Salgado v R

4 CLR 361; [2018] HCA 29 R v Matthews; R v Williams [2004] NSWCCA 259 R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329 R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345 Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5 Vaoalii Toalepai v R [2009] NSWCCA 270 Category: Principal judgment Parties: Benjamin Salgado (Appellant) Regina (Respondent) Representation: Counsel: G Bashir SC with C O'Neill (Appellant) M Kumar (Respondent)

Solicitors: McGowan Lawyers (Appellant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2016/338839; 2018/220681 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 September 2019 Before: Hock DCJ File Number(s): 2016/338839; 2017/346867; 2018/220681

Judgment

1. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Hamill J, with which I agree. Insofar as Mac v R [2014] NSWCCA 24 dictates that evidence that the applicant was involved in the business of supplying drugs over the period covered by the six counts in the indictment was admissible other than on tendency reasoning - in this case, essentially to exclude as reasonably plausible hypotheses that the accused's association with Garner-Thornton was innocent (Count 1), and that the drugs found in a cooler bag in his backyard were there unbeknownst to him (Counts 4 and 5) - then its use so closely approached an invitation to tendency reasoning that, at the least, a stringent anti-tendency direction was required. The direction that "you must not reason that because the accused pleaded guilty to Counts 2, 3 and 6, then he must automatically be guilty of the counts that you have to decide" not only does not meet that requirement, but practically invites tendency reasoning, so long as it is not "automatic". The appeal must be allowed and there must be a new trial on the contested counts. I agree with the orders proposed by Hamill J.
2. CAMPBELL J: I have had the great advantage of considering Hamill J's reasons in draft. I agree with them and with the orders his Honour proposes. I only wish to add a short comment of my own about Ground 2, the misdirection point. I do not understand my comment to be in any way inconsistent with what Hamill J has written and it is not so intended.
3. As Hamill J has explained, the evidence of Mr Salgado's pleas of guilty to Counts 2, 3 and 6 in the presence of the jury were admissible in respect of Counts 1, 4 and 5 as circumstantial evidence that Mr Salgado at a time material to each disputed count was carrying on a drug supply business for financial gain. This was an integral part of the Crown case against him. And in a way was part of Mr Salgado's defence. The difference between him and the Crown as the cross-examination of Detective Stuart Cadden demonstrated (see [45] below,) was that he was a small-fry retailer dealing in small amounts for personal use as evidenced by his plea of guilty to Counts 2 and 3, in particular, and as such he was unlikely to be the type of dealer who would be involved in the supply of large commercial quantities of prohibited drugs.
4. Given her Honour's rulings on cross-admissibility and the rejection of the separate trials application, it is tolerably clear that learned defence counsel made a deliberate, legitimate forensic choice to have Mr Salgado plead guilty to counts 2, 3 and 6 when arraigned in the presence of the panel from whom the jury was selected to lay the ground work for the defence she intended to run that Mr Salgado was no big-time dealer. However, the risk of impermissible tendency reasoning as a pathway to verdicts of guilty on the disputed counts remained, as the learned trial judge recognised in the exchange with defence counsel quoted by Hamill J (at [66]): cf Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 at [52] - [53]; Hamill J at [82] - [85] below.

The allegations, counts, pleas and verdicts

1. The particulars of the counts, pleas or verdicts and the indicative individual sentences are summarised in the following table: COUNT VERDICT OR PLEA PARTICULARS INDICATIVE SENTENCE 1 Plea of not guilty; verdict of guilty 2 October 2016 at Menangle supply large commercial quantity of methylamphetamine (887.8 grams) 9 years and 6 months 2 Plea of guilty 11 November 2016 at Claremont Meadows supply methylamphetamine (6.44 grams) 10 months 3 Plea of guilty 12 November 2016 at Ourimbah supply methylamphetamine (14.8 grams) 1 year 4 Plea of not guilty; Verdict of guilty 12 November 2016 at Claremont Meadows supply methylamphetamine (185 grams) 3 years and 3 months 5 Plea of not guilty; Verdict of guilty 12 November 2016 at Claremont Meadows supply cocaine (128.9 grams) 3 years and 3 months 6 Plea of guilty 12 November 2016 at Claremont Meadows dealing with proceeds of crime ($209,900) 4 years and 3 months

Contested Counts

1. Count 1 related to the discovery of a commercial quantity of methylamphetamine (887.8 grams) on 2 October 2016. This was secreted in a compartment of a vehicle in which a tracking device had covertly been installed by investigators. The car was parked at the appellant's residence and he moved it while under surveillance at around 10am that morning. At about 11am, David Garner-Thornton attended the appellant's residence with two other people and conveyed the vehicle an hour away. He was stopped by police on the Hume Highway. The appellant was the first person that Mr Garner-Thornton contacted to say he was being pulled over and that the car was unregistered. The appellant's fingerprints and DNA were identified on the exterior of a "Qantas bag" in which two plastic containers, filled with an off-white coloured crystal substance that analysis later established contained methylamphetamine, were located. At the time of the arrest, Mr Garner-Thornton claimed ownership of the drugs and a gun located in the compartment. He told the arresting police officers: "It's all mine, everything is mine, put the cuffs on me." [5]
2. Before the arrests, search and seizure of the drugs, investigating police had intercepted a series of text messages between the appellant and Mr Garner-Thornton and Mr Garner-Thornton and another individual, Grant Hodges. These communications became Exhibit 4 at the trial. According to the evidence of one of the investigating police officers, these messages and other "blank" or "empty SMS" messages suggested that the appellant and Mr Garner-Thornton were in the business of supplying drugs together. [6]
3. The messages which the prosecution relied on to suggest that the appellant notified Mr Garner-Thornton that methylamphetamine was to be delivered on 2 October 2016 and that Mr Garner-Thornton then made those arrangements, included:

• On 30 September 2016 at 9:29pm the appellant texted Mr Garner-Thornton: "Doing this weekend cuz?"
• On 30 September 2016 at 9:53pm, Mr Garner-Thornton texted Grant Hodges: "What are you doing on Sunday bro?"
• On 1 October 2016 at 9:30am, Mr Garner-Thornton and Grant Hodges exchanged the following texts: Mr Garner-Thornton: "Do you want to make $500?" Grant Hodges: "Aubury?" Mr Garner-Thornton: "That's the one bro" Grant Hodges: "What time you wanna go?" Mr Garner-Thornton: "Go early that way we can hit and run it bro"

Admitted Criminal Conduct

1. Count 2 concerned the supply of 6.44 grams of methylamphetamine on 11 November 2016. The appellant was under surveillance and police intercepted calls between the appellant and another individual making arrangements to meet. The investigators observed the appellant approach the other person's car on foot and have a brief interaction before departing. The driver was stopped, his vehicle searched, and he was found to be in possession of the methylamphetamine. By his plea the appellant admitted that he supplied the other person with 6.44 grams of the drug.
2. Count 3 related to 14.8 grams of methylamphetamine recovered by police in the appellant's possession when he was pulled over in a vehicle headed toward the central coast on 12 November 2016. Once again, the appellant was under surveillance. Police intercepted text messages earlier in the morning between the appellant and his brother who organised to travel to Newcastle together. To avoid the drugs, or their full quantity, being discovered, the appellant threw the contents of a plastic bag into the air shortly after the offenders were pulled over by police. The appellant was arrested and the police recovered the contents of the bag and were able to test the substance.
3. Count 6 related to the appellant's possession of $209,000 suspected to be the proceeds of crime. The money was recovered by police from the appellant's residence on 12 November 2016 when a search warrant was executed and the drugs the subject of counts 4 and 5 were discovered along with an amount of lignocaine (a substance commonly used to cut down the purity of other drugs), scales, sealing equipment and plastic bags.

The competing cases at trial

1. The preceding narrative is a truncated and incomplete summary of the prosecution case in relation to each of the counts. It was a strong prosecution case. While it is incomplete, the summary is sufficient to understand the issues that arise on the appeal and to put the grounds and competing arguments in context. Put simply, the prosecution case was that the appellant was involved in various drug transactions in October and November of 2016, in the area of and around Menangle and at Ourimbah. The appellant and various associates were under surveillance at this time and there was a good deal of surveillance evidence, including electronic communications that were recorded by police and tendered at the trial. These supported the inference that the appellant was involved in the drug deals forming the basis of the counts on the indictment. The offending encompassed by the three contested counts spanned from 2 October 2016 to 12 November 2016, with a period of almost six weeks separating count 1 from counts 4 and 5. While the first count involved another individual, Mr Garner-Thornton, who had physical control of the drug (and was alleged to be in joint possession with the appellant), the prosecution case was that the appellant was the true owner and was in control of the vehicle in which the drugs were discovered.
2. The appellant disputed that he was in possession of the drugs relating to the contested counts and denied that he was involved in their supply. The defence case was that, while the appellant was a drug user and was involved in low-level drug supply around this time, he was not involved in supplying large or commercial quantities. The defence case was that the commercial quantity of methylamphetamine was not his and that he had no knowledge of the substance. For the quantities located in the backyard of his residence, the appellant's case was that the house had been ransacked by unknown persons who left the cooler-bag containing the drugs in a hasty exit to avoid police detection. The appellant relied on evidence adduced at trial which indicated that secondary transfer was a possible explanation for the DNA located on the handles of the ALDI bag which contained the substances referrable to counts 4 and 5. It was established that the police officers conducting the search were not wearing gloves.

Ground 1: The trial Judge erred in law and the trial miscarried through admission of: (a) Evidence led in support of Count 1 to prove Counts 4 and 5; (b) Evidence led in support of Count 4 and 5 to prove Count 1; and (c) Evidence led in support of Counts 2 and 3 (the subject of a plea) to support Count 1

1. The trial Judge refused an application to sever count 1 from the indictment and ruled, over objection, that the evidence concerned with the supply counts to which the appellant pleaded guilty was admissible to prove the other counts (including count 1). Her Honour also ruled that "the evidence of the later counts is admissible in relation to Count 1 in my view and vice versa". [9] Having delivered an ex tempore judgment relating to the severance of count 1, her Honour clarified that she also rejected an application "to sever counts two and three and I glean counts six as well." [10]
2. In her Honour's judgment rejecting the application for severance of count 1, Judge Hock said: "Clearly, there will have to be careful directions about the way the evidence on the other counts can be used and more importantly must not be used". [11]

Arguments at trial

1. The appellant made an application to sever count 1 from counts 4 and 5 on the basis that the evidence on the different counts was not cross-admissible and that there was a real risk of unfair prejudice if the trial on the disputed counts was conducted following an arraignment in which the appellant pleaded guilty to other drug charges. [12] Part of the submission was that because Mr Garner-Thornton was not involved in the facts giving rise to counts 2-5, and those offences occurred some weeks later and involved drugs of a different kind or not comparable in purity or volume, the evidence of count 1 was not relevant and accordingly not admissible in respect of the other later counts. The further and related submission was that the admission of evidence relating to all of the counts gave rise to unfair prejudice because of the possible misuse of the evidence. In particular there was a risk of tendency reasoning when the prosecution did not submit that the evidence was admissible to establish any relevant tendency. The appellant's position in relation to count 6 was somewhat enigmatic because of the following exchange: "HER HONOUR: … and did I understand that you also object to count 6? HICKLETON: Yes, your Honour. HER HONOUR: I think the authorities are very much against you on count 6 being severed. It's very much indicia of supply money. HICKLETON: Yes, no, I hear what your Honour has to say. I'm not going to waste the Court's time, but I will maintain my objection to leading evidence of the offending in counts 2 and 3."
2. Despite a subsequent observation by the trial Judge (set out above and again below), in which her Honour said she "gleaned" the objection extended to the proceeds of crime offence, it appears from the passage just set out that the appellant did not press the objection in relation to the evidence underlying count 6. The admission of the evidence of count 6 as relevant to guilt on counts 4 and 5 was not subject to the grounds and arguments raised on appeal.
3. In the course of submissions, the appellant's trial counsel submitted that the "only way it can be led would be on a tendency argument, and there is no tendency argument, to my understanding that the Crown relies on." [13]
4. In opposing the severance application, and in pressing for a trial in which all of the evidence was admissible in proof of all of the charges, the Prosecutor had the following discussion with the trial Judge: "HER HONOUR: I'll read this more carefully overnight. But what do you say? I'm assuming you oppose the application? MURRAY: Yes I do, your Honour. I just want to say a couple of things, and then hand up the case. Ms Hickleton said in her submissions about the lack of commonality. There is, of course, the commonality in that 37 Blackwood Street is where the offences originate from, it might be said. The cocaine and the methylamphetamine found at that address constitute counts 5 2 and 3 on the indictment, and, of course, a considerable amount of money was found there, as well. But it's the Crown case, also, that it's from that same address where the methylamphetamine, the subject of count 1, originated from, as well. Because it's the Crown case that the accused had it in his possession at that address, and that David Garner-Thornton went to that address; and, on the morning of 2 December 2016, was in a motor vehicle which drove down the Hume Highway, and was then pulled over by police with that large commercial quantity of methylamphetamine contained within it. As you'll see from the chronology, as well, your Honour, the timeframe over which these offences are alleged to have taken place-- HER HONOUR: Only a month. MURRAY: --is a short space of time, in the Crown's submission. 2 October tothe 12 November: perhaps not even six weeks. The case which I would like your Honour to read, and which I've provided a copy to Ms Hickleton, is the case of Mac v R [2014] NSWCCA 24, and that is a case which deals with the separation of trials on the appeal. I'll hand that up. It starts from page 6, and it ends at the top of page 14. HER HONOUR: I glean, from looking at this case, which I've only read parts of, that you say - you're not relying on tendency evidence, but you say the evidence is cross-admissible. MURRAY: That's right, your Honour, yes." [14]

The trial Judge's rulings

1. The trial Judge found against the appellant on the severance application and, after summarising the basic factual background against which the decision was made, gave the following reasons: "Counsel for the accused submitted that there was no commonality in the evidence to be adduced to prove Count 1 and Count 4 and 5. It was submitted that they were two separate and distinct alleged incidents which occurred at different times and which are unrelated. Therefore it was submitted that there is a real risk of prejudice to the accused in relation to Count 1, in that a weak Crown case would be made stronger by reason of impermissible tendency reasoning. Further it was submitted that it was anticipated that Mr Garner-Thornton, the alleged co-offender in Count 1 would give evidence that the drugs, the subject of Count 1 were his and his alone. The High Court authority of De Jesus (1986) 61 ALJR 1 was relied on. The Solicitor Advocate appearing for the Crown submitted that there was a link between the allegation in Count 1 and Count 4 and 5 and that the evidence in relation to each count was admissible in respect of the others. The basis for that was that it was to show the nature of the relationship between Mr Garner-Thornton and the accused and to show that the accused was involved in the business of supplying drugs over the relevant period which spanned approximately six weeks in the indictment. The Crown relied on the authority of Mac v R [2014] NSWCCA 24. Section 29(1)(c) of the Criminal Procedure Act 1986 permits a joint trial of two or more counts where the alleged offences, 'form or are part of a series of offences of the same or a similar character.' Section 21(2)(a) of the Act provides that, a Court may order a separate trial on any count or counts on an indictment if 'an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment'. While counsel for the accused argued that after Count 1 Mr Garner-Thornton was, 'out of the picture', in that he was in custody and had no involvement in subsequent supplies, the question really turns on the alleged involvement of the accused on any of the counts on the indictment. As I understand it the Crown case relies on circumstantial evidence in all counts. In relation to Count 1 evidence that the accused supplied drugs some six weeks later and was in possession of a large sum of money is relevant to show whether his involvement/contact with Mr Garner-Thornton on 2 October 2016 was only for an innocent purpose as I anticipate the case for the accused to be, or rather as the Crown alleges because he was involved with Mr Garner-Thornton in the supply of a large quantity of methamphetamine on that date. The evidence of the later counts is admissible in relation to Count 1 in my view and vice versa. The probative value of the evidence is high and is not outweighed by the danger of unfair prejudice to the accused. Clearly there will have to be careful directions about the way the evidence of the other counts can be used and more importantly must not be used as was the case of Mac cited earlier. The case relied on by counsel for the accused mainly to De Jesus is readily distinguishable as there were two separate and distinct offences involving different defences and it was held that the evidence admissible on one count was not admissible in proof of the other. That is not this case. Therefore I make the following order: The application that Count 1 be tried separately from the remaining counts on the indictment is refused." [15]

Arguments on appeal

1. The appellant submitted that the Prosecutor at trial failed to identify how the evidence was admissible, or was to be used by the jury, if it was not to ground a case based on tendency reasoning. The appellant relied on the majority judgment in R v Ngatikaura (2006) 161 A Crim R 329; [2006] NSWCCA 161 in answer to the suggestion that the evidence of counts 4 and 5 was admitted in proof of count 1 to disprove an innocent association between the appellant and Mr Garner-Thornton, but not as tendency evidence. Simpson J (as her Honour then was), at [67] - [68], confirmed the two purposes were not mutually exclusive: "It is, of course, necessary precisely to analyse the manner in which the Crown would seek to use the evidence. That was disclosed clearly in the argument, both in the District Court and on appeal - it was expressed as tendered to prove that the respondent was a drug dealer. I am (with respect to Beazley JA who takes a different view) quite unable to see that this evidence was tendered for any reason other than to prove that the respondent had a tendency to deal in drugs. Even if it were to be said that the evidence was tendered to rebut the respondent's anticipated defence, that the drugs and other items were the property of her husband, and that their presence within the home was not within her knowledge, nevertheless that rebuttal was to be achieved by showing that she had a tendency to supply and deal in drugs."
2. In the same case, Rothman J said at [86] - [87]: "The material that was sought to be tendered in these proceedings was material relating to two past offences for the purpose of proving that the accused was a drug dealer. The relevance of that material was to show that the accused had a tendency or state of mind inconsistent with an innocent explanation for the existence of the drugs on premises which the accused occupied. Its probative value is that, because the accused has previously been convicted (not that long ago) of conduct amounting to dealing in drugs, it is more likely that the accused is still dealing in drugs and that, therefore, the existence of the drugs on her premises is not innocent. That is classic propensity reasoning. It is evidence of a tendency (to deal in drugs), to act in a particular way (to deal in drugs), to have a particular state of mind (the intention to use drugs impermissibly or knowledge of the existence of the drugs), adduced in order to prove that the respondent did, at the time that drugs were found on premises she occupied (the date of offence), act in a particular way (have possession of the drugs), or have a particular state of mind (the intention to use the drugs found). It fits precisely the description in s 97 of the Act of the reasoning process which renders evidence propensity evidence."

Analysis and conclusion as to ground 1

1. The Court is not called upon to determine whether Judge Hock erred in rejecting the application for severance or for separate trials. While the question of the cross-admissibility of the evidence was central to that application, it was not necessarily determinative of it. [30]
2. The early cases at common law established a relatively rigid rejection of evidence establishing other criminal conduct on the part of an accused person. For example, in Makin v The Attorney General for NSW [1894] AC 57 Lord Herschell made the following observation at 65: "It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury…"
3. Lord Herschell's statement of principle was followed in Australia for around a century and there are many cases in which it was applied. [31] However, by the time of McHugh J's dissenting judgment in Pfennig v The Queen the rigidity of the statement came to be questioned. McHugh J said at 527: "it is impossible to maintain that Anglo-Australian law of evidence prohibits the use of propensity reasoning in all circumstances."
4. McHugh J went on to analyse the degree of probative force required before such evidence would be admissible in light of the risk of an unfair trial inherent in the admission of such evidence before a jury.
5. The cases decided at common law remain important, particularly in relation to evidence that is relevant otherwise than as what the common law described as "propensity evidence" and the directions required to cure the potential for prejudice when such evidence is admitted. However, the test of admissibility of "propensity" evidence has been substantially altered, if not swept away, by the "tendency rule" in ss 97-101 of the Evidence Act 1995 (NSW). [32] That change to the law of evidence is not relevant to the present appeal because the evidence in question was not tendered to prove any relevant tendency in the appellant.

Ground 2: There was a miscarriage of justice occasioned in the trial Judge's failure to direct the jury properly as to the permissible and impermissible uses of each count (counts 1, 4 and 5), and/or the appellant's admitted criminal conduct (counts 2, 3 and 6), in its consideration of the circumstantial case in respect of counts 1 and/or counts 4 and 5.

1. Ground 2 must be considered in the light of the following matters relevant to the conduct of the trial: 1. The prosecution specifically eschewed the use of the evidence as tendency evidence. 2. The trial Judge, in deciding the evidence of each count was "cross-admissible" in proof of the other counts, said "clearly there will have to be careful directions about the way the evidence of the other counts can be used and more importantly must not be used". [35] 3. The Prosecutor's opening and closing addresses may have invited tendency reasoning. 4. In arguing the evidence should be excluded, defence counsel submitted that no direction could cure the danger of unfair prejudice. 5. Before the summing up, counsel submitted that the circumstances required "the strongest possible direction" to guard against tendency reasoning. [36]

The Prosecutor's comments

1. The trial essentially commenced with the Prosecutor telling the jury that the Prosecution case was that "the accused was a significant drug dealer." In his closing address he said "[s]upply of prohibited drugs was something that he did continuously. In fact, from the period of 2 October to the day upon which he was arrested."
2. On one view, these comments merely invited the jury to accept the prosecution case in respect of the three disputed counts. However, the comments may also have invited the jury to reason that the evidence of all six counts, especially those in relation to which he pleaded guilty established that he was "a significant drug dealer" and that this made it more likely that he was guilty of counts 1, 4 and 5. That is tendency reasoning.
3. The appellant is correct in submitting that this gave rise to the need for particularly clear directions as to the possible misuse of the evidence.

Discussions concerning the directions during the trial and in advance of the summing up.

1. Reference has already been made to trial counsel submitting that no direction could cure the danger of unfair prejudice arising from the cross-admissibility of the evidence and to her Honour's comment in her judgment allowing the evidence that careful directions were required.
2. The transcript also records the following exchange during the submissions on admissibility: "HICKLETON: The difficulty, of course, your Honour, is that it comes down to saying he did it before with Mr Garner-Thornton, therefore the drugs found five weeks later show his propensity for dealing drugs. It is highly prejudicial, your Honour, and-- HER HONOUR: Highly probative and any prejudice, in my view, can be cured by directions, such as those that were given in the case of [Mac v The Queen] to ensure how the jury cannot use it, and the limited way that they can use it. HICKLETON: It is my concern, your Honour, that essentially - this is my submission, that it amounts to tendency evidence, and that the manner in which the Crown is seeking to use it, relying on Mack, is essentially getting tendency evidence in the back door, and that it is highly prejudicial, and that it does not - the evidence in relation to both, I would suggest, is distinct. Both trials can be run without cross-admissibility of evidence. I note that your Honour would - has indicated that in terms of the money, that that's indicia of supply, and that could apply to both. I accept that, but beyond that, I would suggest that it is highly prejudicial that the - it would be impossible for the jury not to reason on the basis of tendency that because he had some involvement with Mr Garner-Thornton, and Mr Garner-Thornton's drugs, that he therefore - and similarly, that he was - drugs were found at his premises at a later date, that he, therefore, did it earlier, so he's done it again, dealing in drugs, and vice versa." [37]
3. Prior to the summing up, there was some limited and general discussions of the directions to be provided to the jury. Those discussions included: "HICKLETON: Your Honour, there is one direction I wanted to raise with you. Your Honour's probably already alive to it, but for the sake of completeness, and that is the jury be directed that they cannot use the counts on which my column pleaded guilty as tendency evidence. That that's not the reason it was led, and I would ask for the strongest possible direction in that respect. Because obviously I am concerned that tends to be a natural default decision of the human mind, but I'm sure if your Honour makes a very strong direction, it will stick in their mind they cannot do that. HER HONOUR: Well, I'm not sure whether it would be particularly helpful. What I had in mind was just outlining, for example, the circumstances on which the Crown relies, which include the money found in the accused's house, and your countervailing argument about other possibilities about that money. But the anti tendency direction I would've thought would be somewhat confusing to the jury because they're not likely to engage in tendency reasoning as we understand it. HICKLETON: Well, it's simply the tendency that because he is in fact dealt in drugs, small quantities of drugs on two occasions, he's pleaded guilty to that, you cannot use that to reason that he therefore has committed the other offences to which he has pleaded not guilty. That's all it needs to be. HER HONOUR: But it is a circumstance in which the Crown can rely. HICKLETON: It's a circumstance, but the thing is that there is a difference-- HER HONOUR: Not automatically. HICKLETON: Not automatic." [38]

Directions given in the summing up

1. The direction ultimately given to the jury was in the following terms: "As you know, the Crown case is that over the period covered by the Indictment - namely, 2 October to 12 November 2016 - the accused was in the business of supplying prohibited drugs. Relevant to that issue and to the questions you have to answer in respect of Counts 1, 4 and 5, is the fact that the accused pleaded guilty in your presence to Counts 2, 3 and 6 on the Indictment. The Crown relies on the fact that the accused has admitted to those offences as part of its circumstantial case in respect of the counts in dispute, that is, Counts 1, 4 and 5. That is, that the accused admitted supplying relatively small quantities of drugs on 11 and 12 November 2016 and to having $209,000 in cash in his house on 11 November. Ms Hickleton, on behalf of the accused, argued that the accused had admitted to crimes which he had committed - relatively small scale drug supplies on the 11th and 12th - and to having the large sum of money in his house on the 12th, but was not guilty of the other counts in dispute. It is very important that you understand that you must not reason that because the accused has admitted his guilt in respect of Counts 2, 3 and 6, that he must automatically therefore be guilty of the remaining counts on the Indictment. You can only use the fact that the accused pleaded guilty to those other counts as part of the Crown's circumstantial case, if you are of the view that it does support the Crown's circumstantial case. Ms Hickleton argued that it does no such thing and I will come to that when I deal with the circumstances on which the Crown relies. But I repeat, what you must not do is reason that, because the accused pleaded guilty to Counts 2, 3 and 6, then he must automatically be guilty of the counts that you have to decide. You must not reason that, because the accused has pleaded guilty to Counts 2, 3 and 6, he must be a person who commits offences and commits drug related offences and must therefore automatically be guilty of the other counts. The accused has pleaded not guilty to those counts and it is your role - that is, Counts 1, 4 and 5 - and it is your role to decide whether the Crown has proved beyond reasonable doubt that he is guilty, based on the evidence that has been presented." [39] [My emphasis]

Authorities concerning the potential for prejudice and need for direction

1. The danger of misuse of evidence that suggests or establishes that an accused has committed other criminal offences, particularly of the same or similar kind, has been emphasised in many cases.
2. For example, in Sutton v The Queen at 541-542, Brennan J said: "When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."
3. BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 was a case decided under the common law. The evidence was not relied on as propensity evidence, the common law equivalent of tendency evidence. [40] The impugned evidence in BRS v The Queen concerned an allegation that the appellant (a teacher) encouraged a school-boy (W) to masturbate in his bedroom using a towel and lubricant. The evidence was admitted in support of the account given by another boy (H) that a towel and lubricant were present in the appellant's bedroom at the time of the charged offences. It was also admitted as evidence capable of rebutting the appellant's case that he was a person of good character. Toohey J (at 294-295), Gaudron J (at 301-303), McHugh J (at 304-305 and 310) and Kirby J (at 330 and 332) all concluded that the trial miscarried because there was no direction prohibiting the jury from using W's evidence as propensity evidence. McHugh J, at 305, said: "If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose."

Application to the directions given in this case

1. The directions given at the appellant's trial did not constitute an adequate "anti-tendency direction" in the complex circumstances of the case. It must be remembered that the jury were confronted not only with evidence of the applicant's admitted offending, but also evidence relating to two separate and disputed incidents of criminality that occurred almost 6 weeks apart. The directions failed to identify the use that could properly be made of the evidence concerning the offences to which the appellant pleaded guilty. While the trial Judge said she proposed giving directions "such as those that were given in the case of [Mac v R]", no such directions were provided with respect to the three disputed counts, in relation to which there was a ruling allowing for the cross-admissibility of the evidence. The directions given in Mac v R, which was a case where all relevant offences were denied, were referred to by Hidden J at [36] and were as follows: "... you cannot take the evidence in support of the other counts into account in the sense of thinking, 'If the accused committed those other offences, therefore he must have been the kind of person who commits offences, and therefore he must have committed this offence charged in count 1."
2. A direction does not guard adequately against impermissible tendency reasoning merely by instructing a jury not to conclude "automatically" that the accused person is guilty by virtue of the fact that they have admitted committed a similar type of offence on another occasion. I accept the appellant's submission that the use of the word "automatically" in the summing up had the capacity to undermine the purpose of the direction. It allowed the jury to use the evidence in an impermissible way provided it did not "automatically" conclude the appellant was guilty. Insofar as the passage set out above at [67] may be seen as acquiescence by trial counsel, that passage must be considered in the light of the fact that counsel argued with some perseverance that the prejudice could not be cured by any direction at all.
3. Further, the directions only addressed the use of the evidence relating to those offences admitted by the applicant (counts 2,3 and 6). The directions did not address in any way the use (if any) that could be made of the evidence relating to count 1 in terms of the allegations in counts 4 and 5. No anti-tendency direction was provided in the event that the jury was satisfied of the appellant's guilt on count 1.

Orders

1. I would make the following orders: 1. To the extent necessary, grant leave to appeal against the convictions on counts 1, 4 and 5. 2. Allow the appeal. 3. Quash the convictions in relation to counts 1, 4 and 5. 4. Confirm the convictions on counts 2, 3 and 6. 5. Order a re-trial on counts 1, 4 and 5. 6. Quash the aggregate sentence imposed on 21 February 2020. 7. Remit the matter to the District Court for retrial in relation to counts 1, 4 and 5 and resentence of Counts 2, 3 and 6 upon finalisation of those proceedings. I direct that the matter be placed in the Arraignments List at Sydney District Court on 25 March 2022 at 9:30am.

Endnotes

1. Respondent Written Submissions ('RWS') at [42].
2. RWS at [42].
3. RWS at [57].
4. RWS at [61].
5. Trial Tcpt, 20 August 2019, p 62.
6. Trial Tcpt, 29 August 2019, pp 379-384.
7. Trial Tcpt, 3 September 2019, p 489.20-23.
8. Trial Tcpt, 3 September 2019, p 475.
9. Judgment, 15 August 2019, p 4.
10. Pre-trial Tcpt, 15 August 2019, p 6.
11. Judgment 15 August 2019, p 4.
12. Reliance was placed on De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1
13. Pre-trial Tcpt, 14 August 2019, p 10.
14. Pre-trial Tcpt, 14 August 2019, pp 6-7.
15. Judgment, 15 August 2019, pp 3-5.
16. Pre-trial Tcpt, 15 August 2019, p 6.
17. Pre-trial Tcpt, 15 August 2019, p 7.
18. Pre-trial Tcpt, 19 August 2019, p 5.
19. Pre-trial Tcpt, 19 August 2019, p 7.
20. Judgment, 15 August 2019, p 4.
21. Trial Tcpt, 19 August 2019, p 1.
22. Trial Tcpt, 5 September 2019, p 618.
23. Trial Tcpt, 28 August 2019, pp 342 - 346.
24. Trial Tcpt, 28 August 2019, pp 345.5-24.
25. RWS at [42].
26. Appeal Tcpt, 8 August 2021, p 15.
27. RWS at [37].
28. Summing Up, p 50.
29. Senior Counsel's submissions on the issue are at Appeal Tcpt, 20 August 2021, p 17.
30. See the exchange in argument between the presiding Judge and Ms Bashir SC at Appeal Tcpt, 20 August 2021, p 17.
31. See, for example, Markby v The Queen (1978) 140 CLR 108; [1978] HCA 29, Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75, Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, Hoch v The Queen (1988) 165 CLR 292; [1998] HCA 50, Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 and Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21.
32. Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [13]. See also IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, R v Bauer (2018) 266 CLR 56; [2018] HCA 40 and McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045.
33. See above at [41]-[42].