La Rocca v R

1. [1]

   ADAMSON J: Jason La Rocca (the appellant) seeks leave to appeal against his conviction, following trial by jury, of the offence of attempted possession of 19.7458kg (14.691kg pure) of 3,4-Methylenedioxymethamphetamine (MDMA), being a commercial quantity of a border controlled drug contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth) (the Code). Jose Molina (the co-accused), who was also charged with this offence, was tried with the appellant and was found not guilty.

2. [2]

   The appellant also seeks leave to appeal against the sentence imposed by Grant DCJ (the trial judge) for a term of 10 years’ imprisonment commencing on 31 December 2019 and expiring on 30 December 2029 with a non-parole period of 6 years’ imprisonment. The single ground of appeal is that the sentence was manifestly excessive.

3. [3]

   At the conclusion of the hearing, at least a majority of the Court was satisfied that leave ought be granted, the appeal against conviction allowed and a new trial ordered. Accordingly, these orders were made at the conclusion of the hearing. In these circumstances, it is not necessary to address the application for leave to appeal against the sentence. My reasons for joining in the orders of the Court are as follows.

The grounds of appeal

1. [4]

   The appellant sought leave to appeal on the following grounds:

2. [5]

   Mr Walker SC, who appeared with Mr Vasic for the appellant, accepted that leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (rule 4.15) was required in respect of grounds 1(b), 2, 3 and 4.

3. [6]

   The Crown opposed leave under rule 4.15 being granted in respect of any of the grounds where leave was required. Further, it relied on the proviso in respect of each ground: that is, the Crown contended that even if any one or more of the grounds were made out, the appeal ought nonetheless be dismissed on the basis that “no substantial miscarriage of justice has actually occurred” within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

4. [7]

   Because of the breadth of the grounds and the Crown’s reliance on the proviso in respect of each ground, it is necessary to set out in some detail aspects of the pre-trial rulings and the conduct of the trial.

Pre-trial

1. [8]

   Prior to the empanelment of the jury, the Crown applied to adduce evidence which was the subject of a tendency notice pursuant to s 97(1) of the Evidence Act 1995 (NSW), which it had served outside the time provided for by s 97(1). The tendency notice said in part:

2. [9]

   The documents attached to the notice included a report of downloads from the appellant’s phone, which included the following text message sent by “Sam”, an associate of the co-accused, to the co-accused, who copied it and forwarded it to the appellant on 5 September 2017 at 4.46pm:

3. [10]

   The Crown also attached Google searches conducted by the appellant, including on Wikipedia, concerning sodium borohydride, and a report of Dr Daniel Coghlan, the Crown’s forensic chemist, as to the properties of the compound.

4. [11]

   On 18 February 2019, the Crown was granted leave to amend its tendency notice to read “MDMA” instead of “illicit substances”. The appellant’s then counsel, Mr McHugh SC (who did not appear for the appellant at trial), applied for a ruling that the evidence served by the Crown, attached to its tendency notice, not be admitted against the appellant. The application was heard together with other pre-trial applications in February 2019. Mr McHugh argued that sodium borohydride was not “being” or “related to” MDMA and therefore the proposed evidence did not fall within the parameters of the tendency notice. Further, he argued that the evidence did not have significant probative value, was prejudicial to the appellant and was, accordingly, inadmissible under s 97(1) of the Evidence Act. He also raised ss 101 (further restrictions on tendency evidence adduced by prosecution), 135 (general discretion to exclude evidence) and 137 (exclusion of prejudicial evidence in criminal proceedings) of the Evidence Act.

5. [12]

   On 27 February 2019, N L Williams DCJ delivered reasons for her decision to allow the evidence. Her Honour referred to the relevant provisions of the Evidence Act as well as to general statements of principle in the authorities before noting that the notice was not served within time and allowed only four working days’ notice prior to the hearing of pre-trial applications.

6. [13]

   Her Honour referred to the further evidence adduced by the Crown which she found showed that sodium borohydride was a “precursor chemical in the manufacture of MDMA.” Her Honour noted the Crown’s submissions as follows:

7. [14]

   Her Honour also referred to the Crown’s submission that “the court must take into account the ameliorating effect of any directions that are available to reduce the prejudicial effect of the evidence (see DAO v R (2011) NSWCCA 63 at 171).”

8. [15]

   Her Honour summarised the appellant’s objections to the evidence, including that it lacked substantial probative value because the charge was one of attempt possession of MDMA in a commercial quantity and there was no suggestion that the appellant or the co-accused had the skills, equipment or access to precursors to manufacture MDMA, and that no charge of manufacture had been laid against the appellant.

9. [16]

   Although her Honour summarised the parties’ submissions, her reasons for deciding to admit the evidence were scant. She found that the evidence had “significant probative value” but did not say why and said that “it would be unfair to the prosecution to deprive it of this evidence”. Her Honour added:

The trial

1. [17]

   The trial commenced on 25 November 2019.

2. [18]

   Much of the Crown case was not disputed. The principal, if not sole, issue was whether the Crown could prove to the requisite standard that the appellant and/or the co-accused knew or were reckless as to the possibility that the candles which were the subject of the intercepted consignment contained MDMA.

The Crown opening

1. [19]

   Of present relevance, the Crown outlined the evidence relating to sodium borohydride (the subject of ground 1) in its opening as follows:

2. [20]

   As referred to above, the appellant was charged on indictment with the co-accused. The appellant and the Crown agreed on certain facts pursuant to s 191 of the Evidence Act, which established the following narrative.

3. [21]

   On 30 August 2017, Australian Border Force (ABF) intercepted a consignment package of three boxes, which the accompanying airway bill described as 100kg of aromatherapy candles. The consignee of the package was Mr Xu at an address in Bradbury, NSW. Tests conducted on the contents of the consignment established that 19.7458kg of MDMA substance was secreted within 66 of the 231 candles. This corresponded to a pure weight of 14.691kg of MDMA of an average purity of 74.4% (ranging from 62.5% to 79%). Its value as at 2017 ranged between $730,594.60 and $868,815.40.

4. [22]

   NSW Police removed the MDMA substance from the candles and substituted it with an inert substance. The candles were repackaged into two boxes which were delivered to Mr Xu’s address in Bradbury at 12.35pm on 14 September 2017 and left on the verandah.

5. [23]

   At 7pm on 15 September 2017, a black Toyota RAV4 motor vehicle (the Toyota), which was driven by David Pattison and in which the appellant was a passenger, arrived at Mr Xu’s address. The two boxes were picked up and put in the back of the Toyota.

6. [24]

   After the boxes had been picked up, Mr Pattison and the appellant drove via Yagoona to the Darling Hotel, at the Star City Casino (the hotel); the Metro Servo on the corner of Punchbowl and Benaroon Roads; the co-accused’s residence in Kingsgrove; and the Broadway Shopping Centre in Glebe. They arrived at the hotel at about 11pm, following which Mr Pattison departed alone in the Toyota.

7. [25]

   It was also agreed that at about 5am on 16 September 2017, a search was conducted of room 1290 in the hotel (the room in which the appellant and the co-accused had been assigned on check-in) at which point various items were seized, including a Nokia mobile phone and an A4 sized envelope containing paperwork (the Room 1290 documents). The tender of the Room 1290 documents, which were marked Exhibit 25 in the trial, is the subject of ground 4. When the appellant returned to room 1290 on 16 September 2017, police were still conducting the search. He was arrested and charged.

8. [26]

   Later that day, the co-accused was also arrested and charged. At the time of his arrest, he was in the driver’s seat of a black Mercedes motor vehicle. On the back seat, there was a black Samsonite suitcase which contained the candles which were the subject of the controlled delivery.

9. [27]

   On 28 November 2019, the fourth day of the trial, the Crown indicated that it would call Dr Coghlan to give evidence on the uses of sodium borohydride. Although the appellant’s trial counsel did not cavil with the ruling made by N L Williams DCJ (presumably because he felt constrained by s 130A of the Criminal Procedure Act 1986 (NSW)), referred to above, he submitted that there was no evidence that the appellant had tried to purchase the substance. The trial judge responded by saying that there was already a ruling on its admissibility; it was “just one of the circumstances” and it was “part of the jigsaw”.

10. [28]

    Later that day, the following exchange ensued between the trial judge and the appellant’s trial counsel:

11. [29]

    In addition to the evidence referred to above which was attached to the tendency notice, the Crown adduced oral evidence from Dr Coghlan who explained that sodium borohydride is a reducing agent used in the manufacture of various chemical compounds. It induces a chemical reaction which results in a reduction of organic compounds. Thus, if one starts with 3,4-methylenedioxyphenyl-2-proponanone (MDP2P) and adds methylamine, it forms an intermediate compound to which hydrogen needs to be added to produce MDMA. In this sense, MDP2P and methylamine (the precursors) can accurately be described as “precursors”. By contrast, sodium borohydride is no more than a reducing agent which has the effect of adding a hydrogen atom to the compound to produce MDMA.

12. [30]

    Dr Coghlan was asked how much MDMA could be made from 10kg of sodium borohydride. The appellant’s trial counsel objected to the question in the following exchange:

13. [31]

    After the objection had been overruled, Dr Coghlan gave evidence that 10kg of sodium borohydride would be an appropriate quantity for 96kg of MDP2P and 66kg of methylamine hydrochloride, which would produce 75kg of MDMA. To manufacture MDMA in this way would require not only the availability of precursors (MDP2P and methylamine) and the reducing agent (sodium borohydride) but also considerable chemical knowledge and expertise. Dr Coghlan said that, although it is possible to produce MDMA by this method, the most common technique is to use aluminium and mercuric chloride to convert the compound made from the precursors into MDMA.

14. [32]

    In cross-examination, Dr Coghlan agreed that sodium borohydride could not be used to improve the purity of MDMA, which is already about 75% pure. Sodium borohydride can be used in the production of wood pulp and the conversion of wood pulp to paper and produces less toxins than bleach. It also has other legitimate industry uses.

15. [33]

    There was no evidence that the appellant or the co-accused had access to the precursors.

16. [34]

    The Crown also tendered a statement which established that no inquiries had been made of the business which was the subject of text messages and internet searches to obtain a quotation for, or to purchase, 10kg of sodium borohydride at any relevant time by either the appellant or the co-accused, or anyone associated with them.

17. [35]

    At the conclusion of Dr Coghlan’s evidence (on 2 December 2019), the following exchange occurred between the trial judge and the Crown:

18. [36]

    The question of what direction ought be given was revisited in the course of closing addresses (see below). The Crown did not provide a draft direction and the trial judge did not give a direction as to the use to which the jury could put the evidence relating to sodium borohydride.

19. [37]

    On the third day of the trial, 27 November 2019, the prosecutor adduced evidence from the Officer-in-Charge of the investigation, Detective Senior Constable Lampard, and played CCTV footage, including that which depicted the movements of the appellant and the co-accused in the hotel. After the CCTV footage had been played, the prosecutor indicated to the Court, in the absence of the jury, that he proposed to submit that the jury ought infer from the CCTV footage (which depicted the appellant leaving room 1290 and returning to it at some time after 11pm on 15 September 2017) and the time at which the listening device ceased to operate, that the appellant had appreciated that the consignment had been discovered by the authorities and had disabled the listening device to thwart the detection of his criminal conduct. It appears that this was the first time this thought had occurred to the prosecutor. The transcript reveals that the Crown did not open on this basis. Indeed, the Crown had earlier informed the Court that it did not propose to play the audio tape produced from the listening device.

20. [38]

    Defence counsel applied for a Basha inquiry (R v Basha (1989) 39 A Crim R 337) as no statement had been served relating to the time at which the listening device had cut out or its operation. This was conducted after the jury was sent away on the afternoon of 27 November 2019.

21. [39]

    In the course of the Basha inquiry, Detective Lampard said that he had noticed the appellant putting a white object behind his back in the elevator, which he had been told was similar to the substance which contained the listening device. He also gave evidence that the listening device had ceased to operate at 11.17pm.

22. [40]

    The Basha inquiry continued on 2 December 2019 (the sixth day of the trial), at which time Senior Sergeant Elkazzi (who had not previously made a statement) was called. He gave evidence that he had prepared a package which contained the listening device which he recalled had been placed into a substance which was then placed into the consignment for delivery. He gave evidence of the approximate dimensions of the packaging. The CCTV footage was replayed. Officer Elkazzi could not confirm whether what he saw the appellant carrying in the video corresponded with the material into which he had placed the listening device.

23. [41]

    Officer Elkazzi’s evidence comprised an opinion that what he saw the appellant carrying was consistent in colour and possibly size with the substance in which he had secreted the listening device.

24. [42]

    After Officer Elkazzi was excused, the trial judge expressed concerns about the strength of the evidence and raised s 137 of the Evidence Act. The prosecutor explained the connection between the disappearance of the white object which had been in the appellant’s hand and the time at which the listening device ceased to operate. The trial judge responded:

25. [43]

    His Honour continued to explore with counsel the relevance and weight of the evidence in the following statements from the bench (which are relied upon in support of ground 2(a)):

26. [44]

    His Honour then addressed further remarks to the co-accused’s counsel:

27. [45]

    The following exchange then ensued between the prosecutor, the trial judge and the appellant’s trial counsel:

28. [46]

    The co-accused’s trial counsel supported the admission of the evidence as it implicated the appellant but not the co-accused, except by association. The prosecutor confirmed that the only evidence he would seek to lead from Detective Lampard in the trial was to ask whether there was a listening device and what time it stopped. The appellant’s trial counsel did not object to the evidence. In this Court, the appellant relied on his trial counsel’s failure to object as supporting ground 5. The evidence relating to the cessation of the listening device and the playing of the CCTV was relied on in support of ground 2.

29. [47]

    The prosecutor led evidence from Detective Lampard to the effect that he had been told that a listening device was secreted inside a substance and that the listening device had ceased to operate between 11.17pm and 11.20pm, and had not been recovered. An excerpt of what had been recorded by the listening device was played to the jury. Detective Lampard confirmed that the recording started when the porter delivered the boxes to room 1290. CCTV stills were tendered which showed the appellant walking from room 1290 towards the lift lobby on Level 12, pressing the button and entering the lift. Detective Lampard confirmed that the listening device had been reactivated at 11pm and ceased transmission at about 11.20pm.

30. [48]

    Detective Lampard also gave evidence that the tracking device which had been placed in the Toyota ceased operation at about 10.51pm, apparently due to its batteries running out after approximately 35 hours of operation. Both the listening device and the tracking device had been operating since they were placed in the controlled delivery consignment at 12.30pm the day before (14 September 2017), when the consignment had been left on Mr Xu’s verandah.

31. [49]

    Officer Elkazzi did not give evidence at the trial.

32. [50]

    There was no exploration in the evidence or in addresses about the relative correspondence between the times at which the tracking device and the listening device ceased to operate or the hypothesis that both ceased to operate as a result of the batteries running out, as opposed to any intervention to disable the listening device. It was not suggested that the tracking device had been interfered with as it was later recovered intact.

33. [51]

    As referred to above, the Room 1290 documents were seized in the course of the execution of a search warrant.

34. [52]

    On 28 November 2019 (the fourth day of the trial), in the absence of the jury, the prosecutor informed the Court that he had the Room 1290 documents but that they had not yet been collated or copied. The trial judge suggested that, as they had not yet been collated, the Room 1290 documents could be tendered in re-examination of Detective Duncan, a Crown witness. The prosecutor informed his Honour that the documents ought be tendered in chief in case either defence counsel wanted to ask questions about them.

35. [53]

    The appellant’s trial counsel described the Room 1290 documents as follows:

36. [54]

    The Crown indicated that it was happy to tender the documents, to which the appellant’s trial counsel said, “I don’t mind that.” The appellant’s trial counsel said further:

37. [55]

    Although the appellant’s trial counsel informed the Court that he would “indicate precisely what [he was] interested in” and “tell everyone so that we’ll all know”, he did not identify the documents on which he wanted to cross-examine. The Crown simply tendered all the Room 1290 documents through Detective Duncan.

38. [56]

    The Room 1290 documents fell into two categories:

    1. (1)

       documents concerning the establishment of Suria Global (L) Limited (Suria), an investment bank in Labuan, Malaysia (the Suria documents); and

    2. (2)

       documents concerning a forestry investment scheme in Fiji run by the Melino Foundation (the Melino documents).

39. [57]

    The Suria documents contained a letter dated 1 August 2017 on the letterhead of David Legal (the appellant’s solicitor) which was signed by Fred David, addressed to Suria and marked to the attention of Alex Glenn. The letter said in part:

40. [58]

    The Suria documents also included a document on Suria’s letterhead dated 9 July 2017, entitled “Proposed Banking Investment”, which said in part:

41. [59]

    The Melino documents included a document entitled “Collaboration Agreement in respect of Timber Extraction and Production of Wood Products in Fiji” between Delma Emirates Group, the Melino Foundation and Suria. Clause 2 of the agreement provided in part

42. [60]

    In the course of cross-examining Detective Duncan, the appellant’s trial counsel asked her to look at one of the documents in the Room 1290 documents and drew her attention to the word “pulpwood”, which she agreed appeared in the document. There was no further reference to the Room 1290 documents in the cross-examination by the appellant’s trial counsel.

43. [61]

    The Crown called Detective Senior Constable Lloyd, who gave evidence that, on 26 September 2017, Mr Xu was interviewed by police. Mr Xu provided his phone to police. Information extracted from the phone included WeChat messages which were translated into English. A 64-page print out of these messages was produced and served by the Crown (the WeChat messages). The Crown intended to call Mr Xu in its case. However, the appellant’s trial counsel indicated that, depending on the evidence given by Detective Lloyd, he would not require the Crown to call Mr Xu.

44. [62]

    Defence counsel indicated that they did not require that Mr Xu be called but sought that the Crown tender the WeChat messages. It was common ground that the WeChat messages were not admissible, given that Mr Xu was not to be called and none of the messages referred to either the appellant or the co-accused. The Crown acceded to the request of the appellant’s and co-accused’s trial counsel that it tender the WeChat messages, which were marked Exhibit 35. The admission of the WeChat messages is the subject of ground 3 and was also relied upon in support of ground 5.

45. [63]

    The WeChat messages contained exchanges between Mr Xu and others concerning various deliveries, including to Melbourne. The WeChat messages which concerned the consignment which was the subject of the controlled delivery were as follows:

46. [64]

    When his Honour enquired in the course of the trial as to the relevance of the WeChat messages, the Crown informed his Honour that his “understanding of the relevance to their cases is that this was [Mr] Xu’s importation, it wasn’t theirs”. Neither of the two defence counsel ventured any other explanation.

47. [65]

    The appellant’s case at trial was that, although he had picked up the consignment from Mr Xu’s address at Bradbury, he had done so at the request of the co-accused. His case was, in substance, that he was the co-accused’s innocent dupe.

48. [66]

    The appellant called two witnesses in his case: Jim Sukkar and the appellant’s solicitor, Fred David.

49. [67]

    Mr Sukkar gave evidence in chief that in the course of a meeting he attended with the appellant and the co-accused in mid-September 2017, concerning property development, the co-accused had asked the appellant, and the appellant had agreed, to pick up some candles.

50. [68]

    Mr David gave evidence that he contacted Leonardo Lopez and, after speaking with him, he prepared a draft affidavit which recounted a meeting attended by the appellant, the co-accused and Mr Lopez during which the co-accused asked the appellant to pick up scented candles for him.

51. [69]

    The Crown cross-examined Mr David by reference to the Room 1290 documents. Mr David confirmed that he was acting for Suria on the instructions of Mr Glenn and that the purpose of the letter on his letterhead was to have Mr Glenn deposit funds into his firm’s trust account. Mr David agreed that if Suria advanced $5m, it would be entitled to receive $10m after six months, which equated to an interest rate of 200% per annum.

52. [70]

    Mr David accepted that the source of the $5m arose from the letter dated 9 July 2017, which proposed a “unique investment opportunity” to facilitate a banking licence by the provision of $5m.

53. [71]

    The Crown also cross-examined Mr David about the Melino documents. It was put to Mr David that the Australian representative office address on the left-hand side of the documents was not a real address. Mr David stated that he did not know and as the document was not his, he could not verify it. The Crown put to Mr David that it did not look like an authentic document. The appellant’s trial counsel objected and Mr David responded that he could not comment because it was not his document. This was the first occasion on which the appellant’s trial counsel had objected to the Crown’s cross-examination of Mr David, although he subsequently made an application that the jury be discharged on the basis of the cross-examination (see below).

54. [72]

    At the end of Mr David’s evidence, on 4 December 2019, the appellant’s trial counsel closed the appellant’s case.

55. [73]

    The co-accused’s case was, in substance, a mirror image of the appellant’s in that he alleged that he was the appellant’s innocent dupe. It is not necessary to refer to the detail of the co-accused’s case beyond the following. Mr Lopez was called as a witness by the co-accused. He said that he knew the appellant and the co-accused. He gave evidence that the appellant phoned him and asked him to swear an affidavit which contained “some fabricated stuff”. The draft affidavit was shown to him and he said that the part of it which said that the co-accused asked the appellant to pick up some candles was not true.

56. [74]

    The appellant’s trial counsel cross-examined Mr Lopez, including about the Suria documents. The cross-examination appeared to be improvised and exploratory rather than planned, as can be inferred from the following extract:

57. [75]

    The Crown cross-examined Mr Lopez about the project in Fiji. Mr Lopez confirmed that the project had nothing to do with the bleaching of timber to create paper (this being an alleged legitimate purpose for sodium borohydride).

58. [76]

    The co-accused gave evidence in his case denying any knowledge of the MDMA or Mr Xu. He said that his only involvement was to book a room at the hotel at the appellant’s request and to agree to take the appellant’s suitcase back to his home in accordance with the appellant’s request.

59. [77]

    On the morning of the ninth day (while the co-accused was still in his case), the appellant’s trial counsel asked for the jury to be discharged on the basis of the Crown’s cross-examination of Mr David (although he had not objected to it until its conclusion). He submitted that the jury would understand the cross-examination to be suggesting that:

60. [78]

    The co-accused’s counsel (understandably) did not join in the application for a discharge. The Crown opposed the application for the discharge and reminded the trial judge that the Room 1290 documents were tendered by the Crown because of a request by the appellant’s trial counsel and the WeChat messages were tendered by the Crown on the request of both defence counsel.

61. [79]

    In response, the appellant’s trial counsel said:

62. [80]

    The trial judge refused the application for discharge.

63. [81]

    In its closing address to the jury, the Crown submitted, by reference to the evidence attached to the amended tendency notice:

64. [82]

    The Crown’s closing address relied heavily on the alleged destruction of the listening device evidence and included the following references:

65. [83]

    Thus, the Crown submitted that the following narrative was established by the evidence. The appellant and the co-accused went up to room 1290 at 11.02pm. The porter arrived with the boxes at 11.03pm. The listening device recorded the porter being thanked, the television being turned on and rustling sounds consistent with the boxes being unpacked. The co-accused left the room at 11.07pm and went to the Sovereign Room (within the casino) where he gambled from 11.13pm until 1.52am. The appellant left room 1290 at 11.15pm and entered the lift lobby. He remained out of sight until 11.18pm when he returned to room 1290 at 11.18pm.

66. [84]

    The Crown submitted to the jury that the sounds recorded by the listening device included someone, which the Crown contended was the appellant, saying the word “Shit” as he appreciated that there was a listening device in the substance in which the consignment was packed and that, accordingly, the consignment had been intercepted by the authorities. This realisation led the appellant to decide to destroy the listening device and that its destruction accounted for its becoming inoperative from about 11.20pm. The Crown submitted that the evidence was consistent with the appellant going into the lift, sticking the substance which contained the listening device into his jacket and then disposing of it before returning. The Crown further submitted that the calls made by the appellant to the co-accused at 11:34:12pm and 11:34:22pm were consistent with the appellant being concerned about the device and wanting to discuss it with the co-accused. The Crown contended that, ultimately, when the appellant and the co-accused met at 1.54am, they discussed the device and decided to move to different accommodation. The Crown submitted that the CCTV footage of this meeting depicted the co-accused looking surprised at what the appellant had communicated to him.

67. [85]

    The Crown in this Court summarised the relevant inferences which the Crown contended at trial arose from the listening device evidence and the CCTV evidence as follows:

68. [86]

    In closing address, the Crown submitted, by reference to the WeChat messages, that the appellant was in the business of accepting deliveries. It highlighted those of the WeChat messages which concerned the consignment the subject of the charge (which are extracted above) and placed particular reliance on the messages on 15 September 2017 to the effect that “the customer” would collect the package at 7pm, which was the time at which the appellant and Mr Pattison actually collected the package.

69. [87]

    In closing, the only reference the appellant’s trial counsel made to the WeChat messages was as follows:

70. [88]

    The appellant’s trial counsel did not refer to the Room 1290 documents in his final address. He referred to Mr David’s evidence in chief relating to the draft affidavit from Mr Lopez but not to the Crown’s cross-examination on the Room 1290 documents.

71. [89]

    On 10 December 2019, before the co-accused’s counsel’s closing address had concluded, the Crown reminded the trial judge (in the absence of the jury) of the discussion regarding a tendency direction. His Honour indicated that he was not planning to give a tendency direction in light of the Crown’s closing address. In response, the Crown submitted:

72. [90]

    Defence counsel did not press for the direction. The co-accused’s counsel commented that the direction would be “[j]ust another thing to confuse the jury about”. The appellant’s trial counsel did not press for a direction although he said (of the evidence):

73. [91]

    His Honour responded that he would wait for the Crown’s draft direction but that he did not presently intend to give a tendency direction because it was a “circumstantial case”. The transcript does not reveal that any such draft direction was provided. Nor was any further discussion recorded relating to the proposed direction.

74. [92]

    On 11 December 2019, the co-accused’s counsel raised the question whether the trial judge would give a direction about the use of lies as evincing a consciousness of guilt. This was relevant to the co-accused as he had given evidence at the trial and prior inconsistent statements which would be relevant to his credibility, even if they were not relied upon as evincing a consciousness of guilt. It was common ground that no such direction was required. There was no discussion about whether such a direction would be required to direct the jury as to how the evidence relating to the alleged disappearance of the listening device ought be treated. The appellant’s trial counsel’s failure to seek such a direction is also relied on in support of ground 5.

75. [93]

    The trial judge referred to sodium borohydride when summarising the defence case as follows:

76. [94]

    It was common ground that the trial judge did not give a tendency direction. It was also common ground that the trial judge did not give a direction concerning consciousness of guilt by conduct.

77. [95]

    The trial judge made no reference either to Mr Xu or to the WeChat messages in the summing up. Nor did his Honour refer to the Room 1290 documents.

Ground 1: admission and use of evidence admitted as tendency evidence

1. [96]

   In support of this ground, Mr Walker submitted that the alleged tendency evidence was inadmissible under s 97(1)(b) of the Evidence Act and that, accordingly, it ought to have been excluded. He argued that its admission was so prejudicial to the appellant that it resulted in his trial being unfair.

2. [97]

   Mr Walker contended that there was a risk that the jury used the evidence referred to in the tendency notice to reason as follows:

   1. (1)

      the sodium borohydride, which was the subject of enquiry, would be used by the appellant to manufacture MDMA some time in the future;

   2. (2)

      the 10kg of sodium borohydride would be used by the appellant to manufacture up to 75kg of the base form of MDMA;

   3. (3)

      the appellant was a member of a criminal syndicate which was involved in drug importation and manufacture; and

   4. (4)

      the appellant was a person of bad character.

3. [98]

   The Crown argued that the so-called tendency evidence was not tendency evidence at all but rather a species of non-tendency circumstantial evidence and that, accordingly, s 97 had no application. It submitted that the evidence was adduced to show that the appellant had a particular state of mind (being an interest in acquiring MDMA) rather than that he had a tendency to have a particular state of mind.

4. [99]

   The Crown relied on this Court’s decision in Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 in which the appellant challenged the trial judge’s finding that particular evidence of his state of mind (belief in violent Jihad) did not constitute “tendency evidence”. This Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) said:

5. [100]

   The Crown contended that, since the Crown did not rely on the evidence as “tendency” evidence, no tendency direction was required and there was no error in either admitting the evidence or not giving a tendency direction.

6. [101]

   However, in oral argument, the Crown accepted that there was a risk that the jury engaged in tendency reasoning along the lines outlined above.

7. [102]

   Whether evidence is tendency evidence depends on whether it falls within the prohibition in s 97(1) of the Evidence Act which provides:

8. [103]

   The evidence sought to be adduced by the Crown under the rubric of the amended tendency notice was evidence of the appellant’s conduct (that he had shown an interest in purchasing sodium borohydride) to prove that he had a particular state of mind (namely, that he knew or believed that MDMA was contained within the consignment). In other words, the inference sought to be drawn was that because the appellant had shown an interest in sodium borohydride and purchasing it, it was more likely that he knew or believed that the candles contained MDMA. Thus, s 97(1) applied. The distinction drawn in Elomar v R arose in the context of what one might consider to be a belief system and is not relevant to the present case. Once it is accepted (as it was by the Crown at trial and in this Court) that the evidence was apt to be used for a tendency purpose, s 97(1) applied to prohibit its admission unless it had significant probative value.

9. [104]

   There can only ever be “one correct answer” to the question whether tendency evidence is of significant probative value: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). Accordingly, it is for this Court to determine the question for itself.

10. [105]

    The majority (Kiefel CJ, Bell, Keane and Edelman JJ) in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 said at [41] that the assessment of significant probative value requires consideration of two matters: first, the extent to which the evidence supports the tendency; and, secondly, the extent to which the tendency makes more likely the facts making up the charged offence. If the evidence had probative value at all, it can hardly be described as significant, given the tenuous connection between a belief that particular candles contain MDMA for the purposes of an attempt possession charge and an enquiry concerning a reducing agent which can be used (although is not generally used) in the manufacture of MDMA, when there was no suggestion (much less a charge) that the appellant was, or intended to, engage in the manufacture of MDMA. Therefore, the evidence lacked significant probative value and was, accordingly, inadmissible.

11. [106]

    It follows that N L Williams DCJ was in error to rule otherwise. For these reasons, I am satisfied that ground 1(a) has been made out.

12. [107]

    I accept the Crown’s contention that the appellant requires leave under rule 4.15 to argue this ground as the appellant’s trial counsel did not ultimately press for such a direction. Although the appellant’s trial counsel intimated that the evidence was “unfair” he did not raise the need for the direction further, either before or during the summing up.

13. [108]

    I do not consider that leave ought be granted to argue ground 1(b) since ground 1(a) has been made out. The error was in admitting the evidence contrary to the prohibition in s 97(1) of the Evidence Act. In these circumstances, the appropriate remedial measures would include giving a direction to the jury to disregard the evidence entirely or discharging the jury. It is not necessary, in the circumstances of the present case, to address the circumstances in which it is open to a trial judge to overrule a pre-trial ruling “in the interests of justice” within the meaning of s 130A of the Criminal Procedure Act.

14. [109]

    As the appellant relies on several grounds, it is appropriate to consider the application of the proviso after all grounds have been addressed.

Ground 2: use of evidence as to the time at which the listening device ceased to operate

1. [110]

   Mr Walker contended that the trial judge’s exchanges, both with the Crown and with the co-accused’s trial counsel, amounted to unwarranted and inappropriate judicial intervention to the detriment of the appellant.

2. [111]

   The Crown contended that, in effect, all that the trial judge was doing was reiterating what the Crown itself had outlined on the third day of the trial when the prosecutor first appreciated the forensic use that could be made of the time at which the listening device ceased to operate.

3. [112]

   I consider that this ground can be addressed relatively briefly because the fundamental error arises under ground 2(b) (considered below). In my view, when the trial judge was putting to the Crown what the Crown case had become, his Honour was doing no more than reiterating what the prosecutor had outlined on 27 November 2019. However, when his Honour purported to instruct trial counsel for the co-accused as to how this material could be used by him (in the interests of the co-accused and adverse to the interests of the appellant), he engaged in impermissible intervention. A trial judge has an obligation to intervene to ensure that each accused has a fair trial but ought not otherwise intervene in the conduct of the trial, which is generally a matter for the parties.

4. [113]

   Although the trial judge’s intervention was regrettable, I do not consider that the ground has been made out. The “instruction” his Honour was giving to counsel for the co-accused must have been obvious to the counsel from the way in which the Crown sought to use the evidence and therefore had no material effect. Further, as it was done in the absence of the jury, it did not have any effect on the jury. As the jury, and not the trial judge, was the tribunal of fact, no reasonable apprehension of bias affecting the decision-maker could arise (nor was any suggested in this Court or in the Court below).

5. [114]

   Mr Walker submitted that the evidence was insufficiently strong to support an inference that the appellant had destroyed the listening device and ought to have been rejected under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the appellant. This argument was also relied on in support of ground 5 as trial counsel for the appellant did not ultimately object to the evidence. Further, Mr Walker contended that, had it been admitted, Officer Elkazzi ought to have been called because of the strong reservations he expressed in the Basha inquiry about what could be deduced from the CCTV footage. He further submitted that the evidence called for a strong warning (in accordance with Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63) about the degree of satisfaction which the jury must have of the particular integers which led to the inference for which the Crown contended, and relied on the absence of any such warning or direction.

6. [115]

   The Crown contended that the evidence was not consciousness of guilt evidence at all because it was not post-offence conduct since it occurred during the commission of the offence. Thus, the Crown submitted that no warning was required and therefore ground 2(b) had not been made out. The Crown also relied on the circumstance that there was no reason to infer that defence counsel had required the Crown to call Officer Elkazzi in the trial, having heard his evidence during the Basha inquiry.

7. [116]

   I reject the Crown’s submission that the evidence could not amount to a consciousness of guilt because it concerned conduct which occurred while the offence was being committed. The alleged attempt to possess MDMA was completed before the alleged disablement of the listening device by the appellant. Further, although, typically, evidence which is relied on as an implied admission by reason of a consciousness of guilt of the offence charged comprises post-offence lies, it does not follow that the concern of the law for the use to which such evidence can be put depends on the fortuity of its timing. For example, destruction of evidence or of the means of detection (such as destroying CCTV cameras) can amount to consciousness of guilt evidence even when it occurs during the commission of an offence.

8. [117]

   Further, it is apparent from the passages extracted from the Crown’s closing address that the Crown relied on the evidence for the purpose of establishing a consciousness of guilt. In substance, the Crown submitted to the jury that the appellant found the listening device, realised that the authorities had intercepted the boxes and got rid of the devices because that is what the jury would “infer that somebody in his position would do if the Crown case is right”. Although the Crown did not refer in terms to the appellant’s conduct as evincing a consciousness of guilt, that was the effect of its submission. Thus, the present case could not be said to fall within the category of cases referred to in Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [16] (Gleeson CJ, Gaudron, Gummow and Callinan JJ) where the prosecutor does not rely on consciousness of guilt but there is nonetheless a risk of misunderstanding since the Crown, in substance, did rely on consciousness of guilt, although it did not put it in such terms.

9. [118]

   The decision of this Court in DJF v R [2011] NSWCCA 6; (2011) 205 A Crim R 412 (DJF) is instructive. In that case, the appellant had been convicted of sexual offences against a child. The Crown called the complainant’s mother, who gave evidence that on one occasion when her children stayed overnight at the appellant’s home, she attended the house the following day and found the appellant’s behaviour to be “odd”. She said that, without explanation, he showed her around different rooms in the house and appeared to be attempting to defer contact between the complainant and her mother. The complainant’s mother also said that when she ultimately saw the complainant, the complainant was very quiet, did not hug and cuddle her mother as she would have expected, and said that she had not eaten any breakfast.

10. [119]

    In closing address, the Crown said in DJF of present relevance:

11. [120]

    Although the Crown in DJF invited the jury to interpret the appellant’s post-offence conduct as evincing a consciousness of guilt, it did not explain the reasoning process involved or seek directions to the jury (and none was given). The failure on the part of the Crown or the appellant’s trial counsel to seek a direction from the trial judge and the failure of the trial judge to give a direction as to the process of reasoning and what was required before they could infer a consciousness of guilt led to leave being granted under the predecessor to rule 4.15 and the appeal against conviction being upheld.

12. [121]

    The present case is similar to DJF, in that, in the present case, the Crown exhorted the jury to use the evidence of the alleged disabling of the listening device and the CCTV footage as evincing the appellant’s consciousness of guilt. Indeed, for the reasons given above, I consider that its only relevance was to demonstrate a consciousness of guilt. It is telling that the prosecutor did not intend to lead the evidence until he appreciated, on the third day of the trial, that the evidence was capable of leading to the inference that the appellant had destroyed the listening device to avoid detection or destroy evidence. Thus, it was, in my view, necessary, the evidence having been admitted, for the jury to be directed as to how the evidence could be used.

13. [122]

    Before such evidence could be used to implicate the appellant, it was necessary for the jury to be satisfied of the following:

    1. (1)

       the appellant believed that the boxes contained candles which contained MDMA;

    2. (2)

       the substance in the package which contained the candles contained a listening device;

    3. (3)

       the appellant was aware of (2);

    4. (4)

       the appellant located the listening device in the substance and removed it from room 1290;

    5. (5)

       the appellant intended to destroy the listening device and did in fact destroy or otherwise disable it;

    6. (6)

       the appellant destroyed or disabled the listening device because he knew that it would implicate him in the commission of the crime with which he stood to be tried and wanted to thwart detection of his guilt; and

    7. (7)

       the listening device ceased to operate because of the intentional act of the appellant and not for any other reason (including that its batteries had run out).

14. [123]

    A direction to the effect set out above, in accordance with Edwards v The Queen at 210-211 (Deane, Dawson and Gaudron JJ), was particularly necessary in the present case, given the flimsiness of the evidence (that the object the appellant was seen to carry was white; that a listening device had been inserted into a substance which was white; that the listening device ceased transmission at about the time the appellant was seen to leave room 1290 and enter the lift with a white object), together with the strength of the competing hypothesis (that the listening device had ceased to operate because its batteries had run out at approximately the same time as the batteries installed in the tracking device, which had been in operation for a similar period, had run out).

15. [124]

    For these reasons, I am satisfied that ground 2(b) has been made out.

Grounds 3 and 4: the admission of evidence at the request of the appellant’s counsel

1. [125]

   Grounds 3 and 4 are related in that each concerns evidence tendered at the trial by the Crown at the request of the appellant’s counsel. Mr Walker submitted in respect of the WeChat messages and the Room 1290 documents that there was no discernible forensic advantage to the appellant in the tender of the documents and that there was considerable prejudice occasioned to him by their admission.

2. [126]

   As set out above, the only reference made by the appellant’s trial counsel in his closing address to the WeChat messages was to the fact that the delivery of the consignment to Mr Xu’s address in Bradbury took place at about 12.30pm on 14 September 2017. This fact was established in any event by the agreed facts (summarised above), which were tendered on 26 November 2019 (the second day of the trial).

3. [127]

   While the Crown sought to argue that there was a forensic benefit to the appellant in the tender of the WeChat messages, I am unable to discern one. It was hardly to the point that Mr Xu might have been the importer since he was not charged and his involvement did not exculpate the appellant or the co-accused. The WeChat messages were particularly prejudicial to the appellant because Mr Xu referred to the fact that “the customer” (for the relevant consignment) was due to arrive at 7pm on 15 September 2017 and it was an agreed fact that the appellant and Mr Pattison arrived at 7pm on 15 September 2017 to collect the “freight” before they went to collect the co-accused. Although the word “customer” was used variously in the WeChat messages to refer to persons who could not have been the appellant, the word carried particular force since it identified the appellant as the customer by reference to the time of collection and therefore tended to implicate him in knowledge of the delivery and, by inference, its contents.

4. [128]

   Whatever the thought processes behind the appellant’s trial counsel insisting on their tender (as to which there is no evidence), there is no objective reason why they could be thought to be favourable to the appellant. In so far as its forensic purpose can be adjudged by the appellant’s trial counsel’s closing address, none is apparent. In any event, all that was said about it was the subject of an agreed fact. The WeChat messages would not have been admissible against the appellant and were only admitted because his trial counsel requested that they be tendered. They were prejudicial to him for the reasons given above.

5. [129]

   I regard the insistence on the part of the appellant’s trial counsel that the WeChat messages be tendered as amounting to evidence of his incompetence in the conduct of the trial and therefore supportive of ground 5. I do not consider that the admission of the WeChat messages was sufficient, of itself, to render the appellant’s trial unfair. Accordingly, I am not satisfied that ground 3 has been made out. However, the admission of the WeChat messages is a matter that can be taken into account when addressing ground 5 and the proviso.

6. [130]

   In so far as it is possible to discern the forensic advantage to the appellant from the tender of the Room 1290 documents, it is confined to a reference to a timber project, which thereby provides some basis for a legitimate reason to explain the appellant’s apparent interest in purchasing sodium borohydride. This forensic objective could have been achieved by asking Detective Duncan whether there was a reference in the documents to a timber project, as occurred.

7. [131]

   The Crown in this Court was unable to identify any other forensic purpose for the tender of the documents, which were highly prejudicial to the appellant for the reasons acknowledged by the appellant’s trial counsel in his submissions in support of the application for discharge of the jury following the Crown’s cross-examination of Mr David. Nor was the Crown able to articulate any basis on which the Crown’s cross-examination of Mr David was other than improper since it raised prejudicial and irrelevant material. Indeed, the Crown’s submission in this Court was, in effect, that the admission of the Room 1290 documents did no harm to the appellant because they had nothing to do with the issues in the trial and that the jury, acting rationally, would have appreciated their irrelevance. The Crown submitted in writing that it was “unlikely [that] the jury regarded any of the (largely irrelevant) transactional documents as [being] of any significance”.

8. [132]

   Subject to one exception, the Room 1290 documents were inadmissible since they were irrelevant to the issues in the trial. The sole exception is that, in so far as any of the documents could support a basis for an inference that the appellant might have a legitimate reason for enquiring about sodium borohydride, they would be relevant. However, as referred to above, the forensic objective could have been better achieved without the tender of the documents.

9. [133]

   The request by the appellant’s trial counsel that the Room 1290 documents be tendered by the Crown amounted to incompetence of a high order going well beyond an error of judgment or negligence: see R v Birks (1990) 19 NSWLR 677 at 684D-E (Gleeson CJ, McInerney J agreeing). It put before the jury grossly prejudicial material which was irrelevant to the issues in the trial and could influence the jury to decide the case against the appellant. As the test is objective, there is no need to come to any conclusion as to why this occurred. It is sufficient to observe that it is hard to believe that any counsel who had read the documents would not have appreciated that they ought not be tendered in evidence because they were not only irrelevant, but they were also highly prejudicial. I reject the Crown’s submission that it ought be assumed that the jury would have appreciated their irrelevance and not taken them into account. This submission fails to take account of the assumption that juries abide by the directions of the trial judge (Demirok v The Queen (1977) 137 CLR 20 at 22 (Barwick CJ); [1977] HCA 21). The jury was directed to decide the case on the whole of the evidence and was, accordingly, entitled to assume that the Room 1290 documents, which had been tendered and about which Mr David had been cross-examined, were relevant to its deliberations.

10. [134]

    Mr Walker also submitted the Crown’s cross-examination of Mr David was improper as it did not elicit any relevant evidence and was grossly prejudicial to the appellant. The Crown in this Court was unable to articulate any justification for the cross-examination of Mr David. The failure by the appellant’s trial counsel to object to the cross-examination is also relevant to ground 5.

11. [135]

    For the reasons given above, I am satisfied that ground 4 has been made out.

Ground 5: alleged incompetence of counsel

1. [136]

   The relevant principles were summarised by Gleeson CJ in R v Birks at 685D-F as follows:

2. [137]

   These principles have been approved by the High Court in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [25]-[32] (Gaudron J) and [77] and [79] (McHugh J); and Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [2] and [18] (Gleeson CJ) and [158] (Callinan and Heydon JJ).

3. [138]

   The test is objective and is to be discerned, in the absence of evidence as to the subjective intention of counsel, objectively from the record of the trial: Nudd v The Queen at [9] (Gleeson CJ).

4. [139]

   For the reasons given above, I consider that the appellant’s counsel caused or contributed to the undue prejudice occasioned to the appellant in the following respects: his failure to press an objection to the evidence about the listening device and the use that could be made of it; his failure to require a consciousness of guilt direction regarding the listening device evidence; his request that the WeChat messages and the Room 1290 documents be tendered by the Crown; and his failure to object to the Crown’s cross-examination of Mr David before it had been concluded. No legitimate forensic purpose can be discerned from the record of the trial for any of these forensic decisions (assuming that they represented positive decisions rather than inactivity resulting from a failure to appreciate the obvious prejudice to the appellant).

5. [140]

   For these reasons, I am satisfied that ground 5 has been made out in respect of grounds 2, 3 and 4.

Rule 4.15

1. [141]

   A party will generally be bound by the way in which his or her counsel has conducted the trial. Leave under rule 4.15 is required before this Court will entertain a ground concerning a direction (or omission to direct) or a decision as to the admission or rejection of evidence to which no objection was taken at trial. It is apparent from the reasons given above that the appellant’s trial counsel failed to seek the directions which Mr Walker contended were required; failed to object to evidence which was inadmissible; and urged the Crown to tender evidence in the trial which was grossly prejudicial to the appellant. As I am satisfied that ground 5 has been made out in respect of grounds 2, 3 and 4, I am persuaded that leave under rule 4.15 ought be granted for each of those grounds. Leave under rule 4.15 is not required for ground 1(a).

The proviso

1. [142]

   As referred to above, the Crown contended that its case against the appellant was very strong and that, accordingly, the proviso applied.

2. [143]

   In Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, the High Court reaffirmed the correctness of Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81: namely, that it is for the appellate court to make its own assessment of the evidence and determine whether the accused was proved to be guilty beyond reasonable doubt of the offence on which the jury returned its verdict of guilty: Weiss v The Queen at [40] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). In the present case, no weight can be attributed to the verdict of guilty since it was contaminated by so much prejudicial evidence which ought not to have been admitted and in respect of which the jury was given no guidance by way of directions.

3. [144]

   However, it has been accepted that “some errors are so fundamental, or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strength of the prosecution case”: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [23] (Gleeson CJ and Kiefel J); see also [54] (Gummow and Hayne JJ).

4. [145]

   I regard the errors which are the subject of ground 1, of itself, to fall into this category. Further, the cumulative effect of the other errors which I have found to have been made out has deprived the appellant of a fair trial in substantial respects. In these circumstances, it is neither necessary nor appropriate to adjudge the strength of the Crown case in any substantive way. It is sufficient to observe that the Crown case against the appellant and the co-accused was relatively similar. The differences between them that would have been apparent to the jury in the trial were largely the result of the errors referred to above which unduly prejudiced the appellant but not the co-accused, whom the jury found not guilty of the offence charged.

5. [146]

   In these circumstances, the appellant is entitled to have his conviction quashed and an order for a new trial.

6. [147]

   For these reasons, I joined in the following orders made by the Court made on 24 May 2021:

   1. (1)

      Grant leave to appeal against conviction.

   2. (2)

      Allow the appeal against conviction.

   3. (3)

      Order that there be a new trial.

   4. (4)

      Note that, in these circumstances, it is not necessary to determine the application for leave to appeal against sentence.

7. [148]

   BELLEW J: I have had the advantage of reading in draft the judgment of Adamson J.

8. [149]

   For the reasons set out by her Honour, I joined in the orders which were made at the conclusion of the hearing.

9. [150]

   CAVANAGH J: I agree with the orders made by the Court on 24 May 2021 and with her Honour’s reasons.