(2020) 284 A Crim R 124
De Jesus v The Queen [1986] HCA 65
(1986) 61 ALJR 1
De Silva v The Queen (2019) 268 CLR 57
[2019] HCA 48
Gipp v The Queen (1998) 194 CLR 106
[1998] HCA 21
Hamilton (a pseudonym) v R [2020] NSWCCA 80
Hamilton (a pseudonym) v The Queen [2021] HCA 33
Source
Original judgment source is linked above.
Catchwords
(2020) 284 A Crim R 124
De Jesus v The Queen [1986] HCA 65(1986) 61 ALJR 1
De Silva v The Queen (2019) 268 CLR 57[2019] HCA 48
Gipp v The Queen (1998) 194 CLR 106[1998] HCA 21
Hamilton (a pseudonym) v R [2020] NSWCCA 80
Hamilton (a pseudonym) v The Queen [2021] HCA 33(2021) 95 ALJR 894
Harriman v The Queen (1989) 167 CLR 590[1989] HCA 50
Hoch v The Queen (1988) 165 CLR 292[1998] HCA 50
Hughes v The Queen (2017) 263 CLR 338[2017] HCA 20
IMM v The Queen (2016) 257 CLR 300[2016] HCA 14,
JWM v R [2014] NSWCCA 248(2014) 245 A Crim R 538
KRM v The Queen (2001) 206 CLR 221[1978] HCA 29
McPhillamy v The Queen [2018] HCA 52(2018) 92 ALJR 1045
Perry v The Queen (1982) 150 CLR 580[1982] HCA 75,
Pfennig v The Queen (1995) 182 CLR 461[1995] HCA 7
Qualtieri v R [2006] NSWCCA 95(2006) 171 A Crim R 463
R v Bauer (2018) 266 CLR 56[2018] HCA 40
R v Falzon (2018) 264 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
Judgment (20 paragraphs)
[1]
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)
[2]
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
[3]
Judgment
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.
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.
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.
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.
[4]
The allegations, counts, pleas and verdicts
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
[5]
Contested Counts
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]
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]
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"
[6]
Admitted Criminal Conduct
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.
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.
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.
[7]
The competing cases at trial
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.
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.
[8]
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
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]
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]
[9]
Arguments at trial
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."
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.
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]
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]
[10]
The trial Judge's rulings
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]
[11]
Arguments on appeal
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."
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."
[12]
Analysis and conclusion as to ground 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]
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…"
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."
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.
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.
[13]
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.
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]
[14]
The Prosecutor's comments
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."
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.
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.
[15]
Discussions concerning the directions during the trial and in advance of the summing up.
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.
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]
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]
[16]
Directions given in the summing up
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]
[17]
Authorities concerning the potential for prejudice and need for direction
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.
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."
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."
[18]
Application to the directions given in this case
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."
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.
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.
[19]
Orders
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.
[20]
Endnotes
Respondent Written Submissions ('RWS') at [42].
RWS at [42].
RWS at [57].
RWS at [61].
Trial Tcpt, 20 August 2019, p 62.
Trial Tcpt, 29 August 2019, pp 379-384.
Trial Tcpt, 3 September 2019, p 489.20-23.
Trial Tcpt, 3 September 2019, p 475.
Judgment, 15 August 2019, p 4.
Pre-trial Tcpt, 15 August 2019, p 6.
Judgment 15 August 2019, p 4.
Reliance was placed on De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1
Pre-trial Tcpt, 14 August 2019, p 10.
Pre-trial Tcpt, 14 August 2019, pp 6-7.
Judgment, 15 August 2019, pp 3-5.
Pre-trial Tcpt, 15 August 2019, p 6.
Pre-trial Tcpt, 15 August 2019, p 7.
Pre-trial Tcpt, 19 August 2019, p 5.
Pre-trial Tcpt, 19 August 2019, p 7.
Judgment, 15 August 2019, p 4.
Trial Tcpt, 19 August 2019, p 1.
Trial Tcpt, 5 September 2019, p 618.
Trial Tcpt, 28 August 2019, pp 342 - 346.
Trial Tcpt, 28 August 2019, pp 345.5-24.
RWS at [42].
Appeal Tcpt, 8 August 2021, p 15.
RWS at [37].
Summing Up, p 50.
Senior Counsel's submissions on the issue are at Appeal Tcpt, 20 August 2021, p 17.
See the exchange in argument between the presiding Judge and Ms Bashir SC at Appeal Tcpt, 20 August 2021, p 17.
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.
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.
That her Honour was leaning to a somewhat different view at the conclusion of the evidence (at [67] below) is not to the point as after hearing from defence counsel again her Honour, who is very experienced, obviously decided that an anti-tendency direction was called for even if in somewhat limited terms.
Although the direction given by the learned trial judge broadly followed what might be regarded as a standard anti-tendency direction adapted for the particular circumstances of the case at hand, her use of the adverb "automatically" in effect undercut the meaning that the direction was intended to convey to the jury: cf Criminal Trial Courts Bench Book [4-220] - [4-222]. It did this because it suggested to the ordinary listener that it was impermissible to jump to the conclusion that "[Mr Salgado] must be a person who commits … drug related offences and must therefore … be guilty of" the disputed counts. It implied, however, the same conclusion could be reached as a result of the jury's mature consideration if they were so persuaded. In truth either pathway equally involved impermissible tendency reasoning and both were contrary to law.
HAMILL J: Benjamin Salgado (the appellant) appeals against his convictions in relation to three counts of supplying prohibited drugs. The convictions followed his trial before Judge Hock and a jury in the District Court which was conducted between 14 August 2019 and 11 September 2019 when the jury returned guilty verdicts after deliberations that commenced two days earlier.
Over an objection taken as part of a pre-trial application to sever the indictment and for separate trials of some of the counts, the indictment included three further counts to which the appellant indicated he would plead guilty. These comprised two allegations of supplying drugs and one allegation of dealing with the proceeds of crime. On arraignment the appellant pleaded guilty to these counts, first before the pre-trial argument and later in the presence of the jury panel.
Mr Salgado was sentenced to an aggregate term of 12 years imprisonment with a non-parole period of 8 years commencing on 12 January 2017. There is no application for leave to appeal against the aggregate sentence. However, if the conviction appeal succeeds, it will be necessary to quash the aggregate sentence and remit the whole of the proceedings to the District Court.
The notice of appeal, filed on 22 March 2021, identified two related grounds. The first concerns the cross-admissibility of evidence relating to particular counts to prove the allegations in the other counts. The submissions on appeal reflected generally the arguments made at the trial in support of the severance application. The second ground of appeal concerns the failure of the trial Judge in the summing up to identify the permissible and impermissible uses of the evidence. No objection was taken to the summing up at trial and no re-direction was sought, although an application was made at the commencement of the summing up for clear directions relating to the evidence and, as has been seen, there was an objection to the evidence in advance of the trial. Senior Counsel for the appellant conceded that leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) was required to argue ground 2. In the circumstances, leave should be granted to the extent necessary. The appellant submits that the trial miscarried as a result of the matters alleged under each ground.
The appellant's submissions focussed on the danger that the cross-admissibility of the evidence between the various counts may have, or inevitably, resulted in the jury adopting impermissible tendency reasoning. The appellant contended that such reasoning was invited or encouraged by the Prosecutor who commenced his opening statement to the jury by asserting:
"The [Prosecution] case, ladies and gentlemen, is that the accused was a significant drug dealer."
Similarly, in his closing address, the Prosecutor said of the appellant:
"Supply 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."
In written submissions to this Court, the respondent accepted that the Prosecutor at trial "did not give a full explanation of the relevance of the evidence being cross-admissible". [1] However, the respondent submitted that the trial Judge clearly understood the evidence to be, and correctly admitted the material as, "circumstantial evidence to prove that the drugs were in the possession of the appellant by virtue of the indicia of a drug supplying enterprise". [2] As to the second ground of appeal, the respondent submitted that the appellant "has not demonstrated that there was a real chance that the jury reasoned impermissibly" [3] and that "the direction read as a whole conveys an anti-tendency direction." [4]
The appeal raises frequently litigated questions concerning the admissibility of other criminal acts (whether charged or uncharged) to prove an individual allegation and the directions that are required to ensure that the jury adopts a principled and legally permissible approach to the evidence.
Putting to one side the question of admissibility, the evidence was not admitted as tendency evidence in the appellant's case. The jury received insufficient directions as to the permissible use of the evidence and no warning that the evidence could not be used to establish that the appellant had a tendency to act in a particular way (that is, to be a drug dealer) which could in turn be used to establish that he supplied the drugs on the particular occasions the subject of counts 1, 4 and 5 (or that he possessed those drugs for the purpose of supply).
The appeal must be upheld, the convictions and aggregate sentence quashed, and a re-trial ordered. What follows are my more detailed reasons for those conclusions.
At the request of counsel for the appellant, Mr Garner-Thornton was called by the Prosecutor at trial. He gave evidence denying that the appellant was aware of the drugs found in the car. [7] He claimed ownership of the drugs and the vehicle, and said he was responsible for the installation of the secret compartment. [8] This compartment was only accessible when both the demister and engine were running and by means of a switch concealed under the centre console of the vehicle. Mr Garner-Thornton's evidence was disputed by the Prosecutor who was granted leave to cross-examine him and did so at length. The witness maintained his account.
Mr Garner-Thornton remained in custody during the period leading up to the appellant's arrest.
Count 4 related to the discovery of 185 grams of methylamphetamine located in an ALDI cooler-bag in the backyard of the appellant's residence on 12 November 2016. The search was conducted following the appellant's arrest earlier in the morning for the conduct subject of counts 2 and 3, to which he pleaded guilty. A DNA profile consistent with the appellant was located on the handles of the bag.
Count 5 related to 128.9 grams of cocaine located in the same cooler-bag seized by police during the search on 12 November 2016.
The following day, counsel for the appellant sought to distinguish the case of Mac v R [2014] NSWCCA 24 and the authorities on which it was based. She also contended that no direction would be sufficiently "strong" to overcome the prejudicial effect of the evidence.
After delivering the judgment on the application for the severance of count 1, her Honour briefly addressed the cross-admissibility of the admitted criminal conduct (Counts 2, 3 and 6) and the associated severance application on those counts:
"Now, I haven't specifically dealt with your application to sever accounts two and three and I glean count six as well in that judgment because at this stage I was only dealing with the notice of motion and affidavit in support filed yesterday but the fact the same ruling would be made in view Ms Hickleton and I think you've made all the submissions that you wish to make in respect of counts two and three.
HICKLETON: So just to clarify, your Honour will allow the evidence of counts two and three that my client -
HER HONOUR: Yes.
HICKLETON: --has pleaded guilty to?
HER HONOUR: On the same basis, not the fact of the plea of guilty and I don't understand the Crown to be pursuing the fact of there were pleas of guilty to those counts but merely that there was evidence of the accused supplying prohibited drugs on those two dates, I think 12 November." [16]
Following these rulings, counsel for the appellant indicated she would consider whether "the jury should know that he's pleaded guilty". [17] Apparently following discussions between counsel and with the consent of the appellant, [18] the appellant was arraigned in front of a jury panel on an indictment including all six counts. [19] In accordance with his earlier plea, he pleaded guilty to counts 2, 3 and 6.
It should be emphasised that the evidence was not put forward by the Prosecutor as tendency evidence. Further, as conceded on the appeal, the Prosecutor at trial did not articulate with clarity, the way the evidence was otherwise relevant. It seems apparent from Her Honour's reasons that the evidence of Counts 2, 3, 4, 5 and 6 was admitted as "relationship" or "context" evidence, to adopt some popular labels, and to disprove an innocent association between the appellant and the co-accused, in relation to count 1. The trial Judge took the view that "the probative value of the evidence is high and was not outweighed by the danger of unfair prejudice". [20] The reasons for admitting the evidence relating to Count 1 in respect of Counts 4 and 5 were more opaque and was not separately articulated other than that by her Honour's assertion that it was admissible "vice versa".
The appellant argued that the Prosecutor's opening and closing addresses demonstrated that the evidence was being used as tendency evidence. In opening the case, the Prosecutor told the jury:
"Thank you, your Honour. The Crown case, ladies and gentlemen, is that the accused was a significant drug dealer. You heard the counts being read on the indictment, those counts relate primarily to the supply of methylamphetamine, one of the counts, however, relates to the supply of cocaine. As you heard, the accused pleaded guilty to counts 2, 3, 5 and 6, and not guilty to counts 1, 4 and 5. And my opening address to you will be principally in relation to those counts, 1, 4 and 5. But I will also address you in relation to the counts that he pleaded guilty to, because they form part of the circumstantial case against the accused." [21]
In his closing address, the Prosecutor said:
"So the fact that there were drugs inside the Mitsubishi Lancer on 2 October, and also the fact that his DNA was connected to the drugs inside that Mitsubishi Lancer, and that his fingerprints and DNA were connected to the bag that held the methylamphetamine, is also an indication, combined with the items that were found in the search warrant, that this was a continuing thing.
Supply 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." [22]
The appellant also questioned whether the evidence of the admitted criminal conduct was probative of the remaining counts on the indictment at all. Reliance was placed on the evidence of Detective Stuart Cadden who gave evidence regarding drug syndicate hierarchies The officer provided an opinion that it was rare for someone in the business of supplying smaller quantities such as those admitted by the appellant under counts 2 and 3 to also be involved in the sale of much larger quantities in the order of kilos. [23] He was cross-examined as follows:
"Q. I'm really more interested in the fact - I'm not - I'm suggesting to you that a person who purchases, say 6.4 grams is likely to be the supplier to the end user?
A. Yes, I wouldn't disagree with that.
Q. Now, we've talked about - in your experience, is the person who is selling amounts of 6.4 grams, likely also to be selling kilos?
A. Well, nothing's out of the question. It would be an interesting situation. I've never encountered something of that nature.
Q. Right. Because again, as you've described it, there's a hierarchy, with many layers of wholesalers till it gets down to the ultimate retailer, if you like, to the end user?
A. There is, but there are no set rules. There's no - you haven't got a governance above you that you can't sell more or less. There are no rules in the game.
Q. But you do agree that it highly unusual to find someone who is doing deals for 6.4 grams to also be doing deals for say a kilo?
A. I've not experienced that personally, no." [24]
On appeal, the respondent "accepted that the prosecutor did not give a full explanation of the relevance of the evidence being cross admissible". [25] However, counsel for the respondent offered an alternate basis for the admission of the evidence as circumstantial evidence, namely that it was evidence of a drug supplier's "tools of the trade" or "the indicia of the drug supplying enterprise". [26] The respondent submitted that the evidence was cross-admissible to "provide context to the conduct giving rise to the offence charged, so as to demonstrate its criminality" and referred to Mac v R at [28]. [27]
The trial Judge directed the jury that the evidence was part of the prosecution's circumstantial case concerning evidence of the "indicia of supply":
"The final topic when dealing with circumstantial evidence, which I will deal with very briefly, is what I will call the general circumstances which flow through all three counts on the Indictment.
In respect of the Crown case, the items found in the house occupied by the accused, if you like, what is known as indicia of supply but in layman's terms tools of trade of a drug supplier:
• digital scales, more than one set of digital scales,
• a money counter,
• zip lock plastic bags,
• the vacuum sealant machine and the plastic which that machine uses,
• the large amount of money, $209,000 in cash found in the house.
• the fact that on the Crown case the accused bought a boat for cash a few days before the execution of the search warrant, $108,000 in cash paid for the boat and the evidence about who contacted Mr Cranfield from Nautique the boat dealer who came to give evidence - the boat salesman, I suppose you would call him.
• the fact, as you know, that the accused pleaded guilty to supplying drugs on both 11 November and 12 November and pleaded guilty to Count 6 on the Indictment, the proceeds of crime, $209,000." [28]
Senior Counsel for the appellant complained that the evidence was not admitted on the basis that it was part of the "indicia of supply" case presented by the Prosecutor at trial. Further, she submitted that the final dot-point in the passage set out above was not supported by cases such as R v Falzon (2018) 264 CLR 361; [2018] HCA 29 which explain the basis upon which evidence of the "indicia of supply" is admitted. [29] Ms Bashir SC submitted that to categorise the evidence as the "indicia of supply" was apt to invoke tendency reasoning and, adopting the expression used by trial counsel, allowed tendency evidence to be admitted "by the back door".
In Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50, the High Court held to be admissible evidence that the accused was involved in an earlier importation of heroin from Thailand with a particular co-offender ("X"). The evidence was relevant to establish his guilty association with X in respect of the charged drug offence and to rebut his defence which asserted an innocent association with X. Similar reasoning was adopted in R v Quach [2002] NSWCCA 519; (2002) 137 A Crim R 345.
The principles enunciated in Harriman v The Queen and R v Quach were applied in different factual circumstances in Mac v R. Hidden J held that the trial of four counts was properly conducted as a joint trial and that the evidence admissible in relation to the individual counts was admissible in proof of the others. The first count was an offence of attempting to import a marketable quantity of heroin. The second was an offence of dealing with the proceeds of crime (around $554,000 in cash). The third and fourth were offences of supplying large commercial quantities of heroin and methylamphetamine. The importation offence was based on the applicant's trip to Vietnam in October 2010 and on the contents of a package that arrived in Australia on 7 November 2010, which was collected by the applicant on 11 November 2010. The remaining charges were based on items found on a search of the applicant's premises on 12 November 2010. The applicant's case at trial was that his trip to Vietnam was an innocent one and that he picked up the parcel for his daughter unaware that it contained drugs. His case on the supply offences was that he was aware that the drugs were present at his home but that he was not in possession of them but was merely minding them for a man he nominated as "Dung".
Hidden J held at [34] that the applicant had "no legitimate complaint" that the joint trial resulted in the jury treating his defence to each charge "with a great deal of scepticism". On the contrary, his Honour said (with Basten JA and RS Hulme J agreeing):
"A realistic assessment of each defence would not have been possible without the evidence relating to the other counts. Justice would not have been done by separate trials of the counts, with each jury left to evaluate the defence case in ignorance of whole of the circumstances established by the evidence on the other counts."
Unguided by this Court's decision in Mac v R, I would have concluded that the evidence in the present case (and the evidence in Mac v R itself) could only realistically be admitted as tendency evidence as defined in s 97 of Evidence Act. That is, it appears to be evidence of "the conduct of a person" led to establish that the person "had a tendency … to act in a particular way." I am unable to find that Mac v R was "plainly wrong" and it is a decision that must be followed unless or until it is overruled. It might be considered to be a decision decided on its own facts and the unlikely defences raised by the applicant in that case to the charges levelled against him. There is some tension between the reasoning in Mac v R and that adopted by Simpson and Rothman JJ in R v Ngatikaura referred to above. [33] Ms Bashir SC submitted that Mac v R could be distinguished and relied on the fact that the evidence was not adduced to prove the nature of any ongoing relationship or prior criminal involvement with co-offenders, the length of time between count 1 and the later counts, and the absence of any connexion in the origin or purity of the drugs the subject of the counts. [34] However, the fundamental basis of the decision in Mac v R was correctly recognised by Judge Hock to have relevance in the appellant's case. Even so, the issue of admissibility was to be determined by reference to the individual facts and evidentiary circumstances of this case and not based entirely on a decision of this Court made in different circumstances.
Based on the authorities to which I have referred, and in particular the High Court's analysis in Harriman v The Queen, I am satisfied that the evidence supporting counts 2, 3, 4, 5 was relevant and probative in support of the prosecution case on count 1. The appellant's case on count 1 involved an assertion that his association with Mr Garner-Thornton was an innocent one and that the text exchanges and surveillance evidence did not establish that he was a co-owner of the drugs found in the car driven by Mr Garner-Thornton. Those assertions could not be "realistically assessed" (to adopt Hidden J's language in Mac v R) in the absence of evidence that the appellant was found to be in possession of drugs some weeks later. Whether the "danger of unfair prejudice" outweighed the probative value of the evidence (Evidence Act, s 137) turned on the directions that could be given the jury to ensure the jury did not misuse the evidence, and in particular that it did not engage in tendency reasoning. The trial Judge was alive to this issue and noted that "careful directions" would be required. I am satisfied it was possible to fashion directions capable of overcoming the danger of unfair prejudice. If those conclusions are correct, grounds 1(b) and 1(c) must be rejected. Whether the directions provided to the jury were adequate is the subject of ground 2 and is not determinative of the question of admissibility.
On the other hand, I am not satisfied that the evidence establishing count 1 was admissible in proof of counts 4 and 5. By the time the drugs were located at the appellant's premises, Mr Garner-Thornton had been custody for more than a month. The appellant's involvement with him in the commission of count 1 on 2 October 2016 (if established) could not rationally effect a proper assessment of the prosecution or defence case relating to the possession for supply of drugs found at the appellant's premises on 12 November 2016. Even if the evidence possessed some probative value on those issues, other than as tendency evidence, the probative value was outweighed by the danger of unfair prejudice. That prejudice arose from the potential misuse of the evidence as tendency evidence and the concern that if the jury rejected (beyond reasonable doubt) the evidence given by Mr Garner-Thornton, it might improperly and too readily jump to the conclusion that the whole of the defence case on all counts should be rejected. As was submitted by defence counsel at the trial, there was no direction that could cure this potential for unfair prejudice.
I would uphold ground 1(a). However, even if that conclusion is incorrect, there can be no doubt that ground 2 must be upheld given the way that the trial unfolded and the absence of directions warning the jury against adopting tendency reasoning.
Earlier, at 304, his Honour said:
"One use that the jury could not legally make of W's evidence was to find that the appellant was 'the type of person' who had 'a predilection and liking for the company of young boys and for masturbation in their company' and then use that finding to reason that, given this propensity, the appellant had probably done what the complainant alleged. It is a fundamental principle of the criminal law in this country that ordinarily the guilt of an accused person is not to be 'inferred from the character and tendencies of the accused'."
Howie J in Vaoalii Toalepai v R [2009] NSWCCA 270 at [48] said:
"Of course if there is anything said in the trial that might suggest a tendency on the part of the accused or the evidence is used in a way that might indicate a tendency, then a warning should be given."
The majority judgment of the High Court in Hughes v The Queen acknowledged at [17]:
"The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."
The danger of the kind of prejudice referred to in Hughes v The Queen arises from the nature of the evidence itself, rather than from its intended use. Where the evidence might lead a jury to adopt tendency reasoning, but is not admitted for that purpose, it is critical that the jury is instructed not to follow such a process of reasoning.
The appellant also relied on the remarks of McClellan CJ at CL in Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463, where it was held at [80] that where there is any evidence which suggests "prior illegal acts" by an accused:
"the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence."
Similarly, no direction was given as to the use that could be made of the evidence, or an adverse finding, in relation to counts 4 and/or 5 in the jury's analysis of whether the prosecution had proved the allegation in count 1 and how those matters might impact on the jury's assessment of the exculpatory evidence given by Mr Garner-Thornton in relation to the drugs subject of count 1. I am not satisfied that the standard "separate consideration" direction was sufficient in circumstances where the jury heard evidence of:
1. the appellant's admitted offending;
2. the circumstances surrounding Mr Garner-Thornton's arrest and possession of 887.8 grams of methylamphetamine on 2 October 2016; and
3. the allegation that the appellant was in possession of the drugs located on 12 November 2016 and subject of counts 4 and 5,
and was not provided with clear direction as to the use that could be made of the evidence relating to these separate occasions or allegations of criminality.
Counsel for the respondent submitted, correctly, that there is no universal requirement for an anti-tendency direction in cases where there are multiple counts on an indictment. [41] The absence of such a direction does not necessarily establish that the trial miscarried. The respondent also relied upon R v Matthews; R v Williams [2004] NSWCCA 259 to contend that the "separate consideration direction" provided was both routine and sufficient in the circumstances. In that case, Simpson J said at [43] - [45]:
"Although no direction in terms of tendency or coincidence was sought, the trial judge nevertheless, in conventional terms, directed the jury to look at each charge - that is, each of the four charges - separately. He reminded the jury of the divergence in the responses made by the appellants to the two charges.
I have come to the view that the use of the terms 'tendency' and 'coincidence' in the ground is apt to mislead. What senior counsel is, in truth, contending for, is a warning, not in terms of the Evidence Act, but of 'propensity' as that notion was developed in the common law.
Initially, I found the appellants' argument persuasive. However, further reflection dispelled that view. Criminal courts daily deal with trials involving multiple counts against accused persons. A propensity warning in those cases would be highly unconventional. Yet I can see no feature that differentiates this case from those. There is nothing peculiar about the two drug charges faced by each appellant that call for special treatment."
The respondent also relied on the decision of a majority of this Court in Hamilton (a pseudonym) v R [2020] NSWCCA 80. In that case, Beech-Jones J (as his Honour then was) said at [113]:
"It follows that, notwithstanding the statements of McHugh J in KRM, there is neither a requirement or even a presumption that in all cases in which multiple counts of sexual assault involving different victims are tried together then, unless the evidence in respect of the counts is admissible as tendency evidence on the other counts, an anti‑tendency direction must be given such that a failure to do so will amount to a miscarriage of justice for the purposes of applying rule 4 or satisfying the third limb of s 6(1) of the Criminal Appeal Act. Instead, whether such a direction is required and whether a miscarriage of justice is occasioned by reason of the failure to give such a direction requires an assessment of the likelihood or risk of the jury having engaged in tendency reasoning (Toalepai; Jiang; Lyndon). Ultimately, whether a miscarriage of justice has occurred will depend on whether there was a 'real chance' (BRS at 306), 'it was likely that' (Lyndon at [65]) or there was a 'significant risk' (Toalepai at [49]) that 'forbidden reasoning' would be or was employed (BRS at 306). The assessment of that risk will be undertaken by reference to, inter alia, an analysis of how the respective cases were conducted and the effect of other directions given by the trial judge such as the separate consideration direction referred to in the above passage from Lyndon (at [66]) and by Hayne J in KRM (at [133]) (Lyndon; Toalepai). Further, in making an assessment of the risk that the jury might engage in tendency reasoning in the absence of an anti-tendency direction, the failure of counsel for the applicant at the trial to seek such a direction can affect an assessment of the likelihood that the jury would reason impermissibly in the absence of an anti‑tendency direction (Lyndon at [66]; Erohin at [68]; and see generally ARS v R [2011] NSWCCA 266 at [148])."
Adamson J agreed with Beech-Jones J while Macfarlan JA wrote a powerful dissenting judgment. This Court's decision was upheld by a 3:2 majority of the High Court (Kiefel CJ, Keane and Seward JJ; Edelman and Gleeson JJ dissenting): Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894. The majority in the High Court relied on a variety of factors including the way the case was conducted, the issues in dispute between the parties, the cumulative impact of other directions given to the jury and whether trial counsel sought the further direction at first instance. The majority commented at [43]:
"there is no absolute rule that in such cases the risk of impermissible tendency reasoning is such as always to necessitate the giving of an anti-tendency direction. The risk of tendency reasoning is not present in every case to the same extent; rather, the extent of the risk will depend upon the issues presented by the parties and the other directions given by the trial judge."
In both this Court and in the High Court, the majority concluded that trial counsel made a forensic or tactical choice not to seek an "anti-tendency direction". It was held that counsel was content to rely on the combination of "a separate consideration direction" and a "Murray direction" (to the effect that the jury had to be satisfied beyond reasonable doubt of the evidence of each individual complainant). Accordingly, there was no miscarriage of justice.
Similar considerations do not arise in the present case. For one thing, this was not a case where a "Murray direction" had any application. The questions and finer distinctions discussed by Beech-Jones J as to whether, and the extent to which, a "theoretical" risk was "material" or "practical" do not arise in this case. The risk of impermissible tendency reasoning was a real and significant one, and it needed to be guarded against by a firm and unambiguous warning. [42]
The failure of trial counsel to seek a re-direction at the conclusion of the summing up is relevant to this Court's assessment of whether the risk of impermissible reasoning arose. [43] However, trial counsel made a number of submissions seeking appropriate directions, having commenced from the position (on the severance application) that no direction was capable of preventing the jury from engaging in tendency reasoning. As Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35]:
"The absence of an application for a direction may ... tend against finding that that risk was present."
In the present case, an application for strong directions was made. It cannot be held that defence counsel made a tactical decision not to seek a direction, let alone that she was persuaded by the perhaps self-deprecating submission of the Prosecutor who, when asked to assist in framing the directions, said that he may be "more of a hindrance than a help." [44] The trial Judge said in the course of these discussions:
"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." [45]
That did not accord with the position taken by defence counsel who assessed the risk of improper tendency reasoning on the part of the jury to be high. She was correct in that assessment.
The directions provided to the jury were insufficient to eliminate the risk that the jury would engage in impermissible tendency reasoning.
For the foregoing reasons, ground 2 must be upheld.
Appeal Tcpt, 20 August 2021, pp 2-3.
Judgment, 15 August 2019, p 4.
Trial Tcpt, 5 September 2019, p 656.
Pre-trial Tcpt, 15 August 2019, p 3.
Trial Tcpt, 5 September 2019, p 656.
Summing Up, 6 September 2019, pp 7-8.
See Hughes v The Queen at [13] and BRC v R [2020] NSWCCA 176; (2020) 284 A Crim R 124 at [106].
Reliance was placed on KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [34] - [37].
Cf JWM v R [2014] NSWCCA 248 at [147]; (2014) 245 A Crim R 538.
Hamilton (a pseudonym) v R [2021] HCA 33 at [57]; (2021) 95 ALJR 894.
Trial Tcpt, 4 September 2019, p 601.
Trial Tcpt, 5 September 2019, p 656.
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Decision last updated: 04 November 2022