Criminal law - Appeal against conviction - Possession of methylamphetamine with intent to sell or supply - Whether trial miscarried due to introduction of impermissible hearsay evidence - Failure of trial Judge to direct jury on hearsay evidence - Appeal conceded by the Crown - Turns on own facts

1 JUDGMENT OF THE COURT: The applicant was convicted, after a trial by jury, on two counts of having had in his possession methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981. He sought leave to appeal against his convictions. After the hearing of the application for leave to appeal the Court unanimously acceded to it, allowed the appeal, quashed the convictions and ordered a retrial. We said that we would later give our reasons. These are those reasons.

2 The charge the subject of count 1 on the indictment arose out of the execution, on 22 February 2002, of a search warrant by Western Australian police officers at premises known as Unit 18, 24 Wood Street, Inglewood ("Unit 18"). The police there located a large quantity of methylamphetamine, amounting to 3.8 kilograms in all.

3 Police had earlier that day searched the home of one Vishal Maharaj in Ballajura and there located a receipt, in the name of Mr Maharaj, for rental paid for Unit 18. Mr Maharaj was placed under arrest and later taken to Unit 18, where he remained outside while the unit was searched. No-one else was present at the unit. Subsequent inquiries revealed that Unit 18 had been leased for a period of three months from 30 January 2002 in the name of Mr Maharaj.

4 In the early hours of 23 February 2002, a second search warrant was executed at the applicant's home at 10 Elstead Way, Morley, presumably as a result of information supplied by Mr Maharaj. The applicant was then present, with his de facto wife and three children. The police there located, in a garden bed, a snap-lock bag containing 218 grams of methylamphetamine, being the drugs the subject of count 2 on the indictment.

5 The appellant was later charged with the two offences.

6 Prior to the ensuing trial, Mr Maharaj made two statements to the police. In the first statement, dated 1 March 2002, he said, inter alia, that during January 2002 he had sold amphetamines on behalf of the applicant and that, on 30 January 2002, he had been asked by the applicant to rent Unit 18 on the applicant's behalf in return for a payment of $10,000. He said that he provided the applicant with a key to the unit and that, while he had his suspicions, he did not know the applicant's purpose in renting Unit 18. In his second statement, dated 12 June 2002, Mr Maharaj retracted the allegations which he had made against the applicant in his first statement and said that, although he had rented Unit 18 on behalf of the applicant, he had not done so in return for money. He also said that the applicant had never asked him to deal in drugs.

7 At the trial, evidence was led from Mr Maharaj to the effect that, on 30 January 2002, the applicant had procured Mr Maharaj to lease Unit 18 on his behalf, but in Mr Maharaj's name. Other, circumstantial, evidence revealed a connection between the applicant and Unit 18. Keys for the unit were found at the applicant's Morley home. Eating bowls and spoons bearing the same pattern as a bowl and spoon found in Unit 18 were also found at the applicant's Morley home. A suitcase with a luggage tag in the name of the applicant's de facto wife and bearing her home address was found at the unit. There were similarities between the packaging of the drugs found at the applicant's home in Morley and that of some of the drugs found in Unit 18.

8 While, as I have said, Mr Maharaj testified, at the trial, that he had rented Unit 18 on behalf of the applicant at the applicant's request, no evidence was led from him concerning the contents of his first statement. However, the prosecution thereafter led evidence from Detective Sergeant Lloyd Van Der Schoor, one of the police officers who had participated in the search of Unit 18, and, in the course of cross-examination, he was asked:

"Did you say, as far as you know anyway, no tip-off was received from Maharaj where drugs might be found?"

9 He answered (in a way which was not responsive to the question asked of him):

"He'd indicated that - I'm not sure - well, simply he said that Mr Pham had sold him drugs."

10 Detective Sergeant Van Der Schoor then commented, somewhat belatedly, that he was not sure whether the questions that he was being asked would incriminate or prejudice the applicant. The following exchange then took place between counsel for the applicant and the detective:

"Not really. You can see what I'm getting at. If a person wants to take the blame off himself he can often tell you where drugs are, whether they're his drugs or somebody else's?---Well, he - my understanding is Mr ... [Maharaj] provided a statement to police that he had purchased drugs from ... [the applicant]."

11 The applicant thereafter gave evidence denying any knowledge of the drugs found at Unit 18 or at his home in Morley. He testified that there had been workmen at his home and that he and his family had been absent during the days prior to 23 February 2002. His wife testified that, on the evening of 23 February 2002, she had been disturbed by the presence of an intruder and that she had reported this to police.

12 When the trial Judge came to direct the jury, she gave no directions concerning the hearsay evidence which had been given by Detective Sergeant Van Der Schoor. Nor were any such directions given at any other time.

13 At the hearing of the application for leave to appeal only two grounds of appeal (both of which were introduced by amendment) were pursued. The first (ground 4) was to the effect that the trial miscarried as a result of the introduction of impermissible hearsay evidence that unfairly prejudiced the applicant's trial and the second (ground 5) was to the effect that the trial miscarried as a result of the failure of the trial Judge to direct the jury in respect of this impermissible hearsay evidence.

14 It seemed to us (and counsel for the respondent very properly conceded) that Detective Sergeant Van Der Schoor quite plainly gave inadmissible hearsay evidence in the respect to which we have referred which was highly prejudicial to the applicant, given that the central issue on both counts on the indictment was that of whether or not he knew of the presence of the drugs found at Unit 18 and at his home. That being so, and there having been no direction to the jury that they could not use the hearsay evidence as truth of the assertions therein (as to which cf R v Glasby [2000] NSWCCA 83; (2000) 115 A Crim R 465 at 479), the trial quite plainly miscarried and, as the respondent also conceded, the applicant lost the chance of an acquittal that was fairly open to him: Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514.

15 That circumstance was not altered, in our opinion, by the regrettable fact that no request was made by either counsel at the trial (they were not the same counsel as appeared on the appeal) for a warning to be given by the trial Judge to the jury to disregard the inadmissible hearsay evidence. While it has been said that, speaking generally, an applicant for leave to appeal against conviction will not be allowed to rely upon a criticism of the Judge's charge which was not taken by way of exception at the trial (see R v Smart [1983] VicRp 22; [1983] 1 VR 265 at 297, per Young CJ and McInerney and Gobbo JJ; General Motors - Holdens Pty Ltd v Moularas [1964] HCA 39; (1964) 111 CLR 234 at 242, per Barwick CJ; R v Gaffney [1968] VicRp 54; [1968] VR 417 at 423; and R v Clarke & Johnstone [1986] VicRp 64; [1986] VR 643 at 662), that rule "retains some flexibility where the interests of justice demand that a new trial be had" (R v Clarke & Johnstone, above, at 662, per Crockett, McGarvie and Southwell JJ). As was also properly conceded by the respondent, this is a case in which the interests of justice plainly demand that a new trial be had.