Mortada v R

Court of Criminal Appeal (NSW)|2013-12-16|Before: Leeming JA, Hall J, Schmidt J

Judgment 1THE COURT: The appellant Mr Mortada appeals from his conviction of an offence under the Drug Misuse and Trafficking Act 1985 (NSW). It was not disputed on appeal that the trial judge committed appellable error in failing to give a warning about the use of propensity reasoning in his summing up of evidence adduced over the previous six weeks. His Honour had indicated, both informally during argument, and also in his formal ruling admitting the evidence, that he would do so, but neither the Crown nor the defence reminded him of this three weeks later. The Crown's approach to the appeal was either that leave should not be granted, or else that the appeal should be dismissed by reason of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW). 2This appeal therefore turns on two narrow points. The first is whether, as the Crown contends, Mr Mortada's counsel at the end of the trial made a deliberate forensic decision not to ask for a direction as to propensity reasoning in relation to some of the evidence in the Crown case. The Crown said that if the decision were deliberate, then leave to appeal under r 4 of the Criminal Appeal Rules should be refused. For the reasons which follow, we are not satisfied that the failure was the result of a deliberate forensic decision. 3The second requires an examination of all of the evidence in the trial. The Crown made no submission in the appeal resisting the appellant's main proposition, namely, that if the failure to seek a direction was inadvertent, there was appellable error. Instead, the Crown contended that even so, this Court could and should find that a guilty verdict was inevitable. The appellant's case was that the consequence of the failure to give the propensity direction was that he had lost a real chance of acquittal, with the result that the proviso could not be applied. For the reasons which follow, we conclude that the appellate record (principally, the incontrovertible documentary and telephonic and fingerprinting evidence) made a guilty verdict inevitable, and that there has not been a substantial miscarriage of justice. Applying the proviso, the appeal should be dismissed.

Procedural history 4The appellant, Mr Ali Youssef Mortada, was born in Lebanon and married his wife Manal there. He came with his wife to Australia in 2000 when he was 21. They had two daughters. He became an Australian citizen in 2005 but subsequently returned to Lebanon. In 2008 he and his wife obtained what was described as a "reversible" divorce (there was evidence that such a divorce could be reversed by court order, although regarded as effective under Islamic law; the evidence was not entirely clear, but nothing turns on it for present purposes). 5Importantly, Mr Mortada visited Australia in October 2008, where a customs officer, Mr Jerome Singh, detained him, and made a record of some of the items in his possession. He visited Australia again in 2009, arriving on a Malaysia Airlines flight in business class on 20 May 2009. He was arrested on the morning of 17 June 2009 shortly before he was scheduled to return to Lebanon. 6Mr Mortada was charged on indictment with three offences. The first was supplying a commercial quantity of heroin, being 496.75 grams, contrary to ss 25(2) and 29 of the Drug Misuse and Trafficking Act. Counts 2 and 3 were dealing with two amounts of cash ($16,350 and $21,930) being the proceeds of crime, contrary to s 193B(1) of the Crimes Act 1900 (NSW). (The second count had originally extended to an amount of US$2,800, but the indictment was amended, by consent, to remove the foreign currency amount late in the trial.) 7On 28 September 2012, after slightly more than a day of deliberation, a jury returned verdicts of guilty on all three counts, following a six week trial, at which Mr Mortada was represented by Mr Kintominas of counsel, an experienced barrister who had been in practice for more than two decades. Mr Mortada was sentenced to a total period of imprisonment of 10 years, with a non-parole period of 6 years and 8 months, expiring 4 May 2018. The maximum penalty for the supply count is imprisonment for 20 years, a fine of 3,500 penalty units, or both. A standard non-parole period of 10 years applies to the offence. In respect of this count, Mr Mortada was sentenced to a term of imprisonment of 9 years and 4 months, with a non-parole period of 6 years. The sentences imposed for the second and third counts were wholly concurrent and for a period of 3 years, with a non-parole period of 2 years, expiring 4 September 2013. 8A notice of appeal against conviction was filed, out of time, on 1 August 2013. A series of notices of intention to appeal had previously been filed, but these had expired. A further application for extension of time was not filed in time, through inadvertence (to which the appellant's solicitor deposed). In the circumstances, the Crown did not oppose the (short) extension of time required by the appellant, and in our opinion it is appropriate for it to be granted. 9The appeal was heard some four months after it was commenced. Nevertheless, the consequence of the delay in commencing it was that Mr Mortada has now served the entirety of the non-parole periods of the sentences for the second and third counts for which he was convicted. The appeal did not extend to either of those convictions. 10Although there were two grounds of appeal, senior counsel for the appellant conceded that the second could not stand by itself. Other than to record that in our view that concession was properly made, it is unnecessary to say anything about the second ground.

First ground of appeal 11The first ground of appeal is in these terms: "A miscarriage of justice was caused by the failure of the trial judge to direct the jury (a) about how the evidence which the Crown relied upon to prove the actual supplies of prohibited drugs could be used to prove the deemed supply charge in Count 1; (b) that such evidence could not be used as propensity evidence." 12Given the Crown's attitude to that ground - in effect, relying on the proviso if Mr Kintominas' evidence of inadvertent error be accepted - it is necessary to turn to the nature of the parties' case at trial.

(a) Overview 13On the evening of 18 June 2009, police in the company of hotel staff executed a search warrant on Room 1417 of the Sheraton on the Park, a hotel in central Sydney on Elizabeth St. A video recording was made at the time. A sealed bag containing 496.75 grams of heroin was found in a suitcase in the room. Schedule 1 of the Drug Misuse and Trafficking Act provides that a traffickable quantity of heroin is 3 grams and a commercial quantity is 250 grams. Section 29 deems a person who has in his or her possession more than the traffickable quantity to have it for the purposes of supply. 14There was a deal of evidence (which it will be necessary to summarise below) capable of connecting Mr Mortada to the heroin found in that room. There was also evidence capable of connecting the heroin to Mr Abbas El Dirani, who had a close relationship with Mr Mortada (this was undisputed, and evidenced for example by extensive telephone records), who flew into Australia on the same flight on 20 May 2009, and who was arrested at the same time as, and in the company of, Mr Mortada. At the time of the trial, there was evidence that Mr El Dirani had returned to Lebanon after having been granted bail over the opposition of the police, and that a warrant had been issued for his arrest. 15The appellant's case was that Mr El Dirani had impersonated him. He said that Mr El Dirani had booked the room at the Sheraton in the appellant's name in order to protect himself. A number of items discovered in the room were consistent with Mr El Dirani being present in the room and therefore the person who had possession of the drugs and money found there. The appellant said that he had no knowledge of the room, that he had not occupied it and that neither the heroin nor money found there belonged to him. 16Accordingly, the central issue in the trial was whether the Crown had proved beyond reasonable doubt that the heroin was in the possession of Mr Mortada. The Crown case was that the appellant and Mr El Dirani were involved in a joint criminal enterprise for the supply of a prohibited drug. 17Mr Mortada did not deny that he was a friend of Mr El Dirani. He gave evidence that as well as being a plumber, he was a folkloric keyboard player and Mr El Dirani was a singer, whom the appellant had met in 2006, and that both had thereafter performed at weddings or birthday parties in Syria, Dubai, the Ukraine, Yemen and Africa, as well as in Australia. 18Mr Mortada gave evidence on 18 and 19 September, and was cross-examined on 19, 20, 21, 24 and 25 September 2012 (with other defence witnesses being interposed). Mr Mortada's positive defence at trial and in his submissions on appeal was that he had visited Australia in order to play in four musical performances and to collect money he was owed from various plumbing jobs (there were no receipts tendered, but his clients gave evidence that they paid cash). He claimed he had been staying with friends in Punchbowl, who both gave evidence: Ms Hanan Moussa and Mr Rabieh El Dirani. The defence said, and the Crown did not submit to the contrary, that "El Dirani" was a relatively common name; for the purposes of these reasons, and without intending any disrespect to them, we shall refer to the couple as Hanan and Rabieh to avoid confusion with Mr Abbas El Dirani. 19Mr Mortada said that he knew nothing of Room 1417 in the Sheraton on the Park. He said that the explanation for much of the evidence linking him to the heroin found in the hotel room was that Mr El Dirani had access to and had used his credit card and driver's licence, to make it appear that the heroin was Mr Mortada's. It will be necessary to return to the details of his defence below; its "general thrust", to use the words of the trial judge (spoken in the absence of the jury) was simple: "blacken Mr El Dirani wherever possible. That's been made very clear from about day one". 20It was common ground that a person can "possess" a chattel even if it is not in his or her manual possession. As Hunt J said in Dib & Dib v R (1991) 52 A Crim R 64 at 66-67: "[The accused] must have that property either in his manual possession or in a place to which he (and any person acting in concert with him) may go without physical bar in order to obtain such manual possession of it. Where (as in the present case) the Crown seeks to establish an accused's possession of property found not within his manual possession but rather in premises to which he has access, it must - in order to establish beyond reasonable doubt that it was the accused rather than anyone else who had such possession of that property - persuade the jury that the accused has the legal right to exclude all persons from the premises in which the property is situated (other than those acting in concert with him)." 21It has been observed that it may be clearer to refer to "acting jointly" rather than "acting in concert" in this context: Lee v R [2013] NSWCCA 68 at [267] (Beech-Jones J, Basten JA and Hall J agreeing). As Beech-Jones J said in that appeal at [280], a "fundamental aspect" of the concept of possession in this context is exclusive control of the chattel. 22Applying those principles to the circumstances of the trial, it was not disputed that it was sufficient for the Crown to prove beyond reasonable doubt that Mr Mortada had occupied Room 1417 where the heroin was found. However, the Crown assumed the burden of excluding the possibility that Mr El Dirani had occupied the room, to the exclusion of Mr Mortada, although it was booked in his name. There was no suggestion in the defence case that Mr Mortada had occupied the hotel room and that Mr El Dirani (or someone else) had somehow secretly stored the heroin there without Mr Mortada's knowledge. The issue was binary: either Mr Mortada had occupied the room and was therefore in possession of the heroin, or else he had nothing to do with the room.

(b) Discovery of the heroin 23On 17 June 2009 a member of the security staff at the Hilton Hotel in Sydney (which is a few blocks from the Sheraton and has entrances on both George and Pitt Streets) observed Mr Mortada and Mr El Dirani sitting in the foyer for an extended period of time, behaving suspiciously, (including by making multiple calls on different mobile phones). He called the police, who after observing the pair, approached and searched them. Counsel for Mr Mortada did not suggest that the search was other than lawful. It commenced not before 10:57am in the morning; Mr Mortada's flight was at 2pm. (The time can be determined with precision by reference to the mobile phone records which were prominent in both the Crown and defence cases. One of the handsets found on Mr El Dirani made 21 calls on the morning of 17 June, including calls at 10:50, 10:54, 10:55 and 10:57; thereafter no calls were made for more than 4 hours. One of the handsets found on Mr Mortada made 13 calls on the morning of 17 June, including calls or text messages at 10:46, 10:47, 10:47 and 10:48.) Mr Mortada was found to have three mobile phones, Mr El Dirani two. The police also discovered $16,350 in $50 and $100 dollar bills on Mr Mortada's person, which cash is the subject of the jury's verdict on the second count of the indictment, and is unchallenged on appeal. Mr Mortada told the police that the money was payment for a plumbing job. A large quantity of cash was also found on Mr El Dirani. Both men were arrested, and separately detained. Eventually, both were granted bail. 24Police applied for search warrants for the two hotel rooms in which the men were believed to be staying: Room 1417 at the Sheraton on the Park, and Room 3213 at the Hilton Hotel. Their initial application was refused. On the following day, 18 June 2009, staff from the Hilton Hotel discovered a substantial amount of cash in the safe of that room ($160,050), as well as international money transfer slips indicating that a sum of $56,750 had been transferred from Australia to Lebanon. The police again applied for a search warrant, and this time one was issued, for Room 1417 at the Sheraton on the Park. The search was recorded with sound and video, in the presence of the night duty manager. The 496.75 grams of heroin was discovered during that search. Police also discovered $21,930 in the safe, which amount was the subject of the third count, and again, the jury's verdict is unchallenged in this appeal.

(c) Evidence linking the appellant to Room 1417 25On any view, there was a great deal of documentary and circumstantial evidence connecting the appellant with Room 1417 at the Sheraton on the Park. It will be necessary, ultimately, to address the detail of that evidence, given the Crown's reliance on the proviso and the need for this court to "review the whole record of the trial": Weiss at [47]. It is convenient in the first instance to give a summary of some of the evidence, while at the same time identifying the defence case in response. 26First, the Sheraton on the Park registration slip was completed in the name of Mr Mortada. It gave Mr Mortada's mobile phone number and email address and appeared to have been signed by him, although a handwriting expert could not exclude the possibility that "somebody who is very skilful at simulating other people's writing" could have forged the signature. Mr Mortada denied it was his signature. 27Secondly, the pre-authorisation payment for the room, dated 11 June 2009, was made on a Visa card discovered in Mr Mortada's possession when he was arrested. The same Visa card had also been in his possession when he was the subject of a random check by a Customs officer, Mr Jerome Singh, at Sydney airport on 29 October 2008. 28Thirdly, the Visa card's issuer had provided a facility whereby a text message would be sent to one of Mr Mortada's mobile phones (a Nokia 8800 "Sapphire") when certain transactions were processed. That phone was in Mr Mortada's possession when he was arrested, and a text message was discovered on it which recorded a transaction for $1,795 at the Sheraton on the Park on 11 June 2009 ("The transaction on your card ending 2140 was accepted for AUD 1,795.00 at Sheraton On The Park in Sydney in AUS on 11/06/09 at 03:19"). Mr Mortada gave evidence that he was aware of the message, asked Mr El Dirani about it, and said that Mr El Dirani told him that he had used Mr Mortada's credit card. 29Fourthly, when taken into custody, Mr Mortada was fingerprinted. The form recording his fingerprints contains handwriting stated his address as "SHERATON HOTEL SYDNEY". The form states that the day of birth, signature and address "must be written by the person whose fingerprints are taken". Mr Mortada agreed that the signature and date of birth were written in his hand, but suggested that he wrote an address suggested by the police. The police officer denied telling Mr Mortada to state the Sheraton Hotel as his address; he said that he told Mr Mortada that he could not put down an address in Lebanon, but instead that he should put down the address where he was staying. At the end of the trial, when Mr Mortada was cross-examined, he said that the police officer had given him a separate piece of paper on which was written "Sheraton Hotel" which he had copied out; this had not been put to the police officer. 30Fifthly, various personal documents were found in Room 1417 relating to Mr Mortada's ex-wife, including authorised translations of his marriage certificate and divorce certificate, each dated 27 October 2008 (two days before his arrival in Australia in 2008). They also included a Commonwealth Bank statement, which had been sent to a Punchbowl Post Office box, with transactions up to 29 May 2009, for an account in the names of Mr Mortada and his (former) wife. Mr Mortada said that he had kept his personal papers in a pocket of a bag he used to carry his musical instrument, but had given them to Mr El Dirani at a concert the previous weekend, and he had not returned them despite having been asked repeatedly to do so. 31Sixthly, there were also documents relating to two car hire agreements in Mr Mortada's name, which referred to a driver's licence number which matched one of those in his possession (see further below). There was also in evidence a sales voucher from the car hire company, with an imprint of the same Visa card in Mr Mortada's name and seemingly signed by Mr Mortada. Mr Mortada gave evidence that Mr El Dirani hired a rental car in his name because he didn't have a driver's licence. 32Seventhly, the safe in Room 1417 at the Sheraton on the Park contained a "Nokia N95" mobile phone. Mr Mortada's counsel at trial conceded that it had the same 15 digit IMEI (International Mobile Equipment Identity) number as a phone which had been discovered on Mr Mortada's person in October 2008 (when he was subjected to a random search by a customs officer at Sydney Airport) and there was uncontroversial evidence that the first 14 digits of an IMEI number are unique to the handset. The N95 contained incoming messages of a personal nature linking it to Mr Mortada close to the time he was arrested. Mr Mortada accepted it contained personal photos of him (holding a pet dog) and of Mr El Dirani and his brother (holding a stag shot in Africa in March 2009). Mr Mortada said that he gave the mobile phone to Mr El Dirani in March 2009 when his friend needed a phone and had not thereafter seen it. 33Eighthly, some lithium carbonate (a prescription medicine) was found in Room 1417. Lithium carbonate had also been found in Mr Mortada's possession when he had been searched at Sydney Airport in 2008. Mr Mortada accepted that he had been prescribed the drug, he had a letter from a pharmacist explaining that it was medicinal, but he said that he had ceased taking it after a month. 34Ninthly, the Legal Aid duty solicitor who appeared on behalf of Mr Mortada on three occasions, including on 18 and 22 June 2009 and visited him once in gaol, gave evidence that he had gone to the Sheraton on the Park in order to collect Mr Mortada's belongings sometime thereafter, having been authorised in writing by Mr Mortada to do so. Mr Mortada denied that he had authorised him to do so. No written authorisation was in evidence, but there was no doubt that this had occurred. The solicitor said he had practised for 30 years and had been asked to go to a hotel room five or six times. Mr Mortada denied having asked the solicitor to attend ("I know nothing about this"; "I am saying there was no conversation between myself and the solicitor"). It was not disputed that a suitcase was delivered by the solicitor to Mr Mortada's friends Rabieh and Hanan with whom he claimed he had been staying. They gave evidence that they did not recognise the clothes or the suitcase, and discarded both, but only after discovering some high quality fake driver's licences, including one in Mr Mortada's name, which were given to Mr Mortada and tendered at the trial. The defence relied on the fake driver's licences to support the possibility that Mr El Dirani was well able to impersonate Mr Mortada. The Crown called evidence that the driver's licences were manufactured after Mr Mortada had been arrested (they were only provided to the Crown after Mr Mortada was released on bail, some thirteen months after his arrest). 35There was much more evidence than has been summarised above. But what is of greatest importance for the issues raised on appeal is the documentary evidence relating to the transfer of large sums of money from Australia to other countries, overwhelmingly to Lebanon. It is this evidence, which is consistent with dealing in the proceeds of crime, for which Mr Mortada was not charged, which was to be the subject of the jury direction as to propensity reasoning.

(d) The Western Union receipts and Post-It notes 36Many "Western Union" money transfer slips and receipts were found in the safe in Room 1417 at the Sheraton on the Park. They were dated between 27 February and 16 June 2009, but the majority were dated in the period 21 May to 16 June 2009 (when Mr Mortada was in Australia). Most, but not all, reflected transfers of money effected at Punchbowl Post Office. In each case the amount was less than $10,000. The total amount was $945,618. 37In each case the transfer showed the name, address, phone number and either passport number or driver's licence number of the transferor, and the name of the transferee. There was evidence that almost all of the driver's licence and passport numbers did not correspond with official records. Many had Mr Mortada's fingerprints on them; there were also some fingerprints which could not be identified. There was also qualified expert evidence that some of the handwriting was that of Mr Mortada. None of the transfers were identified as having Mr El Dirani's fingerprints on them, although the fingerprinting expert had compared every fingerprint against both Mr Mortada's and Mr El Dirani's fingerprint records. 38To take two examples, there is a record of a transfer of $4800 made at 3.42pm on 12 June 2009 from Imad Assad Dilbani to Alif Kassem. The sender identified himself by a driver's licence which did not correspond to that in government records. A second recorded a transfer of $4700 from Aida Aldirani to Salim Aldirani in Lebanon at 11.25am on Saturday 13 June 2009. Ms Aldirani provided an Australian passport number, but there was no record of a passport of that number on the Immigration database. There was evidence that all save one of the passports were either not recorded on the Immigration database, or else the passport number did not match the person named. 39Whilst most of the driver's licence numbers were also non-existent, two of them did match records. One of those two was that of Ms Hanan Moussa, with whom Mr Mortada said he was staying, and who was called in the defence case. That transaction was a transfer of $9,440 to Ms Manal El Dirani, Mr Mortada's former wife, at 2.46pm on Friday 12 June 2009. It was a transfer which took place at Roselands, not Punchbowl Post Office. Ms Moussa denied in cross-examination that she made that transaction, or that she lent her driver's licence to either Mr El Dirani or Mr Mortada. 40The police officer in charge of the investigation obtained a warrant to inspect the CCTV records of the Punchbowl Post Office, and reviewed the people at the counter when the transfers were effected. On various occasions men and women of Middle Eastern appearance were shown, on other occasions, there was no one at the counter at all when the transaction was recorded. Some of the transfers are recorded as having been effected late in the evening. At no time did the officer recognise anyone who looked like Mr Mortada. 41Also found in Room 1417 at the Sheraton on the Park were 40 pink and yellow "Post-It" notes recording the names and phone numbers of various persons in handwriting. When Mr Mortada had been searched in 2008, nine Post-It notes had been located on his person. It was formally conceded that the 40 Post-It notes in the safe included the very same notes found by Mr Singh on Mr Mortada in 2008, save that some names and amounts had been crossed out and replaced with others. That concession was possible because Mr Singh had taken a photocopy of those nine Post-It notes, and the photocopy had been kept and was tendered at the trial. At the same time, the trial judge told the jury that there was "certainly, and absolutely, no inference to be drawn against Mr Mortada by virtue of the fact that a search was conducted of him by the immigration people at the airport when he arrived in the October of 2008." 42Each Post-It note stated a "From:" name, passport or driver's licence number, expiry date, date of birth, telephone number, address, and a "To:" name. For example, one stated "From: Mamoun Dazzar", gave a passport number and expiry date and date of birth, an address in Condell Park, and a "To:" name, Mohamad Daour. 43Mr Mortada's fingerprints were on some of the Post-It notes found in the safe. 44There were also links between the Post-It notes and the Western Union transfers and receipts. For example, there was a Western Union transfer and receipt dated 12 June 2009 for a transfer of $4500 from Mamoun Dazzar at 2.47pm that afternoon, made at the Punchbowl Post Office. 45Mr Mortada admitted that he had written the nine Post-It notes; his evidence was that Mr El Dirani had provided him with the information to give to Mr El Dirani's brother (Ahmad) in 2008, that the paper had been soiled on his flight, that he had written out the names again on Post-It notes and given them to Ahmad (together with some underpants and socks from his mother). He said that Ahmad had given him the Western Union transfers and receipts sometime when he was in Australia in 2009, and asked him to give them to Mr Abbas El Dirani, which he did. That was how, according to Mr Mortada, his fingerprints came to be on the documents.

(e) The defence objection and request for a direction 46The trial judge ruled after argument on the 13th day of the trial that evidence of substantial transfers of funds to Lebanon linked to Mr Mortada (through his fingerprints being upon Western Union receipts) was relevant to connecting the appellant to the room in the Sheraton on the Park. However, his Honour accepted the submission of Mr Mortada's counsel that: "The inference could be drawn that my client was in a conspiracy with El Dirani, and perhaps others, to see [that] large amount of money came out of Australia via the disbursement or dissemination in amounts under the Cash Transactions Reports Act limit which require formal notification. And that this would be a way of getting the money out of [the] country. I expect that that's going to be the suggestion in any event in respect of the Western Union transfers that are found but what the inference will be, and an almost inescapable inference will be, that, as your Honour identified, that my client was involved in drug dealing on his last trip here. If that evidence gets before the jury, and I'm talking only about the scraps of paper, if that evidence gets before the jury, it has an overwhelming prejudice in the sense that, in my submission, there's no direction your Honour could give them. I mean, I'm sure your Honour could give them a carefully crafted direction which explain the dangers et cetera, but it is so prejudicial it's the kind of prejudice that can't be cured by direction. ... In my submission, whether the scraps of paper were written on by my client in 2008 or not, they will have the effect of making the jury gravely and strongly suspect, and I would say jump to the conclusion, that he was involved in drug running in 2008. He [has] not been charged with that and ... we say [that would be an] illegitimate inference. But it is a powerful seductive inference. One so powerfully seducing that we say that a direction from your Honour will not cure it." 47This objection was raised fairly late in the trial, in connection with the evidence of Mr Singh, and after the Crown had opened on, and tendered, a deal of material capable of supporting propensity reasoning. The "scraps of paper" to which Mr Kintominas was referring were notes containing identity information which was linked to the Western Union transfers. There was a lack of precision in the hearing of the appeal, and the formulation of the direction that it was said should have been given, but that was a consequence, it may be inferred, of the stance taken by the Crown on the appeal, confining its submissions to the two points mentioned at the outset. In those circumstances, the appropriate course is to proceed on the basis, favourable to the appellant, that the missing direction extended to the Post-It notes and the Western Union transfers and the other "scraps of paper" which could be linked with Mr Mortada and with dealing in the proceeds of crime. 48The trial judge indicated his view, during the course of argument, that the prejudice could be cured by directions, and that that was the course he was obliged to take. His Honour was plainly sensitive to the prejudicial effect of the evidence, and confined the Crown tender to the eleven pieces of paper showing the exact identities, addresses and details of those people also shown in the Post-It notes. His Honour subsequently gave a formal ruling on the objections, which included this passage: "[Restricting the tender to 11 pieces of paper] minimises the prejudice of any suggestion of a much wider course of dealing. Properly directed there should not be any reasoning or emotional difficulties with the evidence when limited as it is."

Issues on the appeal 49It is convenient to pause to observe what is not in issue in this appeal. On the one hand, it was not said by the defence that Mr Singh's evidence was wrongly admitted, because the trial judge had erred in concluding that its prejudice could be met by an appropriate direction. Nor was it said that any of the other evidence which could support illegitimate propensity reasoning (the Western Union transfers and receipts and the Post-It notes) was improperly admitted. That is so notwithstanding that Mr Kintominas had submitted that it was "the kind of prejudice that can't be cured by direction". 50On the other hand, it was not submitted by the Crown that there had not been an error in failing to give a direction. In BRS v The Queen (1997) 191 CLR 275, the failure to give a direction that relevant evidence could not be used to support propensity reasoning led to a guilty verdict being set aside and a new trial ordered. That was a sexual assault case, but the reasoning extends to all cases "where there is a real risk that the jury may engage in inappropriate propensity reasoning": R v Giovannone [2002] NSWCCA 323; 140 A Crim 1 at [99]. This was plainly such a case. As Mason P stated in Giovannone, such a direction must be given wherever necessary to avoid a perceptible risk of injustice. 51The stance taken by the Crown meant that there was no dispute, for the purposes of the appeal, that the evidence of actual supply of drugs on previous occasions (including the Western Union money transfers and the Post-It notes) should have been subject of a direction to the effect that that evidence could be used to link Mr Mortada to the hotel room, but could not be used for improper propensity reasoning. 52The Crown's response to the appeal was confined to two propositions. The first was that the absence of a propensity direction was the deliberate forensic decision of counsel appearing for Mr Mortada, which was by itself a complete answer to the failure to give a direction. The second was that the Crown submitted that a guilty verdict was inevitable, in the sense that it was the only verdict open to the jury on the evidence. We deal with each in turn.

A deliberate forensic decision? 53The Crown submitted that it was more likely than not that Mr Kintominas made a forensic decision not to seek directions as to propensity reasoning. If so, then it submitted that leave under r 4 of the Criminal Appeal Rules should not be granted. (There may be a question whether in fact r 4 applies, given that a broader objection had been taken by Mr Kintominas at trial. No argument was directed to that issue, and on the view that we take, it is sufficient to assume, without deciding, that the rule applies and requires a grant of leave.) 54The Crown invited the Court to infer that a deliberate forensic decision had been taken because it had been the appellant's case at trial that there was a wealth of evidence connecting Mr El Dirani and the buying and selling of drugs. In closing address counsel said this: "One of the things that will strike you, ... of course is that if you have a look at El Dirani's phone messages the defence says it's very clear that he is involved in selling and buying drugs. There's the messages about paper up front. ... [T]here's plenty of messages there that you would infer that Abbas El Dirani is dealing in drugs." 55Accordingly, so it was said, it was in the appellant's interests for there not to be a propensity direction; in substance, the appellant was inviting the jury to use propensity evidence to conclude that Mr El Dirani had been a drug dealer. But there was no evidence from the Crown Prosecutor as to any agreement with Mr Kintominas about not seeking a direction, or for that matter (if it were relevant) why she did not draw to the judge's attention what his Honour had ruled in relation to Mr Singh's evidence. 56Mr Kintominas, counsel for Mr Mortada at the trial, gave affidavit evidence sworn and served shortly before the appeal was heard to the effect that the trial lasted longer than had been scheduled, and clashed with a pre-arranged holiday. He arranged for junior counsel (his former reader) to be junior counsel at the trial. She commenced appearing in around week four of the trial, and Mr Kintominas left, with the consent of the trial judge, during the summing up. He swore in his affidavit unequivocally that: "I did not at any stage turn my mind to the Judge giving the jury a direction about how the jury could use and should not use evidence of actual supply of prohibited drugs, namely, the Post-It notes, the Western Union money transfers or other evidence of that type to prove Count One (the deemed supply charge)." ... I did not make any forensic decision not to seek the directions the appellant now relies on in this appeal. I did not seek or obtain any instructions from my solicitor or the appellant in relation to the issue of the directions the appellant now relies on in this appeal. I did not have any discussions with [junior counsel] about these directions." 57Mr Kintominas was cross-examined before this Court, at some length. That took place without objection, or argument, and the fact that this Court permitted it to occur is not to be taken as an endorsement of the practice in a case such as the present. Normally, as Basten JA has said, "statements as to counsel's beliefs are of doubtful relevance": Lee at [139]. On the view that we take, it is not necessary to express a view as to the circumstances when evidence of this nature is admissible; cf Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339 at [25]-[28]. 58Mr Kintominas maintained consistently in cross-examination that he had a clear recollection of aspects of the trial, and denied making any forensic decision not to seek a direction. He was taken to his objection to the tender of the Western Union receipts, and the trial judge's admission of them, on the basis that in due course a direction as to the use of propensity evidence would be given, and asked: "Q. So at the stage that you were at in the summing up you were aware weren't you that in the course of directions his Honour had given to the jury to the point the summing up began, that is, earlier in the trial directions of the type which you had originally believed would be given by the learned trial judge proscribing prohibited propensity reasoning had not by the beginning of the summing up been so given to the jury by the judge? A. I should have been able to work it out but it was not something that crossed my mind. I was preoccupied with a number of other matters. Q. Didn't you know it as a fact that those directions hadn't been given before the beginning of the summing up at the time the summing up began? A. I obviously had the material to ascertain that but I didn't address the issue in my mind." 59He was asked to concede whether there was a possibility that his recollection was in error. He refused to make that concession, but added "to answer that more fully, one, of course, can't concede that one may have forgotten something one doesn't remember" but went on to say that he retained a clear recollection of the forensic decisions which he did make at that trial. 60It is an everyday occurrence that, during the course of a trial, particularly a lengthy trial such as this one, errors of omission occur. Trials are conducted by humans, not machines. It is not inherently implausible that, some weeks after his unsuccessful objection to the tender, Mr Kintominas forgot to remind the judge of the foreshadowed direction. The trial judge himself forgot (although his Honour was entitled to expect either or both counsel to draw the point to his attention). There was no evidence as to the state of mind of the Crown Prosecutor, but we would infer that she too omitted to remind the trial judge of what had been said on day 13. In the particular circumstances of this case, there were the facts that he was leaving on a pre-arranged vacation, and that the junior who was present for the remainder of the case had (so far as appears from the record) not been present on day 13 when the judge said a direction would be given. Mr Kintominas was a very experienced counsel, who made concessions in cross-examination freely and appropriately. We are not persuaded that his recollection in December 2013 was erroneous and that, contrary to his evidence, he had made a deliberate forensic decision not to seek the direction. 61That was the only basis on which the Crown contended that leave pursuant to r 4 of the Criminal Appeal Rules should be refused. Having rejected the factual aspect of the Crown's first response to the appeal, and with the Crown making no submissions contrary to the appellant's submission that a direction should have been given, but instead relying on the proviso, it is appropriate that leave be granted under the rule to the extent it is necessary to do so.

(a) The Crown's submissions 62The Crown contends that even had the trial judge given directions proscribing propensity reasoning, in light of the abundance of other available evidence it was inevitable that Mr Mortada would have been convicted on Count 1, having regard to all the evidence which was properly admissible to establish his possession of the heroin. 63Support for the Crown's submission that an inevitable guilty verdict is sufficient to engage the proviso may be found in English and Commonwealth decisions: see Lundy v The Queen (New Zealand) [2013] UKPC 28 at [160]-[161] and Stafford v The State [1999] 1 WLR 2026 at 2029, and there are Australian appellate decisions which may seem to proceed on the basis that there can be no substantial miscarriage of justice if the appellate court is persuaded that a guilty verdict is inevitable. But that is not the applicable test in New South Wales, as the appellant points out. As much had been recognised by Gibbs J in Quartermaine v The Queen (1980) 143 CLR 595 at 600-610 and by Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 at 372-373. In Weiss v The Queen [2005] HCA 81; 224 CLR 300, considering the common form criminal appeal provision prior to its amendment in 2008, the High Court said at [45] (emphasis added): "Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind." 64In Cesan v The Queen [2008] HCA 52; 236 CLR 358 at [124], Hayne, Crennan and Kiefel JJ said that: "a necessary, but not always sufficient, step to the application of the proviso is that the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. But the conclusion that guilt of the accused was proved to that standard does not, in every case, suffice to show that there was no substantial miscarriage of justice. An example of circumstances in which consideration of what was proved at trial is not a sufficient basis for applying the proviso is provided by AK v Western Australia. In that case the relevant statute required that the trial of an accused, by judge alone, yield a reasoned decision, but there were no reasons given at the appellant's trial for the determination of the central issue tried in the case. That being so, it could not be said that there was no substantial miscarriage of justice." 65The most recent High Court decision on this point is Baini v The Queen [2012] HCA 59; 246 CLR 469, which turned on the amended form of the proviso in Victoria (and therefore does not automatically translate to the New South Wales Act). Nevertheless, the same point about the distinction between mere inevitability of guilty verdict and the absence of a substantial miscarriage of justice was made by French CJ, Hayne, Crennan, Kiefel and Bell JJ there at [33]. 66In accordance with those principles, Bathurst CJ, with the agreement of Hidden and Button JJ, said in Giourtalis v R [2013] NSWCCA 216 at [84] (emphasis added) that: "it is a necessary but not always a sufficient pre-condition for the operation of the proviso that the appellate court be persuaded beyond reasonable doubt that evidence properly admitted at the trial proved the guilt of the accused." 67Accordingly, we are bound to reject the Crown's submission that an inevitable guilty verdict is sufficient for the appeal to be dismissed.

(b) The defence submissions 68Mr Strickland's central submission was that the trial judge's failure to direct the jury that they could not use propensity reasoning to find Mr Mortada guilty on Count 1 meant that the appellant did not have a fair trial according to law. In his written submissions (at [111]), Mr Strickland stated: "... a prohibited line of reasoning is, for example: 'we are satisfied that Mr Mortada had sold heroin in the past and sent the proceeds of those heroin sales overseas and therefore he must be guilty of possessing the 496 grams of heroin in room 1417'." 69In developing this submission, Mr Strickland's contention was that the jurors were never informed as to whether, and if so how, they could use evidence of actual supply of prohibited drugs (referred to in oral submissions as the "uncharged offences") - evidenced by the Post-It Notes and the Western Union money transfers - in order to prove the deemed supply count, Count 1. 70In oral submissions, Mr Strickland stated that the evidence of the "uncharged offences" once admitted, and in the absence of appropriate directions, could be used by the jury for two purposes, namely: (i) as circumstantial evidence relevant to proving actual possession of the 496.75 grams found in a suitcase in Room 1417 of the Sheraton on the Park Hotel; and (ii) as evidence on the basis of which the jury may engage in propensity reasoning to find the appellant guilty on Count 1. 71It was submitted on behalf of the appellant that in respect of the possibility of the jury using the evidence as in (ii) above, without appropriate trial directions, there existed a real risk that the jury would impermissibly use the evidence to reason to guilt. "... His Honour's failure to direct the jury as to the use they could make of the evidence of actual supply left it open to the jury to engage in impermissible propensity reasoning": Appellant's Written Submissions at [108]. 72In oral submissions Mr Strickland stated: "What the trial judge had to do was to acknowledge the evidence was admissible for one purpose but not another". 73Mr Strickland further submitted: "The failure to give this direction even though it was not asked for, meant there was not a trial according to law because these were directions that had to be given to avoid a miscarriage of justice and a failure to give such a direction meant there was a loss of a real chance of acquittal. That reasoning is adopted in the case of BRS v The Queen ...". 74In addressing the relevant legal principles, Mr Strickland submitted that: (i) when admitting evidence in this case, being a multiple-count case, the trial judge was required to exercise care and precision to identify precisely what issue the evidence was relevant to: DJV v R (2008) 200 A Crim R 206 at [28], [36] and [37]; (ii) the failure to identify such issues will, and did, cause problems when coming to direct the jury as to how they use that evidence: JDK v R (2009) 194 A Crim R 333 at [31] and [37]; (iii) evidence admitted for one purpose is not admissible for another purpose, that is, it cannot be used for another purpose: BRS v The Queen; and (iv) where there is a danger or real risk that a jury may misuse evidence by engaging in inadmissible propensity reasoning, the judge should give such a warning even if trial counsel fails to request such a warning: BRS v The Queen; Giovannone (2002) 140 A Crim R 1. 75Emphasis was given in Mr Strickland's submissions to particular observations made by members of the Court in BRS v The Queen. These included the observations of McHugh J to the following effect: (i) there is a fundamental principle of the criminal law in this country that ordinarily the guilt of an accused person is not to be "inferred from the character and tendencies of the accused": at 304; (ii) if evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence: at 305; (iii) if the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose: at 305, and (iv) in some cases the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence: at 305. 76In his oral submissions, Mr Strickland submitted that: "... the high point of our case on appeal is that there was extremely significant evidence led in this case, in Mortada's case, that show extensive criminal activity other than that charged. I particularly refer to exhibit 26 ... Exhibit 26 is a convenient list of all the Western Union money transfers. This really I submit is the high point of why the directions that I say should have been given, should have been given. First, you will notice if you go to the last page you will see that the total amount for Western Union money transfers is close to $1 million, $945,000. You will note that the subject of count 2 was about $19,000 and the money that is subject of count 3 is about $22,000. Count 2 is found on Mortada's person. Count 3 is found in the safe in the Sheraton on the Park unit. In short, the money which is said by the Crown to be transferred pursuant to drug sales is some 25 times greater in quantity than counts 2 and 3. Secondly, your Honours will note that the range of dates of the money transfers, being 27 February 2009 through to 16 June 2009 is very extensive." 77Mr Strickland subsequently stated: "Your Honour the submission I make though is that the vast majority of this is uncharged acts, it has not got nothing to do with counts 1, 2 or 3. I am not saying it is not relevant to any of the counts, but there is a very significant body of uncharged acts that was used in the Crown case and that's the relevance of BRS v The Queen ...". 78A little later, Mr Strickland submitted: "It would have been wrong for them to do so and likewise, the jury may have reasoned that if he is the kind of person who sells - deals with the drugs, sells the proceeds - I'm sorry, and transfers the proceeds overseas to the tune of one million dollars and he is therefore the kind of person who might therefore be in control of the half a kilogram of heroin in the safe." 79At pages 29-31 of the transcript, the issue whether the appellant was denied a real chance of acquittal and, hence a fair trial, was discussed by Mr Strickland and the members of the Bench constituting the Court. Mr Strickland contested the proposition that the appropriate approach in this case was one that focussed on all of the other circumstantial evidence that tended to establish the connection and accordingly the appellant's alleged possession of the heroin the subject of Count 1, such that one might then conclude that the failure to give the direction was of no moment. In that respect Mr Strickland argued: "No your Honour we wouldn't adopt that line, I would not with respect, adopt that line of reasoning because in my submission, it is inconsistent with both this authority and it is also inconsistent with the notion - with this two-fold notion. The Crown as I understand it, accepts that the high point of the defence case as I've said earlier, is that there were real connections between El Dirani and the heroin ... [T]here were real connections, it wasn't fanciful to suggest that he was the owner of it because of the - in my submission, the very strong evidence of his connections with it ... [I]n my submission the proper question is this. Is there a real possibility that the jury misused the uncharged acts evidence" (emphasis added). 80Whilst, with respect, Mr Strickland was correct in identifying that as a question that this Court must ultimately consider and determine, it is necessarily one that also requires this Court to do so having regard to the whole of the evidence directly and indirectly relevant to the issue as to whether the Crown had proved beyond reasonable doubt that the 496.75 grams of heroin was in the appellant's possession. 81The question when so considered ultimately is whether there was a real chance that the jury may have convicted the accused by a chain of "forbidden reasoning". As McHugh J made plain in BRS at 306, trial judges have no authority to dispense with the directions that the law requires them to give in criminal trials and if a failure to give a direction may have resulted in a conviction of the accused person, the trial has not been conducted according to law. In those circumstances the conviction constitutes a miscarriage of justice. 82However, as his Honour also observed (at 308), whilst a trial judge must give a clear direction to the jury as to the use that they can make of the evidence it does not follow that the failure to give such a direction always constitutes a miscarriage of justice. The failure may have made no difference to the outcome of the trial. The appellant's submissions were largely based on the reasons of McHugh J in BRS. It is to be noted that the penultimate sentence of those reasons is: "Furthermore, although the appellant's chance of acquittal may have been small if a proper direction had been given, it is impossible to conclude that he must inevitably have been convicted." 83It is therefore necessary for two reasons to examine the defence case in detail. The first is that before the proviso can be applied, it is necessary to be persuaded beyond reasonable doubt that the evidence properly admitted proved Mr Mortada's guilt. The second, which is closely related to the first, is that an examination of that evidence is necessary in order to determine whether there has been a substantial miscarriage of justice. 84That assessment falls to be undertaken in light of the whole of the evidence at trial, and is subject to the "natural limitations" inherent in an appeal: Cesan at [128], quoting Dearman v Dearman (1908) 7 CLR 549 at 561. Those natural limitations are of heightened importance in a trial such as the present, in which the Crown case was circumstantial, and when Mr Mortada gave evidence, was cross-examined extensively, and called a series of witnesses including Rabieh and Hanan. In many cases where the accused gives evidence and propounds a positive case, it will not be possible for an appellate court to conclude that a guilty verdict was inevitable: cf Cesan at [130]. Accordingly, in what follows it is essential to distinguish between evidence (such as testimonial evidence of Mr Mortada and his witnesses) which it was open to the jury to accept might give rise to a reasonable doubt, and incontrovertible documentary or telephonic or electronic evidence in respect of which this Court is in as good a position as the jury.

(c) The defence case in detail 85It is necessary to analyse the defence case at trial, insofar as it related to the first count, in detail, for as was said in Weiss at [41]: "[t]he appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty." 86The defence sought to establish a reasonable doubt that the heroin was in Mr Mortada's possession. It was said that Mr Mortada had a flight booked to return to Lebanon on the day he was arrested, that his personal belongings were at a unit in Punchbowl, where he intended to return before going to the airport, that no airline ticket was found in the hotel room, and that there were items of Mr El Dirani found in the room (including some viagra, steroids and body building magazines). There were high quality forged drivers licences in evidence, said to have been found in the suitcase obtained by the Legal Aid solicitor, including one with Mr Mortada's name and photograph; Mr Mortada said that this demonstrated that Mr El Dirani had the capacity to impersonate him. The heroin was found wrapped in a towel, which Mr Mortada claimed to be from the Hilton hotel where Mr El Dirani was staying. And it was put forcefully and lengthily at trial that there had been a series of errors by the investigating police which left room for reasonable doubt (for example, the towel had not been seized, the room had not been fingerprinted, the CCTV footage in neither hotel had been viewed before it was erased). 87Mr Mortada denied all knowledge of the money or the drugs in the hotel room. He said he stayed in the house of his friends Hanan and Rabieh in Punchbowl. Both of those friends gave evidence that Mr Mortada had stayed with them in June 2009, and indeed one of them maintained unequivocally that Mr Mortada had stayed with him every night including the week of 10-17 June 2008 ("he always came back and slept at home and I used to hear him coming because I have four kids"). Mr Mortada maintained that Mr El Dirani had impersonated him, booking the room in Mr Mortada's name and without his knowledge, in order to protect himself. His evidence was: Q. You see are you saying that Mr El Dirani went to the Sheraton on the Park and impersonated you without your knowledge; is that what you're saying? A. INTERPRETER: Yes, of course without my knowledge. ... Q. So when was the first time you hear mention of the Sheraton Hotel in the course of this matter in June of 2009 or whenever it was? A. INTERPRETER: When I got into gaol. 88The fact that his name, mobile phone number, email address and credit card were all used was explained by Mr Mortada as Mr El Dirani having done "an excellent job" at impersonating him. When confronted with the fact that Visa card caused a message to be sent to his (Sapphire) mobile phone on 11 June, he was asked: Q. Didn't that kind of set some questions off in your own mind as to why you were receiving that? A. INTERPRETER: Yes, of course it made me wonder. I ask Abbas - I told Abbas that I received this message, was this amont of money. ... Because I saw this message I ask him what's this. He said to me, "I have used this card." 89Mr Mortada explained that he gave the Sheraton as his address when fingerprinted because he was not good at filling out forms and he wrote down what he said the police told him he should write down. When asked why he did not write down the address in Punchbowl where he was staying, he said "As I said to you I am not very good in filling out forms". The balance of the items found in the Sheraton room were there, on the defence case, because "somebody put them there as insurance to make the accused look guilty so that the real perpetrator wouldn't be uncovered". But the defence case had to grapple in detail with how items unequivocally connected with Mr Mortada came to be there. In particular, how did the bank account statement and marriage and divorce certificates, the Western Union transfers and receipts with his fingerprints on them, and Post-It notes with identity information (including the very nine Post-It notes found on Mr Mortada in 2008) with his fingerprints on them, come to be found in the room? We deal with the various explanations given by Mr Mortada below.

(d) Eleven implausibilities in Mr Mortada's case 90Aspects of Mr Mortada's positive case that he had not occupied, and knew nothing of, the room at the Sheraton on the Park, were implausible. 91The first was that Mr El Dirani was an extremely competent forger who used the appellant's driver's licence (or a high quality forgery) and credit card and imitated his signature on the hotel check-in documents (the handwriting expert said that he knew of only two people with such skill). 92The second was that Mr Mortada had been told by police to write the Sheraton on his fingerprint form (something which they denied, but the scenario hypothesised by the defence was presumably that Mr El Dirani had told them that that was where the appellant was staying in order to incriminate the appellant). 93The third was that the nine Post-It notes found on Mr Mortada by Mr Singh in October 2008 in Mr Mortada's handwriting and containing his fingerprints were in the Sheraton room in June 2009 because Mr Mortada had soiled the original piece of paper in 2008 and written out the information again and given the notes to Mr El Dirani's brother in accordance with Mr El Dirani's request. 94The fourth was that despite some of those nine Post-It notes having new names written on them some time after Mr Singh saw them, Mr El Dirani managed to avoid placing any of his fingerprints on any of them, whilst Mr Mortada's fingerprints were preserved on them. 95We pause to note that we find those propositions (acceptance of all of which is necessary in order to hypothesise a scenario consistent with Mr Mortada's case of knowing nothing of the hotel room) highly implausible. However, this Court lacks the benefit enjoyed by the jury of seeing Mr Mortada give evidence, and even though the scenarios propounded by the defence may lack persuasion, it is a very large task for this Court to be satisfied that a guilty verdict was inevitable, especially having regard to the limitations of the record. It is necessary to be conscious of what Hayne, Crennan and Kiefel JJ said in Cesan at [130]: "Each accused proffered an explanation of what was put against him. In transcript the explanation may lack persuasion. But whether the evidence as a whole, including what each accused said in explanation, was sufficient to establish guilt beyond reasonable doubt was a question for the jury to decide having regard to more than the words that are recorded in the transcript of the proceedings." 96Were those the only improbabilities in the reasonable doubt sought to be established by the defence, we are doubtful that a conclusion of inevitability would be open to this Court. The hurdle of inevitability is, unsurprisingly, an extremely high burden to discharge. 97However, the improbabilities are much greater than as indicated above. 98The fifth is that it seems improbable in the extreme that a Legal Aid duty solicitor would have gone to the Sheraton without having been expressly asked by Mr Mortada to do so. The solicitor had never met Mr Mortada before. The solicitor was not interviewed in the course of the criminal investigation. He was first contacted by the Crown halfway through the course of the trial (when, it may be presumed, the nature of the defence case had become apparent). The solicitor (very understandably) had only a limited recall of the events of June 2009, but there was no suggestion, nor could there have been any suggestion, that his evidence was tainted, as is plain from his cross-examination: "Q. And indeed before you attended court last week [on the voir dire] you had no real idea of what it was that - what evidence you could give which would be of any assistance to anybody? A. Well, I still don't know what my evidence is of assistance to the case. I still don't know." 99But it was proven beyond any doubt that the solicitor had appeared for the appellant immediately after his arrest, had collected a suitcase from Room 1417, and had delivered it to Rabieh and Hanan. The defence case must be that the solicitor learned of the hotel from the police (say, by seeing the charge sheet). But the appellant's case was that he was not staying in any hotel; he was staying at his friends' house in Punchbowl, and had no personal belongings to retrieve from any hotel. Mr Mortada said in chief: "Q. Did you ever tell [the solicitor] to go to the Sheraton? A. INTERPRETER: It was - initially it was difficult to have a conversation with him in English and besides why do I have to say to him go there, I know nothing about there. Q. Did you ask him to go to the Sheraton? A. INTERPRETER: In fact there was no conversation between us because I was upset and crying and I was unable to talk." 100We struggle to reconcile the fact that the solicitor went to the Sheraton on the Park, retrieved a suitcase and delivered it to Mr Mortada's friends (who then destroyed it and its contents save for the forged driver's licences which were then deployed by the defence) with any explanation other than the solicitor receiving instructions from Mr Mortada to do so. As the solicitor said in cross-examination, "I just cannot imagine going to the hotel to pick up someone's items without some authority" (he was referring there to written authority); that evidence is inherently plausible. 101The explanation given in the closing address by the defence was that this was an example of a duty solicitor "trying to be a helpful solicitor hoping to pick up a client". We can readily accept that a solicitor may be helpful and try to assist a client, but it does not explain how he came to the belief that his instructions led him to go to the Sheraton on the Park, if at all times Mr Mortada believed that he had nothing there and indeed all of his personal belongings were already in the house of his friends Rabieh and Hanan. Solicitors do not go to hotels to reclaim the personal belongings of their (brand new) client without instructions to do so. We think the possibilities of a misunderstanding are minimal, especially if, as the solicitor (not implausibly) recalled, he had the written authority of his client to show the hotel staff, which explains why the belongings were given to him. 102However, once again, it is necessary to be conscious of the limitations of the appellate record. The written authority which the solicitor recalled he had received was not tendered. Moreover the Crown did not rely strongly on the solicitor's evidence at trial (in final address, the prosecutor said "[b]ut no, the Crown doesn't put him forward as strongly ... I didn't include [the solicitor] as one of the Crown's star points because there are shortcomings in [him]"). That reticence suggests that there were aspects of his evidence, not evident from the written record, which diminished the probative value of his evidence. Accordingly, we do not consider that it would be proper for this Court to regard the solicitor's testimony as clinching evidence of an association between Mr Mortada and the Sheraton on the Park room. 103Sixthly, there are the driver's licences, which were regarded by the Crown as the first of "four particularly strong points" in the Crown case. It was common ground that the licences were very good forgeries. They were deployed in quite different ways. The defence said that they suggested that Mr El Dirani was very well placed to impersonate the accused. The Crown said that they reflected something much more sinister. One of the forged gold driver's licences had a fee of $153, but there was uncontroverted evidence that the fee in 2009 was $151, and had been increased to $153 only from 1 July 2010. The Crown said that this demonstrated that the forgeries had been manufactured sometime in the 13 months between Mr Mortada's arrest and his release on bail, and could not have been in the suitcase in June 2009. In response, Mr Kintominas said: "Is it really all that farfetched to consider that whichever crook it was that was operating this crooked machine making the fake licences ... made a mistake and made instead of 151 made it 153 ... ?" 104The seventh improbability is the lithium carbonate medication said to have been found in the hotel room. The same medication was found on Mr Mortada in October 2008 when searched by Mr Singh. The appellant gave evidence that, at the "end of 2008", he was prescribed a six month supply of Lithium, but that he stopped taking it after one month. Whether or not that was so, there is no explanation for Mr El Dirani being in possession of the same medication. However, the medication was not listed on the Property Seizure Exhibit Form (Exhibit 5), which introduces an element of doubt. 105The eighth improbability turns on timing. Mr Mortada's personal papers were found in the hotel room, including the bank statement with transactions up to 29 May 2009 in the name of him and his former wife, as well as the translations of his marriage and divorce certificates. It will be recalled that Mr Mortada's explanation was that he gave those papers to Mr El Dirani because he had kept them in a pocket in his keyboard bag, but gave them to Mr El Dirani on the weekend before they left while performing at a function so that they could be kept safe ("usually when we go to functions to perform we keep the bags outside so that means anyone can have access to them"). He gave this evidence: "Q. Did you ask Abbas to give them back to you? A. INTERPRETER: Yes, of course. Q. How was it that you didn't get them back? A. INTERPRETER: It happened the last two days it was Saturday and Sunday and I ask him on Monday and Tuesday to give them back to me and it didn't occur. Q. And you didn't chase it up after that? A. INTERPRETER: How can I chase him up, they arrested me, it was Wednesday." 106Mr Mortada's flight was scheduled to depart from Sydney at 2pm on Wednesday 17 June. The uncontradicted testimonial evidence was that he was detained by police late in the morning, and as noted above the mobile phone records demonstrate that the police intervened no later than 10:57am. 107Mr Mortada's case was that his personal documents were important to him, so much so that he asked Mr El Dirani to keep them. Yet within three hours of his international flight's scheduled departure, he had not got them back. And within those three hours, according to him, he had to get from the CBD to Punchbowl to pick up his personal belongings, he also needed to visit a St George Bank to deposit a large amount of cash, and he then had to get to the airport and clear security and customs. (He said he could do so in the time available, and in any event he had a flexible business class ticket.) 108The ninth improbability with Mr Mortada's case turns upon the mobile phone stations that received calls from one of the mobile phones in his possession on 18 June 2009 (this was a Nokia 6300, with a Vodafone SIM card and contract, in the name of Mr Lewis Trev, which Mr Mortada said that Mr El Dirani had bought for him). The Crown called evidence from an analyst at Vodafone that a carrier's towers tended to transmit signals to a handset depending on their proximity, although there were other factors in play (notably, the available capacity of nearby stations). Although it was "possible but not likely" that a tower in Kings Cross could transmit to a handset in the CBD (because there were so many towers closer to the handset in the CBD), she excluded the possibility of a tower in Burwood doing so. 109The Crown tendered Vodafone's records of the towers used for calls and text messages made by this handset. For example, three calls were made between 12.30am and 1am on 13 June 2009; all were picked up by Vodafone's mobile phone tower described as "Elizabeth/Park-Market". On the morning of his arrest, two phone calls were made to Mr El Dirani at 10.18, one picked up by the same station and one at "East Sydney". A further two calls to Mr El Dirani at 10.37 were picked up by "George/Park-Market". The Crown said that this was consistent with Mr Mortada making calls from his hotel room in the Sheraton on the Park in the early hours of 13 June, and immediately before meeting Mr El Dirani on 18 June. The Crown further said that the explanation for a different Vodafone station picking up Mr Mortada's calls on the morning of 18 June 2009 was simply that he was walking from the Sheraton to the Hilton, making calls as he went. Mr Mortada said that the calls were made as he was approaching the Hilton hotel, but he denied he had been coming from the Sheraton on the Park. 110It may be acknowledged that inferences from the particular Vodafone station in the CBD which picked up Mr Mortada's handset is far from unequivocal. However, Vodafone's records did undermine the evidence of Mr Mortada's witnesses Hanan and especially Rabieh, who swore that he had stayed each night at Punchbowl in their home. The Vodafone records repeatedly located Mr Mortada in the vicinity of the Sheraton in the early hours of the morning. He made three calls between midnight and 1.00am on 13 June, two calls between 4.00 and 4.30 am on 14 June followed by one at 9.21am later that morning, and then at 2.26am and 8.26am on 15 June, all of which were picked up by the "Elizabeth/Park-Market" or "East Sydney" mobile phone towers. 111The tenth improbability arises from the fact that Mr Mortada was not wholly unaware of the Sheraton booking. He received a message saying that $1,795 had been processed on his card for the Sheraton on the Park. He accepted that he asked Mr El Dirani about it, and he was told by Mr El Dirani that he had used his card. It is very difficult to reconcile Mr Mortada's ignorance of the Sheraton on the Park with that text message. The phone recorded the message as having been read, and Mr Mortada is a man who constantly sent and received text messages. 112The eleventh improbability emerges from a close analysis of the Western Union transfer forms and Post-It notes, and the transfers of money they record, and the fingerprints they contain. This analysis in no way involves propensity reasoning. Its point is to answer two simple questions: how if Mr Mortada was not occupying Room 1417 did documents relating to transfers of money closely associated with Mr Mortada come to be in that room, and how did his fingerprints come to be on those documents in that room? 113Sixty seven "graphs" were identified on the Western Union transfer forms with receipts attached located in the Sheraton on the Park hotel room when the search warrant was executed. These were labelled by the fingerprint expert as F29-F95. Some graphs contained more than one fingerprint (for example, F29 was identified as the Right Index Finger and Right Thumb prints of Mr Mortada). Sometimes, more than one graph was found on the same document (for example, the graphs identified as F29, F30 and F31 were all on a single transfer form for a transfer of $7000). 114In all, fingerprints were found on 33 Western Union transfer forms. Of those 33, there were 30 which contained Mr Mortada's fingerprints, and none which contained Mr El Dirani's. (There were three prints (F58, F85 and F87) which were the only fingerprints on a form, and which were not identified as Mr Mortada's fingerprints.) 115Now Mr Mortada's case was that he had been asked to give the Western Union transfer forms to Mr El Dirani by his brother Ahmad. He was unable to say when that occurred. 116But the transfers were dated fairly evenly throughout Mr Mortada's stay in Australia. Just counting the number of separate transfers each day, there were: 21 May 6 22 May 6 23 May 4 25 May 8 27 May 5 28 May 5 29 May 6 1 June 9 2 June 5 3 June 5 4 June 5 5 June 3 6 June 3 7 June 6 9 June 6 10 June 6 11 June 9 12 June 7 13 June 7 15 June 7 16 June 1

117It follows that either Mr Mortada gave the whole bundle of transfers and receipts to Mr El Dirani shortly before his arrest on 17 June, or else Mr Mortada gave some of the bundle to him earlier, and Mr El Dirani obtained the more recent documents at some later stage. That suggests it may be of assistance to identify which receipts contained Mr Mortada's fingerprints. 118The materials reproduced in the appeal books do not permit a definitive conclusion as to the dates of the 30 Western Union transfers with Mr Mortada's fingerprints on them amongst the 119 transfers and receipts brought into existence in May and June 2009. (This is because those identified by the fingerprinting expert were described by reference to their amount and a number handwritten on the back of each transfer by the police when the search warrant was executed. There are many instances when the same amount was sent from Punchbowl Post Office to different people on different occasions, and the appeal books do not reproduce any of the backs of the transfers where the numbers written by the police were recorded.) But even so, the limited selection of evidence available at trial enables some precision, by the following two modes of reasoning, as follows: 119First, some transfers were for unique amounts of money. These were: Amount Date Time Transferee (ID) to Transferor (location) $4989.59 23 May 14.54 Mouna Kasif (Lebanese Passport 16092013) to Ziade Hamdar (Lebanon) $6950 27 May 15.43 Hussein Delbani (Licence NSW 18379012) to Ala Salman (unknown) $2150 29 May 15.01 Maryan Aldirani (Licence NSW 1469034) to Ali Aldirani (Lebanon) $7600 1 June 12.17 Naser Mounir (Licence NSW 80367hr) to Adham Boukarom (unknown)

Mr Mortada's fingerprints were on each of these transfers. 120Secondly, there were precisely four transfers of $7000 in all of the Western Union receipts tested: Date Time Transferee (ID) to transferor (location) 21 May 14.23 George Nasif [Lebanese Passport 11052010] to Mouhmed Baker Elhoussiny (Lebanon) 22 May 15.18 Issam Moura [Licence NSW 1970241] to Ali Raad (Lebanon) 25 May 14.50 Jihan Maezir [Lebanese Passport rl803917] to Samir Kobeissy (Lebanon) 5 June 16.00 Imad Asmar [Passport Aland Is 73041] to Honan Yamoul (unknown)

As it happens, all four $7,000 transfers and receipts were tested for fingerprints, and all four contained Mr Mortada's fingerprints. 121There are in that manner, based only on the (limited) materials in the appellate record, identified eight Western Union transfers and receipts, dated 21, 22, 23, 25, 27 and 29 May and 1 and 5 June, found in the Sheraton on the Park safe with Mr Mortada's fingerprints on them. 122The next aspect of this improbability arises from an analysis of the Post-It notes (many of which, once again, contained Mr Mortada's fingerprints but not a single fingerprint of Mr El Dirani). For example, one of the Post-it notes which had been in Mr Mortada's possession in 2008 commenced with "From: Raide Asaad", gave a date of birth, driver's licence number and address and telephone number, and concluded "To: Dina Hamada". Another commenced with "From: Karie Mandin", gave a date of birth, driver's licence and address and telephone number, and concluded "To: Imad Chaaban". Both those documents were found in the safe in June 2009. The former had not been altered. The latter had "Imad Chaaban" crossed out and replaced by "Mona Eldoker". The former bore Mr Mortada's left thumb print, the latter bore his left ring and left middle finger prints. Neither had Mr El Dirani's prints. 123Of course, a fingerprint is not left every time a document is handled, but it is inherently improbable that so many fingerprints have been retained of the man who had merely been asked to hand the documents to Mr El Dirani, and none of the man who (on the defence case) held the documents (in the case of the Post-It notes, for nine months) and indeed wrote on them. If Mr Mortada is to be believed, he merely took the transfers and receipts from Mr Ahmad El Dirani and handed them to Mr El Dirani. That said, it is conceivable that Mr El Dirani might have been aware that he had incriminating documents with Mr Mortada's fingerprints on them, and was very careful not to leave any of his own on them. 124It is also useful to consider the substance of the Western Union transfer forms and receipts, as opposed to the fingerprints on them. One of those forms found in the Sheraton on the Park room was a transfer made on the previous Friday afternoon 12 June 2009, of funds seemingly to Mr Mortada's former wife, using the name of one of the people Mr Mortada had been staying with. It was in the amount of $9440, purportedly sent by "Hanan Moussa" who provided a driver's licence and sent funds to Manal El Dirani. Almost uniquely, the transfer was made at Roselands, rather than Punchbowl Post Office. Almost uniquely, the driver's licence number matched that of the sender according to agency records. 125Ms Hanan Moussa was one of the friends with whom Mr Mortada had been staying in 2009 (and he was living with them while on bail during the trial). She knew Manal as a "family friend". She was called by the defence, and she was cross-examined about the transfer. She denied sending the money. 126How precisely that money was sent (whether it was sent by Ms Moussa, or by someone impersonating her) does not matter. What does matter is that the sender is identified as one of the friends with whom he was staying, and the recipient is identified as his former wife (and mother of his children), and it is dated 12 June 2009. It powerfully connects Mr Mortada with a document brought into existence on the Friday afternoon before his arrest the following Wednesday, which was found in the hotel room. 127That evidence must be considered as a whole. This is, in truth, a case where the Crown's circumstantial case was overwhelming. The difficulty in hypothesising facts consistent with innocence is in truth greater than has been set out above but the foregoing matters focus on the critical issue of fact: had the Crown proved beyond reasonable doubt that the heroin was in the possession of Mr Mortada and excluded the possibility that it was in the possession of Mr El Dirani? The Crown did so by an overwhelming circumstantial case. As McHugh J observed in Shepherd v The Queen (1991) 170 CLR 573 at 593: "In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard." 128Notwithstanding the failure to give a propensity direction, Mr Mortada's conviction was inevitable, given the evidence properly admitted which did prove his offence beyond reasonable doubt. There comes a time when the combination of implausibilities and improbabilities precludes there being a reasonable doubt of guilt; this is the cumulative elimination of other possibilities by geometric progression invoked by Lord Simon of Glaisdale in Reg v Kilbourne [1973] AC 729 at 758, to which McHugh J referred in Shepherd at 592-593. The same point was made by Dawson J (with whom Toohey and Gaudron JJ agreed) when he referred at 580 to the probative force of a mass of evidence being cumulative. Indeed, it is no different from what Lord Cairns long ago said in Belhaven and Stenton Peerage (1875) 1 AC 278 at 279: "Mr Lords, in dealing with circumstantial evidence, we have to consider the weight that is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel." 129Those principles apply when circumstantial evidence is relied upon in a criminal trial. The authorities were reviewed by Giles JA, with whom Howie and Buddin JJ agreed, in Burrell v R [2009] NSWCCA 193 at [55]-[65] and in the joint judgment of McClellan CJ at CL, Fullerton and Garling JJ in Gilham v R [2012] NSWCCA 131 at [466]. 130In this appeal, guilt is the only rational inference that can be drawn from the matters referred to above when they are reviewed in their totality. We should not be taken as saying that all of the implausibilities and improbabilities referred to above were necessary in order to compel an inference of guilt. To the contrary, this is a case when, even allowing for the limitations of the appellate record, there is a superabundance of evidence which is more than sufficient to exclude reasonable doubt of innocence. The circumstantial case is accurately described as "overwhelming".

(e) The N95 found in the hotel room was used by Mr Mortada in May 2009 131There is a further matter distinct from the foregoing: the presence of the Nokia N95 phone in the safe in Room 1417, and the electronic communications recorded in it and tendered at the trial. Mr Mortada and Mr El Dirani had more mobile phones in their actual possession than most people; a natural question was whether the handset found in the safe was connected with Mr Mortada. 132Mr Mortada accepted that the Nokia N95 had been in his possession at least until, as he said, it was given by him to Mr El Dirani in Africa in March 2009. Mr Mortada was bound to accept that because of the pictures and text messages contained in it when it was examined after having been found in the safe with the heroin. The text messages were of a personal nature from Mr Mortada's girlfriend in 2008 and early 2009. There was no dispute that she had then used a mobile phone number which ended in 4456, and the N95 recorded messages received from that number including "This is how I wanna look in your dreams" (22 February 2009) and "And you love manal more than me ..." (11 October 2008) and "You can't talk to me? You switch off your phone? Too busy with manal to talk to your girlfriend?" (12 October 2008). ("Manal" is a reference to the appellant's former wife.) 133Mr Mortada's response was to claim that he gave the N95 to Mr El Dirani in March 2009 and never saw it subsequently. His counsel opened his case as follows: "It will, however, be the accused's evidence that he gave that phone to Mr El Dirani and I will be directing the jury's attention to the use of that phone during the period that my client was in Australia, because the defence says the issue will be who had that phone in Australia." 134Mr Mortada's evidence matched his counsel's opening. He said: "Q. [W]hen did you last see that phone? ... A. INTERPRETER: The last time I saw it was in Africa. Q. When was this African trip? A. INTERPRETER: In March 2009. ... Q. You say that you last saw it sometime in March in Africa 2009, in what circumstances did you last see the phone? A. INTERPRETER: The telephone was with me. I took it with me to Africa with Abbas El Dirani and we had another guy also called Hussein El Dirani. When we arrived there they did not have telephones on them. They said that they ... didn't want to take telephones with them, they want to have a break on the basis that it was a holiday. When we got there I - Abbas asked me for the telephone. He wanted to use it. I said here's the telephone. ... After, you know, I gave it to him and then when he wanted to return it to me I said no keep it and what I mean after that I don't know what happened to it". 135However, other messages sent from that handset suggest that Mr Mortada used it when he arrived in Sydney. To explain this, it is necessary to descend to the details of the evidence. 136Most of the text messages retained in the handset had been received by (rather than sent from) the phone. However, there were five outgoing text messages in its memory. Two had been sent on 20 May 2009, to a phone whose number ended in 5527. The first message was "Wainak?"; the second was "W r u man?" 137It will be recalled that Mr Mortada and Mr El Dirani arrived in Sydney on 20 May 2009. On that day, seven text messages were sent from Mr Mortada's Sapphire phone to the same phone number (which ended in 5527). The content of the first was masked at trial and in the appeal books, but the following six were as follows (the row numbers of the print-out on which they appeared in the evidence are also given in order to understand the cross-examination on them): 236 "Wainak" 237 "Wainak wloh" 238 "Yes bas wainak?" 239 "Wainak loh" 240 "Abas w r u ?" 241 "Go to number 4 you get th bagge" [sic]. 138Mr Mortada accepted that the Sapphire phone was in his possession, in Lebanon and in Australia. He gave evidence about these messages. He had previously accepted (readily) that the 5527 number was that of Mr El Dirani ("See the number there, xxxxxx 5527, that's Mr Abbas El Dirani's number isn't it - Yes, correct"). He gave this evidence: "Q. If I can ask you just to go down a couple of entries, 236. Do you see the mobile phone number ending in 55527? A. INTERPRETER: Yes. Q. And that's a message that you sent to Abbas El Dirani, isn't it? A. INTERPRETER: Yes. Q. So we can accept that the number ending in 55527 is Abbas El Dirani's number? A. INTERPRETER: Yes. Q. And that message is a word in Arabic ... and that word "wainak" means where are you, do you agree with that translation? A. INTERPRETER: Yes. Q. So the next message also sent to Abbas some two minutes after, you ask him against "Wainak wloh", do you agree with that? A. INTERPRETER: Wainak Wloh, it's not wloh. Q. Sorry, my pronunciation is pretty bad in Arabic. Well what does it mean? A. INTERPRETER: It's a Bedouin language which we use when - shepherds use when they speak to their goats, they say wloh. ... When the sheep go away, you know they call them "wloh wloh", so they can come back. Q. OKAY. So you were effectively asking Mr Abbas where he was at that time in that message, do you agree with that? A. INTERPRETER: Yes, I was asking him where he is, where he was. ... Q. The next two messages, 239 and 240, you are asking Abbas where he is, do you agree with that? A. INTERPRETER: Yes, one of them Wainak wloh and the other one is Abbas where are you. Q. Was this because you got separated when you arrived at Sydney Airport? A. INTERPRETER: We did not separate when we arrived to Sydney, but as we were entering Australia the Customs - Customs stopped Abbas and I continued my way out." 139There is one highly plausible explanation for the two messages sent from the N95 phone on 20 May 2009 to the 5527 number "Wainak?" and "W r u man?". It is clear that those two messages were not sent by Mr El Dirani, for they are sent to the same number ending in 5527 that Mr Mortada had been sending text messages to using his Sapphire phone on the same day. The evidence does not suggest that there was anyone else who could have been sending text messages on that day of that nature to Mr El Dirani. It is plausible that Mr Mortada, trying to locate Mr El Dirani after they were separated on arrival on 20 May 2009, sent at least eight text messages, mostly from his Sapphire phone, but also two from the N95 phone. The coincidence of the timing, the phone number, and the substantially identical language exclude any other non-fanciful possibility. If so, it is inconsistent with Mr Mortada's explanation that he handed over the phone to Mr El Dirani in Africa and did not know what happened to it thereafter. 140However, this was not a matter with which Mr Mortada was confronted in cross-examination at the trial. Nor was it the subject of the written or oral submissions when the appeal was heard. Accordingly, parties were, by letters dated 19 and 26 February 2014, directed to the evidence and the fact that it appeared that Mr Mortada sent the two messages on 20 May 2009 from the N95 handset, and invited to make submissions if they wished. An extension of time to do so was granted at the request of Mr Mortada. 141A submission was received from Mr Mortada's counsel (on 5 March 2014, within the time permitted), to the effect that the Court should not draw the inference, essentially for two reasons. The first was that the common nature of the request and common usage of the words used by any Arabic speaking person did not prove that the same person must have sent the message. That submission would have force if all that had been sent were the messages "W r u" or "Where are you". It might even have force if the message was just "Wainak?" (although there was no evidence as to whether that term was commonly used by Arabic speakers). However, the evidence is much more powerful. The messages are not merely to the same effect. Mr Mortada used the Sapphire handset to transmit the English acronym "W r u" and the Arabic term "Wainak" interchangeably when trying to locate Mr El Dirani. The person who used the N95 likewise used both the acronym and the Arabic term. Nor is it merely similarity of language. The messages were sent on the same day, to the same phone number ending in 5527 which Mr Mortada readily accepted was Mr El Dirani's phone. 142The second reason advanced by Mr Mortada was that this had not been put to him at trial, so that he had not been given any opportunity to proffer an explanation for the coincidence. The Crown submitted that only if no other rational inference could be drawn in the circumstances could use fairly be made of this material. We do not need to, and do not, express a view whether that submission, applied to the facts of this appeal, is correct, in light of the fact that reliance on the messages sent on 20 May 2009 would amount to a rejection of an aspect of Mr Mortada's sworn evidence, which in fairness to Mr Mortada should have been put squarely to him if it is to be relied upon: see (in a civil context) Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [70]-[74]. 143The evidence did, however, support the Crown's circumstantial case. Our conclusion does not rest on this evidence, but we have referred to it in order to explain how we have approached the parties' submissions on the matter which we raised with them.

(f) Conclusion: a guilty verdict was inevitable 144The Crown case connecting Mr Mortada to Room 1417 may accurately be described as overwhelming. Its essence is this. Room 1417 was booked in Mr Mortada's name, his signature was on the hotel registration form, his credit card was used for pre-authorisation, and his phone contained a text message referring to it which he received, and he was repeatedly in its vicinity making phone calls at night. Room 1417 was found to contain documents belonging to Mr Mortada, Post-It notes with his fingerprints on them, Western Union transfers and receipts which had his fingerprints on them and which were connected with him, and medicine with which he had been prescribed. When Mr Mortada was arrested, he gave the Sheraton on the Park as his address, and a duty solicitor went to Room 1417 and collected a suitcase and gave it to his friends (who destroyed it), save for forged driver's licences which recorded fees inconsistent with their being in existence in June 2009. 145Mr Mortada sought elaborately to deny all knowledge of the room at the Sheraton on the Park. He claimed he had been set up by Mr El Dirani and his associates. But the extended series of improbabilities entailed by his explanation mean that it was not open to the jury to accept that Mr Mortada was unaware of the Sheraton in the Park room. The only alternative on the evidence was that Mr Mortada had occupied the room, and was involved in a joint criminal enterprise with Mr El Dirani. It followed that he was in possession of the heroin.

Was there a substantial miscarriage of justice? 146From time to time the appellant and the Crown, orally and in writing, submitted that the failure to give the direction in relation to propensity reasoning meant that Mr Mortada had "lost a real chance of acquittal". That language may be convenient, but it is not the statutory test, and care must be taken if departing from the statutory language: see Weiss at [40], Cesan at [123] and Versi v R [2013] NSWCCA 206 at [140] (Adams J, Basten JA and Latham J agreeing). 147Moreover, contrary to the Crown submission, the fact that the incontrovertible evidence makes a guilty verdict inevitable is not sufficient, although it is highly relevant to the remaining question, which is that posed by the statute: did no substantial miscarriage of justice actually occur? 148As noted in Wilde at 373 and Weiss at [45], there is "no rigid formula" and "no single universally applicable criterion" specifying the circumstances when an appellate court can be satisfied that a guilty verdict was inevitable on the evidence, notwithstanding an error in the course of the trial, but even so it is not satisfied there has been no substantial miscarriage of justice. In Cesan at [81], French CJ said: "There may be cases, nevertheless, in which there is a process failure of such significance that, whatever the apparent weight of the evidence against the accused person, it cannot be said that there has not been a substantial miscarriage of justice." 149This was not such a case. Having regard to the course taken at trial, it is clear that the error was not "a serious departure from the essential requirements of the law", to use the language approved by Gibbs J in Quartermaine at 601. It was not "radical or fundamental", to use the language of Brennan, Dawson and Toohey JJ in Wilde at 373. There was no "process failure" in the sense to which French CJ referred in Cesan (at [4]), involving a trial which was "flawed in a fundamental respect" (by reason of the judge being asleep repeatedly during the trial). 150Three considerations make this clear. First, much of the evidence linking Mr Mortada to uncharged criminality was tendered without objection. Objection was only made, relatively late in the course of the Crown case, when the evidence of Mr Singh was sought to be tendered. At that time, as is recorded in his Honour's judgment, the Post-It notes in the safe were already before the jury (they were Exhibit 19). So too were the Western Union transfer forms and receipts with some of the same information. And evidence had been served and the case opened to the effect that the handwriting and fingerprints on the Post-It notes in the room were those of Mr Mortada. It was at that point that it was decided that a propensity direction would be given. 151Secondly, neither of the experienced counsel saw the need, by the end of the trial, for a propensity direction earlier dealt with to be given, the form of the jury directions having then been discussed at length. 152Thirdly, there is force in the Crown submission that this was consistent with an essential aspect of the defence case by which the jury was invited to conclude that Mr El Dirani was deeply involved in the sale of illegal drugs. For example, in closing address, Mr Kintominas said "If you have a look at Mr El Dirani's phone messages the defence says it's very clear that he is involved in selling and buying drugs". 153Although we have not been satisfied that Mr Kintominas deliberately refrained from reminding the trial judge of the propensity direction promised on day 13 of the trial, the fact that he was inviting the jury to hold that the Crown had not proved its case beyond reasonable doubt by inviting propensity reasoning directed to Mr El Dirani, based on the very same documents (the Post-It notes and Western Union transfers and receipts which the appellant said he had given to Mr El Dirani), confirms that there has been no substantial miscarriage of justice by the failure to give a propensity direction (cf BRS at 307).

Conclusion 154For those reasons, we conclude that a guilty verdict was inevitable and are satisfied that the failure to give the direction (which had been indicated by the judge but was not subsequently raised by the appellant or by the Crown) did not give rise to any substantial miscarriage of justice actually occurring. Accordingly, the Court's orders will be: (1) Extension of time to appeal granted. (2) Leave under Rule 4 granted. (3) Appeal dismissed. 155There are two final matters. The first is that it is unnecessary to explore the consequences of the inconsistency with the unchallenged guilty verdict in relation to the third count (the money found in the safe in the hotel room), which would have flowed from an acceptance of the appellant's argument. No submissions were addressed to this question. However, it would seem to have been at the least desirable, in order to avoid the prospect of inconsistent verdicts, for the appeal to have extended to the conviction on the third count, even though Mr Mortada had already served the entire sentence. 156The second is that it is a large thing for the Crown not to dispute that a non-trivial error has occurred in the trial of a serious criminal offence lasting six weeks, but to rely on the proviso and thereby require this Court to review for itself the entirety of the evidence with a view to concluding that a guilty verdict was inevitable and no miscarriage of justice has occurred. It is important for the person convicted at such a trial, as well as for the efficient operation of the Court, and the avoidance of a needless retrial in the limited circumstances where the proviso operates, that the Crown provide detailed and substantial assistance in explaining why a guilty verdict was inevitable and how that conclusion can safely be reached, notwithstanding the natural limitations of appellate review. The Court is grateful for the considerable assistance received, but in the particular facts of this trial, a greater level of assistance with the detail of the evidence on which the Crown's circumstantial case rested would have been welcomed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2014

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