That is, the trial judge was warning the jury that a finding that Amber O'Brien's sworn evidence was unacceptable, even dishonest, did not mean that its converse was true. It did not follow from a rejection of her evidence that the drugs were the appellant's. No further direction was sought with a view to overcoming any inadequacy perceived at the time by defence counsel. It may safely be inferred that in the atmosphere of the trial after that direction had been given defence counsel saw no prejudice flowing to his client from the handling of Amber O'Brien by the Crown. The appellant complained that the jury were not told that there was no evidence that the appellant had instigated Amber O'Brien to give false evidence in his favour: but it would not have been true for the trial judge to have said that, because there was circumstantial evidence capable of supporting that conclusion, and whether it did was a matter of what inferences the jury felt it should draw. The appellant submitted that all the damage had been done by the time of the summing up and was incapable of correction by it; in that case one would have expected defence counsel to have perceived this and to have asked for the jury to be discharged. This did not happen, and it is obvious why it did not happen.
104 Secondly, Amber O'Brien gave sworn evidence which was potentially very damaging to the appellant. Near the end of the s 38 examination, the following evidence was given:
"Q. The heroin that was found that you say is yours, that was a very pure substance wasn't it?
A. Yeah it was pretty good, yes.
Q. And the purpose of the purity was that it was to be cut down to a street weight, that's right isn't it?
A. No we never used to cut it no."
105 It was open to the jury to treat that as evidence that the very heroin which had been found on 18 July 1997 and which she claimed ownership of in her evidence in chief was heroin which she and the appellant had been habitually having access to, not for cutting to the street weight, but for their own purposes. The answers were capable of permitting the jury to infer joint possession of the heroin, which would have sufficed to render the appellant guilty as charged. Counsel for the appellant submitted that the word "it" did not refer to the drug seized, but to other drugs used in the more remote past. That submission collides with the identification of what the heroin was in the first question.
106 Thirdly, the Crown case was strong from several points of view.
107 The heroin was found in premises occupied by the appellant. Resealable bags and precision scales were found in the appellant's bedroom. There was no suggestion that the drugs were possessed by anyone other than either the appellant or Amber O'Brien or both. No suggestion was made that the police officers had planted the drugs, least of all to the police officers.
108 There were admissions by conduct, or items of circumstantial evidence, strongly adverse to the appellant: he broke away from the police officers, including Detective Richards, soon after their arrival, ran to the toilet and flushed it; he then lied to Detective Richards about whether he had been with Detective Richards when the toilet had been flushed; and though the appellant was "relaxed …, very cocky and … quite assured" while his bedroom was being searched, when he was brought to have a look at the ball with rubber bands around it which was found in the toilet and which contained heroin, his demeanour changed: "He became quite depressed, he was calling out to Amber requesting her to come to him. He was very emotional".
109 If the effect of the appellant's admissions in the course of the record of interview were to be overcome, the jury had to disbelieve numerous police officers, or at least not accept their evidence. There was no particular reason to disbelieve or not accept the evidence of any of them. So far as events at the appellant's townhouse were concerned, one issue was whether the appellant ran up the stairs to the toilet (as Detective Richards and Sergeant Sainsbury said they saw him do, and as Detective Senior Constable Johnston said he heard), or merely took a step or two to the toilet on reaching the top of the stairs (as the appellant said); and whether the appellant flushed the toilet (as Detective Richards and Sergeant Sainsbury said they saw, and as Detective Senior Constable Johnston and Sergeant Loughland said they heard) or not. The appellant's version did not explain how it was that the police came to find the drugs in the toilet. So far as events in the police car as it took the appellant on the short journey from his townhouse to the police station were concerned, the issue was whether the police were silent or whether they told the appellant that if he did not confess, both he and Amber O'Brien would be charged and gaoled. The appellant's evidence in chief twice specifically located this threat as having taken place in the car on the way from his house to the police station: he said there were three officers present. In cross-examination Detective Richards denied saying anything like this "before the interview": he was not asked about where he was supposed to have said it. Detective Lysaght, who was in the car as the driver, was not asked in cross-examination about it; yet if the threat had been made, he would have heard it. It was not put to Detective Sergeant Johnston that the threat was made during the car journey by Detective Richards, only that Detective Richards made it "before" the interview. He denied that. Though it was open to the jury to think that these disparities arose from some fault on the part of counsel, it was also open to them to conclude that the failure of counsel for the appellant to cross-examine Detective Lysaght at all and the disparity between the version put to Detectives Richards and Johnston in cross-examination and the version given by the appellant in chief strengthened Detective Richards' and Detective Johnston's denials and weakened the appellant's credibility. (In his remarks on sentence the trial judge said: "There were three police officers in the car at the relevant time and each denied that this threat was ever made": as indicated, two denied it was ever made, and were not asked about the car: the other was not asked at all.) The appellant's position was further weakened by his admission that at Port Macquarie he said that Detective Richards' alleged threat was at the police station just before the interview, not in the police car. He also admitted giving false evidence at Port Macquarie about whether Amber O'Brien was still his girlfriend.
110 Fourthly, Amber O'Brien's evidence in chief and her overall position in the witness box were unconvincing. The drugs were worth $7,000. She did not explain convincingly why she, a girl of 17, would be given drugs of that value. She said she got them from her father's best friend, sold heroin and gave the money to the friend. She also said she put the heroin in the toilet on the night of 17 July 1997. She attributed to police officers statements purporting to explain her allegedly false claim of innocence on 18 July 1997 for which there is no evidentiary support. Indeed it is significant that the instructions of the appellant's counsel in cross-examining the police appeared to differ from her evidence, despite the fact that the terms of his leading questions to her in cross-examination appeared to reveal a familiarity with, and an expectation of, what she was going to say. She said that among the reasons why she did not tell the police the truth on 18 July 1997 was the fact that "they" told her that the appellant had already confessed. Her interview on 18 July 1997 was conducted by a Detective Acting Sergeant Bryant and Sergeant Loughland. Detective Acting Sergeant Bryant was asked:
"Q. Before you interviewed Miss O'Brien did you say, or did you hear another officer say, to her that the accused had admitted the heroin to being his?
A. I don't recall.
Q. See did either you say, or hear another officer say to Miss O'Brien, that the accused had said it was for his personal use, both for him and herself?
A. I don't recall that either.
Q. Did either you say or hear another officer say that the accused had said this because at least one had to be charged and the accused didn't want it to be her?
A. That I would definitely remember and no.
Q. And did either you or another officer say to Miss O'Brien that she had to do an interview?
A. No.
Q. And if she didn't she'd be charged anyway?
A No not at all.
Q. And was there any suggestion made that she should back up Ian's story?
A. No.
Q. Was it suggested to her that if she backed up Ian's story she would be home that night?
A. No.
Q. See I suggest that all occurred before the interview was commenced with Miss O'Brien.
A. No that's not correct.
Q. But of course you weren't with Miss O'Brien, as you fairly said, the whole time she was at the police station?
A. That's right.
Q. And indeed you weren't present when she was arrested?
A. Correct."
111 Sergeant Loughland said:
"Q. Before you conducted, or before the interview was conducted with Ms O'Brien, she was told that the accused had admitted that the heroin was his?
A. Not that I recall, no.
Q. Had she been told what the accused had said at all?
A. Not that I recall, no.
Q. I mean, you had information that the accused said it was his, hadn't you?
A. I don't know what the exact conversation was, but yeah, that's my understanding, yes.
Q. And it was of concern to find out what Ms O'Brien might say about that?
A. About that and other matters as well, yes.
Q. Did you say this to Ms O'Brien, or did Detective Bryant say this to Ms O'Brien in your presence, that the accused had admitted the heroin being his and that he had had it for personal use?
A. No, I don't recall that, no.
Q. Did you or Detective Bryant say to Ms O'Brien that the accused had said - had told the police he smokes five grams a day and that she, Amber, smoked three?
A. Sorry, could you repeat that?
Q. Did you or Detective Bryant say something to this effect to Ms O'Brien, that the accused had said he smoked five grams a day and that she smoked three?
A. No, that's not correct.
Q. Did either of you, I mean Bryant or yourself, say to Ms O'Brien that the accused had said this because at least one had to be charged and Ian, the accused, didn't want it to be her?
A. That's not correct.
Q. Did either of you say to Ms O'Brien that she had to do an interview and if she didn't, they would charge her anyway?
A. That's definitely not correct.
Q. Was she told, either by yourself or Bryant, that if she didn't want to get charged and go straight to gaol, she should back up Ian's story?
A. That's definitely not correct.
Q. Did either of you say to Ms O'Brien that she and the accused would be - both would be at home that night if she made a statement?
A. No."