Harriman v The Queen

In the introduction to his monumental work on evidence, Wigmore asserted:

It is of little practical consequence to construct a formula defining what is to be understood as "evidence". Nevertheless, its content is capable of being stated. What we are concerned with is the process of presenting evidence for the purpose of demonstrating an asserted fact. In this process, then, the term "evidence" represents: Any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or of logic, on which the determination of the tribunal is to be asked. (Wigmore on Evidence (1983), vol. 1, pp. 7-8)

It is an understatement to say that the law of evidence has developed in a piecemeal fashion. It has been influenced by a number of considerations, not the least of which is the jury system. As civil actions have come more and more to be tried by judge alone, different evidentiary rules have been developed for those actions. For instance, the hearsay rule has all but disappeared, at any rate in its operation. Indeed, it has been suggested that in civil litigation "most disputes regarding evidence are occupied with the parties' right of access to evidence, mainly in the hands of the opponent, and with the means of securing it. There is a general trend towards a merging of the rules of evidence and the rules of discovery, which were traditionally considered to be rules of procedure and not of evidence" (Zuckerman, Principles of Criminal Evidence (1989), pp. 3-4). On the other hand, complex rules have continued for criminal trials, with the focus very much on protecting the accused from abuse of power by instrumentalities of the State. This is most obvious in the privilege accorded to an accused against self-incrimination. It is against this piecemeal development that one writer has observed:

Founded apparently on the propositions that all jurymen are deaf to reason, that all witnesses are presumptively liars and that all documents are presumptively forgeries, it has been added to, subtracted from and tinkered with for two centuries until it has become less of a structure than a pile of builders' debris. (Harvey, The Advocate's Devil, (1958), p. 79, quoted in Cross on Evidence, 3rd Aust. ed. (1986), p. 3)

Even if the assertion be extravagant, it is true that the admissibility of evidence tends to be analyzed by reference to particular categories into which the evidence may be put or by reference to rules which demand its exclusion, rather than in terms of broad principle. As Wigmore pointed out (pp. 14-15):

Evidence is always a relative term. It signifies a relation between two facts, the factum probandum, or proposition to be established, and the factum probans, or material evidencing the proposition On each occasion the questions must be asked, Just what is the proposition desired to be proved? Just what is the evidentiary fact offered to prove?

Because of the exclusionary rules that have developed, evidence may be inadmissible notwithstanding its relevance to the fact to be established. The rule against hearsay evidence is an obvious illustration. Yet, evidence may be admitted where it is part of the res gestae although it is hearsay, opinion or self-corroborating: see, for example, Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle [23] ; Ratten v. The Queen [24] ; Reg. v. Andrews [25] ; also Reg. v. Fowkes (1856), cited in Stephen,Digest of the Law of Evidence, 12th ed. (1936), Art. 3. And so, although much learning has developed as to the operation and limits of res gestae, that learning has developed in a context where evidence, while relevant to prove a fact in issue, would otherwise be inadmissible.

1. (1940) 64 C.L.R. 514. 2. [1972] A.C. 378. 3. [1987] A.C. 281.

Again, evidence tending to show that an accused has been guilty of other criminal acts is inadmissible if it goes no further than to show a propensity to conduct of the kind alleged: Makin v. Attorney-General (N.S.W.) [26] ; Markby v. The Queen [27] ; Sutton v. The Queen [28] . The evidence is rejected, not because it is irrelevant, that is, not because it does not go to establish the fact to be proved, but because the cost of admitting it is generally thought to be too high. Its probative value is likely to be outweighed by the prejudice it will cause to the accused. But, if what is sought to be admitted can fairly be described as evidence of similar facts, it will be admitted in accordance with a line of authority culminating, in this Court, in Hoch v. The Queen [29] and Thompson v. The Queen [30] .

1. [1894] A.C., at p. 65. 2. (1978) 140 C.L.R., at p. 116. 3. (1984) 152 C.L.R., at pp. 545, 556. 4. (1988) 165 C.L.R. 292. 5. (1989) 63 A.L.J.R. 447; 86 A.L.R. 1.

Circumstantial evidence is variously defined but generally it is contrasted with direct evidence. Here there is scope for ambiguity but, for present purposes, the contrast may be said to be between testimony that a witness perceived a fact in issue (direct) and testimony from which a fact in issue may be inferred (circumstantial). Where it is alleged that a fact in issue can be inferred from a combination of circumstantial evidence, the jury in a criminal trial is to be directed that the primary facts constituting the circumstantial evidence must be established beyond reasonable doubt before any inference may be drawn from them: Chamberlain v. The Queen [No. 2] [31] . While the contrast with direct evidence may prove to be important when the jury is directed as to the use that may be made of evidence, admissibility of circumstantial evidence, as with other evidence, generally turns on relevance. However, similar fact evidence, as an aspect of circumstantial evidence, gives rise to its own test of admissibility: Hoch [32] .

1. (1984) 153 C.L.R. 521. 2. (1988) 165 C.L.R., at p. 296.

The point of these somewhat discursive remarks is not to cast doubt upon the usefulness of the various categories of evidence that have developed over time or upon the exclusionary rules. Rather, it is to draw attention to the pragmatic way in which evidentiary issues are canvassed and to emphasize that there is an underlying principle, that of relevance, which in some cases must be the focus of inquiry. This is such a case.

The first question which arises in the present application is whether the evidence admitted was relevant to any fact required to be established by the Crown before the applicant could be convicted. If the evidence was so relevant, only then does it become necessary to consider whether it was inadmissible by reason of any of the exclusionary rules or whether its admissibility was governed by any of the special rules that have been developed such as those relating to propensity and similar facts. Questions may also arise as to whether the evidence, if otherwise admissible, should have been disallowed in the exercise of judicial discretion because its probative value was outweighed by the prejudice likely to result to the applicant.

It was not, we were told, the intention of the Crown to lead any of the disputed evidence against the applicant. But a decision to lead the evidence was made in the light of the cross-examination of Martin by counsel for the applicant. Such decisions are of course made from time to time during the course of a trial. That is understandable, indeed inevitable. But the admissibility of evidence cannot always depend upon the line taken by the defence at trial for, at the stage the evidence is to be adduced, the nature of the defence may not be known. Evidence of similar facts may be led "to rebut a defence which would otherwise be open to the accused" (Makin [33] ). In Markby [34] , Gibbs A.C.J. observed of that statement: "the words do not mean that the admissibility of the evidence depends on the line taken by the defence at the trial, that is, on whether the accused has raised or disclaimed a particular defence." As a general observation, the same may be said of the admissibility of any evidence. In a criminal trial there is an indictment. The admissibility of evidence depends upon its relevance to issues raised by the indictment including defences available to the accused. If the accused is concerned that evidence sought to be adduced is relevant only to a defence upon which he does not intend to rely and that it is prejudicial to him, his counsel may so inform the court. Presumably the evidence will not then be pressed or, if pressed, it is likely to be rejected because it is not probative of any disputed fact. Equally, a particular line of defence may serve to point up the admissibility of the evidence to which objection is taken.

1. [1894] A.C., at p. 65. 2. (1978) 140 C.L.R., at pp. 116-117.

Here the primary issue was whether the applicant was "knowingly concerned" in the importation of the heroin posted to Western Australia from London. Martin claimed that the applicant acted in concert with him in that importation; if the applicant was shown to have so acted, then it was established that he had been "knowingly concerned". There was evidence that the applicant and Martin were involved in a business that was having financial problems, that the applicant and Martin were together in Thailand and together made a one-day journey to Chiang Mai and that this was the occasion on which the heroin was obtained, that Martin took the heroin to London and posted it to five addressees in Perth, two of which had been provided by the applicant. Martin was cross-examined with a view to showing that on this occasion he acted independently of the applicant. I mention that, not because the cross-examination rendered admissible what would otherwise have been inadmissible, but simply to point up that it was part of the Crown case that the two men acted in concert and the defence case that they did not. Evidence of a transaction, shortly before, involving the sale of heroin to Gawthorpe and in which the two men had been concerned was relevant to the likelihood of the applicant having acted in concert with Martin when the two men were in Thailand together and when one of them (Martin) had obtained heroin, taken it to London and then sent it to Western Australia.

Now it is true that such evidence was also likely to demonstrate a propensity on the part of the applicant to engage in heroin trafficking. But the evidence went beyond that. It was relevant to the character of the association between the applicant and Martin and was admissible for that reason, though, questions of prejudice aside, possible misuse of the evidence by the jury required that its purpose be explained with some care to them. The evidence was not admissible as similar fact evidence for it related only to occasions on which the applicant had sold or used heroin. The offence with which the applicant was charged was that of being knowingly concerned in the importation of heroin into Australia, a different kind of offence, to which none of the usual attributes such as "striking similarities", "unusual features", "underlying unity", "system" or "pattern" (Hoch [35] ) could be applied. It was the relevance of the evidence to the likelihood that the two men acted in concert in Thailand that made it admissible. There was some prejudice in the notion that the applicant was likely to have been involved with Martin in the importation of heroin because the two had been involved in the sale of heroin a short time earlier. However, it is hard to see any proper basis on which the evidence should have been excluded. Its probative force was strong and clearly outweighed its prejudicial effect when the defence was that Martin was acting independently of the applicant. I find it unnecessary therefore to consider whether the not entirely satisfactory refinement in the area of similar fact evidence - "the distinction between excluding the evidence because it is insufficiently relevant, and excluding it because its prejudicial effect exceeds its probative force" (Cross on Evidence, 3rd Aust. ed. (1986), p. 513) - has some wider operation.

However, evidence that the applicant had, on previous occasions, injected himself with heroin was inadmissible. Of itself it went nowhere to proving any involvement by the applicant in the importation of the heroin the subject of the charges against him. Even when taken in conjunction with the other evidence properly admitted, it was no more consistent with the applicant's participation in the Chiang Mai venture than it was with other hypotheses, in particular the obvious one that the applicant was a user of but not a dealer in heroin. Nevertheless, although that evidence was inadmissible and, no doubt, prejudicial to the applicant, any prejudice was slight. It is not as if there was no other evidence against the applicant of association with heroin. There was other evidence and it went to the more serious situation of the applicant's involvement in the sale of heroin. It can hardly be said that, by reason of the admission of the evidence relating to his use of heroin, the applicant "may thereby have lost a chance which was fairly open to him of being acquitted" (Mraz v. The Queen [36] ; see also Wilde v. The Queen [7] ).

1. (1955) 93 C.L.R. 493, at p. 514. 2. (1988) 164 C.L.R. 365.

The tender of the letters written by the applicant to Lisk presents more of a problem. I have read what Gaudron J. has to say about the admissibility of that correspondence. I agree with her Honour's view of the evidence and in particular I agree that it was incumbent on the trial judge, in the exercise of his discretion, to exclude those passages in the letters identified by her Honour because whatever evidentiary effect they may have had was outweighed by their prejudicial impact.

But, even when the offending passages are excised, the letters contain material readily capable of incriminating the applicant in the transaction the subject of the charges against him. For instance, in a letter headed "Sunday Evening" the applicant wrote to Lisk:

I'm enclosing a note for John Martin, could you give it to him please. You don't need to talk to him, in fact, I wouldn't recommend it at all. He is probably trying to check you out for more information. The people who we were unloading to said he was dead meat if he signed them up so he pointed out some other people. In another letter to Lisk, dated 20 October 1987, the applicant wrote: I will expect that the Fed Pigs desperately want to get all three of us [apparently a reference to the applicant, Lisk and Lisk's wife] together in the box in Supreme Court and play us off against each other. This can be avoided if you say absolutely nothing. If there was enough evidence to do this, we'd all be standing in a Preliminary Hearing together. Remember, these guys don't really know who is the importer or distributor, they don't even know who worked this thing out. The case against the applicant, based on the evidence that was admissible, was so strong that no reasonable jury would have acquitted him, even allowing for the fact that Lisk's own evidence was unsatisfactory.

Although complaint was made of the trial judge's direction to the jury, the applicant has not succeeded in showing that there was any misdirection or failure to direct which would warrant quashing the convictions. The trial judge told the jury that the evidence of the applicant's "involvement with heroin and receiving money for it" was not led to show that the applicant was "of an undesirable reputation" but was led "to create the entire picture, so you can have this idea, this allegation that the accused went over to Thailand to obtain heroin as is said by the Crown witnesses, in its proper context".

No doubt his Honour could have explained to the jury the relevance of that evidence in greater detail and also he should have told them of the way they should approach the matter of circumstantial evidence. But he was not asked to correct or amplify his direction and it is fair to say that before this Court the thrust of the applicant's argument went to admissibility rather than to the charge to the jury.

I would grant special leave to appeal but would dismiss the appeal.

The facts are set out in the judgment of McHugh J. Save to the extent that they are later dealt with, it is unnecessary to repeat them. The issue which falls for decision by reference to those facts is whether certain evidence was correctly admitted at the trial of the applicant on five counts of being knowingly concerned in the importation into Australia of heroin contrary to s. 233B(1)(d) of the Customs Act 1901 Cth. If it or any part of it was not correctly admitted, the further question arises whether, nevertheless, "no substantial miscarriage of justice actually occurred", so as to render applicable the proviso to s. 689(1) of the Criminal Code W.A..

It is convenient to deal with the evidence in question by reference to two broad categories: evidence of the applicant's prior use of and prior dealings by way of supply of heroin in Western Australia; and evidence going to a consciousness of guilt of the offences charged.

Prior Use and Supply of Heroin in Western Australia

The prosecution case was that the applicant and Lester John Martin, who were closely associated as directors and shareholders in a mining company which was facing financial problems, were together involved in the importation of five packages of heroin into Australia with a view to solving the financial difficulties of their mining company. On the prosecution case the plan was suggested by the applicant but the machinery steps were, in the main, executed by Martin.

Not surprisingly, the defence case was that the importation was a venture undertaken by Martin quite independently of the applicant. The ground for that defence was laid in the cross-examination of Martin who had already been convicted for his part in the importation and who gave evidence for the prosecution. That cross-examination elicited that Martin had visited Chiang Mai approximately one month prior to the occasion when he and the applicant together journeyed there and when, according to Martin, the heroin was obtained as a result of arrangements made by the applicant. On that earlier visit Martin made no contact with the applicant even though he knew that the applicant was then in Thailand. Additionally, there was evidence from a witness, David Paul Gawthorpe, that Martin had previously been involved in supplying heroin in Western Australia.

The prosecution was entitled to call evidence in chief negating the possibility that Martin had undertaken the importation independently of the applicant: Shaw v. The Queen [8] ; Killick v. The Queen [9] ; Lawrence v. The Queen [10] ; Reg. v. Chin [11] . In this Court it was argued on behalf of the respondent that evidence of the applicant's prior use of and prior dealings by way of supply of heroin was admissible to negate that possibility.

1. (1952) 85 C.L.R. 365. 2. (1981) 147 C.L.R. 565. 3. (1981) 38 A.L.R. 1. 4. (1985) 157 C.L.R. 671.

Evidence which shows no more than the propensity of an accused to engage in criminal conduct of a particular kind or that the accused is the sort of person likely to commit the offence charged is not admissible to prove that he committed the offence charged: Makin v. Attorney-General (N.S.W.) [12] ; Markby v. The Queen [13] ; Perry v. The Queen [14] ; Sutton v. The Queen [15] . However, evidence which has a high probative value and raises, as a matter of common sense and experience, the improbability of the offence charged having been committed other than as claimed by the prosecution is admissible in a criminal trial, notwithstanding that it discloses prior criminal conduct or propensity to commit the offence. See Martin v. Osborne [16] , per Dixon J.; and per Evatt J. [17] ; Hoch v. The Queen [18] ; Thompson v. The Queen [19] . Indeed, in some situations it may be the propensity of the accused to commit the offence which raises the question of the improbability of the offence having been committed other than as claimed by the prosecution, at least if the evidence discloses unusual or unique features which render it improbable that anyone else had a like propensity. But, in that situation, the evidence establishes much more than mere propensity.

1. [1894] A.C. 57, at p. 65. 2. (1978) 140 C.L.R. 108. 3. (1982) 150 C.L.R. 580. 4. (1984) 152 C.L.R. 528. 5. (1936) 55 C.L.R. 367, at p. 375. 6. (1936) 55 C.L.R., at p. 385. 7. (1988) 165 C.L.R. 292, at pp. 294-295. 8. (1989) 63 A.L.J.R. 447; 86 A.L.R. 1.

Evidence which is admissible because, in the words of Evatt J. in Martin v. Osborne [20] , it allows for "admeasuring the probability or improbability of the fact or event in issue, if we are given the fact or facts sought to be adduced in evidence", is commonly referred to as "similar fact evidence". However, as I endeavoured to point out in Thompson [21] it is not restricted to evidence which, by reason of "striking similarities", raises the improbability of the offence having been committed other than as claimed by the prosecution. See also per Brennan J. [22] , and per Deane J. [22] . And, as Hoch shows, the presence of "striking similarities" will not be sufficient to render the evidence admissible if it lacks the requisite probative value because the similarities are reasonably explicable on a basis inconsistent with the guilt of the accused.

1. (1936) 55 C.L.R., at p. 385. 2. (1989) 63 A.L.J.R., at p. 463; 86 A.L.R., at p. 28. 3. (1989) 63 A.L.J.R., at p. 460; 86 A.L.R., at p. 22. 4. (1989) 63 A.L.J.R., at p. 460; 86 A.L.R., at p. 22.

It was open to the prosecution to negate the possibility that Martin had acted independently of the applicant by evidence which, as a matter of common sense and experience, rendered that improbable. Evidence to that effect, if it disclosed prior criminal activity on the part of the accused, would only be admissible if of high probative value.

The probative value of what I shall, for want of a better expression, call "improbability evidence" lies in the evidence, if accepted, not being susceptible of rational explanation on a basis inconsistent with the guilt of the accused: Hoch [23] . Where that probative value derives, if at all, from the improbability of concoction then it is necessary to inquire, as in Hoch , whether the evidence is capable of rational explanation on the basis of concoction. But that situation aside, probative value is a matter quite distinct from the question whether the evidence is necessarily, or even likely, to be accepted by a jury as true.

The probative value of the evidence is to be assessed having regard to its effect "taken together with the other evidence": Reg. v. Boardman [24] , per Lord Cross of Chelsea. See also Sutton [25] . In that assessment it is not permissible to assume the truth of the fact in issue. See Perry [26] per Gibbs C.J.; per Brennan J. [27] ; Sutton [28] , per Gibbs C.J.; per Brennan J. [29] ; Thompson [30] , per Mason C.J. and Dawson J.; per Deane J. [31] .

1. [1975] A.C. 421, at p. 457. 2. (1984) 152 C.L.R., at pp. 532-533, 549-550, 557, 559-560. 3. (1982) 150 C.L.R., at pp. 589-590. 4. (1982) 150 C.L.R., at p. 612. 5. (1982) 150 C.L.R., at p. 533. 6. (1982) 150 C.L.R., at pp. 550-552. 7. (1989) 63 A.L.J.R., at p. 453; 86 A.L.R., at pp. 11-12. 8. (1989) 63 A.L.J.R., at p. 460; 86 A.L.R., atp. 22.

At the trial there was evidence, the admissibility of which is not in issue, to the effect that the applicant had discussed with other witnesses ways by which heroin might be imported into Australia, that he had suggested that he had previously obtained heroin from overseas, that he was engaged with Martin in a business venture which was in financial difficulty, and that he and Martin had undertaken a long and uncomfortable overnight journey to Chiang Mai and had returned to Bangkok on the same day that they had arrived in Chiang Mai. According to Martin, the heroin was obtained that day in Chiang Mai.

The undisputed evidence that Martin and the applicant were business associates and had travelled together to Chiang Mai gave rise to an inference that the journey had been undertaken for a common purpose. The applicant said the purpose was solely recreational; Martin said it was to obtain the heroin later posted by him to Australia. The evidence that the applicant had supplied heroin in Western Australia to the witness, Gareth David Lisk, that he had on one occasion collected $20,000 as payment for heroin supplied by Martin to the witness Gawthorpe, and that he had paid money to Gawthorpe for delivering heroin from Martin to Lisk, when taken in conjunction with the other evidence in the case (but leaving aside Martin's evidence as to the obtaining of the heroin and the applicant's involvement in that venture), allowed for the admeasuring of the probability that the purpose was as identified by Martin and the improbability of the purpose ascribed by the applicant. And on those issues, if accepted by the jury, it had a high level of probative value. When taken with the other evidence in the case (again leaving aside the evidence of Martin as to the obtaining of the heroin and the applicant's involvement in that venture), as a matter of common sense and experience, it pointed inexorably to the long and uncomfortable overnight journey to Chiang Mai having been jointly undertaken for the purpose identified by Martin.

The evidence of the applicant's dealings in heroin in Western Australia was properly admitted notwithstanding that it revealed past criminal activities on his part. The evidence as to the applicant's use of heroin is, in my view, in a different category.

As a matter of common sense and experience, the fact that a person has used heroin, standing alone, says nothing as to the probability of that person having been concerned in the importation of heroin. But the evidence must be evaluated in combination with the other evidence in the case. When so evaluated, the evidence of the applicant's use of heroin might possibly have had a bearing on the improbability of the journey to Chiang Mai having been undertaken solely for the purpose ascribed by him. Even so, the evidence is consistent with reasonable hypotheses other than that the journey to Chiang Mai was undertaken for the purpose of implementing a plan to import heroin into Australia. Like the evidence considered in Hoch , there was a rational view of that evidence other than the guilt of the accused on the charges which he faced. The evidence, therefore, lacked the requisite probative value necessary to render it admissible.

This evidence consists of a number of letters written by the applicant to the witness Lisk. Lisk and another person, Sonia Mulik, were also charged with offences relating to the importation of the heroin the subject of the charges against the applicant. In this Court the argument concerning these letters was limited to a submission that certain passages should have been deleted by the trial judge.

In the letters the applicant discussed the charges against him, Lisk and Ms Mulik. The applicant suggested various tactics (forensic and otherwise) which might be employed in defending those charges. Even though there was no direct acknowledgment in the letters of the applicant's participation in the offences charged, the discussion of the charges and the suggested tactics constituted evidence which, when viewed with the other evidence in the case, was capable of grounding an inference that the applicant had thereby revealed his guilt or indicated that he was conscious of his guilt of those offences. See Woon v. The Queen [32] .

The letters also contain a statement concerning the applicant's use of heroin, statements relating to his having been charged with conspiracy to import heroin in October 1986, and other statements which generate a suspicion of his involvement in other serious drug offences. I have already indicated my view that evidence of the applicant's use of heroin lacks the requisite probative value to render it admissible in proof of the offences charged. If the statements relating to "the October conspiracy" and other statements referring to other drug offences established the applicant's involvement in those offences they might have been admissible on the same basis as the evidence of Gawthorpe and Lisk as to the applicant's dealings by way of supply of heroin in Western Australia. That is not a matter that need be explored for, as will later appear from the statements themselves, they stop short of acknowledged involvement and merely generate suspicion of involvement.

At the trial counsel for the applicant objected to the tender of the letters on two grounds. It was claimed that the letters were irrelevant to the charges. Additionally, it was objected that the letters were extremely prejudicial and had little probative value. No separate application was made for the deletion of any parts of the letters.

Two of the letters contain statements which had no bearing on the offences with which the applicant was charged and which provided no context for the discussion of any matter bearing on those charges. It is necessary to set out these statements. To enable an appreciation of context, the statements are set out in relevant context (if any) but identified by use of italic print.

The first statement is contained in a letter headed "Saturday Night". The letter has a paragraph which refers exclusively to other charges as follows:

Charges levelled about an importation prior to this one of John Martin's cannot be substantiated or there is no evidence to support any of the charges except the statement of David's. David most likely, will not testify, however (in the event he does make it there) if he does, he probably has no power over 3 of us because I, John Martin, and you will deny it and Martin is not charged with the conspiracy, at all.

The second statement is in a letter dated 6 October 1987 which contains two paragraphs as follows:

Good news that you will no longer face a conspiracy wrap. Not good about that girl and her man signing you up. I have a problem now, a 29 year old girl getting charged at Taxation Office for selling gear (smoke, I hope). I would be disappointed if she signs me up or even claims that she knows me. I really don't need any more problems.

It was believed that you were to pick you [sic] in Sydney some 5 kilos. As you know, 4.5 kilos were intercepted the week that the parcels arrived in Perth. John Newton didn't know anything about us, did he? 5 kilos was delivered in Melbourne the same week!

The above statements stopped short of acknowledged involvement in the offences thereby suggested. To the extent that they revealed knowledge of drug offences, that knowledge might have been obtained other than by participation in them. See Woon [33] ; per Windeyer J.; Mickelberg v. The Queen [34] . They provided no context giving significance to statements relating to the offences charged or bearing on them. They were thus not probative of any issue in the trial. Objection having been taken on the ground of relevance, they should have been deleted from the letters in accordance with the common practice in criminal trials relating to inadmissible statements in documentary evidence.

1. (1964) 109 C.L.R., at pp. 542-543. 2. (1989) 167 C.L.R. 259, at pp. 309-311.

The letters contain other statements of like nature which are technically admissible because they provided a context for the discussion of the charges or matters bearing on those charges. It is necessary to set out some of those statements in a manner identifying their context. Again, the statements which invite consideration are italicized:

Letter of 2 September 1987: This letter discusses the evidence as known to the applicant. It contains the following statement:

Obviously, I'm denying all charges and Lester John Martin is denying conspiracy dating back to last October. The NCA took some photos of me with Martin in Chiangmai (Thailand)

Letter headed "Sunday night, Division 3, G29": This letter contains suggested explanations of the evidence. It has this paragraph:

David Gawthorpe appears to be making a statement against me (or will do at Preliminary Hearing on 11 Sept). He has made a statement against Lester John Martin and as [a] result I was charged last month jointly with you and L. J. Martin of conspiring to import back in October.

Letter of 8 September 1987: This letter deals with the prison situation, but makes references to the witness Gawthorpe. Additionally, it contains this paragraph:

Do never ever give up hope, these guys are going to try to stitch us both up. I'm confident that I can beat this blue. If you need to have someone to give up for a deal if you think your case is lost I can supply you with a dealer-user-supplier's name that is now dead so it will be harmless and you've still done the right thing by the Fed Pigs.

Letter of 23 September 1987: This is a lengthy letter canvassing many aspects of the evidence and the charges. It includes this paragraph:

I do not know why you and Sonia went to Sydney but I assume that you have friends over there and probably went for a brief holiday break. Lots of people go to the big city in Sydney to see what its like. (Its possible the Fed Pigs and NCA think that you went to collect 5 KGs of 83% heroin - I believe that Martin had been throwing off about some shipment to Sydney. Incidently, 4.5 KGs of No. 4 from Thailand got taken one week after Martin was arrested - these guys think you and I were responsible for that.)

Letter headed "Saturday": This lette begins with the following paragraph:

Cliff told me that L. J. Martin had told you that you would definitely go down on these charges. Please be advised that he is probably trying to intimidate you because if you nod to the charges and not implicate me, you'll wear the lot and I'll walk. This is admirable and I'd do it for you if the situation was reversed, but you don't need to do that - it would be wasteful. If David G.'s testimony against you and me was not testified in Court, would you then rate your chances higher? I am working on sorting this problem out. Don't forget, a statement is worthless and cannot be utilised if the witness is not there to testify or won't testify. This is a fact, because I beat those conspiracy charges in N.Z. I could not even be charged because no one would testify against me. So, what the Fed Police told you is not correct, I am no longer wanted in New Zealand. I've never even been questioned about it since the incident 9 years ago and I've been back to N.Z. on several occassions [sic] 4 or 5 in fact).

Letter of 30 September 1987: This letter also contains suggested explanations of the evidence. It has this paragraph:

There is no need to say anything about Willagee Pub, if you are not careful, we'll all be looking at a conspiracy for sure. Fed Pigs know all about the packages wrapped in red-tape and they also know about 5 kgs going to Sydney. They thought that you two were going to pick it up. They got a husband and wife with 4.5 kgs that week!! The reference to packages wrapped in red tape would seem to be a reference to the heroin the subject of the charges against the applicant.

As previously mentioned, counsel for the applicant objected that the letters were highly prejudicial and bore little probative value. By so doing, counsel invoked the discretion which inheres in a judge at a criminal trial to exclude evidence which is technically admissible but which would operate unfairly against an accused. See Driscoll v. The Queen [35] . The trial judge's ruling admitting the letters made no reference to that discretion or to any matter relevant to its exercise. Even though no separate application was made for the deletion of any passages in the letters, I consider the circumstances of the case were such that, the discretion having been invoked, it was incumbent upon the trial judge to consider whether it should have been exercised in a manner involving deletions from the letters.

The discretion to exclude evidence which is technically admissible but which would operate unfairly against an accused is an aspect of the trial judge's overriding duty to ensure the fairness of the trial: Harris v. Director of Public Prosecutions [36] , per Viscount Simon. It is a discretion the exercise of which is "particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused": Driscoll [35] , per Gibbs J. In such circumstances the exercise of the discretion is not infrequently initiated by the trial judge. Indeed, in R. v. Christie [40] Lord Reading referred to "the constant practice for the judge who presides at the trial to indicate his opinion to counsel for the prosecution that evidence which, although admissible in law, has little value in its direct bearing upon the case, and might indirectly operate seriously to the prejudice of the accused, should not be given against him".

1. [1952] A.C. 694, at p. 707. 2. (1977) 137 C.L.R. 517, at p. 541. 3. [1914] A.C. 545, at p. 564.

The italicized passages which I have identified as technically admissible had little direct bearing on the issues in the trial. The passages were gravely prejudicial in that they generated suspicion of serious involvement in drug offences. They might easily have been deleted. The invocation of the discretion by way of general objection to the tender of the letters, when taken in the context of the duty of the trial judge to ensure the fairness of the trial, was, in my view, sufficient to require the trial judge to give consideration to the deletion of the italicized passages. The failure to do so was a serious blemish on the trial.

A proper exercise of the discretion would, in my view, necessarily have resulted in the deletion of those italicized passages in the letters in which reference was made to quantities of heroin arriving in Australia (not being the heroin involved in the offences with which the applicant was charged), along with the passage relating to past events in New Zealand, and the passages concerned with "the October conspiracy". Like the passages previously identified as inadmissible those passages stopped short of acknowledged participation in the offences suggested, and so far as they disclosed knowledge of offences, it was knowledge which might have been gained other than by participation therein. They were technically admissible only because they provided context for other statements bearing on the offences charged. However, their contextual significance was minimal, and their potential prejudicial impact was wholly disproportionate to that significance.

The commonly accepted test as to whether there has been a substantial miscarriage of justice by reason of error or blemish in the trial is that the accused "may thereby have lost a chance which was fairly open to him of being acquitted": Mraz v. The Queen [41] per Fullagar J. That question may require a court of criminal appeal to consider "for itself the evidence and the inferences properly available therefrom": Driscoll [42] . The proviso may be applied in a case where evidence has been improperly admitted: Wilde v. The Queen [43] . In such a case the proviso will be applied if the court "is positively satisfied that, in all the circumstances of the trial, the jury's verdict of guilty would plainly have been the same if the error had not occurred": Van der Meer v. The Queen [44] , per Deane J. There is particular difficulty in being satisfied that the result would have been the same in cases which ultimately depend on the credibility of witnesses. See Driscoll [45] ; Wilde [46] . At least that is so in cases where the error may have operated to enhance the credibility of prosecution witnesses or to detract from the credibility of defence witnesses.

1. (1955) 93 C.L.R. 493, at p. 514. 2. (1977) 137 C.L.R., at p. 525. 3. (1988) 164 C.L.R. 365. 4. (1988) 62 A.L.J.R. 656, at p. 668; 82 A.L.R. 10, at p. 30. 5. (1977) 137 C.L.R., at pp. 542-543. 6. (1988) 164 C.L.R., at pp. 381-382.

The present case may well be thought to be a strong case against the accused. Indeed, if the jury accepted the evidence of the applicant's prior dealings in heroin as testified by Gawthorpe and Lisk, verdicts of guilty were virtually inevitable. However, if the jury rejected that evidence, there was a real prospect of acquittal.

The evidence of Gawthorpe and Lisk as to the applicant's prior dealings in heroin had high probative value in that, if accepted, it pointed inexorably to guilt. But there was nothing about the evidence which compelled its acceptance. Indeed, there were real grounds for it to be questioned. Lisk was not only an accomplice in the offences charged, but his evidence was contradictory in a number of respects. The evidence of Gawthorpe as to the applicant's association with Martin in the supply of heroin in Western Australia depended on the jury accepting that Martin had previously supplied heroin as testified by Gawthorpe. Martin denied this. And Gawthorpe's confessed involvement in the supply of heroin left his credit open to serious attack.

The inadmissible statements in the letters and those statements which would necessarily have been deleted in the proper exercise of discretion generated suspicion of the applicant's involvement in a number of serious drug offences. There is a real possibility that, but for the suspicion so generated, the jury might have rejected the evidence of Gawthorpe and Lisk. That being so, the applicant may have lost a chance of acquittal which was fairly open to him.

I would grant special leave to appeal, allow the appeal, and order a new trial.

In this application for special leave to appeal against convictions in respect of five charges that on or about 21 April 1987 at Perth the applicant was knowingly concerned in the importation into Australia of heroin contrary to s. 233B(1)(d) of the Customs Act 1901 Cth, the question for determination is whether evidence that he was involved in the use and sale of heroin before March 1987 was wrongly admitted. A majority of the Court of Criminal Appeal of Western Australia (Wallace and Smith JJ., Franklyn J. dissenting) held that the evidence was correctly admitted.

The applicant contends that the evidence could prove no more than that by reason of his disposition he was likely to commit the offences with which he was charged and, therefore, was inadmissible. The reply of the Crown is that the evidence was properly admitted because it tended to prove that the applicant was acting in concert with Lester John Martin who gave evidence that he had sent the heroin to Australia.

The case against the applicant depended primarily on the evidence of Martin who with the applicant was a director and substantial shareholder in a mining company operating in Western Australia. Although the applicant denied the charges, he called no evidence to rebut the Crown case. Martin alleged that after Christmas 1986 a creditor was placing pressure on the company to repay a loan. Attempts to obtain finance to repay the loan failed. In about March 1987 the applicant suggested to Martin that they could raise finance by bringing drugs into the country. They agreed that the applicant would go overseas, arrange for Martin to pick up heroin in Thailand, take it to London, and then post it back to Australia. The applicant left Australia on 4 March 1987. Martin left Australia for Bangkok on 10 April 1987. Before leaving Australia, the applicant gave Martin a telephone number and an address where he could be contacted in Bangkok. Martin met the applicant at a hotel in Bangkok on 11 April 1987. The applicant told him that they had to pick up "the stuff" at Chiang Mai which was approximately 700 kilometres from Bangkok. They left for Chiang Mai by bus that night. In a room at a guest house in Chiang Mai the applicant told Martin that someone would come and see him. The applicant then left. About half an hour later, a Thai male arrived and handed Martin five small red capsules wrapped in red insulation tape. That night Martin and the applicant flew back to Bangkok. At an apartment in Bangkok, the applicant helped Martin wrap the heroin in five packages. The applicant then instructed Martin to go to London and post the packages to Perth. He gave Martin two addresses in Perth to use. In London, Martin placed the packages into five "brown Jiffy bags" and posted them to four addresses in Perth. All five packages were intercepted at the Perth Mail Exchange and found to contain heroin. Their importation into Australia was the basis of the five charges against the applicant.

The applicant returned to Australia on 10 May 1987. Later that day he was interviewed by Detective Constable Leask. The applicant claimed that his trip had been for business purposes. He agreed that he had met Martin in Bangkok and gone to Chiang Mai with him. But he claimed that they had gone to Chiang Mai to attend a "water festival". The applicant made no admission that he was involved in the importation or acquisition of heroin.

The Crown relied on evidence given by Gareth David Lisk and David Paul Gawthorpe to corroborate the evidence of Martin. Lisk said that in February 1987 he and the applicant had discussed possible ways of getting heroin into the country and that one method suggested was importing heroin "through the post". Lisk gave the applicant two addresses to use. They were the two addresses which Martin said that the applicant gave to him in Bangkok. While the applicant was overseas he spoke to Lisk by phone and told him that "things could be happening". Lisk took this to mean that "heroin was coming".

Gawthorpe gave evidence that somewhere around June or July 1986 the applicant had told him that his mining company needed money and that one solution "would be to bring heroin into Australia from Thailand". About September 1986 as a result of a request from Lisk, Gawthorpe took the applicant to Lisk's apartment where a discussion took place during which Lisk said that he knew "where to get a good grade of heroin and a good price". Lisk also discussed methods of bringing heroin into Australia. They included mailing it. Gawthorpe also remembered a conversation where the applicant said "that it used to take him a long time to get to Chiang Mai to get the gear". In November 1986 the applicant offered Gawthorpe $10,000 "to do a run over there, either take it somewhere else or bring something back here".

Counsel for the applicant did not dispute that this evidence of Lisk and Gawthorpe was admissible against the applicant. If it was accepted by the jury, it provided corroboration of Martin's evidence implicating the applicant. However, the evidence of Lisk and Gawthorpe did not exclude the possibility that, although the applicant had given Martin two of the addresses to which the heroin was sent and knew that heroin could be obtained in Chiang Mai, Martin acted on his own in importing the heroin.

In the opening address of counsel for the Crown, no reference was made to the evidence which is the subject of this application. At that stage the Crown did not intend to lead any evidence concerning heroin dealings by Martin and the applicant prior to March 1987. However, as the result of the cross-examination of Martin, counsel for the Crown changed his attitude. Under cross-examination Martin admitted that he had been in Chiang Mai early in March 1987 and that he had not made any contact with the applicant on that occasion, although he knew that he was in South-East Asia. Moreover, Martin asserted that he could not remember why he had gone to Chiang Mai on that occasion. He also denied in cross-examination that he had given heroin to Gawthorpe in exchange for money. As it was known that Gawthorpe, if asked, would say that he had paid substantial sums of money to Martin for heroin, the absence of evidence linking Martin and the applicant in dealings in heroin prior to March 1987 had serious implications for the Crown case. Although there would be some evidence suggesting that the applicant had had previous dealings with heroin, there would be no evidence that he and Martin jointly dealt in heroin. Moreover, there would be evidence that Martin was a heroin dealer on a large scale, that he had been in Chiang Mai in March 1987 when the applicant was not present, and that he had not contacted the applicant. These considerations could give rise to a reasonable doubt as to whether Martin had independently arranged the importation of the heroin while he was in Chiang Mai in March 1987. Consequently, the Crown decided to call evidence to show that, prior to the applicant leaving Australia in March 1987, he and Martin were jointly involved in selling heroin. In addition to this evidence, other evidence of the applicant using and dealing in heroin was tendered. The Crown submitted that the evidence was admissible because it went "to coloration of the situation, and particularly so when one has the defence putting the proposition that it is Martin who is the dealer, the obtainer, and, exclusively of the accused, the sender into Australia". The Crown submitted that "once you have a known fact framework and are only looking to the coloration of it, then the evidence is inevitably to be admitted". The question which arises is whether any of this evidence was properly admissible. If some of the evidence was admissible, a further question arises as to whether the trial miscarried because of the tender of that part of the evidence which was inadmissible.

Both Lisk and Gawthorpe gave evidence implicating the applicant in the prior use of and dealings in heroin. Lisk said that in November 1986 he saw the applicant at a factory unit owned by Gawthorpe in Bayswater. The applicant had some heroin with him and Lisk "bought a little bit off him". However, later in his evidence-in-chief Lisk said that his first involvement with the applicant in relation to heroin was at "Christmas time 1986" when he got "a few grams off him". He did not pay for that heroin. Later on the applicant gave him more heroin for which he did not pay. He obtained more heroin from the applicant "when we ran out, which could have been once a week or maybe 3 weeks - any time". At some stage Lisk told the applicant that the price he was paying for heroin was "a bit expensive". The applicant said that he would see what he could do. Although Lisk obtained heroin from the applicant for his own use, he said that he also bought heroin from him to sell to other people. In cross-examination, however, Lisk said that Gawthorpe was his supplier. Under further cross-examination Lisk said that it was not really true to say that the applicant had supplied him with heroin and that he had got it all from Gawthorpe. Later, in answer to a question from the trial judge, Lisk said: "The heroin I got off Harriman [the applicant] - I didn't pay for it in money. When I paid for it, I got it off David Gawthorpe."

The evidence of Lisk, a heroin addict, in respect of prior heroin dealings with the applicant was unsatisfactory. It is unlikely that the jury would have acted on it without other evidence of the applicant dealing in heroin. Moreover, it did not link the applicant and Martin as being jointly involved in heroin dealings before April 1987. However, evidence given by Gawthorpe pointed to the applicant and Martin being jointly involved in selling heroin to Lisk through the agency of Gawthorpe.

Gawthorpe said that in the Christmas/New Year period 1986/87 Lisk told him that a person named John would ring Gawthorpe and tell him that he had some heroin for him to pick up. Gawthorpe said that, with $10,000 given to him by Lisk, he arranged to meet that person at a hotel. He turned out to be Martin. Gawthorpe gave the $10,000 to Martin in exchange for heroin which Gawthorpe passed on to Lisk. Some days after this incident Gawthorpe received an ounce of heroin from Martin at a motel. However, he could not remember giving Martin any money for that heroin. Later Gawthorpe received an ounce of heroin from Martin at Cottesloe Beach and in return gave him $5,000 which he had received from Lisk. On another occasion Gawthorpe rang a telephone number to speak to Martin who was not there. Gawthorpe spoke instead to the applicant. He told the applicant that he wanted to speak to Martin "to pick some more gear up". He made an arrangement with the applicant to meet Martin at a tavern. But Martin was not there when Gawthorpe arrived. Later that evening, the applicant came to a caravan where Gawthorpe was living and questioned him as to why he had not met Martin as he said he would. Gawthorpe explained that Lisk was late in giving him the money. Gawthorpe then handed the sum of $20,000 to the applicant. After counting the money, the applicant said that it was $5,000 short. Gawthorpe explained that he had previously given "that money" to Martin at Cottesloe. The applicant said that "he just didn't trust the old bastard".

Gawthorpe also gave evidence that, on an occasion at Lisk's home, Lisk asked the applicant when "the next stuff was coming over" and that the applicant said, "As soon as I get over there to organise it." Lisk then questioned the applicant about the price which he was paying for heroin. The applicant told Lisk that he "was selling it to people for a lot more".

The evidence of Gawthorpe, if accepted, gave rise to the inference that Martin and the applicant were jointly involved in the sale of heroin to Lisk. Moreover, having regard to Gawthorpe's other evidence that the applicant had said "that it used to take him a long time to get to Chiang Mai to get the gear", the obvious conclusion was that Martin and the applicant obtained in Chiang Mai the heroin which they sold to Lisk.

Gawthorpe also gave evidence that he and the applicant injected themselves with heroin on one occasion. Detective Constable Leask also gave evidence that on 10 May 1987 he asked the applicant whether he had ever used heroin and that the applicant had replied, "yes".

The Crown tendered in evidence a number of letters written by the applicant to Lisk while they were in gaol on remand. Counsel for the applicant conceded that parts of these letters were admissible as showing a consciousness of guilt on the part of the applicant. He contended, however, that parts of the letters were inadmissible because they showed that the applicant had had prior dealings with heroin. Thus, one letter stated that Martin, Lisk and the applicant had been charged with "conspiring to import back in October" 1986. A second letter referred to the accused being acquitted of conspiracy charges in New Zealand. A third letter stated:

I am denying all knowledge of discussions of heroin from you - I thought you were supplied with heroin by David G. The only heroin I've had I've had with David G. one night [at] Careniup Caravan Park and you weren't there! However, the most damaging letter was one dated 6 October 1987 which stated: I have a problem now, a 29 year old girl getting charged at Taxation Office for selling gear (smoke, I hope). I would be disappointed if she signs me up or even claims that she knows me. I really don't need any more problems.

It was believed that you were to pick you [sic] in Sydney some 5 kilos. As you know, 4. 5 kilos were intercepted the week that the parcels arrived in Perth. John Newton didn't know anything about us, did he? 5 kilos was delivered in Melbourne the same week!

The Reasons of the Trial Judge and the Court of Criminal Appeal

The trial judge instructed the jury that the evidence concerning the applicant's "involvement with heroin and receiving money for it" was not led "to show that the accused is of an undesirable reputation insofar as he has had some connection with heroin, it is led to paint the picture, to create the entire picture, so you can have this idea, this allegation that the accused went over to Thailand to obtain heroin as is said by the Crown witnesses, in its proper context."

In the Court of Criminal Appeal, however, the learned judges thought that different principles applied. Wallace and Smith JJ. thought that evidence of the applicant's "prior involvement with heroin dealing in this State clearly became admissible having regard to the manner in which the defence was conducted, within the second of the principles authoritatively stated in Makin v. Attorney-General (N.S.W.) [47] ". The reference to Makin and cases such as Harris v. Director of Public Prosecutions [48] , Noor Mohamed v. The King [49] and Thompson v. The King [50] suggests that their Honours saw the case governed by the principles contained in or analogous to those in the similar fact cases. Likewise, by his reference to the discussion of similar fact evidence in Markby v. The Queen [51] , Franklyn J. also seems to have thought that the case was governed by those principles. But I think that the evidence proving heroin dealings in Western Australia was admissible, independently of the conduct of the defence, because it was circumstantial evidence which tended to prove that Martin and the applicant acted in concert to import the heroin.

1. [1894] A.C. 57. 2. [1952] A.C. 694. 3. [1949] A.C. 182. 4. [1918] A.C. 221. 5. (1978) 140 C.L.R. 108.

The Admissibility of Evidence Disclosing Other Criminal Acts by an Accused Person

Upon the trial of a criminal charge, evidence proving that the accused has been guilty of other criminal acts is not admissible if it does no more than prove that the accused has a general criminal disposition which makes it likely that he committed the offence with which he is charged: Makin v. Attorney-General (N.S.W.) [52] ; Markby v. The Queen [53] ; Sutton v. The Queen [54] . Hence it is not open to prove that a person has committed the crime of burglary by merely proving that he has convictions for dishonesty or even for burglary. But there are many cases where evidence is admissible although it reveals criminal conduct on the part of the accused. As Windeyer J. pointed out in Reg. v. Makin [55] :

you can give evidence of the commission of another crime when the evidence concerning the other crime is either a part of the res gestae in the case before the Court, or where the evidence about it is so connected with the prisoner as to explain his conduct or motives in the transaction which is the subject of the trial. 1. [1894] A.C., at p. 65. 2. (1978) 140 C.L.R., at p. 116. 3. (1984) 152 C.L.R. 528, at pp. 545, 556. 4. (1893) 14 N.S.W.L.R.(L.) 1, at p. 18.

Even though evidence reveals other criminal conduct on the part of the accused, it will be admissible if it is "evidence of facts forming part of the same transaction as that under inquiry" (i.e. part of the res gestae): Cross on Evidence, 3rd Aust. ed. (1986), p. 1004; and see R. v. Bond [56] ; R. v. Herbert [57] ; O'Leary v. The King [58] ; R. v. Evans [59] ; Reg. v. O'Regan [60] ; Bell v. The Queen [61] ; Reg. v. Williams [62] . Moreover, evidence of collateral facts tending to prove the facts in issue (i.e. circumstantial evidence) is also frequently admissible even though the evidence reveals other criminal conduct of the accused. However, the cases draw a distinction between evidence, disclosing other criminal conduct, which is part of the transaction or res gestae and circumstantial evidence, disclosing other criminal conduct, which tends to prove a fact in issue. As will appear, the admissibility of circumstantial evidence, revealing other criminal conduct, is subject to special rules.

1. [1906] 2 K.B. 389, at p. 400. 2. [1916] V.L.R. 343, at pp. 346, 348-349. 3. (1946) 73 C.L.R. 566, at pp. 575-577, 582. 4. (1950) 34 Cr. App. R. 72, at pp. 77-78. 5. [1961] Qd R. 78, at pp. 87, 98. 6. (1985) 63 A.L.R. 433, at pp. 439-440. 7. (1986) 84 Cr. App. R. 299, at pp. 301-302.

In O'Leary , this Court held that, upon a charge of murdering a fellow employee by violence, evidence that on the day and night of the death of the employee the accused had engaged in violent assaults on fellow employees was admissible as part of the transaction or res gestae. Dixon J. said [63] :

The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide. 1. (1946) 73 C.L.R., at pp. 577-578.

In Reg. v. Cobden [64] where three persons were charged with breaking into a railway station, evidence was led to prove that they had broken into three other stations on the same night. Bramwell B. said [65] that the evidence was admissible to prove that one of the accused "had received his share of the booty wholly from what was taken from the other stations" and that the events "are so intermixed that it is impossible to separate them". In Reg. v. O'Regan where the accused was charged with incest with his daughter Frances, the Court of Criminal Appeal held that evidence was correctly admitted that he had called Frances and her sister, Robyn, to his bedroom, sent them away and then called Robyn back and had intercourse with her before calling Frances into the room and having intercourse with her. In Reg. v. O'Malley [66] the Court of Criminal Appeal held that, upon a charge of assault, evidence was correctly admitted of violent threats to other people in a hotel even though the assault took place an hour or two after the accused and the complainant had left the hotel. Lucas J. said [67] that the "events of the evening seem to me to constitute one connected transaction". This decision goes very far.

1. (1862) 3 F. & F. 833 [176 E.R. 381]. 2. (1862) 3 F. & F., at p. 834 [176 E.R., at p. 382]. 3. [1964] Qd R. 226. 4. [1964] Qd R., at p. 230.

But other cases have gone even further in treating a series of events as part of the res gestae or transaction which constitutes the crime. In Reg. v. Etherington [68] , the Court of Criminal Appeal held that evidence of previous acts of sexual intercourse and indecent assault occurring over a period were admissible because they formed "a continuous transaction" with the offence charged. In Reg. v. Garner [69] , where the Crown led evidence of assaults over a period of several months before the assault the subject of the charge, Sugerman J. thought there was much to be said for the view that the evidence was admissible because "it was a connected series of events" [1] . In Reg. v. Rhodes [2] , Lord Russell C.J. held that evidence concerning two acts of false pretences subsequent to the date of the false pretences the subject of the charge was admissible because it showed "part of a scheme to defraud persons by the pretence of carrying on an honest and bona fide business".

1. (1982) 32 S.A.S.R. 230, at p. 235. 2. (1963) 81 W.N. (Pt 1) (N.S.W.) 120. 3. (1963) 81 W.N. (Pt. 1) (N.S.W.), at p. 123. 4. [1899] 1 Q.B. 77, at p. 82.

Circumstantial Evidence and Other Cases Revealing Other Criminal Conduct

Evidence relating to the accused and the alleged victim ("the relationship cases"), although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. In "the relationship cases", evidence of previous acts is admissible not to show a general criminal disposition but to show the nature of the relationship between the parties. As Kennedy J. pointed out in R. v. Bond [3] , in a passage approved by this Court in Wilson v. The Queen [1] :

The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial. However, the proper classification of relationship evidence in my opinion is ordinarily that of circumstantial evidence. 1. [1906] 2 K.B., at p. 401. 2. (1970) 123 C.L.R. 334, at pp. 338, 344.

In Reg. v. Garner, on a charge of assault occasioning actual bodily harm, evidence of "a long course of cruelty and continued ill-treatment" [2] by the accused to the complainant was rightly admitted because it showed the "atmosphere of hostility" [3] which existed and made more probable than not that the assault in question had occurred. Moreover, as Sugerman J. said [1] , it was "scarcely possible to present the case in an intelligible and real fashion" without evidence as to what occurred during the period of the relationship. In Reg. v. Hissey [4] the Court of Criminal Appeal held that, on a charge of murder by means of a blow to the abdomen, evidence of previous acts of violence by the accused to the deceased was admissible both on the issue of malice aforethought and whether the accused was responsible for the death. The Court said [5] that the evidence was admissible because it showed "the general terms upon which the parties were living". Likewise in sexual cases, evidence of previous acts of misconduct by the accused in relation to the complainant will usually be admissible because it tends to prove why or how on the occasion in question the offence occurred in the circumstances alleged. In Reg. v. Etherington [6] , evidence of previous acts of sexual intercourse and indecent assault by the accused on the complainant was rightly admitted because it served "to explain why she continued to submit to him and why he was able to commit his indecent acts upon her on the occasion charged" [7] : cf. R. v. Gellin [8] . It was circumstantial evidence tending to prove a fact in issue.

1. (1963) 81 W.N. (Pt. 1) (N.S.W.), at p. 122. 2. (1963) 81 W.N. (Pt. 1) (N.S.W.), at p. 129. 3. (1963) 81 W.N. (Pt. 1) (N.S.W.), at p. 123. 4. (1973) 6 S.A.S.R. 280. 5. (1973) 6 S.A.S.R., at pp. 288-289. 6. (1982) 32 S.A.S.R. 230. 7. (1982) 32 S.A.S.R., at p. 235. 8. (1913) 13 S.R.(N.S.W.) 271.

Although R. v. Ball [9] is often treated as a similar facts case, the evidence proving previous acts of incest in that case was admissible in my opinion because it tended to prove the nature of the relationship between the brother and sister. Their sexual relationship, together with evidence which showed that they slept in the same bed, made it likely that incest took place between the dates charged in the indictment.

Similar fact evidence, although revealing other criminal conduct of the accused, is also frequently admitted in accordance with the conditions laid down in this Court in Sutton v. The Queen [10] , Perry v. The Queen [11] , Hoch v. The Queen [12] and Thompson v. The Queen [13] .

1. (1984) 152 C.L.R. 528. 2. (1982) 150 C.L.R. 580. 3. (1988) 165 C.L.R. 292. 4. (1989) 63 A.L.J.R. 447; 86 A.L.R. 1.

Moreover, circumstantial evidence, not amounting to similar fact evidence or "relationship" evidence, may be admissible although it reveals other criminal conduct. Evidence of previous crimes of the accused may be admissible because it supplies the motive for the crime charged or because it identifies the accused with the commission of the crime. It is a commonplace in trials for murder or assault for evidence to be tendered to show that the motive for the killing or the assault was a dispute over the proceeds of other crimes or a fear that the victim would inform on the accused in relation to other crimes: cf. Reg. v. Griffin [No. 1] [14] . In Reg. v. O'Meally [No. 2] [15] , the Full Court held that evidence which showed that part of the proceeds of three robberies was found at the scene of a murder and that other parts of the proceeds were found in the possession of the accused was correctly admitted. The evidence was circumstantial evidence which tended to identify the accused as the murderer.

1. (1868) 1 Q.S.C.R. 176. 2. [1953] V.L.R. 30.

Moreover, evidence may be admissible, although disclosing criminal conduct on the part of the accused, because it tends to corroborate the truth of part of a witness' evidence. In R. v. Lovegrove [16] where the accused was charged with unlawfully killing a woman in June 1920 as the result of an abortion she had performed on her, the Court of Criminal Appeal held that evidence was rightly admitted from a witness who said that the accused had performed an abortion on her in September 1919 and that in June 1920 she had given the husband the address of the appellant. The Court said that the evidence tended to prove that the husband's account of his interview with the appellant was true and that he had taken his wife to the accused's house "for the purpose of having an illegal operation performed" [17] . Evidence revealing other criminal conduct may also be admissible because it rebuts any suggestion of ambiguity or uncertainty in a witness' evidence. In R. v. Pullman [18] , where on a charge of abortion the defence was an alibi, a witness said that she was not sure which of two stipulated amounts the accused had given to her to care for the girl who had been aborted. The Full Court held that evidence was rightly admitted in re-examination to show that the witness sometimes received one amount and sometimes the other amount from the accused for caring for girls who had been aborted by him. The Court said that, as the defence in cross-examination had stressed the uncertainty in the witness' evidence, the Crown was entitled to call upon her for her explanation and that the evidence was admissible, notwithstanding its tendency to disclose other offences [19] .

1. [1920] 3 K.B. 643. 2. [1920] 3 K.B., at p. 647. 3. [1942] S.A.S.R. 262. 4. [1942] S.A.S.R., at p. 266.

Whether evidence is classified as part of the res gestae or as circumstantial evidence tending to prove the commission of the crime by the accused, however, is a matter of considerable practical importance. The modern cases have adopted stringent rules for the admissibility of circumstantial evidence consisting of similar fact evidence. Similar fact evidence is admissible "only where the probative force of the evidence clearly transcends its merely prejudicial effect": Perry v. The Queen [20] , per Brennan J. In Perry v. The Queen [21] , Gibbs C.J. said that "it is not right to treat evidence which tends to show the commission by the accused of other criminal acts in the same way as any other circumstantial evidence". His Honour gave two reasons for this view. First, the jury might place too much weight on the evidence. Secondly, that class of evidence frequently raises difficult and doubtful questions which may distract the jury from the vital issues in the case. Although in Perry v. The Queen the Court was dealing with circumstantial evidence concerning similar facts, in principle the same rules must apply to all circumstantial evidence disclosing the commission of other criminal conduct. Consequently, circumstantial evidence which discloses other criminal conduct on the part of the accused will not be admissible as a matter of law unless the probative force of that evidence transcends its prejudicial effect. This does not mean, however, that the probative value of the evidence must be the same in each case. Admissibility will vary with the nature of the evidence involved, the issue to which it goes, and the other evidence in the case: Hoffmann, Similar Facts after Boardman, Law Quarterly Review, vol. 91 (1975), 193, at pp. 203-204; cf. Perry v. The Queen [22] , per Wilson J., and Allan, Similar Fact Evidence and Disposition: Law, Discretion and Admissibility, Modern Law Review, vol. 48 (1985), 253, at pp. 257-258.

1. (1982) 150 C.L.R., at p. 609. 2. (1982) 150 C.L.R., at p. 586. 3. (1982) 150 C.L.R., at p. 604.

If evidence which discloses other criminal conduct is characterized as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility. Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect. No doubt in a criminal trial a judge always has a general discretion to exclude prejudicial evidence. But it is difficult to see how evidence directly related to the very facts in issue can be excluded simply because it reveals other criminal conduct on the part of the accused. Consequently, it is a matter of great importance whether the evidence is classified as part of the res gestae or as circumstantial evidence tending to prove the facts in issue: cf. Forbes, Similar Facts (1987), at p. 19. In cases like Reg. v. Cobden, Reg. v. Rhodes, O'Leary v. The King and Reg. v. O'Malley where the conduct involves parties other than those directly involved in the charge in the indictment, classification of the evidence may be decisive as to the outcome of the case. Great care needs to be taken, therefore, in determining whether evidence, disclosing other criminal conduct, is evidence concerning the res gestae or is merely circumstantial evidence. By applying labels such as "one transaction", "connected series of events", "system", "history", "completeness" and "part of one chain of relevant circumstances", evidence which is in truth purely circumstantial improperly avoids the tests of admissibility which the modern cases expound. Factual situations such as those in Cobden, Rhodes, O'Malley, O'Leary, Garner and Etherington should now be categorized as circumstantial evidence cases and not res gestae cases.

Evidence Tending to Prove that Martin and the Applicant Jointly Supplied Heroin was Admissible

In the present case the critical issue was whether Martin and the applicant acted in concert to import heroin into Australia. The disputed evidence tended to prove that Martin and the applicant were jointly involved in selling heroin to Lisk for resale through the agency of Gawthorpe. Moreover, the applicant's answer to a question from Lisk indicated that the further supply of heroin depended on the applicant going overseas to organise the supply. Other evidence, whose admissibility was not disputed, suggested that the applicant obtained heroin from Chiang Mai.

Although there is an air of artificiality in treating the heroin dealings in Western Australia as an act separate from the importation of the heroin from Thailand, the two events were not so connected that the Western Australian dealings in heroin could be treated as part of the res gestae or one transaction. However, in my opinion, any evidence which tended to prove that Martin and the applicant were jointly involved in the sale of heroin in Western Australia and obtained their supply from overseas was admissible as circumstantial evidence which tended to prove that in April 1987 Martin and the applicant journeyed to Chiang Mai for the purpose of obtaining heroin and sending it to Australia.

If accepted, evidence, other than the disputed evidence, proved that the company in which the applicant was a substantial shareholder was in financial difficulty, that the applicant was considering importing heroin through the post, that Lisk gave the applicant two of the four addresses to which Martin sent the heroin, that Martin and the applicant made a long overnight journey to Chiang Mai together, and that Martin posted to Australia heroin which he had obtained in Chiang Mai. In that setting, evidence that Martin and the applicant were jointly involved in selling heroin on several occasions to Lisk for resale was compelling evidence that Martin and the applicant were acting in concert to obtain heroin for Lisk when they travelled to Chiang Mai. Despite Martin's refusal to implicate himself in the Western Australian dealings, the disputed evidence concerning those dealings strongly corroborated his evidence that the applicant was acting in concert with him in Chiang Mai.

If the undisputed evidence had stood alone, however, the jury might think that, despite the applicant's statements to Lisk and Gawthorpe concerning his need to import heroin to overcome the company's financial difficulty, it was just possible that the applicant and Martin were acting independently of each other and that Martin had falsely implicated the applicant in the importation of the heroin which Martin sent to Australia. But the disputed evidence, once accepted, put the matter beyond doubt. In the absence of evidence to the contrary, no rational jury could accept that two persons jointly involved in selling heroin in Australia would leave the country, meet up in Bangkok and travel together on a long overnight bus journey to a town where heroin was obtained and mailed to four addresses in Australia including two addresses supplied by one to the other without both persons being involved in the purchase and importation of the heroin.

Moreover, the probative force of the disputed evidence concerning the joint heroin dealings clearly transcended its merely prejudicial effect. The evidence had the tendency to prejudice the applicant because the jury might think that he was a person who, by reason of his propensity to deal in heroin, was the sort of person who would import heroin into Australia. That potential prejudice, however, was clearly outweighed by the probative force of the evidence when considered with the other evidence because it indicated to the point of near certainty that Martin and the applicant were acting in concert in Chiang Mai.

Nevertheless, a considerable body of inadmissible evidence was tendered against the applicant. Evidence that the applicant used heroin was clearly inadmissible. If it had any relevance at all, and I do not think that it did, its prejudicial value outweighed its probative force. But, in the context of this case, that evidence could not have affected the result. More significantly, however, the evidence referring to heroin in the letter of 6 October 1987 was inadmissible. The contents of that letter tended to prove that the applicant knew of, or was knowingly concerned in, the importation of large amounts of heroin through Sydney and Melbourne during the same week that the heroin, the subject of the charges, was sent to Perth. The letter painted a picture of the applicant as a person who at the least had knowledge of the importation of heroin on a massive scale. Apart from showing a criminal disposition on the part of the applicant to be concerned in or have knowledge of the importation of heroin, it had no relevance to the charges against him.

However, I do not accept that the admission of that evidence, or the evidence in other letters, could have resulted in any miscarriage of justice. The case against the applicant on the admissible evidence was an extremely powerful one. His failure to call any evidence in response to it simply confirmed that there was nothing he could say in opposition to it. No reasonable jury could have failed to convict him on the admissible evidence once it was accepted as true. Nor do I think that it is a tenable view that the jury may have accepted the admissible evidence only because the jurors accepted the truth of the inadmissible evidence. It is true that the inadmissible material contained in the letters demonstrated that the applicant had knowledge of heroin imports and that he had faced or was facing other charges concerning drugs. But the inadmissible material did not deal with the charges the subject of the indictment. If the contents of the letters were the decisive factor in the jury accepting the evidence of Martin, Gawthorpe and Lisk, it is impossible to believe that the inadmissible parts of those letters added anything to the effect of those admissible parts of the letters which showed a consciousness of guilt on the part of the applicant.

Special leave to appeal should be granted. But the appeal must be dismissed.