//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] NSWCCA 224
appellant. Appeal upheld. The convictions were set aside and a new trial was ordered.
The Court of Criminal Appeal set aside Lisa Bevan’s drug-supply convictions because the jury had heard questioning that suggested her family had acquired substantial money through illicit dealings and tried to disguise it through poker machines. The questioning breached s 44 of the Evidence Act, and the trial judge did not direct the jury to disregard the material. Although the Crown case was strong, the disputed material could have affected the jury’s view of Bevan’s credibility, particularly on a supply for which the police evidence lacked listening-device corroboration. The Court ordered a new trial.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,285 words · generated 29/09/2026
In Regina v Lisa Bevan [2002] NSWCCA 224, the New South Wales Court of Criminal Appeal considered whether questioning at Bevan’s trial about her family’s finances and poker-machine activity had contributed to a miscarriage of justice. Mason P delivered the principal reasons. Barr J and McClellan J agreed ([53]–[54]).
No linked legislation citations have been extracted yet.
The indictment included a charge alleging that Bevan supplied cannabis on 22 June 2000, a charge of ongoing supply of methylamphetamine between 21 June and 12 July 2000, and a deemed-supply charge relating to methylamphetamine on 11 July 2000. The jury acquitted her of the cannabis charge but convicted her of the ongoing-supply and deemed-supply charges ([1]). The ongoing-supply offence under s 25A(1) of the Drug Misuse and Trafficking Act 1985 required proof of supply, for financial or material reward, on three or more separate occasions within 30 consecutive days ([2]).
The Crown case included controlled undercover purchases. Mason P described it as strong, noting police testimony and listening-device material supporting two of the relevant transactions ([3]–[5]). Bevan denied the transactions and disputed the Crown’s interpretation of intercepted conversations ([6], [10]). On the deemed-supply count, police found drugs and equipment at the home she shared with her de facto husband, Mr Harris. The premises also contained cash, and a bank document showed an available balance of $3,303 ([7]–[9]).
During cross-examination, the prosecutor explored the family’s assets, income and expenditure. Bevan’s evidence was that the family relied on social security payments and that assets had been acquired with borrowed money ([11]–[12]). The questioning initially concerned an exchange recorded during the police search, in which Bevan had referred to money won on poker machines ([13]–[18]). The prosecutor then put figures from an RSL document concerning poker-machine turnover at the Bathurst RSL Club between 1 January 1998 and 11 March 1999. The figures were $43,087.52 for Bevan and $52,671.10 for her husband, a combined total of almost $100,000 ([19]–[24]). Bevan disputed that she had put that amount through the machines ([21], [23]).
After the cross-examination, defence counsel complained about the questioning and applied to discharge the jury. The trial judge refused. Although the judge recognised that there may have been breaches of proper approach, he considered the questioning proper and said he would not mention it in the summing up ([28]–[33]). The defence later sought a direction that the jury disregard the evidence, but the judge declined ([41]). Nor did the judge explain that questions to a witness that were not accepted by that witness could not themselves be treated as evidence ([42]).
The Court of Criminal Appeal upheld Bevan’s appeal, set aside the convictions and ordered a new trial ([55]).
Mason P’s central concern was not simply that the jury had heard figures about gambling. It was what those figures, in context, could imply. The poker-machine information related to a period ending in March 1999, while the search and the family’s bank balance were discussed in relation to events in June and July 2000. Mason P considered that the necessary connection between the earlier RSL information and the finances at the time of the police raid had not been established ([18], [26], [46]).
The cross-examination was therefore capable of carrying an implication beyond the point that Bevan and Harris had gambled. As Mason P put it, there was at least a suggestion that they had accumulated property from illicit dealings and tried to cover their tracks by running money through poker machines ([47]). A benign interpretation was possible: the evidence might support Bevan’s explanation that the couple gambled. But Mason P considered that the jury might also have picked up the more damaging implication and used it in assessing her credibility ([50]).
The judgment identifies a clear breach of s 44 of the Evidence Act in the prosecutor’s use of the RSL document during cross-examination ([22]). It does not reproduce the full statutory text, so the decision’s stated reasoning, rather than a broader account of s 44, is the relevant source here. The Court did not treat the lack of an objection at the time as decisive. Mason P considered that counsel may have been uncertain where the questioning was going and reluctant to interrupt ([29], [44]).
A key point is that the material was not neutralised by being left unmentioned in the prosecutor’s closing address and the judge’s summing up. Mason P described it as being “just left there hanging” ([45]). Without a direction, the jury was not told how to approach the questioning, or that the prosecutor’s unanswered suggestions were not themselves evidence. The defence had requested a direction to disregard the material, but the judge refused ([41]–[42]).
The Court also considered what the jury did not hear. A defence witness, Mr Flannery, attempted to explain how a relatively small amount put through poker machines could generate a much larger turnover figure. The judge rejected a key answer after a Crown objection, and the jury received no assistance about the possible significance of that evidence ([34]–[38], [48]). The Court’s concern was that the jury was left with the large figures and their possible implications, without an effective explanation or direction.
Finally, the Court declined to apply the proviso. Although the Crown case was strong, the ongoing-supply charge required three proven supplies. Two were supported by listening-device material, but the third was not. As Mason P explained, that third supply involved the police officers’ evidence being weighed against Bevan’s evidence ([51]). The jury was entitled to accept the police evidence, but that did not resolve whether the inadmissible material could have affected its assessment of Bevan’s credibility ([52]).
This judgment addresses the trial’s use of cross-examination material under s 44 of the Evidence Act, the handling of potentially prejudicial material left before the jury, and the appellate question of whether the proviso should preserve convictions despite a miscarriage. It does not set out the full text of s 44 or survey earlier authorities, so it should not be treated as a complete statement of the law governing that section.
The decision’s practical reasoning is specific. Historical financial material may be especially problematic where it is not adequately connected to the charged period and carries an implication of other criminal conduct. In Bevan’s case, Mason P found that the link between the RSL figures ending in March 1999 and the family’s finances at the time of the July 2000 search was not established ([26], [46]). The resulting issue was not limited to the formal admissibility of the figures: the material’s possible effect on the jury’s view of the accused also mattered ([47], [50]).
The judgment also illustrates that silence in a summing up does not necessarily cure prejudice. Here, the judge’s decision not to refer to the evidence left it before the jury without guidance. Mason P treated that omission as part of the problem, rather than as a neutral response ([32], [39], [45]). The case therefore highlights the importance, in its circumstances, of considering what direction is needed when disputed or prejudicial questioning has reached the jury.
On the proviso, the Court did not regard a strong prosecution case as sufficient, by itself, to overcome the possibility that the jury’s credibility assessment had been affected. The fact that one supply was not corroborated by listening-device evidence was material to that analysis ([51]–[52]). The judgment is an example of appellate reasoning tied to the particular evidence and trial events, not a formula that every breach or omission necessarily requires a new trial.
The judgment itself does not establish what the law was before the case in a comprehensive way, nor does the supplied text document any later change in the law. It is therefore safest to describe its contribution narrowly: it explains why this combination of questioning, lack of temporal connection, possible prejudicial implication and absent jury direction led the Court to find a miscarriage and order a retrial.
At [22], Mason P said the questioning involved “a clear breach of s 44 of the Evidence Act.” In plain English, the Court considered that the prosecutor’s use of the RSL document during the cross-examination was improper under the statutory provision. The judgment does not set out the provision’s full wording, so the passage should not be expanded beyond the Court’s stated finding.
At [45], Mason P said the material was “just left there hanging.” This describes the effect of the trial judge’s approach. The prosecutor did not rely on the material in address and the judge did not discuss it in the summing up, but neither step told the jury to disregard it or how to assess it.
At [47], Mason P identified the possible implication that the couple had accumulated property through illicit dealings and tried to disguise the money by “churning” it through poker machines. In plain English, the Court was concerned that the jury could infer criminal conduct from the figures, even though that was not a properly established part of the Crown case.
At [50], Mason P recognised that the gambling evidence could have a harmless interpretation, but also that it had “overtones, or undertones, of worse.” The significance is that the risk of prejudice depended on how the jury might understand the material, not merely on whether a benign explanation was available.
At [51]–[52], Mason P explained that the ongoing-supply count depended on three actual supplies, and that the evidence for one was not supported by listening-device material. Although the jury could accept the police evidence, the Court was not satisfied that the potential effect on Bevan’s credibility could safely be disregarded. It therefore declined to apply the proviso.
The reasoning is most relevant to a trial where cross-examination introduces financial or other collateral material that may suggest prior or separate wrongdoing, particularly where the connection between that material and the charged events is weak or unclear. In Bevan, the poker-machine figures concerned a period ending more than a year before the police raid and the charged supply period. Mason P emphasised that the temporal link to the family’s later financial circumstances had not been established ([18], [26], [46]).
It is also relevant where the questions themselves communicate a damaging suggestion that the witness does not accept. The figures put to Bevan were substantial, but she disputed them. The Court noted that the trial judge had not directed the jury that questions not assented to by a witness could not be treated as evidence ([23]–[25], [42]). The case therefore draws attention to the distinction between a proposition put in cross-examination and evidence actually given by the witness.
The reasoning may also matter where the prosecution’s use of the disputed material creates a risk that the jury will judge the accused’s credibility by reference to alleged conduct outside the charged events. Here, the suggestion of illicitly accumulated assets could have influenced the jury’s assessment of Bevan’s denials and explanations ([47], [50]).
Finally, the decision is particularly instructive where the disputed issue remains important to a conviction despite other strong evidence. Two of the supplies had listening-device corroboration, but the third did not. Because the ongoing-supply count required proof of three supplies, the uncorroborated transaction still mattered ([2], [51]). These are features of the Court’s reasoning, not a checklist guaranteeing the same result in another case.
The supplied judgment contains no later cases discussing or applying Regina v Lisa Bevan [2002] NSWCCA 224. It is therefore not possible, from this source alone, to describe how later courts have treated the decision, whether they have followed or distinguished it, or whether its reasoning has been developed.
The judgment itself records that Barr J and McClellan J agreed with Mason P ([53]–[54]). That establishes agreement within the Court in this appeal, but does not provide evidence about subsequent treatment. The supplied text also does not identify other judgments as applying, distinguishing, overruling or otherwise considering this decision.
The judgment does not reproduce the full text of s 44 or provide a detailed account of the rule’s operation beyond its finding that the cross-examination involved a clear breach. Questions about the precise scope of the section must therefore be checked against the statutory source and other relevant authorities, which are not included in the material supplied.
The decision also does not specify a universal test for when a jury direction is required after improper or prejudicial cross-examination. Its conclusion rests on the particular way the evidence was introduced, the possible criminal implication, the absence of an established temporal link, and the trial judge’s refusal to direct the jury ([45]–[50]).
Nor does the judgment identify exactly what direction would have been sufficient to cure the prejudice. The defence asked for an instruction that the jury disregard the evidence and that the suggestions did not form part of the Crown case ([41]). The Court found that the absence of an adequate direction contributed to the miscarriage, but it did not prescribe model wording for future trials.
The final unresolved question from this source is the extent to which the Court’s conclusion depended on the interaction between the evidence and the particular count. The Court noted both the strong evidence supporting two supplies and the contested nature of the third ([51]). It concluded that the proviso was inappropriate on these facts, but the judgment does not state that the same result follows in every case involving one disputed element or an evidentiary breach.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
CITATION : REGINA v LISA BEVAN [2002] NSWCCA 224 FILE NUMBER(S) : CCA 60578/01 HEARING DATE(S) : 16 April 2002 JUDGMENT DATE : 16 April 2002
PARTIES : REGINA v LISA BEVAN JUDGMENT OF : Mason P at 1; Barr J at 53; McClellan J at 54
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Twigg DCJ OFFICER :
COUNSEL : Crown: P Barrett Appellant: A P Berman SC SOLICITORS : Crown: S E O'Connor (Director of Public Prosecutions) Appellant: D J Humpherys (Legal Aid) CATCHWORDS : Criminal appeal - drug supply offences - miscarriage - Evidence Act, s44 - suggestion in cross examination that accused had accumulated assets from illicit dealings well prior to events in question - failure to give any direction. DECISION : Appeal upheld. Convictions set aside and a new trial ordered.
IN THE COURT OF CRIMINAL APPEAL CCA 60578/01
MASONP BARR J MCCLELLAN J
REGINA v Lisa BEVAN Judgment 1 MASON P: The appellant was tried in the District Court before Judge Twigg QC and a jury. The indictment contained several charges. The first was a charge that on 22 June 2000, she supplied a prohibited drug, cannabis leaf. The second was that between 21 June 2000 and 12 July 2000 there was an ongoing supply of a prohibited drug methylamphetamine. (There were alternative counts to the second.) The third was that on 11 July 2000 she supplied a prohibited drug, being a charge of deemed supply in relation to methylamphetamine. She was found not guilty on the first charge, and found guilty on the second and third. In consequence, the alternative counts did not proceed to a verdict. 2 The second count being the one on which she was first found guilty, arises under s 25A(1) of the Drug Misuse and Trafficking Act 1985, which makes it an offence for a person on three or more separate occasions, during any period of 30 consecutive days, to supply a prohibited drug other than cannabis, for financial or material reward. 3 The Crown case was a very strong one. There was evidence of controlled undercover drug operations, in which two undercover police officers, using assumed names, participated in controlled purchases from the appellant. 4 The first series of events took place on 22 June 2000 and they involved a controlled purchase of a quantity of cannabis and of amphetamines. It would appear however, that that was a transaction which the jury were not satisfied was proven, because the cannabis part of it was the subject of the first count on which the appellant was acquitted, and because there seems to be no reason to distinguish between the alleged supply of the cannabis, and that of methylamphetamine said to have occurred on that occasion. 5 There were however, three other transactions which were the subject of the s 25A(1) offence, and the evidence of the police witnesses was supported by listening device material in relation to two of them. I do not think it necessary to go into the detail, beyond reiterating that in my view this was a strong Crown case. 6 The appellant, in her sworn evidence, denied the transactions and sought to place exculpatory explanations upon the intercepted conversations as recorded pursuant to the listening device warrants. The jury obviously did not accept that explanation. 7 The count of deemed supply of methylamphetamine on 11 July 2000, on which the appellant was also convicted, related to the events that occurred in effect on the occasion when the appellant was arrested. There was a search warrant that was executed. The police officers burst into the appellant's home, the home she shared with her de facto husband, a Mr Harris, and her children. There was evidence from one of the officers that she appeared to be trying to hide something. Her hand was forced open and the officer found a small ball of plastic gladwrap in her hand, the contents of which were analysed and later found to contain some cannabis leaf. 8 The search of the appellant's premises was video taped by the police and played to the court. It showed that in the kitchen there was a plastic snaplock bag, containing white powder, and there was equipment indicative of an ongoing situation, whereby the larger quantity of the white methylamphetamine was broken down into smaller quantities for street sale. There was also found in the kitchen, a number of $50 notes, bundles of notes, and a number of white paper envelopes containing substantial sums of money. Also found there was a bank withdrawal slip, or some such document, which showed "available balance $3,303". 9 The following exchange took place between the police officer Taylor, Mr Harris and the appellant. TAYLOR: Do you agree that for there it says "available balance $3,303"? HARRIS: Um. TAYLOR: That was on the 17th of the 6th. HARRIS: What about it? TAYLOR: I was just saying, do you agree to that. That's all? HARRIS: Yeah. TAYLOR: How do you come to have $3000 in the bank? HARRIS: Fuck, I was working. What do you think I am, a lazy black cunt. I was working at the abattoir and that. I have been working at a few places. BEVAN: Plus all the money we have won on the poker machines. TAYLOR: So we are going to count all the money now...
And then there was further discussion. 10 The appellant gave sworn evidence in which she denied participating in the transactions of actual supply. She raised a defence of alibi in relation to one of the occasions. She put an explanation upon an apparently incriminating part of the intercepted conversation. And as regards the material found in the kitchen on the date of the police raid she said in effect that she knew nothing about it; the equipment was not in her possession; and that it was all to do with her husband and his own drug problems. 11 She was cross-examined and this was latish on a Friday afternoon of the trial, being a trial that took place in the country. The Crown Prosecutor asked a number of questions relating to the family wealth. Individual assets were asked about, income and expenditure were explored. The appellant was saying, in effect, that she and her husband were living off social security payments, and that their house and other assets were acquired on borrowed money, that in effect they did not have great sums of money at their disposal. 12 The thrust of the cross-examination, so far as one can perceive really what it was about, was to suggest that there was a stream of income into the family, not explicable by the social security payments, particularly having regard to outgoings, including the cost of ordinary family living for this family. 13 In the context of that broader cross-examination, the appellant was asked about the conversation, as recorded on the video that I have already recounted. She said in effect that the question about the $3000 in the bank was addressed to her husband Mick, as it clearly was. She was then asked about her own interjection about, "plus all the money we have won on the poker machines". 14 The cross-examiner put to her: "Q. So you are saying that moneys that you have got in the house were won on poker machines? A. No, not all of it, some of it would have been, yes. Q. Well, how much would have? A. I couldn't honestly tell you, probably a couple of grand out of it." 15 The Crown Prosecutor asked her when that money was won, and she said: "I can't recall. It's probably anywhere within that time. Like, we went to clubs, pubs whatever." 16 It is not at all clear what she was referring to when she said "within that time". 17 The cross-examiner then asked: "Q. How much did you put through the machines to win the couple of grand? A. It depends on the machines. Sometimes we put $20 in, sometimes we might put $50 in. If we win we might put another $20 in." 18 This cross-examination is understandable, at least to a degree, as being referable to the conversation at the time of the police raid, and in particular, the conversation in which the police officers were exploring the source of the $3000 then currently in what appears to have been the family bank account. The date of that raid was 11 July 2000, and as is already apparent the balance date of the bank account was 17 June 2000. 19 The Crown Prosecutor then moved into what was clearly much more dangerous waters, because he put it to the accused: "It's fair to say isn't it, that you have put a lot of money through the RSL Club? A. No, I wouldn't say a lot of money, no." 20 He then cross-examined her, obviously using a document, in which he put to her the suggestion that between particular dates, namely 1 January 1998 and 11 March 1999 at the Bathurst RSL Club, she put $43,087.52 through the poker machines, and her husband Michael Harris, put $52,671.10 through the poker machines. 21 The witness said that she did not think that that was the amount that was put through. She said at one stage: "... if we won anything we'd pull it out. We don't go and put it all back in the machines, no way." 22 It is very clear that the cross-examiner was using a document, because he read out a reference to "turnover" and put other material to her, in circumstances that involved a clear breach of s 44 of the Evidence Act. All this took place without any objection from counsel. 23 At one stage the cross-examiner said: "You see that totals almost $100,000 doesn't it, what you have put through the machines during those dates?"
A. I have never put that much money through the machines". 24 It would appear that the $100,000 was the rough total of the two sums involving the appellant and her husband shown in the RSL document. 25 The cross-examiner endeavoured to get her to agree to some lesser, but nevertheless substantial sum of money having been put through the poker machines during that period. But in substance she would not commit herself, or be drawn on any such figure. 26 Following this cross-examination there were some further questions asked about assets and income. There was however, no attempt to link temporally the RSL information which ended on 11 March 1999 and the evidence concerning the family assets at the time of the police raid some 18 months later. 27 The cross-examination concluded, as I say, on the Friday afternoon and presumably everybody returned to Sydney. 28 Counsel for the appellant, no doubt pondered what had really happened, or not happened on the Friday afternoon, and first thing on the Monday morning, back at Bathurst, he raised the fact that the accused had been cross-examined in relation to her assets and in relation to the poker machine money. He said that he had never been put on notice of that intention by the prosecutor, to which his Honour quite properly asked, well, whether there was any need for him to be put on notice. 29 The point however, seems to have been that Mr Walsh, the barrister, was saying that he was caught on the hop, as it were. I think it can also be said in partial defence of his non-objecton, that it was far from clear what period the cross-examiner was intending to get up to, or where the cross-examination was going to end up. Counsel, as he explained at one stage to his Honour, was reticent to interrupt cross-examination of his client by the Crown Prosecutor, and it is perhaps the case that he thought that there was going to be some closer linkage between the material that was endeavoured to be adduced and the matter the issue in the trial. 30 After having explained again his difficulty in not knowing really what was going to happen, counsel applied for a discharge of the jury. He put it to his Honour that the cross-examination had created an unfairness and prejudice to the accused. He submitted (and I do not think this was disputed) that it had never been part of the prosecution case that the accumulation of assets came from the playing of poker machines, or that the inherent suggestion of laundering money through poker machines was part of that Crown case. He also complained about a breach of the rule in the Queen's Case as embodied in s 44 of the Evidence Act. 31 The learned judge refused the application to discharge the jury, and he gave a five page extempore judgment. His Honour, in effect, acquitted the Crown Prosecutor of any impropriety or unfairness. He did observe that everybody was under some time pressure, because it had not been possible to sit beyond 3 o'clock on the Friday afternoon, and he had put it to the prosecutor that he ought to complete the cross-examination on the Friday afternoon, rather than have it spread over a weekend. This may provide a further clue as to why objections were not taken at the time. 32 His Honour appears to have accepted that there had been a breach of s 44, but he did say this: "In my view although there may have been breaches of proper approach, which I have highlighted, one must not forget whether or not there is a proper cross-examination and its matters are properly brought before the jury (sic). In my view the prosecutor did have the right to raise these matters. There was a clear indication that the excuse, or one of the excuses given for having such sums of money on 11 July 2000 was that they had been playing poker machines. The prosecutor is, in my view, entitled to cross-examine upon those matters, whether or not he should have, in the ancient tradition of the prosecutor's role, given some sort of notice is another matter. The real question for me is whether this trial can proceed, and in my view, there is no unfairness. There is no prejudice. It is perfectly proper material to raise, and I reject the application. In accordance though, with the request from Mr Walsh, I note that the prosecutor has undertaken to the court that he will not refer to those matters again, particularly in his final address and that he has no other material on which he seeks to reopen his case. I, for my part, will not say anything to the jury about any of that part of the evidence." 33 Immediately after the judgment was given, counsel for the appellant, when asked was there anything else, said this: "WALSH: No your Honour. I note your Honour says that your Honour will not say anything to the jury. I would be asking your Honour to ask the jury to disregard that evidence. HIS HONOUR: What, and say something highlighting it? WALSH: Well, just to tell them to disregard it. HIS HONOUR: Why should I do that? WALSH: Well, in my respectful -- HIS HONOUR: It's evidence that I have found is properly admitted. Why should I tell them to disregard it? Mr Walsh, she did say, as the prosecutor rightly pointed out, "plus all the money we've won on the poker machines". I mean, if one can't probe and test that I'm blowed if I know what you can test and probe. WALSH: Well, your Honour, the situation is that the period was 1 January 1998 to 11 March 1999. HIS HONOUR: So? That might be the start of it. The fact that they can lead to the very period doesn't stop cross-examination. WALSH: I just asked your Honour to -- HIS HONOUR: Yes, all right. Thank you. I have noted that. Anything else?" 34 Counsel for the appellant then called a witness, Mr Flannery, who was involved with the RSL, and he endeavoured to elicit evidence explaining how a relatively minor initial investment could produce a relatively high turnover figure in poker machines. It is probably the case that Mr Flannery did get that much evidence before the jury, although the explanation was a somewhat confusing one, and the jury must have been left wondering what exactly it had established, and in any event, what all the talk about poker machine turnover had to do with the matter before them. 35 At the very end of the examination there was an answer, or partial answer given by the witness: "A. Well, at $200 a week you'd, probably would turnover on average, again multiply that by 10, each $2000 in turnover, so -- " 36 It is clear that he was endeavouring to explain that an investment of a particular sum of money could, in the ordinary course, produce a turnover ten times that figure. That answer was objected to, and the evidence was rejected. The matter was not pressed any further, and there was no cross-examination by the Crown Prosecutor. 37 His Honour did deliver the following Parthian shot: "Q. I suppose a punter would know, most punters would know what they are winning or losing at the end of each session, wouldn't they? A. Yes, I would think so."
38 It is not clear what that question was directed to, but the answer was at least capable of casting some uncertainty on the credit of the appellant's evidence. 39 The summing up then proceeded, and consistent with his Honour's indication, nothing was said in relation to the poker machine evidence. 40 This was a case in which the jury were reminded that the Crown put the case upon a basis of involvement in a joint enterprise between the appellant and her husband, and that that was an explanation of the drugs in the premises, consistent with the appellant's guilt. 41 Toward the end of the summing up, counsel for the appellant sought a direction to the effect that the jury be directed to dismiss from their minds evidence about the house, caravan and poker machines that was put to the accused in cross-examination by the prosecutor. Counsel asked his Honour to tell the jury that such matters have absolutely no relevance to this case, and such matters, or suggestions do not form part of the prosecution case, and the prosecution cannot rely on such matters. His Honour declined to give such direction. 42 His Honour also never directed the jury that questions put to a witness that were not assented to by the witness could not be treated as evidence. 43 The appeal is put on a number of bases. The grounds of appeal asserted miscarriage of justice resulting from improper cross-examination, breach of s 44, wrongful refusal to discharge the jury, and error in failing to direct the jury to disregard the relevant part of the cross-examination of the appellant. In essence, all of the matters coalesce. 44 In my view, this trial did miscarry, having regard to the matters to which I have adverted. It is most unfortunate, because as I have already said it was a strong Crown case, and it was quite unnecessary for the Crown Prosecutor to have embarked upon this discursion. It is true that there was no objection taken, but as I have indicated one can perhaps at least reach an understanding why that occurred. 45 But the real problem, it seems to me, occurs in what was not done on the Monday and following after the cross-examination. The Crown had put before the jury, in breach of s 44 of the Evidence Act, material clearly suggestive of the fact that the appellant, and her husband, had been in possession of very substantial sums of money, not explicable by their social security legitimate source of family income. It is true that nothing was said about the matter in addresses, so it appears, and nothing was said in the summing up. But in one sense that is the problem. The material was just left there hanging. 46 The Crown before us accepts that at the end of the day, the end of Friday, the material was inadmissible, except so it was submitted on the basis that it was a legitimate response to the statement made by the appellant seeking to explain the $3000 in the family bank account. In my view that linkage was never established, particularly because of the substantial time lapse between the evidence in the RSL document that was used in the cross-examination and the time of the police raid. 47 The cross-examination left an uncertain pall hanging over the appellant and her credibility. There was, at the very least, a suggestion that she and her husband had accumulated property in time past from illicit dealings, and had, what's more, endeavoured to cover their tracks by churning the money through the poker machines. 48 The large sums of money that were put to the witness were capable of being neutralized to a significant degree, had the jury been given a direction about the evidence that Mr Flannery was at least endeavouring to get before them. But at the critical part of his evidence, there was a successful Crown objection and in any event, the trial judge did not give the jury any assistance about that matter. 49 The Crown invokes the proviso, relying upon the strength of the Crown case, and the submission that ultimately the evidence was not prejudicial. 50 It is true that one benign version of the evidence is that it corroborated the appellant's assertion that she and her husband gambled a lot on the poker machines. But there were also the overtones, or undertones, of worse. And there was a distinct possibility that the jury would have picked up on them and used them as part of their negative assessment of the appellant's credibility. 51 The s25A charge, as indicated, depended upon three proven actual supplies, within a constrained timeframe. Two of those actual supplies were ones in which the police evidence was corroborated by the listening device material, but a third was not. It was therefore a situation in which it was the evidence of the police officers against the evidence of the appellant. 52 The jury were well entitled to have accepted the evidence of the police officers, but that is not the issue. I do not consider this was a situation in which it is appropriate to apply the proviso. In my view the unfortunate miscarriage of the trial means that the conviction must be set aside. I would order a new trial. 53 BARR J: I agree. 54 McCLELLAN J: I also agree. 55 MASON P: The order of the Court therefore is, that the appeal is upheld. The convictions are set aside, and a new trial is ordered.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
REGINA
LISA BEVAN
Appeal upheld. The convictions were set aside and a new trial was ordered.