Crosswell v Tasmania

[2015] TASCCA 14

[2015] TASCCA 14

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                 Crosswell v Tasmania [2015] TASCCA 14

PARTIES:  CROSSWELL, Derek Michael
  v
  STATE OF TASMANIA

FILE NO  932/2014
DELIVERED ON:  16 June 2015
DELIVERED AT:  Hobart
HEARING DATE:  26 May 2015
JUDGMENT OF:  Porter, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Procedure – Juries – Discharge and excusing from attendance – Prejudice to accused – Evidence of police witness that he knew and recognised accused – No miscarriage of justice.

Crofts v The Queen (1996) 186 CLR 427, applied.
Aust Dig Criminal Law [3121]

REPRESENTATION:

Counsel:
             Appellant:  G Barns
             Respondent:  L Mason
Solicitors:
             Appellant:  Leonard Fernandez
             Respondent:  Acting Director of Public Prosecutions

Judgment Number:  [2015] TASCCA 14
Number of paragraphs:  26

Serial No 14/2015

File No 932/2014

DEREK MICHAEL CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
WOOD J
PEARCE J
16 June 2015

Order of the Court

Appeal dismissed.

Serial No 14/2015

File No 932/2014

DEREK MICHAEL CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
16 June 2015

1. I agree with Pearce J.

File No 932/2014

DEREK MICHAEL CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
16 June 2015

1. I agree that the appeal should be dismissed for the reasons given by Pearce J.

File No 932/2014

DEREK MICHAEL CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
16 June 2015

1. At about 5am on Saturday 25 May 2013, the York Hotel at Granton was broken into and robbed. The appellant, Derek Michael Crosswell, was found guilty by a jury of aggravated burglary and aggravated armed robbery. Two other men with whom Mr Crosswell was jointly charged, David Coles and Jay Bradford, were also found guilty. The trial was conducted before Tennent J. This is Mr Crosswell's appeal against his conviction. Only one ground is pursued. It asserts a miscarriage of justice as a result of a ruling made by her Honour in the course of the trial not to discharge the jury. The appellant claims that the jury should have been discharged after a police officer gave evidence that he knew the man he saw at 610 Main Road, Granton, which other evidence established was near the robbery and just after it was committed, was "Derek Crosswell". The appellant contends that the jury should have been discharged because the evidence was prejudicial, such prejudice arising from the risk that, because he was known by a police officer, the jury would impermissibly reason that the appellant was a person of bad character or likely to commit criminal offences.  

2. For the following reasons the ground fails and the appeal should be dismissed.

The issue at trial

1. The issue at trial was whether it was the three accused who were responsible for the robbery. It was the State's case that Mr Bradford drove the appellant and Mr Coles to the hotel in a red Honda hatchback. The appellant and Mr Coles entered the hotel with a firearm and committed the robbery while Mr Bradford waited in the car in the driveway of 610 Main Road, about 300 metres south of the hotel. In the hotel the appellant and Mr Coles confronted two employees who were asleep inside and tied them up. They then removed the hotel safe and took it to the door where they left it until they could return with the car to pick it up. The case was circumstantial. The State adduced evidence that:

   ·     There was a connection between the three accused. They were together at a night club in the Hobart CBD at about 3am that same morning.

   ·     CCTV footage taken inside and outside the hotel at the time of the robbery showed one of the offenders to be wearing clothing matching the clothing being worn by Mr Coles earlier in the CBD. One of the hotel employees said he thought this man had a tattoo on his face. Mr Coles has a tattoo on his face.

   ·     The CCTV footage showed that the other offender, whose face was covered with a balaclava, was wearing a hooded top matching the hooded top being worn by the appellant earlier in the CBD.

   ·     The offender wearing the balaclava also wore calico bags over his hands. That person is shown on CCTV footage as leaving the hotel after the robbery and travelling south on foot. He began to remove the bags from his hands as he left. The police later found a discarded bag near the road just south of the hotel. DNA analysis of a piece of "scab-like material" found inside the bag strongly matched the DNA of the appellant.

   ·     The three accused were connected with a red car. A red car was seen at the night club at which the accused were earlier present. At about 4am a police officer, Constable Oakley, saw a red Honda hatchback on the Brooker Highway being driven by a man in a white cap with at least two other occupants. Later, at approximately 5.10am, Constable Oakley was travelling in a police car with Constable Rowbottom on the Main Road at Granton near the York Hotel. They drove past a man wearing a white cap who appeared to be hitchhiking. The police car was turned around so the officers could look for the man but, just after driving past the York Hotel, they saw a red Honda hatchback reversed up the driveway of 610 Main Road. They stopped and found a man sitting in the driver seat. The man was Mr Bradford. The police searched the car. They found a mobile phone which had come from the night club at which the three men had been earlier that morning. As the police were searching the car Mr Crosswell arrived on foot. He was wearing a hooded top and track suit pants matching those shown on the CCTV footage as being worn by one of the offenders. He told Constable Oakley that he had just run across the Bridgewater Bridge and asked for a lift back to his home at Cadbury Road. Mr Bradford told Constable Rowbottom that they had run out of petrol and pushed the car into the driveway to get it off the road. An unsuccessful attempt was made to start the car. The police helped to roll it down onto the road. Unaware of any crime committed at the York Hotel, the police officers then left.

   ·     CCTV footage showed the other offender leaving the hotel and walking south towards the car. There is no evidence that he reached the car. The hotel employees, after they had untied themselves, saw a vehicle return to the hotel shortly afterwards. The car is shown in the CCTV footage. They saw a man emerge from the car and kick the door of the hotel. One of the employees described the car as a red four door hatch. The other described it as "a maroon hatchback". It was the State's case that the appellant and Mr Bradford returned to the hotel in the car, after the police had left, looking for Mr Coles and the safe, but finding Mr Coles gone and the door shut.

2. At trial, the appellant did not dispute that he was the person Constable Oakley saw at 610 Main Road. However, the evidence was not the subject of any admission or agreed fact. It was a fact which the State was required to prove as part of its circumstantial case. The appellant's contention, not accepted by the jury, was that the jury could not exclude beyond reasonable doubt an innocent explanation for his presence at that place at that time, and for the other circumstantial evidence relied on by the State.

The application to discharge the jury

1. The passage which gives rise to this appeal appears in Constable Oakley's evidence:

   "MS MASON … Now, after finding out that information, did you then conduct a search of the vehicle?........Yes, Constable Rowbottom had already commenced searching the vehicle.  I've opened the boot to search the vehicle and at that time I heard a male's voice coming from Main Road.

   Which direction?........Heading south on Main Road, coming from the direction of the York Hotel.  And out of the darkness a male appeared who I knew was the accused, Derek Croswell.

   So you spoke to him and he gave his name to you?........He didn't give me my name –

   As Derek Michael Croswell?........ – I knew his name, yes.

   Yes?  And that – and did he give you – sorry, first of all, did he approach you and did you, after a short conversation, ask him his name and did he give it to you as Derek Michael Croswell?........Didn't ask him his name directly because I knew – knew his name, so –

   Did he then give you his date of birth?……I don't believe I asked for his date of birth, no.

   MS MASON:   Can you explain or can you detail what he was wearing?........He was wearing a dark hooded top, dark trousers or track pants with white stripes down the side of them, and he had dirty runners on.

   Can you – when he arrived did he say anything to you, as in - ?........He stated he'd just ran across the Bridgewater Bridge and requested that we give him a lift home back to Cadbury Road.

   Did he say – well, did you observe anything about how he appeared, his face or - ?........He was a bit sweaty.  It appeared that he had been running."

2. Immediately following the evidence just quoted, counsel for the appellant indicated to her Honour that he wished to raise a matter with her in the absence of the jury. The following exchange with the learned trial judge then took place:

   "Well, the issue I have is evidence that the constable just gave in relation to his knowledge of Mr Crosswell – he didn't just do it once, he did it twice.

   HER HONOUR:  Well, he was asked about three times, but it didn't help.

   MR KOVACIC:  Your Honour, I'm not sure that could be cured by any directions in relation to his knowledge of Mr Crosswell.

   HER HONOUR:  Well, what are you asking me to do?

   MR KOVACIC:  I'm asking you to discharge the jury, your Honour.  In my submission, that can't be cured by a direction.  It wasn't just a simple first-off, it was said twice at least, even when Ms Mason did her best to say, 'Look, you asked the question', and he said, 'No, I didn't have to because I know him.'  That can't be cured by a direction, in my submission."

Miscarriage of justice and the exercise of the discretion

1. This appeal is brought pursuant to the Criminal Code, s 402(1). The question for this Court is whether there has been a miscarriage of justice. The appellant's submission that there has been a miscarriage of justice is based on the decision of the High Court in Crofts v The Queen (1996) 186 CLR 427. That case authoritatively determined the test for the discharge of the jury in the following terms:

   "The question is whether in the circumstances ... there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. That is to say, was the discretion wrongly exercised in that the judge was bound to discharge the jury? ...".

2. Their Honours then said, at 440-441:

   "It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

   Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? GlennonvThe Queen (1994) 179 CLR 1 at 8-9; Maric vThe Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521."

3. These principles were applied by this Court in S v Tasmania [2005] TASSC 110. They have been applied countless times in intermediate courts of appeal throughout Australia and their correctness has not been doubted in any subsequent case by the High Court. Thus, in their application to this appeal, no rigid rule is to be applied and leeway must be allowed for the trial judge because she was in a better position to evaluate considerations relevant to the fairness of the trial.

4. The learned trial judge had a power conferred on her in discretionary terms by the Juries Act 2003, s 41(1), to discharge the jury. She was referred to and applied the decision in Crofts and concluded that there was no necessity to discharge the jury because there was little risk of significant prejudice to the appellant, and the evidence, in context, suggested a personal rather than professional association between Constable Oakley and the appellant. Her Honour made no finding about whether the statement made by Constable Oakley was deliberate or otherwise. It seems plain enough that evidence that the man who spoke to Constable Oakley at the car was the appellant was anticipated, but the evidence that Constable Oakley already knew the appellant was not. Constable Oakley's evidence to that effect emerged in an answer that was, to some extent, unexpected and unresponsive. However, as far as I am able to do so from the transcript, I perceive no element of deliberateness. When asked whether the man gave his name or date of birth, Constable Oakley answered honestly that he did not. He said he already knew the man. In those circumstances it is difficult to see how else the evidence of the identity of the man he saw could have been adduced, unless it was led from him pursuant to a grant of leave under the Evidence Act 2001, s 37. Her Honour noted that the application to discharge was made on the fourth day of the trial.

5. Nevertheless, the duty of this Court is not confined to examining the reasons given by her Honour for the order to make sure that the correct principles were kept in mind. This Court must decide for itself whether, in the circumstances, the result of the refusal to discharge the jury occasioned a miscarriage of justice. When the discretion is exercised against the discharge of a jury, an appeal is not a review of the rightness or wrongness of the exercise of the discretion, but against the conviction. The relevant principles were stated by Gibbs ACJ in Maric v The Queen (1978) 52 ALJR 631. His Honour said at 634-635:

   "... [I]n my opinion, it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction. In those circumstances, I cannot see any justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals generally...".

6. It is for a trial judge to decide whether it is necessary to discharge a jury in the interests of securing a fair trial. If, as here, the trial proceeds and results in a conviction, it is for a court of criminal appeal to decide whether the accused has been deprived of a fair trial: R v Glennon (1992) 173 CLR 592 at 604. Thus, although this Court may assess her Honour's exercise of discretion in accordance with principles espoused in House v The King (1936) 55 CLR 499, it must decide whether the result of the refusal to discharge the jury occasioned a miscarriage of justice. It is not contended that her Honour erred in the exercise of her discretion by acting upon a wrong principle, or taking into account some extraneous consideration, or failing to take into account a relevant consideration, or mistaking the facts. The appellant submits that her Honour's determination led to a miscarriage of justice. In my view, the submission should be rejected. Her Honour was, with respect, correct to conclude that there was no high degree of necessity for the jury's discharge and no miscarriage of justice resulted from it.

The admissibility of the impugned evidence

1. The appellant's submission that there has been a miscarriage of justice proceeds on the assumption that the evidence of Constable Oakley that he knew the appellant should not have been admitted. It is important to bear in mind that in Crofts and other similar cases concerning applications for discharge based on the jury's receipt of prejudicial material, the "impugned" evidence is inadmissible because it is irrelevant or unfairly prejudicial or both. Thus, the question posed in Crofts as to whether an appellate court can "say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?" can have no application where the prejudicial material is not inadmissible: see also Maric where Gibbs ACJ at 635 referred to "wrongly admitted evidence". Her Honour was not required to determine the admissibility of the relevant part of Constable Oakley's evidence. Her Honour dealt only with the submission in support of the application for discharge, after the jury had heard the evidence, that the evidence was "highly prejudicial". However, in considering whether the refusal of the application resulted in a miscarriage of justice, a consideration by this Court of the admissibility of the evidence is necessary. That is so because a miscarriage of justice could not occur unless an appeal court is satisfied that the evidence was wrongly admitted. I do not see that an accused person could be deprived of a fair trial unless it is demonstrated that the material complained of should not have been before the jury. In this case I am not persuaded that the evidence of Constable Oakley, said to give rise to a necessity to discharge the jury, was inadmissible on the trial. To the contrary, I am satisfied that the evidence was admissible. The difference between this case and the type of case of which Crofts is an example may be demonstrated by reference to the three authorities relied on by the appellant.  In Crofts evidence was elicited from a complainant that a man, charged with sexual offences against the complainant, had committed further acts of sexual misconduct. The evidence was inadmissible and highly prejudicial. In R v Young [2005] QCA 32 the Queensland Court of Appeal dealt with an appeal by a man convicted of wounding and assault. During the trial a neighbour gave evidence that the victim "was distressed because she didn't know why someone would want to stab her". The trial judge refused an application to discharge the jury. The respondent to the appeal did not contend that the evidence was admissible and the appeal was argued on the basis that it was not. The appeal was dismissed. In R v Alipek and Saltmarsh [2004] VSC 58, Nettle J (as he then was) refused an application to discharge a jury after a police officer gave evidence, while being cross examined by defence counsel, that he had spoken with the accused about having to attend the County Court within a few days for an appeal. His Honour determined the application on the basis that the evidence was an irregular disclosure of evidence capable of reflecting on the character of an accused.

2. There are numerous other examples. The most relevant concern instances when the previous convictions or prior custody of an accused person are inadvertently disclosed to the jury or volunteered by a witness. These are obvious cases in which a trial judge is to consider the exercise of the discretion to discharge the jury. In Glennon, pre-trial remarks by a radio broadcaster included reference to an earlier conviction of the accused for a sexual offence. At 604, Mason CJ and Toohey J pointed out that reception of "inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted principles of our criminal law". Even so, their Honours, as part of the majority, held that the possibility that a juror may have acquired such knowledge during the trial was not, in that case, a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. In R v Forster [1955] VLR 253 an application to discharge after the jury received evidence that an accused had been in prison was refused. In R v Knape [1965] VR 469 the evidence in issue was the inadvertent statement by a witness about an accused: "I met him at Bendigo Training Prison". In R v Halliday (2009) 23 VR 419 the jury was inadvertently shown a list of the appellant's prior convictions. The Court of Appeal concluded that the jury should have been discharged because the convictions were relevant to the accused's contention that he was a caring and non-violent person. In Walker v The Queen [2014] VSCA 177 a witness said of the accused, "That's correct, I was going out with her. In 1998 she went to gaol and she come (sic) out hating blokes." The Court of Appeal held that the trial judge's failure to discharge the jury resulted in a miscarriage of justice.

1. In brief substance, the only material placed before the jury in this case was that a police officer knew and recognised the accused. This Court was not directed to any authority in which evidence of that nature led to discharge of a jury. I have been unable to find any such case. The appellant did not submit, either at trial or on this appeal, that the evidence was not relevant. Evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Evidence Act, s 55. The identity of the person who entered and robbed the hotel was a fact in issue in the proceeding. Evidence of the presence of the appellant near the scene at about the time of the robbery could rationally affect the jury's assessment of the probability of whether the appellant was one of the offenders. The identity of the person seen by Constable Oakley was a fact the State was required to prove. No indication was given by the appellant at trial that the fact was agreed. The evidence was relevant. It was evidence of fact, not opinion; a fact which was not disputed. The trial was conducted on the basis that the person seen by Constable Oakley was the appellant.

The possible application of s 137 and the risk of unfair prejudice

1. It is to the issue of unfair prejudice that the appellant's submissions were primarily directed. Reference must therefore be made to the possible application of the Evidence Act, s 137. By that provision a court must refuse to admit evidence adduced by the prosecutor in a criminal proceeding if its probative value is outweighed by the danger of unfair prejudice to the defendant. This balancing exercise involves the making of the judgment and not the exercise of the discretion; L v Tasmania (2006) 15 Tas R 381. If the probative value is judged to be outweighed by the danger of unfair prejudice, exclusion must follow. First I will deal with the probative value of the evidence. "Probative value" is defined in the Evidence Act, s 3(1), to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the prosecution will be drawn: KMJ v Tasmania (2011) 20 Tas R 425. The probative value of the evidence of Constable Oakley was very high. It is to be borne in mind that there are two aspects to his evidence. The first aspect is that the man he saw was the appellant, a fact the State was required to prove. If the evidence was accepted, it put the appellant in a relatively remote location at about 5.30am only 300 metres away from the scene of the crime, immediately after the crime was committed, having come from the direction of the crime scene on foot, wearing clothing which matched the clothing of one of the offenders, and demonstrated his association with Mr Bradford and with the car associated with the crime. The second aspect of Constable Oakley's evidence is his knowledge of the appellant. As I earlier explained, because it was Constable Oakley's evidence that he did not ask the appellant's name because he knew who the appellant was, evidence of his knowledge was difficult to avoid. It was this aspect of the evidence that the appellant submits should not have been before the jury and was so prejudicial that the jury should have been discharged.

2. Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted: Papakosmas v The Queen (1999) 196 CLR 297 at 325. The prejudice to which s 137 refers is not that the evidence tends to establish the State's case. It means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v B D (1997) 94 A Crim R 131 at 139; Festa v The Queen (2001) 208 CLR 593, per Gleeson CJ at [20] and McHugh J at [51]; KMJ per Evans J at [36]–[38]. In W v The Queen 16 Tas R 1 at 43, Blow J (as he then was) referred to the comments in Report No 26 of the Australian Law Reform Commission, Vol 1 at [644] as "... a very useful exposition ...". That exposition is as follows:

   "By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."

3. That passage was adopted by Porter J in State of Tasmania v Howlett [2008] TASSC 38 and by Crawford CJ, with whom Tennent and Porter JJ agreed, in Doddridge v Tasmania [2010] TASCCA 18.

4. The appellant submits that there was a risk of unfair prejudice arising from the evidence because the jury would impermissibly reason that because Constable Oakley knew him, he was a person of bad character and more likely to commit the crime he was charged with. The law has long recognised the prejudicial effect of evidence of prior conviction and bad character and the risk that such evidence will render a trial unfair because it invites the jury to engage in propensity reasoning: R v Knape [1965] VR 469. However, in my opinion, the prospect of unfairness to the appellant arising from Constable Oakley's answers, if it existed at all, was exceedingly small. The evidence of Constable Oakley was that "out of the darkness a male appeared who I knew was the accused, Derek Crosswell". Although it was repeated twice, that he knew his name, the evidence was nothing more than that Constable Oakley knew and recognised the appellant. There was no evidence of how Constable Oakley knew the appellant. The jury may have inferred that Constable Oakley knew the appellant through his role as a police officer. Such an inference, without more, was of little consequence and unlikely to lead to impermissible reasoning. Moreover, it was equally possible that the jury may draw no such inference and infer instead that he knew him through some recreational, social or other personal association. As the learned trial judge pointed out, the evidence of the appellant's request to the police for a lift home, and their provision of assistance with the car, was at least equally consistent with a personal association. The appellant submitted that the possibility of unfair prejudice is to be judged in the light of the circumstance in which Constable Oakley recognised the appellant, that is, near the robbery scene in a relatively remote location just after 5am. I do not accept that submission. The force of the evidence about those circumstances arises from its probative value. It makes it more likely that the appellant would be convicted, but is not unfair. The prejudice, in the sense of the force of the evidence adverse to the appellant, does not arise from the fact of Constable Oakley's knowledge. The circumstances did not alter the character of the evidence that Constable Oakley knew and recognised the appellant. It was the circumstances in which the accused was recognised, rather than the fact of recognition, which made it more likely that he committed the crimes.

5. The risk of prejudice in this case fell far short of the risk in cases involving impermissible disclosure of prior convictions or custody. Some parallel may be drawn with cases involving the admissibility of identification evidence given by police officers from photographs or CCTV. One example is Tasmania v Chatters [2013] TASSC 61. A danger of unfair prejudice exists because foundational evidence of knowledge and familiarity through dealings with an accused as a police officer, suggests the accused's criminality, albeit of a general nature, and amounts to evidence of bad character. A risk exists that a jury would use the evidence on an improper or emotional basis. The evidence of knowledge in this case was, however, so general and limited, that there was little, if any, such risk. As Porter J pointed out in Chatters, juries are not infrequently entrusted with evidence of discreditable conduct with strict directions, which it is assumed and expected that they will obey, not to draw inferences of general bad character and propensity. In Crofts at 441 their Honours made the following comments in relation to a direction to a jury to ignore evidence:

   "It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account."

6. No direction was given in this case. Trial counsel for the appellant applied for a direction to the jury about Constable Oakley's evidence, but after the following exchange, withdrew the application and no direction was given:

   "One, your Honour, and that's the matter of Constable Oakley's evidence that led to my application on Friday, a direction in relation to – the jury is not to reason that Mr Oakley knows Mr Crosswell in any other fashion other than the fact that he just knows him.  They can't reason that he knows him professionally.

   HER HONOUR:   Should I be even touching it?

   MR KOVACIC:   Please.

   HER HONOUR:   I'm just – you're asking me to highlight an issue that I suspect in the grand scheme of things has probably gone through to the keeper.  But if I raise it, I'm emphasising it.

   MR KOVACIC:   I take your Honour's point.  I'll withdraw that submission please.

   HER HONOUR:   That's my only concern and I wouldn't have thought you'd want that.

   MR KOVACIC:   No."

7. With respect, I agree with her Honour's approach. The evidence was admissible. The risk of unfair prejudice was so small that no direction was necessary. The identity of the man seen by Constable Oakley was crucial to the State's case. In contrast, the evidence of his knowledge of the appellant was of little significance in the context of the trial. Any direction would have risked drawing the jury's attention to it. The failure to give a direction about the evidence did not result in any miscarriage of justice. Her Honour gave appropriate general directions to the jury not to speculate about evidence. Further, she gave a direction to the jury about other evidence of discreditable conduct. That evidence concerned the conduct of the three accused at the night club earlier that morning. Some evidence suggested that one or more of them had engaged in violent or threatening behaviour. Her Honour described it in her direction as "bad behaviour" without describing it further.  She directed the jury that the evidence of the presence and actions of the three accused at the night club was relevant only to the association between them, and was otherwise to be put to one side. She directed the jury that the evidence was not to be used to reason that "it's more likely that they are persons who might have committed an aggravated burglary and aggravated armed robbery". In my view, such evidence was much more likely to be prejudicial to the appellant and was appropriately dealt with by the direction her Honour gave. By extension however, it meant that the jury was directed in another context not to engage in impermissible reasoning based on evidence of other bad behaviour.

8. Even if I am wrong to conclude that the evidence of Constable Oakley that he knew the appellant was not irregular, I would reach the same conclusion about the result of the appeal. The evidence was so limited and general, and the chance that the jury would have drawn from it an inference of propensity or bad character so small, that I do not think it would have made the slightest difference to the verdict.

Conclusion

1. In my view, this Court should not depart from the discretionary judgment of Tennent J. There was no error in her Honour's determination that it was not necessary to discharge the jury. There was nothing which followed from her Honour's ruling which deprived the appellant of a fair trial. There was no miscarriage of justice. The sole ground of appeal fails. I would dismiss the appeal.