R v El-Kheir

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0616 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 060301/04

TOBIAS JA HOEBEN J SMART A-J

Monday 20 December 2004 REGINA v ASSAAD EL-KHEIR Judgment 1 TOBIAS JA: On 3 September 2003, the appellant was indicted to stand trial before his Honour Judge Patten and a jury in respect of the following charge: "That on 22 November 2001 at Sydney, New South Wales, without reasonable excuse, he did attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin, which had been imported into Australia in contravention of the said Act." 2 The trial concluded on 17 September 2003 with the jury returning a verdict of guilty. On 14 November 2003 his Honour sentenced the appellant to imprisonment for 7 years and 8 months with a non-parole period of 4 years and 8 months, taking into account a period of 4 months in pre-trial custody. The appellant appeals to this Court against his conviction only.

The Crown case 3 On 15 November 2001, a package was consigned at the office of DHL Worldwide Express (DHL) in Istanbul, Turkey for carriage to Australia. The package was addressed to Salaam Joumaa at 200 Noble Avenue, Greenacre, New South Wales. The contents of the package were described as "car part". 4 The package arrived in Sydney on 17 November 2001 and was placed in the bond store operated by DHL. On 18 November 2001, officers of the Australian Customs Service (ACS) attended the bond store, opened the package and located three cardboard boxes inside. Each box was marked "Volvo" and contained what appeared to be an engine flywheel. The ACS officers x-rayed the flywheels and detected therein a concealed quantity of heroin. The ACS then provided the flywheels to the Australian Federal Police. 5 On 19 November 2001, Federal Agents examined the flywheels and found that each contained three separate cavities containing heroin. One of the flywheels was left intact and used as a model from which the police created three replica flywheels for use in a controlled delivery of the package to the nominated address at Greenacre. They placed a listening device and a controlled delivery sample of 20 grams of the imported heroin into one of the replica flywheels. The replicas were painted a red/brown colour and coated with grease. The grease caused the paint to breakdown and to adhere to the hands and clothing of persons who came into contact with it. The three replica flywheels were then placed into the "Volvo" boxes and rewrapped in the original packaging. 6 On 22 November 2001, police conducted a controlled delivery of the restructured package. At 12.55 pm on that day a Federal Agent posing as a DHL courier delivered the package to 200 Noble Avenue, Greenacre. At the time of the delivery there were five people at the premises, namely, the addressee Salaam Joumaa, Adam Kheir (who is a cousin of the appellant), Melanie Gibson (who is Adam Kheir's wife) and their two children. 7 The listening device transmitted the sounds of activity and conversation during the course of the afternoon. A Federal Agent and an Arabic interpreter, Dr Muhammad Gamal, monitored those transmissions. 8 The listening device transmitted intermittent sounds of knocking, scraping, and hammering between 1.19pm and 2.08pm. At 2.17pm, Adam Kheir and his wife, Melanie Gibson, departed from the premises and returned 24 minutes later at 2.41pm. 9 At 2.42pm the appellant arrived by car at the premises and entered the house through the front doorway. At 2.49pm he exited the house through the front doorway, walked down the driveway on the right-hand side of the house and entered the backyard. 10 Between 2.50pm and 3.12pm the listening device transmitted the sound of hammering consistent with the flywheels being broken apart. The sound of hammering was louder and more consistent than during period before the arrival of the appellant. By 3.02pm the sound of hammering was constant. The listening device also transmitted the sound of a power tool consistent with the use of an angle-grinder later found at the premises. Between 2.50pm and 3.12pm the device also transmitted conversations between two adult males conducted mainly in Arabic concerning the package, the flywheels and their anticipated contents. During that period, the appellant and Adam Kheir were the only adult males at the premises. 11 Dr Gamal translated the conversations between the two adult males into English and prepared a transcript referring to the males as M1 and M2. He identified Adam Kheir as M1 and the appellant as M2. 12 At 3.12pm a third adult male, Alan Kheir, who is the father of Adam Kheir and the uncle of the appellant, arrived at the premises and entered through the front doorway. The listening device continued to transmit the sounds of hammering and conversation between, so it was alleged, the appellant and Adam Kheir regarding the flywheels and their contents, until 3.16pm when transmission ceased. The device did not transmit any words spoken by Alan Kheir. 13 At 3.25pm Federal Agents attended the premises and executed a search warrant. It is to be noted that the appellant was not named in that warrant although Adam Kheir was. When police entered the backyard, the appellant and Adam Kheir were standing on the back steps to the house. Two of the replica flywheels had been broken apart by that time and pieces of them were scattered across the back steps. Lying amongst the broken pieces were a hammer and chisel. The controlled delivery sample of heroin had been removed from one of the replica flywheels and was on the floor, just inside the back doorway to the house. 14 The Federal Agents observed that the appellant's hands were greasy and bore red/brown residue that was consistent with the paint that had been applied to the replica flywheels. Furthermore, the shirt and jeans worn by him also bore red/brown residue and grease marks. The red/brown coloured marks appeared in a "cog-pattern" that was consistent with the dimensions and colour of the teeth on the circumferences of the replica flywheels. Those marks appeared on the front of the appellant's shirt and on the front, inner thigh and back of his jeans. The grease marks were consistent with the grease that had been applied to the replica flywheels having attracted foreign matter. 15 The third flywheel was located on a table in the sunroom of the premises. Next to the table were a number of tools including pliers, a screwdriver and an angle-grinder that was plugged into the power point in the wall. 16 The three "Volvo" boxes that had contained the replica flywheels were found in a bin at the front of the house. The police observed Salaam Joumaa placing them there at 3.11pm. 17 The Crown alleged that the appellant jointly possessed the replica flywheels with Adam Kheir between 2.50pm, when the appellant walked down the driveway and entered the backyard, and 3.25pm when Federal Agents entered the backyard and observed the appellant and Adam Kheir standing on the back steps amidst the broken pieces of replica flywheel, tools and the controlled delivery sample. 18 The Crown relied upon a combination of the following circumstances to establish that the appellant had participated in opening the replica flywheels and that he knew or believed them to contain narcotic goods: (a) The attendance by the appellant at the address to which the package had been consigned at 2.42pm being 1 hour 47 minutes after delivery of the package, and 1 minute after the return of Adam Kheir to the premises; (b) The attendance by the appellant at the delivery address approximately 30 minutes before the anticipated arrival of his uncle, Alan Kheir, at that address, it being the appellant's case that earlier on the day in question, he had met his uncle at Punchbowl and had been invited by him to visit the Greenacre home that afternoon (the appellant gave evidence that he had expected Alan Kheir to arrive home at about 3.00pm); (c) The presence of the appellant in the backyard of the premises between 2.50pm and 3.25pm during which period the replica flywheels were broken open; (d) The participation by the appellant in the breaking of the replica flywheels that, from their outward appearance, did not appear to contain concealed goods and did not invite opening; (e) The intercepted conversation between the appellant and Adam Kheir concerning the opening of the replica flywheels and their anticipated contents; (f) The red marks on the hands of the appellant and the red, cog-pattern marks on his jeans and shirt; (g) The continuing presence of the appellant in the back yard of the premises between 2.12pm and 3.25pm during which period the appellant could have entered the house and socialised with Alan Kheir (who had arrived at approximately 3.10pm), had that been the true purpose of his visit; and (h) The position of the appellant at 3.25pm when the Federal Agents entered the back yard, the appellant being on the back steps of the house amidst broken pieces of broken flywheels, a hammer, chisel and the controlled delivery sample of heroin.

The defence case 19 As at 22 November 2001, the appellant was employed at Flemington Markets where on that day, he had worked from 3.00am to 10.30am. As already noted, he had met with his uncle, Alan Kheir, who had invited him to visit his Greenacre home that afternoon. The appellant went home and slept in his work clothes. He awoke and invited his wife, Madeline Sassine, to join him in visiting Alan Kheir. She declined, and the appellant went alone wearing his work clothes. 20 The appellant expected Alan Kheir to arrive home at about 3.00pm. He said that he arrived at the premises prior to 3.00pm and waited in the lounge room. Adam Kheir came into the lounge room, spoke briefly with the appellant and left. The appellant heard the sound of knocking and went to the back of the house to investigate and to smoke a cigarette. He entered the sunroom and saw that Adam Kheir was smashing something with a hammer. He walked onto the back steps and asked Adam Kheir what he was doing. The latter replied that he was "breaking something". The appellant walked around the backyard smoking cigarettes. He maintained that he did not have a lengthy conversation with Adam Kheir and did not know what he was doing. He said that Adam Kheir was talking to himself and to the people who were inside the house, namely, Melanie Gibson, Salaam Joumaa and Salaam El-Kheir, the wife of Alan Kheir. The appellant said that he heard the sound of a power tool being operated inside the house but did not see who was operating it. 21 The appellant also gave evidence that he picked up parts of the smashed bits of flywheel that were in the yard out of curiosity. He said that Salaam El-Kheir instructed him to go to the garage and obtain a bag of potatoes to take home. He obtained the bag and placed it on the back steps. Alan Kheir arrived home and greeted the appellant from inside the house. The appellant indicated that he would finish his cigarette and would then join Alan Kheir inside. The appellant maintained that he did not believe that there would be narcotic goods at the house. He did not see the "Volvo" boxes, did not use a hammer or chisel to destroy the replica flywheels and did not see the controlled delivery sample of heroin on the floor just inside the backdoor. He said his clothes were dirty because of his work at the Flemington Markets and became dirtier when the Federal Agents ordered him to lie on the ground in an area near the back steps full of debris from the broken flywheels. He maintained that he had the imprints of the flywheel on his clothes as a result of being required to lie on top of the broken pieces of flywheel by the Federal Agents. 22 Alan Kheir gave evidence that on the day in question he had invited the appellant to visit at his home. He said that he returned home shortly after 3.00pm and went to kitchen where he saw the appellant standing in the backyard smoking a cigarette. The appellant signalled that he would finish his cigarette and come inside. Adam Kheir was near the backdoor at the time but, according to his evidence, he did not hear any hammering or banging at that time. However, after he had poured a glass of water and retired to the lounge room, he heard a knocking noise. 23 Some nine witnesses, relatives and friends of the appellant, were called for the defence mainly to give evidence of good character. They gave evidence that he was honest, pious and counselled against drug use.

Ground of Appeal 1 - the learned trial judge erred in the manner in which he dealt with the evidence of "bad character" of the appellant, which emerged unexpectedly during the trial. 24 It is necessary to preface this ground of appeal by reference to the course of that part of the trial concerning the appellant's good character. Evidence was adduced on behalf of the appellant that he was a person of good character. One Federal Agent was cross-examined to the effect that he did not believe that the appellant had a criminal history and another gave evidence in cross-examination that the appellant was unknown to the police at the time that they obtained the warrant to search the Greenacre premises and that he had never been charged with, or convicted of, any offence in Australia. The appellant gave sworn evidence. In his evidence-in-chief he said that he had never been investigated, charged or convicted in respect of any criminal offence in Lebanon. A certificate from the Judiciary Registrar of the Republic of Lebanon was tendered in support of that evidence. 25 Early in his evidence-in-chief the appellant said that he resided with his wife and her two children (of a previous marriage) in a two-bedroom unit in Mimosa Road, Greenacre. He agreed that he was currently in receipt of a carer's pension, as he was required to look after his wife who had had an eye operation and had failing eyesight. He produced two carer's pension cards, which were tendered by his trial counsel and admitted without objection as Exhibit 13. 26 Somewhat later in his examination-in-chief, his counsel sought access to the two pension cards. He asked the interpreter to read out the addresses on those cards, one of which was 1/816 Punchbowl Road, Punchbowl expiring in June 2004. The other had expired in June 2003 and had the address 19 Catherine Street, Punchbowl. The appellant was then asked to explain why the addresses were not listed as Mimosa Street. The appellant stated that the addresses on the cards were those of his sister. When asked why his sister's address was on the cards, he responded (AB 587): "I've lodged my application with Centrelink at my sister's address so that informs Centrelink that my wife and I are separate, so that we can, I have more money." 27 At this point trial counsel for the appellant indicated to his Honour that he had almost concluded the appellant's evidence-in-chief. There was then a short adjournment after which, in the absence of the jury, the appellant's trial counsel sought a certificate under s 128 of the Evidence Act 1995 (the Evidence Act) upon the basis that the appellant's evidence as recorded above might have disclosed what amounted to a social security offence. Counsel indicated (at AB 588) that the answer was not one for which he was prepared. His Honour then indicated to the appellant that he was entitled to object to answering questions on the basis that he had a "privilege against self-incrimination". The appellant maintained that having sworn on the Koran, he was telling the truth. His Honour then granted the appellant a certificate pursuant to s 128(6) of the Evidence Act. 28 The jury then returned and the following exchange took place between the appellant and his trial counsel (at AB 590): "Q. Sir, do you recall that I asked you a question about exhibit 13, being two cards relating to a carer's pension benefit? A. Yes. Q. Sir, if I understand your answer, you have indicated to his Honour and the jury that the address which appears on those cards is not in fact your address where you live? A. Yes. Q. If I understand your answer, it is that another address has been placed on the card or cards so as to enable you to obtain a social security benefit to which you would not otherwise be entitled? A. Yes. Q. You understand, I take it, that the answer that you gave to his Honour and the jury in response to my question may not be one in your interests? If I could just get a 'yes ' or 'no' to that? A. Yes. Q. Why did you give that answer? A. Because I did swear on the Koran to say the truth and I am saying the truth. I am not lying."

29 The following day, trial counsel for the appellant informed his Honour that he had further questions in chief to ask the appellant which, relevantly, involved the following exchange (at AB 592): "Q. Sir, you have informed the jury of your being in receipt of a benefit to which you are not entitled from the Department of Social Security, do you agree with that? A. Yes. Q. Do you consider that that was an honest thing to do? A. No. Q. What is the amount or extent of the benefit that you have received and to which you are not entitled? A. How? Q. What is the amount or extent of the benefit to which you are not entitled in terms of what is the sum of money or the amount of it? A. $45 per week. Q. And why is it that you came to be in receipt of that benefit of $45 a week to which you are not entitled, why did you do that? A. I have financial hardship. I've got to financially support the kids, they are growing and I had just difficulty to manage to make ends meet. Q. And sir, why is it that you have instructed me to raise these further matters? A. I know this thing will hurt me, but I am telling the truth. I am telling the truth." 30 I interpolate here to observe that in his evidence-in-chief the appellant said that although he knew his uncle Alan (Kheir) well as they were of similar age, and that Alan was his "mate", Adam was much younger and had "different thoughts, different ideas" as a consequence whereof he did not socialise with him. Further, he said that he went around the house to the backyard because he heard a knocking or banging noise and because he wished to have a cigarette, as he could not smoke inside the house. It was then that he noticed that Adam had a hammer and was breaking or smashing something. Having asked Adam what he was doing, the latter responded, "I'm breaking something". He said that he was waiting in the backyard for his uncle to arrive, smoking cigarettes. He had no idea what Adam was doing or why he was doing it. He noticed that Adam was talking to himself and to people inside and was swearing. He did not know who Adam was speaking to, but it was not to him. In any event, he was paying little attention. He accepted that he had picked up some broken pieces of material, which Adam had smashed, out of curiosity. 31 Having been shown his shirt and the markings on it, the appellant said that he was still wearing his work clothes which were dirty and that when the police arrived, they told him to lie on the ground which was covered in debris. He lay there for some 20 to 25 minutes. He denied smashing what he referred to as "the disks" with a hammer or chisel and said that he did not see the plastic bag containing a white powder in the back doorway of the house. He said that he did not believe or think that there were any drugs on the premises and that if he had thought that was the case, he would never have entered the premises. When he noticed his uncle at the premises, he indicated that he would finish his cigarette and come in and see him. He said that he was not the sort of person who would be involved in the trafficking or sale of heroin as he regarded it as filthy and he knew that it would hurt his children and did not like it. 32 Accordingly, the thrust of the appellant's evidence-in-chief was that his presence in the backyard was entirely innocent; that he had no idea what Adam was doing or why; that he certainly did not believe that there were narcotics contained in the disks that Adam was smashing and that he had no idea why Adam was smashing them in the first place. He had only picked up a piece of the broken disks out of curiosity and had not taken any part in the breaking or smashing of them. His explanation for the marks on his clothing was that he had been required to lie down in the debris by the police and the pieces may have marked his clothing as a consequence: in any event, he was in his work clothes which were already dirty. 33 Following an extensive cross-examination of the appellant by the Crown Prosecutor, the latter indicated (at AB 629) to his Honour (in the absence of the jury) that he intended to cross-examine the appellant on what I will refer to as the pension card issue. A question then arose as to whether the leave of the Court was required pursuant to s 112 of the Evidence Act, which is in the following terms: "A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave." 34 His Honour acceded to the Crown Prosecutor's submission that s 112 had no application to the present case. In this respect, the Crown Prosecutor informed his Honour that he wished to cross-examine the appellant in relation to the lie that he had told to Centrelink, to the effect that he was separated from his wife and his general preparedness to lie including with respect to the matters in issue which he had, in his evidence-in-chief, denied. 35 Thereafter the Crown Prosecutor continued his general cross-examination of the appellant, which included questions suggesting that he was not telling the truth. He then turned to the question of the carer's pension cards (Exhibit 13) indicating that he proposed asking the appellant questions in relation to them. 36 The following exchange then took place in the presence of the jury between the trial judge, the Crown Prosecutor and trial counsel for the appellant (at AB 652-653): "His Honour: This might raise the questions that I have to deal with in the absence of the jury yesterday Mr Crown? Crown: Yes your Honour. Webb: Perhaps a brief adjournment might be of some assistance. His Honour: I don't know that a brief adjournment is necessary. His Honour Q: I take it what you are doing is claiming privilege in relation to the answers to those questions, is that so? [Accused] A. Yes, regarding - I spoke the truth yesterday regarding the pension issue. But now I don't wish to discuss it any more or talk about it. His Honour: Very well. You are not obliged to answer the questions if the answers may incriminate you. Webb: Your Honour, I have a brief application which I wish to raise, if I may, in the absence of the jury. His Honour: Very well. I have to ask you to withdraw for a moment ladies and gentlemen." 37 After a short adjournment at the request of trial counsel for the appellant, the trial judge was informed that the appellant was prepared to answer questions relating to the pension card issue which had arisen in his examination-in-chief. Thereafter the Crown Prosecutor proceeded to cross-examine the appellant with respect to this matter and which extended effectively over four pages of transcript (AB 656-661). The thrust of that cross-examination was to establish that the appellant had: lied to Centrelink; had not expected to be questioned about the addresses on the cards; lied to Centrelink because it suited him; lied in his evidence-in-chief when he denied involvement with the flywheels as this suited him; lied as to how he got the red marks on his jeans and that he had in fact broken open the flywheels in order to obtain the drugs that he thought were inside them. The appellant denied that he had lied in respect of any of the factual matters the subject of his evidence-in-chief and, when asked whether he had given evidence honestly in the trial, responded (at AB 659): "I swore on the Holy Koran and I put my hand on the Koran and every word I have uttered in this Court is the truth." 38 Finally, of the nine character witnesses called on behalf of the appellant, three of them were cross-examined with respect to the pension card issue. The first was Madeline Sissine, the appellant's wife who, having given evidence as to the appellant's good character, said that knowledge of the fact that he had falsely advised Centrelink that he was separated from her in order to obtain a carer's pension at a higher rate, did not affect her assessment of his character. The second was Majed Kheir, a solicitor, and a friend and relative of the appellant. In his evidence-in-chief he agreed that the appellant was a person who would take an oath on the Koran very seriously as he was a "pilgrim" and that it was his belief that the appellant would not tell lies having sworn on the Koran. It was put to him in chief that he was aware of the issue relating to the appellant obtaining social security benefits to which he was not entitled but he indicated that his knowledge of that fact did not change his view as to the appellant's honesty. Under cross-examination he agreed that he would consider it dishonest for a person to lie to Centrelink in order to falsely obtain a benefit. 39 The third was Bedrieh El-Kheir, the appellant's brother-in-law, who had given evidence as to the appellant's moral character and his honesty. Under cross-examination he indicated that knowledge of the appellant's dealings with Centrelink did not change his view of the appellant's character. 40 The appellant, in oral submissions, divided Ground of Appeal 1 into three sub-paragraphs as follows: (a) The trial judge erred in determining that the Crown did not require leave to cross-examine the appellant about his evidence of having lied to Centrelink; (b) The cross-examination of the accused and three of his character witnesses about that issue caused a miscarriage of justice; (c) The trial judge failed to direct the jury about the use they might make of that evidence.

I shall deal with each of these matters seriatim, referring to them as Ground of Appeal 1(a), (b) and (c).

Ground of Appeal 1(a) : requirement for leave 41 The basis upon which the appellant submitted that s 112 of the Evidence Act required the Crown Prosecutor to obtain leave to cross-examine the appellant with respect to the pension card issue was that it was a matter "arising out of evidence of a kind" referred to in s 110(2) of that Act. Section 110(1) provides that certain rules do not apply to evidence adduced by a defendant to prove that he is, either generally or in a particular respect, a person of good character. There is no doubt that the appellant had, before he was cross-examined by the Crown Prosecutor on the pension card issue, adduced evidence to prove that he was (at least generally) a person of good character. 42 However, in the present case the Crown Prosecutor was intending to cross-examine the appellant with respect to his evidence-in-chief that he was, in effect, not a person of good character because he had lied to Centrelink. The appellant submitted that that was evidence of a kind referred to in Part 3.8 of the Act. This was so because of the terms of s 110(2) which, relevantly, provide as follows: "If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule … [does] not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character." 43 Section 110(3) is in similar terms to s 110(2) and relates to the adducing of evidence to prove that the defendant is not a person of good character in a particular respect. 44 The appellant submitted that, albeit accidentally, his trial counsel had adduced evidence-in-chief of his bad character when he responded to questions relating to the different addresses on his carer's pension cards. Accordingly, so it was submitted, he had adduced evidence to prove (directly or by implication) that he was not generally a person of good character. That was evidence of a kind referred to in Part 3.8 of the Evidence Act as a consequence whereof the Crown required leave before it could cross-examine with respect to it. 45 The Crown submitted that leave was not required pursuant to s 112 as Part 3.8 of the Act was directed at situations in which evidence is adduced by a defendant to prove that he or she is, either generally or in a particular respect, a person of good character. When such evidence is adduced, the defendant may not be cross-examined about matters arising out of that good character evidence unless the court grants leave. In deciding whether to grant leave, the court is required to take into account the matters referred to in s 192 of the Act. Those matters only apply if the Crown seeks to introduce evidence of bad character in response to evidence that the accused is of good character. They do not apply when evidence is adduced on behalf of the accused that he is of bad character. 46 There is no doubt that Part 3.8 of the Evidence Act is directed to the adducing of evidence by a defendant with respect to his or her good character as well as to the adducing of rebuttal evidence from the prosecution with some limitations. It is thus tolerably clear that Part 3.8 is directed towards firstly, the removal of restrictions which existed at common law upon the adducing of evidence of general or particular good character by an accused person and, secondly, requiring the prosecution to obtain the leave of the court before the accused is cross-examined with respect to that good character in order to rebut it. 47 The present case is somewhat unique in that the evidence in respect of which the Crown wished to cross-examine was not, on one view of it, the evidence adduced by the appellant of his good character but, on the contrary, of his bad character constituted by the lie that he told to Centrelink. 48 In my opinion, two issues arise for consideration. The first (which was not the subject of any submissions) is whether the evidence, which I have extracted in [28] and [29] above, was adduced to prove that the appellant was not generally a person of good character. The second is whether, it being common ground that the appellant had adduced evidence-in-chief of his good character, the proposed cross-examination by the Crown of his evidence with respect to the pension card issue was cross-examination with respect to a matter arising out of that evidence. In this respect the Crown submitted that it was not seeking by the proposed cross-examination to rebut evidence that the appellant was of good character by introducing evidence of bad character. Rather, it was seeking to cross-examine on evidence already led on behalf of the appellant that indicated his bad character. It was contended that in any event, the appellant's responses-in-chief as to why he agreed that the evidence he had given in relation to the carer's pension cards might not be in his interests, namely because he had sworn on the Koran to tell the truth and he was telling the truth, was itself evidence of good character. In other words, the appellant was utilising the admission by him of social security fraud to demonstrate his candour and truthfulness under oath and as a basis from which the jury could conclude that his evidence regarding the matter with which he was charged was also truthful. 49 As to the first issue referred to in the paragraph above, in my opinion the original evidence (which I have extracted at [26above) was not "adduced" within the meaning of s 110(2) as it was not adduced by the appellant or his trial counsel on his behalf with the intention of proving that he was a person of bad character. In Gabriel v The Queen (1997) 76 FCR 279 at 296, Higgins J referred to the decision of this Court in R v Fuller (1994) 34 NSWLR 233, where it was held that the right to adduce evidence of bad character in rebuttal of "good character" evidence was confined to situations where evidence was firstly given with the intention of establishing good character. Further, at 295, his Honour expressed the view that for evidence to be "adduced", the "conduct of the accused's case must involve a deliberate decision to give the 'gateway' evidence (whatever it be) as part of his or her case". Again, at 297 his Honour concluded that the accused could only be regarded as raising good character if it was concluded that it was being done deliberately for that purpose, not inadvertently or incidentally. 50 These expressions of Higgins J were referred to with approval by Mason P and Barr J in their joint judgment in this Court in R v Bartle (2003) 181 FLR 1 at 28-29. Although their Honours accepted that Higgins J in Gabriel had only discussed the issue of the subjective intent involved in the statutory reference to "adducing" evidence of good character, the joint judgment agreed with what his Honour had written observing that it was consistent with the approach taken by this Court in Fuller. Accordingly, for evidence of good character to be "adduced" within the meaning of s 110 of the Evidence Act, there must be proof of intent in the sense of a conscious decision to raise the issue of the accused's good character. 51 The Crown does not dispute that the evidence elicited by trial counsel for the appellant in the appellant's response, which I have extracted in [26] above, was without any conscious or deliberate decision to elicit evidence of the appellant's bad character. The transcript makes it clear that trial counsel was caught unawares by the answer he received. The problem however is that after an adjournment, two further exchanges took place in the appellant's evidence-in-chief (which I have extracted in [28] and [29] above) which clearly involved a conscious decision to elicit the responses that were obtained. No doubt this was done for justifiable forensic reasons. Having accidentally opened up the issue, it was necessary as a matter of legitimate trial tactics to present it in as good a light as possible. The questions the subject of the exchanges referred to elicited (and no doubt were intended to elicit) the response from the appellant that having been asked a question, he had sworn on the Koran to tell the truth and that was exactly what he was doing notwithstanding that the answer might be harmful to his case. Accordingly, to the extent to which those answers constituted evidence of the good character of the appellant in a particular respect in the sense that he was an honest person who would not lie having taken an oath on the Koran, it was in my opinion evidence of good character to which s 112 applied. 52 The above observations are relevant also to the second issue referred to in [48] above, namely, whether the cross-examination proposed by the Crown Prosecutor with respect to the pension card issue was in rebuttal of the appellant's evidence of his good character. In other words, the utilisation by the Crown Prosecutor of the appellant's evidence with respect to the pension card issue, although perhaps indicative of bad character, was being used for the purpose of rebutting his evidence of good character which had been adduced on his behalf in the cross-examination of some of the Crown's witnesses. 53 That proposition can be tested upon the assumption that the evidence with respect to the pension card issue had not been given by the appellant, but that the Crown Prosecutor was aware that the addresses on the two pension carer's cards were not those of the appellant and had sought to cross-examine the appellant with respect thereto. Although such cross-examination would have been relevant to the appellant's credibility, it would not have been relevant "only" to his credibility with the consequence that s 104(2) would have had no application. The appellant conceded as much on the appeal. On the other hand, such a line of cross examination would have been relevant to rebutting the appellant's evidence of good character and, in particular, that he was a person whose honesty was beyond question. 54 As the appellant had put himself forward as a person who would never tell a lie after having taken an oath on the Koran, in my opinion that constituted evidence of good character in a particular respect upon which, if the Crown wished to cross-examine him thereon, it first required leave pursuant to s 112. 55 The Crown's cross-examination was directed, inter alia, to suggest that notwithstanding that the appellant had sworn an oath on the Koran to tell the truth, he was prepared to tell lies whenever it suited him. The questions asked were in my opinion intended to adduce evidence in cross-examination of the appellant in rebuttal of his evidence that he was a person who never told lies and who, having taken an oath on the Koran, would always tell the truth. 56 For the foregoing reasons, in my opinion the trial judge erred in accepting the submission of the Crown that it was entitled to cross-examine the appellant with respect to the pension card issue without first obtaining the Court's leave pursuant to s 112 of the Evidence Act.

What is the consequence of such leave not having been granted? 57 In Stanoevski v R (2001) 202 CLR 115, the High Court held that in exercising the discretion to grant leave pursuant to s 112 to cross-examine an accused person about his or her character, the court must have regard to the matters contained in s 192(2) which, relevantly includes "(a) the extent to which to [give leave] would be likely to add unduly to … the length of the hearing; (b) the extent to which to [give leave] would be unfair to a party …

(c) the importance of the evidence in relation to which leave is sought." 58 There can be no doubt, and it is not in dispute, that in the event that the trial judge erred in failing to exercise his discretion whether or not to grant leave to the Crown Prosecutor to cross-examine pursuant to s 112 of the Act, that error constituted a "wrong decision" on a "question of law" within the meaning of s 6 of the Criminal Appeal Act 1912. Consequently, the appellant's trial was flawed and his conviction cannot stand unless the Crown can establish that the conviction has not resulted in a miscarriage of justice. 59 In Stanoevski at 129 [56], McHugh J observed that there were "[t]wo ways that are open to the prosecution to show that no miscarriage of justice occurred. First, no miscarriage of justice occurred if the trial judge could not reasonably have refused to grant the prosecution leave to cross-examine the appellant on her claim of good character. Second, no miscarriage of justice occurred if the appellant would have been convicted even if leave to cross-examine had been refused." 60 At 131 [67] Hayne J posed the test in terms of whether the cross-examination which was allowed would inevitably have been permitted had the various matters referred to in s 192 of the Evidence Act been taken into account. 61 The Crown submits that the cross-examination which did take place would inevitably have been permitted had the relevant matters referred to in s 192(2) been specifically adverted to. Given the nature of the cross-examination that took place and its relevant focus on one particular issue, I have no difficulty in concluding that the trial judge would have been acting unreasonably had he considered that the granting of leave to cross-examine would have been likely to add unduly to the length of the hearing. 62 Equally, there could be no doubt that the evidence in relation to which the Crown should have sought leave, was important as it was clear that the appellant was mounting a defence based on his good character and, in particular, that as a consequence he was an honourable and truthful person. Furthermore, trial counsel for the appellant made it clear to his Honour when calling witnesses to depose to the appellant's good character, that the primary issue for the jury depended to a large degree upon the honesty of the appellant in the giving of his evidence. Accordingly, the appellant's evidence going to his attitude to the truth, having sworn on the Koran, thus became a central plank in his defence. In these circumstances, in my opinion it would have been unreasonable for the trial judge to have regarded the evidence in respect of which leave to cross-examine was sought as being other than important. 63 The appellant nevertheless submitted that the granting of leave to cross-examine would have been unfair to him within the meaning of s 192(2)(b) as it would clearly be prejudicial to his defence which concentrated in a significant way on evidence called to establish his good character. That provision refers to the question of unfairness to "a party" which, in the present context, includes not only the appellant but also the Crown. Given the evidence which had been adduced by the appellant of his good character and, in particular, of his truthfulness having sworn on the Koran, in my opinion it would have been grossly unfair to the Crown to deny leave to cross-examine the appellant to rebut that evidence. 64 While the appellant submitted that, although it was likely that leave would have been granted, it was not inevitable, I cannot with respect agree. In my opinion the trial judge could not reasonably have refused to grant the prosecution leave to cross-examine the appellant with respect to the pension card issue in order to rebut the evidence adduced by the appellant of his good character. Accordingly, although the appellant's trial was flawed by the legally incorrect decision of the trial judge not to require the prosecution to seek leave pursuant to s 112 of the Evidence Act, in my opinion the Crown has established that the appellant's conviction has not, as a consequence of that flaw, resulted in a miscarriage of justice. 65 Before leaving this ground of appeal I should refer to a submission made by the appellant based upon the exchange between the trial judge and counsel which I have extracted in [36] above. 66 It was submitted that because this exchange took place in the presence of the jury, the informing of the appellant by his Honour that he was not obliged to answer further questions if the answer might incriminate him, was not only prejudicial but also unfair to the appellant, resulting in a mistrial. The basis of this submission is not entirely clear to me although, as I understand it, it is being suggested that because the appellant was warned in the presence of the jury, the latter would assume that the evidence which the appellant had already given with respect to the pension card issue involved him in the commission of a criminal offence. 67 I see no prejudice or unfairness in what occurred. In the first place, the jury would obviously have realised that it was an offence for the appellant to have obtained a benefit from the Department of Social Security to which he was not entitled and which he had obtained by providing false information. Secondly, immediately after the subject exchange took place, and in the absence of the jury, trial counsel (at AB 654) informed his Honour after an adjournment that his client would proceed to answer any questions relating to the pension card issue and, of course, he did so. It would therefore have been more than apparent to the jury that even though the appellant was not required to answer such questions, he had done so voluntarily. In this respect, the jury were unaware that he had received a certificate under s 128. In my opinion, therefore, there is no substance in this complaint.

Ground of Appeal 1(b) : miscarriage of justice in cross-examination 68 As I have observed in [38] and [39] above, the Crown Prosecutor cross-examined three of the appellant's character witnesses with respect to the pension card issue. Although it is now submitted that to permit that cross-examination constituted a miscarriage of justice, it is noteworthy that trial counsel for the appellant took no objection at the time to the questioning. Furthermore, leave to cross-examine those witnesses was not required as s 112 only mandates such leave with respect to the proposed cross-examination of the "defendant", in this case the appellant. Again, no application was made to the trial judge to suggest that he should have refused to admit such evidence by seeking the exercise by him of his discretion under s 135 or s 137 of the Act. This is hardly surprising given that any such application would inevitably have been refused. 69 In my opinion, there is no substance in this ground and it should be rejected.

Ground of Appeal 1(c) : absence of a jury direction 70 The complaint with respect to this ground of appeal concerns the failure of the trial judge in his summing up to direct the jury as to the use they might make of the evidence of the "lie" to the Department of Social Security and the suggestion by the Crown to the appellant that he was a person who was willing to lie when it suited him. It was submitted that it was crucial for the trial judge to have directed the jury that this evidence was admissible only as to the appellant's credit and that they could not use it to engage in propensity reasoning. That is, they could not reason that because the appellant had admitted to defrauding Social Security, this made it more likely that he had committed the offence with which he was charged. 71 His Honour's direction to the jury in his summing up with respect to the appellant's good character evidence was as follows (at AB 805-806): "The accused called evidence to establish that he is a person of good character. That evidence was to the effect that he has no prior criminal convictions and indeed has never previously been charged with a criminal offence, either here or in Lebanon where he spent his early life. You may accept that, if that evidence were not true the Crown would have led evidence to rebut it. The accused has also led other evidence to the effect that generally he is a man of good character, particularly in his family and personal relationships and that he is a man who takes his religion seriously. On the other hand it has emerged that he was dishonest in his dealings with the Department of Social Security in relation to a carer's pension for his wife. It is a matter for you to decide whether you think that in any relevant sense the accused is a man of good character . If you think that relevantly to the charge he faces he is a man of good character then you may take that into account in the following way. First of all the fact that he is a person of good character entitles you to consider the improbability of him having committed the offence alleged . In other words you are entitled to take the good character of the accused into account on the question of his guilt . Secondly, the accused has given evidence in this trial. The fact that he is a person of good character would support his credibility. This is a factor which the accused is entitled to have you take into account therefore when deciding whether or not you accept his evidence. None of this, of course, means that good character provides the accused with some kind of defence. It is only one of the many factors which you are to take into account in determining whether you are satisfied beyond reasonable doubt of the guilt of the accused. In other words of course people do commit crimes for the first time and evidence of previous good character cannot prevail against evidence of guilt which you find convincing notwithstanding the accused's previous good character." (emphasis added) 72 The portion of the above passage which I have first emphasised comprised the only reference by the trial judge to the pension card issue apart from the following passage towards the end of his summing up where he was relating to the jury the submissions of the Crown and the defence. He said (at AB 837): "Mr Webb reminded you of the extent to which the accused relies upon his good character in the ways that I have already mentioned you may use that evidence and said in effect that you would not regard as significant the evidence as to obtaining a social security benefit to which he was not entitled. Mr Webb submitted that the accused admitted what he had done to you and that you would regard him as a truthful witness." 73 His Honour had correctly instructed the jury in the portion of his summing up (the second part that is emphasised) that it was entitled to take into account the appellant's good character when considering the improbability of his having committed the alleged offence. Further, he correctly directed the jury that that evidence would support his credibility. The complaint that is made is that, having referred to the fact that he was dishonest in his dealings with the Department of Social Security in relation to the carer's pension for his wife, and that this fact may impact upon whether they considered him to be a man of good character, his Honour did not go on to instruct the jury as to what use they could make of that evidence if they accepted that it negated the evidence of the appellant's good character and established him as a person of bad character. In other words, the only direction that his Honour gave was that the jury in determining whether the appellant was a man of good character could take the pension card issue into account. That direction was then immediately followed by a direction that they were entitled to use the fact that the appellant is a person of good character (if they so found) when considering the improbability of his having committed the alleged offence. 74 By not directing the jury that if they found the appellant was a person of bad character as a consequence of his dishonest dealings with Centrelink, they could only use that evidence when considering the appellant's credibility but could not take it into account on the question of the appellant's guilt. A finding by the jury that the appellant was a person of bad character did not entitle them to consider the probability of his having committed the offence with which he was charged because of that fact. Without such a direction so it was submitted, the jury may well have taken the view that if they found the appellant to be a person of good character, they were entitled to consider the improbability of his committing the offence as charged, and that if they considered him a person of bad character, they were entitled to consider the probability of his committing that offence. 75 Reliance was placed by the appellant upon the decision of this Court in R v Hamilton (1993) 68 A Crim R 298. Hunt CJ at CL, with whom Finlay and Levine JJ agreed with respect to the relevant considerations applicable to the raising of character, commenced his judgment (at 299) by noting that under s 412 of the Crimes Act 1900 evidence of good character may demonstrate that it is unlikely that, as a person of good character, the accused would have done the act charged. As a corollary, the evidence may also support the credibility of a denial by the accused that he or she did the act or did it with the relevant specific intent and hence the unlikelihood of his or her guilt. 76 His Honour then referred to the fact that once character has been raised by the accused, the Crown becomes entitled to elicit or lead evidence of bad character to rebut the evidence of good character upon which the accused relies. That is now subject to provisions such as s 112 of the Evidence Act. 77 After noting that the admissibility of evidence of bad character is subject to the discretion of the trial judge to exclude it in circumstances now covered by provisions such as s 135, s 137 and s 192 of the Evidence Act, his Honour observed that prejudice is inevitable from the admission of such evidence although mere existence of that prejudice alone will not justify the discretionary exclusion of it. His Honour then continued (at 299-300, omitting citations): "The jury must carefully be directed that the evidence of the accused's bad disposition may be used by them only as rebutting the evidence of good character upon which the accused relies; they must not use it as showing that the accused, as person of bad disposition, was likely to have committed the crime with which he or she has been charged. But no matter how carefully the jury may be directed and no matter how conscientiously they may seek to comply with those directions, it is clear that usually such evidence of bad disposition can be damning to the accused, and that it can significantly reduce any prospect that he or she will be acquitted." 78 Reliance was also placed upon the following passage from the joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ, in Zoneff v The Queen (2000) 200 CLR 234 at 245: "23. A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: 'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.' 24. A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence." 79 The lies to which the above passages from Zoneff refer, related to lies allegedly told by the accused when cross-examined - it was not the Crown's submission that those lies were capable of stemming from a consciousness of guilt. The trial judge was apparently concerned that there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to any lies which had been elicited in cross-examination. He gave a direction which their Honours in the High Court considered inappropriate. The appropriate direction in the circumstances was that which they essayed in [23] of the judgment referred to above. 80 It seems to me that the direction to which Hunt CJ at CL referred in Hamilton, and which I have extracted in [77] above is the type of direction to which the joint judgment was referring in Zoneff with appropriate adaptations. In the present case the trial judge correctly directed the jury that the appellant's dishonest dealings with the Department of Social Security could be taken into account by them when considering whether or not the appellant was a person of good character. That was a very live issue in the trial. His Honour failed to warn the jury that it was not to follow a process of reasoning to the effect that just because the appellant had been shown to have been dishonest in his dealings with the Department of Social Security, that that was evidence that could be utilised for the purpose of determining whether he was guilty of the offence charged. That, of course, involved criminality of an entirely different nature to his dishonesty in relation to the pension card issue. 81 The failure to so warn the jury, especially, where the reference to the pension card issue was immediately followed by an instruction that it was open to the jury, if they found the appellant to be a person of good character, to take that into account on the question of his guilt, clearly gave rise to the risk of a misunderstanding by the jury as to the significance of that issue and, in particular, to the risk that they might well consider that any finding by them of bad character, could be taken into account on the question of the appellant's guilt. 82 For the foregoing reasons and in particular, given the juxtaposition by the trial judge in his summing up of his reference to the appellant's dishonest dealings with the Department of Social Security and the use to which the jury could utilise evidence of good character on the question of the appellant's guilt, it became imperative for his Honour to direct the jury that they must not use evidence of bad character, if so found, to show that the appellant was likely to have committed the offence with which he had been charged. 83 The Crown nevertheless submitted that a Hamilton-type direction was unnecessary. It relied upon the following passage from the joint judgment of Gleeson CJ and Hayne J in Dhanhoa v The Queen (2003) 199 ALR 547 where at 554 [34], their Honours said: "It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards or of the kind referred to in Zoneff , every time it is suggested in cross examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies." 84 In their joint judgment, McHugh and Gummow JJ stated the test (at 559 [60]), where an accused's out of court statement is said to be a lie but the Crown does not suggest that the accused has lied because he had a consciousness of guilt, in terms that there is no miscarriage of justice where the trial judge has failed to direct the jury as to the use they can or cannot make of the accused's lies unless the accused establishes that it is a reasonable possibility that the failure to direct the jury "may have affected the verdict". 85 The Crown points out, correctly, that no request was made by trial counsel for the appellant to the trial judge that the jury be directed against engaging in propensity reasoning with respect to any evidence of bad character that they might find. It submitted that the position with respect to evidence of bad character should be no different to that with respect to evidence of good character where it is now established that the trial judge is not obliged to direct a jury about an accused's good character, but has a discretion whether or not to do so after evaluating the probative significance of the evidence in relation to both the accused's propensity to commit the crime charged and the accused's credibility: Melbourne v The Queen (1999) 198 CLR 1 at 14 [30] per McHugh J; at 57 [157] per Hayne J. 86 I would reject the submission that the principle so articulated in Melbourne is equally applicable to evidence of bad character. As McHugh J points out in Melbourne at 16 [36], the common law has for more than a century drawn a distinction between the admissibility of evidence of good character and the admissibility of evidence of bad character in a criminal trial. As his Honour observed: "Evidence of good character is readily admitted because it is regarded as tending to prove that the accused is unlikely to have committed the crime in question. Evidence of bad character is admitted only in exceptional circumstances even where the courts regard it as tending to prove that the accused is likely to have committed the crime in question." 87 His Honour then goes on to refer to the development by the common law of strict rules for the admissibility of evidence designed to prove that, by reason of his or her character or propensities, the accused is likely to have committed the crime with which he or she is charged. This is known as propensity evidence and is the subject of specific provisions in the Evidence Act. But what is clear is that evidence of bad character cannot be used by a jury to infer guilt in the substantially less restricted way in which evidence of good character can be used by the jury for the purpose of inferring lack of guilt. 88 In my opinion, given that immediately before the trial judge had specifically directed the jury as to the use they could make of evidence of good character, he had indicated to the jury that, in effect, they could take into account the appellant's dishonest dealings with the Department of Social Security when determining whether he was a man of good character, his Honour should have appreciated that there was a real risk or danger that the jury, if they came to the view that the appellant was not a man of good character, might impermissibly apply to their conclusion that he was a person of bad character, similar reasoning to that which they had been directed they could utilise if they found good character. To adopt the expression of McHugh and Gummow JJ in Dhanhoa, there was a reasonable possibility that the failure of the trial judge to direct the jury that, if they found bad character as a consequence of the pension card issue, they could not use that evidence other than with respect to the appellant's credibility. In particular, they could not take it into account on the question of his guilt in the sense that, because he was a person of bad character, it was more probable that he committed the offence charged. 89 Finally, the Crown submitted that because the evidence relating to the pension card issue had been introduced, albeit accidentally, by the appellant and was thereafter deliberately expanded upon in his evidence-in-chief for the purpose of bolstering his credibility in denying his involvement in breaking open the flywheels to recover their contents, no miscarriage of justice resulted from the failure of the trial judge to give what was referred to as a Hamilton direction. 90 There is no doubt that trial counsel for the appellant sought to turn the issue to the appellant's advantage. In his final address he submitted to the jury that at the end of the day what was important in the trial was whether or not the appellant had been honest with the jury. The following was advanced (at AB 793): "He told you something which you might not think might not otherwise be in his interests but he told you the truth in his evidence and in respect of that matter that is something that you would take into account in my submission in his favour." 91 In the Crown Prosecutor's final address, reference was made (at AB 751) to the volume of evidence about the appellant's character. It was also put to the jury that there was evidence that the appellant provided false information to Centrelink in relation to his carer's pension and that he had lied to Centrelink. The following submission was then made: "I anticipate that the defence will indicate to you that the revelation by the accused of this lie demonstrates his truthfulness, and the Crown suggests that you would reject any such submission. The fact is members of the jury that the accused lied when it suited his purposes, and admitting to a lie does him no credit. The Crown submits to you that you would not use the fact that he lied and then admitted it to find that he is in fact a witness of the truth." 92 There is no doubt that the Crown confined its submissions to the jury with respect to the pension card issue to the contention that that evidence was highly relevant to the appellant's credibility. However, in my opinion, neither that fact nor the fact that trial counsel for the appellant sought to utilise the evidence in order to bolster the appellant's credibility detracts from the risk that the jury unless instructed otherwise may have impersonally considered that they could use any finding by them that the accused was not a person of good character, to reason that it would make it more likely that he had committed the offence charged. That risk I consider to be both real and significant given the juxtaposition by the trial judge in his summing up of the pension card issue and the use that the jury might legitimately make of evidence of good character on the question of the appellant's guilt. The jury unless instructed otherwise, may have impermissibly considered that they could use any finding by them that the accused was not a person of good character to reason that that would make it more likely that he had committed the offence charged. There was at the very least, a reasonable possibility that the jury convicted the appellant because, having found that he was a person of bad character due to his dishonest dealings with Centrelink, it was more probable that he was guilty of the offence with which he was charged. 93 I have already noted that trial counsel for the appellant did not seek a Hamilton direction from the trial judge. Rule 4 therefore applies. In my opinion the overriding duty of his Honour to ensure a trial according to law obligated him, irrespective of whether the direction was sought, to instruct the jury accordingly: BRS v The Queen (1997) 191 CLR 275 at 302, 306. The defence case very much depended upon the jury's belief in the honesty of the appellant which in turn depended upon their finding that he was a person of good character. The failure of the trial judge to properly direct the jury resulted in the appellant being denied a real chance of an acquittal and hence a fair trial. In these circumstances, in my opinion, there has been a miscarriage of justice as a consequence whereof leave should be granted pursuant to Rule 4 and this ground of appeal should be upheld.

Ground of Appeal 2 : the quality of the intercepted recording and the reliability of the opinion evidence expressed in the transcript of that recording were, having regard to the quality of the evidence of voice identification, such that both the recording and the transcript should have been excluded from the trial 94 Given my view with respect to Ground of Appeal 1, it is strictly unnecessary to deal with this or the other grounds of appeal. However, as in my opinion there must be a new trial, it is appropriate that the issues raised by these grounds be determined. 95 There was no objection by trial counsel for the appellant to the tender and admission of either the tape recording or the transcript of that recording so that Rule 4 also applies to this ground of appeal. Nevertheless, the appellant submitted that application should have been made at the end of Dr Gamal's evidence for the recording and transcript to be rejected upon the basis that the transcript in particular was unreliable. The appellant submits that had that occurred, the Crown case would have collapsed. 96 It was common ground that the admission of voice identification evidence was a matter for judicial discretion: Li v The Queen (2003) 139 A Crim R 281 at 290 [61]. It was not in dispute that the transcript was admissible: only that, as a matter of discretion, the trial judge ought to have rejected it upon the basis that it was so unreliable its admission would have been unfairly prejudicial to the appellant: see Evidence Act, ss 135 and 137. 97 Dr Gamal agreed that the soundtrack of the recording was "very poor". There was considerable background noise; extended breaks where nothing could be heard at all; words could be heard but not understood; and at times there was insufficient detail in the quality of the soundtrack to form a definite opinion as who was speaking to whom. Furthermore, there were bits and pieces missing in what otherwise may have been a flow of words and there was a complete absence of any visual cues to assist the translator in determining meanings. When asked to rate the quality of the soundtrack out of ten, with zero the lowest and ten the highest, Dr Gamal nominated two. He agreed that at times he was picking up words without context and that without context, meaning in any sense could not be confidently surmised. However, he stated that he was at the listening post and had been briefed (presumably as to the purpose of the exercise) and that certainly at times there was sufficient intonation and context to enable him to understand what was being said. 98 Dr Gamal further indicated that he had no difficulty in identifying between Male 1 (M1) and Male 2 (M2) in that the Arabic of M1 (Adam Kheir) was poor, whereas that of M2 (the appellant) was good. Nevertheless, he acknowledged that the quality of the utterances and terms of the recording were poor and that at times the language was such as to be either inaudible or indecipherable. At times there was corruption in the phonemic structure of the speech that made it difficult to understand. 99 The thrust of the cross-examination of Dr Gamal is exemplified in the following exchange (at AB 422-423): "Q. …So would it be a fair statement of your evidence that the quality of the sound was so poor that it was frequently difficult and perhaps difficult in any event to understand who was speaking? A. That's correct. Q. So would it be fair to say that the quality of the sound being so poor made it difficult, firstly, to know what was being said? A. Yes. Q. And secondly, to be confident as to who it was that said it? A. That's correct. Q. Having said that, it goes without saying I think that it was also very difficult and indeed perhaps even very, very difficult to know who was speaking to whom? A. That's correct. Q. So it was difficult to know what was being said having regard to the poor quality of the sound track? A. Yes. Q. It was difficult to discern who was saying it? A. Yes. Q. And it wasn't possible in the circumstances of this operation to know with any certainty as to who was speaking to whom? A. That's correct. Q. By way of an example in relation to this last mentioned difficulty as to who was speaking to whom, you would not be in a position to say fairly and squarely whether, for example, some of these utterances of male 1 were said to the other male or another person who may have been at the house? A. That's correct." 100 In re-examination Dr Gamal reiterated (at AB 436-437) the nature of the translator's skill and the factors that were taken into account in preparing a transcript. In particular, he referred (at AB 437) to the rewinding of the soundtrack and listening to the same segment "again and again and again" in order to prepare an accurate transcript. He said that if he was in any doubt, he would leave a gap or indicate that the sound was either inaudible or untranslatable. However, he was adamant (at AB 438) that between 2.50pm and 2.52pm there were only two voices being those of M1 and M2. 101 The critical part of the transcript is as follows (at AB 982-985): "2.50pm [Handling of the package, unwrapping, scruffy sound] Male1: Put the boxes away, the two of them. Male 2: Both of them? Shall I leave all of them? Shall I bring them down, all? (…I/A) Male 1: It does not matter! What about your people, and the other people? Male 2: I will give that guy today … O/T Male 2: No, now they will call me. I know. I want only a little bit and the rest remain with you. O/T (…I/A) Male 1: This, this --- Lebanon, Lebanese …by name…What did he say? Male 2: There was only one (…I/A) 2.52pm Male 1: I know, I know. Open this one. [Sound of handling the package and unwrapping] [Quality of the sound gets better] (…I/A) [Sound of hammering] [debris falling] Male 2: Open this and let's see Male 1: Has anyone told you (…I/A) (O/T) …It is good! (…I/A) Male 1: This workmanship Male 2: Did he put them inside? Male 1: Yeah Male 2: Did he? Male 1: He told me he did a good job. (…I/A) Male 1: He told me this! [Sound of knocking and overtalk] (I/A) 2.45pm Look at the workmanship. - I did something! [Constant hammering begins] 3.02pm [Faint conversation between male and a young female in English]. 3.10pm [Two males talking. Inaudible] Male 2: How much do you think in each box? Male 1: In each one …(…I/A) Three. Three hundreds? (…I/A) Not less? Male 2: Not less!! Don't you think they would be about 750 (…I/A)

[Male and female have a conversation. (…I/A) Male 1: Is it possible this way or that way (…I/A) [noise of hammering and debris falling] 3.11pm Male 2: I think it is empty O/T Male 1: I will get the people together Male 2: It is difficult Male 2: You found something? (…I/A) [Noise of hammering and debris falling] Male 1: Fuck, it is empty (I/A) I opened one and it turned out to be empty. Male 2: Maybe the one next to the sofa, I hope so." 102 Much emphasis was placed by both parties on the statement attributed to M2: "No, now they will call me. I know … I want only a little bit and the rest remain with you." 103 Dr Gamal was cross-examined about this statement and accepted that there was a 50% chance that the statement he attributed to M2 was attributable to M1. However, he was adamant that either M1 or M2 (being Adam Kheir or the appellant) made the statement. In this respect the following exchange took place in the re-examination (at AB 438): "Q. Do you recognise a chance that the other person, Male 1, Adam Kheir, said those words? A. I would have to agree with that, because given the quality of the tape, obviously if it's not by Male 2, it would have to be Male 1, simply because there were only two males involved. Q. You were asked some questions about whether, when the transcript denotes "Male 2", it's possible that the speaker was in fact Male 1. What possibility do you recognise in that regard? A. Again, there is always the possibility, but again, as I said, when I prepared this I signed it and I knew that I would be called to give evidence, be cross-examined on it, so the nature of transcribing is that you only commit to paper what you're so sure of. But, again, I guess life taught me that mistakes do happen. And fatigue, albeit a very unrecognised factor, it does influence the work of interpreters and translators." 104 The Crown's response to the appellant's criticisms based on Dr Gamal's cross-examination, of the transcript's accuracy was to point to Dr Gamal as an experienced interpreter and translator of the Arabic language who had worked for 25 years in that capacity and held a Master of Arts degree in translation and interpreting as well as in applied linguistics and had completed a doctoral thesis in petology. He was accredited at the advance level with the National Accreditation Authority of Translators and Interpreters in interpreting Arabic into English and English into Arabic. 105 There was no doubt that Dr Gamal was able to identify Adam Kheir as M1 and the appellant as M2 in the transcript. He had given evidence as to the problems with the sound recording and the allowances that he had made for that. It was ultimately submitted that the cross-examination of Dr Gamal was relevant not to the admissibility of either the sound recording or the transcript but only to the weight to be given to that evidence: Li at 291 [71]. It was a matter for the jury as to the weight they attached to the transcript and whether they accepted its accuracy, matters in respect of which the trial judge had instructed them in his summing up: eg at AB 811, 819. 106 The trial judge dealt at some length with the circumstantial evidence constituted by the transcript of the sound recording noting (at AB 812) that the only males in the house between 2.40pm and 3.10pm were the appellant and Adam Kheir. He rehearsed (at AB 813-819) Dr Gamal's evidence in detail, which I have summarised above. In fact, his references to Dr Gamal's evidence extended over some 7 pages where he quoted verbatim from the transcript of that cross-examination. Furthermore, in accordance with s 116 of the Evidence Act, the trial judge directed the jury (at 831) that, insofar as the evidence of Dr Gamal identified the appellant as M2 in the sound recording, there was a special need for the jury to exercise caution before accepting that identification evidence. 107 His Honour also directed the jury to exercise special caution in relation to Dr Gamal's evidence. As I understand it, no complaint is made with respect to the various directions given by the trial judge to the jury with respect to the identification evidence the subject of the transcript of the sound recording. 108 The appellant in his written submissions asserted that according to Dr Gamal's evidence there was a 50% chance that he had been mistaken with the voice identification, which would have been sufficient to found an argument for the exclusion of the transcript by reason of its substantially diminished probative value. However, it was quite properly conceded in oral argument that the acknowledgment by Dr Gamal of the 50% chance of error related, firstly, to attributing words to M2 instead of M1 and, secondly, concerned only the words "No, now they will call me. I know … I want only a little bit and the rest remain with you". Dr Gamal did not concede a 50% chance of error in relation to the balance of words attributed to M2 in the transcript. 109 The difficulty with the appellant's submission is that even with respect to the statement in respect of which Dr Gamal acknowledged the possibility of a 50% chance of error in attribution, it was common ground that there were only two males present at the relevant time so that the words in question must have been spoken by either M1 or M2, that is, by either Adam Kheir or the appellant. 110 Accordingly, the appellant was forced to submit that if the words in question were properly attributed to M1 (Adam Kheir), they may have been directed not to M2 (the appellant) but to some other person who may have been in the house at the time including, for instance, Salaam Joumaa to whom the original package had been addressed. 111 In my opinion, it was a matter for the jury as to whether the words in question were spoken by M1 or M2 and, if the former, whether they were spoken to M2 or some third party. The chance of error identified by Dr Gamal went to the weight of the evidence and the jury was properly directed by the trial judge who, as I have indicated, made it clear that there was a special need for the jury to exercise caution before they accepted the evidence in question. In any event that part of the transcript in respect of which Dr Gamal acknowledged the chances of a 50% error in attribution was only part of the material in the transcript which the jury was required to take into account. In my opinion it was open to the jury to accept as accurate the balance of the transcript and, in particular, the attribution therein of the various statements to either M1 or M2. 112 Furthermore, if the jury accepted the accuracy of the transcript in that regard, then the various statements attributed to the appellant were consistent with him being more involved in what was occurring than, as he submitted, a mere helper or curious bystander. It was, in fact, further conceded by the appellant that the statements attributed to M2 at and after 2.52pm were at least relevant to the appellant's knowledge of the contents of the flywheels and to the assistance which he was giving to Adam Kheir with respect to their opening. 113 The appellant's final submission was that the admission of the sound recording and its transcript caused a miscarriage of justice in that it was left in an unfairly prejudicial manner to be considered by the jury in support of the Crown case. If by that submission it was being contended that the trial judge should have exercised his discretion and refused to admit the transcript upon the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant (s 137), or that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant or be misleading or confusing (s 135), then I would respectfully disagree with the proposition that in the circumstances had an appropriate application been made, the trial judge would have been acting unreasonably had he not acceded thereto or, alternatively, was in breach of his duty to ensure a fair trial by failing to exercise his discretion under s 135 and s 137 of his own motion. In my opinion, it was clearly open to the trial judge to decline to exercise his discretion under those provisions. 114 It follows from the foregoing that, in my opinion, leave to rely on Ground of Appeal 2 should be refused. In any event the ground should be rejected on its merits.

Ground of Appeal 3 : the trial proceedings miscarried by reason of the failure of the trial judge to leave alternative hypotheses of fact, reasonably open on the evidence and consistent with innocence, to the jury. 115 The trial judge's directions to the jury in his summing up with respect to the critical element of attempt to obtain possession was in these terms: "Before I come to the word 'attempt' it is important that I give you a direction as to the meaning of possession. The essence of the concept of possession in law is that at the relevant time you intentionally have control over the object in question, whether alone or jointly with some other person or persons. Relating to the facts of this case you would need to be satisfied beyond reasonable doubt that the intention of the accused was to be in a possession (sic) to exercise control over the heroin, either alone or jointly with someone else. The Crown would say Adam Kheir and possibly Salaam Joumaa (sic). In other words, the accused could not be attempting to obtain possession of the heroin merely by helping to break open the flywheels even if he knew what was expected to be in them unless he also expected, alone or jointly with someone else, to be able to exercise control over the heroin found inside. The Crown says you would infer this from the circumstances and of course the accused says he did not participate at all in the breaking of the flywheels. As to the meaning of attempt, what the Crown must prove beyond reasonable doubt is some act by the accused towards committing the crime which was immediately rather than remotely connected with committing that crime and which cannot reasonably be regarded as having any purpose other than to commit the crime . Again the Crown says to you that if you accept the Crown case you would have no difficulty in concluding that the accused was directly involved in breaking open the flywheels, that this constituted an immediate act towards obtaining possession of the heroin which the Crown says you would be satisfied beyond reasonable doubt the accused knew was inside. The word 'attempt' in this context has a connotation of both knowledge and intention. That is you would have to be satisfied beyond reasonable doubt that what the accused did was with knowledge of what he was doing and with the intention to obtain possession for himself, either alone or jointly with someone else, of the heroin which he believed was inside the flywheels." (emphasis added) 116 Towards the end of his summing up, the trial judge summarised what he termed the "significant issue" in the case in these terms (at AB 837): "To briefly recap, the significant issue for you in this case is whether you are satisfied beyond reasonable [doubt] that the accused attempted to obtain possession of narcotic goods. Possession in the sense that he was to exercise control over those goods either alone or jointly with somebody else and attempt in the sense that it was an act immediately rather than remotely connected with the crime and that it was accompanied by both knowledge or belief that the fly wheels contained narcotics and an intention to obtain possession of them." 117 After the jury retired and in fact on the following day, they sent a note to the trial judge indicating that they wished further definition of "possession" including the aspect of control. In the further directions which followed, the trial judge instructed the jury (at AB 844-845) that "…all you need to be concerned about beyond reasonable doubt is that the accused intended to be able to exercise control over the narcotics, either alone or with others involved with him in the illegal enterprise. I think that is to be contrasted with the situation, for instance that he assisted Mr Adam Kheir to break open the fly wheels even knowing or suspecting what was in them but having no interest whatsoever in whatever they contained. If that were the case then he would not be seeking to obtain physical control over the narcotics in the sense that he would be able to dispose of them either alone or with other persons as he wished. If he had no intention of exercising any control over the narcotics at all but was merely assisting Mr Kahir (sic) to open the fly wheels, then he would not be guilty of the charge."

Trial counsel for the appellant took no objection to these directions: nor did he seek any further directions. Rule 4 therefore applies to this ground of appeal. 118 The appellant submitted that it was incumbent upon the trial judge to direct the jury to exclude the possibility that although he knew the contents of the flywheels and was helping to expose the contents, he was not seeking to control the contents. In other words, although the jury had been directed as how they could reason to the appellant's guilt on the element of possession, they had not been directed as to how they could reason to his innocence. 119 In my opinion there is no substance in this complaint. The passage in the summing up which I have extracted and emphasised in [115] above made it clear to the jury that they had to find some act of the appellant that was not explicable otherwise than by having the purpose of committing the crime, that is, seeking control over the contents of the flywheels. His Honour clarified this issue in that part of his summing up extracted in [117] above by directing the jury that if the appellant was merely assisting Adam Kheir to open the flywheels, he would not be guilty of the offence with which he was charged and that he could only be guilty if they were satisfied beyond reasonable doubt that he intended to obtain physical control of the contents of the flywheels either alone with some other person, relevantly, Adam Kheir. In my opinion, it was not incumbent upon the trial judge in the circumstances to further direct the jury that they had to exclude the possibility that he was merely helping Adam Kheir and that he was not seeking any control over the flywheels' contents. 120 In my opinion, it was made clear to the jury that if on the evidence they were not satisfied beyond reasonable doubt that the appellant was doing anything other than merely helping Adam Kheir, then they must acquit. I therefore see no basis for criticising the trial judge's directions on this issue as a consequence whereof I would refuse leave under Rule 4 and, in any event, would reject this ground of appeal on its merits.

Ground of Appeal 4 : the verdict of guilty was unreasonable having regard to the evidence: s 6(3) Criminal Appeal Act 1912 121 The thrust of this ground was that on the evidence, the jury's verdict of guilty was unsafe and unsatisfactory. It was submitted that the appellant was a person of good character; had no criminal record, had a religious and caring nature; had taken a stance upon and counselled against involvement with drugs, and that the marks on his clothing were explicable by the fact that he had carried a bag of red potatoes just prior to the arrival of the Federal Agents and/or they resulted from the fact that he was required to lie face-down on the concrete pathway where there were pieces of broken flywheel. These matters were of such weight, so it was submitted, as to justify the conclusion that the jury, acting reasonably, could not have rejected as a rational inference the possibility that the appellant although present when Adam Kheir was smashing the flywheels, did not take part in that activity and was merely a curious observer or helper. 122 It is unnecessary to trace in any detail through the evidentiary material on which this submission was based. It was submitted by the appellant that without the transcript the Crown had no case. However I beg to differ. Although the transcript was important to the Crown's circumstantial case, the marks on the appellant's clothing were of equal significance. In this respect, the photographs which were in evidence, of that clothing and in particular, of the jeans which the appellant was wearing at the time, did not accurately provide a true picture of the state of the marks on them. The Court viewed carefully the original exhibit being the appellant's jeans which established, at least to me, that: firstly, the marks on the jeans were clearly from the flywheels; secondly, that those marks could not have been caused by the appellant merely lying on top of pieces of the smashed flywheels; and thirdly, that the appellant had clearly been holding the flywheels between his legs for his jeans to have become marked in the manner and to the extent observed. In my opinion, no other explanation is plausible, particularly that advanced by the appellant, namely, that the marking occurred when he was required by the Federal Agents to lie face down on the ground. Accordingly, it was clearly open to the jury to accept beyond reasonable doubt that the appellant had actively participated in the smashing of the flywheels. 123 The appellant also relied upon the fact that his fingerprints were not found on the packaging of the flywheels or the tools that were used to dismantle them. However, in my opinion the Crown is correct when it submits that the absence of the appellant's fingerprints on the items seized by the Federal Agents did not indicate absence of involvement in the breaking of the replica flywheels. It was common ground that the flywheels had been painted and covered in grease that caused the paint to break down and to adhere to the hands and clothing of any person who came into contact with them. When the Federal Agents entered the backyard the appellant's hands were observed to be greasy, dirty and marked with paint from the flywheels. The evidence was that greasy and dirty hands would deposit too much oil on a surface to leave an identifiable fingerprint. Accordingly, in these circumstances, it was unsurprising that the appellant's fingerprints were not found on the flywheels or the tools that were used to dismantle them. 124 On the other hand, the marks on the appellant's clothing and hands in combination with the transcript of the recorded conversations with Adam Kheir, as well as his presence on the back steps amidst the tools, the controlled delivery sample and the broken pieces of replica flywheel, provided, as the Crown submitted, ample evidence of the appellant's participation in the enterprise. 125 The appellant further submitted that there were knocking and tapping sounds a considerable time before he arrived at the house, which suggested that the possession of the heroin was being attempted before the appellant was even at the scene. There is no doubt that Adam Kheir was a heroin addict and that it was he who had the principal interest in gaining access to the flywheels' contents. However, the fact that he attempted to do so before the appellant arrived does not, in my opinion, detract from the evidence which it was open to the jury to accept that the dismantling procedure intensified after the appellant's arrival and in his presence. 126 The appellant further submitted that the case against him ultimately depended on the questionable identification of his voice and the transcript of the conversations prepared by Dr Gamal, this being the only evidence purporting to link the appellant to the smashing of the flywheels. However, for reasons already referred to, I do not agree that the Crown's case was wholly dependent upon this. Certainly, the transcript was of significance to the Crown's case but it also very much depended upon the marks on the clothing and hands of the appellant, his presence in the backyard between 2.50pm and 3.25pm and his position on the back steps at the time the Federal Agents arrived. 127 Finally, the appellant submitted that the jury were not directed that they had to exclude as a reasonable hypothesis that Adam Kheir was attempting to possess the heroin solely for himself. Nor were they directed that they had to exclude as a reasonable hypothesis that Adam Kheir was attempting to possess the heroin jointly with Salaam Joumaa (to whom the packages were addressed) to the exclusion of the appellant. It was submitted that these alternative hypotheses, which had a basis in the evidence and which were consistent with the appellant's innocence, should have been the subject of a specific direction from the trial judge. 128 His Honour directed the jury that the Crown was required to establish that the appellant attempted to obtain exclusive or joint possession of the narcotic goods. I have already set out his Honour's directions in this regard in [115] above. Further, his Honour directed the jury in these terms (at AB 813): "What you do need to be satisfied about beyond reasonable doubt in relation to the issue of whether the accused attempted to obtain possession is whether the circumstantial facts proved to your satisfaction, convinced you beyond reasonable doubt, that the element of the charge has been proved in the sense that there is no other rational explanation for what occurred other than that the accused is guilty ." (emphasis added) 129 I have also previously referred to the further directions given by the trial judge to the jury with respect to the issue of possession or attempted possession in [117] above. In my opinion these various directions and, in particular, the parts thereof which I have emphasised made it clear to the jury that they had to be satisfied beyond reasonable doubt that the appellant intended to exercise control over the contents of the flywheels in the sense that there was no other rational explanation for what he was doing such as that he was merely assisting Adam Kheir to open them. As the Crown submitted, it was implicit in these directions that sole possession by Adam Kheir or joint possession by Adam Kheir and another person apart from the appellant, would not support a verdict of guilty. In my opinion, no further directions were required and I would reject the appellant's challenge to the summing up which submits to the contrary. 130 It follows from the foregoing that, in my opinion, the verdict of the jury was both reasonable and supportable having regard to the evidence as a whole. Accordingly, this ground should be rejected.

Conclusion 131 Notwithstanding my rejection of Grounds of Appeal 2, 3 and 4, the failure of the trial judge to direct the jury as to the use they might make of evidence of bad character in the event they came to the conclusion as a consequence of the pension card issue that the appellant was of such a character, constituted a miscarriage of justice to which, in my opinion, the proviso to s 6(1) of the Criminal Appeal Act does not apply. 132 Much of the Crown case depended upon allegations which the appellant on oath denied and which he sought to support by evidence of his good character. The Crown sought to negate that evidence by reference to the pension card issue and, in particular, to use that material to attack the appellant's credit upon which his defence in large measure relied. In that part of the trial judge's directions to the jury which I have extracted at [71] above, there was in my opinion a significant possibility that if the jury determined that the appellant was not a person of good character, it would seek to use that conclusion as entitling them to consider the probability of the appellant having committed the subject offence. His Honour's failure to properly direct the jury in relation to the use which it might make of any finding of bad character resulted in the loss by the appellant of "a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was strictly followed": Wilde v The Queen (1988) 164 CLR 365 at 372. The loss of the chance of acquittal cannot be other than a substantial miscarriage of justice. 133 Accordingly, I would propose the following orders: (1) Appeal against conviction allowed. (2) The conviction and sentence of the appellant be quashed and that there be a new trial.

134 HOEBEN J: I agree with Tobias JA 135 SMART A-J: I agree with Tobias JA. **********

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