Day v The King - [2024] SASCA 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DAY v THE KING
[2024] SASCA 68
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)
30 May 2024
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Appeal against conviction.
The appellant was convicted by a jury of the District Court of one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
Police conducted a search of the appellant’s home. Six people were present during the search, including the appellant. Located at the rear yard of the premises was a detached rumpus room which was locked with a combination lock.
Police requested the code for the lock from the appellant. The appellant provided a code, however it did not open the lock and police subsequently forced open the door.
Inside the detached room, police located a blue zip case which contained a set of electronic scales, $250 in cash, a spoon with a long narrow bowl and raised edges, and multiple unused plastic press seal bags. Also located in the zip case were two plastic seal bags containing a total quantity of 20.07g of methylamphetamine, the contents of which formed the subject of the charge. Within the same room, police located the appellant’s wallet containing $750 in cash in varying denominations.
At trial, the prosecution led circumstantial evidence focusing on the location of the zip bag in the rumpus room, the proximity of the blue zip case to the appellant’s wallet, the appellant’s DNA located on the blue zip case, the drugs found in the detached room and the fact that the appellant had proffered a code to enter the rumpus room.
The primary issue on appeal was whether the evidence of the cash, the spoon and the scales had sufficiently strong probative value to be admissible as discreditable conduct evidence within the meaning under s 34P(2)(b) of the Evidence Act 1929 (SA) (‘Evidence Act’).
The appellant submitted on appeal that absent evidence of previous sales such as ‘tick lists’ or expert evidence addressing the significance of the items in the zip bag, the possession of the cash (in particular) could not be strongly probative of an ongoing drug trading enterprise. He further complained that the judge erred in directing the jury by referring to the discreditable conduct evidence as ‘uncharged acts’, and that the admission of evidence relating to the appellant volunteering the combination code (‘the code conversation’) amounted to a miscarriage of justice.
Held (by the Court) granting permission to appeal but dismissing the appeal:
1.The evidence of the cash considered in the entire evidential context was strongly probative of past drug sales and therefore of the disposition of the appellant to engage in the business of trafficking.
2.The jury received adequate direction from the primary judge on the proper use of the discreditable conduct evidence in accordance with s 34R of the Evidence Act notwithstanding the use of the words ‘uncharged acts’.
3.Any risk of impermissible reasoning by the jury in respect of the evidence of the code conversation warranting a conclusion that the appellant had told a lie was properly dealt with by the primary judge’s directions.

4. In the circumstances, an Edwards direction was neither necessary nor desirable.
Controlled Substances Act 1984 (SA) ss 32(3), 32(5); Evidence Act 1929 (SA) 34P, 34P(2), 34P(2)(b), 34R, 34R(1), referred to.
R v Conley (1982) 30 SASR 226; Harriman v The Queen (1989) 167 CLR 590; R v Sultana (1994) 74 A Crim R 27; Evans v The Queen [1999] WASCA 252; R v Long and McDonnell (2002) 137 A Crim R 263; R v Franco (2009) 105 SASR 446; R v Soteriou (2013) 118 SASR 119; R v Jones (2018) 131 SASR 532; R v Singh [2019] SASCFC 51; R v Long and McDonnell (2002) 137 A Crim R 263, discussed.
R v Soteriou (2013) 118 SASR 119; R v Falzon (2018) 264 CLR 361; BNM v The Queen [2020] SASCFC 10; R v Conley (1982) 30 SASR 226; Magro v The King [2022] SASCA 100; R v C, CA [2013] SASCFC 137; Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234, considered.

DAY v THE KING
[2024] SASCA 68
Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA

THE COURT: On 31 October 2023, a majority District Court jury found the appellant guilty of one count of trafficking in a controlled drug (methylamphetamine) contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘CSA’). The contest at trial focused on whether the prosecution had proved beyond reasonable doubt that the appellant was in possession of drugs that were found at his premises. This appeal raises the following issues:
·whether evidence of cash, a spoon and some scales was admissible as discreditable conduct evidence, pursuant to s 34P(2) of the Evidence Act 1929 (SA) (‘Evidence Act’), and specifically whether that evidence had ‘strong probative value’ within the meaning of s 34P(2)(b) (Ground 1);
·whether the trial judge erred in giving directions about the discreditable conduct evidence pursuant to s 34R of the Evidence Act, by referring to that evidence as ‘uncharged acts’ (Ground 2);
·whether evidence of a conversation between the appellant and police officers about the code to access the room where the drugs were found (the code conversation) should have been excluded on the basis that it was more prejudicial than probative (Ground 3); and
·whether the judge’s directions to the jury about the code combination were inadequate (Ground 4).
Background
On 5 November 2021, police conducted a search of the appellant’s residential premises. Those premises were comprised of a main dwelling and a detached rumpus room at the rear, next to a swimming pool. There were six people present at the address when the police attended, including the appellant. Members of the Special Task and Rescue (‘STAR’) group attended at the time of the search to assist with clearing the premises.
The detached rumpus room was locked with a combination lock. A STAR group officer (‘GW’) requested the code from the appellant. The evidence was that the appellant provided the officer with a code in response to the request. The officer returned to the rumpus room and attempted, unsuccessfully, to unlock the door. Officers forced entry into the rumpus room.
The rumpus room was divided into two parts, being a storage area and a bedroom. The prosecution case was that the bedroom was the appellant’s bedroom.
Police located a bag to the left of the door on entry. Inside the bag was a blue zip case. That case contained a set of electronic scales, $250 in cash comprised of $50 notes, a spoon that had a long narrow bowl with raised edges and several unused plastic press-seal bags. Also in the case was a plastic resealable sandwich bag containing 19.6 grams of methylamphetamine and a small plastic press-seal bag containing a further 0.47 grams of methylamphetamine. The total quantity of 20.07 grams of methylamphetamine formed the subject of the charge.
Police located the appellant’s wallet on a desk in the rumpus room. The wallet contained $735 in cash in various denominations. Police also found the appellant’s medication and a mobile phone on a shelf. The phone and the sim card were submitted for e-crime analysis, but no data was recovered from either.
Police did not seize any other items from the house or from the appellant’s person. Another person present at the house, Xenia Datko, was found to have a small plastic resealable bag of crystals in her handbag. No evidence was recovered from any other person present.
Following the search, the appellant and another man, Roman Melis, were arrested. The appellant was arrested for the trafficking offences and Mr Melis on an outstanding warrant.
There was also evidence that the appellant’s DNA was recovered from the blue zip bag. The sample was a mixed sample with three unidentified contributors. The appellant was the major contributor to the DNA profile. As the appellant observed in submissions on the appeal, the DNA analyst could not exclude the possibility of multiple transfer events which may have caused the DNA to be deposited on the drugs by the appellant or some other contributor. Neither could the analyst exclude the possibility that there were more contributors than detected. Police did not obtain DNA samples from anybody else present.
The plastic resealable bags containing the drugs were examined for fingerprints. No fingerprints were recovered.
The prosecution’s case that the appellant was in sole possession of the drugs in the rumpus room was based on the following circumstances:
a)the location of the blue zip case in the rumpus room alleged to have been occupied by the appellant;
b)the proximity of the blue zip case to the appellant’s wallet and medication;
c)the presence of the appellant at the property at the time of the raid;
d)the appellant’s DNA being recovered from the blue zip case;
e)the location of the drugs in the rumpus room behind a locked door; and
f)the appellant having proffered a code when asked for the combination to the door. The prosecution case was that this was circumstantial evidence that the appellant purported to have knowledge of how to access the rumpus room.
The prosecution also relied on the presumption in s 32(5) of the CSA and the discreditable conduct evidence for proof of the trafficking element of the offence.
The appellant did not give evidence at trial. He called Xenia Datko as a witness. Ms Datko said that immediately prior to the police raid, Roman Melis provided her with the small bag of drugs that was found on her person. Her evidence was also that Mr Melis was staying with the appellant in the days leading up to the raid and that she believed he had been staying there for at least a week. In cross-examination, she said that she had never actually been told by Mr Melis that he was staying at the property and that she had not ever seen Mr Melis enter or be inside the rumpus room.
The defence was that the jury could not exclude as a reasonable possibility that the drugs were possessed by Roman Melis, rather than by the appellant. The verdict demonstrated the jury’s rejection of this thesis as a reasonable possibility.
Whether the evidence of the cash, spoon and scales was admissible
The appellant challenged the admission of the evidence of the cash, spoon and scales on the basis that as discreditable conduct evidence, it did not have ‘strong probative value’ within the meaning of s 34P(2)(b) of the Evidence Act.
Section 34P(2) provides:
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
The appellant accepted that the prosecution may adduce evidence that an individual was in the business of trafficking a drug where that evidence demonstrates a tendency to sell drugs in furtherance of that business. In R v Soteriou,[1] Vanstone J reviewed various authorities and concluded that evidence of the appellant apparently conducting the business of trafficking drugs from the premises where he was found, and near to where the drugs were located, was evidence of an interest in the trade and of the appellant’s inclination or propensity to possess drugs for the purposes of trade.[2]
[1] (2013) 118 SASR 119.
[2] R v Soteriou (2013) 118 SASR 119 at [31].
In R v Falzon[3] the High Court held that evidence of cash found at the respondent’s home was an item of circumstantial evidence that, in conjunction with other indicia of drug trafficking, was capable of founding the inference that the respondent was in the business of trafficking cannabis. The necessary inference that the cash came from past trafficking did not detract from this. The Court said:[4]
To the contrary, the fact that the cash was likely to have come from previous sales of cannabis – a conclusion strengthened by the expert evidence of drug traffickers’ inclinations to transact drug deals in cash and the tax return evidence of the respondent's failure to declare the cash as part of his assessable income – fortified the probability of the respondent making regular and recurring sales of cannabis, and thus that, as at 17 December 2013, the respondent had been carrying on a continuing business of trafficking in cannabis. More specifically, the fact that the cash was likely to have come from previous sales of cannabis logically bespoke the probability that the respondent kept the cash on hand on 17 December 2013 as an asset of a continuing business of trafficking in cannabis in the course of which he intended to sell the cannabis that he possessed on 17 December 2013.
[3] (2018) 264 CLR 361.
[4] R v Falzon (2018) 264 CLR 361 at [41].
More recently in this Court, in BNM v The Queen,[5] Doyle J characterised the admissibility of evidence of this nature by reference to satisfaction of s 34P(2) where the evidence was of past involvement in the business of trafficking:[6]
The relevance, and potential admissibility, in cases involving allegations of drug trafficking, of evidence of an interest or involvement in the business of drug trading has been recognised in numerous authorities.[7] The evidence has been held to be probative of both the fact of possession and the purpose of any possession. While it has been said that the use of such evidence does not necessarily involve propensity reasoning,[8] the prevailing view is that it involves reasoning that is “either a form of propensity reasoning, or is so close to it that the distinction becomes insignificant.”[9]
In my view, particularly in circumstances where the evidence is of past involvement in the business of drug trading (as opposed to evidence merely of present involvement in that business by dint of drug trading accoutrements found at the time of the subject offending), it is appropriate to recognise the element of propensity reasoning in the use sought to be made of the evidence, and to approach its admissibility under s 34P on that basis. It follows that the evidence will only be admissible if it satisfies both limbs of s 34P(2); that is, the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the defendant (s 34P(2)(a)), and the evidence has a “strong probative value” (s 34P(2)(b)).
(Footnotes in original)
[5] [2020] SASCFC 10.
[6]     BNM v The Queen [2020] SASCFC 10 at [54]-[55].
[7]     Including R v Conley (1982) 30 SASR 226 at 230; Harriman v The Queen (1989) 167 CLR 590 at 595, 597 and 609; R v Sultana (1994) 74 A Crim R 27 at 28-29; Evans v The Queen [1999] WASCA 252 at [31]; R v Long and McDonnell (2002) 137 A Crim R 263 at [37]; R v Franco (2009) 105 SASR 446 at 452; R v Soteriou (2013) 118 SASR 119 at [27], [32]; The Queen v Falzon (2018) 264 CLR 361 at [1], [40]-[44]; R v Jones (2018) 131 SASR 532 at [21] R v Singh [2019] SASCFC 51 at [73].
[8]     R v Conley (1982) 30 SASR 226 at 230 (although, on one view, King CJ’s observations were confined to the relevant use not involving “prohibited” propensity reasoning).
[9]     R v Long and McDonnell (2002) 137 A Crim R 263 at [39]; applied in R v Soteriou (2013) 118 SASR 119 at [26] and R v C, CA [2013] SASCFC 137 at [79]; see R v Jones (2018) 131 SASR 532 at [30].
This reasoning has since been applied by this Court.[10] The appellant did not challenge it. However, he submitted that the present case was distinguishable from this line of authorities on two bases. First, in the present case there was no evidence of previous sales in the form of debt lists or ‘tick lists’, or any message exchange from a device identifying the appellant. Secondly, the prosecution did not adduce expert evidence from an experienced detective from the Serious and Organised Crime Branch of SAPOL about the significance of the items in the blue zip bag.
[10] Magro v The King [2022] SASCA 100 at [49]-[51] (Lovell, Bleby and David JJA).
The appellant submitted that absent evidence of that nature, the possession of the cash (in particular) could not be strongly probative of an ongoing drug trading enterprise. The presence of cash could be from previous drug sales but absent any contextualising evidence, it was only one of many possibilities. It was not strongly probative of the carrying on a business of trafficking methylamphetamine.
It is necessary to take a step back. In the course of oral argument, counsel for the appellant accepted that there was nothing discreditable about having, in isolation, the spoon and the scales. The only discreditable inference to be drawn in respect of those items was in conjunction with the evidence of the drugs to which they were proximate. However, those implements do not speak to any prior trafficking conduct on their own. It follows, and the appellant accepted, that the focus of the ground was the cash. In this regard, the appellant submitted that the cash was only probative of a present involvement in the drug trade, rather than a strongly probative piece of evidence of past involvement capable of supporting a disposition to engage in trafficking.
Notwithstanding the absence of other evidence probative of past drug sales and any expert evidence about the significance of cash in proximity to drugs, it remained a rational inference from the presence of cash next to drugs that the cash was the product of drug sales, and that the possessor had sold drugs in the past. That is, the evidence of cash in the circumstances was supportive of an inference of prior drug sales.
However, the appellant’s complaint was that without anything more, the evidence of the cash alone was not of sufficient strength to meet the criteria of ‘strong probative value’ within the meaning of s 34P(2)(b).
In cases like the present, the phrase ‘strong probative value’ directs attention to the probative strength of evidence that can be said to be indicative of past involvement in the drug trade. There may well be instances where the mere presence of $250 in cash, not a large sum in itself, could not without more be said to have the requisite strong probative value.
However, in the present case, the cash was in close proximity to what was a commensurately small amount of drugs and to the unused plastic resealable bags. It was open for the jury to infer, even absent any expert evidence, that the spoon, scales and bags, all having been located in the same case as the drugs, were items used to apportion and weigh the drugs. When the cash was considered in that entire evidential context, it was strongly probative of past sales and, therefore, of the disposition of the appellant to engage in the business of trafficking.

We dismiss Ground 1.
Whether the judge erred by incorrectly directing the jury about the permissible use of the discreditable conduct evidence pursuant to s 34R of the Evidence Act
Section 34R(1) of the Evidence Act provides that if evidence is admitted under s 34P, the judge must identify and explain the purpose for which the evidence may, and may not, be used. As Kourakis CJ explained in R v C, CA:[11]
Section 34R of the Evidence Act obliges judges to explain the purpose for which discreditable conduct evidence “may, or may not, be used”. An explanation of the permissible use or uses is as important as an admonishment against impermissible use because without the former the risk that the jury will lapse into the latter use is much increased. In the absence of an explicit explanation of the different reasoning processes involved, references to an underlying unity or a pattern do not provide the instruction required by the statute. Without that instruction, merely recounting a list of similarities is of no assistance.
[11] [2013] SASCFC 137 at [96].
The trial judge gave directions on the discreditable conduct evidence by commencing as follows:
I need to give you some direction now about what is called discreditable conduct, which is really properly called uncharged acts, concerning the items associated with the matters found within the rumpus room at the Maxwell Road, Para Hills address.
The judge then went on to describe the process of the search and finding of drugs. He then continued:
The prosecution alleges that other accoutrements of drug taking were found there, namely the bundle of the plastic resealable bags, the scales and the spoon. As well the police located $250 in $50 bills in that smaller bag. [The prosecutor] has contended to you that those uncharged acts are, for example, other signs of drug trafficking but that is a matter for you.
The judge later said:
I am going to give you some directions now connected with this discreditable conduct evidence. I will identify what they are and I will give you directions later in relation to the use of them. So the items of evidence connected with the uncharged acts are the electronic scales, the $250 in cash, the separate amount of $750 in cash and the spoon, and you might form your own view in relation to the shape of the spoon. The use to which you might put this evidence, if you decide, is that you might find that it is indicative that the accused is in the business of trafficking in methylamphetamine. That must be assessed by you in the background of any other evidence, and, for example, you have not heard any particular evidence about the association between those items and drug trading.
The judge then gave a direction as to how the jury may use the evidence. The appellant does not complain about that direction. Rather, the complaint relates to the judge’s use of the phrase ‘uncharged acts’ in the passages set out above.
The appellant submitted that the phrase ‘uncharged acts’ was presumably a reference to uncharged acts of methylamphetamine dealing. The use of that phrase connoted a prejudice, in the appellant’s submission, that the mere possession of the other items probative of discreditable conduct were, of themselves, criminal in nature. That is, they could potentially have been the subject of criminal charges themselves. That being the risk, the prospect was that the jury would reason prejudicially that there was other illegal conduct for which there was no evidential foundation.
We have already rejected part of the foundation of this submission, in that we have rejected the appellant’s contention that the evidence of the cash did not have ‘strong probative value’ within the meaning of s 34P(2)(b). It is nevertheless necessary to consider the content of the prejudicial reasoning that is said to arise from the use of the phrase ‘uncharged acts’. The appellant described the potential impermissible reasoning as being that there was other illegal conduct. That must mean that to reason prejudicially from the phrase ‘uncharged acts’ would be to reason that because of the existence of other acts which were criminal in nature, the appellant was a bad person.
The appellant was unable to put the risk of impermissible reasoning from this phrasing any higher than that. However, the judge also went on to direct the jury as follows:
I then turn to the third and final part of that direction. As a matter of law this is a direction how you may not use this evidence. You must not reason from that body of evidence of uncharged acts that the accused is a bad person or a person of bad character and is therefore the sort of person who is more likely to have committed those charged offences. You must not, and you will not, reason that he has done these bad things generally and so therefore he is more likely to have committed this crime. You would not use that body of evidence to reason in such a simplistic and generalised way. The uncharged acts are no substitute for the particular charged occasion under the count which is before you, that is why I have emphasised to you this aspect of possession on so many occasions.
The judge here specifically and clearly directed the jury away from the impermissible reasoning that the appellant complained was in prospect by the use of the phrase ‘uncharged acts’. Nevertheless, the appellant submitted that the last sentence of this paragraph, together with the previous references to ‘uncharged acts’, effectively undercut the direction.
We would not condone the use of the phrase ‘uncharged acts’. The subject of the directions was various items of evidence that together, and in context, could support an inference that the appellant had in the past engaged in drug trafficking. The focus of a direction under s 34R is properly on the use to be made of the evidence. It is not to proceed on the basis of a hypothesised conclusion as to what that evidence represents. The use of that phrase carries a risk of conflating and confusing concepts.
However, in the first of the paragraphs of the judge’s direction quoted above, the judge effectively defined the phrase ‘uncharged acts’ as referring to discreditable conduct. In circumstances where he effectively had made clear what he meant by the phrase ‘uncharged acts’ and then gave a robust direction as to the use that may not be made of that evidence, we do not think that it can be said that the jury did not receive an adequate direction in the terms required by s 34R(1). We reach that conclusion notwithstanding that we would deprecate the use of the phrase ‘uncharged acts’ in this context.
We dismiss Ground 2.
Whether the admission into evidence of the code conversation caused a miscarriage of justice
It is to be recalled that the evidence of the code conversation was that GW had asked the appellant for the code to the rumpus room and that the appellant told a code to GW. GW returned to the door and tried to unlock it, but the door did not unlock. The STAR group officers then forced the door.
The appellant’s complaint was that the evidence of the code conversation should have been excluded on the basis that it was more prejudicial than probative. He submitted that the only available reasoning from this evidence was that he had lied to GW in this conversation. That then opened a line of reasoning to consciousness of guilt, irrespective of how the jury was directed. The judge had refused an application for a mistrial that was prosecuted on this basis at the close of the prosecution case.
There was no evidence about what the appellant said to GW. GW made no record of the conversation. There was no evidence about the actual code that GW had applied to the rumpus room door.
The prosecutor did not, in address, invite the jury to reason that the appellant had lied about the code. The prosecutor’s first statement to the jury on this topic was as follows:
The fact that the code did not unlock the door is not important, there are endless reasons why that might be, what is important though on the prosecution case is that the accused offered the officer a code at all. The only reason he would do that, the prosecution suggests, is because he knew the code, because this is his house, and in particular a room which he used and occupied seemingly as his bedroom.
The fact that the room was locked, you might think, is suggestive of the fact that a limited number of people had access to the room and one of those people, you might think, is the accused.
Later, when addressing the jury on the DNA evidence, the prosecutor said:
It was located in a locked room on the accused's property where he lived, to which he purported to know the code and within which his personal belongings were located.
The prosecutor did not advance any submission that the evidence of the code conversation was evidence of a lie told by the accused indicative of a consciousness of guilt. However, the appellant submitted that absent any evidence of what was said between the appellant and GW, the inference that was necessarily communicated to the jury was that the appellant must have known the code. In circumstances where the door then failed to open, the further inference was that he had lied out of a consciousness of guilt.
In this regard, the appellant emphasised the prosecutor’s use of the word ‘purported’ in the passage cited above, as contributing to an insinuation or an implication that the appellant must have lied. However, in the context in which that submission was made, the word ‘purported’ clearly enough meant nothing more than ‘represented’. Moreover, the use of that word must necessarily be read in the context of the prosecutor’s careful limitation of the extent to which he relied on the code conversation.
The complaint that the admission of the code conversation constituted a miscarriage of justice, notwithstanding the limited use relied on by the prosecution, cannot be separated from the direction that the judge ultimately gave in respect of the code conversation.
The judge directed the jury in the following terms:
Ladies and gentlemen, in considering this evidence I give you this direction that you are obliged to follow: you will bring your common sense and experience of life to bear upon your consideration of this evidence as you have done for all of the other evidence. You will understand that in the human condition there are many reasons why things go awry. Let us just name a few. Memories about numbers fail. Numbers are often misapplied in an order of numbers. Numbers are often entered wrongly. Wrong numbers are often entered. And all of that may occur in circumstances where people are naturally nervous about what is confronting them and who is demanding information from them. Alternatively there might be something wrong with the lock, the tumblers in the lock, the locking mechanism or any other moving part of the lock or all or any of those things combined in any way.
This is my direction to you, ladies and gentlemen: the only significance of this evidence is that the accused responded to the police at the time he was asked for the code and he volunteered information. There is nothing in the evidence to prove that one or a combination of those things that I have mentioned did not occur and things went awry or that they are a reasonable possibility. You will not give any other significance to that evidence apart from the fact that the discussion took place and, for reasons which will not trouble you and about which you will not speculate, it became necessary to force open the door of the rumpus room. You are therefore to give this evidence no greater emphasis than that.
Insofar as it can be said that the jury was at risk of reasoning that the evidence of the code conversation warranted a conclusion that the appellant had told a lie, that risk was manifestly cured by this strong direction. The evidence of the code conversation was probative of an implied admission that the appellant knew the code and that he had access to the room. Any risk of the impermissible line of reasoning, slight as such a risk was, was properly dealt with by the judge’s directions.
We dismiss Ground 3.
Whether the judge erred in law by failing to adequately direct the jury about the code conversation
This complaint is closely related to the complaint of admission of the code conversation. It is premised on the appellant’s position that the code conversation was left to the jury in a state such that they could reason that the appellant had lied.
The appellant accepted that directions about lies are not usually required where the prosecutor does not assert and rely on the putative lie. However, he emphasised that there are cases where an Edwards direction[12] may be required when there is a real danger that the jury may nonetheless engage in that process of reasoning. Zoneff v The Queen[13] is authority for that proposition.
[12] Edwards v The Queen (1993) 178 CLR 193.
[13] (2000) 200 CLR 234 at [16].
The appellant submitted that there was a risk that if the jury thought that he knew the true code, and when asked for it thought that giving the code would implicate him in the offence, the code not working would have aroused a strong suspicion that the appellant had deliberately lied. This was consistent with his submissions on the previous ground. However, the appellant’s complaint here was that even if the evidence was admitted, an Edwards direction should have been given.
Assuming, for the moment, that there was some risk that the jury may have speculated that the appellant lied to GW in the code conversation, the need for an Edwards direction must be considered in the context of the case. As identified above, not only did the prosecutor not rely on any lie having been told but the judge also gave a strong direction against reasoning in that way.
In the context of this case, an Edwards direction would have amounted to a direction to the jury about what to do in the event that they determined to disobey the direction that was in fact given. That is an unattractive proposition. It has the obvious potential to confuse. In addition, its logic risks requiring the Court to speculate (and implicitly endorse) that a jury will ignore its directions and undertake some other path of reasoning which would then require further directions.
The only possible effect of an Edwards direction in these circumstances would have been to direct the jury’s attention to the possibility of a lie that was no part of the prosecution case and against which reasoning the judge had comprehensively directed. The directions given were far more favourable to the accused than if the judge had sought to complicate the matter by acting on speculation that the jury would not have followed them. An Edwards direction was neither necessary nor desirable.
We dismiss Ground 4.
Conclusion
We grant permission to appeal but dismiss the appeal.