 2. The applicant told the jury that she had no knowledge of the drugs found by police in the air-conditioner and in the blue and white zip-up bag. It was vital to her case that there was at least a reasonable possibility that another person had possession of the drugs. On this question, the evidence of the prior convictions of Mr Hogan and of further drug supply by him, viewed in combination with his occupation of bedroom three has substantial probative value. Similarly, but to a lesser extent given the gap between the occupancies of Ms Ironside and the applicant, Ms Ironside's prior convictions have probative value. 3. In my view, the probative value of the evidence is not as tendency evidence but as evidence directly relevant to the critical issue in the trial which was whether the Crown had established beyond reasonable doubt that the applicant was in possession of the drugs. 4. I do not agree with the applicant's submission that a tendency direction was required. 5. The difficulty in this case arises from the Crown's request for an "anti-tendency" direction which her Honour acceded to. 6. In this Court, Senior Counsel for the Crown said that "it was a slightly odd direction to have given" (Tcpt, 17 July 2017, p 7) and conceded that the direction "probably shouldn't have been given" (Tcpt, 17 July 2017, p 6). 7. What is referred to as an "anti-tendency" direction is sometimes given by a court when the reception of tendency evidence relied upon by the Crown may occasion prejudice to an accused and the direction may reduce that prejudicial effect. That was not the present case, as the onus was on the Crown to prove beyond reasonable doubt that the applicant was in possession of the drugs and the evidence was relevant to that issue. 8. It appears that by the direction, her Honour was endeavouring to ameliorate any prejudicial effect to the Crown by the jury reasoning that because of their prior convictions, Mr Hogan or Ms Ironside must have been in possession of the drugs. Included in what was said by her Honour to the jury in the passage quoted at [91] above was the following (SU 21): "When assessing [Mr Hogan's and Ms Ironside's] evidence you should not assume that just because they have been drug suppliers in the past then they have some kind of tendency that you can take into account when assessing their evidence on this occasion." 1. This direction was confusing and had the potential to divert the jury's attention away from the relevance of the evidence. The members of the jury may have understood that they could not take into account the prior convictions of Mr Hogan and Ms Ironside when assessing their evidence. The direction diminished the significance of the prior convictions to the applicant's case and did not provide appropriate guidance to the jury as to the use to be made of the evidence. 2. In my respectful opinion, the jury should have been told by the judge that the evidence of the prior convictions, of further drug supply and of the occupation of bedroom three by Mr Hogan and Ms Ironside was relevant to their task of assessing whether it was a reasonable possibility that someone other than the applicant had the possession of the drugs. 3. As the applicant's counsel did not object to the direction, r 4 of the Criminal Appeal Rules (NSW) applies. 4. Although the applicant's counsel did not ask for a re-direction, I am satisfied that by the misdirection, the applicant has lost a chance fairly open to her of being acquitted. As I have explained, the evidence of the prior convictions of Mr Hogan and Ms Ironside and of further drug supply was vital to her case. There was no forensic advantage to be gained by the applicant's counsel's failure to raise the issue. I am satisfied that a miscarriage of justice has occurred. 5. I do not think that a new trial should be ordered. The applicant was sentenced by the judge to imprisonment with a non-parole period of 10 months, expiring on 17 July 2016 with a balance of term of one year expiring on 17 July 2017. She was released to parole on 17 July 2016 and the whole of her sentence has been served. Furthermore, a new trial would be the third trial that the applicant would stand for the alleged offence. Although serious, a third trial would be disproportionate to the importance of the offence. Another factor is that it is over six years since the offence was said to have been committed. 6. Accordingly, I propose the following orders: 1. Appeal upheld. 2. The applicant's conviction is quashed. 1. SCHMIDT J: I agree with Price 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: 27 October 2017