Davis v R

1. [1]

   HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.

2. [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. [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. [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. [5]

   The applicant appeals against the conviction on the following grounds:

The evidence at trial

1. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   During a search of bedroom three, the police found:

6. [11]

   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.

7. [12]

   The applicant declined to participate in an electronically recorded interview.

8. [13]

   Detective Senior Constable Daniel Phillis gave evidence of the criminal histories of the occupants of the premises as follows:

9. [14]

   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.

10. [15]

    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:

11. [16]

    The conversation also included:

12. [17]

    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.

13. [18]

    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.

14. [19]

    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.

15. [20]

    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.

16. [21]

    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.

17. [22]

    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.

18. [23]

    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):

19. [24]

    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.

20. [25]

    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.

21. [26]

    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.

22. [27]

    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.

23. [28]

    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.

24. [29]

    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):

25. [30]

    In further questioning of Mr Hogan by the Crown, the following appears (Tcpt, 17 September 2015, p 128):

26. [31]

    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):

27. [32]

    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.

28. [33]

    Mr Pedretti denied that any of the drugs located at the premises belonged to him.

29. [34]

    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.

30. [35]

    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.

31. [36]

    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.

32. [37]

    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.

33. [38]

    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.

34. [39]

    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.

35. [40]

    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.

36. [41]

    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.

37. [42]

    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.

38. [43]

    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.

39. [44]

    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.

40. [45]

    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.

41. [46]

    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.

42. [47]

    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.

43. [48]

    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.

44. [49]

    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.

45. [50]

    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

1. [51]

   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. [52]

   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. [53]

   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. [54]

   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. [55]

   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. [56]

   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. [57]

   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.

8. [58]

   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.

9. [59]

   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.

10. [60]

    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).

11. [61]

    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.

12. [62]

    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.

13. [63]

    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.

14. [64]

    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:

15. [65]

    Section 104 of the Evidence Act relevantly provides:

16. [66]

    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.

17. [67]

    The focus of the applicant’s complaint, however, were the following questions asked by the Crown (Tcpt, 17 September 2015, p 174):

18. [68]

    Later on, the Crown questioned the applicant as follows (Tcpt, 17 September 2015, p 179):

19. [69]

    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).

20. [70]

    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]:

21. [71]

    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.

22. [72]

    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.

23. [73]

    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.

24. [74]

    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.

25. [75]

    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):

The Proviso

1. [76]

   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. [77]

   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. [78]

   In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, French CJ, Bell, Keane and Nettle JJ said at [15]:

4. [79]

   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.

5. [80]

   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.

6. [81]

   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

1. [82]

   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. [83]

   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. [84]

   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. [85]

   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. [86]

   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. [87]

   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.

7. [88]

   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):

8. [89]

   The applicant’s counsel did not take issue with what was said by the judge.

9. [90]

   In the course of the judge’s directions, the jury was instructed as follows (SU 18–19):

10. [91]

    Later on in the summing-up, her Honour said (SU 21):

11. [92]

    The applicant’s counsel neither complained to the judge about these directions nor did she ask for a tendency direction.

12. [93]

    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.

13. [94]

    Section 97(1) of the Evidence Act, so far as is relevant to the circumstances of the trial, applies where:

14. [95]

    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?

15. [96]

    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.

16. [97]

    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.

17. [98]

    I do not agree with the applicant’s submission that a tendency direction was required.

18. [99]

    The difficulty in this case arises from the Crown’s request for an “anti-tendency” direction which her Honour acceded to.

19. [100]

    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).

20. [101]

    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.

21. [102]

    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):

22. [103]

    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.

23. [104]

    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.

24. [105]

    As the applicant’s counsel did not object to the direction, r 4 of the Criminal Appeal Rules (NSW) applies.

25. [106]

    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.

26. [107]

    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.

27. [108]

    Accordingly, I propose the following orders:

    1. (1)

       Appeal upheld.

    2. (2)

       The applicant’s conviction is quashed.

28. [109]

    SCHMIDT J: I agree with Price J.