R v Anna Zhang

She said that she had agreed to that suggestion and that approximately half an hour after she got home he had arrived at her flat with a paper bag in which was a black plastic bag. She had taken it from him and placed it in the wardrobe of her bedroom. He did not tell her what was inside, nor did she inquire. According to Ms Zhang, Mr Tu had told her he stayed at the Star City Hotel; she denied knowledge that he had a flat in Jones Street, Ultimo or Pyrmont. She said that it would have been contrary to Chinese culture for a woman to inquire as to what might have been in the man's bag. 20 Later in her evidence-in-chief, Ms Zhang was shown some photographs of the bag in the wardrobe, taken by the police, on 14 May. Her evidence continued (transcript, p 211): "Q. From what you've told the jury earlier apart from putting it in the wardrobe, did you have anything more to do with that bag and its contents? A. No. Q. Did it remain in that wardrobe after it was placed there by you? A. Yes. Q. Did you know what was inside it? A. I always respect people's privacy, I will never do, to check any personal thing. Q. Did you have any idea that there were drugs inside? A. I've never thought of what was in the bag before but when I only some sort of suspicion but when I was - when police came to me and straightaway I have thought about what the bag could be and then I told the police straightaway there is - ." 21 The Crown case was that Ms Zhang and Mr Tu had been jointly involved in importing drugs in the third shipment of food stuffs which arrived in March 2003, albeit the Appellant was not charged with that importation. The third consignment had involved some 500 cartons of rock sugar, of which Mr Yee had taken 474. It was put to Ms Zhang in cross-examination that 26 cartons had been taken out of the shipment before they went to Yee and that, of those, 13 were the cartons found in Mr Tu's apartment. There was a similarity between the cartons found in Mr Tu's apartment and the boxes at the bottom of the plastic bag in the Appellant's wardrobe. That was not in itself surprising, as Mr Tu was, according to Ms Zhang, the source of the bag found in her wardrobe. Nevertheless, the Crown suggested there were three aspects of the case which were inconsistent with her evidence. 22 First, the third shipment had been arranged, with the assistance of Mr Yee, leaving China on 3 March 2003, which was before she had met Mr Tu, at the end of March. Secondly, the boxes in the bag which she had been given by Mr Tu had the name of her company, Eastern Trade and Import, on the label. Thirdly, given the fact that Mr Tu had 107 kilograms of the narcotic on his premises, it was implausible that he would have troubled to leave 6 kilograms with the Appellant. 23 In cross-examination, the following exchange took place (transcript, p 223): "Q. So if Mr Tu was to somehow get the special sugar into your shipment of sugar pieces he had to do that before 3 March when they were put on the ship, do you follow that? … A. Yes. Q. According to you, you didn't even meet Tony Tu until the last week in March. You said that yesterday didn't you? A. Yes. … Q. If that was correct, how could Mr Tu possibly get into your shipment of rock sugar the special sugar that was located in his apartment? A. I have no idea." 24 If this had been the sole evidence relating to the second count on the indictment, it would have undoubtedly been open to the jury to convict the Appellant. On the other hand, there were links in the Crown case which were missing. Although the preferred explanation of the Crown appears to have been that the drugs in the wardrobe were imported by Ms Zhang and Mr Tu on an earlier occasion, there was no direct evidence to establish an earlier importation and Ms Zhang was not charged with any earlier importation.

The attempted importation 25 The evidence implicating Mr Tu in the May importation was significant. Further, Ms Zhang's denial of knowledge of the inclusion of boxes containing narcotics, viewed alone, was at least plausible. She said that Mr Tu had told her, prior to the arrival of the ship, that he had had some "samples" placed in her container. There was no express evidence as to what happened inside the warehouse in Ultimo when Ms Zhang and Mr Tu were there on 14 May. Her evidence was that Mr Tu had found the boxes with the relevant numbers and had used the set of scales which were later found by the police in the green bag, to weigh the "special sugar" which he had located. It was at that stage that her suspicions were aroused that he had been using her business to import drugs, although she denied that, even then, she was sure that illegal drugs were involved.

Relevance of evidence of attempted importation in relation to possession 26 The Crown case relied on putting before the jury evidence on each count as relevant to the other. However, to assess the justification for that approach, it is necessary to consider separately the evidence specific to each count. In relation to the attempted importation, the question for the jury was whether Ms Zhang should be believed in her denial that she knew there were narcotics included in the assignment which arrived at her warehouse facility in Ultimo on 13 May 2003. Her denial would have been far less credible than otherwise, if it could be shown that she had been knowingly involved in an earlier importation of drugs with Mr Tu. 27 The reverse reasoning is not so readily apparent. Thus, if, independently of the possession count, the jury were satisfied that Ms Zhang was knowingly involved in the attempted importation in May, such a conclusion would be of limited assistance in determining whether she knew of the content of the bag given to her by Mr Tu and placed in her wardrobe on 9 or 10 May 2003. More importantly, until the jury was satisfied that Ms Zhang was knowingly involved in the attempted importation, it is difficult to see how the mere fact that Mr Tu had sought to import drugs in May, could provide significant assistance to the jury in determining her state of knowledge with respect to the contents of the plastic bag in her wardrobe, which emanated from the earlier importation. 28 By parity of reasoning, until the jury had formed the view that Ms Zhang was aware of the contents of the bag in her wardrobe, it is again difficult to see to that the mere fact that Mr Tu had given her bag a few days earlier, could assist the jury in determining whether she was knowingly involved in the attempted importation of narcotics on 14 May. 29 On the other hand, the matter was left to the jury on the basis that her apparent role in the attempted importation and her separate possession of a bag containing drugs in her apartment constituted an improbable coincidence, suggestive of guilt on both counts. This approach requires attention to the admissibility of the evidence on one count in relation to the other count and the manner in which the judge directed the jury as to how they might use such evidence.

Admissibility 30 The evidence with respect to each count was permitted to be used in relation to the other count pursuant to s 98 of the Evidence Act 1995 (NSW). Because the District Court was dealing with an offence against Commonwealth law, it was exercising federal jurisdiction invested in it by s 68(2) of the Judiciary Act 1903 (Cth): Solomons v District Court (NSW) (2002) 211 CLR 119 at [3]. The State laws with respect to evidence are applied in the exercise of federal jurisdiction by State courts, if not as part of "the procedure for … trial and conviction on indictment", pursuant to s 68(1) of the Judiciary Act, pursuant to s 79 which expressly provides that State laws relating to evidence shall be applied, unless a law of the Commonwealth provides otherwise. There was no suggestion in the present case that any Commonwealth law had such effect. 31 Section 98 of the Evidence Act provides as follows: 98(1) Evidence that two or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), two or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar. 32 In this context, it is necessary to note the terms of s 101 of the Evidence Act. 101(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

The reference to "tendency evidence" may be ignored for present purposes, the term "coincidence evidence" is defined to mean "evidence of a kind referred to in section 98(1) that a person seeks to have adduced for the purpose referred to in that subsection": see Dictionary to Evidence Act . 33 The scheme of the Evidence Act is that, unless expressly excluded, "evidence that is relevant in a proceeding is admissible in the proceeding": s 56(1). Evidence that is not relevant is not admissible: s 56(2). Evidence is relevant if it could "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding": s 55(1). Read in this statutory context, s 98 must be understood as a limitation on the principle of admissibility of relevant evidence. However, s 98 does not, simply by reference to its language, indicate why it imposes a limitation. The condition of its application is that two or more related events have occurred, which are sought to be proved by evidence. Such evidence may be admitted only if reasonable notice has been given of an intention to adduce the evidence and the court is satisfied that the evidence has significant probative value. (For present purposes this paraphrase is sufficient: it is inaccurate to the extent that it seeks to avoid double negatives.) The term "probative value" is defined to mean "the extent to which" the evidence is relevant evidence for the purposes of s 55(1). The term "significant" suggests that the evidence must do more than fulfil the basic requirement of s 55(1): see R v Lockyer (1996) 89 A Crim R 457 and R v Lock (1997) 91 A Crim R 356, 316 (albeit both discuss s 97). 34 Taken in the abstract, the term "related events" could describe events which are of the same character, or are related, but of a different character. Thus the commission of a crime and a confessional statement in relation to the crime may be separate events, which are related but of a different character. They are not the subject of this subsection because they could not be described as "substantially and relevantly similar", nor to have occurred in circumstances which are "substantially similar" for the purposes of s 98(2). On the other hand, two armed robberies or sexual assaults may satisfy that description. It may be that two such crimes are less likely to be relevant, the one to the other, unless they are of a similar kind: the greater the similarity, the greater the potential relevance. On the other hand, unless they fall within the criteria of substantial similarity set out in s 98(2), they will not fall within the conditional exclusion contained in s 98(1). 35 The reason for the form of this provision must be found in the common law principle that resists a general process of reasoning from the occurrence of other crimes or disreputable activities to guilt of the particular crime with which the person is charged. 36 That this is the rationale for the restraint contained in s 98(1) may be discerned in part from the existence of s 101(2), which recognises the possibility that coincidence evidence can have a prejudicial effect as well as significant probative value. Were that not the case, the reason for the restriction in s 98(1) would remain obscure. Furthermore, unless so understood, it might be thought that evidence of events which were similar, but not substantially similar, and therefore not within the terms of s 98, could be admitted without reference to s 98 or s 101, if they satisfied the requirements of s 55 (subject to exclusion under ss 135 and 137). This result could not be achieved without a substantial subversion of common law principles in relation to coincidence evidence, in a manner which would render s 98 itself anomalous. The rejection of such a conclusion falls within the terms of s 9(1) of the Evidence Act, which preserves the common law in relation to evidence "except so far as this Act provides otherwise expressly or by necessary intendment". Accordingly, s 98 should be understood as providing the limits within which "coincidence evidence" can properly be admitted. 37 Before turning to the operation of s 98 in the present case, it is convenient to make some comment as to the operation of s 101, which appears to impose a constraint on the admissibility of evidence under s 98. 38 First, as noted by Simpson J in R v Nassif [2004] NSWCCA 433 at [36] and [47], s 101(2) is expressed in terms which refer to evidence that "is adduced by the prosecution", so as to impose the constraint that such evidence "cannot be used" against the defendant, unless it is of particular value. The terminology of the Evidence Act includes reference to evidence being "adduced", "admitted" and "used". Restrictions on the way in which evidence may be "used" tend to assume that it has been "admitted": see, eg, s 136. However, evidence which is "adduced" is not necessarily "admitted": see, eg, s 137. At least in this latter sense, the term "adduced" may be understood as referring to evidence which is tendered. 39 This approach does not, however, explain the restriction on use contained in s 101(2), which appears to assume that the evidence has not merely been tendered (adduced), but admitted. Accordingly, the restriction imposed by s 101(2) should be understood as an additional restriction on use, rather than inadmissibility. The reference to evidence being "about a defendant" and not being used against "the defendant" may also envisage admissibility in circumstances where there is more than one defendant. Whether s 101(2) should indeed be treated as "a rule of admissibility", as suggested in R v Ellis (2003) 58 NSWLR 700 at [54] and Nassif at [47] may properly be left for another time. The approach adopted in Ellis is supported by explanatory memoranda, set out in the judgment of the Chief Justice in Ellis at [67] and [68]. Nevertheless, it is not suggested that this question is critical to the outcome of the present case. 40 Secondly, in relation to s 101(2), the test identified is that "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant". This, it may be noted, is in deliberate contrast with the terms of s 135 which permit the court to exclude evidence "if its probative value is substantially outweighed by the danger that the evidence might … be unfairly prejudicial to a party". Whilst it is clearly the language of the section, and not the common law, which must now prevail (see Ellis at [84]), the application of this language can give rise to difficulties for the reasons noted by McHugh J in Pfennig v The Queen (1994-95) 182 CLR 461 at 528. "Nevertheless, the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term 'outweigh' suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect, to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. In no sense does the probative value of evidence disclosing propensity, when admitted, outweigh it prejudicial effect. On the contrary, in many cases the probative value either creates or reinforces the prejudicial effect of the evidence. In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs its prejudicial effect but because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced."

Applying these principles, his Honour concluded that, under the common law: "Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force 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." 41 Because the dual concepts of "probative value" and "prejudicial effect" underlie the constraints on the use of coincidence evidence contained in ss 98 and 101, it is instructive to consider his Honour's proposition that these are "incommensurables". To say that evidence has "probative value" is to ascribe to it a quality which inheres for the purposes of a legitimate evaluative exercise. That exercise will involve logically sound reasoning, but also evaluation in the light of experience. By contrast, "prejudicial effect" describes a departure from a proper and acceptable process of reasoning. The departure may arise as a matter of degree, and by way of conscious or unconscious processes. The conduct ascribed to the defendant may work by reference to unconscious prejudices or attitudes. Examples are more readily drawn from the past or from different cultures. Aversion to homosexual behaviour and stereotypic attitudes to people of a different race or gender, provide examples which may now appear obvious to many Australians. 42 However, prejudicial effect can also form part of a logical process of reasoning. An example is provided in the judgment of Mason P in R v GK (2001) 53 NSWLR 317, in relation to statistical evidence. 43 The precise manner in which particular evidence will work a prejudicial effect may be of some importance: if there is a legitimate use and an illegitimate use, the risk of an unfair trial through adoption of an illegitimate use, may be averted by an appropriate direction to the jury. However, that question only arises where s 101 is engaged: the first question is one of admissibility pursuant to s 98. 44 Returning to s 98, the language focuses upon the concept of "coincidence". Understood in its context, coincidence must refer to innocent (or non-criminal) explanation. However, the application of the principle will vary according to circumstances. In one case, the existence of the alleged events may be the issue; in another, the defendant's innocent explanation may be the issue. Thus, in Hoch v The Queen (1988) 165 CLR 292, allegations of substantially similar sexual offences, each of which was denied by the defendant, only acquired the character of improbable coincidences if the complainants were not known to each other and did not harbour a common antipathy towards the defendant, possibly unrelated to any sexual activities. In other words, the possibility of co-ordinated concoction provided an explanation for the similarities otherwise than by way of improbable coincidences, but consistently with the denials of the defendant. Similarly, where a person is employed as a courier for ostensibly innocent purposes, the fact that, unbeknownst to her, she has carried drugs across a border on several occasions, is not necessarily a "coincidence" rendering her unwitting behaviour improbable: compare R v Tamotsu (1999) 109 A Crim R 193. 45 At [139] below, Simpson J seeks to adopt an approach to the application of s 98, which her Honour set out in respect of s 97 in R v Fletcher [2005] NSWCCA 338 at [32]-[35]. Two preliminary points may be made in relation to that material. First, her Honour stated in Fletcher at [32] that a decision about the admissibility of evidence "necessarily and of itself involves the determination of a question of law". That proposition may cover several issues. For example, wrongful admission of evidence may mean that the trial proceeded on a legally erroneous basis, but the error in assessing admissibility need not be a legal error: c.f. R v Gidley [1984] 3 NSWLR 168, 169-170 (Mahoney JA). However, that issue need not be addressed for present purposes. More importantly, her Honour suggested in the same paragraph that appellate challenge to such a decision, which involves "an evaluative process", may only be made in limited circumstances which she identified at [48] in Fletcher by reference to the principles established in House v The King (1936) 55 CLR 499, at 505. House was concerned with the basis upon which an appellate court might interfere with a particular exercise of the discretionary power of a sentencing judge. However, there is a distinction in principle, even if the dividing line may be blurred in particular circumstances, between the exercise of a discretionary power and the making of a finding of fact which involves a level of "evaluation and judgment": see, in a different context, Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [10] ff (Gleeson CJ, Gaudron and Hayne JJ), [115]-[116] (Callinan J). As presently advised, I would take the view that an accused should have no less protection under s 6(1) from an erroneous ruling by a trial judge than that enjoyed by a civil litigant albeit on an appeal by way of rehearing. The correct approach to the exercise of evaluating the evidence should follow that identified in Warren v Combes (1979) 142 CLR 531. 46 A separate concern relates to the five principles identified by her Honour in undertaking the exercise required under s 98 of the Evidence Act, at [139] below. The first two principles set out are unexceptionable. The third principle introduces a concept of the "actual probative value" of evidence, being the probative value assigned by the jury. The decision under s 98 is then said to be a two stage process by which the trial judge first identifies whether evidence is "capable of" rationally affecting the probability of a fact in issue, and, secondly, evaluating the likelihood that the jury would assign the evidence significant probative value. I do not agree with that approach, nor do I think it is supported by the judgment of Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457. His Honour's discussion in Lockyer, at least at 460, was concerned with the exercise required by s 135 (and one might add, relevantly for present purposes, s 101(2)), namely the assessment of whether the probative value outweighs any prejudicial effect. It is true that the concept of prejudicial effect requires an assessment of the misuse of the evidence which might be made by a jury, comprising people without legal training. On the other hand, I do not think that the assessment of "probative value" requires such an exercise. That conclusion follows from the definition of "probative value" in the Dictionary to the Act, namely "the extent to which the evidence could rationally affect the assessment of the probability" of a fact. Evidence has significant probative value if it could have such an effect, to a significant extent. The trial judge is not required to second-guess the jury: the judge must make his or her own assessment of probative value for the purposes of s 98. 47 It follows that, in my view, her Honour has set herself a legally incorrect test at [139] below and has applied an overly constrained approach in her assessment of factual findings, limited by the principles stated in House: see [141] below.

Application of principles 48 The first question of importance in applying s 98 is to identify the two or more "related events". These events must be identified with a certain level of precision, in order to determine whether they are indeed within the terms of sub-s 98(2). 49 For the purposes of s 98, the prosecution is required to serve a notice of its intention to adduce the evidence. Section 99 of the Evidence Act provides: 99 Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

Clause 6(3) of the Evidence Regulation 2000 (NSW) provides in relation to the form of such a notice: 6(3) A notice given under section 98(1)(a) of the Act (relating to the coincidence rule) must state: (a) the substance of the evidence of the occurrence of two or more related events that the party giving the notice intends to adduce, and (b) particulars of: (i) the date, time, place and circumstances at or in which each of those events occurred, and (ii) the name of each person who saw, heard or otherwise perceived each of those events, …

The requirements of the regulation are mandatory: this Court has held that failure to comply with the requirements of regulation 6 render the evidence inadmissible: see R v AN (2000) 117 A Crim R 176 at [60]-[62] (Kirby J, Priestley JA and Greg James J agreeing). 50 It will be necessary to come back to the terms of his Honour's summing up in due course, but for present purposes it may be noted that a 10 page written direction was distributed to the jury approximately halfway through the summing up. The first four pages of that direction dealt with some general matters and briefly addressed the elements of each of the two counts. Subject to some variations agreed with counsel, pages 5-9 set out the contents of the notice given by the prosecution with respect to coincidence evidence in relation to each count. The evidence was set out twice because the Crown relied on what it described as "circumstantial evidence" in relation to count 1 as "coincidence evidence" in relation to count 2, and vice versa. There were further directions given in relation to the use of coincidence evidence, which will be discussed further below. 51 In relation to count 1 (the attempted importation charge), the circumstantial evidence was identified as follows: Count 1: 1. Tu was in China until 16 March 2003. 2. On 2 May 2003 a container said to contain "Rice Sticks" arrived in Australia on the vessel "Magnavia". The consignee was Eastern Trade and Import, the business of Zhang. 3. [Deleted] 4. On 13 May 2003 the container was delivered to 39 Jones Street, Ultimo where Zhang supervised the unloading of the contents in to Unit LJ8. During that operation some of the boxes were damaged and Zhang later removed damaged boxes and placed them outside the premises. 5. On 14 May 2003 while Tu and Zhang were in Unit LJ8 15 of the 20 boxes, which had contained crystal methyl amphetamine from a list of numbers of those boxes in the possession of Tu, were identified. 6. At approximately 1700 hours on 14 May 2003 Tu and Zhang left the premises at 39 Jones Street, Ultimo. Zhang was arrested by AFP and found to be carrying a green sports bag containing a Grace Bros plastic bag containing a quantity of an inert substance which had been substituted for the crystal methyl amphetamine by the AFP after the container arrived in Australia. The bag also contained a set of scales and three mobile telephones. 7. At 1755 hours on 14 May 2003 Tu was searched and a document found in his pocket containing the numbers of the 20 boxes that had contained the crystal methyl amphetamine when the container arrived in Australia. 52 With the possible exception of the first matter, namely the date Mr Tu left China, each of the items referred to related to the cargo which arrived on 2 May 2003, which was the subject of the attempted importation charge. 53 These matters were repeated, verbatim, as "coincidence evidence" relevant to the possession count. With the possible exception of the first item, namely the date Mr Tu left China, the manner in which that evidence demonstrated the improbability of Ms Zhang being ignorant of the contents of the plastic bag found in her wardrobe, is somewhat obscure. The inclusion of the first item is even more puzzling because it was part of the circumstantial evidence said to be relevant to the possession count in any event. 54 In relation to count 2 (the possession charge) the circumstantial evidence was identified as follows: Count 2: 1. On 14 May 2003 there were 6kgs of crystal methyl amphetamine (commonly known as ice) in a garbage bag within a cupboard in the master bedroom of her residence at 98/288 Wattle Street, Ultimo. With the garbage bag were boxes entitled "Brown Sugar in Pieces" some containing crystal methyl amphetamine in clear cellophane in heat sealed bags, and some separate clear cellophane heat sealed bags in dimensions similar to those in the "Brown Sugar in Pieces" boxes. 2. The crystal methyl amphetamine had been imported from China and arrived in Australia in a container consigned to Eastern Trade and Import, the business of Zhang, on 30 March 2003. The contents of the container were described as Rock Sugar". 3. When interviewed by police on 14 May 2003 Zhang said that Tu had told her what was in the container was some special sugar. 4. In about April 2003 Zhang told Mr Lee, the owner of Hong Australia, an importer of foodstuffs from Hong Kong that she was organising a shipment of brown sugar and rice sticks. Mr Lee's company subsequently purchased from Zhang a quantity of boxes of brown sugar. 5. When arrested on 14 May 2003, Tu was in possession of two keys and two swipe cards for premises at 704/2 Jones Bay Road, Ultimo. 6. Tu was the tenant of the premises at 704/2 Jones Bay Road, Ultimo. 7. On 16 May 2003 a search of the premises at 704/2 Jones Bay Road, Ultimo located 107kgs of crystal methyl amphetamine in the laundry cupboard in boxes entitled "Brown Pieces of Sugar, Peoples Republic of China" and addressed to Eastern Trade and Import. The boxes were brown sugar in pieces boxes. Those containing the crystal methyl amphetamine, which was located at Zhang's premises, were brown sugar in pieces boxes. 8. Tu was in China until 16 March 2003. 9. There was a similarity in the packaging and concealment of the crystal methyl amphetamine located at the premises of Zhang and Tu on 14 May 2003, with the crystal methyl amphetamine which is the subject of Count 1.

This, as noted above, was identified as the "coincidence evidence" in relation to the attempted importation. 55 At the present stage, the question to be addressed is one of admissibility. In that regard, the first question to address is the nature and circumstances of the two "related events". The first difficulty is that the notice (the validity of which was not challenged) failed to identify separately from the evidence sought to be adduced, the date, time, place and circumstances of each event. Indeed, it might be inferred from the notice that each paragraph of the notice identified a relevant "event". However, that could not be right because, for example, the presence of Mr Tu in China on a particular date was not an event which bore comparison, let alone similarity, with the arrival of a container in Australia. 56 On 5 April 2004, after the defence case had been completed, his Honour delivered judgment on the admissibility of the coincidence evidence. In the course of that judgment his Honour noted the sole issue relevant to admissibility (at p 2): "The Crown submits that a matter attracting admissibility of the evidence is the state of mind of the accused: that is to say, her knowledge. The way in which the case has been conducted, the only real question in dispute between the Crown and the defence is whether the accused knew that there were drugs in cargo in premises which she controlled and in her own domestic premises, a flat in which she lived." 57 It appears from a fair reading of the judgment on admissibility, taken as a whole, that the relevant "events" were the presence of the same form of narcotic in three places, namely:

(c) the cargo imported on 2 May and delivered to her business premises on 13 May 2003.

There is some awkwardness in describing the presence of drugs in a particular place as an event which has occurred. However, accepting that presence in a particular place may constitute an event, his Honour appears to have treated the fact that the same narcotic was found at each place as an element of similarity. Thus (at p 3), his Honour referred to the narcotic found in her wardrobe as having "almost the same strength", as the narcotic found in the goods "subsequently imported into her storage unit". (The last remark highlights a point of distinction, in that the attempted import did not result in her actually obtaining possession of the drugs sought to be imported, a fact reflected in the charge of attempted importation.) Although the same narcotic was involved in relation to the drugs found in each place, they did not come to Australia in the same shipment, nor were they disguised as the same food product, nor were they identical in strength. In the course of argument his Honour had noted that the material the subject of the attempted importation was of the order of 70% pure, whereas the narcotic found in the wardrobe was only 32.4% pure and was packed in different bags. 58 After noting dissimilarity revealed by the fact that drugs in her wardrobe were found in plastic clip-seal bags, and were of a lower level of purity, his Honour continued: "However, having regard to the way in which the case was run and the evidence and the cross-examination of the accused, it seems perfectly obvious that the shipment which caused the Federal Police to move upon her was the fourth of four shipments and she had clearly been bringing in material from China in the previous three shipments of brown sugar in pieces, being the subject of earlier importations."

While it is true that there was evidence that there had been a total of four shipments, not denied by her, the Crown only sought to demonstrate in relation to the third shipment that some 26 boxes had not been purchased by Mr Yee and were suspected of containing the narcotics, of which some 107 kilograms was discovered in Mr Tu's laundry and some 6 kilograms in her wardrobe. The implication that there had been four identical operations undertaken, each involving the importation of narcotics, was simply not established on the evidence, nor was it sought to be established, so far as appears from the argument presented to his Honour. 59 His Honour also treated the location of the drugs as important, although he expressed it in terms which appear to confuse the question of improbability of the events occurring coincidentally and the level of similarity. Thus his Honour stated (at p 7): "What is improbable, it seems to me, is not just to do with the percentage of drug but the fact that the same drug is found in three locations and that each of the persons who have had access to sources of such drugs have also in their premises had precisely those same drugs."

The reference to having access "to sources of such drugs" is a little obscure, but seems to relate to the fact that the drugs were imported, though by whom is not addressed. The fact that Mr Tu had drugs on his premises is not, on the Appellant's case, improbable, as she says it was he who organised the importations. There was no suggestion that she had access to his premises, or that she knew where he lived. Similarly, there was no suggestion that he had access to her premises, or to her storage facility. If the point were sought to be made that the sources of the two sets of drugs were two separate importations in consignments of food from China to the Appellant's business in Sydney, it is doubtful whether those circumstances satisfied the requirements of s 98(2). Nor is it clear why, if one shipment does not demonstrate knowledge on the part of the Appellant, two shipments, through a substantial and relevant similarity, tend to demonstrate the improbability of such events occurring coincidentally, in the sense that they occurred without her knowledge. 60 In truth, the strength of the Crown's case was a dissimilarity, namely that whilst Mr Tu might have been in a position to organise the inclusion of drugs in the shipment which arrived on 2 May, Ms Zhang's own evidence suggested that he was not in a position to do that in relation to the earlier shipment, which appears to have produced the drugs which were found in her wardrobe. 61 Coincidence evidence may be relied upon, in the terms of the section, either to prove that a person did a particular act, or that a person had a particular state of mind. The present case involves the latter circumstance. That, however, requires some level of precision in identifying why a person would have a particular state of mind because of the improbability of two or more events occurring coincidentally. It would seem that one element of the events must be the state of knowledge or intention of the person whose state of mind is in issue. A classic case involving this kind of reasoning was R v Mortimer (1936) 25 Cr App R 150, a case in which an accused was charged with the murder of a female cyclist whom he had run down. His defence was to deny any recollection of the act, to disprove which the prosecution adduced evidence that he had driven at three other women cyclists in a short period prior to the homicide. For an example of sequential passing of worthless cheques admitted to show an intention to defraud, see R v Ollis [1900] 2 QB 758. 62 Where knowledge is sought to be proved, care must be taken to identify the sense in which possession without knowledge of the nature of the goods may be plausible in relation to one event, but implausible in relation to two or more related events. This analysis of the evidence tendered by the Crown was not attempted in the judgment on admissibility. Had the proper analysis been undertaken, two important aspects would have been identified. The first would have been that the presence of 13 cartons from a shipment of brown sugar pieces at the premises of Mr Tu would not readily demonstrate that the Appellant knew that the cartons contained narcotics unless it was known how Mr Tu came by the cartons. No evidence was given as to that matter at Ms Zhang's trial. Secondly, as noted above, the real probative value of the evidence concerning the earlier shipment was that, because it appears to have taken place, on Ms Zhang's evidence, at a time when she had no knowledge of Mr Tu, it was improbable, because unexplained, that he had organised the inclusion of narcotics, without Ms Zhang's knowledge, in the earlier shipment. 63 It follows, in my view, that whilst evidence of the knowing possession of narcotics in the wardrobe may have given rise to a powerful inference that Ms Zhang was herself involved in the attempted importation, the reverse reasoning does not apply. It follows that the attempted importation in May was not an event which, relevantly in the circumstances of the case, occurred coincidentally with the presence of narcotics in Mr Tu's premises. If Mr Tu was an importer, as Ms Zhang alleged, it was not coincidental that he would have narcotics in his possession. If he had them in his possession, there was nothing coincidental, in a relevant sense, in providing a parcel to her for safekeeping in her apartment. 64 What was truly an improbable coincidence, for which she had no innocent explanation, was the presence in Mr Tu's laundry of parcels of narcotics in cartons which purported to contain shipments of food and, significantly, which bore the name of her company. But, with respect to the apparent reasoning of the prosecution, the only relevance of this material in Tu's possession was that it tended to confirm (rather than contradict) her explanation that she had received the material from Tu. The similarity of the material in his possession and in her cupboard was not, on her story, coincidental. Accordingly, events (a) and (b) (as identified in [57] above) were not related events in relation to each other. Nor was (c) a related event in relation to (a).

Miscarriage of justice 65 The remaining question is whether the fact that the evidence with respect to the attempted importation and the material in Mr Tu's laundry was left to the jury as relevant to proving the possession count caused a miscarriage of justice, in accordance with s 6(1) of the Criminal Appeal Act 1912 (NSW). Leaving evidence to the jury on a count in relation to which it is not admissible may constitute a miscarriage of justice if, as a result, the appellant "may thereby have lost a chance which was fairly open to [her] of being acquitted": see Mraz v The Queen (1955) 93 CLR 493 at 514 (Fullagar J). Or, as the proviso to s 6(1) states, the Court may dismiss the appeal "it if considers that no substantial miscarriage of justice has actually occurred". In order to determine the answer to this question, it is necessary to consider the explanation given to the jury in relation to the use of coincidence evidence. 66 The jury were told on several occasions that they were entitled to consider all the evidence on one count in relation to the other. Early in his summing up his Honour explained: "And the reason for that, comes from something the Crown mentioned to you, that of coincidence, that is that there was arguably, such striking coincidence between various things that were found in the two places and various other events that you are entitled to consider whether they are merely coincidences or whether it is so improbable that they are purely coincidental that the only conclusion could be that they are not. Now in particular what the Crown says is that the fact of methylamphetamine being found in her shed and methylamphetamine being found in her flat is a remarkable coincidence and it is not just a coincidence."

(In several passages in the summing up, his Honour referred to the substance found in the storage facility as the narcotic, rather than the substituted neutral substance, but nothing turns on that.) More importantly, this passage contains no explanation as to how evidence of the material in two places under her control could properly be used to demonstrate her knowledge of the contents of the packages. 67 The key passage in which the trial judge returned to this question came at the end of his summary of the prosecution case. After referring again to the entitlement to take into account evidence on each count in respect of the other, his Honour continued with the following explanation. "Now what that means that you have to do, you have got to look through all the matters that I have said are circumstantial evidence and consider them and, in particular, the circumstances that there were found in her flat in 'brown sugar in pieces' boxes, crystal methylamphetamine, there were found in her cargo shed, a box that contained 'brown sugar in pieces' boxes and in that cargo shed there was found - well there were boxes in which the police had previously found crystal methylamphetamine, and in Mr Tu's premises, in the 'brown sugar in boxes' packets, there was crystal methylamphetamine, and in each place it could be said there were significant quantities. In her flat 6 kilograms, in his premises 107 kilograms and I cannot remember the exact number of kilograms that were originally in the boxes but well over 100 kilograms there. So large quantities of drugs, all the same drug, and with the exception of the drug in the sealed plastic bags that were first found in her flat, all roughly the same chemical composition … . Now if you find it glaringly improbable that just by coincidence there could be those drugs, in those packages, in those places and in those quantities, then you are entitled to use the evidence, all that evidence, in considering the case against her on both counts."

This may be described as a broad-brush approach, and it fails to identify the permissible use which can be made of this material. 68 In a written direction handed to the jury, the use of coincidence evidence was set out in less than one page out of 10, and the key passages were brief and to the following effect: "The Crown says it is improbable that the accused would have imported a cargo in which there was crystal methylamphetamine and as a matter of coincidence there would be found in her flat and the flat of Mr Tu, crystal methylamphetamine, much of it in the same type of packaging. The Crown says it is an affront to common sense that such a coincidence should have occurred. … If you accept, however, that you are satisfied beyond reasonable doubt that the circumstances in count 1 are so strikingly similar in the respects which I have mentioned to those in count 2 as to lead inevitably to the conclusion that the accused had knowing possession of narcotics, then you are entitled to convict her of both offences." 69 Apart from a restatement of generalities (part of which has been omitted in the quotation set out above), the short description of the nature of the coincidence in the first sentence, is all that the jury got in terms of specific direction from the trial judge, apart from the list of items of coincidence evidence said to be relevant on each count. 70 If the jury had been instructed that, taking into account the narcotics found in her premises, and being satisfied that she knew what was in the plastic bag in her wardrobe, that would have provided cogent evidence that her denial in relation to the attempted importation was false, no complaint could have been made. However, if they were in doubt as to her knowledge of the contents of the bag in her wardrobe, the fact that there was a quantity of the same narcotic in the subsequent attempted importation was at least consistent with her story that Mr Tu was responsible for the importation and would not have provided significant evidence of her knowledge of what was in the bag in her wardrobe. Her story was that she had become aware of the narcotics in the attempted importation from Mr Tu when he was isolating the relevant boxes in the storage facility. It was then, she said, that she became suspicious of the contents of the bag in her wardrobe and directed the police to it when she was arrested. 71 Although the Crown case relied heavily on circumstantial evidence to demonstrate her awareness of what was likely to be in the bag in her wardrobe, and in the intercepted container, the strength of the prosecution case was undeniable. However, it is difficult to be satisfied that the jury did not, in following the trial judge's directions, make inappropriate use of the evidence with respect to the importation (count 1) in considering the possession charge (count 2), and come to a conclusion which was not inevitable, had an appropriate direction been given. The Appellant's trial not having been conducted according to law, there is at least a possibility that she lost an opportunity of acquittal on the possession charge. Accordingly, the conviction with respect to the possession charge should not be allowed to stand. Further, it is clear that satisfaction beyond reasonable doubt that the bag in her wardrobe, contained narcotics emanating from an earlier importation, would have been powerful evidence to contradict her clams of ignorance with respect to the attempted importation. Although the evidence with respect to the possession charge could properly be used in that way, if the jury's conclusion with respect to that charge was flawed, its consideration of the attempted importation charge must also have been contaminated. If the conviction on count 2 cannot stand, the conviction on count 1 must also be set aside. 72 In my view, the appeal should be allowed, the verdict of the jury on each count should be set aside and, pursuant to s 8(1) of the Criminal Appeal Act, a new trial should be ordered on each count. 73 SIMPSON J: On 7 April 2004, following a jury trial, the appellant was convicted of two offences against the Customs Act 1901 (Cth). She now appeals against each conviction and seeks leave to appeal against the sentences subsequently imposed. Those sentences are set out below [170]. The offences of which the appellant was convicted were, firstly, of attempted possession of not less than the trafficable quantity of illegally imported goods (narcotics), and, secondly, of possession of not less than the trafficable quantity of goods reasonably suspected of having been illegally imported (also narcotics). Each offence was alleged in the indictment to have been committed on or about 14 May 2003. 74 I have read in draft the judgment of Basten JA. I have reached a contrary view. 75 A trial of the charges was fixed to commence in the District Court on 29 March 2004. Initially the appellant was to be tried on an indictment jointly with her co-accused, a man named Wei-Liang Tu (also known as Tony Tu), who was charged jointly with her on the first count, of attempted possession of not less than the trafficable quantity of illegally imported narcotics; he was charged also with possession of not less than the trafficable quantity of illegally imported narcotics, but this related to a different quantity of a similar (but not the same) drug. There were thus three counts on the original indictment: one charging the appellant and Mr Tu jointly with attempted possession of the same quantity of the drug; the second charging the appellant with possession; and the third charging Mr Tu with possession. 76 Prior to the commencement of the trial the Director of Public Prosecutions ("the DPP") gave notice of his intention to adduce, under s98(1) of the Evidence Act 1995, coincidence evidence in relation to each of the three charges then on the indictment. The DPP served on each accused a detailed Notice under s98(1) particularising the coincidence evidence he proposed to adduce. A reading of this document suggests that what the DPP proposed to do, in relation to each count, was to rely, as coincidence evidence, upon the facts and circumstances upon which he relied to establish each other count. 77 On the day fixed for the commencement of the trial an application was made on behalf of Mr Tu for a separate trial of the charges against him. Counsel for the appellant somewhat belatedly joined in that application. Counsel for the appellant also applied for separate trials of the two counts on which she was to be indicted. 78 The transcript records the discussion that took place in relation to the applications. The preponderance - indeed, as I read the transcript, virtually the entirety - of the argument was directed to the question of the separation of the trials of the two accused; this resulted, ultimately, in a judgment in which Finnane DCJ acceded to those applications. The appellant's application for severance of the two charges against her was treated in a rather more cursory fashion. Indeed, from a reading of the transcript, it is difficult to discern the basis on which the latter application was advanced. The economy with which this application was presented finds an echo in the judgment. In refusing the application, his Honour merely said: "Application has also been made by Mr Bellanto [senior counsel who appeared at trial for the appellant] and I think joined in by counsel for Mr Tu, Mr King, that each of the trials of the counts against their respective clients should be held separately. Because there are separate elements in each it cannot be said that the drug is the same and there is to a certain degree, some prejudice in having the trials run together. I am unable to agree with that proposition. The events out of which these charges arose seem to have occurred over a relatively short space of days. It cannot be said that the drugs in counts 2 and 3 [it appears that count 3 on the draft indictment, as it then stood, was the charge against Mr Tu] were imported or sought to be imported at the same or near the same time as the drugs in count 1. But certainly the drugs in those particular charges were all the subject of investigative activity occurring at about the same time and arising out of the one investigation. I am not prepared to separate those counts into separate trials. So the trial of Anna Zhang on count 1 and count 2 will be conducted so that the evidence in both of those matters will be heard together. ...." 79 The transcript records that, following that decision, some discussion took place about the use of the evidence the Crown sought to adduce in that trial, pursuant to s98(1) of the Evidence Act, as coincidence evidence. Senior counsel for the appellant is recorded as saying: "Our approach to the severance argument is really count 2 as far as we're concerned, Ms Zhang is concerned, is a backdoor way of getting in propensity or coincidence evidence by preferring a separate count. Now once your Honour has ruled that that count should stay, the wind's been taken out of our sails, so to speak, because the thrust of our argument is that that evidence shouldn't be admitted because it's not sufficiently connected to the facts giving rise to count 1." (AB 1 p 73) 80 Counsel for the appellant pressed for a determination as to whether the coincidence evidence would be "admitted". Counsel for the DPP urged deferral of that determination until the end of the prosecution case. His Honour declined, at that stage, to rule upon the issue. In other words, it appears to have been accepted (correctly, in my opinion) that, once the decision to try the two charges against the appellant jointly had been made, no question arose about the admissibility of any individual item of evidence mentioned in the Notice; the coincidence evidence issue, in truth, concerned the use that might be made by the jury, in determining each count, of the evidence supporting the other count. 81 The refusal to separate the trials of the two counts gives rise to the first and second grounds of appeal, which are in the following terms: "1. His Honour erred in failing to order that counts 1 and 2 in the indictment be tried separately. 2. His Honour erred in failing to discharge the jury at the conclusion of the evidence." 82 The trial commenced on 30 March 2004 and proceeded over the ensuing six days. The Crown case closed on 1 April (Thursday). On that day, and the following day (Friday 2 April), the appellant gave evidence. The defence case then closed. A debate concerning the use of coincidence evidence took place during the morning of Monday 5 April. Essentially, counsel for the DPP acceded to a proposition put by Finnane DCJ that his intention was to use the evidence in each count as relevant to, and in support of, the other count (AB 2 p 301). 83 On the same day his Honour gave judgment. After reciting the relevant facts, and the arguments advanced by each counsel, his Honour concluded that the evidence was "admissible". The effect of this ruling was to permit counsel for the DPP to put to the jury a submission based upon s98(1), and the jury to use coincidence reasoning in their deliberations in respect of each individual count. This decision is the foundation of the third and fourth grounds of appeal, which are in the following terms: "3. His Honour erred in admitting into evidence on Count 1, evidence given by Prosecution witness (sic) in the trial of Count 2, including evidence classified as coincidence evidence. 4. His Honour erred in admitting into evidence on Count 2, evidence given by Prosecution witness (sic) in the trial of Count 1, including evidence classified as coincidence evidence." 84 There are many additional grounds of appeal, to which I shall later refer. 85 It is convenient now to outline the facts and circumstances alleged in the prosecution case, the bulk of which were not in dispute.

The prosecution case 86 The prosecution case was said to have been a circumstantial one. I find that a little puzzling, but there is no need to explore that question. The DPP served a Notice of intention to rely on circumstantial evidence, cataloguing the "circumstances" on which he wished to rely. The "circumstances" there outlined were identical with the circumstances identified as coincidence evidence. 87 The evidence given on behalf of the DPP amounted to the following. The appellant was the proprietor of a company identified in the evidence as "East [or Eastern] Trade and Import", the business of which was the importation of foodstuffs from China. On 24 March 2003 a container arrived by ship from China, consigned to "Eastern Trade and Import". It was said to contain rice sticks and rock sugar. The contents were released for delivery on 3 April. The shipment left China on 3 March. 88 On 2 May 2003 a second container arrived by ship from China, consigned to the same company. This container was delivered to a Customs facility at Port Botany. On inspection by Customs officers it was found to contain a number (401) of brown cardboard boxes, each of which was numbered. 21 of the boxes were discovered to contain crystal methylamphetamine. In all, the boxes contained over 212 kilograms of the substance, or 163 kilograms of pure methylamphetamine. Customs officers notified Australian Federal Police ("AFP") agents, who removed the narcotics, for which they substituted an inert substance. AFP agents then maintained surveillance of the container. On 12 May the container was cleared through Customs, and on 13 May it was delivered to a storage unit at Ultimo, a unit occupied by the appellant's company for the purpose of the importation business. The contents of the container were unloaded and placed in the storage unit. The appellant was present and involved herself in the unpacking, and in repairing some apparently damaged cardboard boxes. The truck which had delivered the container left and the appellant entered the storage unit, where she remained for a short time. The following morning, 14 May, the appellant, in company with Mr Tu, entered the storage unit and they remained therein for in excess of five hours. When they left Mr Tu was carrying a green sports bag and the appellant a yellow shopping bag. They entered Mr Tu's motor vehicle and drove off. They drove to the appellant's apartment building, also in Ultimo; she alighted, taking with her the green sports bag as well as the yellow plastic bag which had previously been in her possession. The appellant was then arrested. Inside the green sports bag, packed in another plastic bag, were a number of sealed plastic bags, which contained a crystalline substance, later shown to have been the substance substituted for the narcotics. Inside the yellow plastic bag was a set of scales which bore traces of methylamphetamine. She was also in possession of three mobile telephones. Mr Tu was also arrested shortly afterwards. He had in his possession a piece of paper on which was written a list of 20 numbers, 18 of which were circled and many of which had been ticked. 89 Subsequent examination of the storage unit by AFP officers revealed that 15 of the cardboard boxes had been segregated from the remainder. Each of these was one of the 21 boxes that had previously held drugs. The numbers of these boxes corresponded with the numbers of the boxes that had contained the drugs. The numbers also corresponded with the numbers on the list found in Mr Tu's possession. 90 Following the appellant's arrest, AFP agents entered and searched her home. In a wardrobe in the main bedroom they located a shopping bag which contained a number of other bags, in the last of which were four boxes labelled "brown sugar in pieces". Inside one of the bags were seven clear plastic Clipsall bags containing off-white crystals which later proved to be crystal methylamphetamine. The appellant, having been arrested, was not present during the search. In all, at this time, four kilograms of crystal methylamphetamine was found. On 17 June a further search was conducted of the apartment, and, on this occasion, a further two kilograms of crystal methylamphetamine was located, also in the wardrobe in the main bedroom. The appellant had remained in custody from the date of her arrest, and had not been to the apartment in the time between the first and the second searches. 91 On 16 May AFP agents entered and searched an apartment occupied by Mr Tu. In the laundry they found a number of boxes wrapped in plastic, and labelled "brown sugar in pieces". At least one box bore a sticker on which was written the words "Eastern Trade and Import". Contained in the boxes was a white crystalline substance which later analysis showed to be crystal methylamphetamine. The boxes were similar to those found in the appellant's wardrobe, and also to those from which drugs had been removed in the container. 107 kilograms of the drug was found. 92 It was not the prosecution case that the drugs found at the appellant's home came from the shipment of 2 May. Rather, it was the prosecution case that these were from the earlier March importation. Generally speaking, and with the exception of a relatively small quantity of that found in the Clipsall bags, all narcotic substances were of a similar level of purity. 93 After her arrest the appellant was interviewed by AFP agents. They did not have the benefit of an interpreter, and her recorded answers are not easy to follow. However, the essence of her responses to questions asked of her appears to have been that Mr Tu had made the arrangements for the May importation, and that he had told her that the substance imported was "a special sugar". She also said that Mr Tu needed money because he had a gambling problem. At that stage she was not asked about the substance discovered at her home.

The defence case 94 The appellant gave evidence in the trial. She said that she met Mr Tu at the end of March 2003. They became friends, and the friendship developed into an intimate relationship. She said that, in about April, she told Mr Tu that a container of rice noodles and rock sugar was due to arrive, and that, when she told him that, he informed her that some samples for his own business would be in the container. She said she thought this was "very weird" and pressed him as to how he had known about the container. To this he replied that he had many friends involved in the food business in Guang Zhou, from where the container had originated. He told her that he had not arranged his own importation because he was not an Australian citizen and had no idea how to deal with business issues. She said that this conversation took place over lunch, but that she was very upset about what she had been told, and had left the restaurant. Later, she said, he apologised, and the relationship resumed. 95 The appellant gave an explanation for the presence of the six kilograms of drugs at her home. She said that, on about 9 or 10 May, Mr Tu had asked her if he could store some personal possessions at her home for a few days. She agreed to this, and he shortly after delivered to her home the bags subsequently found to contain drugs. She put these in the wardrobe in her bedroom. For cultural reasons, she did not enquire as to the contents of the bags. 96 She said that when the container arrived and had been cleared through Customs she had the contents (which she believed to be rice sticks) taken to the storage unit which she attended. She was present at the delivery. The following day Mr Tu accompanied her to the storage unit. She intended to count the boxes to ensure that the consignment was correct. It had been raining and some of the bags had broken, spilling their contents. She therefore took with her some plastic bags for the spilt rice sticks. She noticed that all the boxes appeared to be alike and could not identify any of a different appearance that might have contained Mr Tu's goods. She saw him remove some boxes, and cut the wrapping. She saw a crystalline substance that looked like sugar. Mr Tu told her again that it was "a special sugar". She then said: " ... he said this is the stuff that people use to make a kind of - sort of drug that the youngsters used to have it to play in the disco, to shake heads." (AB 1 p 243) 97 This, she said, was the first she knew of the content of the boxes, and she was "very scared" and did not know what to do. She told Mr Tu to remove all of his items from the storage unit by the following day at the latest. After a little longer, Mr Tu drove her home. Before doing so, he placed some items in a plastic bag and in a green travel bag. Mr Tu went to get the car, while she waited on the footpath outside the warehouse. Mr Tu left the green travel bag on the ground beside her. When he returned in the car, only a moment later, she took the bag to the car. He drove her home and told her to keep the bags for him, until he returned, which he expected to do within ten minutes. He drove off. Shortly after the police arrived and arrested the appellant. * * * 98 As the trial was conducted, only one disputed factual issue emerged. That was the essential element of knowledge on the part of the appellant - that is, knowledge, in relation to each count, of the identity of the substance of which she was, in respect of count 1, alleged to have attempted to obtain possession, and, in respect of count 2, of the substance in the bags in her bedroom. 99 The appellant otherwise did not challenge the factual accuracy of the matters alleged by the DPP. Rather, in her evidence, she sought to explain, in an exculpatory way, the facts and circumstances that made up the prosecution case.

The grounds of appeal 100 The pleaded grounds of appeal are numerous, 15 to be precise. I have already set out grounds 1 - 4. The remaining grounds are in the following terms: "5. His Honour erred in failing to identify for the jury the evidence properly admissible on Count 1. 6. His Hounour (sic) erred in failing to identify for the jury the evidence properly admissible on Count 2.

7. His Honour erred in failing to direct the jury that they should consider the evidence on each count separately.

8. His Honour erred in failing to direct the jury on the element of joint criminal enterprise in relation to count 1.

9. His Honour erred in failing to identify the acts and declarations of TU which the jury could take into account in the event it was established a joint criminal enterprise existed between TU and the Appellant in relation to Count 1.

10. His Honour failed to give the required directions in relation to circumstantial evidence on Count 1. 11. His Honour failed to give the required directions in relation to circumstantial evidence on Count 2.

12. His Honour erred in failing to direct, or alternatively, to adequately direct, the jury as to the onus of proof on each count.

13. His Honour erred in failing to adequately direct the jury as to the standard of proof.

14. His Honour erred in his directions on the mental component of the element of possession. 15. In the alternative, the aggregation of errors referred to in the proceeding (sic) grounds have resulted in a miscarriage of justice." 101 In considering these grounds of appeal, it is appropriate to recall the observations of Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [3], as follows: "It is desirable to restate some propositions which are fundamental to criminal appeals but which may sometimes be obscured by the development of shorthand descriptions of what is done in particular cases. It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the Court is given, and the circumstances in which those powers may be exercised." (emphasis added) 102 Section 6 of the Criminal Appeal Act 1912 confers upon this Court the jurisdiction to redress error of law in the trial court, or miscarriage of justice. The two grounds provided for by s6 are distinct and separate. 103 In the context of the application of Rule 4 of the Criminal Appeal Rules (NSW), McHugh J has said: "There is no case for the grant of leave under s4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence in such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limits its use, the burden on the appellant is the greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant." Papakosmas v The Queen [1999] I 37; 196 CLR 297 (emphasis added) 104 Included in the jurisdiction to redress error of law is the jurisdiction to correct the erroneous exercise of discretion. This, however, may only be done on the principles stated in House v The King [1936] I 40; 55 CLR 499. 105 The decision to order, or not to order, separate trials of individual counts in an indictment is essentially the exercise of a discretion. It is, of course, a discretion which must be exercised according to established principles. Appellate challenge to such a decision raises a ground asserting error of law. If established principles are not applied in the exercise of the discretion, then error of the House kind may be established. A challenge to the exercise of such a discretion may only be properly based upon the material which was available to the trial court at the time the decision was made. That is consistent with the observations of McHugh J in Papakosmas which I have extracted above. It is for this reason that I have set out above, at some length, an outline of the manner in which the argument concerning separate trials of the two counts took place. The appeal was conducted on the basis that what underlay the severance (of the two counts against the appellant) application was the appellant's opposition to the use of "coincidence evidence". But, as I have noted above, the preponderance of the argument was directed to the question of the separation of the trials of the two accused. Nothing further was put, at that stage, in relation to the application for separate trials of the two counts against the appellant. It was only after that application had been rejected that the issue of coincidence evidence arose. Even then, the issue was not raised in the context of the severance application. It could not have been, because that question had already been decided, adversely to the appellant. 106 I propose now to set out, at some length, some extracts from the directions given to the jury. His Honour said: "Now they are two separate cases but for reasons which I will make plain later on, you are entitled to consider when you are looking at count 1, all the evidence about count 2. You are allowed to consider, when you are looking at count 2, all the evidence about count 1. And the reason for that, comes from something the Crown mentioned to you, that of coincidence, that is, that there was arguably, such striking coincidence between various things that were found in the two places and various other events that you are entitled to consider whether they are merely coincidences or whether it is so improbable that they are purely coincidental that the only conclusion could be that they are not. Now in particular what the Crown says is that the fact of methylamphetamine being found in her shed and methylamphetamine being found in her flat is a remarkable coincidence and it is not just a coincidence. But I will come to that a little bit later on." 107 Some time later his Honour came to give further directions on the topic of coincidence evidence. He said this: "So what the Crown says, is when you consider whether you are satisfied beyond reasonable doubt that the accused was guilty of count 1, you look at the evidence on count 2, and when you are considering count 2, you look at the evidence on count 1, and you are entitled to do it but you have got to think it through carefully and you should not, too easily, eliminate the possibility of coincidence. If all it does is raise a suspicion that is not enough. If, however, the circumstances in count 1 are so strikingly similar in the respects to which I have mentioned to the circumstances in count 2, as to lead inevitably to the conclusion that the accused had possession of the narcotics, then you are entitled to convict her of both offences. Now what that means that you have to do, you have got to look through all the matters that I have said are circumstantial evidence and consider them and, in particular, the circumstances that there were found in her flat 'brown sugar in pieces' boxes, crystal methylamphetamine, there were found in her cargo shed, a box that contained 'brown sugar in pieces', boxes and in that cargo shed there was found - well there were boxes in which the police had previously found crystal methylamphetamine, and, in Mr Tu's premises, in the 'brown sugar in boxes' packets, there was crystal methylamphetamine, and in each place it could be said were significant quantities. ... Now if you find it glaringly improbable that just by coincidence there could be those drugs, in those packages, in those places and in those quantities, then you are entitled to use the evidence, all that evidence, in considering the case against her on both counts. Mere coincidence, as I would say to you, is not sufficient, but if it is more than mere coincidence, if it would be an affront to common sense to say that it is anything but coincidence, then you are entitled to use that evidence to establish that she knew that the drugs in both places were narcotics or knew that there was a likelihood that they would be ." (emphasis added) 108 The judge also gave the jury written directions. He set out in full the circumstantial evidence notice, and then turned to "coincidence". As to this, the directions contained the following: "Sometimes there is such a striking similarity between two different acts that a jury may be satisfied beyond reasonable doubt that the person who committed one set of acts committed the other set of acts. To put it another way, the accused has put a stamp on the crime, which makes it easily recognisable that she must have committed both sets of crimes. This could not be so if both sets are such that they may be explained by coincidence. There must be such a close similarity, such a clear underlying unity between both sets of acts as to make coincidence a very unlikely explanation for what happened. In the present case, the real matter for your consideration is whether the accused had knowledge of the presence of drugs in the cargo in [the storage unit] and in her own flat or whether she knew it was likely that there were narcotic drugs in those places. The Crown says it is improbable that the accused would have imported a cargo in which there was crystal methylamphetamine and as a matter of coincidence there would be found in her flat and the flat of Mr Tu, crystal methylamphetamine, much of it in the same type of packaging. The Crown says it is an affront to common sense that such a coincidence should have occurred. For that reason, the Crown says that when you consider whether you are satisfied beyond reasonable doubt that the accused was guilty of count 1, you should look at the evidence on count 2 and when you are considering count 2, you should look at the evidence on count 1. I instruct you as a matter of law that you are entitled to do this, but you must still consider carefully this evidence. If all that it does is raise suspicion that is not enough. If you accept, however, that you are satisfied beyond reasonable doubt that the circumstances in count 1 are so strikingly similar in the respects which I have mentioned to those in count 2 as to lead inevitably to the conclusion that the accused had knowing possession of narcotics, then you are entitled to convict her of both offences." (emphasis added) 109 His Honour then set out the coincidence evidence particulars, which were, of course, the same as the circumstantial evidence particulars.

Grounds 1 to 7 110 Grounds 1 and 2 were argued together. However, they raise somewhat different issues. Ground 1 is, as I have noted above, an assertion of error of law in the exercise of the discretion to order separate trials. 111 The complaint encapsulated in ground 2 is intended to assert that, by reason of the judge's refusal to sever the trial of the two counts, a miscarriage of justice resulted, requiring a discharge of the jury at the conclusion of the evidence. As the appeal was argued, this was asserted to be the case because of the ruling in relation to coincidence evidence.

112 Section 29 subss (1) and (3) of the Criminal Procedure Act 1986 provide: "(1) A court may hear and determine together proceedings related to two or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecution consent; (b) the offences arise out of the same set of circumstances;

(c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to two or more offences ... may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice." 113 Plainly, the offences were said to form or be part of a series of offences of the same or a similar character. Section 29(1)(c) therefore authorised their being heard together, unless the judge formed the opinion, pursuant to subs (3), that, in the interests of justice, they ought to be heard separately. The judge clearly did not form that opinion. 114 The only basis that I can see on which he could rationally have done so was if he concluded that evidence of the appellant's guilt of one offence would not be admissible (as what used to be called propensity evidence) in proof of her guilt of the other, or that irreparable prejudice would be caused to the appellant by the two charges being heard together. 115 At issue in the High Court in KRM v The Queen [2001] HCA 11; 206 CLR 221 was whether, where the accused had been charged on the one indictment with an offence of maintaining an unlawful sexual relationship with a child under the age of 16 and other sexual offences, what was called "a propensity warning" ought to have been given. The case is significant for present purposes because it is apparent that the trial of an offender on a number of counts gave no cause for concern. Paragraphs 4 and 32 to 38 in the judgment of McHugh J, while directed specifically to the issue of whether a propensity warning should have been given, disclosed no discomfort with the joint trial of a number of offences. Each member of the majority rejected the contention that a propensity warning was invariably called for in those circumstances. 116 A similar question arose, with the same result, in R v Matthews; R v Williams [2004] NSWCCA 259. 117 As I have said above, the application for severance of the two counts was never articulated with any degree of clarity. In written submissions filed in this court on behalf of the appellant it was asserted that: "30. The basis for the application was that the jury might well use the evidence on the second count to infer guilt on the first count. It might do this notwithstanding the fact that there was insufficient basis to impute the requisite knowledge required for count 2." 118 It may well be that this was what was intended when the application was made. However, no such submission was clearly put to Finnane DCJ. It is of some importance, also, that no attempt was made in this court to identify any error in the reasoning process exposed by his Honour in the judgment in which he rejected that application. In my opinion, no error of law is shown in his Honour's determination on this issue at the time it was made. I would reject ground 1 of the appeal. 119 Had any question concerning the DPP's proposed use of coincidence evidence then clearly been put to the judge, it would have been appropriate and necessary that he deal with it at that time in accordance with the procedure to which I will refer below. In that case, the use of coincidence evidence and its impact on the trial would clearly have been raised. The question of severance would have been raised in the context of the admissibility of coincidence evidence. But it was not, and his Honour was not called upon to decide, at that time, whether coincidence evidence would be admitted in relation to each count. There was then no error in his determination. 120 That is not necessarily the end of the issue. Section 6 of the Criminal Appeal Act still permits review of that decision to determine whether it subsequently led to a miscarriage of justice. That, essentially, is the focus of ground 2. The argument on that ground is integrally linked with the argument on grounds 3 and 4, concerning what is described as the decision, in relation to each individual count, to "admit" coincidence evidence, that being the evidence tendered in support of the other count. (As I have suggested above, because all the evidence was admissible in the trial, although primarily relevant to one count or the other, the characterisation of the issue as an admissibility question was a mischaracterisation. The true issue was what use could be made in relation to each count, of the evidence directly or primarily relevant to the other count: or, in other words, whether the jury ought to be permitted to engage in coincidence reasoning. That could have raised, but did not, a question under s136 of the Evidence Act.) The separate trials issue is interdependent with the coincidence evidence issue. It is therefore convenient at this stage to move to incorporate the issues raised by those grounds. 121 It is unproductive to cling too closely to the grounds of appeal as pleaded. They tend to fragment, and deflect attention from, the substance of the appellant's main complaint. Indeed, in the written submissions provided on behalf of the appellant, grounds 3, 4, 5, 6 and 7 were argued together. The essence of the complaint raised by these grounds, as I understand it, is the admission, or the use, of what was said to be coincidence evidence. It was (correctly) assumed that the question of severance of the counts or a joint trial depended (essentially) upon whether the DPP would be permitted, in its proof directed to count 1, to rely upon the evidence tendered in proof of count 2, and vice versa. If the DPP were to be permitted to rely upon the evidence of one count in support of the other, then there would be no utility in an order for severance; if the DPP were not to be permitted to rely upon the evidence of one count in support of the other, then conventional wisdom and practice would, ordinarily, dictate an order for separate trials. Thus, the first four grounds raise essentially the same issue. Grounds 5 to 7 concerned the trial judge's directions to the jury, but with reference to the "coincidence evidence".

Coincidence evidence 122 Section 98 of the Evidence Act is relevantly in the following terms: " 98 The coincidence rule (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) ... (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar. (c) ..." 123 Section 95 is as follows: "95 Use of evidence for other purposes

(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose." 124 It is convenient here also to note the provisions of s101(2) which are, relevantly, as follows: "101 Further restrictions on ... coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) ... coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(4) ... " 125 I have previously (R v Nassif [2004] NSW CCA 433 at [46] - [47]; R v Fletcher [2005] NSWCCA 338 at [45] - [48]) commented upon the mysterious drafting of s101(2) and forebear to do so again. I will continue to apply the subsection, as I did in Fletcher, as it has been construed by others. I accept, as proposed by the presiding judge, that the word "adduced" as it appears in the subsection should not be given its ordinary and natural meaning (of "admitted" or "given" or "brought out") and should instead be read as meaning "tendered". 126 The "coincidence evidence" Notice opened with the following: "Notice is hereby given that the Crown intends to adduce 'coincidence' evidence pursuant to sub-section 98(1) of the Evidence Act 1995 , i.e. evidence that two or more related events occurred to prove that because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind."

The particularisation of the proposed coincidence evidence was, as I have mentioned above, identical with the circumstantial evidence notice. 127 In relation to Count 1, the so-called "coincidence evidence" was particularised as, inter alia, the appellant's possession of the six kilograms of crystal methylamphetamine found at her apartment; the labelling of the boxes as containing "brown sugar in pieces"; that the drug had been imported from China in a container consigned to the appellant's company on 30 March; that the appellant had told police that Mr Tu had given her some "special sugar" which was in her bedroom in a garbage bag; that the search of Mr Tu's premises yielded 107 kilograms of crystal methylamphetamine in boxes labelled "brown pieces of sugar, Peoples' Republic of China", addressed to Eastern Trade and Import; and that the boxes were the same as those containing the narcotic found in the appellant's apartment. 128 In relation to count 2, the "coincidence evidence" was particularised so as to include the fact that Mr Tu was in China until 16 March 2003; that on 2 May of that year a container arrived by ship, consigned to Eastern Trade and Import; that the container was delivered on 13 May to the appellant's storage unit; that the appellant supervised the unloading of the contents; that on 14 May the appellant and Mr Tu identified 15 boxes which had contained the narcotic from a list of numbers in Mr Tu's possession; and that, on her arrest, the appellant had in her custody a bag containing a quantity of the inert substitute substance, a set of scales, and three mobile telephones. 129 It is unfortunate that the draftsperson of the coincidence evidence Notice did not identify with real precision what was sought to be achieved by the tender of coincidence evidence. For example, did the DPP seek to prove that a person did a particular act? If so, which person? What act? Or did the DPP seek to prove that a person had a particular state of mind? Again, if so, which person? What state of mind? 130 Attention to these matters at that stage may have focussed the minds of those concerned more clearly upon what was sought to be achieved. I am conscious, as I have already said, that at the time the Notice was drafted, the DPP had to operate on the basis of the assumption that everything was in issue and had to be proved by admissible evidence. However, even at that point, it would have been helpful to have isolated "the person" whose conduct or state of mind was the subject of the proposed evidence, and the conduct or state of mind sought to be proved by the evidence. 131 A properly drafted s98 Notice involves the identification of four matters. These are:

• the two or more related "events" the subject of the proposed evidence;
• the person whose conduct or state of mind is the subject of the proposed evidence;
• whether the evidence is to be tendered to prove that a person did a particular act, and, if so, what that "act" is;
• whether the evidence is to be tendered to establish that that person had a particular state of mind, and, if so, what that "state of mind" is.

The s98 Notice served upon the appellant did not identify any of these matters. Its opening words were drawn directly from s98, but did nothing to elucidate the purpose sought to be achieved by the DPP in the tender of the evidence. This court is now required to attempt to divine what was intended. In my opinion, properly characterised, the "related events" were:

(i) that on 14 May 2003 there was consigned to the appellant (or to a company controlled by her) a large quantity of crystal methylamphetamine, of a particular purity, packaged in cardboard boxes; and (ii) that on 14 May 2003 there was, in a wardrobe in the appellant's bedroom, a large quantity of crystal methylamphetamine, of similar purity, packaged in similar cardboard boxes. 132 The person whose conduct or state of mind was in question was, plainly, the appellant. 133 What is not clear is whether the evidence was, at the time the Notice was served, intended to prove the appellant's conduct, or the appellant's state of mind, or both. Since, as I have said, at that time the DPP had to act on the assumption that everything, including the nature of the substance, and its presence in the two different premises under the control of the appellant, as well as the appellant's knowledge, was in issue, it is probable that the evidence was then intended to establish both the appellant's conduct and her state of mind. As I have previously observed, at the time the Notice was drafted, it was legitimate and necessary for the DPP to seek to establish both conduct on the part of the appellant (that is, possession of a substance) and knowledge of what the substance was. This the DPP sought to do, in part by establishing the improbability of the coincidental presence, on two occasions, close in time, in premises under the control of the appellant, of large quantities of similar purity crystal methylamphetamine, without her knowledge. By the date fixed for the trial, the DPP had been made aware that the appellant did not contest any of the prosecution case other than her knowledge. That is clear from remarks made by senior counsel who appeared for the DPP at the time of the separate trials argument. 134 By the time the ruling was made, and the directions given, while it remained necessary for the DPP to establish the identity of the substance, and its presence in the appellant's premises, it was unnecessary for it to do that by the tender of coincidence evidence. The direct evidence of the various witnesses was not to be challenged, and was more than adequate for that purpose. What the DPP then sought to establish by the use of coincidence reasoning, was the coincidental presence of the narcotic, in two premises controlled by her, without her knowledge. 135 The time has come to analyse, with precision, what the issues really were. One thing which ought to be observed at the outset is this. I have already made this point, but it is worth restating. The evidence under consideration was not coincidence evidence strictly so called. That is because "coincidence evidence" is defined in the Dictionary to the Evidence Act as evidence that a party seeks to have adduced for the purpose of establishing that, because of the improbability of two or more related events occurring coincidentally, a person did a particular act or had a particular state of mind. The evidence that was, in this case, referred to as coincidence evidence was, in reality, evidence tendered by the DPP to support one charge or the other. All of the evidence was admissible in respect of the charge to which it related. It was tendered for that purpose, and not for the purposes of s98. What the DPP sought to do was to expand the use that might be made of the evidence relevant to one count in order to strengthen its case on the other count. But that was a secondary purpose, and not the primary purpose, for which the evidence was tendered. Had the DPP not sought to rely on the evidence on each count as relevant to the other, s95 would have precluded the use of the evidence on one count to establish, by rebutting the coincidental occurrence of the two events, the appellant's guilt on the other count. 136 There was, therefore, in the joint trial of the two charges, no question that each item of evidence was admissible. This was the approach taken by the High Court in the special leave application in Ellis v The Queen [2004] HCA Trans 488. The High Court, after extensive argument, there rescinded a grant of special leave to appeal from the decision of this court (R v Ellis [2003] NSWCCA 319; 58 NSWLR 700). 137 Once the decision had been made to proceed with a joint trial of the two counts, two courses remained open to counsel for the appellant. One was to seek some limitation, pursuant to s136 of the Evidence Act, upon the use that the jury might make of the evidence by, for example, restricting it to the determination of one or other of the counts; the other (which is, perhaps, only a variant of the first) was to seek an express direction against the use of coincidence reasoning, invoking s95. The appellant's real complaint is that no such limitation was imposed, or direction given, and that the jury was permitted to engage in what I have earlier termed "coincidence reasoning". That no such limitation was imposed or direction given is hardly surprising. Neither was requested. Also, the ruling of 5 April foreclosed the issue. The effect of that ruling was that the evidence tendered to support each count was admissible, as coincidence evidence, on the other count. That negated the effect of s95, and excluded the possibility of any limitation under s136. I will return shortly to deal with the directions that were in fact given. 138 No attention was paid to the shift in the ground that occurred by the time the coincidence evidence issue was determined. By that time the appellant's acceptance of virtually all of the prosecution case except the issue of knowledge was clear and on the record. The appellant was committed to her acceptance of the prosecution case on all but the single outstanding issue, of her knowledge. It was therefore not necessary for the DPP to rebut the coincidental or accidental occurrence of the circumstances that the narcotic was contained in premises (in each case) under the control of the appellant, or the other matters of similarity in purity, packaging and so on. All it needed to do was rebut its coincidental presence in the premises without her knowledge. 139 In Fletcher (at [32] - [35]) I analysed the processes by which the tender of tendency evidence under s97 of the Evidence Act is to be determined. The analysis is no different in the case of evidence tendered under s98. The principles are these: -

(i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value;

(ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act );

(iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury;

(iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete;

(v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly , to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s98 mandates that the evidence is not to be admitted. 140 In the case of coincidence evidence, an anterior step is required by subs(2) of s98. It is necessary to determine whether the two or more events the subject of the tendered evidence are substantially and relevantly similar and whether the circumstances in which they (are alleged to have) occurred are substantially similar. Since admission of the proposed evidence depends upon the existence of relevant similarities, it is obvious that this assessment is to be made by the judge and not left to the tribunal of fact. 141 I repeat that the exercise is essentially evaluative and predictive. The assessment is one, in many cases, on which reasonable minds may differ. Each determination may be reviewed at appellate level only in accordance with the principles stated in House. 142 The first question which must be asked and answered is therefore: what are the two or more events upon which the DPP sought to rely as "related events"? I have set out above my attempt to identify the related events. The DPP's perception of those "events" (which might more accurately be described as "facts or circumstances") is set out in the s98 Notice. Those facts and circumstance were capable of giving rise to an inference that the appellant had attempted to possess the narcotics in the container; and had, in fact, possessed the narcotics in her wardrobe. These were the ultimate "events" on which the DPP sought to rely to establish the appellant's knowledge of the identity of the substance. The preliminary question, therefore, for his Honour, was whether those events were "substantially and relevantly similar", and whether the circumstances in which they occurred were "substantially similar". His Honour did, in his judgment, address these questions. He said this: "The improbability of drugs of exactly the same type being found in three separate premises, some of them, or for the most part in packages that are identical and make it clear that they were imported from China and those premises being premises which the accused had access to in respect of two of them and which Mr Tu had access to in respect of two of them make it glaringly improbable, I would have thought, that this could be regarded as purely coincidental." 143 A little later, he said: "I do not think this alleged similarity (sic ?dissimilarity) really does much to dissuade me about the striking improbability of the coincidences of the other matters, and indeed that matter being purely coincidental. What is improbable, it seems to me, is not just to do with the percentage of drugs but the fact that the same drug is found in three locations and that each of the persons who have had access to sources of such drugs have also in their premises had precisely those same drugs."

(The "dissimilarity" to which his Honour referred was the lower purity level of a small portion of the drug found in one location.) 144 Thus, his Honour did, properly, consider the question posed by subs(2). The conclusion he reached was plainly open to him and was correct. What he did not do was explicitly to embark upon a consideration of the remaining questions which I have proposed. He did not expressly consider whether the evidence was capable of rationally affecting the probability of the existence of a fact in issue (the only fact in issue, in each case, here, being whether the appellant knew of the identity of the substance concerned); and he did not embark upon the evaluative and predictive exercise of assessing the likelihood that the jury would assign significant probative value to the evidence. However, in my opinion, he did do so implicitly. He expressly referred to the provisions of s98 and s101(2). 145 Bearing in mind that reasons such as these are given under considerable pressure, during the course of a criminal trial, with a jury waiting, and without the luxury of time for reflection and refinement of expression, it seems to me that, although the steps in the process may have been, to an extent, concertinaed, the reasons suggest that the correct questions were addressed. In effect, his Honour held that the two events did have the relevant similarities; that the circumstances in which they occurred were substantially similar; that, in each case, on each count, the evidence that established the other was capable of having significant probative value; and that it was likely that the jury would assign significant probative value to the evidence. That being so, the evidence supporting each count was admissible in respect of the other count in order to prove that, because of the improbability of the events (that is, the presence of the drugs in two premises controlled by the appellant without her knowledge) occurring coincidentally, the appellant attempted to, in the one case, and did in fact in the other, possess the substance in question. 146 Given the narrowness of the issues that the jury had, in the end, to decide, it may be that, to some extent at least, the DPP's reliance upon coincidence evidence was superfluous. Much of what is contained in the s98 Notice is apt to establish ingredients of the offences that were no longer the subject of dispute - for example, that the appellant had in her possession (in the ordinary sense in which the word is understood, without the added layer of knowledge) the narcotics, or the substitute substance, the similar purity of the drug in each case, and the nature of the packaging. Had the appellant's actual possession of the boxes been in issue, or had the identity of the substance been in issue, this evidence would have added strength to the prosecution case. But, in my opinion, no harm was done in admitting evidence that did no more than reinforce the prosecution case or prove facts and circumstances that were not disputed. 147 It will be observed that, in the third paragraph of the coincidence evidence directions extracted above, his Honour correctly formulated the true issue for the jury's determination. What he did not do, either in the written directions, or his oral directions, was to identify any coincidence evidence that would assist the jury in the determination of that issue. That is probably because the evidence tendered as coincidence evidence was, at most, peripheral to that issue. In particular, the oral direction in the following terms: "If, however, the circumstances in count 1 are so strikingly similar in the respects to which I have mentioned to the circumstances in count 2, as to lead inevitably to the conclusion that the accused had possession of narcotics, then you are entitled to convict her of both offences."

did little to assist the jury to focus clearly upon their task, which was very limited. By the time of the summing up the appellant had, in effect, conceded everything in the prosecution case other than that she knew the identity of the substance concerned in each count. It was therefore not to the point to refer to striking similarity between the circumstances referable to the two counts; and it was confusing to make the reference to a conclusion that the appellant had possession of the narcotics. It was unhelpful to say, as the judge did: "Now if you find it glaringly improbable that just by coincidence there could be those drugs, in those packages, in those places and in those quantities, then you are entitled to use the evidence, all that evidence, in considering the case against her on both counts."

There was no question that the drugs were present in the two places by coincidence: the evidence of the presence of the drugs in relation to one count did not rebut any possible coincidental occurrence of the presence of the drugs in the other. 148 The evidence may have done little to enhance the prosecution case in respect of the single disputed issue, the appellant's knowledge. The jury had to evaluate her evidence, that she had, in effect, been duped by Mr Tu, and that this had occurred on two occasions. The jury's assessment of her evidence would not, in the circumstance, significantly have been affected by her claim to have been duped not once but twice. Her explanation was equally plausible whether it related to one or two occasions. It may have been otherwise had her claim been that the trickery had been perpetrated on two different occasions by two different individuals. In that case evidence of trickery having been perpetrated by one individual on one occasion may well have cast light upon the improbability of similar trickery having been perpetrated on the other occasion by another individual. The appellant's evidence of what had happened went some way towards mitigating the effect of the coincidence evidence. The jury had to evaluate the appellant's explanation of the presence of the drugs. If they accepted, as reasonably possible, that she had been exploited (unknowingly) by Mr Tu on one occasion, they may have accepted that she had been exploited (unknowingly) by him on two occasions. The difficulty for the appellant is that they plainly did not accept her account as a reasonably possible explanation for the presence of the drugs. When regard is had to the other evidence in the case, this is hardly surprising. The appellant had spent several hours in the storage unit with Mr Tu, during which time the packages containing the drugs had been isolated from the others. When arrested, she was in possession of the substance that had been substituted for the drug, and scales bearing traces of the methylamphetamine. Six kilograms of the drug were found in her house, in a wardrobe in her bedroom. The jury may well have regarded her account as implausible, given the 107 kilograms of the drug found in Mr Tu's possession. Most tellingly, perhaps, on her own account, the March shipment was consigned from China before she had met Mr Tu. 149 That the jury did not accept the appellant's account is not a consequence of the joint trial of the two charges, or of the authorised use of coincidence reasoning. 150 It is to be observed that at no time was any attention directed to whether the evidence was, or was in addition to being capable of being coincidence evidence, tendency evidence, admissible within s97 of the Evidence Act. Certainly, at face value, the evidence had some at least of the hallmarks of tendency evidence, and may have been admissible on that basis. But as it was never tendered on that basis, and no argument was addressed to that question, it is inappropriate to embark on any consideration of it in that way. 151 In the end, the issue for the jury was a very simple one. It was whether the DPP had eliminated the reasonable possibility that the drugs came to be in the appellant's premises as she contended, and without her knowledge. Despite some superfluity in the evidence and the directions, the jury could not have been under any misapprehension about the issue they had to decide. For these reasons, and notwithstanding some misgivings about the manner in which the jury were directed, I would reject these grounds of appeal. The infelicities have not given rise to any miscarriage of justice. I would reject these grounds of appeal. 152 It therefore becomes necessary to deal with the remaining grounds of appeal.

Grounds 8 and 9: joint criminal enterprise 153 On behalf of the appellant it was contended that the jury ought to have been given directions, in accordance with McAuliffe v The Queen [1995] HCA 37; 183 CLR 108, on the principles of joint criminal enterprise, and that the "acts or declarations" of Mr Tu which could be taken into account in the case against the appellant ought to have been identified. 154 The short answer to this submission is that, once the trials were separated, the Crown did not present a case based on joint criminal enterprise, and did not tender any "acts or declarations" of Mr Tu against the appellant. I would reject these grounds.

Grounds 10 and 11: circumstantial evidence 155 I have already noted that I found the reliance upon circumstantial evidence a little puzzling. The Crown case was that drugs were found in two premises owned or controlled by the appellant. She had some of the substitute material in her custody on arrest. That is not what I would ordinarily characterise as a circumstantial case. It is true that the appellant's knowledge, the critical issue, in the absence of admissions by her, had to be proved by inference. It was contended that traditional directions concerning circumstantial evidence ought to have been given. In my opinion, this was not such a case. The jury were properly directed about the onus of proof, and about the single issue for determination. The substance of the directions was to that effect. I would reject these grounds of appeal.

Grounds 12 and 13: onus and standard of proof 156 In written submissions filed on behalf of the appellant the following submission was made: "58. His Honour gave some general directions about the standard of proof, and then he went on to say: 'Now what have you got to be satisfied about? Well, you have got to be satisfied about (sic) if you come to the conclusion that the accused is guilty. You have to be satisfied the Crown has proved all the necessary elements of the case.' ... And a little later ... he stated: 'What are the necessary things the Crown have to prove before they can get a conviction?' 59. This is about as close as His Honour came to directing the jury that the onus of proof was on and remained on the Crown ..." 157 The "general directions" contained this: " ... And it is quite correct that you do not convict someone because you have a grave suspicion that there is something wrong or she must have been up to something; I think she was definitely up to something. That is not good enough. You must be satisfied beyond reasonable doubt before you can convict. It's the highest form of proof in our system and all twelve of you have to be satisfied."

His Honour dealt extensively with the matters it was necessary for the Crown to prove. 158 Further, at the commencement of the trial, when he made his opening remarks, his Honour said: "This is a criminal trial and in a criminal trial the Crown must prove its case in each of these two counts, these two charges alleged against the accused, beyond reasonable doubt. You have probably heard that phrase many times ... So you must be satisfied beyond reasonable doubt before you can convict." 159 There were also written directions which opened with the onus and standard of proof in conventional terms. I would reject this ground of appeal.

Ground 14: the mental component of the element of possession 160 A direction was given during the course of the summing up to the jury in the following terms: "And lastly, they have to prove, again beyond reasonable doubt that she knew of the existence of the drugs in the bag and the packages in her flat or she knew, it was likely that she knew, these drugs existed in them."

("Them" was a reference to the bags in the wardrobe containing drugs.) 161 The issue that was taken about this direction was the use of the words "it was likely that she knew ...". It was submitted that this undermined the criminal standard of proof. 162 Reliance was placed upon the decisions of the High Court in Saad v The Queen [1987 ] HCA 14; 61 ALJR 243, Kural v The Queen [1987] HCA 16; 162 CLR 502, and Pereira v The Director of Public Prosecutions [1988] HCA 57; 63 ALJR 1 in support of this proposition. None of these cases assists the appellant. In Saad, Mason CJ, Deane and Dawson JJ said: "In a case such as the present where it is necessary to show an intention on the part of an accused to have in his possession a narcotic drug, that intent is established if the accused knew or was aware that an article which was intentionally in his possession comprised or contained a narcotic drug. That is not to say that actual knowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary inherent belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention. So also would proof of the possession of the forbidden drug in circumstances where it was beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and he nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proven beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time, of the alleged commission of the offence, or the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug. " (emphasis added) 163 In Pereira, the Court said: "Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge: ... It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. ... Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. ..." 164 In Kural, Mason CJ, Deane and Dawson JJ said: "Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. .... Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. ..."

Subsequently, after referring to the earlier decision of the court in He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523, their Honours said: "It was not necessary that the applicant actually knew that there was some unidentified substance in the samovar; the requisite intent may rest upon something less than actual knowledge, such as awareness of the likelihood of its presence. ..." 165 I am conscious that there is a distinction between proving (beyond reasonable doubt) knowledge of the likelihood of the identity of the substance in question, and the reference in the direction of which complaint is made of the likelihood of knowledge. However, that phrase appeared in a sentence which itself contained a direction that the Crown had to prove beyond reasonable doubt that the appellant knew of the existence of the drugs in the bag and the packages in her flat. I do not think, in the circumstances, that that reference undermined the repeated directions concerning the standard of proof. 166 Anticipating such a response, senior counsel relied upon a passage in the decision of the High Court in Bartho v The Queen (1978) ALR 418; 52 ALJR 520, in the following terms: "A judge may in the course of his summing up give directions which, if they stood alone, would be correct and sufficient, but it may nevertheless be concluded that there has been a misdirection when the summing up is viewed as a whole, because other passages might be understood by the jury as explaining or qualifying those passages which were correct in such a way as to weaken the force or distort or obscure the meaning of the latter." 167 I am quite satisfied that the oblique reference to "it was likely that she knew" did nothing to obliterate the otherwise correct directions that had been given. 168 The complaint cannot be sustained. I would reject this ground of appeal.

ground 15 169 Ground 15 asserts an aggregation of errors, but none other than those with which I have already dealt. Since I do not accept that any of the errors for which the appellant contends have been made out, ground 15 also ought to be rejected.

Application for leave to appeal against sentence 170 The maximum penalty prescribed in relation to each offence of which the appellant was convicted is imprisonment for 25 years. In respect of count 1 the appellant was sentenced to imprisonment for 20 years, and on the second to imprisonment for 16 years, each sentence to commence on 14 May 2003. An overall non-parole period of 13 years and four months was specified. 171 At a separate trial before the same judge, Mr Tu was convicted on count 1, and on a further count of possessing prohibited imports, this being the large quantity of the drug found at his apartment. He was sentenced on the same day and in the same proceeding as the appellant. On each count he was sentenced to imprisonment for 25 years, also commencing on 14 May 2003. This was the maximum sentence available, although his Honour rejected a prosecution submission that the sentence ought to be at least partially cumulative which would have resulted in a total sentence in excess of 25 years. An overall non-parole period of 16 years and 7.5 months was specified. 172 There was evidence before the sentencing judge, which he appears to have accepted, that the street value of the drugs the subject of the first offence was in excess of $100 million, and the wholesale value between $25 million and $40 million. 173 The appellant gave evidence on the sentencing proceedings. Also provided to the sentencing judge was a psychological report dated 10 August 2004. From this the following emerges. The appellant was born in Shanghai on 15 June 1956. At the time of the offences she was a few weeks short of 47 years of age. She is the youngest of a family of five, her older siblings being brothers. The family was poor, but there appear to have been no major problems and her childhood was happy. She married at the age of 25 but this marriage ended in divorce only a few years later. She has one son as a result of the marriage. She migrated to Australia in 1990 and undertook a variety of forms of employment while she learned English. She developed an addiction to gambling. 174 Her son also migrated to Australia and visits her regularly. Her mother died in 1985. Her father, now aged 84, is alive and living in Shanghai. 175 The psychologist formed the view that she is now "very regretful" about her involvement in the offences and is ashamed and embarrassed. He formed the view that she would not again commit a crime of this nature. 176 There were some interesting aspects of the report, and of the appellant's evidence on the sentencing procedure. The psychologist quoted the appellant (not verbatim) as explaining her pleas of not guilty as follows: "I should say I helped because I helped him, I was involved in the crime but I cannot admit (to the) crime. I had no idea of the quantity. Though I helped him, I had no intention to commit the crime because I had no knowledge of the drugs. I did not plan the whole thing. I helped him to import the sample, but I did not know of this quantity of drugs. My role is totally different, therefore I cannot plead guilty." 177 The appellant was cross-examined about this, and other passages in the report. She appears to have accepted, in general, that she was accurately recorded by the psychologist, and that she had been truthful with him. 178 At one point in her evidence on the sentencing proceedings she said: "At the first instance I didn't plead guilty because I didn't know there were so many drugs involved. I got to know about it only the day - the next day on television." 179 This was a reference to her having seen a news report of her arrest.

The remarks on sentence 180 The sentencing judge formed an unfavourable view of the appellant's veracity. He had little before him on which to base any conclusions about the extent of her involvement in whatever organisation lay behind the importations. He, however, held that it was obvious that neither she nor Mr Tu could properly be regarded as the principal in the organisation; nevertheless both were actively involved in ensuring that they obtained possession of the drugs. The sentencing judge also took the view that the appellant's foodstuff importing business was no more than a screen for the importation of drugs. 181 He assessed the appellant's culpability, relative to that of Mr Tu, as being "less, although not markedly so ...". The judge had heard all of the evidence in both trials, which put him in a strong position to make such an assessment. Nevertheless, given that it was the appellant's company that was the vehicle for the importations, and the drugs were stored at her premises, the finding may have been a generous one. 182 The first complaint on the application for leave to appeal against the sentence concerns the asserted lack of parity with the sentence imposed on Mr Tu. It was argued that the evidence indicated that Mr Tu had a more important role, and that this was accepted by the sentencing judge; that the possession charge which he faced involved a significantly larger quantity of drugs (107 kilograms, compared with the 6.13 kilograms found in the appellant's apartment); that Mr Tu had a prior criminal record, which the appellant did not; and that the appellant suffered from a pathological gambling problem which contributed to her offending. 183 The difficulty with the submission made on behalf of the appellant is that Mr Tu was in fact sentenced to a significantly longer term of imprisonment than she was - his head sentence in relation to the attempted possession charge was 25% longer than that imposed upon her; his non-parole period was more than 20% longer than that imposed upon her. In my opinion, this adequately reflects such distinctions as exist between the two. I would reject the parity ground of the application for leave to appeal against sentence. On the second count, her head sentence was significantly less, reflecting the quantity of drugs involved. 184 It was also argued that the sentence imposed was "unduly severe" and that error was demonstrated by his Honour having declined to find special circumstances or reasons for reducing the non-parole period below the conventional two thirds commonly imposed in relation to Federal offences. It was argued that the fact that this was the appellant's first criminal conviction, that it was her first time in custody, that she had a son living alone in Australia, that her family, including her husband, lived in China, that she had strong prospects of rehabilitation and not re-offending, and a good work history, all pointed to a reduction in the proportion between the non-parole period and the head sentence. 185 These, in my opinion, are facts of little weight in a case as serious as this. The appellant was involved in the possession, or the attempted possession, of a vast quantity of an illegal drug. It was fitting that she be severely sentenced. I would grant leave to appeal against the sentences imposed but dismiss the appeal. 186 The orders I propose are:

3. appeals against sentences dismissed. 187 BUDDIN J: I agree with Simpson J. **********

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.