Ihemeje v R

1. [1]

   PAYNE JA: Between 8 and 19 February 2024 in the District Court at Sydney before his Honour Judge Townsden DCJ and a jury, the applicant, Cyril Onyewuchi Ihemeje, was tried on an indictment containing the following counts:

   1. (1)

      On 23 September 2018 did import a substance, the substance being a border controlled drug, namely methamphetamine, the quantity imported being a marketable quantity, contrary to s 307.2(1) of the Criminal Code 1995 (Cth).

   2. (2)

      On 23 September 2018 did import a substance, the substance being a border controlled drug, namely methamphetamine, the quantity imported being a commercial quantity, contrary to s 307.1(1) of the Criminal Code 1995 (Cth).

   3. (3)

      (in the alternative to count 2) Between 23 September 2018 and 10 October 2018 did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity being a commercial quantity, contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth).

2. [2]

   The applicant was found guilty on counts 1 and 2 and, accordingly, the alternative count 3 did not arise. The applicant was sentenced to a period of imprisonment. He has since been released to parole. He seeks leave to appeal out of time and leave to appeal from his convictions.

3. [3]

   The present proceedings have a long and somewhat tortuous history. On 10 October 2018, the applicant was arrested and charged with two offences of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) and offences of importing a border controlled drug contrary to s 307.5 of the Criminal Code 1995 (Cth) (‘Criminal Code’). It is matter now of only historical curiosity that on 11 April 2019, the Director of Public Prosecutions (NSW) (‘DPP (NSW)’) agreed with the Commonwealth Department of Public Prosecutions that the DPP (NSW) would retain carriage of all of the applicant’s charges.

4. [4]

   On 4 July 2019, the applicant was arraigned in the District Court in Sydney and entered pleas of not guilty to all counts in the indictment. On 20 July 2021, Judge Beckett refused an application by the applicant to sever the State offences from the Commonwealth offences.

5. [5]

   On 12 April 2021, a trial on that indictment before Judge Harris and a jury of twelve commenced. On 28 April 2021, that trial was aborted due to an outburst by a Crown witness, known as Witness X. A retrial was listed to commence on 21 September 2021. Prior to the commencement of the re-trial, the applicant made a further application to sever the Commonwealth offences from the State offences in the indictment. On 24 September 2021, Judge Harris granted that application and severed the Commonwealth offences from the indictment (‘severance judgment’). An indictment containing only the State offences was then tried before Judge Harris sitting without a jury (the ‘supply trial’).

6. [6]

   On 16 November 2021, Judge Harris found the applicant not guilty of the two State offences (‘verdict judgment’). Those acquittals were at the heart of the applicant’s case in this Court. I will return to the detail of Judge Harris’ verdict judgment below.

7. [7]

   On 20 September 2022, the applicant was arraigned before Judge O’Rourke SC on an indictment containing three Commonwealth counts, namely two counts of importing a border controlled drug contrary to ss 307.2(1) (count 1 – marketable quantity) and 307.1(1) of the Criminal Code (count 2 – commercial quantity) and (count 3) an attempt to import a commercial quantity of a border controlled drug contrary to s 307.5(1) pursuant to s 11.1(1) of the Criminal Code.

8. [8]

   Prior to the jury being empanelled, Judge O’Rourke SC made a ruling admitting thirteen intercepted telephone calls between Witness X and the applicant, as well as messages contained on a phone found in the applicant’s car (‘Judge O’Rourke SC judgment’). In circumstances I will explain below, the use made of two of those telephone calls in particular was a central theme in the applicant’s complaints in this Court.

9. [9]

   On 13 October 2022, the Crown advised the court that there would be no further proceedings in relation to count 3. On 20 October 2022, the jury returned a verdict of guilty on count 1 but were unable to reach a verdict on count 2.

10. [10]

    As I have earlier noted, the Commonwealth charges were being conducted by the DPP (NSW). On 29 March 2023, this Court quashed the applicant’s conviction on count 1 and ordered a re-trial as the person who signed the indictment did not have an authority to do so: Ihemeje v R [2023] NSWCCA 72.

11. [11]

    Subsequently, the applicant sought a permanent stay of the proceedings. On 23 November 2023, Judge Flannery SC refused that application (‘Judge Flannery SC judgment’).

12. [12]

    On 6 February 2024, the applicant was arraigned before Judge Townsden DCJ on an indictment containing the counts set out at [1] above.

13. [13]

    Prior to the jury being empanelled, the applicant sought an order that the Judge O’Rourke SC judgment not be binding and that the evidence the subject of that judgment be excluded from evidence pursuant to ss 55, 135 and/or 137 of the Evidence Act 1995 (NSW) (‘Evidence Act’). On 7 February 2024, Judge Townsden DCJ refused the application (‘s 130A judgment’).

14. [14]

    On 14/15 September 2018, two packages were sent from Mexico. On 23 September 2018, both packages arrived in Sydney. The first package was addressed to Simon Brooks at 57 Newton Road in Blacktown. On 25 September 2018, Australia Post attempted delivery of the package but it could not be delivered as 57 Newton Road, Blacktown was under construction. The package was subsequently sent to the Sydney International Gateway Facility to be examined by the Australian Border Force (‘ABF’). Inside a refrigerator filter, staff from the ABF found two packages, each containing methamphetamine with a purity of 79%. The total amount of pure methamphetamine found totalled 190.6 grams, which exceeded the marketable quantity of methamphetamine as determined pursuant to s 301.11 of the Criminal Code. This formed the basis of count 1.

15. [15]

    The second package was addressed to Jeff Keaton at 17 Idriess Place, Casula. It was immediately intercepted by the ABF. Inside a compressor motor for a refrigerator, staff from the ABF found four packages, each containing three separate packages (12 packages in total). Each of the twelve packages contained methamphetamine with a purity of between 76.5% and 80.5%. The total amount of pure methamphetamine found was 1,279.2 grams, which exceeded the commercial quantity for methamphetamine as determined pursuant to s 301.10 of the Criminal Code. This formed the basis of count 2 and the alternative count 3.

16. [16]

    On 24 September 2018, a third package was intercepted by the ABF which had been sent from India and was addressed to Paul Smith at 55 Newton Road, Blacktown. The contents of the package were examined and from a preliminary test conducted by the ABF, found to contain 500 grams of methamphetamine. On 20 December 2018, the drugs were destroyed by the Australian Federal Police. This package was not the subject of a charge but was relied upon by the Crown as coincidence evidence.

17. [17]

    The Crown case against the applicant was circumstantial. The Crown summarised the principal matters relied upon in the following way which was uncontroversial.

18. [18]

    On 26 September 2018, 27 September 2018 and 3 October 2018, a man called Australia Post, on each occasion stating that his name was Simon Brooks and enquiring about a parcel with tracking number EE 9386997285MX. In the calls on 26 and 27 September 2018, the caller confirmed that the intended address of the package was 57 Newton Road, informed the operator that the house was under renovation, and requested that the package be sent to Blacktown Post Office. In the first call on 26 September 2019, when the operator asked what item the caller was expecting, he said “I don’t know. It’s a surprise, uh, gift”. In the second call, when the operator asked the caller effectively the same question, he said “yeah, is a surprise… friend, an old friend sent”.

19. [19]

    The Crown case was that this male caller was the applicant. The Crown invited the jury to make that finding by comparing the applicant’s voice as recorded in other lawfully recorded conversations and in the calls to Australia Post.

20. [20]

    On 10 October 2018, the police arrested the applicant at Chaplin Drive in Lane Cove as he was loading items into the tray of a white Toyota Hilux with the registration number CCO5WN. After cautioning the applicant, the police had a conversation with him which was recorded. During that conversation, the applicant said that he worked for ABC Couriers. When asked how many phones he had in the car, he said “about three… say about two, yeah two phones are, two phones are mine”.

21. [21]

    The applicant was asked about four phones located on the front passenger seat of his vehicle. He said the Samsung phone, with phone number 0406 678 253 (‘253 phone’) was his personal phone, the white Huawei, with phone number 0469 611 867 (‘867 phone’) was for business calls, the black Telstra phone, with phone number 0469 316 123 (‘123 phone’) was a phone “somebody left… in my car” and the white Telstra phone (which was switched on at the time the applicant was arrested), with phone number 0469 708 004 (‘8004 phone’) belonged to a friend of his named Peter, who had gone overseas. The applicant said he did not know Peter’s surname, nor Peter’s age. He said Peter gave the phone to him a long time ago because “he was going overseas. He said… use it [while he is] overseas, to hold it for when he comes back…” The applicant also said “I don’t know when he’s coming back”. The applicant said that while he didn’t know the number for the phone, he used the phone occasionally when Peter called him on it.

22. [22]

    The applicant was taken to Surry Hills Police Station, where he agreed to participate in an electronically recorded interview with police. The applicant was asked whether he had made phone calls on the 8004 phone, to which he said “I can’t say for sure”. When asked whether he had made and received text messages on that phone, he said “I said I can’t comment on that”, explaining “Because I don’t know what to, … I’ll say you” and “I don’t know what to say again. I’ve told you the phone is there”. He could not recall when Peter gave him the phone, only that it had “been a while.” He said he sometimes charged it to receive calls from Peter, reiterated that he did not know its number, but also stated he received calls on that phone from people he did not know.

23. [23]

    In respect of the 123 phone, the applicant repeated that someone had left it in the car, explaining “I use the car for a lot of jobs … I don’t know who … kept the phone. I’m waiting for somebody to say, to come back and say the phone is his”.

24. [24]

    After the applicant was interviewed, the police conducted a search of his vehicle and found a fifth Black Telstra phone in the driver’s side door within the arm rest, with phone number 0469 780 761 (‘761 phone’). Subsequent analysis of the 761 phone demonstrated that the user of the 761 phone was involved in the supply of illicit drugs.

25. [25]

    On 10 September 2018, just a few days before the package addressed to Jeff Keaton left Mexico, the 8004 phone sent a text message to 0469 375 719 (the ‘719 number’) saved under the contact name “Agu2” stating, “Jeff Keaton, 17 Idriess Place Casula NSW 2170”. The 719 number responded, “OK got it”. Also found on the 8004 phone, in a “WhatsApp” message conversation, was a photograph of a receipt for Firefly Express Coaches dated 26 September, which listed the receiver details as “Jeff Keaton”, with his phone number specified as being the 8004 phone number.

26. [26]

    The Crown also relied upon two intercepted calls between Witness X and the user of the 8004 phone, with their coded references to methamphetamine and money, and to an item “coming next week”, as being consistent with the involvement of the user of the 8004 phone in the importation of methamphetamine on 23 September 2018.

27. [27]

    In a call at 1.06pm on 13 September 2018 (Exhibit 20D in the trial), Witness X asked the user of the 8004 phone whether he had any “anya” (‘anya’ meaning ice according to Witness X). The user of the 8004 phone said, “Never the, never the, never there now”, to which Witness X says “The, the one where you tell me before you don’t go?”. The 8004 phone user says, “No, he never came, we never, never came out”. Witness X said, “Remember last time you won’t give me small” to which the 8004 phone user said, “that one don’t go, Not… waste time… that one don’t go”. Witness X then asked, “So you not the only one for there now?”, to which the 8004 phone user replies “Nah, nah, the, the other type of Aca” (‘aca’ meaning heroin according to Witness X). Witness X enquired “The other type of Aca? Which one?” to which the 8004 phone user said, “You know like the one, the one, the one where those boys, where you did last time now… no be, not be that type, not that type”. Witness X replied, “But this one, you know, I know this… so by next week you know if he get some?” The 8004 phone user said, “Ah we do that, we do that next week… we should get next week”. When Witness X asked, “Next week, Oh, okay. Like, ah Monday”, the 8004 phone user said, “I not, I no know until, until it enter somebody hand… best you ask them… they need that type”.

28. [28]

    Later that day at 4.38pm, Witness X made a further call to the 8004 phone: Exhibit 20E in the trial. Witness X said, “so that is what he said, so I make you look for me”, to which the 8004 phone user replied, “Ah, ah, for, for the anya?”. The user of the 8004 phone said, “Yeah, it’s not, it’s not there, I’ll let you know… but ask them, ask them for the one I told you if you see them”. Witness X said, “Okay, okay I will…. No, he say a different thing…. No, aca”. The 8004 phone user replied, “Aca, but different, ah, colour” to which Witness X replied, “Okay, all right”. The 8004 phone user clarified, “The other one, the other one, the.. other one thing. They different the other one. The other one some acca”. Witness X said “So okay, but different colour. Okay I will tell them. How many day?” The 8004 phone user replied, “Five”. Witness X asked, “how much for one” and the 8004 phone user replied, “ah, or ten twelve”.

29. [29]

    The Crown case was that the applicant was the user of the 8004 phone and relied upon several pieces of circumstantial evidence as demonstrative of this contention.

30. [30]

    First, the fact that the 8004 phone was switched on and located on the front passenger seat of the applicant’s vehicle at the time of his arrest.

31. [31]

    Secondly, the language and dialect spoken by the 8004 phone user being consistent with the language and dialect spoken by applicant. Between August and October 2017, a year before the applicant’s arrest, the police lawfully recorded several conversations involving the user of the 8004 phone pursuant to a surveillance devices warrant. Six of these calls were tendered. A translator, Mr Obi, gave evidence that the user of the 8004 phone spoke Igbo, a language from eastern Nigeria, particularly Imo State. He opined the speaker could be from the state capital, Owerri. From his experience in repeatedly listening to the calls, he opined that the voice attributed in the transcript to the user of the 8004 phone was the same person in all of the calls. The applicant’s passport was tendered at trial, which confirmed that the applicant was born in Owerri, Nigeria.

32. [32]

    Thirdly, the information disclosed by the 8004 phone user being consistent with details of the applicant’s own life. In the call occurring on 26 September 2017, the 8004 phone user stated, “Two of my kids are not too well.. cold is about to go, cold is gone now… No the other one has infection, but it has been cleared, the fever has stopped… then the one you attended her traditional marriage is have stomach upset. she is having stomach upset and has just been discharged today”. When asked whether they were admitted to hospital, the 8004 phone user said, “Yes two of them went on admission”. Consistent with the 8004 phone user being the applicant, a discharge summary was tendered for the applicant’s child which confirmed that he had been admitted to hospital on 18 September 2017 and discharged on 23 September 2017 (3 days prior to the call).

33. [33]

    In the call on 13 October 2017, the user of the 8004 is asked “What of your Ify?” The 8004 phone user replied, “She is there, she will soon put to bed”. When asked “You said she will soon put to bed, who impregnated her?”. The 8004 phone user replied, “She went home at Christmas.. she went and came back in February or so… when she delivers we know”. A birth certificate for the applicant’s child (born 11 November 2017) was tendered. The mother’s name was listed as “Ifeoma Akachi Uhegbu”. Mr Obi gave evidence that “Ify” is a shortened version of a female name. The Crown argued that this evidence supported the inference that the 8004 phone user was the applicant, as he had a partner with a name which could be shortened to “Ify”, who gave birth one month after the call.

34. [34]

    Fourthly, physical evidence linking the applicant to the phone. When the contents of the 8004 phone were downloaded, police found a short video which depicted a set of keys which appeared to contain a blue key and attached a large silver ring on it. When the applicant was arrested, a set of keys were located on the applicant, which included a blue key and a large silver ring.

35. [35]

    Fifthly, the 8004 phone had a message saved on WhatsApp from 10 May 2018 from a number starting with +971 which read, “Cy, Please brother can you call me urgently”, with account details for a bank account in the United Arab Emirates. The 8004 phone user replied, “Ask them the meaning of IBAN and BIC which is required to complete the bank transfer.” Analysis of the 867 phone, which the applicant said he used for business calls, revealed numerous text messages addressing him as “Cy,” consistent with a shortening of his name, Cyril.

36. [36]

    Sixthly, call logs from the 8004 phone showed calls to and from 0415 427 762 (the ‘762 number’), which was a number used by Witness X. When contacts were downloaded from another phone used by Witness X (with a number ending in 461), the 8004 phone number was saved as “Dewy.” Witness X identified this as the applicant’s number. She said she knew him through All Nations Church in Granville, that he was known as “Cy,” worked as a courier, and lived in Kellyville. The applicant’s driver’s licence listed his address as Kellyville Ridge, the suburb adjacent to Kellyville. Witness X correctly identified the applicant in a photo identification procedure. She explained that while typing “CY,” her phone autocorrected it to “Dewy,” so she left it as is, knowing it referred to him.

37. [37]

    Seventhly, thirteen lawfully intercepted calls between Witness X and the user of the 8004 phone, made between 5 September and 9 October 2018, were tendered. In respect of each call, Witness X identified herself as being the female voice on the call and the applicant as being the male voice on the call.

38. [38]

    The 867 phone, which the applicant admitted was his, was found to contain several text messages from a number ending in 7739 (the ‘739’ number) asking for the applicant to contact him. On 25 September 2019 at 4.01pm, a message was sent from the 867 phone stating “Will see u 2morrow for 1”. The 739 number replied, “Ok bro”; and “How much for this one?” The 867 phone replied, “Will let u know later”. Detective Senior Constable Blundell, the detective in charge of a strike force targeting drug dealing contemporaneous to these events, opined at trial that “How much for this one?” was consistent with someone asking for one of a particular drug.

39. [39]

    Analysis of the 761 phone, found in the driver’s side door of the applicant’s vehicle when he was arrested but was not claimed as his own, revealed several text messages between the user of the 761 phone and others between June and October 2018, which were consistent with the user of the 761 phone being involved in drug supply.

40. [40]

    Between 13 and 18 June 2018, the 739 number sent the following messages to the 761 phone: “Any news on the big one?”; “Need to catch up bro”; “Give me a call when you can bro”; “I need more bro”. Detective Chief Inspector Stephen Patton, who in 2018 was the commander of a regional enforcement squad in charge of mid-to-upper level drug investigations, gave evidence at trial that the question “any news on the big one?”, was consistent with a reference to a larger quantity of drugs, such as a pound or a kilogram.

41. [41]

    On 24 July 2018, the 739 number sent the following messages to the 761 phone, “Brother i need to see you asap”; “Ask for 100 every week”; “Or if trust me. Ill take all and pay when gone bro”. Detective Chief Inspector Patton opined that, “Ask for 100 every week”, was consistent with the user asking for a quantity of drugs and “trust me, ill take all and pay when gone” was consistent with a low-level supplier offering to take the drugs, sell them and repay the money at a later stage.

42. [42]

    On 25 July 2018, the 739 number sent a message to the 761 phone stating “How much today bro?” The 761 phone replied, “bros is not mine can give u one hundred”; “175oo”. The 739 number replied, “Hey bro im still working in the city, is tomorrow ok” to which the 761 phone replied “175oo for 1oo”. The 739 number responded, “Oh price gone up ?”; “Not 17000 anymore ?”. The 761 phone user said, “no as of last time 98 pure”. The 739 number replied, “So this one is 98?”. The 761 phone user responded, “bro I have to get 5oo”. The 739 number replied, “Yeah thats ok brother”. Detective Chief Inspector Patton opined that this conversation was consistent with the 761 phone number stating that he could supply 100 quantity of a prohibited drug (most likely 100 grams), and the fee for that quantity being $17,500 (consistent with the drug being 100 grams of a powder drug). The reference to “98 pure” is consistent with the purity of the drug. When the 761 phone responded, “bro I have to get 5oo”, this was consistent with the person being either $500 short or needing 500 grams of a prohibited drug.

43. [43]

    On 3 September 2018, the 739 number sent a message to the 761 phone stating “100 asap please bro”. Detective Chief Inspector Patton opined that this was consistent with the user placing an order for 100 grams of a prohibited drug. On 10 September 2018, the 739 number sent two further messages to the 761 phone stating, “Anything yet bro?”, “Need as soon as possible”.

44. [44]

    On 8 October 2018, the 739 number sent the following test messages to the 761 phone “Hey bro can you get me some of the other stuff (i) to have a look at?”. Detective Chief Inspector Patton opined that this message is consistent with the 739 number asking to sample the drug methamphetamine to ascertain its quality.

45. [45]

    On 10 October 2018 (the day the applicant was arrested), the 739 number sent two messages to the 761 phone stating “Any big ones around bro?”; “Full kg?”. Detective Chief Inspector Patton opined that these messages were consistent with the user of the 739 number asking if there were larger quantities of the drug available, namely one kilogram.

46. [46]

    On 24 October 2018, the 739 number sent a message to the 761 phone stating “ill need some as usual and also a test of the other stuff EYE”. Detective Chief Inspector Patton opined that this was consistent with the 739 number asking to purchase his usual drugs, as well as wanting to try some methamphetamine.

47. [47]

    The Crown relied on the content of the text messages to demonstrate that the applicant was involved in the business of drug dealing, which provided a motive for the applicant to source further illegal drugs.

48. [48]

    A Delivery Authority Notice was found in the applicant’s vehicle, inside a green folder in the driver’s side door, along with other documents in his name including a run sheet. The notice, dated 25 September 2018, was purportedly signed by “Jeff Keaton of no 17 Idriess Place, Casula” and authorised the applicant, by name, of ‘C AND A Couriers’, to:

49. [49]

    The business name ‘Cyrill and Angelica Courier’ was registered by the applicant in April 2014. The applicant had told police he was working for ABC Couriers as of October 2018, which ABC Couriers confirmed in evidence at trial. A search of their database showed no customer named Jeff Keaton or any deliveries to 17 Idriess Place, Casula.

50. [50]

    The Delivery Authority Notice included a photocopy of a driver’s licence in the name of Jeff Keaton, listing 17 Idriess Place, Casula as his address. Enquiries with the Roads and Maritime Service confirmed the licence number was not valid. The property manager of the address given advised that no one named Jeff Keaton had ever owned, rented, applied for, or lived at that address. Police also spoke with the resident of the property at 17 Idriess Place, who confirmed that Jeff Keaton did not reside there. In addition, the tracking number in the Delivery Authority Notice did not match the parcel sent to Jeff Keaton but matched the one sent to Simon Brooks, the purported consignee of the first package. It was also the same tracking number nominated by the male caller who contacted Australia Post on 26 and 27 September and 3 October 2018 to enquire about the package sent to Simon Brooks.

51. [51]

    The Crown case was that the applicant prepared this document (which included his name and business details), so as to enable him to pick up the Jeff Keaton package. However, in preparing the document (which the Crown observed contained several grammatical errors), the applicant mistakenly entered the Simon Brooks tracking number instead of the Jeff Keaton tracking number. This supported the Crown contention that the applicant was involved in attempting to gain possession of both the Jeff Keaton package and the Simon Brooks package.

52. [52]

    Also found in the applicant’s vehicle on the front passenger seat (where many of the mobile phones were located), was an envelope which had, inter alia, the addresses “55,57,58 Newton RD, Black” handwritten on it. The Paul Smith package was directed to 55 Newton Road, and the Simon Brooks package to 57 Newton Road. Police attended all the addresses listed on the envelope and took photographs. All of the properties were either vacant blocks of land or appeared under construction.

53. [53]

    A handwriting expert, Sergeant Dean Swift, opined that there was strong support for the proposition that the addresses were written by the applicant, a conclusion he formed by comparing the writing on the envelope to a known sample of the applicant’s handwriting.

54. [54]

    The Crown relied on the similarities between the Simon Brooks package, Jeff Keaton package and Paul Smith package, to establish that they were imported by the same person. Those similarities included the fact that the Simon Brooks package and the Jeff Keaton package both originated from Mexico on substantially the same date, the fact that the Simon Brooks and Jeff Keaton packages both contained refrigerator parts, that both packages contained methamphetamine of a similar high purity and were linked by the Delivery Authority Notice that mistakenly listed the Simon Brooks tracking number in the Jeff Keaton Delivery Authority Notice. As regards the Paul Smith package, the Crown relied upon the fact that it contained methamphetamine, that it arrived in Sydney around the same time as the other two packages and that it was addressed to a house one door down from the Simon Brooks package and that both addresses were written in handwriting on an envelope found in the applicant’s car.

55. [55]

    The applicant did not call or give any evidence. The defence case was that the applicant was not the user of the 8004 phone, nor the person on the intercepted calls with Witness X, nor the user of the 761 phone, nor the person who called Australia Post enquiring about the Simon Brooks shipment. As regards the Delivery Authority Notice, it was the defence case that the applicant came into possession of it in his role as a courier and had no role in its creation. Although the defence case was that the applicant was not involved in drug supply, it was also submitted that any involvement in drug supply was irrelevant to the importation charges he faced.

Grounds of Appeal

1. [56]

   The applicant relies on the following grounds of appeal:

2. [57]

   At the hearing of the appeal leave was granted to the appellant to add a further ground:

3. [58]

   To the extent that the grounds of appeal do not involve questions of law alone, leave is required: s 5(1)(b) Criminal Appeal Act 1912 (NSW); Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 at [2] and Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] and at [68]-[71].

4. [59]

   As defence counsel did not object to the evidence from Witness X about which complaint is now made, and no direction was sought regarding the applicant’s prior acquittals, the applicant requires leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (‘Criminal Appeal Rules’) to rely on Grounds 2 and 3. The discharge of the jury was not sought by counsel for the applicant at trial. The applicant therefore also requires leave under rule 4.15 of the Criminal Appeal Rules to rely on Ground 4.

5. [60]

   The applicant also requires an extension of time per rr 3.1(3), 3.5(2) – (4) of the Criminal Appeal Rules as the appeal was filed long out of time. The reason advanced for late filing of the notice of appeal was a misapprehension about the proper operation of the Criminal Appeal Rules.

Ground 1 – Evidence of Witness X calls and of supply

1. [61]

   There are two aspects of the first ground of appeal. The first aspect relates to part of the evidence considered in the trial before Judge Townsden DCJ (identified as products 2504 and 306 which became Exhibits 20D and 20E respectively). It was submitted that this evidence had the effect of controverting the applicant’s prior acquittals on the two State charges of supplying heroin. The second aspect relates to what was submitted to be prejudice occasioned by evidence given that suggested the applicant was involved in the supply of heroin in the context of a prosecution on importation charges that concerned methamphetamine.

2. [62]

   The applicant submitted that the Crown improperly relied on the same evidence of telephone conversations between Witness X and the user of the phone number ending in 8004 to prove the applicant was involved in the supply of heroin and methamphetamine. It was submitted that to the extent portions of the conversation related to offences of which the applicant had been acquitted they should not have been relied on. It was submitted that several portions of the conversations in evidence were capable of being understood as references to the supply of heroin (not methamphetamine) and therefore could or should only be understood as references to the 'supply' offences on which the applicant was acquitted. That is, where there was ambiguity as to the drug, the ambiguity should have been construed in favour of the applicant and that evidence should not have been relied on.

3. [63]

   The applicant submitted that as he had been acquitted of the only charges he faced related to heroin, that any reference to heroin must necessarily refer to the offences for which he was acquitted. It was submitted that the Crown case, by relying upon conversations regarding heroin, had the necessary effect of controverting the applicant's acquittals on the two heroin charges, even if that evidence was not co-existent, in time or location, with the supply of heroin for which he was acquitted.

4. [64]

   It will be recalled that the Judge O’Rourke SC judgment permitted evidence of thirteen intercepted telephone calls between Witness X and the applicant to be given at the trial and that in the s 130A judgment Judge Townsden DCJ declined to make an order that the Judge O’Rourke SC judgment not be binding and that the evidence the subject of that judgment be excluded from evidence pursuant to ss 55, 135 and/or 137 of the Evidence Act. The applicant submitted that, in accordance with the rulings of their Honours Harris DCJ and Flannery SC DCJ, evidence of calls between the applicant and Witness X should have omitted reference to the supply of heroin altogether. It was submitted that Judge Harris DCJ and Judge Flannery SC DCJ properly apprehended the issue and had ruled accordingly in their respective hearings.

5. [65]

   The second aspect of Ground 1 focused on the potential prejudice to the applicant that any evidence regarding his alleged involvement in the supply of heroin would have. Section 137 of the Evidence Act mandates the court exclude evidence adduced by the prosecutor in a criminal trial where the danger of unfair prejudice outweighs the probative value.

6. [66]

   It was also submitted that to admit evidence of phone calls between Witness X and the user of mobile number ending in 8004, where Witness X explained references to 'acca' was a codeword for heroin, was contrary to the evidentiary ruling made by Judge Harris DCJ on 24 September 2020.

7. [67]

   The applicant submitted that Judge O’Rourke SC DCJ , acknowledged that the Crown was permitted to adduce the voice evidence at trial and evidence of voice recognition experts linking the voice in the recording to that of the applicant, but that the effect of her judgment was that any reference to the meaning of codewords (where an explanation was undertaken as to the meaning of the various phrases used in the exchanges) would be omitted.

8. [68]

   The applicant submitted that the decision to admit the evidence was also contrary to the ruling of Judge Flannery SC DCJ, whose evidentiary ruling was affirmed by Judge Townsden DCJ, that the impugned phone calls and evidence of Witness X was admissible as background evidence, but not as tendency evidence. The Crown had argued that evidence of Witness X went to establishing a relationship in the sense that it was proof the relationship between the applicant and Witness X, such that it was, was not readily explicable as innocent, but rather, was predicated on drug supply. The applicant submitted that the evidence was not ‘relevant’ in that it demonstrated trade in a drug that was not the subject of the importation offence (being heroin as opposed to methamphetamine).

9. [69]

   It was submitted that the judgment of Judge O’Rourke SC recognised that evidence of the applicant’s involvement in the supply of heroin would controvert his acquittals. The applicant complained that her Honour nonetheless admitted evidence that included references to the supply of heroin on the basis that it fell within a line of authority from Harriman v The Queen (1989) 167 CLR 590 and R v Quach [2002] NSWCCA 519. The applicant suggests that a detailed reading of these cases reveals them to be inconsistent with the conclusion drawn by her Honour and the evidence should not have been admitted.

10. [70]

    The applicant submitted that the justification offered by Judge O’Rourke SC for admitting the impugned evidence was flawed for the following reasons. First, the supply charge was not related to the importation charge, that is that "the one did not form part of the res gestae of the other". Secondly, there was no 'interpersonal nexus' between the applicant’s alleged supply of heroin and his involvement in the importation of methamphetamine offences. The evidence of Witness X did not go to establishing the nature of any relationship which might have been relevant to determining the applicant’s involvement in the importation offences.

11. [71]

    The applicant accepted that, on a broad reading of Harriman, evidence of the applicant’s involvement in the supply of methamphetamine, proximate in time to the importation offences, could be regarded as being relevant to whether the applicant was involved in those offences, but the applicant maintained that the involvement would need to be related to the same drug.

12. [72]

    It was submitted that the evidence of alleged involvement regarding a different drug, heroin, had no bearing on the relevant question, or to the extent that it did, it was otherwise so prejudicial as to 'demand' that it be excluded from his trial per s 137 of the Evidence Act.

13. [73]

    It was submitted that the admission of the evidence was gratuitous in circumstances where there was other evidence available that supported the Crown's asserted motive. The text messages on the phone ending in 761 were submitted to be satisfactory for the Crown to prove motive.

14. [74]

    The applicant submitted that the impugned evidence invited tendency reasoning. It was submitted that 'the anti-tendency direction’ which was given at trial was insufficient. The evidence so overwhelmingly invited tendency reasoning that the direction was ineffective. It was submitted that it only proved that a person involved in dealing one drug would be more likely to be involved in the importation of other prohibited drugs, and that the evidence as evidence of motive did not travel beyond demonstrating this propensity.

15. [75]

    The Crown submitted that it had not improperly relied on evidence of telephone conversations between Witness X and the user of the phone number ending in 8004 or called into question in any way the applicant’s acquittal in the State supply trial.

16. [76]

    The Crown made detailed submissions about the history of the two prosecutions and the findings made by the various judicial officers who had considered the matter. The Crown submitted that the Judge O’Rourke SC judgment, and the s 130A judgment, was not contrary to the Judge Harris judgment. The Crown detailed the precise use made of the evidence of the recordings of conversations between the applicant and witness X. The Crown submitted that the impugned evidence did not invite tendency reasoning and in any event was the subject of a suitable anti-tendency direction. The Crown submitted that Ground 1 should be dismissed.

17. [77]

    I approach Ground 1 on the basis that an acquittal on a criminal charge may not be questioned or called into question by any evidence which, if accepted, would have the effect of overturning the verdict: Abdallah v R [2019] NSWCCA 294 at [19]. This principle requires that an accused should be given the "full benefit" of an acquittal: R v Storey (1978) 140 CLR 364; [1978] HCA 39 at 396.

18. [78]

    Ground 1 needs to be considered in the context of the two trials: of the State supply offences, and the Commonwealth importation offences. In the supply trial, the applicant was charged with an offence of supplying a prohibited drug, heroin, on 27 August 2018 (count 1) and 5 September 2018 (count 2). The quantities of heroin the subject of both counts were supplied by Witness X to two undercover operatives named Tom and Jack (the ‘UCOs’). The critical issue was whether the applicant supplied heroin to Witness X for her to on-supply to the UCOs.

19. [79]

    The evidence in support of count 1 (alleged supply of heroin on 27 August 2018) comprised:

    1. (1)

       the evidence of Witness X;

    2. (2)

       statements made by Witness X in recorded conversations with the UCOs concerning the identity of the person who had supplied her with heroin;

    3. (3)

       extensive telephone contact between Witness X and the 8004 phone from 3 August 2018 until 9 October 2018; and

    4. (4)

       two text messages sent by Witness X to the 8004 phone on 3 August and 16 August 2018, in which she stated: “Am at 2 Durham Street” and “my brother good day I beg I want see u so we talk plz.”

20. [80]

    The content of the intercepted calls between Witness X and the user of the 8004 phone was not relied upon by the Crown to prove count 1.

21. [81]

    The evidence in support of count 2 (alleged supply of heroin on 5 September 2018) comprised:

    1. (1)

       the evidence of Witness X;

    2. (2)

       messages sent by Witness X to the 8004 phone on 3 September 2018;

    3. (3)

       call charge records for 8004,

    4. (4)

       intercepted phone calls between Witness X and a 006 number on 5 September 2018,

    5. (5)

       intercepted calls between Witness X and the 8004 phone on 5, 7, 13, 14, 20 and 30 September 2018.

22. [82]

    The alleged supply of heroin by the applicant to Witness X occurred on 5 September 2018, after which Witness X on-supplied it to the UCOs.

23. [83]

    On 13 September 2018, Witness X met with the UCOs and discussed potential future drug supplies. One of the UCOs asked Witness X whether she could supply 600 grams of ice. Witness X said that a man named Azolibe had 480 grams of ice available and they then discussed whether they could make up the difference of 120 grams of ice. In the presence of one of the UCOs, Witness X then called the 8004 phone: Exhibit 20D. The content of the intercepted call is set out at paragraph [27] above. Later that day, Witness X made a further call to the 8004 phone: Exhibit 20E. The content of that intercepted call is set out at [28] above.

24. [84]

    Judge Harris was satisfied beyond reasonable doubt that the applicant was the user of the 8004 phone and was satisfied that it was the applicant speaking with Witness X on the intercepted calls. Judge Harris was satisfied beyond reasonable doubt that the applicant “had a somewhat intimate knowledge of Witness X's contacts with the UCOs, Tom and Jack, and that this contact was to facilitate the supply of heroin and ice”. Judge Harris was also satisfied beyond reasonable doubt that there existed a familiarity between the applicant and Witness X and that the applicant and Witness X had a close association that involved the supply of drugs.

25. [85]

    Although Judge Harris accepted that the applicant had lied in denying his use of the 8004 phone, her Honour was not satisfied that the false denial demonstrated a consciousness of guilt in respect of counts 1 and 2. Her Honour was satisfied that the applicant was involved in the business of drug supply and was aware that Witness X was also engaged in drug supply. Due to the inconsistencies in the evidence of Witness X and admitted lies told by Witness X, her Honour was not satisfied beyond reasonable doubt on the basis of her evidence (together with the evidence led to support it) that the applicant supplied the drugs to Witness X on 25 August 2018 and 5 September 2018. Accordingly, her Honour acquitted the applicant on both counts.

26. [86]

    In the present Commonwealth importation trial, the intercepted calls between Witness X and the user of the 8004 phone were played. Witness X identified the user of the 8004 phone as being the applicant. Although Witness X was asked about the meaning of the code words (“anya” and “aca”), she was not asked any further questions by the Crown about what was being discussed in this call. The evidence of Witness X from the State supply trial as to what was being discussed did not form part of the record of the Commonwealth importation trial.

27. [87]

    It is clear, contrary to the applicant’s submission, that the evidence of Witness X and the intercepted telephone calls between Witness X and the user of the 8004 phone were not “left to the jury on the basis that they could establish that the applicant was involved in the supply of heroin to Witness X”. The Crown did not invite the jury to conclude that the applicant was involved in the supply of heroin to Witness X. The Crown relied on the intercepted calls to demonstrate that the applicant was a participant in the calls (supporting the inference that he was the 8004 phone user), and also to submit that the content of two calls (Exhibit 20D and Exhibit 20E), with their coded references to methamphetamine and money, and to an item “coming next week”, were consistent with the applicant’s planned involvement in the importation of methamphetamine on 23 September 2018.

28. [88]

    The only submission made by the Crown which was directed at the applicant’s involvement in drug supply related to the text messages on the 761 phone (to which Witness X was not a party). The totality of the Crown Prosecutor’s submission on the issue was:

29. [89]

    Judge Townsden DCJ directed the jury that the intercepted telephone calls between Witness X and the user of the 8004 phone, as well as the text messages on the 761 phone, had been placed before them by the Crown to provide context to the charges, stating that it was “a piece of circumstantial evidence that the accused, it is submitted, was involved, at the relevant time, in the business of illegal drug sourcing and supply. It was also submitted it is relevant to a motive for the accused to import illegal drugs and finally to establish that relationship existed between the accused and Witness X at the relevant time”. These directions made clear that the jury could use the evidence to support the inference that the applicant was in the business of drug supply but not as proof that the applicant had supplied heroin to Witness X, let alone that he had supplied heroin to Witness X on 27 August 2018 or 5 September 2018.

30. [90]

    It is correct that the first intercepted call (Exhibit 20D) was capable of being understood as a request to the applicant by Witness X for heroin. When Witness X asked the applicant which type of heroin he may have available, he replied “the one where the boys (unintelligible) where you did last time now… no be, not be that type, not that type”. In that call, the applicant is capable of being understood as stating that he will not have available a type of heroin which Witness X had previously supplied to “the boys”. Whilst this call demonstrates that the applicant was aware of the type of heroin Witness X had supplied to the “the [unidentified] boys” in the past and that this type of drug was different to the drug he may have available next week, it does not demonstrate anything about the applicant’s involvement in the prior supply of heroin to Witness X on either 28 September 2017 or 5 September 2017.

31. [91]

    In the second intercepted call (Exhibit 20E), the conversation was capable of being understood as the applicant telling Witness X to tell [an unidentified] “them” that the applicant would have a different colour heroin available in five days at a price of “ten or twelve”. That the applicant referred to the heroin being “different [to] the other one” merely establishes that there had been a previous discussion about another type of heroin.

32. [92]

    The acquittals established that the applicant did not supply Witness X with heroin on 28 September 2017 or 5 September 2017. As the verdict judgment makes clear, the acquittals did not establish that the applicant was not the user of the 8004 phone, that he was unaware of Witness X’s dealings with the UCOs, that their relationship was unconnected to drug supply, or that he was not interested in supplying heroin and ice to Witness X. The intercepted calls went no further than demonstrating those matters. It was no part of the Crown case that the applicant was involved in Witness X’s dealings with the UCOs. Any connection between the UCO’s and Witness X was a matter deliberately introduced by the applicant’s counsel during cross-examination of Witness X.

33. [93]

    The Crown did not invite the jury to conclude that the intercepted calls touched or concerned the applicant’s prior supply of heroin to Witness X. Nor did the content of the calls tend to prove that matter. I have concluded that two calls did not controvert the applicant’s acquittals, and the applicant’s submission to the contrary should be rejected.

34. [94]

    I have also concluded that the Judge O’Rourke SC judgment, and the s 130A judgment, were not contrary to the Judge Harris judgment. In the Judge Harris judgment, her Honour stated as follows:

35. [95]

    Contrary to the applicant’s submissions, the effect of the Judge Harris judgment was not that “the telephone calls would simply be played, without any reference to the meaning of any codewords”. Without evidence about the meaning of the codewords being adduced, it is difficult to discern how abstract words like “anya” and “acca” could, as her Honour noted, raise a suggestion that the applicant was involved in drug supplies. The key constraint placed on the admission of the evidence was that the Crown did not adduce evidence from Witness X about the particular heroin supplies the subject of the State supply trial. The s 130A judgment imposed this same restriction.

36. [96]

    The Judge O’Rourke SC judgment and the s 130A judgment were not contrary to the Judge Flannery SC judgment. Judge Flannery SC stated as follows at [68]-[69]:

37. [97]

    As explained in the verdict judgment, the meeting on 13 September 2018 between Witness X and the UCOs concerned anticipated future drug supplies. The intercepted telephone calls between Witness X and the 8004 phone that followed involved discussions about a possible future drug supplies. Judge Harris was satisfied that, proximate to the date of the second alleged supply, the applicant was interested in supplying heroin and methamphetamine and that his association with Witness X was one of involvement in drug supply.

38. [98]

    The circumstances contemplated by Judge Flannery SC, that the only evidence of the applicant “dealing with heroin” arose from evidence about the supplies about which he was acquitted, did not arise. Accordingly, her Honour’s remark that “in those circumstances”, the applicant would be denied the full benefit of the acquittals, had no application in the circumstances of this case.

39. [99]

    I have concluded that the decision to admit the portion of the intercepted phone calls referring to heroin was clearly correct. The applicant accepts, following Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50, that evidence of his involvement in the supply of methamphetamine could be regarded as relevant to the question of whether he was involved in the Commonwealth importation offences, given the identity of the drug. However, the applicant contended that evidence of his involvement in the supply of heroin was not relevant, in the sense that it did not have the capacity to rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceedings per s 55 of the Evidence Act. In the alternative, the applicant submitted that, even if the evidence was relevant, its prejudicial effect substantially outweighed its probative value and that it ought to have been excluded pursuant to s 137 of the Evidence Act.

40. [100]

    I do not accept the applicant’s contention about the application of ss 55 and 137 of the Evidence Act to the intercepted phone calls. The evidence was plainly relevant. The evidence had the capacity rationally to affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceedings, as I will shortly explain.

41. [101]

    In considering the application of s 137 of the Evidence Act to the intercepted phone calls in this Court, the correctness standard applies. In applying the correctness standard, this Court must determine for itself whether the trial judge was correct to find that the probative value of the evidence outweighed the danger of unfair prejudice. Assessment of the probative value of evidence requires the possible use to which the evidence might be put to be taken at its highest and on the assumption that the jury will accept the evidence. I reject the applicant’s submission that that any different conclusion may be drawn in the present case from the perspective of a concluded trial. The assessment of the probative value, "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue", requires that consideration of the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest, without reference to issues concerning its credibility and reliability: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [44], [47] and [49] (French CJ, Kiefel, Bell and Keane JJ) and see also at [52]; [44]; R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [69], TL v The King (2022) 275 CLR 83; [2022] HCA 35 at [28]. These High Court authorities establish that the probative value of the evidence is to be assessed by reference to what the evidence is capable of proving, rather than requiring a determination of what the evidence in fact proved at trial. Given that findings of fact are matters for the jury, it would rarely (if ever) be possible to determine what the evidence in fact proved at trial, without improperly intruding on the jury’s constitutional function. The earlier intermediate appellate authorities relied upon (with leave) by the applicant following the hearing (McCartney v The Queen [2012] VSCA 268 at [50] and Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [20]-[23]) give rise to no different conclusion. Even if they did, this Court would be bound in any event to follow the High Court.

42. [102]

    In the present case, the evidence of the applicant’s involvement in the sourcing and supply of border controlled drugs (which include heroin) was relevant on several bases which did not involve tendency reasoning:

    1. (1)

       To rebut the applicant’s anticipated case (and to avoid splitting the Crown case):

    2. (2)

       As evidence capable of proving a motive for importing border controlled drugs to continue to facilitate his involvement in the sourcing and supply of border controlled drugs;

    3. (3)

       As evidence capable of proving the applicant’s state of mind when he sought to obtain delivery of the packages, being knowledge that the packages contained a border controlled drug;

    4. (4)

       To place the applicant’s conduct in its proper evidentiary context. Evidence of his involvement in the sourcing and supply of border controlled drugs rendered it more likely that his attempts to collect the two parcels addressed to others were undertaken for a guilty purpose, rather than innocently in the course of his duties as a courier.

43. [103]

    In R (Cth) v Seguel [2024] NSWCCA 37, this Court considered a similar submission to the present. The respondent in that case argued that the probative value of evidence showing he had conducted online searches for the purchase of cocaine was reduced because the substance the subject of the charge of attempting to possess a border controlled drug was a different border controlled drug (heroin). In rejecting that submission, Wilson J (with whom Ierace and Cavanagh JJ agreed) observed at [75]:

44. [104]

    In the present case, the probative value of the intercepted calls between Witness X and the user of the 8004 phone, which involved the sourcing and supply of heroin, was not diminished by the fact that the drug was different from the substance the subject of the importation charges. I reject the applicant’s submission to the contrary. The Crown did not have to prove that the accused knew, or was aware of a substantial risk, that the substance concealed in the package(s) was a specific border controlled drug: s 300.5 of the Criminal Code. As Judge Townsden DCJ correctly directed the jury, it was sufficient if the Crown established that the applicant knew, or was aware of a substantial risk, that the substance concealed in the packages was “a border-controlled drug (of any type)”.

45. [105]

    The applicant’s further submission that the admission of evidence that the applicant was involved in the sourcing and supply of heroin was “gratuitous” in circumstances where the Crown had available other evidence (in the form of text messages and intercepted phone calls) of the applicant’s involvement in the supply of methamphetamine, cannot be accepted. In Medich v R (2021) 390 ALR 398; [2021] NSWCCA 36 at [137], Bathurst CJ said:

46. [106]

    It also bears emphasis that the danger of unfair prejudice must take into account any directions given to ameliorate that risk: R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [72] per Spigelman CJ. An assessment of the danger of unfair prejudice must necessarily incorporate the directions given by the trial judge. The trial judge here directed the jury that the evidence had been admitted only for limited purposes: “to establish some context of the charges,” as circumstantial evidence that the accused was “involved, at the relevant time, in the business of illegal drug sourcing and supply,” to show a possible motive for importation, and “to establish the relationship that existed between the Accused and Witness X.”

47. [107]

    Judge Townsden DCJ warned the jury that they “must not use this evidence as establishing a tendency on the part of the accused to commit offences of the type charged” and that it “must not [be] substitute[d]… for the evidence of the specific charges that are on the indictment.” His Honour emphasised that the evidence could only be used, if the jury accepted the Crown’s submission that the accused was a party to the communications, in the limited way the Crown contended; that is, as one strand of a circumstantial case, relevant to motive and relationship, and “never… to punish the accused for other conduct” or to treat him as “a person of bad character.” His Honour further reminded the jury that the accused bore no onus of proof. The applicant’s suggestion that there was a risk the jury would use the evidence as tendency evidence, despite being directed not to do so, is contrary to principle: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [31].

48. [108]

    Finally, I reject the submission that the admission of the evidence created a risk that the jury might reason that the applicant was also involved in the importation of heroin. Judge Townsden DCJ specifically directed the jury that “you are concerned with the particular and precise occasions alleged in each charge on the indictment.” That direction was sufficient to address any such risk.

49. [109]

    Whilst leave to appeal out of time and leave to appeal should be granted in relation to Ground 1, Ground 1 should be dismissed.

Ground 2 - Cross examination of Witness X

1. [110]

   The applicant submitted that the evidence of Witness X controverted the acquittal of the supply charge on 27 August 2018 when, in answer to a question in cross-examination from the applicant’s counsel, Witness X stated that the drugs she attempted to supply did not come from Bangkok but “came from your client”.

2. [111]

   The applicant submitted that the evidence given by Witness X about the supply on 27 August 2018 in cross examination meant the trial was only capable of proceeding with a strong direction from Judge Townsden DCJ about the applicant’s acquittals. It was submitted by the applicant that his Honour was obliged, in the circumstances, to give a direction on the acquittals to secure the applicant a fair trial: Pemble v R (1971) 124 CLR 107; [1971] HCA 20. Failure to request such a direction on the part of the applicant's counsel, was submitted to be due to counsel’s 'confusion'.

3. [112]

   The applicant submitted that a requirement to give a direction crystallised when Witness X 'controverted the applicants acquittal on the charge of supplying heroin on 27 August 2018'. Without a direction being given, it was submitted that the only other appropriate course was to discharge the jury: Crofts v R (1996) CLR 427; [1996] HCA 22 at 432.

4. [113]

   The appellant submitted that a miscarriage of justice occurred.

5. [114]

   It was submitted by the Crown that there was no requirement to give a direction about an issue which was not sought to be raised by the applicant at trial.

6. [115]

   It was further submitted that the directions that were given at trial about the evidence given by Witness X were sufficient in the circumstances to address all of the issues which arose from that evidence.

7. [116]

   Further, it was submitted the purportedly impugned evidence of Witness X was not sufficient to deprive the applicant the possibility of a different outcome: Brawn v R (2025) 99 ALR 872; [2025] HCA 20. As such, the Crown contended, there was no miscarriage of justice.

8. [117]

   The applicant contended that three aspects of Witness X’s evidence contravened the applicant’s acquittals in the supply trial and occasioned a miscarriage of justice. As none of these aspects of evidence were objected to at trial, r 4.15 of the Criminal Appeal Rules applies, and the applicant requires leave to raise this ground of appeal.

9. [118]

   The first aspect was the evidence regarding Witness X’s prior criminal offending. Evidence was led at trial that Witness X pleaded guilty to two offences of supplying large quantities of methamphetamine and heroin between 27 August and 10 October 2018. Witness X agreed that she received a 15% reduction in sentence for future assistance, including giving evidence against the applicant. There was no evidence, and the Crown made no submission, that the applicant participated in any of these supply offences. I reject the applicant’s suggestion that the jury would have inferred from this evidence that the applicant was involved in Witness X’s offending.

10. [119]

    The second aspect was the two intercepted phone calls between Witness X and the user of the 8004 phone which I have addressed above (Exhibit 20D and Exhibit 20E). The applicant submitted that those calls could be interpreted as referring to the alleged supplies of drugs in relation to which the applicant had been acquitted. For the reasons outlined at paragraphs [89]-[93] above, these intercepted calls did not contravene the applicant’s prior acquittals.

11. [120]

    The third aspect was the one line of evidence, adduced by the applicant’s counsel in cross-examination of Witness X. It bears repeating that the Crown did not lead any evidence from Witness X about this issue. In cross-examination, however, counsel for the applicant showed Witness X a transcript of a listening device dated 27 August 2018, which recorded the conversation between Witness X and the UCOs during a meeting in which Witness X supplied 1.14 grams of heroin to the UCOs. This was heroin allegedly supplied by the applicant to Witness X in count 1 in the supply trial. Counsel for the applicant asked Witness X:

12. [121]

    After Judge Townsden DCJ asked defence counsel to rephrase the question, defence counsel moved to question Witness X about whether she had told the UCOs that the drugs supplied on 5 September 2018 (count 2 in the supply trial) “came from some fellow living in Kellyville”. The Crown Prosecutor objected. In the absence of the jury, the Crown explained to his Honour that this question could elicit evidence from Witness X that she had obtained the drugs from the applicant and thereby contravene the acquittal for count 2 in the supply trial.

13. [122]

    Defence counsel did not make any application for a direction in relation to the impugned evidence of Witness X. No submission was made that the evidence be excluded on the basis that it controverted the applicant’s acquittals. Instead, in response to the Crown Prosecutor’s concern that defence counsel’s questions could controvert the applicant’s acquittals, defence counsel responded, in a discussion that took place in the absence of the jury, “I’m instructed to go into this territory”, contending that it was relevant that the previous drugs supplied came from Bangkok, whereas the importation alleged in the indictment concerned drugs from Mexico. When the Crown Prosecutor again repeated his concern, defence counsel repeated, “It’s totally a forensic decision for me. So I’m a bit concerned that I’m being stopped when really I’m instructed to proceed and I should be allowed to proceed, to draw as close a case as I have to, to deal with this”. That is, counsel for the applicant, acting on instructions, made a forensic decision to ask Witness X about the origin of the drugs the subject of his acquittal, in the knowledge that Witness X’s evidence in the supply trial was that those drugs had been provided to her by the applicant.

14. [123]

    The evidence concerning the applicant’s involvement in the supply of the drugs to the UCOs on 27 August 2018 was deliberately left by counsel for the applicant in an uncertain state. No evidence was placed before the jury about whether the applicant had been charged with, or acquitted, of this particular drug supply. When pressed by Judge Townsden DCJ, counsel for the applicant expressly disavowed seeking the admission of evidence of the acquittals.

15. [124]

    The effect of the acquittals was that the applicant was not guilty of two counts of alleged supply of heroin to Witness X on 27 August 2018 and 5 September 2018. As the verdict judgment makes plain, the effect of the acquittal did not extend to a finding that the applicant was not in the business of drug supply. To the contrary, Judge Harris expressly found that the relationship between Witness X and the applicant was one of drug supply.

16. [125]

    It was no part of the Crown’s case that the applicant had previously supplied drugs to Witness X. The impugned evidence was adduced by defence counsel in the cross-examination of Witness X in the pursuit of a forensic advantage. In closing address, the Crown Prosecutor made no reference to that evidence and did not invite the jury to conclude that the applicant had previously supplied drugs to Witness X. Similarly, Judge Townsden DCJ directed the jury that the Crown relied upon the evidence of Witness X, the intercepted calls and the messages on the 761 phone for the purpose of explaining the relationship with Witness X and establishing that the applicant was “in the business of illegal drug sourcing and supply”. This was consistent with the findings of Judge Harris.

17. [126]

    I am prepared to accept, considered in isolation, that Witness X’s evidence obtained in the cross-examination as set out at [120] above, was capable of being understood as calling into question the applicant’s acquittal on count 1 of the supply trial.

18. [127]

    This evidence was elicited by counsel for the applicant as a deliberate forensic strategy, explicitly said to be on instructions. After the impugned evidence was given, a further deliberate forensic decision was made by applicant’s counsel not to seek any direction about the evidence, in the face of specific inquiries from the trial judge. The evidence was not referred to in closing submission by either party and was not mentioned by the trial judge in the summing up.

19. [128]

    The repeated failure of counsel to seek a direction is a good indication that, in the atmosphere of the trial counsel for the applicant saw no injustice in what was done: Aravena v R (2015) 91 NSWLR 258 [2015] NSWCCA 288 at [121] (per Beazley P, Hall and Wilson JJ): Greenhalgh v R [2017] NSWCCA 94 at [42] (Basten JA, Button and N Adams JJ agreeing). Counsel for the applicant's decision not to seek the direction can readily be explained as a deliberate forensic choice.

20. [129]

    The deliberate forensic choices made by the applicant’s counsel make this a case where Rule 4.15 of the Criminal Appeal Rules should be applied.

21. [130]

    The impugned evidence was led in answer to questions asked by counsel for the applicant. Counsel for the applicant stated that those questions were asked as part of a clear forensic strategy. No directions were sought by counsel for the applicant at trial about the evidence. I would refuse leave under Rule 4.15 of the Criminal Appeal Rules to advance Ground 2.

22. [131]

    Even if I were minded to grant leave on the basis that there was in fact a contravention, given the fact that the evidence was not referred to in closing submissions by either party and was not mentioned by the trial judge in the summing up, no miscarriage of justice has been shown. The impugned evidence of Witness X was not sufficient to deprive the applicant the possibility of a different outcome: Brawn v R (2025) 99 ALR 872; [2025] HCA 20. I would nevertheless dismiss Ground 2.

Ground 3 - Lack of jury direction

1. [132]

   Critical to the applicant's case was the fact that Witness X was not alleged to have been involved in the importation offences with which the applicant was charged nor was it suggested she had knowledge of those offences. Instead, she was called to give voice identification and other evidence related to the phone conversations she had with the user of the mobile phone ending in 8004, the phone that was used to co-ordinate elements allegedly related to the importation offences.

2. [133]

   It was submitted that, given this background, her evidence “would likely have been understood by the jury as some indication of the applicant's involvement in those offences [committed by Witness X]”. The applicant submitted that the proper interpretation of the evidence given by Witness X was that it related only to the two isolated alleged supply events that the applicant was later acquitted of. As such, the applicant submitted that a direction about the applicant’s acquittals was required to be given to the jury.

3. [134]

   The Crown submitted that this ground was not made out because, none of the evidence led in the trial contravened the applicant’s acquittals. In any event, the decision not to put the applicant’s acquittals before the jury was a deliberate forensic decision by counsel for the applicant.

4. [135]

   The Crown submitted that no direction about the applicant’s acquittal was warranted and that the forensic decision made by the applicant’s counsel at trial should not be revisited in this Court.

5. [136]

   As the High Court has recognised, parties are usually bound by the conduct of their counsel, including being bound by decisions about what evidence to lead or to seek to have excluded: Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54], citing Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [9] and R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [48].

6. [137]

   There was a clear forensic reason for the applicant’s counsel not to seek admission of evidence about the acquittals, which would be the foundation of any direction about them. The applicant’s alleged prior drug supplies to Witness X did not form any part of the Crown case. Accordingly, there was no process of reasoning by which the acquittals could have borne upon the jury’s assessment of any fact in issue: Washer v The State of Western Australia (2007) 234 CLR 492; [2007] HCA 48 at [5].

7. [138]

   Introducing evidence of the acquittals would inevitably have revealed to the jury that the applicant had been charged with serious offences of supplying heroin to Witness X. This may have had the effect of drawing additional attention to the applicant’s involvement in the business of drug supply, a matter the applicant sought to have the jury treat as irrelevant.

8. [139]

   In the absence of any evidence at the trial that the applicant was charged and acquitted of two counts of supplying heroin to Witness X, there was no obligation on Judge Townsden DCJ to give a direction regarding the prior acquittals. In DPP v Ultutui [2014] VSCA 110, the Victorian Court of Appeal confirmed that, absent evidence of prior acquittals, the trial judge has no duty to place such matters before the jury. Redlich JA (with whom Neave and Tate JJA agreed) said at [60]-[61]:

9. [140]

   Counsel for the applicant made no request for a direction about the acquittals. Shortly after the impugned evidence given by Witness X, Judge Townsden DCJ expressly enquired of counsel for the applicant whether he was “seeking any further directions in relation to this area”, to which counsel replied, “No”. Although his Honour specifically drew attention to the form of the direction previously given by Judge O’Rourke SC in the earlier importation trial concerning the use of Witness X’s evidence, the intercepted calls, and the messages on the 761 phone, defence counsel did not seek any such direction. When directions were discussed on three further occasions prior to summing up, no request was made for a direction regarding the acquittals. During the summing up, counsel for the applicant was again asked whether further directions were required, and, while he did so in relation to other matters, he did not seek a direction concerning the applicant’s prior acquittals. Accordingly, r 4.15 of the Criminal Appeal Rules applies, and the applicant requires leave to raise this ground of appeal.

10. [141]

    Finally, the applicant has not formulated the direction which he now asserts ought to have been given. As Basten JA explained in Greenhalgh at [21], “it will usually be a precondition to a grant of leave under r 4 [now r 4.15] that the omitted direction should be expressly formulated. It will be difficult for the appeal court to assess the significance of the omission, being far removed from the context provided by the trial; it will be almost impossible if the terms of the proposed direction are not formulated.” As the plurality said in Washer at [31]:

11. [142]

    As the direction about acquittals was not sought, by reason of a deliberate forensic choice by counsel for the applicant, leave to appeal should be refused under Rule 4.15 of the Criminal Appeal Rules on Ground 3.

12. [143]

    If leave were granted, I would in any event dismiss Ground 3 for the reasons given.

Ground 4

1. [144]

   It will be recalled that Ground 4 was added by the applicant during the course of counsel’s submissions on the appeal. The applicant submitted that if it be correct that if there was no evidence of the acquittals at trial, and a direction could not be given, it followed that the trial judge was obliged to discharge the jury, notwithstanding the absence of any such application by counsel for the applicant.

2. [145]

   I am unable to agree that in the circumstances of this case the trial judge was obliged to discharge the jury. His Honour was alive to the possibility that the applicant may wish to lead evidence about those acquittals and asked a specific question of counsel for the applicant directed to that issue. Counsel for the applicant made a deliberate forensic decision not to lead that evidence or to seek that direction, for perfectly understandable reasons.

3. [146]

   The evidence of Witness X given in cross-examination, which is the fulcrum of the applicant’s case on this issue on appeal, was not referred to by either counsel in their addresses to the jury nor was it referred to by the trial judge in his Honour’s summing up. It is clear that in the atmosphere of the trial, counsel for the applicant did not see the issue as being at all important, let alone as being of sufficient gravity to warrant an application to discharge the jury. No application was made.

4. [147]

   As the discharge of the jury was not sought, by reason of a deliberate forensic choice by counsel for the applicant, leave to appeal should be refused under Rule 4.15 of the Criminal Appeal Rules on Ground 4.

5. [148]

   If leave were granted, I would in any event dismiss Ground 4 for the reasons given.

Conclusion and orders

1. [149]

   For the foregoing reasons I propose the following orders:

   1. (1)

      An extension of time to file the Notice of Appeal to 5 September 2025 granted.

   2. (2)

      Leave to appeal granted on Ground 1.

   3. (3)

      Leave to appeal refused on Grounds 2, 3 and 4.

   4. (4)

      Appeal dismissed on Ground 1.

2. [150]

   WEINSTEIN J: I agree with Payne JA.

3. [151]

   RIGG J: I agree with Payne JA.