Bell, P.H. v The Queen

[1985] FCA 614

Re: PHILLIP HAROLD BELL
And: THE QUEEN (1985) 7 FCR 555
Nos. ACTG42 and ACTG49 of 1985
Criminal Law - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Wilcox(2) and Miles(2) JJ.

CATCHWORDS

Criminal Law - appeal from ACT Supreme Court - appeal against conviction - admission of evidence - conversation between police officer and accused - whether inadmissible as disclosing previous offence - whether admissible as part of res gestae - whether cross-examination of police officer as to being a witness of truth wrongly disallowed - whether various directions to jury correct - whether leave should be given to allow amendment to notice of appeal to add ground that verdict unsafe

Poisons and Narcotic Drugs Ordinance 1978 (ACT) s.4

Evidence Ordinance 1971 (ACT) s.56

Perry v The Queen (1982) 150 CLR 580; (1982) 57 ALJR 110

Makin v The Attorney-General for New South Wales (1894) AC 57

Sutton v The Queen (1984) 58 ALJR 60

O'Leary v The King (1946) 73 CLR 566

R v Richardson (1969) 1 QB 299

R v Hanrahan (1964) 87 WN 458; (1967) 2 NSWR 717

Reg v Toohey (1965) AC 595

Chamberlain v The Queen (1984) 58 ALJR 133; (1983) 46 ALR 493

Criminal Law and Procedure - Appeal against conviction - Admissibility of confession to another offence - Similar fact evidence - Whether part of the res gestae - Cross-examination as to accusations of untruthfulness.

Evidence - Similar fact evidence - Res gestae - Cross-examination as to character - Previous allegations of untruthfulness - Poisons and Narcotics Drugs Ordinance 1978 (ACT), S 4 - Evidence Ordinance 1971 (ACT), s 56.

HEADNOTE

The appellant was convicted of possession of heroin for the purpose of supply . He appealed on the grounds, inter alia, that the trial judge wrongly allowed evidence to be given of a conversation in which the appellant admitted to having sold part of the heroin on the day before the offence; and that cross-examination of a police officer regarding previous accusations of untruthfulness had been wrongly disallowed.

Held: (1) Per Wilcox and Miles JJ. - The evidence relating to the previous sale of part of the heroin was not similar fact evidence but was evidence of facts which were probative of the purpose for which the appellant had been in possession of the remainder of the heroin. It was thus admissible.

Per Davies J. - Whilst the evidence of the previous sale was similar fact evidence, it went to the res gestae of the offence. It did not merely show propensity but was strongly probative of purpose. Even though it was undoubtedly prejudicial, it was not unfairly so.

(2) Per curiam - If evidence is to be given that a witness has a reputation of untruthfulness, it is proper that he be given an opportunity during cross-examination to refute such an allegation; however, to ask the witness whether other persons have alleged that he has lied on previous occasions neither establishes that the witness has a reputation for lying nor that he has in fact lied on previous occasions. Such questions were correctly disallowed.

Perry v. The Queen (1982) 150 CLR 580; Makin v. A-G (NSW) (1894) AC 57; Sutton v. The Queen (1984) 152 CLR 528; O'Leary v. The King (1946) 73 CLR 566; R. v. Richardson; R. v. Longman (1969) 1 QB 299; R. v. Hanrahan (1967) 2 NSWR 717; R. v. Toohey (1965) AC 595; Chamberlain v. The Queen (1983) 46 ALR 493; Chamberlain v. The Queen (1984) 153 CLR 521, referred to.

HEARING

Canberra, 1985, October 29; December 5. #DATE 5:12:1985
APPEAL

Appeal against conviction from Supreme Court of the Australian Capital Territory.

F J Purnell, for the appellant.

The admission of the appellant that he had sold part of the heroin on the day before the offence was evidence of commission of a separate offence and amounted to similar fact evidence. It should only have been admitted if it satisfied the test of admissibility of similar fact evidence. Such evidence must have a probative value greater than mere relevance. This evidence had no probative value and showed merely propensity. It should therefore have been disallowed by the trial judge.

The questions in cross-examination of the police officer regarding previous accusations of untruthfulness should have been allowed as they tended to impeach his credit and were intended to show a propensity for lying

G C Lalor, for the Crown.

The evidence of the sale of part of the heroin on the previous day was adduced for the purpose of establishing an intent to supply heroin which formed part of the offence. Such evidence was sufficiently proximate to be admissible as part of the res gestae. The fact that a previous charge has been made against a witness on a prior occasion is not evidence of bad character; the questions of the police officer regarding previous accusations were properly disallowed.

Cur adv vult

Solicitors for the appellant: Pamela Coward & Associates.

Solicitors for the respondent: Australian Government Solicitor.

SMW

ORDER

Leave to amend the notice of appeal be refused.

The appeals be dismissed.

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

Appeal dismissed

JUDGE1

I have had the opportunity of reading the reasons for judgment prepared by my colleagues. I agree with the order proposed but desire to state my own views with respect to one point argued in the appeal, namely, whether the confession by the appellant as to the sale of heroin on the day preceding the offence charged ought to have been admitted in evidence against him.

The appellant was charged with the offence of having in his possession a controlled substance, heroin, for the purpose of supplying that substance to another person or persons, as stipulated in s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 (ACT). There was evidence that he had a quantity of heroin in his possession on 3 July 1984. Detective Sergeant B.W. Lewis, of the Australian Federal Police, and other members of the Force searched a bedroom occupied by the appellant and found an electrical coil from a motor vehicle, in which coil were seventeen silver foil packages containing white powder. The white powder, on analysis, was found to comprise 5.37 grammes containing 30.1% by weight of heroin, that is to say, 1.62 grammes of heroin.

Sergeant Lewis gave evidence of the following conversation between himself and the appellant at the appellant's flat:

". . . I said, 'How much worth of heroin did you buy?' He said, 'A thousand bucks.' I said, 'When did you buy it?' He said, 'Monday'. I said, 'Who made it up into the foil deals?' He said, 'I did'. I said, 'What did you intend to do with them?' He said, 'Use some and sell some'. I said, 'How much were you selling it for?' He said, '$50 the small deals, 300 the big ones'.

. . .".

That was evidence that the appellant had confessed that, on the previous day, Monday, he had purchased a quantity of the powder with the intention of using some and selling some and had made it up into foil deals, intending to sell the small deals for $50 each and the large deals for $300 each. In support of the confession, Detective Sergeant Lewis gave evidence that he had originally found twelve silver foil packages in the electrical coil but that one of the silver foil packages when unwrapped was itself found to contain six small packages, giving a total in all of eleven large packages and six small packages.

Detective Sergeant Lewis was then permitted to give the following evidence of an interview held at the police station, the conversation having been objected to by Mr J. Purnell, of counsel, who appeared for the appellant at the trial. Detective Sergeant Lewis said,

". . . I said, 'Do you use heroin?' He said, 'Yeah'. I said, 'How much?' He said, 'Less than 50 bucks worth a day'. I said, 'Have you sold any of the heroin that you obtained on Monday?' He said, 'Yeah'. I said, 'How much?' He said, 'Two $300 deals'. I said, 'Who did you sell them to?' He said, 'Not saying'. I said, 'Where did those transactions take place?' He said, 'Back at the house'. I said, 'Which house?' He said, 'Ebden Street, where I live'. . . .".

In support of this confession, Detective Sergeant Lewis gave evidence that, at the time the appellant was found in possession of the heroin, a sum of $345 in cash was found in his wallet, a sum said by the Crown to be consistent with his having sold two small deals the previous day.

There was no evidence that the appellant had equipment suitable for weighing out and packaging bulk heroin into smaller packages.

The appellant did not give evidence. The evidence as to the confession was challenged by his counsel, Mr Purnell, but the appellant, himself, merely gave an unsworn statement from the dock to the effect that he was a heroin addict and had acquired the heroin for his own personal use.

On the appeal, it was submitted by Mr Purnell that the evidence as to the confession with respect to the sale of the heroin on the day preceding the offence was evidence of similar facts and ought to have been admitted only if it complied with the principles established for the admission of such evidence. I am content to accept this submission. However, I do not accept that the evidence ought not to have been admitted. The evidence did not show a mere propensity on the part of the appellant to commit offences of this type. It was evidence going to the res gestae of the offence with which the appellant was charged, namely, the possession of heroin and the intent thereof. It was evidence of the purpose with which the appellant had purchased the $1,000 worth of heroin on the previous day and was evidence from which an inference could be drawn that he retained the heroin in his possession on Tuesday, 3 July 1985, for the purpose for which he had acquired the greater quantity on the preceding day, namely, to use some and to sell some.

In Perry v The Queen (1982) 150 CLR 580, the authorities and the principles relating to the admission of similar fact evidence were reviewed and it was made clear that such evidence is not admissible if it shows mere propensity on the part of the accused to commit the crime with which he is charged, that it must be strongly probative of that offence. Gibbs CJ said, at pp. 584-6:

"The principles governing the admissibility of evidence of similar facts in criminal cases were quite recently restated in Markby v. The Queen

(1978) 140 C.L.R. 108 at pp. 116-117. They derive from the well known statement of Lord Herschell L.C. in Makin v. Attorney-General (N.S.W.) (1894) A.C. 57 at p. 65. The prosecution cannot adduce evidence tending to show that the accused has been guilty of criminal acts other than those with which he is charged if the evidence shows only that he had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to have committed the crime charged. On the other hand, if the evidence is relevant in some other way, it is admissible even though it reveals that the accused was disposed or likely to commit the sort of crime with which he is charged. Cases since Makin v. Attorney-General (N.S.W.) have established that even if the evidence is legally admissible, the trial judge has a discretion to exclude it if its prejudicial effect is likely to be out of proportion to its true evidential value.

. . . . .

It is true that in deciding whether the evidence is admissible, questions of degree arise and that the judgment to be made is to some extent discretionary. It was said in Harris v. Director of Public Prosecutions (1952) A.C. at p. 710, that evidence of similar facts, to be admissible, must have 'a really material bearing' on the issues to be decided. The judgments in Reg. v. Boardman show that there are degrees of relevance, and I respectfully agree with the statement of Lord Wilberforce that the evidence to be admissible must have a 'strong degree of probative force': Reg. v. Boardman (1955) A.C. at p. 444; see also at pp. 439, 452-453, 456. In Reg. v. Chee (1980) V.R. 303 at p. 308, the Full Court of the Supreme Court of Victoria held that it was enough that the similar fact evidence should have some probative force, by which no doubt was meant probative force other than merely by way of showing that the accused had a propensity to commit the sort of crime with which he was charged or was the sort of person who was likely to commit such a crime. It was there said that it was not a condition of admissibility that the evidence should have a high degree of probative force. With all respect, it is not right to treat evidence which tends to show the commission by the accused of other criminal acts in the same way as any other circumstantial evidence. In the first place, as I have already said, a jury might place too much weight on the fact that the accused had a criminal tendency. Secondly, evidence of this kind will often raise difficult and doubtful questions as to whether the accused had in fact been guilty of other criminal acts, and may distract the attention of the jury from the vital issues in the case. It is therefore not enough that the evidence should be only technically relevant (otherwise than as showing a propensity); it must be really material; it must have strong probative force."

Evidence of similar facts is of particular relevance when purpose or intention must be proved, as in the subject offence, and also when the similar facts form part of the res gestae of the offence itself. There being no evidence that there had been a change of purpose between acquisition on Monday, the 2nd, and possession on Tuesday, the 3rd, the evidence as to the sale of the two deals was evidence of the purpose for which the original heroin had been acquired and also evidence of the purpose for which the remainder of the heroin was held. Moreover, when a person acquires heroin for a particular purpose on one day and is found in possession of part of the heroin on another day, then evidence as to the disposal of part of the bulk purchase is within the res gestae in that it completes the explanation of how it came about that the accused was holding on the second day a certain amount of heroin and the purpose for which he was holding it. Such evidence was, in the present case, strongly probative of the offence charged, indeed, essential to the proof thereof.

In Perry v The Queen, cited above, at p. 585, Gibbs CJ made it clear that evidence of similar facts, though logically probative, ought not to be admitted in the discretion of the Court if it is unfairly prejudicial to the accused, that is to say, "if its prejudicial effect is likely to be out of proportion to its true evidential value." In the present case, there was not any matter that was unfairly prejudicial to the appellant in the evidence objected to. The evidence was undoubtedly prejudicial to the accused, but it was not unfairly so, for it went to the heart of the matter with which he was charged. It would have been unfair to the Crown not to have permitted the evidence to be given.

For these reasons, I am of the view that the evidence objected to was rightly admitted into evidence.

In all other respects, I agree with the views expressed by my colleagues and I agree with the order proposed by them.

JUDGE2

The appellant appeals from his conviction on 18 July 1985 after a trial for an offence of having in his possession a controlled substance, namely heroin, for the purpose of supplying that substance to another person or to other persons. The offence is provided for in s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978.

The prosecution case was that on the evening of 3 July 1984 police officers acting in execution of a search warrant visited premises at 63 Ebden Street, Ainslie, where a number of other persons were present. Detective Sergeant Lewis of the Australian Federal Police Drug Squad made a search of a bedroom in the presence of the appellant, where he found what was described as an "electrical coil for a motor vehicle". In the coil were seventeen silver foil packages containing a white powder. The white powder was found on later analysis to comprise a total mass of 5.37 grams, containing 30.1 per cent by weight of heroin, that is, 1.62 grams of heroin in all.

Sergeant Lewis gave evidence of a conversation between himself and the accused, which was not objected to, and which was as follows:

"I said, 'What's this?' and I indicated the foils. He said, 'Heroin'. I said, 'Who owns it?' He said, 'I do'. I said, 'Phillip, I want you to understand you do not have to say anything or answer any further questions unless you wish as anything you do say will be noted and may later be given in evidence. Do you clearly understand that?' He said, 'Yeah'. I said, 'Where did you get it?' He said, 'A bloke at the Canberra Inn'. I said, 'What's his name?' He said, 'I don't know'. I said, 'How much worth of heroin did you buy?' He said, 'A thousand bucks'. I said, 'When did you buy it?' He said, 'Monday'. I said, 'Who made it up into the foil deals?' He said, 'I did'. I said, 'What did you intend to do with them?' He said, 'Use some and sell some'. I said, 'How much were you selling it for?' He said, '$50 the small deals, 300 the big ones'."

The sergeant went on to say that he then escorted the appellant to a police station where, after cautioning the appellant, he had a further conversation with the appellant. The first two questions and answers in that conversation were not objected to. They were as follows:

"I said, 'Do you use heroin?' He said, 'Yeah'. I said, 'How much?' He said, 'Less than 50 bucks worth a day'."

The next part of the conversation was objected to but allowed into evidence by the learned trial judge. It was:

"I said, 'Have you sold any of the heroin that you obtained on Monday?' He said, 'Yeah'. I said, 'How much?' He said, 'Two $300 deals'. I said, 'Who did you sell them to?' He said, 'Not saying'. I said, 'Where did those transactions take place?' He said, 'Back at the house'. I said, 'Which house?' He said, 'Ebden Street, where I live'."

There was also evidence in the prosecution case that the appellant was unemployed at the time of his arrest and that the sum of $345 in cash was found in his wallet at that time. That evidence was undisputed.

The evidence for the accused was that he admitted having in his possession the heroin found at the premises but denied having it in his possession for the purpose of supply to any other person. It was put to Sergeant Lewis, and Detective Constable O'Rourke, who gave evidence in support of Sergeant Lewis, that that part of the conversation which was objected to had not in fact taken place.

In his unsworn statement the accused said that when the police officers asked what was in the foils, he replied, "Heroin" and told them it was for his own use. He said that Sergeant Lewis asked him a few more questions which he declined to answer. After referring to a conversation on the telephone which took place from the police station between himself and a solicitor, the accused went on to say in his statement:

"I have been using heroin like I said on and off for nine and a half years, you know, and I know what it is like. I would not like to put anyone else through what I have been through with heroin selling heroin to anyone, you know. The heroin was for my own use and the way I brought it - like, because street deals are - it is dearer to buy street deals like just in small quantities, so I went out and I had $1100 and I brought $1100 worth and that is the way I got the heroin. It was in the packages the way the police found it.

I bought it that morning and - around near lunch time I had used a bit of heroin after I got back home with it, and then the police come that afternoon and found it, and that was the only bit of heroin out of was the bit I had used myself. That is all I can say."

To support the charge in the indictment that on Tuesday, 3 July 1984 the appellant had heroin in his possession for the purpose of supply to another person or other persons, the prosecution relied upon his admissions that he had purchased $1000 worth of heroin the previous day, that he had divided it up into an unspecified number of smaller quantities, some of which he intended to keep for his own use and some of which he intended to sell to other persons, and that he had in fact the previous day sold two portions to other persons. The Crown relied upon the admission that two portions had already been sold to support its contention that some of the heroin that remained in his possession as at Tuesday, 3 July 1984, was in his possession for the purpose of supplying others. The Crown also relied on the packaging of the heroin and the fact that a relatively large amount of cash was found in his possession at the same time as the finding of the heroin.

The first ground of appeal was that the trial judge should not have allowed the confessional evidence in which the appellant was said to have admitted selling part of the heroin the previous day. This ground of appeal was supported by two submissions. The first was that it was not open to the Crown, in order to prove the offence charged against the appellant, to adduce proof of facts which went to prove the commission of another distinct and earlier offence. It was argued that the admission by the accused that he had sold heroin the previous day amounted to an admission that he was guilty of an offence under s.4(2) of the Ordinance and, as that amounted to a crime for which he was not charged, proof of its commission should not be allowed. However, there is no general principle of the kind contended for on behalf of the accused: see Makin v. The Attorney-General for New South Wales (1894) A.C. 57 at p.65. The essential test for admissibility is relevance. Proof of the commission of one crime may be necessary to prove another crime. In a trial for rape, for instance, evidence that the victim was abducted and assaulted prior to sexual penetration may be essential to proof of lack of consent and is not rendered inadmissible simply because the accused is not charged with abduction or assault. Whether the circumstances of the case may require the exercise of discretion to exclude evidence relating to the commission of other offences and whether the jury need to be given some special instruction as to how they should approach such evidence are, however, separate questions and are dealt with below.

Further, it was submitted that the admission of sale of the heroin the previous day amounted to proof by the prosecution of similar fact evidence, and that that evidence did not meet the requirements laid down for the reception of similar fact evidence, such as strong probative weight and striking similarity, as laid down in such cases as Perry v. The Queen (1982) 57 ALJR 110 and Sutton v. The Queen (1984) 58 ALJR 60.

The answer to that submission is that the disputed evidence in the present case may not be placed in the category of similar fact evidence. It was undisputed that the appellant had acquired $1,000 worth of heroin before the day in question and had divided it up into smaller portions, some of which he intended to use himself and some of which he intended to sell. For the purpose of ascertaining what his purpose was in relation to the heroin that was or remained in his possession on 3 July 1985, it was logically probative - although not conclusive - to enquire as to whether and how the appellant had disposed of any part of the heroin since the time of its purchase. The admission that he had already sold two portions the previous day was probative of the purpose for which he was in possession of the remainder on 3 July 1984. Simply because the sale the previous day amounted to a separate offence not charged on the indictment, did not mean that it was a piece of evidence which could be placed before the jury only upon satisfaction of the rules relating to similar fact evidence. The law relating to similar fact evidence does not apply where the evidence in question relates to facts which are so closely connected with the essential facts constituting the charge that they are seen to form one transaction. In O'Leary v. The King (1946) 73 CLR, the accused was charged with the murder of a fellow worker who was found on a Sunday morning at a timber camp dying from recently inflicted injuries. Evidence was called to show that the accused had violently assaulted a number of other fellow workers during a drunken orgy at the camp which lasted from the Saturday morning until late on the Saturday night. It was held by a majority in the High Court that the evidence was rightly allowed as evidence of a single transaction. The judgment of Dixon J. in particular illustrates the difference between evidence which may be regarded as part and parcel of the same transaction which is admissible and evidence of similar facts which simply goes to display a particular disposition on the part of the accused person, which is inadmissible. On page 577 his Honour said as follows:

"The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner's generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide."

It might also be observed that no objection was taken to the evidence of the finding of the $345 cash in the appellant's wallet. The probative value of that evidence was no greater than that of the alleged admission of sale in that it went to prove no more than that the appellant was in possession of a sum of cash which, it could be inferred, had come into his possession only by reason of the fact of a sale of heroin at a recent date.

The objection that the evidence of the oral admission should have been excluded in the exercise of discretion cannot be not sustained. Subject to what is said below on the question of whether the verdict was unsafe, it is difficult to see what was unfair about the evidence of the admission. Its probative value was high and on no view was outweighed by any unfairness to the appellant.

The second ground of objection was that the learned trial judge wrongly disallowed cross-examination of Sergeant Lewis on the subject matter of allegations that had been made against him in other trials. When these matters were initially the subject of cross-examination they were not objected to by the Crown Prosecutor. At a later stage the attack was renewed and the officer was asked this question "You agree do you not that in your career as a police officer a large number of people have accused you of lying on oath?" At this stage the Crown Prosecutor objected and the particular question was disallowed. On the hearing of the appeal Counsel for the appellant sought to justify the cross-examination proposed on the basis that it was permissible to put to a witness that he had lied on previous occasions. The questions asked in cross-examination at the trial, however, did not go to the issue as to whether the witness had previously lied but simply as to whether other persons had alleged that he had lied on previous occasions. The fact that other persons may have made such allegations was quite beside the point unless it was sought to establish that the witness had a reputation for lying. The questions asked in cross-examination at the trial went neither to establishing that the witness has lied on a previous occasion nor to establish that the witness had a reputation for lying and were accordingly correctly disallowed. As there may be some misunderstanding as to the limits of cross-examination in this respect and as to the scope of evidence which may be positively proved, it may be as well to state what the position is in the law of the Australian Capital Territory.

At common law the position was summarised by Edmund Davies LJ in R v. Richardson (1969) 1QB 299 at p.304 as follows:

"1. A witness may be asked whether he has knowledge of the impugned witness's general reputation for veracity and whether (from such knowledge) he would believe the impugned witness's sworn testimony.

2. The witness called to impeach the credibility

of a previous witness may also express his individual opinion (based upon his personal knowledge) as to whether the latter is to be believed upon his oath and is not confined to giving evidence merely of general reputation.

3. But whether his opinion as to the impugned witness's credibility be based simply upon the latter's general reputation for veracity or upon his personal knowledge, the witness cannot be permitted to indicate during his examination-in-chief the particular facts, circumstances or incidents which formed the basis of his opinion, although he may be cross-examined as to them."

In the Australian Capital Territory the position is covered by s.56 of the Evidence Ordinance 1971, which is in the following terms:

"56(1) Where evidence with regard to the character of a person is admissible in a proceeding, a witness may, in the proceeding, give evidence of the general reputation of the person and of the witness's own knowledge of the habits, disposition and conduct of the person.

(2) A witness shall not be permitted to state that he would not believe another person on his oath.

In the Territory the common law is modified to the extent that a witness may give evidence of the particular facts, circumstances or incidents which form the basis of his opinion insofar as they constitute "the witness's own knowledge of the habits, disposition and conduct" of the impunged witness. Further, unlike the position at common law, a witness is prohibited from expressing his own individual opinion as to whether the impugned witness is to be believed on his oath.

If evidence is to be called as to the reputation of a witness for untruthfulness, then that witness ought to be given the chance during cross-examination of refuting such allegations: see Glass: Seminars on Evidence (1975) p.185.

In R v. Hanrahan (1964) 87 W.N. 458 at p.460, (1967) 2 NSWR 717, a decision of the Court of Criminal Appeal of New South Wales dealing with the limits of cross-examination of a prosecutrix in a rape trial, Manning J referred to s.413 of the Crimes Act of New South Wales (in similar terms to s.56 of the Evidence Ordinance of the ACT). His Honour concluded that it was "beyond doubt that evidence of the general reputation for veracity of a witness may still be given" but drew attention to the fact that evidence of this kind is rarely, if ever, given in modern times. He referred to the comment in McCormack on Evidence at p.86 that such evidence is "of little value in a modern day and age". It is no doubt for this reason that the Australian Law Reform Commission in its Interim Report No. 26 on Evidence appears to favour the prohibition of evidence of reputation for untruthfulness: Vol. 2 para 183, draft legislation ch.94. This recommendation would not, presumably, affect the present rule that evidence is admissible to show that a witness had a particular mental or physical characteristic which might affect the reliability of his evidence: see Reg. v Toohey (1965) A.C. 595.

The third ground of appeal related to the directions given to the jury on the allegations put to Sergeant Lewis during the course of cross-examination. This ground of appeal stands or falls with the second ground. His Honour instructed the jury that the suggestion made in counsel's questions that other persons had alleged that the witness had previously lied "are not proof that he has committed lies or anything of the kind". This was a perfectly adequate direction. It was also a necessary one, as the suggestion should not have been made in the first place.

The remaining ground of appeal was that the learned trial judge did not direct the jury on what was suggested to be an error on the part of the Crown Prosecutor during the course of his address to the jury. The Crown Prosecutor sought to persuade the jury to disregard the allegations made against Sergeant Lewis by counsel for the accused during cross-examination. What the Prosecutor said may have been couched in language more appropriate to directions of law, which of course were the province of the trial judge, but they contained no error of law and in any event the jury were given the usual instruction by his Honour, as well as being reminded by both counsel, that the jury were to take their instructions on law from the judge.

Finally, application was made for leave to amend the notice of appeal to include a further ground, namely, that the verdict of the jury was unsafe and unsatisfactory or that it amounted to a miscarriage of justice. Leave to amend a notice of appeal to that effect, assuming that leave is necessary, would not be lightly withheld.

In Chamberlain v. The Queen (1984) 58 ALJR 133, Gibbs CJ and Mason J (with whom Murphy J agreed on the point) said at p.138:

". . . . the full Court of the Federal Court, on appeal from the Supreme Court of a Territory, has the power and duty to set aside the verdict of a jury in a case where a miscarriage of justice has occurred, including a case where it would be unsafe or dangerous to allow the verdict to stand."

According to the judgment of Deane J at p.176, the jurisdiction in the Federal Court

". . . . . to hear and determine appeals from judgments of the Supreme Court of a Territory was intended to include the jurisdiction to set aside a judgment of conviction on the ground that there was a miscarriage of justice subject to the overriding power to dismiss the appeal in any case where it appeared to the Federal Court that, notwithstanding that a point raised in the appeal might be decided in favour of the appellant, no 'substantial miscarriage of justice has actually occurred'."

The evidence which went to prove the purpose for which the appellant was in possession of the heroin consisted of his oral admission of the acquisition of the heroin and the sale of part of it on the previous day, the discovery of the money in his wallet and the peculiar nature of the packaging of the portions of heroin in his possession. The admission and the possession of the money went more directly to prove a separate offence, namely, the supply of heroin to another person or persons on the previous day. If that offence had been separately charged on the same indictment the trial judge would, in our view, have been obliged to instruct the jury that unless they found the charge of supplying heroin established beyond reasonable doubt, then the evidence of the previous supply was not available to prove the purpose of the subsequent possession: see Sutton v. The Queen (1984) 58 ALJR 60 at p.64 per Murphy J. and 65-66 per Brennan J. It is difficult to see how the Crown could have been placed in a stronger position simply by omitting to charge the separate offence of supplying heroin. Without the evidence of the previous supply of heroin, all that is left to prove the purpose of the possession is the nature of the packaging and the equivocal statement of the appellant that at the time of the acquisition of the bulk of the heroin he intended to "use some and sell some". Those remaining items of evidence would have been insufficient or barely sufficient to prove guilt and it would have been appropriate for the jury to have been told so. There was no direction to that effect or sought at the trial and the fact that counsel for the accused did not feel at that stage that such a direction was called for is an indication that no miscarriage of justice occurred or was likely to occur: Chamberlain v. The Queen (1983) 46 ALR 493 (Federal Court). The confessional evidence was admitted and rightly admitted. To say now that the jury might have more appropriately been given further instructions which were not sought at the trial and which were not required as a matter of law does not, in our view, lead to a conclusion that the conviction was unsafe and unsatisfactory.

Leave to amend the Notice of Appeal should be refused and the appeal dismissed.