Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Consequence of State concession of substantial miscarriage - Basis of admission of propensity evidence - Scope of s 31A of Evidence Act - Whether a miscarriage of justice - Application of proviso

Criminal Appeals Act 2004 (WA), s 30

Evidence Act 1906 (WA), s 31A

BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275

Darkan v The Queen [2006] HCA 34; (2006) 80 ALJR 1250

Di Lena v The State of Western Australia [2006] WASCA 162

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

Mace v Murray [1955] HCA 2; (1955) 92 CLR 370

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Tully v The Queen [2006] HCA 56

Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444

Wood v The State of Western Australia [2005] WASCA 179

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100

Norris v The Queen (2001) 121 A Crim R 227

R v Long [2002] SASC 426; (2002) 137 A Crim R 263

Thompson v The Queen [1968] HCA 21; (1968) 117 CLR 313

2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

3 McLURE JA: This is an appeal against conviction. The appellant was charged on an indictment with three counts, being:

1. possession of a prohibited drug (2.4 kilograms of MDMA) at Myaree with intent to sell or supply (count 2);

2. possession of a prohibited drug (880.57 grams of methylamphetamine) at 8 Blaven Way, Ardross with intent to sell or supply (count 3);

3. possession of a prohibited drug (5.063 kilograms of methylamphetamine) at 2/58 McDonald Street, Como with intent to sell or supply (count 4).

4 The appellant was charged with two alleged co-offenders, Rachel Parr and Soakai Palelei. Parr was charged with supplying a prohibited drug (the 2.4 kilograms of MDMA the subject of count 2) to another (count 1). Palelei was jointly charged with the appellant on count 2. All pleaded not guilty. The appellant was convicted on counts 2 and 3 and acquitted on count 4. Parr was convicted on count 1 and Palelei was acquitted on count 2.

5 The State case at trial was as follows. The appellant, Palelei and Paul Sinagra-Brisca were in the business of dealing in prohibited drugs during February 2003 to March 2003. The State relied on 62 intercepted telephone calls between Sinagra-Brisca and others, including the appellant, Palelei and Parr, which took place in that period. Sinagra-Brisca was the principal in the drug dealing business. The appellant was subordinate to him and participated in the enterprise as a "gopher", doing what he was told to do by Sinagra-Brisca, when he was told to do it and was paid by Sinagra-Brisca to do it.

6 Palelei actively sought out and identified possible sources for the acquisition and sale of prohibited drugs for the drug dealing business. He did this in close consultation with Sinagra-Brisca. The drug dealing enterprise utilised two safe houses for storing the prohibited drugs. The safe houses were located at 8 Blaven Way, Ardross ("the Ardross premises") and 2/58 McDonald Street, Como ("the Como premises").

7 Sinagra-Brisca directed the appellant to attend both houses on occasions for the purpose of preparing and obtaining prohibited drugs for sale during the relevant period. The appellant was seen to attend both safe houses on 27 February 2003 after being directed by Sinagra-Brisca to attend at those properties to prepare and obtain prohibited drugs. The appellant was also seen to attend the Ardross premises on 5 March 2003.

8 On or about 7 March 2003 Parr brokered a transaction with Sinagra-Brisca for the supply of a large quantity of MDMA tablets. Sinagra-Brisca arranged for the appellant to courier the drugs as directed by Sinagra-Brisca. The drug transaction took place at the Ocean Clipper Inn in Rockingham on 8 March 2003. The appellant, the driver and sole occupant of his car, was followed by police from the Ocean Clipper Inn to Myaree, where he was intercepted by police. A search of the appellant's car revealed that 2.4 kilograms of MDMA was located in the front passenger foot well of the vehicle.

9 Sinagra-Brisca and Palelei followed the appellant in Sinagra-Brisca's car. Sinagra-Brisca was driving, and Palelei was in the front passenger seat. They were also followed by police from the Ocean Clipper Inn to Myaree, where they too were intercepted by police. No drugs were found on their person or in their vehicle.

10 On 8 March 2003 police searched both safe houses and located 880.5 grams of methylamphetamine and 13.8 grams of MDMA at the Ardross premises and 5,063 grams of methylamphetamine at the Como premises.

11 On 8 March 2003, a DNA profile consistent with the appellant's DNA profile was located on two items at the Ardross premises being on the fingers of latex gloves located in a rubbish bin in the dining room and on a container that held 17 clip seal bags of methylamphetamine located in the fridge.

12 Of the 62 intercepted telephone calls, around 14 involved calls between Sinagra-Brisca and the appellant. It was clearly open to the jury to conclude that the recorded telephone calls disclosed that the appellant, at the direction of Sinagra-Brisca, did various jobs or acts pertaining to accessing, obtaining, preparing and supplying or distributing prohibited drugs that were not the subject of any charge on the indictment.

13 Prior to the commencement of trial, the appellant objected to the admission of evidence of the 62 telephone calls. Wisbey DCJ concluded they were admissible. He provided written reasons which identify the submissions for the appellant and the State and his conclusions as follows:

"In respect to the intercepted telephone conversations it is argued on behalf of the [appellant] that:

'The prosecution can't adduce evidence tending to show that the accused has been guilty of criminal acts other than those for which he is charged if the evidence shows only that he had a propensity to commit crime of a particular kind or that he was the sort of person likely to have committed the crime charged.'

'If the evidence is relevant in some way it is admissible, even though it reveals that the accused was disposed or likely to commit the sort of crime with which he is charged'.

Those propositions certainly reflect the law prior to the promulgation of the Criminal Law Amendment (Sexual Assault And Other Matters) Act 2004 which (inter alia) amended the Evidence Act by the introduction of s 31A addressing propensity and relationship evidence. It provides in terms that propensity evidence as therein defined is admissible in proceedings for an offence if the Court considers that the evidence would either by itself or having regard to other evidence adduced or to be adduced have significant probative value, and that the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

The State says that the telephone calls may be used by the jury to negate any suggestion of innocent association between the accused persons and Sinagra-Brisca; that it is necessary to have regard to the totality of the calls to understand and properly interpret particular conversations; and that the calls assist in identifying the roles played by each accused and in understanding and attributing purpose to the activities of the accused persons.

I am satisfied that the intercepted telephone calls have the relevance claimed by the State and are necessary to facilitate a proper understanding of the proposed evidence. They have significant probative value. Any prejudice is capable of being cured by direction. In all the circumstances it is my ruling that they are admissible."

14 Wisbey DCJ noted that any prejudice to the appellant was capable of being cured by direction. The appellant contended that the evidence of the 62 telephone calls was admitted solely to establish the relationship between each of the accused and Sinagra-Brisca, to explain the respective roles of Sinagra-Brisca and each of the accused within that relationship as part of the context and setting in which the offences charged were alleged to have occurred and to rebut any suggestion of innocent association between the accused and Sinagra-Brisca. It was also contended the trial Judge was under a duty to direct the jury that, if the jury understood and accepted that the telephone calls disclosed evidence of uncharged criminal acts by the appellant:

(a) the commission of the offences charged could be proved only by the evidence relating to them, and not by the evidence relating to the uncharged acts disclosed; and

(b) the jury must not reason that, because the appellant had engaged in other acts of drug dealing as disclosed in those telephone calls, he was the kind of person who was likely to have done so on the occasions charged.

15 The trial Judge failed to give any direction as to the way in which the jury could not use the evidence of uncharged acts. The appellant relies on this failure as giving rise to a miscarriage of justice. The State conceded that the trial Judge erred in failing to give such a direction and that the proviso did not apply. That is, the State conceded the appeal. Prior to the hearing of the appeal, counsel for the parties were informed that the Court needed to be persuaded of the correctness of the State concession.

16 The appellant contended at the hearing of the appeal that the State's concession as to the existence of a miscarriage of justice and the inapplicability of the proviso bound this Court. His alternative submission was that the concession was a matter to which this Court must give great weight. Senior counsel for the appellant was unable to provide authority in support of either submission.

17 This Court's jurisdiction and power in relation to criminal appeals is derived from the Criminal Appeals Act 2004 (WA). Section 30 of the Criminal Appeals Act deals with an appeal against conviction. It materially provides:

"(1) This section applies in the case of an appeal against a conviction by an offender.

(2) Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.

(3) The Court of Appeal must allow the appeal if in its opinion -

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice.

(4) Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred."

18 Subsection 3 of s 30 exhaustively states the grounds on which an appeal must be allowed, all of which depend upon the Court of Appeal itself forming an opinion that (a), (b) or (c) is established. The Criminal Appeals Act does not expressly or impliedly provide that this Court is bound by a State concession. There is no merit in the appellant's primary submission to that effect. See also Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 at 380.

19 However, having regard to the functions and duties of the State's representative, being the State Director of Public Prosecutions, a concession which reflects his opinion on the relevant questions for determination in an appeal by this Court will be given due weight. In the overwhelming majority of appeals, this Court and its predecessor has reached the same opinion as the State Director. But where this Court reaches a different opinion, it must prevail.

20 The central issue in the appeal is the relevance of the appellant's conduct prior to 7 March 2003 in accessing, obtaining, preparing and supplying or distributing prohibited drugs as part of and at the direction of Sinagra-Brisca's drug dealing business. It requires consideration of the principles relating to propensity evidence.

21 The prosecution may not adduce evidence of the character or of the misconduct of the accused on other occasions if that evidence shows that the accused had a propensity to commit crime, or crime of a particular nature, or was the sort of person likely to have committed the crime charged, unless the evidence is sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause ("the exclusionary rule"): J D Heydon, Cross on Evidence, 7th Australian ed at [21010].

22 Propensity evidence is evidence which may cause a jury to infer that a person who has been responsible for or involved in criminal or discreditable acts is likely by reason of that fact, to have committed the offence charged. This is referred to as "propensity reasoning". However, evidence of misconduct (whether by reason of prior criminal conduct or otherwise) may be relevant for reasons unconnected with an accused's propensity or disposition. For example, the discreditable conduct may be relevant as part of the background, as part of the res gestae, to show the relationship between the parties or to rebut evidence of good character adduced by an accused. In such cases there is uncertainty as to whether the exclusionary rule applies: Gipp v The Queen (1998) 194 CLR 106 at [11] - [13] per Gaudron J, [140] per Kirby J and [181] - [182] per Callinan J; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 at [129] per McHugh J; Tully v The Queen [2006] HCA 56 at [136] - [147] per Callinan J (Heydon and Crennan JJ agreeing). However, where evidence is admissible for one purpose but is inadmissible for another, the trial Judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible if that use of the evidence would be adverse to the accused: BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275 at 305. Where evidence is relevant and admissible for reasons unconnected with, but which incidentally discloses, the accused's propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required: KRM v The Queen (supra) at 235.

23 If the evidence does no more than reveal the criminal or discreditable propensities of the accused or show that he or she is the sort of person who is likely to have committed the crime charged (referred to as "mere propensity"), the evidence is inadmissible. However, if evidence of propensity or disposition is sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause, the evidence is admissible. Further, propensity evidence may have different degrees of probative strength and so be admissible or inadmissible according to the other evidence in the case and issues which it raises. That is, admissibility may depend on the "work" the propensity evidence is tendered to do, whether it be to prove the commission of a crime or the identity of the person who committed a proven crime or to prove a mental element of a proven act, such as intention or knowledge. This is reflected in two categories identified by Gaudron J in BRS v The Queen (supra) at 298 - 299. She said:

"In some circumstances, evidence that an accused has committed other offences on other occasions is admissible because it is of particular probative force or has particular cogency. Its probative force or cogency lies in the fact that it discloses some feature which raises, as a matter of common sense and experience, the objective improbability of its bearing an explanation consistent with the accused's innocence of the offence charged ...

Evidence of criminal or reprehensible conduct on other occasions is admissible because, when considered in conjunction with other evidence in the case, it supports an inference of guilt, in the sense that that is the only reasonable inference available. Ordinarily, that inference is based on a more immediate inference, namely, that it is objectively improbable 'that a person other than the accused committed the act in question, that the ... act was unintended, or ... occurred innocently or fortuitously' ... " (footnotes omitted)

24 Under Australian law propensity evidence is admissible solely to demonstrate a relevant propensity or disposition in appropriate circumstances: Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 481, 484 - 485; Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 598 - 601, Cross on Evidence at [21030] - [21075]; see also L H Hoffman, Similar Facts after Boardman (1975) 91 LQR 193 at 197 - 204. The High Court has rejected the proposition that evidence of propensity or disposition is irrelevant and inadmissible unless it is otherwise relevant. The difference between admissible and inadmissible propensity evidence is the degree, not kind, of relevance: Pfennig (supra) at 481; Harriman (supra) at 598 per Dawson J. The probative force of admissible propensity evidence, assessed by reference to objective probabilities, derives, directly or indirectly, from propensity reasoning.

25 The common law test of admissibility of evidence tendered to prove propensity or disposition is that it ought not to be admitted if there is a rational view of the evidence which, when considered with other relevant evidence, is inconsistent with the guilt of the accused: Pfennig (supra) at 482 - 483; Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292. The common law test has been replaced in this jurisdiction by the statutory test in s 31A of the Evidence Act 1906 (WA). Section 31A materially provides:

(a) similar fact evidence or other evidence of the conduct of the accused person; or

(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

...

(2) Propensity evidence ... is admissible in proceedings for an offence if the court considers -

(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion."

26 This Court has considered s 31A in Wood v The State of Western Australia [2005] WASCA 179, Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 at [102] - [130] and most recently in Di Lena v The State of Western Australia [2006] WASCA 162 at [44] - [73]. It has held that s 31A abrogated the common law test that propensity evidence is inadmissible if there is a rational view of it that is inconsistent with the guilt of the accused. Propensity evidence is admissible in this State if it satisfies the requirements of s 31A(2) of the Evidence Act.

27 When propensity evidence as such is admissible because it is sufficiently highly probative of a fact in issue, a propensity warning is not required. As stated by McHugh J in KRM v The Queen (supra) at 235:

"If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning. ... And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment."

28 If the evidence of the appellant's uncharged acts was admitted and relied on at trial as propensity evidence, a propensity warning was not required.

29 The trial was conducted on the basis that in order to prove possession, the State had to prove beyond reasonable doubt that the appellant had (1) physical custody or control of the prohibited drugs and (2) knowledge that what was in his custody or control was prohibited drugs. Intent to sell or supply was not in issue on any count at trial.

30 The only live issue on count 2 was whether the appellant had knowledge that what was conceded as being in his control in the foot well of his car when stopped by police on 8 March 2003 was in fact prohibited drugs.

31 The State relied on the content of the telephone calls and surveillance evidence of the relevant persons on 27 February 2003 and 5 March 2003 to prove that:

(1) in the relevant period Sinagra-Brisca, Palelei and the appellant were involved in a drug dealing business;

(2) Sinagra-Brisca was the principal, Palelei identified possible sources for the acquisition and sale of prohibited drugs and the appellant, at the direction of Sinagra-Brisca, performed various tasks relating to accessing, obtaining, preparing and supplying or distributing prohibited drugs; and

(3) on instructions from Sinagra-Brisca, the appellant visited the Ardross premises on 27 February 2003 and 5 March 2003 and the Como premises on 27 February 2003.

32 Although parts of the conversations were in a form of code, the intercept and surveillance evidence in support of these propositions is compelling. This evidence was relied on by the State, in conjunction with other evidence, to prove that the appellant knew he had prohibited drugs in his car on 8 March 2003 and was on the same date in possession of the drugs in the safe houses (the subject of counts 3 and 4).

33 The other evidence against the appellant in relation to the offence the subject of count 2 is also compelling. Between 11.06 am and 3.21 pm on 7 March 2003 there were six telephone calls between Sinagra-Brisca and Parr. At one stage price was discussed and a meeting was organised for 5 pm that day at Sinagra-Brisca's house in Mt Pleasant. At 5.44 pm on 7 March 2003 Sinagra-Brisca telephoned the appellant and said words to the effect:

Tomorrow morning you have to come past my place. You have to go for a drive with someone, have to follow someone, you know I can't really say.

You know Rachel, the one I was telling you about before. Right, and then rock down South and you've got to pick up your little mates, and then you've got to come back here and that's it.

34 The appellant agreed and asked Sinagra-Brisca what time. Sinagra-Brisca said he would let him know that night and told the appellant he had to be there. At 5.46 pm Sinagra-Brisca telephoned the appellant again and told him he had to come in the morning and that he could not go on any big bender that night, saying words to the effect:

Tomorrow is a big job, so make sure you got your head screwed on, and you have to go there and pick something up and that's it. Then you come back here, not to my place, but I'll meet you at the other place and we've got to count it.

35 The appellant agreed. Subsequently there were two further telephone calls between Sinagra-Brisca and Parr. At 6.29 pm on 7 March 2003, Sinagra-Brisca telephoned the appellant again. In the course of the conversation Sinagra-Brisca referred to "little ones" and at the end told the appellant, referring to the little ones, that they had the "At" symbol (@) on them and on the internet "they rate it nine out of ten". The 10,000 MDMA tablets seized the next day had the "At" symbol on them and there was an internet site that rated the tablets out of 10.

36 At 11.56 am on 8 March 2003 the appellant arrived at Mr Sinagra-Brisca's house in Mt Pleasant. Palelei arrived at 12.27 pm. In accordance with arrangements made with Sinagra-Brisca the previous day, Parr arrived at his house at 12.41 pm. Around 30 minutes later they all left Sinagra-Brisca's house in convoy. The appellant and Palelei were in the appellant's car, Sinagra-Brisca drove his car and Parr drove her vehicle. They drove first to a McDonalds Restaurant. Parr was the only person to go into the restaurant. They all left McDonalds together and drove in convoy to the Ocean Clipper Inn in Rockingham. They arrived at 1.57 pm. They were at the Ocean Clipper Inn for around six minutes. The appellant left in his car followed by Sinagra-Brisca and Palelei in Sinagra-Brisca's car. Both cars were stopped by police in Myaree. 2.4 kilograms of MDMA was located in the appellant's car. A key to a room in the Ocean Clipper Inn was located in the front passenger side of Sinagra-Brisca's vehicle where Palelei was sitting.

37 The appellant did not give evidence at trial but participated in a video record of interview with police. In the course of that interview the appellant lied about where he had come from at the time he was stopped by police and the last time he had seen Palelei and Sinagra-Brisca. They were relied on by the State as credibility lies.

38 The evidence against the appellant on count 2 is overwhelming. I have reached that conclusion mindful of the fact that Palelei was acquitted on that count. The evidence against him was materially different. He was not in physical possession of the drugs so control was in issue; the work relationship between the appellant and Palelei was unclear; and there was no telephone intercept material in which Sinagra-Brisca (or the appellant) discuss the proposed transaction on 8 March with Palelei.

39 Turning now to the evidence in relation to counts 3 and 4. The physical surveillance evidence was limited to 27 February and 5 and 8 March 2003. On instructions from Sinagra-Brisca the appellant went to the Como premises on 27 February 2003. He was there for one minute without being seen to enter the house before returning to his car and driving to the Ardross premises where he stayed for over 20 minutes. From there he went to Sinagra-Brisca's house. The appellant also went to the Ardross premises for two minutes on 5 March 2003. In addition to the prohibited drugs located at the Ardross premises on 8 March 2003 there was also drug dealing paraphernalia including drug dilutents (glucodin powder and MSM) and clip seal bags. On 8 March 2003 a DNA profile consistent with the appellant's was located on two items in the Ardross premises. The evidence against the appellant on count 3 is very strong. The only specific evidence linking the appellant to the Como premises was the visit on 27 February 2003.

40 The State conducted the appellant's trial on the basis that the evidence of the intercepted telephone calls and the surveillance evidence prior to 7 March 2003 was circumstantial evidence that was directly relevant to proof of the appellant's knowledge of the drugs in relation to count 2 and knowledge and control of the drugs in relation to counts 3 and 4. This is borne out by the State's closing submissions. After repeated references to the evidence establishing a drug dealing business in which the appellant was employed as the "runner, the leg man, the gopher, the courier" the prosecutor stated (T23):

"In terms of possession, [the appellant], the state says, is in actual possession of the drugs. It's in his car and he knows about it because of the preceding telephone calls between him and Sinagra-Brisca, and because of his role in the drug dealing business he is, after all, the gopher and unfortunately with gophers they're usually the ones that are caught with the drug and he, unlucky for him, was caught with the drugs on 8 March 2003."

41 The prosecutor then referred to counts 3 and 4 in the indictment. She said:

"[C]ount 3 is in relation to [the appellant]. He's charged with possessing the drugs at - sorry, [the appellant] at count 3 is charged with possession with intent to sell or supply of the methylamphetamine at the Ardross Street premises, and in my summation of the facts [the appellant] was certainly there at ... Ardross, on the 27th. We have surveillance, we have the phone calls, and he was there on 5 March.

We say that he went there to get the drugs. If that is right, if you accept that to be true, and he had access to that premises, whether it's at the direction of Sinagra-Brisca or not, if he has access, if he has the ability to go in there, then the state says to you that he had possession, he had control, he had knowledge of those drugs. Now, does he have to know exactly the quantity of drugs there - no. But as he had the ability to go in and access those drugs as and when directed or as and when he had to.

In respect of the Como Street residence, he is seen there, members of the jury, on one occasion, that's 27 February 2003, and he's seen going to that premises for one minute. Probably not a whole lot you can do for one minute, but if you look in the context of this business, why else would he go there other than to access drugs. It might have been unsuccessful access to drugs on that occasion, but it is no coincidence that of the two drug houses, he went to both of them on 27 February 2003.

There's also that phone message from Sinagra-Brisca on the afternoon of 27 February 2003 where he says to [the appellant], 'You've got to go to that house. Not the house you went to last night but the other house,' so that either way, on all of that evidence, the state would suggest you can be satisfied that he has had access and did have access to both premises, both drug houses, for the purpose of being the gopher with this drug dealing business."

42 The appellant's uncharged acts together with the other telephone intercept and surveillance evidence was relied on by the State to prove, and was highly probative of, the appellant's participation in a drug dealing business that continued to and included the conduct on 8 March 2003. That evidence is very strongly probative and materially affects the objective probabilities on the issue of possession and thus guilt. But its relevance and probative value in relation to the offences the subject of the charges is directly connected with the appellant's propensity or disposition and falls within the exclusionary rule as modified by s 31A of the Evidence Act. The evidence satisfies both the common law and statutory tests of admissibility of propensity evidence. The case is factually similar to that considered by the High Court in Harriman v The Queen (supra). In that case the offender was charged with being knowingly concerned in the importation of heroin in April 1987. Propensity evidence was admitted of his joint involvement, together with a co-offender who gave evidence for the prosecution, in the sale of heroin in late 1986. Brennan J noted (at 596) that evidence of substantial involvement in the heroin trade could support an inference of continued participation.

43 Senior counsel for the appellant submitted that the State's reliance on the evidence at trial as propensity evidence to prove the offences was outside the scope of the ruling on admissibility made by Wisbey DCJ. I do not accept that. It is consistent with the oral submissions made by counsel for the State and his Honour's reference to the roles and purposes of the participants in the enterprise is sufficiently wide to include that use. In any event, the appellant was represented at trial by experienced counsel, as were the co-accused. There was no objection on behalf of the appellant or any other accused as to the way the State ran its case or its reliance on previous misconduct as part of a business as directly relevant to, and highly probative of, the elements of the offences charged. After the completion of the summing up by the trial Judge, no counsel sought a redirection to include a propensity warning.

44 For the reasons given by McHugh J in KRM, it would have been an error to give a propensity warning in this case because the evidence was admitted on all counts as propensity evidence as well as for non-propensity purposes. Accordingly, there was no miscarriage of justice and the appeal must be dismissed. In these circumstances the question of the proviso in s 30(4) of the Criminal Appeals Act does not arise. If it did, and applying the principles in Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444, I would have concluded on the basis of the uncontradicted evidence to which I have already referred that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offences on which the jury returned its verdicts of guilty. Further, there was no denial of procedural fairness of any nature (significant or otherwise) or a serious breach of the presuppositions of the trial (see Darkan v The Queen [2006] HCA 34; (2006) 80 ALJR 1250 at [94] per Gleeson CJ, Gummow, Heydon and Crennan JJ, at [140] per Kirby J). As to the latter, the trial Judge gave the usual warning as to the need to separately consider the evidence relevant to each count against each accused. It is clear from the acquittal of Palelei and the acquittal of the appellant on count 4 that the jury faithfully followed this direction and did not rely on mere propensity in their deliberations.

• Admissibility ruling and appeal ground
• The consequence of a State concession
• Propensity evidence
• Case at trial