Criminal Law - incompetence of counsel - when conduct of case by defence counsel may lead to quashing of conviction - principles.

Instructing solicitors: Messrs Gilpin and Associates

Ms P Deveau

Instructing solicitors: Director of Public

Prosecutions

2. The three convictions and the sentences thereon be quashed.

3. That there be a new trial in respect of count 1.

4. There be a verdict of acquittal in respect of counts 2 and 3.

5. Further proceedings on count 4 be permanently stayed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BEAUMONT J. In November 1991, the appellant was tried and convicted by the Supreme Court of the Australian Capital Territory on an indictment with four counts namely: (1) that, between 29 December 1988 and 16 January 1989, the appellant supplied a "controlled substance" (as defined in the Poisons and Narcotics Drugs Ordinance 1978 (ACT)), viz., methamphetamine, to Luke Gerard Robbie; (2) that, on 24 May 1989, the appellant possessed a "drug of dependence" (as defined in the Drugs of Dependence Act 1989 (ACT)), viz., amphetamine, for the purpose of supply to another person; (3) (alternatively to count 2) that, on 24 May 1989, the appellant possessed a drug of dependence, viz., amphetamine; (4) that, on 24 May 1989, the appellant possessed a drug of dependence, viz. cocaine.

2. By s.4(2) of the Poisons and Narcotics Drugs Ordinance, it was provided that a person who supplies a controlled substance to another person is guilty of an offence.

3. By s.164(2)(c) of the Drugs of Dependence Act, (which Act commenced on 15 March 1989) it is provided that a person shall not possess a drug of dependence for the purpose of, inter alia, supply to any person. Different penalties are prescribed for this offence by s.164(2), depending on whether the quantity of the drug is a commercial quantity, or a trafficable quantity. By s.169(1) of the Act, it is provided that a person shall not possess a drug of dependence.

4. The appellant pleaded not guilty to each of the charges but was convicted on the first, second and fourth charges and now appeals against these convictions.

Outline of the appellant's contentions on the appeal

5. On behalf of the appellant it is contended that the Crown case at the trial was "inadequate from the outset". Particular reliance is placed upon the circumstances that the only evidence in relation to the first count of possession was from an accomplice; and that there was no corroboration. In relation to the second and third counts, it is said that there was no evidence to identify the appellant as the possessor of the drugs; that there were other occupants of the premises in which the drugs were seized; and that the amount of amphetamines seized were below the quantity sufficient for "deemed" supply. Moreover, the argument runs, the inappropriate joinder of counts in the indictment, the admission of prejudicial inadmissible material concerning alleged prior activities of the appellant, and of his possession of certain cash funds, an "inadequate" summing up and "incompetent" representation, allowed the Crown "to create the appearance of a general background of drug dealing and consumption" that "filled the gaps" in the Crown case and deprived the appellant of a "genuine prospect" of an acquittal.

6. In order to understand these arguments it is necessary to describe the course of the trial in some detail.

In his evidence in chief, Mr. Robbie said that, in the previous year, he had pleaded guilty to, and been convicted by the Supreme Court of, a charge of possession, on 15 January 1989, of methylamphetamine (a synonym for methamphetamine) for the purpose of its supply. He said that, at this time, he was "in the habit of using amphetamine". He explained that, on 15 January 1989, the police found eight small plastic bags containing this substance in his flat.

7. Counsel for the prosecution examined Mr. Robbie as follows:

"Now, where did you get that amphetamine from?---Originally

I got it from (the appellant)...(on Friday 13th January

1989).

Can you indicate the circumstances that led up to your

acquisition of that material from the accused?---I had

basically sort of normal procedures that I would ring him.

Well, can you recall - I'm just asking you what you can

recall of what you did on this particular occasion for the

moment?---Rang him up. I asked if he had anything for me.

He said, 'Yes.'

HIS HONOUR: Asked if he had any what?---If he had anything

for me. I never actually said what it was on the phone.

Arranged for a friend to drive me over to his place at

Richardson. I was dropped off down the road. I walked up;

went in the house; got the stuff and then left. Met at a

pre-arranged spot, and in the car went back to the flat."

8. Mr. Robbie said that, on the occasion in question, he was given "a small package wrapped up in packaging tape". He said that he may have given the appellant some money, but could not remember it.

9. Mr. Robbie went on to say that he had known the appellant since 1983 and had been to his house at 5 Wentcher Place, Richardson "possibly five or six times".

10. The following evidence was then sought to be led:

"Now, what was the purpose of your - if there was a single

one - of your visits to the accused's premises prior to the

visit that you've told us about on 13 January 1989?---The

majority of the time it was for the purpose of purchasing

amphetamines.

HIS HONOUR: Just a moment, I do not think you can ask him

his purpose on prior occasions. This is just a mental

element on his part as I understand.

(Crown counsel): Yes, I take your Honour's point. I

withdraw that question.

Had there been occasions prior to the occasion you've

already told us about, when you'd acquired amphetamines -

sorry, I withdraw that - when you'd acquired white power

from the accused?---Yes, I had.

(Counsel for the appellant): I object, your Honour."

11. The trial Judge ruled that this evidence was not admissible on the first count, but was admissible on the second and third counts.

12. Mr. Robbie gave evidence that, on at least 20 occasions over a period of approximately 12 months, he had received from the appellant, in "self-sealing" bags approximately four by six inches in dimensions, amphetamine in the form of "a white powdery or crystalline substance".

13. Mr. Robbie went on to give the following evidence:

"(Counsel for the prosecution): Now, in relation to the

substance that was found by police in this flat on 15

January 1989; I think you said that you placed the white

powder found by police in the eight or so bags that were

found in your - in the flat?---Yes, that's right.

Did those eight bags contain all the white powder that you

received from the accused?---No, they didn't.

I think you've already told us that you used about 1 gram of

it?---I had, initially.

Was there any other white power received from the accused on

the last occasion - if I can put it that way - apart from

the amount of it that you used and the amount that the

police found?---Yes, about half of it had gone, or maybe a

bit over half.

And where had it gone?---I had used - of the portion that

was gone, I probably used about half of it myself and I had

sold the rest.

And do you recall the amount that you received from the

accused---Half an ounce.

And were any arrangements made with the accused in relation

to any consideration received, or to be received, in

relation to the handing over of that substance to you by the

accused?---Yes, I had to find $700 for it.

$700. Can you recall whether in fact you gave him any money

at all on the occasion when you received that white powder?-

--I'm afraid I can't, at this stage."

14. In cross-examination, it was suggested to Mr. Robbie that, on 13 January 1989, he went to the appellant's home to negotiate the sale of a motor cycle. He said:

"I remember organising him to buy a motor cycle, yes.

Whether it was on that day I cannot recall at this stage.

(Counsel for the appellant): So, it could have been 13

January?---It may have been.

Does it help if I tell you that the Friday the 13th was 13

January - black Friday - is that as you - - -?---Probably.

It's what most people call Friday, the 13th.

But that doesn't help?---No.

So, it's possible you were there on that date?---There's a

good chance of it, yes. Like I said, I remember being there

on that Friday to purchase half an ounce of speed, or

amphetamine.

But you're not certain about introducing somebody to sell a

motor bike - - -?---I remember introducing an acquaintance

who was selling a Triumph to Mick; and Mick subsequently

did buy the bike. But whether it was on that day, I cannot

recall."

"(Counsel for the appellant): The evidence you have given

that on Friday, the 13th, you were at Michael Guerin's home

in Richardson and you were there to purchase drugs?---Yes.

And you say to the proposition I put to you that you were

there for the purpose of the bike sale; you say that is

incorrect?---I do not recall that being the circumstances.

Whether I combined the two functions on the Friday, I cannot

recall. I may well have.

You may well have?---Yes, but I don't recall doing it.

Because there is some things that you just can't recall?---

Yes, you know, minor details.

Yes, such as this vehicle you said you got a lift - your

evidence was that you got a lift to Richardson - this is the

day, the 13th, when you say that you went out to purchase

the drugs; is that your evidence?---Yes, that's what I recall."

Mr. Robbie was cross-examined about the figure of $700 as follows:

"(Counsel for the appellant): So you've got 14 grams of

this powder?---Yes.

Which you say you purchased?---Yes.

But you can't recall whether you paid any money?---After

this amount of time, no. I may have, I may not have, I

cannot remember.

But you mentioned you can recall the figure of 700?---Yes,

that was the set price for half - or 14 grams. That's how

much I normally paid for 14 grams.

Yes, but you've got a clear recollection that 700 was the

figure?---Yes.

Have you got any recollection if at that time in January

1989 you were in fact owing money to Mr Guerin in respect of

parts for a motorbike?---Yes, I did.

You remember owing the money for the bike parts?---Yes.

How much?---I couldn't say at the moment. It was I think

around $300 or $400. I'm pretty sure - I knew it wasn't a

great deal but it was a few hundred dollars.

Would you tell the court what type of parts you bought to

incur that debt?---I can't recollect now at the moment what

the parts were. I bought I think a number of chromed

replacement parts for the bike to dress it up, to make it

look better, and I think I bought some mechanical parts for

it as well.

Yes. You just can't recall exactly?---I can't remember the

exact specifics of what parts they were.

Can I suggest to you that this was an ongoing relationship

in terms of your interest in the bike, that you would be

either purchasing items from Mr Guerin for your bike, is

that so?---Yes.

Or, as you've told us, you would - on at least one occasion

you've mentioned, you introduced people to him to sell bikes

to him?---I did that once."

15. It was put to Mr. Robbie, and he agreed, that the "resealable" bags of the kind used to obtain the drugs from the appellant were also used when Mr. Robbie purchased parts for his motor bike from the appellant.

16. In re-examination, Mr. Robbie gave the following evidence:

"(Crown counsel): Now, you've told us that you couldn't

recall whether you paid any money on the occasion on 13

January when you received the amphetamine. Had there been

any other occasion, when amphetamines had been received from

the accused, when money had not passed hands?---Yes, there

had been a number of occasions.

And was there any arrangement in place in relation to that?-

--Yes. I - as I sold the smaller quantities of speed I

would - when I had maybe $400, $500 together, I'd arrange to

give it to him."

17. Mr. Robbie was later recalled for further cross-examination.

18. Mr. Robbie was then asked by counsel for the appellant about his previous conviction by the Supreme Court. Counsel sought to ask Mr. Robbie about the sentence but Crown counsel objected as follows:

"(Counsel for the appellant): What was the sentence of this

court?---That sentence of this court - - -

(Crown counsel) I object to that, your Honour.

HIS HONOUR: Why do you need to know that....? Why is the

jury assisted by knowing what the sentence was?

(Counsel for the appellant):Perhaps if I could - - -

HIS HONOUR: The important thing is that he was sentenced

and therefore any proceedings in relation to him have

concluded. It is relevant for the jury to know that. If

they thought there were any charges hanging over his head it

might affect the weight of his evidence. But we know now -

the jury knows now that he was convicted and sentenced. Why

should they know any more about it?

(Counsel for the appellant): Your Honour, what I was

proposing, to lay the ground for, is - and it is a question

of fact - the sentence. Perhaps if I could defer that

question, if I might? Perhaps if I might proceed on another

line?

HIS HONOUR: Yes, certainly."

19. Counsel for the appellant then put the following to Mr. Robbie:

"(Counsel for the appellant): Mr. Robbie - can you recall

Constable Kinloch, he was the arresting officer?---Yes, he

was.

And you had conversations with him, and you were interviewed

by him?---Yes, I was.

Do you have any recollection of it being said to you by

Constable Kinloch that if you were to assist the police in

their inquiries, that that could be to your benefit?---

Constable Kinloch said something about that to me, but it

was more in relation to telling them about myself, what they

wanted - what they were asking me, and not to give them a

hard time over questions they were asking about my matters

with the drugs I had, that things wouldn't be, you know, it

would look better for me, in my own stuff, if I assisted the

police with what I did, and nothing in relation to any other

matter, just my own matters.

When you say, that means, do I take it, your own welfare?---

My own welfare, my own - that when I appeared in court that

if I had been co-operative with the police over my arrest,

as in regards to the drugs I was found in possession of, you

know, it would go better for me if I was co-operative with

the police, you know, that I didn't cause them a lot of

trouble over trying to drag everything out of me about my

own possession. That was the only thing that was ever said

to me about things going easy.

Not in relation to - - -? ---Any other matter, no.

Your selling of amphetamines?---Only my own personal

selling, no one else's."

20. Counsel for the appellant proceeded to cross-examine Mr. Robbie about the statement he made to Constable Kinloch, suggesting that Mr. Robbie's evidence that the appellant supplied drugs to him was "a figment of (his) imagination."

21. Counsel then sought to ask again what sentence had been imposed by the Supreme Court. The Crown maintained the objection.

22. (In the absence of the jury, reference was made to the sentence, being two years' imprisonment, suspended upon Mr. Robbie's entry into a recognisance of $1,000 to be of good behaviour and to accept adult supervision of the Corrective Services Department and, in addition, to perform 160 hours of community service within 12 months.)

23. The trial Judge indicated, (in my view, correctly), that he would not allow evidence of the terms of the sentence to be tendered in the presence of the jury, in the absence of -

"...a suggestion that somehow or other the sentence has

encouraged (Mr. Robbie) to come to court and give false

evidence, or...has induced him to try to lay the blame on

somebody else or to assist the police by uncovering the name

of somebody who has supplied him..."

24. There was no such suggestion. Counsel for the appellant later put the following to Mr. Robbie:

"And then I finally suggest to you that, at no time in the

12 months prior to that day, that is, January 1989, at no

time prior to that did Mr Guerin ever supply you with

amphetamine?---I would disagree with that, strongly."

"And do you recall the occasion - prior to the picking up of

amphetamines on or about 13 January - do you recall the

occasion prior to that when you picked up amphetamines from

the accused?---Yes, it was Christmas Day.

And what year?---1988.

And how many occasions did you pick up amphetamines from the

accused after that?---It would only have been the once.")

26. Constable Kinloch gave evidence in chief of his search of Mr. Robbie's premises and the seizure of drugs in several small plastic bags found on the premises.

27. In cross-examination, Constable Kinloch was asked about Mr. Robbie's sentence as follows:

"(Counsel for the appellant): And are you able to tell us

the sentence of the court?---I can't accurately the

sentence, no.

I don't press it, your Honour.

HIS HONOUR: You haven't got much to press.

(Counsel for the appellant): I beg your pardon?

HIS HONOUR: You haven't got much to press.

(Counsel for the appellant): No, well, I withdraw the

question, your Honour."

28. Counsel for the appellant asked Constable Kinloch about his interview with Mr. Robbie, and the subsequent charges brought against Mr. Robbie, as follows:

(Counsel for the appellant): And during the course of your

interview with Mr Robbie, is it your recollection that he

told you he had recently acquired a much larger amount of

powder than he had on him at the time of your arrest?---He

said that the quantity that we had recovered was less than

he had purchased, yes.

Did he mention a figure to you of the weight, or the amount

of the powder that he previously had; that is, shortly

before his arrest?---The only amount that he mentioned was

the fact that - of a certain amount that he purchased, the

remaining was the items that we'd seized.

...

...So, not in relation to the recently acquired powder; but

he'd mentioned that he had in the past sold?---He had in the

past sold. And he did say that his intention with the

substance that we seized was to use some for his own use,

and sell the rest.

And, constable, were any charges preferred against him in

respect of that admission?---He was charged with possess

schedule 8 substance for supply, yes.

For supply?---Yes.

And that's one of those charges that you - - -?---One of

the three charges, yes.

And was that - that charge related to his admission? Perhaps

I put that question to you before. But just rephrasing

that; do you say that one of the charges that you preferred

against him was in respect of his admission for the sale?---

That's correct, yes."

29. In her evidence in chief, Constable McCarthy said that, on 3 February 1989, she searched the premises occupied by the appellant at Richardson pursuant to a search warrant. A number of people were present, including the appellant and Debbie Sykes, the de facto wife of the appellant. Constable McCarthy said that, in her search, she found between the mattress and the base of the bed in the main bedroom, a bundle of money, being a total of $2,815 in fifty dollar bank notes. She also located some disposable plastic gloves and some plastic resealable bags.

30. In cross-examination, Constable McCarthy said that no drugs were found on the premises.

31. In his evidence in chief, Constable Wood said that he participated in the search on 3 February 1989. He gave the following evidence of a conversation with the appellant after Constable McCarthy had found the bank notes in the bedroom:

"Well, can you give us that conversation please?---

'Constable McCarthy has just located a large quantity of

Australian bank notes under the mattress in your bedroom.

What can you tell me about this?' He said, 'Proceeds of a

car sale.' I said, 'How much is there?' He said, 'I don't

know. 25, 26, I don't know'. I said, 'When did you sell

the vehicle?' He said, 'About two weeks ago.' I said,

'What type of vehicle did you sell?' He said, 'An old

Holden. Something I bought out of the paper.' I said, 'Who

did you buy it from?' He said, 'I don't know. I saw it in

the paper, I rang him up, and he came over. He signed the

rego papers over, and then I sold it again.' I said, 'Who

did you sell it to?' He said, 'I don't know.'

...

At any rate, as that counting procedure took place, I think

there was some more conversation?---I said, 'How much did

you pay for the vehicle?' He said, '2000.' I said, 'How

much did you sell it for?' He said '26 and a half, I

think.' I said, 'What model and make was it?' He said,

''71 Holden.' I said, 'How many days did you have the

vehicle in your possession?' He said, 'Three or four days.'

I said, 'How did you manage to sell the vehicle?' He said,

'I told a few people, word of mouth, and then someone rang

me up and said, 'We're interested in buying it.' I said,

'How did they pay for the vehicle?' He said, 'Cash.' I

said, 'Did you give them a receipt or bill of sale?' He

said, 'No, I just gave them the rego papers.'"

32. Constable Wood also gave evidence that $400 was "found" in the appellant's wallet and $500 in a bank passbook. Constable Wood went on to give the following evidence:

"Can you give us that conversation with the assistance of

your statement, please?---I said, 'Mr. Guerin, the police

have located some surgical gloves in your bedroom. What can

you tell me about them?' He said, 'I bought them for my

wife to do the washing up but she wouldn't wear them so I

threw them in the cupboard.' I said, 'Police have also

located a large number of resealable plastic bags in your

bedroom. What can you tell me about them?' He said, 'My

wife puts jellybeans in them for the kids.'

Now did Ms Sykes say something at this time?---Mrs Sykes was

there and she said, 'I put rings in them for the shop.' I

said, 'Police have also located a further large amount of

resealable plastic bags in your kitchen cupboard. What can

you tell me about them?' The same as the others; for

putting bits and pieces in them.'"

33. Later, Constable Wood gave this evidence of a conversation with the appellant:

"I see here on the kitchen bench a scanner. What can you

tell me about it?---It is something I bought a long time

ago.

I also notice it is on the police channel number 4, why is

that?---I don't know what channel it is on.

What do you use it for?---Taxis or anything else I can get

on it."

34. Constable Wood also gave evidence that a set of scales was found on the premises.

35. Constable Wood also gave evidence in chief of a second search of the premises occupied by the appellant on 24 May 1989, when a plastic bag containing amphetamine powder was found in the lining of an above ground swimming pool in the back yard of the premises.

36. In cross-examination, Constable Wood agreed that no drugs were found on the premises in the search carried out in February 1989. He gave the following further evidence in cross-examination concerning the sum of $2,815 found under the bed in February 1989:

"(Counsel for the appellant): And do you agree with me that

that money was, in fact, after it had been taken by the

police during the course of the search, returned to Mr

Guerin?---Yes, I gave it back to him at Mitchell, then I

went to his house again and got it back again.

Well, perhaps we will just take that one step: so he

surrendered the funds to you whilst you were at Mitchell?---

No. When we did the warrant in the morning, I took all the

money; we had the money in our possession. We went to

Mitchell, we searched his premises at Mitchell, we talked to

each other in relation to the money, there were no drugs

seized. Mr. Guerin paid some outstanding warrants and I

gave him all the money back.

That took place at Mitchell?---He signed for the money and

he was given the money back. I then returned to the city

police station and made inquiries with the senior police

officials and the Department of Public Prosecutions and was

given certain advice from those people. I then went back

out to Mr Guerin's house at Richardson, spoke to him, and he

gave me the money back again.

And then after that had taken place, would you agree with me

the end result was that the money was returned to Mr

Guerin?---After the commital hearing, the money was again

returned to Mr Guerin, that's correct.

Well, is it not the case that the money was reasonably

suspected of it being unlawfully obtained, then a charge

would have been made and following the dismissal of that

charge, the money was returned?---Yes, a charge was made:

it was a summons in relation to unlawful possession that

went for committal hearing and the money was returned to

him.

So it was all returned to Mr Guerin?---That's correct."

37. (On 29 May 1990, Mr. M. Ward, Magistrate, ruled that there was no case for the appellant to answer and dismissed an information under s.527A(1) of the Crimes Act 1990 (ACT). Under that provision, a person who has any money in his custody being money that is reasonably suspected of having been stolen or otherwise unlawfully obtained is guilty of an offence. It will be necessary to refer later to the significance of the dismissal of the charge for present purposes.)

38. In his evidence in chief, Sergeant Madden said that, in the second search of the appellant's premises, he found a small quantity of powder, later identified as cocaine, in a dart flight in a leather wallet. He also located another leather wallet containing $610 in Australian currency in various notes.

39. Ms. Skinner, who was called by the Crown, gave evidence in chief that, in May 1989, she was living at 5 Wentcher Place, Richardson. She was then the girlfriend of Jason Guerin, the son of the appellant. She said that the substance found in the lining of the pool was not hers and that she had not seen anybody living in the house use any white powder.

40. In cross-examination, Ms. Skinner said that there was a room in a garden shed in the yard of the premises that was occupied by Robert Sykes.

41. Ms. Sykes, the sister of Robert Sykes, who was called by the Crown, gave evidence in chief that in May 1989 she was living with the appellant at the premises in Richardson. She said that the substance found in the lining of the pool was not hers.

42. In cross-examination, she said that the scales seized by the police were not used by the appellant and were "just an ornament".

43. The appellant's evidence was that he met Mr. Robbie in 1982 or 1983 through a motor cycle lobby group. The appellant then carried on business as a dealer in motor cycles. Mr. Robbie bought parts from the appellant at his shop from time to time. Mr. Robbie visited the appellant at his home on only two occasions: first, in December 1988, when they discussed the possible sale and purchase of a motor cycle then located in Cootamundra; secondly, on 13 February 1989, when Mr. Robbie delivered the motor cycle to the appellant in return for the price of $1,200 which he then paid to Mr. Robbie.

44. The appellant denied that he had ever supplied drugs to Mr. Robbie.

45. The appellant said that the scales seized by the police were ornamental only.

46. The resealable plastic bags were mainly used in the appellant's shop to store, inter alia, small gaskets or washers. They were also used to hold jewellery. They were never used to store drugs.

47. The gloves that were seized were never used to handle drugs. They were purchased to be used by Ms. Sykes "around the house" but she "wasn't overly impressed" with them, so she didn't use them.

48. In cross-examination, the appellant said that he had kept more than $4,000 under the mattress but had probably used some of it to buy "food or something", so that $2,815 remained at the time the police searched the house on 3 February 1989. He said that he had sold an old Holden motor vehicle about two weeks before.

49. The appellant gave the following evidence concerning the sums of money "found" in the search in February 1989:

"(Counsel for the Crown): Well, why did you have $400 in

your wallet and $2800 under your bed?---Well, as I explained

to Detective - Mr Woods at the time that money had been in

the wallet for something like five or six months. I was

pulled up on Belconnen Way one day - Ginninderra Drive one

day on my bike and was asked to go down to the Belconnen

Police Station and was told I had two commitment warrants

for $400 which had to be paid in seven days which I had to

go in and pay them, otherwise I'd get a commitment warrant

for my arrest. So I put $400 in the back of my wallet and

said, 'Right, well, when they pull me up to lock me up for

these warrants I've got the money to pay for them.' I

wasn't going in to pay them.

And there was another $500 in an ANZ bank book?---I don't

remember why that was in there. Could have been any reason.

Was it your bank book?---I'd imagine so, yes."

50. Ms. Langshaw, a friend of the appellant, gave evidence that she visited the appellant at his home on Friday, 13 January 1989. When she was there, Mr Robbie arrived with two other men, in a station wagon. They "dropped off" a motor bike and left. She did not see the appellant give anything to Mr. Robbie.

51. Dr Willow gave evidence as to the effects of amphetamines on the human mind:

"The effects on the human mind can be put into two

categories, which essentially relate to the dose given.

This is assuming that the compound is administered to a

person with no previous major psychiatric history. I am

making that assumption. If the drug is given in the range

of between 5 and 10 milligrams, up to two or three times a

day, the drug produces a sense of well-being, known as

euphoria. A person has an increased level of awareness, if

you like; feels very confident; often becomes quite

gregarious in one's speech; more talkative than normal, as

assessed by other observers. The effects - depending on

whether the drug is taken orally or intravenously - the

effects come on within - if it's taken intravenously, almost

instantaneously; orally, on an empty stomach, typically

within half an hour. The effects of the drug persist

anywhere from six to 12 hours. So, they're the effects of

what we would call a small dose - a conservative dose. If

that dose is increased from 5 or 10 milligrams to, let's say

50 milligrams and above, taken two or three times a day, one

develops a tolerance to - so-called tolerance to the effects

- to some of the effects of the drug. In other words, the

so-called pleasure that one attains from taking a lower

dose, one requires more and more drug to obtain the same

effect. In addition, what frequently is encountered

clinically is that the euphoriant effects which are

associated with the lower dose of the drug change somewhat,

and people are liable to, what is known as a toxic

psychosis, which is associated with the drug; and which in

many - well, in nearly every facet - is clinically

indistinguishable from the disease known as paranoid

schizophrenia.

52. Ms. Guerin, who was formerly the wife of the appellant, said that the scales were given to the appellant and herself as a birthday present.

(D) The address to the jury by counsel for the appellant

53. Counsel for the appellant said that his case was one of denial. Specific reliance was placed upon the evidence of Ms. Langshaw and the expert opinion of Dr. Willow which, it was contended, should take into account in addressing the weight to be given to the evidence of Mr. Robbie.

54. With respect to the discovery of drugs in the pool, counsel said:

"...I asked you when you were considering these charges

against my client, would you recall the description and the

location of that pool. I asked you to consider the

accessibility of that pool. I asked you to consider the

evidence of Debbie Sykes and Kimberley Skinner about

prowlers shortly before that time."

55. As to the money found under the bed, counsel said:

"You heard about the money, and I am speaking of the

quantity of money under the bed, in excess of $2000. That

money was found and of course Mr Guerin alleges that he told

the police where to look for that. The money was

subsequently returned to Mr Guerin. It was taken back by

the police and then there is evidence that it was finally

returned to Mr Guerin."

56. Counsel contended that the appellant had satisfactorily explained the position with respect to the gloves, the scales, the police scanner and the plastic bags.

57. Counsel for the Crown said that the jury would only find the appellant guilty on the first count if they found Mr. Robbie to be a truthful and reliable witness. As to Dr. Willow's evidence, counsel said:

"One thing that Dr Willow did not say was that, in his

opinion, the things that this man said were delusions in

relation to the identification of Mr Guerin as the supplier.

Really, it is a matter for you as to what you think of Mr

Robbie. There is one obvious matter that you are going to

have to consider - or I suggest to you that you should

consider. Quite obviously, in 1988 he was both a user and

seller of amphetamine. He was a drug dealer. Now, it is

hardly a matter that reflects positively on his character,

is it, and it is a matter for you the extent to which that

affects your capacity to accept him as a witness of truth.

I suggest to you really that that is what this case and your

assessment of him is really concerned with - whether he is

telling you the truth, or whether he is lying to you."

58. Counsel also relied on the alleged circumstantial evidence consisting of the items found on the premises.

59. With respect to the money "found" by the police, counsel said:

"Now, then we have all this money. Now, before I talk about

the money I will say some fairly obvious things you might

think. Once again, if you are dealing in illicit substances

that necessarily involves you dealing in cash, does not it?

I mean, cash does not tell any tales. As I said to you

before, people involved in these sorts of activities carry

on in secret to minimise the prospect of detection. It is a

matter of ordinary commonsense, surely. You are not going

to find bankcards, American Express, those sorts of things,

on offer when people are involved in dealing in

amphetamines, are you?

So if someone is a drug dealer what would you expect to find

at his place of business? And what do we find here? On 3

February we find thousands of dollars hidden under his

mattress, between his mattress and the base of his bed;

$2815 and I think there was another $900 in cash in the

house. This is a man on sickness benefits and he has given

you an account of his finances; it is a matter for you.

You might think he is an extraordinarily good manager of

money or you might think that what Mr Robbie tells you is in

fact the truth and this man has been accepting $700 every

week or fortnight from him for a long period of time and

that is how he is able to pay his very considerable mortgage

on his sickness benefits. Once again, it is just another

circumstance built on top of all of the others which, in my

submission, supports the testimony of Mr Robbie as being a

person who is telling the truth.

"In this case it may be of importance to consider the

capacity of the witness to remember the events and to give

an account of them because there is an allegation from the

defence side in this case that the prosecution witness, Mr

Robbie, whom you might think is an important witness, may

have been suffering from a condition called toxic-psychosis,

which gave rise to a delusion on his part, in relation to

what you might think are very important questions in the

case. Now, as I say, those are all matters for you.

Obviously, it is up to you to decide which witnesses you

accept and which you reject or, perhaps more particularly,

what part of the evidence of any witness you accept and what

part you reject."

His Honour first turned to the case for the prosecution.

61. In dealing with the first count, his Honour said:

"Now, basic to this charge is the evidence, of course, of

Luke Robbie himself, and I should tell you how you should go

about approaching the evidence of Mr Robbie because, if what

Mr Robbie says is correct, it means that an offence was

committed not only by the accused, but also by Mr Robbie.

Indeed Mr Robbie has told you that he himself pleaded guilty

to a number of charges and was sentenced in relation to the

very methamphetamine that was found in a towel rack, and a

post-pack in his premises and I think, you know, in a post

office box out at Belconnen."

"The law says the juries must (be) warned about how they

consider the evidence of a person who, on his own count, is

an accomplice, and it arises in this way that a person who

is charged with a criminal offence may find it convenient to

seek to place the blame, or part of the blame, on somebody

else. The courts have been faced with those situations for

centuries, and this sort of cautious approach to the

evidence of accomplices is very deeply ingrained in our

system."

"Obviously, in many situations where an offence is

committed, the best person to give evidence about it is

somebody who committed it in the company of the accused

person. You might think, and it is entirely a matter for

yourselves here, that in this particular case in relation to

the first count, where there is a charge of somebody

supplying something to somebody else, you could not get

better evidence in a way than from the person who was

supplied. But although that approach may appeal to you, I

must tell you that, as a matter of law, you should take into

account the danger of convicting on the evidence of Mr

Robbie, unless you find it to be corroborated. You may,

nevertheless, decide that bearing that danger in mind, you

find the offence proved but, before you go that far, you

must bear that danger in mind."

62. Turning to the material which was said to be corroborative of Mr Robbie's evidence, his Honour said:

"You remember that Mr Robbie gave evidence that he had known

the accused for some time and on 13 January 1989, he went to

the accused's house out at Richardson and he purchased, I

think, it was said to be half an ounce. He said, I think,

that there was a price of $700 but he did not pay it there

and then and it was expected, apparently, that payment would

be made in due course. Now, later on, a couple of days

later, you recall there was a police raid - that word used

again - a police raid on the flat that Mr Robbie was

occupying. I think it was in Turner. There was found in

that flat five bags of amphetamine or methamphetamine or

what turned out, you might think, to be methamphetamine.

There was also found, in a Postpak somewhere else in the

premises; and I am not sure exactly where it was and I do

not think there was any evidence about where it was but in a

Postpak there were three similar bags of what was later

analysed and found to be methamphetamine.

Now, you may think, ladies and gentlemen, that that is

supportive, generally, of the story that Mr Robbie tells.

It is entirely a matter for you. I offer the comment, which

you are free to accept or reject, that whilst it does

support Mr Robbie's story that somebody supplied him with

methamphetamine shortly before 15 January 1989, of itself,

it does not support the proposition that it was the accused

who supplied it to him. But you might think that it makes

the story of Mr Robbie overall more credible and if you

think that and you think that the evidence of Mr Robbie is

supported in some material way by that other evidence, that

is entirely a matter for you."

63. Turning to the second and third counts, the Judge said that the Crown's case relied on circumstantial evidence which his Honour then described. He went on to say:

"You will have heard, of course, that there was a brother of

Ms Sykes living in a shed behind the garage. His name was

Robert Sykes. He was not there on the night in question,

but according to the evidence you might think that he had

some sort of a place of abode in that shed and he was coming

and going over a period of time prior to this night the

powder was found in the swimming pool lining. There were

other people living there. There was a 17 1/2 year old son of

the accused; there was a baby, and you have heard that

nobody knows where Mr Sykes is at the present time.

"... you may think that there is something in the argument

that, if you take it in conjunction with the rest of the

evidence, it assists the prosecution case and that is, that

there were bags found - these little plastic resealable

bags. They were found on the night in question, and there

was also a sum of cash - I think some $600 - found there on

the night in question."

64. The Judge referred to Mr Robbie's evidence as follows:

"Now you remember Mr Robbie said that he had purchased

amphetamine - methamphetamine - from the accused on several

occasions. He said that he had done so on at least 20

occasions over a period of 12 months. Now, as I have said,

you must approach the evidence of Mr Robbie, in any event,

with caution because if he says what he says is true, he is

an accomplice in any event.

In addition to that, ladies and gentlemen, I ... warn you

that the evidence of Mr Robbie can only go to establish the

purpose for which the accused had the amphetamine in his

possession, if he did in fact have it in his possession.

The fact that Mr Robbie might have bought amphetamine, or a

similar substance from the accused, regularly or frequently

over a period of time before 24 May, of course shows that

such substances were in the accused's possession at the time

of purchase, but it does not go to show that there was any

such substance in the possession of the accused on 24 May.

The 24 May you are concerned about, not what happened on

previous occasions but, if you did find established beyond

reasonable doubt that the accused had amphetamine in his

possession on 24 May, you could look at the evidence of Mr

Robbie to consider the further question of the purpose for

which the accused had the drug in his possession. And if

you found established that there had been a supply to Mr

Robbie on several occasions over a period in the past, that

might assist you more comfortably to come to the conclusion

that you are satisfied beyond reasonable doubt that the

purpose for which the accused had the amphetamine in his

possession on 24 May was for the supply to other persons.

As I say ladies and gentlemen, approach the evidence of Mr

Robbie, in any event, with caution for the reason I have

already given, but remember it can only go to this question

of purpose, and further, beyond that, what Mr Robbie has

said about what happened over that period of time; that

there were regular purchases by him and therefore regular

offences on the part of the accused in supplying him, is an

allegation of other criminal offences."

65. Next his Honour referred to the police search on 3 February as follows:

"No drugs found on that occasion, but what was found were

some scales, so-called surgical gloves, some more of these

ubiquitous resealable plastic bags, and a larger sum of

money, $2815 when it was all counted correctly. The

prosecution says all that is consistent with the accused

being, in effect, a drug dealer who had these items all in

his possession for the purpose of facilitating the supply of

amphetamine."

"The prosecution case is simply that that bedroom was

occupied by the accused and Debbie Sykes. Debbie Sykes has

given evidence that she had nothing to do with the cocaine.

She did not know anything about it or the foil. There is

evidence from the accused himself, of course, that he owned

the wallet and there were his dart flights. Of course he,

himself, denies that he knows anything about the cocaine;

denies that he put it in the wallet; denies that it was ever

in his possession. And, as I have already said, it is

necessary as part of the prosecution for it to be proved,

for a person to be in possession of something the person has

to know that it is in his custody or control."

67. With respect to the first count, his Honour referred to the evidence of the appellant as follows:

"He says, and it is the defence case, that in relation to

the first count, he on no occasion, at any time supplied any

drug of any type to Mr Robbie. That is his case. He, of

course, is not required and may not be in a position to give

an explanation about why Mr Robbie would give evidence to

the contrary, but it is part of his case, as I understand

it, not that Mr Robbie is lying - that he has come here out

of vindictiveness to the accused or for any other ulterior

motive - because, as I understand it - the defence case, is

that Mr Robbie is mistaken about his allegation that he

obtained amphetamine from the accused at any time and that

allegation is supported in the defence case by the evidence

of Dr Willow."

68. The Judge outlined Dr Willow's opinion evidence and then referred to the evidence of Mr Langshaw.

69. As regards the second and third counts, his Honour said that the appellant denied any knowledge of the packages in the pool liner and added:

"Now, he did not offer any precise explanation of how it

might have been there but his case is, or would be, that

somebody else must have put it there without his knowledge.

And again, you will recall there is evidence that other

people lived in the house and so forth."

(G) Supplementary directions given by the trial Judge

70. As a result of an application in that behalf made by counsel for the appellant, his Honour gave the following further directions to the jury:

"Do you remember when I outlined the prosecution case to

you, I broke up the evidence relating to each particular

count. I told you what the evidence was and what the

prosecution case was in relation to the first count and then

I moved on to the other counts. Now, what I do not think I

said to you expressly and what I do say to you expressly now

is that you must not take into account, on any particular

charge, evidence which is relevant only to another charge.

It is logical enough to say that but it is a proposition

that you have to bear strictly in mind.

It is important in a case like this, particularly where you

have heard evidence from a witness that he was involved in a

number of transactions with the accused on previous

occasions which are not subject of any of these charges.

When Mr Robbie said he purchased amphetamines from Mr Guerin

on several previous occasions, that is a matter which is

admissible but I instruct you, it is admissible only for the

purpose of showing the purpose for which Mr Guerin had

amphetamine in his possession on 24 may 1989. It is

relevant only in relation to the second count. It is not

relevant to any other count and so you must not take it or

give it any regard, in relation to any of other charges.

Furthermore, the fact that you may decide that the accused

is guilty on one charge does not, by itself of course, mean

that the accused is guilty on any other or he is more likely

to be guilty. In other words, you must not approach the

case in this way because there is a mass of evidence against

the accused about what happened on various occasions, you

therefore come to some sort of conclusion that, in general

terms, he is a drug dealer and therefore, is more likely to

be guilty of any one or more of these charges."

71. As has been noted, several grounds of appeal were argued on behalf of the appellant as follows.

On behalf of the appellant, it is submitted that the joinder of the four counts in the one indictment constituted a miscarriage of justice and that, although the second and third counts were alternatives, there should have been separate trials, especially in respect of the fourth count. It is said that, as evidence on one count was not properly admissible on other counts, the charges should not have been tried together, and there was a real risk of prejudice to the appellant in the jury's forming an adverse view on one count and applying it to another. The fact that evidence was admitted conditionally, the argument runs, imposed an impossible and unrealistic burden upon the jury in determining the guilt of the appellant on each count. Moreover, it is said that the fourth count of possession of cocaine in a minute quantity (18 milligrams) had no connection with the other charges, and constituted a real risk of prejudice to the appellant by influencing the jury to approach their decisions on the respective counts on the footing that the appellant was a person who was predisposed to be involved with drugs, and was thus more likely to be guilty.

72. These points were not, however, taken at the trial. Yet, as Gibbs C.J. observed in De Jesus v R [1986] HCA 65; (1986) 68 ALR 1 at 5, that it is not necessarily fatal on an appeal, although the position would be different if counsel had deliberately refrained at the trial from submitting that the joinder were impermissible, in order to gain some tactical advantage. (See also per Mason and Deane JJ. at 10-11.)

73. The general principles in this area were stated by Brennan and Dawson JJ. in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 as follows (at 298):

"The prosecution joined the three counts in one indictment

in pursuance of s. 567(2) of The Criminal Code (Q.) which

authorizes, inter alia, a joinder of counts when the

offences charged are part of a series of offences of the

same or similar character. It does not necessarily follow

that, because counts are properly joined in one indictment,

the trial on each count should not be severed from the

others. If the evidence admissible on each count is not

admissible on the other counts and there is a consequent

risk of impermissible prejudice to an accused in the conduct

of a single trial on all counts - and there usually is such

a risk in sexual cases - separate trials should be ordered:

De Jesus v The Queen."

See also Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 369.

74. Was the evidence on each count admissible on the other counts? On behalf of the appellant, it is said that it was not and that it should have been treated as impermissible "similar fact" material.

75. In Reg. v Makin [1893] NSWLawRp 28; (1893) 14 LR (NSW) 1, Windeyer J. said (at 18):

"... you can give evidence of the commission of another

crime when the evidence concerning the other crime is either

a part of the res gestae in the case before the Court, or

where the evidence about it is so connected with the

prisoner which is the subject of the trial."

76. In Harrimann v The Queen [1989] HCA 50; (1989) 167 CLR 590, the accused was charged with being knowingly concerned in the importation of heroin. It was held that evidence of the accused's prior involvement in the sale of heroin was admissible.

77. McHugh J., after referring to Makin, said (at 628):

"Even though evidence reveals other criminal conduct on the

part of the accused, it will be admissible if it is

'evidence of facts forming part of the same transaction as

that under inquiry' (i.e. part of the res gestae)...

Moreover, evidence of collateral facts tending to prove the

facts in issue (i.e. circumstantial evidence) is also

frequently admissible even though the evidence reveals other

criminal conduct of the accused. However, the cases draw a

distinction between evidence, disclosing other criminal

conduct, which is part of the transaction or res gestae and

circumstantial evidence, disclosing other criminal conduct,

which tends to prove a fact in issue. As will appear, the

admissibility of circumstantial evidence, revealing other

criminal conduct, is subject to special rules."

"If, as a matter of human experience, the evidence tends to

establish the offence charged or a fact in issue otherwise

than by showing merely the commission of another offence or

a propensity to commit an offence, the evidence is

admissible. I would therefore respectfully agree with

McHugh J. that evidence of events which are part of the res

gestae is admissible - and will usually be admitted - even

if that evidence reveals the commission of an

offence other than the offence charged. But, for my part, I

do not find the classification of evidence revealing the

commission of another offence as 'circumstantial' to be

helpful in ascertaining the criterion of its admissibility.

Whatever the classification of the evidence, its

admissibility depends on its satisfaction of the criterion

that its probative force clearly transcends its merely

prejudicial effect: ... I would regard the distinction

between res gestae evidence and circumstantial evidence as

illustrative of the differing application of a single

criterion rather than as a ground for applying different

criteria of admissibility or invoking different approaches

to the exercise of the judicial discretion. If this view

departs from that of McHugh J., the departure is more in the

realm of theory than of practice."

79. In my opinion, the evidence of Mr Robbie that the appellant had sold drugs to him from time to time was arguably probative of the facts in issue on each of the other counts. It would follow that prima facie, this was admissible material on each count. But I need not express a concluded view on this point. In my opinion, the admission of the evidence was not impermissibly prejudicial or unfair to the appellant in any event. As has been seen, the trial Judge directed the jury not to take into account evidence which was not relevant to the particular charge under consideration. His Honour also warned the jury of the inherent risks involved in relying upon the uncorroborated evidence of Mr Robbie. It follows, in my opinion, that there was no miscarriage of justice by reason of the joinder of the counts or by virtue of their being dealt with in a single trial.

80. As has been noted, evidence was led by the prosecution, through Constable Wood, that the appellant had been summarily charged under s. 527A(1) of the Crimes Act and that the charge had been dismissed. However, no specific objection was made at the trial in the present matter to the admissibility of the evidence as to the finding of any of the money located during the searches of the appellant's premises.

81. The summary proceedings, in which Constable Wood was the informant, were dealt with by Mr M. Ward, in the Magistrates Court of the Australian Capital Territory on 29 May 1990. Mr. Ward dismissed the information, upholding a submission that there was no case to answer.

82. In his reasons, the learned magistrate said that in respect of the sum of $2,815 (and also the sum of $900 found on the appellant himself, concerning which no evidence was led at the trial in the present matter):

"Constable Wood who was in charge of the raid gave the money

back to the defendant. Some time later, acting on legal

advice he sought out the defendant again and asked for and

got back the cash money. The defendant is now charged with

unlawful possession of that money. On that charge there is

other relevant evidence. Luke Robby said that the defendant

was a drug dealer from whom he had purchased drugs regularly

over the previous 12 months. On 13 January 1989 he had

purchased 14 grams or 1/2 ounce of methyl amphetamine from

the defendant on credit.

On the day of the raid, the day on which the $3715 had been

found, the defendant was unemployed. He had been unemployed

for 10 years. Despite the unemployment he had purchased a

house at Richardson by deposit on loan from the Civic

Advance Bank. The loan was obtained by falsely pretending

he was employed and by presenting a forged certificate from

his alleged employer. There was no direct evidence from the

relevant police officers, or indeed, anyone else as to what,

if any, thoughts they had concerning the $3715 or any part

of it."

83. Mr Ward went on to say, in respect of the sum of $610 located in the policy search in May 1989:

"Again the defendant is charged with unlawful possession of

the $610. The only other relevant (fact) is (that) the

defendant remained unemployed between the two raids in

February 1989 and May 1989. Again, none of the relevant

police officers, nor indeed, any other person deposed to any

particular belief concerning the $610. ... Mr de Crepigny

for the prosecution argued it was unnecessary for the

prosecution to lead evidence of the suspicion of the police

or any other person concerning the goods or money in a case

of this nature.

He argued that the only suspicion which is relevant is the

suspicion of the magistrate concerning the goods or money at

the end of the prosecution case."

84. After analysing the authorities in this area, Mr Ward said:

"There are very good reasons why it ought to be someone else

other than the court to do the suspecting. It ill behoves a

court to guess or suspect. A court acts on evidence and

makes findings and in the second place it may well be that a

court is not in full possession of all the facts relevant to

the formation of the suspicion or to the reasonableness

thereof. ...

There is good reason for requiring him - that

is, the informant

to pledge his oath upon the subject. The fact

he has not done so may create a doubt about his

being fully able to do so.

There is nothing in the facts of these cases which would

enable the court to be satisfied beyond reasonable doubt of

the suspicion in either case. With regard to the $3700 odd,

the relevant policeman gave the money back to the defendant

which says something, surely, about the state of his

suspicion. There was nothing particularly remarkable or

compelling about the possession of the $610 and I could not,

in the absence of evidence from the informant or somebody

else infer that any suspicion they might have held was held

on reasonable grounds."

"No such process was issued here the defendant having been

arrested without warrant on different charges. Whilst it is

possible to infer that the informant suspected that the

defendant had committed the offences in question, I doubt

that as a matter of law, without more, I could accept the

mere laying of the information as evidence capable of

amounting to proof beyond reasonable doubt of that

suspicion.

Certainly, none of the other cases which have foundered upon

this particular rock of thought to have ... translated the

significance of the laying of information. And I rule that

in these particular cases there is no case to answer and the

information should be dismissed."

What is the significance of this dismissal for present purposes?

86. In The Queen v Storey [1978] HCA 39; (1978) 140 CLR 364, evidence was admitted at a rape trial which tended to show that the accused took the prosecutrix away by force with intent that she be carnally known. The accused were convicted. But, at a previous trial, the accused had been acquitted on a charge of forcible abduction. It was held, by a majority of the High Court, that the conviction could not stand.

87. Mason J., referring to Sambasivam v Public Prosecutor, Federation of Malaya (1950) AC 458 and Garrett v The Queen [1977] HCA 67; (1979) 139 CLR 437, said (at 396):

"Both these decisions establish, quite independently of the

doctrine of issue estoppel, that the principle of res

judicata as applied in criminal proceedings will preclude

the Crown from challenging the effect of a previous

acquittal, not merely in proceedings for the same or a

substantially similar offence, but also for proceedings for

a different offence when evidence of the transaction the

subject of the acquittal is sought to be relied upon. In

its application in this fashion res judicata gives

expression to the notion that once a person is acquitted of

an offence, the acquittal must be recognized fully and

without qualification for all purposes in criminal

proceedings."

"Compliance with the principle of res judicata does not in

my view necessarily entail the exclusion at a subsequent

trial of relevant evidence which might on its face, if

unexplained, tend to suggest that the accused was guilty of

an offence of which he has already been acquitted.

Sambasivam...did not go so far, leaving unresolved the

question whether the statement should have been rejected in

its entirety in that case. The ground of that decision

implicitly acknowledged that the requirements of res

judicata may be satisfied in an appropriate case by the

admission of evidence of this kind accompanied by a precise

instruction to the jury that the prior acquittal cannot be

challenged and that the evidence, for what it may be worth,

is to be understood in this light.

There are some cases, and the present is one of them, in

which the exclusion of a part of the testimony of a material

witness in deference to the principle of res judicata would

render the balance of the witness' testimony so incomplete

and artificial as to provoke dangerous speculation on the

part of the jury. In such circumstances, provided that it

works no injustice to the accused, it is preferable that the

evidence of the witness should be led and precise

instructions should be given to the jury as to the use to

which that evidence can be put. In this case the adoption

of this course will in all probability advantage the accused

because it tends to suggest that the testimony of the

witness to the extent to which it was relied on by the Crown

to support an earlier charge may have been found to be

unacceptable. At the same time the Crown is not precluded

from leading evidence which is relevant to the offence

charged."

89. See also Arnold v National Westminster Bank PLC (1991) 2 AC 93 at 108-9.

90. It follows, in my view, that the res judicata principle precluded the Crown from challenging the effect of the dismissal by Mr Ward of the earlier summary proceedings. As has been seen, those proceedings were dismissed on the technical ground that there was no direct evidence from the police officers, or any other person, that they held the belief, or suspected, on reasonable grounds, that the money had been unlawfully obtained. The trial Judge did not give any specific direction on the point, but, as has been noted, the Crown led evidence through Constable Wood first, that the money had been returned and, secondly, that the charges had been dismissed by the Magistrates Court. No attempt was made by the prosecution to explain to the jury that the dismissal of the information had been ordered on a technical ground. In those circumstances, in my view, it was not unfair to the appellant for the trial Judge not to give the direction as to the process of reasoning employed by Mr Ward in upholding the submission of no case to answer. If anything, the jury would have been left with the impression that the proceedings had been dismissed on the merits and this impression would not have been prejudicial to the appellant. The jury had already been told that the money had been returned to the appellant. In these circumstances it is unlikely, in my opinion, that in determining guilt, the jury would have given the evidence with respect to the seizing of the money any real weight. In my view, no further direction from the trial Judge was called for.

(3) Was the verdict on Count 1 unsafe and unsatisfactory?

91. I agree with von Doussa J., for the reasons he gives, that the verdict was neither unsafe nor unsatisfactory.

(4) Was the verdict on Count 2 unsafe and unsatisfactory?

92. On behalf of the appellant, it is submitted that the prosecution failed to negative the possibility that other occupants of the premises may have been the possessor of the drugs. Reliance is placed upon the decision in Filippetti (1978) 13 A Crim R 335 and upon the reasoning of Hunt J. in Dib and Dib (1992) 52 A Crim R 64 at 69 and 72.

93. The present question is whether, as contended on behalf of the appellant, the Judge failed to direct the jury that the Crown had to eliminate any reasonable possibility that the drugs found in the liner of the pool had been within the possession of persons other than the appellant. In this connection, his Honour said:

"As far as the second and third counts are concerned, the

accused says that he has no knowledge of the packages being

in the pool liner. He has maintained that at all times to

the police and he maintained it to you in his sworn evidence

and a number of alternative explanations are offered to you

on behalf of the accused as to how those items, those

packages, of powder which turned out to be amphetamine came

to be in the pool liner. One explanation, of course, is the

prosecution explanation that the accused was responsible for

having it there and he knew it was there.

The defence case is that there are other possibilities. Any

one of which is a reasonable possibility and being a

reasonable possibility would leave you in doubt as to the

prosecution allegations. One of those possibilities is, of

course, that Mr Robert Sykes, who can no longer be located

and who was living in the shed, could have put it there.

Other possibilities are that prowlers were around the area

at the time and you have heard the evidence from the two

young women about their fears of prowlers and their hearing

of noises out in the area of the backyard and the sauna

room..."

94. However, in his introductory remarks, the Judge had previously said the following:

"... the accused having been charged with a criminal offence

is nevertheless, entitled to the protection of what we call

the presumption of innocence. That is to say that, from the

moment the trial commences, he is to be presumed innocent

until such time as there is a finding that a charge or

charges have been proved against him, if there is such a

finding.

It also means that because the accused is presumed innocent,

he does not have to prove anything.

Allied with that principle is the next one. Given that the

accused is presumed innocent, how is that presumption

removed? Who has the task of removing it? The answer is

simple. It is the prosecution who is responsible for having

us all assembled here today and over the last few days. The

prosecution has brought the case against the accused. The

prosecution has the job ahead of it of proving what it has

set out to do. The prosecution, lawyers say, bears the onus

of proof or the burden of proof.

The third principle is this: given that it is the

prosecution that has the onus of proof, how far does the

prosecution have to go before that onus is discharged. What

does the prosecution have to do before it is entitled to say

that the accused is liable to be convicted. The answer to

that is this: the prosecution must prove the essential

elements of the charge against the accused, beyond

reasonable doubt."

95. In my opinion, the comments later made by his Honour concerning the second and third counts should be read in the context and against the background, of his earlier explanation that the Crown had the burden of proving, beyond reasonable doubt, each essential element of the offence charged. In particular, his Honour's later remarks should not be read as suggesting any reversal of the onus of proof. Rather those comments should be seen in their context, that is, as a summary of the respective cases made by the parties on the facts.

96. Moreover, his Honour had previously explained the concept of possession in some detail. He had said:

"I will tell you what the elements are in relation to the

second count. I repeat: they are that the accused on 24 May

1989 did possess a drug of dependence, namely amphetamine

for the purpose of supply to another person and the first

element in that charge - and it is a crucial one - is that

the accused possessed the item in question. The concept of

possession is central to the charge and you must be careful

to consider what I say about this idea of possession. On

the whole, I suppose, it is an idea that is well understood

in the community but it does have a particular legal - there

are particular legal parameters in relation to this idea of

possession.

The person, in law, is said to possess something if it is

under his or her control or in his or her custody. So, that

if I pick up this cheap government issued pen; it is in my

fingers; I have referred to it; I know its in my fingers;

its under my control. It must be therefore in my

possession. I said that I know it is in my possession

because that is an essential element in this legal concept

of possession. A person cannot be said to be in possession

of something unless he or she is aware that it is under his

or her control or in his or her custody."

"Now, in this case, of course, in relation to the second and

third count and also the fourth - to which I will come in a

moment - this question of knowledge is essential because of

the circumstances in which the items in the pool liner and

the item in the accused's darts wallet were found. That is

the concept of possession. Now, what has to be possessed,

what has to be the subject of possession in relation to the

second and third count is a drug of dependence, namely

amphetamine."

97. In my view, when the summing up is read as a whole, there was no error of law in the directions given in respect of counts 2 and 3; nor were the remarks made in that connection unfair to the appellant. It follows, in my opinion, that the verdict on count 2 was neither unsafe nor unsatisfactory.

(5) Was the verdict on Count 4 unsafe or unsatisfactory?

98. In the light of the conclusions I have expressed on the general arguments advanced on behalf of the appellant, it must follow that I would not disturb the conviction on this count.

99. On the view I have taken of the matter overall, this question does not arise for decision.

VON DOUSSA J. This is an appeal against three convictions recorded against the appellant upon the verdicts of a jury. A summary of the charges in the indictment, and of the evidence led at the trial are set out in the judgment of Higgins J. which I have had the opportunity to read.

2. One ground of appeal strenuously argued on the appellant's behalf contends that a substantial miscarriage of justice was occasioned by the "flagrant incompetence of defence counsel". In substance, the contentions of counsel who appeared for the appellant before this Court assert that by reason of failures of defence counsel to object to the joinder of the four counts in the indictment, to object to the admission of evidence as to the finding of a substantial sum of cash, surgical gloves, scales and resealable plastic bags during a search of the appellant's home on 3 February 1989 and as to the finding of more cash during another search on 24 May 1989, and to seek additional directions to the jury from the trial Judge, in particular as to the use which might be made of this evidence, the appellant was denied a fair trial and a real chance of acquittal. The subject matter of these alleged failures on the part of counsel are separately pleaded as additional grounds of appeal, and there are other grounds of appeal also raised which are unrelated to the conduct of the trial by defence counsel. It is convenient to defer consideration of the complaints made about the quality of defence counsel's representation until last as the merits of those complaints are closely related to the merits of the other grounds of appeal.

3. This ground of appeal is based on the proposition that separate counts should not be joined in one indictment where the evidence on one count is inadmissible on the other count or counts: De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1.

4. First, it is submitted that count 1 charging the supply of meth-amphetamine to another person, namely Luke Gerard Robbie, between 29 December 1988 and 16 January 1989 should not have been joined with counts 2, 3 and 4. Count 2 charged possession of amphetamine for the purpose of supply to another person. Count 3, as an alternative to count 2, charged possession of amphetamine. Count 4 charged possession of cocaine. The latter three counts all arose out of the discovery of amphetamine and cocaine at the appellant's home on 24 May 1989. Secondly, it is submitted that as the cocaine had no apparent nexus to the other charges count 4 should not have been joined, and moreover as the amount of cocaine was minute (18 miligrams) the joinder gave rise to a risk of prejudice by causing the jury to approach their decision on the basis that the appellant was a person with a pre-disposition to be involved with drugs and was thus more likely to be guilty.

5. On count 2 the Crown was required to prove both the possession of the amphetamine by the appellant on 24 May 1989, and that the purpose of that possession was for supply. The quantity of amphetamine in question was less than the prescribed trafficable quantity. The Crown sought to establish that purpose by inference from evidence that over a period of some months leading up to 13 January 1989 the appellant had regularly sold significant quantities of amphetamine to Robbie (who was addicted to the substance), and from the discovery in the appellant's home on 3 February 1989 of indicia of drug dealing - a large sum of cash, scales and surgical gloves. Evidence of possession of amphetamine for the purpose of supply some months before the alleged possession the subject of count 2 was probative of the purpose of possession of amphetamine by the appellant on the latter occasion: Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590.

6. Proof of the sales to Robbie lay solely in the oral evidence of Robbie, and included amongst the sales relied upon was the sale the subject of count 1. On the evidence as led at trial that sale was alleged to have taken place on 13 January 1989. In determining whether count 1 was properly joined with counts relating to the offences charged on 24 May 1989 it is not to the point that Robbie was an accomplice to the offence on 13 January 1989, and that his evidence identifying the appellant as his supplier lacked corroboration and may have been of questionable reliability. In my opinion count 1 was properly joined with count 2 as the evidence of prior sales of amphetamines to Robbie, including the sale on 13 January 1989 was admissible on count 2.

7. Count 3, being an alternative charge to count 2 was properly joined with counts 1 and 2.

8. In my opinion count 4 was also properly joined. The cocaine was found on the occasion of the same search on 24 May 1989 which revealed the amphetamine. The cocaine was found in the general area of the appellant's house where other articles were discovered, the presence of which were proved as part of the Crown case. The cocaine formed part of the res gestae.

9. The joinder of the four counts however required clear direction from the trial judge to the jury as to the use which could be made of the evidence of Robbie so as to avoid improper use of that evidence on counts 2, 3 and 4, and about the evidence of the finding of cocaine to confine the use of that evidence to count 4. In my opinion appropriate directions were given to the jury, and no miscarriage of justice occurred by reason of the joinder or the failure of counsel for the appellant to seek an order for separate trials.

Improper admission and use of evidence relating to the sums of cash

10. Upon the search of the appellant's home on 3 February 1989 the sum of $2,815 in notes was found under the appellant's mattress. Upon the further search of his home on 24 May 1989 the sum of $610 was found in a wallet in his bedroom. Evidence of the finding of these moneys was led at the trial. Prosecuting counsel in his final address placed emphasis on the appellant's possession of this money. The appellant had been out of work for a long time. He was receiving sickness benefits. Counsel argued that large sums of money along with scales, resealable plastic bags and surgical gloves indicated the likelihood that the appellant was indeed dealing in drugs.

11. The learned trial Judge reminded the jury of the items discovered by the police on 3 February 1989 when dealing with counts 2 and 3 and said "The prosecution says all that is consistent with the accused being, in effect, a drug dealer who had these items all in his possession for the purpose of facilitating the supply of amphetamine."

12. The appellant in his evidence endeavoured to explain his possession of the money as being the proceeds of the sale of a motor vehicle which he had bought from an unknown person and sold a few days later to another unknown person at considerable profit, and from the sale of motor bike parts. It is likely that the jury would have treated the appellant's explanation as improbable. The possession of the sums of cash found by the police is likely to have weighed heavily with the jury as evidence supporting the conclusion that the defendant was guilty of both counts 1 and 2.

13. Between the date of his arrest and the trial, the appellant was charged pursuant to s.527A of the Crimes Act 1900 (ACT) with the unlawful possession of the sums of money found on the occasions of the two police searches. The charges were laid by Gary James Wood, the detective who supervised the searches. After a hearing on the merits in the Australian Capital Territory Magistrates Court the presiding magistrate found that the appellant had no case to answer, and dismissed the charges.

14. At the trial of the appellant in the Supreme Court on the matters the subject of this appeal, no objection was taken by defence counsel to the admission into evidence of the finding of the sums of cash. Detective Wood gave evidence of the searches. He was cross-examined as to the fate of the money:

"And the money was subsequently found under the bed, the sum that

you referred to - the exact amount, I just haven't got at the

moment - it is in excess of $2000?---$2815 under the bed.

And do you agree with me that that money was, in fact, after it

had been taken by the police during the course of the search,

returned to Mr Guerin?---Yes, I gave it back to him at Mitchell,

then I went to his house again and got it back again.

Well, perhaps we will just take that one step: so he surrendered

the funds to you whilst you were at Mitchell?---No. When we did

the warrant in the morning, I took all the money; we had the

money in our possession. We went to Mitchell, we searched his

premises at Mitchell, we talked to each other in relation to the

money, there were no drugs seized. Mr Guerin paid some

outstanding warrants and I gave him all the money back.

That took place at Mitchell?---He signed for the money and he was

given the money back. I then returned to the city police station

and made inquiries with the senior police officials and the

Department of Public Prosecutions and was given certain advice

from those people. I then went back out to Mr Guerin's house at

Richardson, spoke to him, and he gave me the money back again.

And then after that had taken place, would you agree with me the

end result was that the money was returned to Mr Guerin?---After

the committal hearing, the money was again returned to Mr Guerin,

that's correct.

Well, is it not the case that the money was reasonably suspected

of it being unlawfully obtained, then a charge would have been

made and following the dismissal of that charge, the money was

returned?---Yes, a charge was made: it was a summons in relation

to unlawful possession that went for committal hearing and the

money was returned to him.

So it was all returned to Mr Guerin?---That's correct."

Nothing further was said during the trial as to the outcome of the proceedings in the Magistrates Court. No point was raised by counsel with the trial Judge as to the significance of the dismissal of the charges.

15. The above passages from the cross-examination of Detective Wood did not plainly assert that the appellant had been charged with the unlawful possession of the sums of cash found in the course of the first search on 3 February 1989 and in the course of the second search on 24 May 1989, and that those charges had been dismissed. A reading of the transcript, the addresses of counsel, and the charge to the jury, leaves me with the impression that the trial judge did not appreciate that charges in relation to these moneys had concluded in the Magistrates Court with the acquittal of the appellant.

16. Before this Court counsel for the appellant contended that the principle of res judicata would have prevented the Crown from relying on the appellant's possession of the money as indicative of drug dealing had objection been made to the admission of evidence about it.

17. In criminal proceedings the doctrine of res judicata finds expression in the pleas of autrefois convict and autrefois acquit. The validity of the plea depends on the accused having previously been convicted or acquitted at an earlier trial of the offence charged on the later occasion. The plea of autrefois acquit can have no application in the present case as the counts in the indictment are markedly different from the earlier charges of unlawful possession of money.

18. However, even where a plea of autrefois acquit cannot be raised in bar to a later charge, an acquittal upon an earlier charge can have important consequences on the course of evidence on a later charge. An accused is entitled to the full benefit of the acquittal which cannot be called into question in later proceedings against the accused. In Sambasivam v Public Prosecutor, Federation of Malaya (1950) AC 458 at 479 Lord MacDermott said:

"The effect of a verdict of acquittal pronounced by a competent

court on a lawful charge and after a lawful trial is not

completely stated by saying that the person acquitted cannot be

tried again for the same offence. To that it must be added that

the verdict is binding and conclusive in all subsequent

proceedings between the parties to the adjudication. The maxim

'res judicata pro veritate accipiter' is no less applicable to

criminal than to civil proceedings. Here, the appellant having

been acquitted at the first trial on the charge of having

ammunition in his possession, the prosecution was bound to accept

the correctness of that verdict and was precluded from taking any

step to challenge it at the second trial."

The principle was succinctly stated by Gibbs J. in The Queen v Storey and Another [1978] HCA 39; (1978) 140 CLR 364 at 387:

"...the Crown cannot challenge an acquittal, and the accused is to

be taken as entirely innocent of the offence of which he was

previously acquitted..."

See also Barwick C.J. at 372, Mason J. at 400, Jacobs J. at 407 and Aickin J. at 415.

19. The principle is not based strictly on the doctrine of issue estoppel. It is not confined to proceedings where there is an identify of interest in the parties cf; Ramsay v Pigram [1968] HCA 34; (1967-1968) 118 CLR 271. Rather it is based on the principle against double jeopardy. In my opinion the principle had application to the trial of the appellant in the Supreme Court even though in the proceedings in the Magistrates Court the complainant was Detective Wood, and in the Supreme Court the indictment was presented by the Director of Public Prosecutions in the name of the Crown.

20. Before this Court counsel for the respondent contended that the principle recognised in The Queen v Storey had no application as the presiding magistrate, in dismissing the unlawful possession charges proceeded, on an erroneous view of the law. The learned magistrate held that it was a necessary element of the offences charged that the arresting police officer held a reasonable suspicion that the goods in the possession of the defendant were stolen or otherwise unlawfully obtained. The prosecution had led no evidence to this effect but argued that the charge was proved if the magistrate trying the charge held that suspicion. Absent evidence of a reasonable suspicion entertained by the relevant police officer the magistrate held that there was no case to answer, and the charges were dismissed. The complainant did not appeal against the dismissals.

21. The dismissal of the charges of unlawful possession stand as acquittals. Before the Supreme Court the appellant was entitled to maintain that he was entirely innocent of possessing sums of money on 3 February 1989 and 24 May 1989 reasonably suspected of being unlawfully obtained. In the circumstances of this case the only ground for such a suspicion could have been that the moneys were the proceeds of drug dealing.

22. Unless an acquittal by a court of competent jurisdiction is set aside on appeal it is not open to the Crown in subsequent proceedings to go behind the acquittal and argue that it was entered because of a mistaken view of the law, or the facts. The finality of the acquittal is well illustrated by G (an infant) v Coltart (1967) 1 QB 432 where, in the first of two related larceny charges the prosecutor announced that no evidence would be tendered (as a material witness was overseas) and in error allowed the charge to be dismissed before the trial of the other charge. It was held that on the later trial of the other charge it was not open to the prosecutor to assert that the items of property the subject of the dismissed charge had been taken by the defendant with a dishonest intent. To do so was inconsistent with the verdict of acquittal. This was so even though the acquittal was the result of patent error on the part of the prosecutor.

23. It is unnecessary on this appeal to consider whether the learned magistrate was correct in his interpretation of the law. In consequence of the acquittals of the appellant in the Magistrates Court it was not open to the Crown in the Supreme Court to allege that the cash found in the possession of the appellant was suggestive of the appellant engaging in drug dealing as this would be to assert that the money was unlawfully obtained. Had the fact of the acquittals been made known to the trial Judge this would not have happened.

24. In the circumstances of this case it is probable, had objection been taken by defence counsel, that evidence as to the finding of the sums of money would not have been admitted. On the assumption that the money was not unlawfully obtained, it was irrelevant to the issues before the Court, and admission of the evidence was likely to be highly prejudicial to the appellant. At the least, if the evidence were led, a very clear warning was required in the charge to the jury that the jury must accord full force to the acquittals. In the events which happened, no such warning was given.

The indicia of drug trading found on 3 February 1989

25. If it is accepted that the sum of money found in the appellant's possession on 3 February 1989 could not be suspected of being unlawfully obtained, the other items of evidence relied on by the Crown which were found in the appellant's possession were not compelling proof that the appellant was a drug dealer. The scales, the resealable plastic bags and the surgical gloves found on 3 February 1989 were located in different parts of his home and bore no traces of drugs. The scales were neatly packaged ornamental apothecary balance scales. The appellant, and his former wife, gave evidence that they had been given to them as a birthday present, and this explained their presence in a display cabinet in the appellant's home. Plausible explanations for the gloves and plastic bags were also offered by the appellant.

26. Counsel for the appellant contended that the verdict on count 1 was unsafe and unsatisfactory as the only evidence identifying the appellant as the person who supplied Robbie with amphetamines on 13 January 1989 was that of Robbie, an accomplice, whose evidence was not in that respect corroborated. Moreover, it is contended that Robbie's evidence was inherently unreliable because of his addiction to amphetamines.

27. Following the detection of Robbie in possession of amphetamines by the police, a search of his flat on 15 January 1989 disclosed eight resealable plastic bags containing amphetamine. The trial Judge correctly directed the jury that this discovery tended to bear out his evidence that there was a person who supplied him with significant quantities of amphetamine, but that it provided no support for the proposition that it was the appellant who was the supplier. The trial was conducted on the footing that there was no evidence from a source independent of Robbie tending to identify the appellant as his supplier. The jury was warned that Robbie was an accomplice. The dangers of acting on the uncorroborated evidence of an accomplice, and the reasons why such dangers exist, were explained by the trial Judge. Whilst the charge to the jury did not say, in so many words, that there was no corroborative evidence supporting Robbie's assertion that the appellant was his supplier, in my opinion that was the plain import of the directions given by the trial Judge.

28. Evidence was led at trial on the appellant's behalf from Dr Max Willow, an expert in neuro-pharmacology, as to the effects which prolonged ingestion of amphetamines can have on the human mind. Prolonged use may lead to a temporary condition of toxic psychosis, and a person suffering that condition may experience delusions, auditory hallucinations and changes in insight and judgment. Robbie in cross-examination readily admitted his addiction and frequent use of amphetamine leading up to his arrest on 15 January 1989. It was suggested that he was mistaken as to the identity of his supplier, a fact which he denied. He maintained that the appellant, who was well known to him, had been his supplier over a period of many months.

29. The possibility that Robbie's evidence might be unreliable on this score was the subject of a direction to the jury by the trial Judge. The jury was reminded of the cross-examination of Robbie and the evidence of Dr Willow.

30. In my opinion the evidence of Robbie was not so lacking in quality that it was not open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt on count 1. It was open to the jury to act on Robbie's evidence if, after heeding the appropriate warnings which were given by the trial Judge, they were not in doubt as to its reliability.

31. In my opinion the conviction of the appellant on count 1 was not unsafe and unsatisfactory by reason of the lack of corroboration and inherent unreliability in Robbie's evidence.

32. Although the verdict on count 1 is not unsafe and unsatisfactory on the grounds just discussed, the likelihood remains that the jury, in deciding to act on Robbie's evidence, were influenced by the evidence of the discovery of the sum of cash under the appellant's mattress during the search on 3 February 1989. It is likely that the jury treated the discovery of that money, in conjunction with the other items found, as being indicative of the appellant being a dealer in drugs. Had the evidence of the money been excluded, or had the jury been warned that it must accept that no suspicion could attach to the money as being unlawfully obtained, the verdict could have been different. In my opinion the admission and use made of the evidence about the money deprived the appellant of a real prospect of acquittal.

33. The admission and use made of the evidence about the money found on 3 February 1989, and also about the further money found on 24 May 1989, is likely to have influenced the jury in their consideration whether, assuming the packets of amphetamine found in the swimming pool liner in the appellant's backyard on 24 May 1989 were in his possession, that possession was for the purpose of supply. The verdict on count 2 is therefore suspect for this reason.

34. However the conviction on count 2 is challenged for a more fundamental reason. It is contended that on the evidence led by the Crown, the jury acting reasonably, must have entertained a sufficient doubt whether the packets of amphetamine were in the possession of the accused to have entitled him to an acquittal: Chamberlain and Another v The Queen (No.2) [1984] HCA 7; (1983-1984) 153 CLR 521 at 534. If this challenge is made good the verdict on count 2 is unsafe and unsatisfactory, and a verdict of guilty on the alternative count 3 for simple possession would have to suffer the same fate.

35. The appellant in his sworn evidence denied any knowledge of the packets of amphetamine discovered by the police. In the period immediately before 24 May 1989 a number of people resided on the property where the appellant lived. Two of these people, Ms Deborah Sykes and Ms Kimberly Skinner, gave evidence at the trial that they had no knowledge of the amphetamine. These women resided in the house on the property with the appellant. There was however another resident, Robert John Sykes, who was living in a shed in the backyard not far from the above-ground swimming pool where the drugs were located. Evidence was given that the police could not locate him at the time of the trial. A real possibility existed that he might have been the person who concealed the drugs, and was the possessor of them. This possibility was not negatived by evidence led by the Crown.

36. It is not improbable that the jury were influenced in arriving at their verdict by the finding of further resealable plastic bags and $610 cash in the appellant's house on 24 May 1989, and perhaps also by the finding of a mirror and a razor blade although the significance of these items is not explained by the evidence. But once it is accepted that the moneys were not unlawfully obtained these alleged indicia of drug trading were of little weight. If it is assumed that the moneys were not unlawfully obtained, in my opinion a jury acting reasonably would have to entertain a doubt whether Mr Sykes, and not the appellant, was the person who possessed the packets of amphetamine: R v Filippetti (1978) 13 A Crim R 335 and R v Dib and Dib (1991) 52 A Crim R 64.

37. At trial, no attempt was made by defence counsel, either by cross-examination of the police officers or by leading evidence, to establish the character and habits of Sykes. Before this Court the appellant adduced evidence in support of the ground of appeal concerning the competence of defence counsel that Sykes had a lengthy record of convictions, including convictions on 6 March 1990 for deemed possession for supply, and for administration, of "prohibited drugs" for which he was sentenced to terms of imprisonment of 6 and 1 month respectively. If this evidence is added to that led at the trial, the reason for doubt whether the appellant was the person with possession of the packets of amphetamine found on 24 May 1989 is increased.

38. Count 4 charged the appellant with simple possession of a minute quantity of cocaine found in a foil concealed in a wallet of darts in the appellant's bedroom. The appellant denied all knowledge of the drug. The verdict of the jury indicates that they rejected his evidence. It is not improbable that they were influenced to do so because they had rejected his evidence about the circumstances in which he came to be in possession of large sums of money on the occasions of the two police searches. Had that evidence not been admitted, or had it been stressed to the jury that it was impermissible to treat that money as having been unlawfully obtained, the verdict might well have been different.

39. It is now well established that a Court of Criminal Appeal has jurisdiction to set aside the verdict of a jury where incompetent representation of an accused person at trial has led to unfairness in the trial process which deprives the accused of a real prospect of acquittal: Re Knowles [1984] VicRp 67; (1984) VR 751, and R v Birks (1990) 48 A Crim R 385. This jurisdiction is founded on the general power to set aside the verdict of the jury on any ground whatsoever where there is a miscarriage of justice. The incompetent representation may arise as the result of inexperience, oversight or mistake by counsel. The burden of establishing that the conduct of counsel has enlivened the jurisdiction rests on the appellant who seeks to set aside the verdict. Practical considerations rooted in the nature of the trial process and in the role of counsel render the burden a difficult one to discharge, and courts are extremely cautious about exercising the jurisdiction: R v Birks, per Gleeson C.J. at 391.

40. At all stages of the trial process counsel will be called on to make decisions, often involving difficult matters of judgment, whether to object to questions or to evidence, whether to call a particular witness, whether to pursue a particular line of questioning or to ask a particular question. Often a decision will be made hastily in the course of the trial. The judgment of counsel will be influenced by the instructions received from the accused, and by counsel's perception of witnesses, and perhaps even of the likely reaction of the jury and the Judge to a particular course of action. It is very difficult, if not impossible, to recreate before an appeal court the setting in which the decisions of counsel are made. Moreover, styles of advocacy will vary from counsel to counsel. Some will pursue long and painstaking examinations and cross-examinations, taking every point that arises and leaving no stone unturned, and thereby attracting the criticism of others that a strong point became lost amongst weaker ones, that the attention of the jury was lost, that one too many questions was asked, and so on. The reverse also applies; those who advocate brevity are not without critics. It is frequently impossible to judge whether criticisms of counsel are well founded, or how a particular jury might have reacted to the way in which counsel conducted the trial. It is easy enough to criticise with the benefit of hindsight after the trial is finished, but the decisions of counsel at trial are made in a wholly different situation. As Gleeson C.J. at 391 observed in R v Birks:

"It sometimes happens that a person who has been convicted of a

crime seeks to have the conviction set aside on the ground that

counsel at the trial has acted incompetently, or contrary to

instructions. It is well settled that neither of these

circumstances will, of itself, attract appellate intervention."

41. The argument before this Court, and evidence led in support of it, demonstrates another difficulty which can arise where the competence of defence counsel is called into question. Evidence was led from the appellant's solicitor who instructed both defence counsel at the trial, and different counsel to argue this appeal. The solicitor asserted various failures on the part of defence counsel to ask particular questions and to raise objections. In argument other criticisms of defence counsel were made, for example that his closing address failed sufficiently to canvass the evidence, and was too short. But these criticisms occurred in the absence of defence counsel whose reasons for his presentation of the appellant's case remain unknown to this Court. As a general rule, a party is bound by the conduct of his or her counsel. Counsel have a wide discretion as to the way in which the trial is conducted. In Halsbury's Laws of England (4th ed.) Vol. 3(1) para.518, the role of counsel is stated in the following terms:

"...a barrister is ordinarily instructed on the implied

understanding that he is to have complete control over the way in

which the case is conducted. Unless and until his instructions

are withdrawn, counsel has, with regard to all matters that

properly relate to the conduct of the case, unlimited authority to

do whatever he considers best for the interests of his client.

This authority extends to all matters relating to the action,

including the calling and cross-examination of witnesses,

challenging a juror, deciding what points to take, choosing which

of two inconsistent defences to put forward, and even to agreeing

to a compromise of the action, or to a verdict, order or judgment."

42. The absence of explanation from the counsel whose performance is under challenge is likely to make it difficult for the Court to be satisfied that counsel was not acting in a manner reasonably calculated to further the interests of the person represented.

43. Before a Court of Criminal Appeal will set aside a verdict of the jury on the ground of alleged incompetence it is therefore necessary that serious error on the part of counsel be shown which cannot be explained as a decision reasonably made at the time on the instructions then to hand, or to obtain a perceived tactical or other advantage. In R v Birks, Gleeson C.J. at 392 instanced "flagrant incompetence" as an occasion for the intervention of the Court.

44. The intervention of a Court of Criminal Appeal on the ground of the incompetence of counsel is likely to be rare. However in the present case I consider the ground of appeal is made out on the failure of counsel to make it plain to the trial Judge that the charges of unlawful possession of the money discovered during the searches of the appellant's home on 3 February 1989 and 24 May 1989 had resulted in acquittals, and to rely upon the principle clearly established by The Queen v Storey that the appellant was to be taken as entirely innocent of those offences. It has been established by evidence before this Court that the appellant's instructions to defence counsel raised this topic, and the failure of counsel to pursue it cannot be dismissed on the ground that he could have perceived some lurking advantage to the appellant by not doing so. I have already indicated my opinion that the admission of the evidence about the money, and use which was then made of it, is likely to have deprived the appellant of a real prospect of acquittal on counts 1 and 2.

45. At first sight, the failure of defence counsel to pursue the antecedents of Mr Sykes at the trial also appears as a serious error which failed to elucidate the ground for doubt that the appellant was the person in possession of the packets of amphetamine discovered on 24 May 1989. However, without knowing why counsel omitted to do so, I do not think this failure would alone be sufficient to warrant intervention.

46. In other respects the criticism made of defence counsel in my opinion has not been shown to be outside the realm of reasonable judgment made in the course of the trial.

47. I would allow the appeal and set aside the verdicts of the jury on counts 1, 2 and 4. The strength of the Crown case on count 1 will be much weakened by the exclusion of the evidence about the money found in the appellant's possession on 3 February 1989, but I do not think it can be said that the quality and quantity of the other evidence on count 1 is such that a jury, acting reasonably, could not find the charge proved. I would order a retrial on count 1.

48. On counts 2 and 3 I would order an acquittal as the evidence must leave open a doubt whether the appellant had possession of the packets of amphetamine.

49. On count 4 there is evidence which upon a retrial could lead to a conviction. However the amount of drug was minute and I agree with Higgins J. that it would be oppressive to order a retrial on that count.

HIGGINS J. On 18 November 1991, the Director of Public Prosecutions (DPP) presented an indictment against the appellant charging him as follows:

1st Count ... That between about the 29th day of December 1988 and

the 16th day of January 1989, at Canberra in the Australian

Capital Territory (the appellant) did supply a controlled

substance, to wit, meth-amphetamine, to another person, namely

Luke Gerard Robbie.

2nd Count ... That on the 24th day of May 1989 ... did possess a

drug of dependence, to wit, amphetamine, for the purpose of supply

to another person.

3rd Count ... That on the 24th day of May 1989 ... did possess a

drug of dependence, to wit, amphetamine.

4th Count ... That on the 24th day of May 1989 ... did possess a

drug of dependence, to wit, cocaine.

2. The first count alleged an offence under s.4(2) of the Poisons and Narcotic Drugs Ordinance 1978. "Methylamphetamine" was a schedule 8 "controlled substance". A Dr Willow gave evidence that "Methamphetamine" was a synonym for "Methylamphetamine". The same chemical substance was referred to.

3. The second and third counts were alternatives. They alleged offences under s.164(2) of the Drugs of Dependence Act 1989 (proclaimed 15/3/89). "Amphetamine" is a drug of dependence by virtue of Schedule 1 of that Act. Two grams is declared a "traffickable quantity".

4. The fourth count alleges a similar offence. Cocaine is also listed in Schedule 1. Two grams is declared to be a "traffickable quantity".

5. The case for the prosecution was that in January 1989, one Luke Robbie, the person referred to in count 1, was apprehended by police. He was in possession of a considerable quantity of the drug referred to in count 1. He gave information to police naming the appellant as his supplier.

6. Police obtained a search warrant. On 23 February 1989 they searched the appellant's premises. No drugs were found.

7. However, $2,815.00 in cash was located under the appellant's mattress. He had a further $900.00 on his person. Plastic re-sealable bags were found in a cupboard. Surgical gloves were found in a wardrobe. There was a set of scales found in a display case.

8. The appellant told police the money was from the recent sale of a motor vehicle. He had no documentation to evidence the sale and could not name the buyer.

9. At first, police handed the money back to the appellant. Later they seized it and charged him with unlawful possession of it contrary to s.527A Crimes Act 1900 (ACT).

10. On 24 May 1989, another search of the appellant's premises was conducted. On this occasion, the appellant had $610.00 in his wallet. He said some of it had come from the sale of motor cycle parts. A quantity of a substance, later identified as amphetamine powder, was found in the lining of an above ground swimming pool in the back yard of the premises. A very small quantity of cocaine was found concealed within a piece of silver foil inserted into the cavity of a darts flight in a leather container in the appellant's bedroom. Some more re-sealable plastic bags were located and seized. As well, two small mirrors and a straight back razor blade were seized.

11. The appellant denied any previous knowledge of the drugs. A charge of unlawful possession was also brought in relation to the $610.00 found in the appellant's wallet.

12. It is relevant to mention the summary matters alleging the sums of money referred to were "reasonably suspected of having been stolen or otherwise unlawfully obtained" because, on 29 May 1990, Magistrate Ward dismissed those charges.

13. At the trial, Robbie gave evidence. He said that he had purchased drugs on a number of occasions from the appellant before 13 January 1989. He said he went to the appellant's home on 13 January 1989. He purchased a quantity of amphetamine. It was, he said, the drug that police had found in his flat on 15 January 1989. He had cut and packaged the drug for the purpose of supply to others. The substance seized from Robbie by police was found to contain Methamphetamine.

14. The bags in which the drug was found were similar to the bags later found in the appellant's possession. Such bags are not, however, particularly distinctive. The appellant had been a friend of Robbie's for many years. They had a mutual interest in motor cycles. Robbie conceded that, on or about 13 January 1989, he had also purchased motor cycle parts from the appellant. He also conceded that his use of amphetamines had affected his capacity to recall accurately past events. He did not, however, concede that he could be mistaken about his drug deals with the appellant.

15. It is fair to comment that the only alleged supplier Robbie apparently informed police about was the appellant. It seems there must have been others. His drug habit pre-dated the occasions he said he was supplied with drugs by the appellant.

16. At the time he gave evidence, Robbie had pleaded guilty and been sentenced. The sentencing judge had taken account of his assistance to police in informing on the appellant. Robbie was given a suspended sentence and a community service order.

17. Counsel for the appellant sought to adduce evidence of this sentence. However, he denied that he was seeking to found a suggestion that Robbie had falsely implicated the appellant in order to achieve a lesser sentence than he otherwise would have suffered. The learned trial judge refused to permit that evidence to be tendered in the presence of the jury. Why counsel did not put his submission on that ground was not really explained.

18. There was evidence that persons other than the appellant lived at the house. One was Ms Debbie Sykes. She was the de facto wife of the appellant. Ms Kimberley Skinner also lived in the house. Ms Sykes and Ms Skinner gave evidence denying any knowledge of the drugs located by police.

19. It also emerged that Ms Sykes' brother Robert was, at the time of the police searches, living in a shed at the back of the garage not far from the swimming pool. He could not be located to give evidence at the trial. It seems he had some sort of criminal record including a record of convictions for possession and administration of "prohibited drugs". He had also pleaded guilty to supplying "prohibited drugs". On 6 March 1990, Sykes was sentenced to six months imprisonment for those offences.

20. The appellant gave evidence denying any knowledge of the drugs found on 24 May 1989. He also denied supplying any drugs to Robbie. In the course of his evidence he explained the presence of scales, gloves and re-sealable bags. He sold jewellery, he said, as well as motor cycle parts. Indeed, another witness, Mrs Tracey Guerin, the appellant's second wife, gave evidence, which was not challenged, that the scales in question had been a birthday present from a friend. The gloves were for use in washing up. No drug or trace of any drug was found on the scales or on any of the other items found.

21. The appellant was found guilty of the offences charged in the first, second and fourth counts. No verdict was required on count 3.

22. A number of grounds of appeal were relied upon. They may be summarised as follows:-

1. That the verdicts were unsafe and unsatisfactory.

2. That the trial of counts 1, 2, 3 and 4 should have been

severed.

3. That the appellant did not receive a fair trial by reason of

the flagrant incompetence of counsel who represented him on

his trial.

4. That the learned trial judge wrongly admitted evidence of

the finding of the sums of money on 3 February 1989 and

24 May 1989 respectively.

5. That the learned trial judge wrongly admitted evidence of

the finding of re-sealable bags, scales, surgical gloves,

mirrors and razor.

6. That the learned trial judge did not sufficiently direct the

jury as to the use of evidence relevant to the first count

in relation to the remaining counts.

7. That evidence of previous drug deals between the appellant

and Robbie should not have been admitted.

8. That the direction concerning corroboration of Robbie's

evidence was inadequate.

The evidence to support the first count was only that of an accomplice, Robbie. The learned trial judge warned the jury of the danger of convicting the appellant on the uncorroborated evidence of Robbie.

24. However, the appellant says that the following passage in his Honour's summing up was erroneous. His Honour referred to the fact that drugs were found in Robbie's possession and went on to say:-

"Now, you may think, ladies and gentlemen, that that is supportive,

generally, of the story that Mr Robbie tells. It is entirely a matter

for you. I supply (simply?) offer the comment, which you are free to

accept or reject, that whilst it does support Mr Robbie's story that

somebody supplied him the Methamphetamine shortly before 15 January

1989, of itself, it does not support the proposition that it was the

accused who supplied it to him. But you might think that it makes the

story of Mr Robbie overall more credible and if you think that the

evidence of Mr Robbie is supported in some material way by that other

evidence, that is entirely a matter for you."

25. The jury was directed that they could use the evidence of Robbie to establish that, if the appellant was in possession of drugs on 24 May 1989, his purpose was that of supply.

26. The jury was also instructed that the finding of the scales, plastic bags, mirror, razor blade and money was evidence capable of supporting the second or third counts but not the fourth.

27. As to the first count, it is clear that the possession by Robbie of amphetamines did not, as the learned trial judge noted, corroborate the proposition that the appellant supplied him with drugs on or about 13 January 1989.

28. Robbie's own evidence of previous occasions of supply could not do so either. It was subject to similar difficulty.

29. However, in my opinion, the jury was properly warned about the danger of convicting on the evidence of an accomplice (see Davies v DPP (1954) AC 378).

30. It does not follow that a verdict is "unsafe and unsatisfactory" merely because it is based on acceptance of the evidence of an uncorroborated accomplice (see Carr v R [1988] HCA 47; (1988) 165 CLR 314).

Evidence of finding of scales, re-sealable bags etc

31. These counts could only be supported by circumstantial evidence.

32. Without support from the alleged indicia of drug dealing found in the house it is quite clear that, given the presence of the elusive Mr Sykes, it was impossible for the jury to have been satisfied that the appellant rather than Sykes was the person who had placed the drugs found on 24 May 1989 in the pool liner (see R v Filippetti (1984) 13 A Crim R 335; R v Dib and Dib (1991) 52 A Crim R 64).

33. The various household items said to be indicia of drug dealing are, in my view, insufficient rationally to support the proposition that the drugs found belonged to the appellant. None of the items found had any traces of any illicit drug. None of the items was so placed as to indicate use in drug packaging.

34. Even if evidence as to the possession of those items was rightly admitted, it is unsafe to permit the finding of guilt on count 2 to stand. It follows that it would have been unsafe to permit a conviction on count 3.

35. That judgment is one this Court may make even if it was not open to the learned trial judge to have directed a verdict of acquittal on these counts (see Doney v R [1990] HCA 51; (1990) 171 CLR 207).

37. It is clear that the joinder of count 1, particularly with counts 2 and 3, was prejudicial to the appellant's case. This is particularly so when linked with Robbie's evidence that the appellant had supplied him with drugs on other occasions.

38. That course was permissible, of course, if, and only if, the evidence supporting one count would be admissible in any event on the other count or counts or if any impermissible use of the evidence could have been effectively avoided by appropriate directions to the jury (see De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1; Wilde v R [1988] HCA 6; (1988) 164 CLR 365).

39. That raises the question as to whether the evidence given by Robbie was relevant to prove that the amphetamines found on 24 May 1989 were, if in the appellant's possession, possessed by him for the purpose of supply. It is clear that those drugs could not have been possessed for the purpose of supply to Robbie. The question at issue is whether evidence that the appellant had been previously guilty of supplying drugs to Robbie is admissible to show that any sizable quantity of drugs subsequently possessed by the appellant was so possessed for the purpose of supply. If it ought not to have been admitted on counts 2 and 3 then those counts should not have been joined with count 1. It is not really possible for the prejudicial effect of that evidence, once admitted, to be eradicated by direction.

40. In Hoch v R [1988] HCA 50; (1988) 165 CLR 292, the full High Court found that several counts alleging indecent assault against various victims were improperly joined. The evidence of the several alleged victims could have been the product of collusion between them. As a result it was held that it would not, on any one count, have been appropriate to admit the evidence relevant to any other count. Thus they should have been severed.

41. In a joint judgment, Mason C.J., Wilson and Gaudron JJ. said:-

(296) "In cases such as the present the similar fact evidence serves

two functions. Its first function is, as circumstantial evidence, to

corroborate or confirm the veracity of the evidence given by other

complainants. Its second function is to serve as circumstantial

evidence of the happening of the event or events in issue. In relation

to both functions the evidence, being circumstantial evidence, has

probative value only if it bears no reasonable explanation other than

the happening of the events in issue."

42. The rational possibility of concoction, their Honours held

(296) "... thus destroys the probative value of the evidence which is a

condition precedent to its admissibility."

43. It does not seem that "probative value" has any necessary relationship to whether a jury would or would not believe the evidence in question. The issue as to whether or not the alleged victims had concocted their allegations of indecent assault was a jury question. The sense in which "probative value" was used seems to have been whether it was rationally open to conclude, on the evidence of the various complainants, that they had collaborated to concoct their allegations. If it was open so to conclude then

(297) "...The evidence of the several complainants lacked the requisite

probative force necessary to render it admissible as similar fact

evidence in relation to the other offences charged."

44. Brennan and Dawson JJ. held that it had been incumbent on the trial judge to enquire whether in the circumstances there was "a real chance" that the evidence of similar facts was the result of concoction. If there was, it should be excluded:

(302) "If there is a real danger of the concoction of similar fact

evidence it is consistent with the attitude which the law adopts toward

evidence of that kind that it should exclude it upon the basis that its

probative value is depreciated to an extent that a jury may be tempted

to act upon prejudice rather than proof. That consideration is of

special importance in cases where the fact to be proved is inferred not

from similar facts which have been clearly established but from the

concatenation of the testimony of a number of witnesses who depose to

the occurrence of similar facts."

45. In this case, the "other occasion" evidence is of only one witness. Robbie was, viz-a-viz the appellant, an accomplice. He stood to gain, and did gain, leniency on the supposition that he had named his supplier. Once he had gained that leniency, he could hardly retract his statements implicating the appellant. His testimony, even as to one occasion of supplying Methamphetamine (represented by count 1), was inherently suspect. It was rationally open to conclude that it, and the evidence of previous instances of supply, was concocted. It was necessarily tainted by self-interest.

46. Furthermore, that evidence, if accepted, merely tended to establish a propensity to hold drugs for the purpose of supply. It tainted the other evidence as to the items found in the appellant's house on 3 February 1989 and 24 May 1989 giving a sinister connotation to the concatenation of those items which otherwise it is unlikely that they would bear.

47. There was, also, a real risk that the evidence of those items would be used to support the evidence relevant to possession so as to implicate the appellant with that possession. There was a further risk that, notwithstanding any warning to the contrary, that such evidence would be taken as corroboration of the evidence of Robbie that the appellant had been his drug supplier.

48. The summing-up does not expressly instruct the jury that this mode of reasoning is impermissible. That would, in any event, have been a difficult task.

49. In my opinion, it would have been open to infer from the finding of the amphetamines on 24 May 1989, even if in the appellant's possession, that they were not held for the purposes of supply. They were not packaged for distribution. There was no evidence of preparation to do so. The scales, surgical gloves and plastic re-sealable bags had been seized on 3 February 1989. There were no scales or gloves found on 24 May 1989. There was a razor and two mirrors taken. They could have been associated with drug use but revealed no evidence of having been so used in fact. There was no other reason to assume they had any connection with drug use or distribution.

50. Needless to say, the cocaine found was in such a tiny quantity that its presence could have no relevance to the purpose of the possession of the discovered amphetamines.

51. However, it is submitted for the respondent that Harriman v R [1989] HCA 50; (1989) 167 CLR 590, at least permits evidence to be admitted of other occasions of supply of drugs, even if from an alleged accomplice, to demonstrate that the amphetamines found on 24 May 1989 were possessed by the appellant for the purpose of supply.

52. In that case, the accused, Harriman, was charged with being knowingly concerned in the importation of heroin. Martin, the principal offender, gave evidence against Harriman. Evidence was given from two other persons who said they had been accomplices of Martin and Harriman in earlier drug transactions involving the supply of heroin. The evidence of one of those witnesses, Lisk, was corroborated by the terms in which Harriman had written to Lisk in correspondence. That correspondence was tendered in evidence.

"Evidence that an accused has committed other offences of the same or

similar character is inadmissible unless the evidence is of such

probative force in the instant case that it would be an affront to

common sense not to admit it. Or, to put it another way, unless the

probative force of the evidence clearly transcends the merely

prejudicial effect of showing that the accused has committed the

offences ...

If, as a matter of human experience, the evidence tends to establish the

offence charged or a fact in issue otherwise than by showing merely the

commission of another offence or a propensity to commit an offence, the

evidence is admissible."

54. If that test is applied to the present case, it is apparent that, whilst the evidence of supply to Robbie does, as a matter of experience of human affairs, render it more likely that the appellant supplied or had a propensity to supply others with similar illicit drugs, it does so only via a process of reasoning that relies only on such a propensity. The degree of "probative force" possessed by such evidence was, as I have noted, inherently suspect.

55. It is pointed out, quite expressly, by Gaudron J. (614) that in order for "other occasion" evidence to be admissible, the degree of probative force it needs to possess is

"quite distinct from the question whether the evidence is necessarily,

or even likely, to be accepted by a jury as true".

56. Accordingly, whilst it is clear enough that the "other occasion" evidence given by Robbie was relevant to establish or corroborate the act of supply on 13 January 1989 (subject to satisfaction of the Hoch test) it was not permissibly relevant to the matter alleged in count 2.

57. It does not seem to me to be reasonably likely that a direction could remove the impermissible prejudicial effect of that evidence. In any event, there was no such direction.

58. Count 1 was, therefore, impermissibly joined with the remaining counts. Additionally, the evidence of supply to Robbie was not admissible in relation to count 2. It was not admitted in relation to count 3 but would have created prejudice on the issue of possession notwithstanding directions to the contrary.

59. The appellant had been acquitted of charges of unlawful possession of the money found on 3 February 1989 ($3,715.00) and 24 May 1989 ($610.00). It was apparent that if that money, or any of it, had been reasonably suspected of being "stolen or unlawfully obtained" contrary to s.527A of the Crimes Act 1900 (ACT), it could only have been because the money was in whole or part the proceeds of the sale of illicit drugs (see, for example, Morris v Russell (ACTSC; Kelly J.; 30/3/90; unreported).

60. The acquittals of the appellant on 29 May 1990 necessarily prevented it being open to the prosecution to contend that the money found was or included the proceeds of drug dealing.

61. That would have required either the exclusion of the evidence in question or, at the very least, a direction that no adverse inference was to be drawn from it. There was no such direction sought or given (see R v Storey [1978] HCA 39; (1978) 140 CLR 364; Groves v R [1981] FCA 22; (1981) 58 FLR 18).

62. However, the respondent contends the evidence was admissible because the learned Magistrate (Ward M) had applied the wrong test in dismissing the charges.

63. The test the learned Magistrate was bound to apply, it was said, was that adopted by Kelly J. in Morris (supra), following and approving the approach of Yeldham J. in Parker v Todhunter (1987) 26 A Crim R 169. Kelly J. said

(10) "The question he (the learned Magistrate) would then [at the

conclusion of the prosecution case) have been required to ask himself

would have been whether, having regard to all the evidence pointing to

the moneys having been unlawfully obtained, he was satisfied beyond

reasonable doubt that it was then proper for him to entertain a

reasonable suspicion that the money was unlawfully obtained bearing in

mind that suspicion is less than prima facie proof and certainly less

than proof beyond reasonable doubt."

64. His Worship did refer to Morris. It was cited to him for the proposition that it was only the suspicion of the Court that was relevant. The prosecutor was obliged to do that because none of the police witnesses who attended on 3 February 1989 and 24 May 1989 gave any evidence that they entertained, reasonably or otherwise, any such suspicion.

65. It is obvious that the suspicion in question must arise contemporaneously with the finding of the goods or money in question.

66. However, it does not seem to me that his Worship was at variance with Kelly J. His Worship did comment as follows:-

(1) "There are very good reasons why it ought to be someone else other

than the Court to do the suspecting. It ill behoves a Court to guess or

suspect. A Court acts on evidence and makes findings and in the second

place it may well be that a Court is not in full possession of all the

facts relevant to the formation of the suspicion or to the

reasonableness thereof."

67. That comment, quite properly, drew attention to the need for the prosecution, if it hoped to succeed in persuading the Court that there was the relevant suspicion attaching to the possession of the items in question, and that the suspicion was reasonable in all the circumstances. The gist of his Worship's finding was contained in the following passage:-

(8) "There is nothing in the facts of these cases (that is, the

unlawful possession charges) which would enable the court to be

satisfied beyond reasonable doubt of the suspicion in either case. With

regard to the $3,700.00 odd, the relevant policeman gave the money back

to the defendant which says something, surely, about the state of his

suspicion. There was nothing particularly remarkable or compelling

about the possession of the $610.00 and I could not, in the absence of

evidence from the informant or somebody else infer that any suspicion

they might have held was held on reasonable grounds."

68. I agree entirely. It might also be noted this finding had regard to evidence of the presence of the scales, gloves, bags, mirrors and razor. It had included a consideration of the evidence of the finding of amphetamines and cocaine. It is a finding that the facts and circumstances of the location of the money including those circumstances did not warrant a reasonable suspicion that that money had been connected with dealings in illicit drugs.

69. The suspicion must be assessed objectively as a reasonable one, by the Court hearing the information, on the evidence adduced before it. If the prosecution failed to convince a Magistrate that such a suspicion attached to the sums of money found, it is not entitled to destroy the effect of that acquittal by inviting a jury to draw the same inference that it failed to persuade the learned Magistrate should be drawn. Perhaps another tribunal of fact might have drawn another inference. However, the prosecution did not appeal from Magistrate Ward's decision. It must be treated as final and conclusive.

70. It follows, in my opinion, that evidence of the finding of the money should have been excluded.

71. There was evidence presented on the appeal which suggested that counsel briefed for the appellant was both inexperienced and, also, unaware of the way in which a criminal trial should be conducted.

72. Consequently, there had been no application for severance of the counts on the indictment. No objection was taken to the "similar fact" (or, more accurately, "other occasion") evidence of Robbie, until prompted by the appellant's solicitor. The grounds offered in support of that objection were completely irrelevant and led to the evidence being admitted "for a limited purpose". No objection was taken to the evidence of the finding of the money and no effective use was made of the acquittals of the appellant referred to above. Complaint was also made about counsel's cross-examination and addresses, belated attempts to avoid a "Browne v Dunn" (1894) 6 R 67 situation and so on. There was no attempt to elicit evidence of the criminal record of the absent Robert Sykes. Finally, the request for further directions following the learned trial judge's summing up was ineffectual and inadequate.

73. Counsel did raise three matters following the summing up. First, that the jury should be reminded that the evidence of prior drug dealings was relevant only to the second count. His Honour agreed to that. The second was that Robbie's evidence should not be taken into account on counts 2 and 4 if the appellant was acquitted on the first count. His Honour had reminded the jury that the evidence of Robbie was to be treated with caution and whatever point counsel was making seemed to be satisfied by his Honour reminding counsel that he had done so. The third request was that the jury be instructed that evidence as to the items seized on 3 February 1989 should not be taken into account in respect of counts 2, 3 and 4. His Honour had told the jury that they could take that evidence into account only in relation to count 2. Counsel further asked that the jury be reminded that no amphetamine was found when the gloves, scales and bags were located.

74. His Honour did redirect that the evidence of "other occasions" of supply of drugs to Robbie was relevant only to the second count. Further, he told the jury that guilt on one count would not, by itself, mean that the appellant was or was more likely to be guilty of other charges. He did advise them that a finding of not guilty on count 1 would render it unlikely that Robbie's evidence could be used to support a finding of guilt on the second or third count.

75. This was a little confusing as the jury had previously been instructed that Robbie's evidence as to "other occasions" of supply apart from its obvious relevance to count 1 was relevant only to count 2.

76. His Honour did remind the jury that Robbie's evidence was irrelevant to the fourth count.

77. The way the matter was run failed to take up the possibility that Robbie's evidence was tainted, not merely by the effect of drugs, but by a desire to curry favour with the prosecuting authorities. His Honour was not asked to direct the jury on the reasons which Robbie could have had not merely to give inaccurate evidence but untruthful evidence. That deprived the jury of the opportunity of considering that Robbie, who obviously had a "supplier" might have named Guerin, even if the latter was not, in fact, his supplier, because he wanted to get leniency but was afraid of retribution from his real supplier should he name that person. Certainly, that would have provided a far more convincing reason for caution in accepting Robbie's evidence than the effect of drugs on his memory.

78. The incompetence of counsel as a ground of appeal was considered in R v Birks (1990) 48 A Crim R 385.

79. There was no doubt in that case that counsel had, through inexperience and oversight, failed to put matters to witnesses which led to comments both by the prosecutor and the trial judge that were destructive of the credit of the accused.

"It sometimes happens that a person who has been convicted of a crime

seeks to have the conviction set aside on the ground that counsel at the

trial has acted incompetently or contrary to instructions. It is well

settled that neither of these circumstances will, of itself, attract

appellate intervention."

81. It was considered, nevertheless, that, in all the circumstances, this factor had contributed to a lack of fairness in the trial process.

82. Hunt J., in R v Dib and Dib (supra) (71), similarly expressed the view that an alleged failure of counsel properly to cross-examine would not suffice, by itself, to support the quashing of a conviction.

83. However, it is also clear from Birks that, it may appear as a result of counsel's experience and conduct that decisions to object or not to evidence, to seek or not proper directions from the trial judge may well have been motivated by inexperience rather than representing a deliberate tactical decision. In such circumstances, it may be that appellate intervention to remedy a defect in the trial process resulting therefrom would more readily be forthcoming.

84. The principle is, I consider, aptly stated by Gibbs C.J. in De Jesus v R

(3) "It is not necessarily fatal to an appeal that counsel for the

accused at the trial failed to raise the necessary objection. Of

course, if it were thought that counsel had deliberately refrained at

the trial from submitting that the joinder was impermissible, in order

to gain some tactical advantage, the case would be different."

85. There is no doubt that the way this case was, at trial, conducted for the appellant, caused or contributed to a result which might well have been otherwise had a different course been followed.

86. The jury could lawfully have convicted on count 1 on the uncorroborated evidence of an accomplice but might well not have done so. There was no evidence sufficient to found a conviction on counts 2 and 3. The Crown case on count 4 was a strong one but the strength of the appellant's denials of knowledge of the presence of the cocaine was seriously weakened by the joinder of count 1 on the indictment as well as the evidence led to support counts 2 and 3.

87. In the result, I would uphold the appeal. I would quash all three convictions and the sentences thereon. I would order a new trial in respect of count 1. Verdicts of acquittal should be substituted in respect of counts 2 and 3. I would order that further proceedings on count 4 be stayed. The amount of drug found was minute. It was not consistent with trafficking. It could attract, by itself, only a nominal penalty. Thus, notwithstanding that a jury properly instructed might well convict, it would be oppressive, I think, for that matter to be tried again.