Doolan v The Queen - [2013] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Doolan v R [2013] NSWCCA 145
Hearing dates: 27 March 2013
Decision date: 03 July 2013
Before: Emmett JA at [1];
Simpson J at [65];
Latham J at [107]
Decision:
Appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal - conviction for offence of supplying prohibited drug - evidence - admission of inconsistent statements by appellant about stolen motor vehicle - relevance - where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found
CRIMINAL LAW - appeal - conviction for offence of supplying prohibited drug - evidence - admission - warning to jury - s 137 Evidence Act 1995 - whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence
Legislation Cited: Criminal Appeal Act 1912 ss 5, 6
Crimes (Sentencing Procedure) Act 1999 s 12
Drug Misuse and Trafficking Act 1985 ss 3, 25(1), 29
Evidence Act 1995 ss 55, 56, 60, 66A, 97, 101, 101A, 102, 103, 104, 136, 137, Pts 3.4, 3.6, 3.7, 3.8
Cases Cited: Festa v The Queen [2001] HCA 72; 208 CLR 593
R v Yates [2002] NSWCCA 520
R v Shamouil [2006] NSWCCA 112; (2006)
66 NSWLR 228
Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
R v Cook [2004] NSWCCA 52
Filippetti v R (1978) 13 A Crim R 335
R v Anderson (NSWCCA, 15 December 1983, unreported)
R v Bazley (NSWCCA, 23 March 1989, unreported)
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Category: Principal judgment
Parties: William Patrick Doolan (Appellant)
Regina (Respondent)
Representation: Counsel:
I Nash (Appellant)
R Herps (Respondent)
Solicitors:
Bolt Findlay Solicitors (Appellant)
Director of Public Prosecutions (Respondent)

File Number(s): CCA 2010/150588
Decision under appeal

Citation:

[2012] NSWSC 455

Date of Decision:

2011-11-30 00:00:00

Before:

Black DCJ

File Number(s):

DC 10/150588

Judgment

EMMETT JA: This appeal is concerned with the admissibility, in a prosecution for the offence of supplying a prohibited drug, of certain statements made by the appellant, Mr William Doolan. Mr Doolan made the statements in connection with enquiries conducted by the police concerning a stolen motor vehicle. The appellant was convicted after a trial before a District Court judge and jury. Before the trial, the trial judge, following a hearing on the voir dire, ruled, over the objection of the appellant, that the statements would be admitted into evidence. The appellant now appeals from the conviction on the ground that the trial judge erred in admitting the statements into evidence.

The Factual Background

On 17 January 2010, police officers at Casino Police Station were called to investigate a Holden utility vehicle (the utility) that was parked in a public road in Casino. A Senior Constable Opryszko observed that the windows of the utility were down. Subsequent investigations indicated that the utility was registered in the name of the appellant. Later in the day, Senior Constable Opryszko and Sergeant Kirk attended the appellant's premises at Wiangaree. Senior Constable Opryszko spoke to the appellant, who said that he had sold the utility several months earlier to a person "by the name I think Stephen Graham".

On the following day, 18 January 2010, Constable Hoffman, as a result of a conversation that he had with Sergeant Kirk, drove with Senior Constable Dickson to the appellant's property at Wiangaree. Constable Hoffman and Senior Constable Dickson both made written statements concerning their visit to the appellant's property.

Constable Hoffman made a written statement on 30 June 2010. Constable Hoffman's statement recorded that, when they arrived, he observed a wooden dwelling with a high pitch roof, situated to the left of the driveway. There was an attached carport beside the dwelling. Constable Hoffman's statement said that a late model 4WD jeep vehicle (the jeep) was on the western side of the driveway. The front of the jeep was up on car ramps, there was an oil filter on the ground underneath the jeep and the bonnet was up in the air. The rest of the house was surrounded by old and rundown property and equipment. Constable Hoffman considered that the jeep looked very out of place and peculiar. The jeep had a Queensland registration plate affixed to the front and he wrote down the registration number.

As the police vehicle arrived, the appellant walked, from the back of the dwelling, out of the carport towards the police car. Senior Constable Dickson walked up to the appellant and spoke to him while Constable Hoffman checked the registration of the jeep by means of police radio. Paragraph 8 of Constable Hoffman's statement of 30 June 2010 is in the following terms:

"After a short conversation with Police radio I confirmed that the vehicle was stolen. I got out of the Police vehicle and spoke to the [appellant].

I said: 'Who owns the [j]eep over there?'

He said: 'A friend of mine?'

I said: 'What is his name?'

He said: 'I only know him as Steve'

I said 'The registration plate is coming up as being reported stolen'

He said: 'I don't know anything about that'

I said: 'Alright, you don't have to say or do anything if you don't want to, but anything you say or do will be recorded and can be used as evidence in court, do you understand that?'

He said: 'Yeah'

I said: 'The vehicle is on your property, so you don't have to let us seize it, do you understand that?'

He said: 'Yep'

I said: 'Do you have any objections to us arranging to have a tow truck come here and take the vehicle. Remembering that we may conduct examinations on it and the results of those examinations can be used as evidence'.

He said: 'Yeah, that's fine.'"

Constable Hoffman's statement said that, following that conversation, Constable Hoffman returned to the police vehicle and arranged for the jeep to be towed. A couple of hours later, a tow truck arrived from Kyogle and the jeep was loaded onto it. Constable Hoffman and Senior Constable Dickson followed the tow truck into Kyogle. Later that afternoon, Constable Hoffman inspected the jeep. Within the cabin of the vehicle he located a pair of "Motor-X" gloves, a hypodermic needle disposal pack and a box of tattooing needles.

Senior Constable Dickson made a written statement on 2 September 2010. Paragraphs 3 to 5 of Senior Constable Dickson's statement are as follows:

"3. About 2.45pm on Monday 18 January 2010, Constable HOFFMAN and I attended 1337 Wiangaree Back Road Wiangaree to enquire about a possible stolen motor vehicle on the property. Upon arrival on the property, I saw a silver Jeep 4WD parked on car ramps on the right hand side of the driveway. The bonnet was in the air and an oil filter was on the ground underneath the vehicle. The Jeep had a QLD registration plate ... affixed to the front of the vehicle.

4. After Constable HOFFMAN stopped the Police vehicle, a male person I know now as William DOOLAN appeared from the patio/carport area at the rear of the premises. I exited the Police vehicle and approached DOOLAN. Constable HOFFMAN stayed in the Police vehicle.

I said to DOOLAN, 'Are you William DOOLAN?'

He said, 'Yes'.

I said, 'William, my name is Senior Constable DICKSON and that is Constable HOFFMAN and we are from Kyogle Police. The reason we are here today is in relation to the Jeep over there. The registration plate on the front does not match the motor vehicle. We are going to have a look at the numbers on the Jeep. Is that all right?'

DOOLAN said, 'Yes'.

I said, 'How did the car come to be here?'

He said, "It was left here when a bloke come and bought a Commodore ute off me.'

5. I recorded DOOLAN's details in my Police notebook then approached the Jeep. I saw that the Jeep had been there for some time as there was a large amount of dust and dried leaves across the windscreen and engine bay. The inside of the vehicle was similar and in a generally dirty state. I looked at the Jeep's compliance plate and noted the VIN number for the vehicle ... I gave these details to Constable HOFFMAN and he returned to the Police vehicle. Shortly after he told me that the vehicle was reported stolen in Queensland. I returned to DOOLAN who was over in the patio area.

I said, 'William, the vehicle is coming up as stolen, I am going to ask you some questions about the vehicle. You do not have to say or do anything unless you wish to but whatever you say or do will be recorded and later be used in Court. Do you understand that?'

He said, 'Yeah'.

I said, 'Who owns the car?'

He said, 'Steven GRAHAM. He's from Brisbane or Lismore'.

I said, 'How old is he?'

He said, 'About 35'.

I said, 'How do you know him?'

He said, 'He bought the ute off me'.

I said, 'Do you have a contact number for him?'

He said, 'No'.

I said, 'How did the car get here?'

He said, 'He turned up in it when he came to buy the ute. He changed the oil in it and then he left. I haven't seen him since.'

I said, 'How long ago did the car turn up?'

He said, 'About 3-4 months ago'.

I said, 'Do you think it was weird that he didn't come back for the car?'

He said, 'I thought it was really weird. I tried to get hold of him but I couldn't find him.'"

On 19 January 2010, Constable Hoffman applied to the Lismore Local Court for a warrant to search the appellant's premises. The search warrant was granted. Following a briefing at Kyogle Police Station concerning execution of the search warrant, Constable Hoffman and others arrived at the appellant's premises at about 1pm on 19 January 2010. The police that were present were in full police uniform. Constable Hoffman was met at the rear door of the dwelling by the appellant, to whom Constable Hoffman spoke for a short time while the other police went into the dwelling and secured it. Constable Hoffman continued to speak with the appellant for a short time before searching commenced inside the dwelling.

The dwelling is a wooden two-storey building. The lower level has an open plan lounge, dining, and kitchen area, with a front door and a rear door. The rear door, where Constable Hoffman spoke to the appellant, leads into the dining area and has a dining table next to it. To the south are a bathroom and a number of bedrooms, which were occupied by the ex-wife and children of the appellant.

In the middle of the lounge area is a flight of stairs that leads up to the second storey, which is a loft-style bedroom. The appellant walked with Constable Hoffman up the stairs and the appellant showed Constable Hoffman a hypodermic needle container identical to that which Constable Hoffman had seen in the jeep the previous day. Next to the container were several tattooing needles identical to those that had been located in the jeep the previous day.

Constable Hoffman spoke to the appellant about the room and the appellant indicated that it was his bedroom. The conversation proceeded as follows:

"[Constable Hoffman] Said: 'Whose room is this?'

[The appellant] Said: 'My room'

[Constable Hoffman] Said: 'This is your bedroom. Is anyone else staying here with you?'

[The appellant] Said: 'Nah'.

[Constable Hoffman] Said: 'Just you?'

[The appellant] Said: Yeah'".

At about 1.15pm, Senior Constable Opryszko identified to Constable Hoffman a black coloured metal tin in the top drawer of a dressing table within the loft bedroom. The black coloured metal tin contained four resealable plastic bags. Inside the plastic bags were several small green coloured pills. Constable Hoffman asked the appellant whether he wished to make any comment about the black coloured metal tin. The appellant declined to do so.

At 1.31pm, Senior Constable Opryszko located a sports bag on the floor of the bedroom near a bed. Within the sports bag there were, amongst other things, a Queensland driver's licence in the name of Daniel Watson, a healthcare card in the name of Daniel Watson and an occupational health and safety card in the name of Daniel Watson. Constable Hoffman asked the appellant if he wished to comment on any of those items. The appellant declined to do so.

At 1.34pm, Senior Constable Dickson located on the kitchen table a single stalk of a plant that Constable Hoffman believed to be cannabis. At 1.40pm, Senior Constable Opryszko located a small amount of cannabis on a buffet-style bench behind the kitchen table. At 1.45pm, Constable Lack located a number of cannabis seeds in a cupboard in the laundry area above the washing machine. At 1.48pm, Senior Constable Dickson located a large amount of cannabis leaf underneath the kitchen table lying on the ground in the main dining area. At 1.55pm, Constable Lack located, in a cupboard above the washing machine in the laundry area, several plastic bags and foil packets containing cannabis seeds. At 2pm, Senior Constable Dickson and Senior Constable Opryszko located a plastic sachet containing cannabis leaf on the buffet table in the kitchen area. At 2.42pm, Senior Constable Dickson located a single cannabis plant behind a shed at the eastern side of the dwelling, less than 10 metres from the side of the dwelling.

At 3pm, Constable Hoffman concluded the search. Constable Hoffman informed the appellant that many of the items that had been seized would have to be examined and that he would receive some paperwork in the following months. Constable Hoffman then returned to Kyogle Police Station. Subsequently, Constable Hoffman ascertained from the Queensland Police Service that Daniel Watson was killed in an accidental shooting in May 2007.

On 22 January 2010, the appellant attended Kyogle Police Station and informed Senior Constable Dickson that he wished to make a statement about the search warrant and the jeep left at his property. On that day, the appellant made a written statement. In his statement, the appellant said that he resided at the Wiangaree premises with his ex-wife and his two sons and the girlfriend of one his sons. His ex-wife stayed sometimes and was at the house more during the week than not. His sons lived there permanently, as did the girlfriend of one of his sons. The appellant had lived at the property for 10 or 11 years.

Paragraphs 4, 5 and 6 of the appellant's statement are in the following terms:

"4. Around 4pm on one day in late August to early September 2009, Colin STEVENS and Jay WHITE attended my property. Jay WHITE is in his mid 30's and is a medium build and about 85kgs. He had sandy hair. I was told WHITE hung around Lismore. They arrived in a silver Jeep with Jay driving. Jay, Colin and I had a drink and they stayed the night. Jay WHITE left the next day but Colin stayed for two to three weeks before leaving. One day, Jay turned up and put the Jeep up on ramps and dropped the oil out of it. I sold Colin my white ute and they left later that day in it. Jay came back one or twice but never took the Jeep over the next few months. I never saw him again. The Jeep stayed up on the ramps. I asked STEVENS to speak with WHITE and get him to take the Jeep and his stuff from my property. He told me he would but this never happened.

5. On 18 January 2010, the Police attended my property at 1337 Wiangaree Back Road, Wiangaree. The Police informed me that the QLD registration plate attached to the Jeep was stolen. They later told me that the Jeep was also stolen and they were seizing it. A tow truck took the Jeep away and the Police left.

6. On 19 January 2010, the Police attended my property with a search warrant. I informed the Police during the search warrant that the upstairs loft area was mine. I share that area with Colin STEVENS when he resides there. STEVENS will stay for a few days then disappear for a few days. He left on the Saturday prior to the search warrant. My living area is at the far end of the loft, from the bed back to the window. The drawers, the bunk bed and anything near the stairs belongs to STEVENS. I didn't know what possessions STEVENS had prior to the search warrant."

The green coloured pills that were found in the black coloured metal tin contained 3,4-methylenedioxyamphetamine in an amount of 9.41 grams. The appellant was charged with supplying that substance contrary to

s 25(1) of the Drug Misuse and Trafficking Act 1985. The appellant stood trial before Black DCJ and a jury at the Lismore District Court on 1 September 2011 and following. The jury, after retiring to consider its verdict at 10.13am on 8 September 2011, returned a verdict of guilty at 2.19pm on 9 September 2011. On 30 November 2011, the appellant was sentenced to imprisonment for 15 months, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The appellant appeals from the conviction but does not seek leave to appeal in respect of the severity of the sentence.

The Appeal

The notice of appeal specified a single ground as follows:

His Honour erred in admitting the evidence in relation to the stolen cars.

Particulars of error:

a)His Honour erred in concluding that the evidence was relevant.

b)His Honour erred in failing to have regard to Parts 3.6, 3.7 or 3.8 of the Evidence Act.

c)His Honour erred in his assessment of the probative value and unfair prejudicial effect of the evidence.

The notice of appeal does not identify with any greater particularity "the evidence in relation to the stolen cars" referred to in the notice of appeal. In the course of the hearing of the appeal, however, counsel for the appellant indicated that the disputed evidence that was admitted at the trial consists of:

(1) Paragraph 8 of Constable Hoffman's statement of 30 June 2010;

(2) Paragraphs 3, 4 and 5 of Senior Constable Dickson's statement of 2 September 2010; and

(3) Paragraphs 4 and 5 of the appellant's statement of 22 January 2010.

The Ruling of the Trial Judge

In the course of argument on the voir dire concerning the admissibility of the disputed evidence, the Crown indicated that counsel for the appellant was objecting to any evidence being led about the appellant's account to the police on 18 January 2010 "as to Stephen Graham coming with the ute". The Crown also indicated that there was an issue about any reference to Jay White and the vehicle in the appellant's statement of 22 January 2010. The Crown then provided copies of the statements of Constable Hoffman of 30 June 2010, Senior Constable Dickson of 2 September 2010 and the appellant of 22 January 2010. The Crown also tendered other statements.

Counsel for the appellant said that anything in relation to the jeep, and the names given to the police officers in relation to a jeep that was stolen, apparently in 2008, was inadmissible, on the basis that it was irrelevant. Counsel for the appellant contended that a conversation between the police and the appellant concerning names in relation to the allegedly stolen jeep had no relevance to the charge against the appellant and that the utility, and the story about it, had nothing to do with the finding of drugs in the appellant's house. Counsel for the appellant said that, whether the utility had been bought by Mr Colin Stevens or by Mr Stephen Graham was irrelevant.

The trial judge referred to the conflicting statements as to whether or not it was Mr Stephen Graham or Mr Colin Stevens who was the purchaser of the utility and the person who left the jeep, observing that Mr Graham had become Mr Stevens. Counsel for the appellant said that that was not correct: rather, Mr Graham had become Mr Stevens and Mr White. The trial judge responded that one of them turned out to be occupying the room where the drugs were and it would be a matter for the jury as to whether anybody other than the appellant was occupying the area where the drugs were found.

Counsel for the appellant responded that the problem was that the jury would hear all the extraneous material about a stolen jeep, a matter that was still before the Local Court, with charges pending, and that it should not be mentioned before the jury on the hearing of the charge of supplying drugs. Counsel for the appellant informed the trial judge that the appellant had been charged with possessing property stolen outside New South Wales. His Honour said that the fact that the appellant had been charged did not need to emerge in the present trial. Counsel for the appellant responded that, nevertheless, the jury would hear two stories about the jeep that had no bearing on the charge concerning the drugs.

Counsel for the appellant then said that the evidence about the jeep being towed away, because it was a stolen vehicle, would be extremely prejudicial. The jury would be listening to evidence about a stolen car and two different versions and would be thinking that "maybe that's a bit dodgy". Counsel for the appellant said that it would not be enough for the jury to be directed about that.

Counsel for the appellant said that the jury would hear that the jeep was stolen and that the appellant had given two different versions as to how it came to be on his property, the first being that it was dropped off by a man called Stephen Graham and the second being that it was dropped off by a person by the name of Jay White. She said that the jury would think "that it's dodgy and that he's dodgy" because of his relationship with the stolen car and, therefore, the prejudicial material was so prejudicial that it should not go before the jury at all.

Counsel for the appellant then submitted that the evidence about the jeep being left three to four months, or some eight to nine months, prior to January 2010, had no relevance to something that was found in a room in January 2010. The trial judge said that the appellant's statement referred to selling the utility to Mr Colin Stevens, whereas, on 18 January 2010, he said he sold it to somebody else, and that Mr Stevens was now put forward as a joint occupier of the room where the drugs were found. His Honour said that Mr Stevens was put forward as the purchaser of the utility and the person who stays on and off in the room. The previous account was that the purchaser of the utility turned up one day and had not been seen since. His Honour said that he considered that that was relevant.

Counsel for the appellant repeated that the fact that the appellant said that Colin Stevens purchased the utility on the day that Jay White turned up with him was not relevant and asserted that there was no nexus between a person purchasing a utility some three to four months beforehand and then subsequently saying that the person stayed in the room on and off. Counsel for the appellant submitted that, while, if that was all that was said, it might not be prejudicial, there was still no relevance. If the only discussion that was had was about the utility, and not the stolen jeep, there would not have to be any discussion in relation to the jeep. Ultimately, counsel for the appellant said, it was irrelevant because there was no nexus between nominating Colin Stevens as being a purchaser of a utility and then Colin Stevens coming back in late 2009 or 2010.

The Crown submitted to the trial judge that whether or not Colin Stevens stayed at the premises was relevant to the drug charge, and that the jury was only able to assess the credibility and reliability of the appellant's account if the jury had the full account that he had given in relation to that matter. The full account included the explanation given in respect of Stephen Graham initially and then the sudden appearance of Jay White. The Crown said that the matter could be run, if necessary, on the basis that the police were making enquiries about the motor vehicle and in relation to the statement. There was then further discussion between counsel and the trial judge concerning the editing of the statements to exclude the references to the other plants and items that were located in the course of executing the search warrant.

In his reasons for admitting the disputed evidence, the trial judge did not identify with any specificity the evidence to which objection was taken. His Honour referred to "evidence on stolen jeep" and said that objection was taken to some evidence from the police officers relating to events on 18 January 2010 when they arrived at the appellant's premises. His Honour said that those events related to a jeep, which was alleged to be stolen. His Honour said that the issue arose because, on the following day, the police arrived with a search warrant. In an upstairs loft in the appellant's premises, which the appellant indicated that he occupied on his own, were found the drugs that are the subject of the indictment.

The trial judge then referred to the fact that, on 22 January 2010, three days after the search warrant was executed, the appellant arrived at the local police station and made a statement in connection with the occupancy of the room and dealing with the jeep that was alleged to be stolen. His Honour referred to the assertion in the appellant's statement of 22 January 2010 that he sold the utility to a person called Colin Stevens whereas, on 18 January 2010, he had told the officers that he had sold it to somebody called Stephen Graham. His Honour said that the details of Mr Stevens did not coincide with Mr Graham; nor did his activities and nor did his whereabouts. His Honour referred to the fact that the statement of 22 January 2010 went on to say that Mr Stevens was a regular visitor, and in fact on a frequent basis occupied the area upstairs where the drugs were found. His Honour also referred to the fact that the statement of 22 January 2010 asserted that the drawers, the bunk bed and anything near the stairs belonged to Mr Stevens. His Honour said that the issue clearly was whether there was another occupant who may have been responsible for the presence of the drugs in question.

The trial judge recorded that counsel for the appellant had objected to the evidence on the basis that it was not relevant. His Honour did not see that that was arguable and considered that the evidence was clearly relevant as to who it was that was in the loft room, if anybody, apart from the appellant. His Honour said that, given what the appellant said on 18 January 2010, and what he said on 22 January 2010, there was a clear conflict as to who was the purchaser of the utility.

The trial judge also referred to the fact that the Crown had made available a statement from Mr Stevens saying that he would give evidence that he was a regular occupier of the room in question. His Honour said that there was some reference to a jeep in Mr Stevens' statement but there was no reference to a utility. His Honour did not consider that that was relevant at that stage.

Having concluded that the disputed evidence was relevant, the trial judge then considered the submission advanced on behalf of the appellant that the evidence would be unduly prejudicial. His Honour did not see why that was so. His Honour observed that the evidence relating to the jeep, which was said to be stolen, was that, when asked, the appellant said that he did not know that it was stolen and that the jeep was not his and that it belonged to either Mr Graham or Mr Stevens.

The trial judge said that the jury would be directed that any issue about the jeep was not for them and that any question as to whether or not it was stolen and, if so, to whose knowledge it was stolen, was quite immaterial. The jury would be directed that the only issue was whether the appellant was in possession of the drugs in the upstairs of the house. His Honour did not see that there was any undue prejudicial effect at that stage. However, his Honour foreshadowed that there may be further discussion about editing various statements. His Honour observed that it would be helpful if the parties could sort that out themselves but that, if they could not, he would rule on it. Notwithstanding those observations, there does not appear to have been any further discussion, in the course of the trial, concerning the admissibility of the disputed evidence.

The Relevant Provisions of the Evidence Act

Under s 55 of the Evidence Act 1995 (the Evidence Act), the 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. Under s 56, except as otherwise provided, evidence that is relevant in a proceeding is admissible in the proceeding and evidence that is not relevant in the proceeding is not admissible.

Under s 97 of the Evidence Act, evidence of a person's character, reputation or conduct is inadmissible, if the evidence is sought to be adduced to prove that the person has, or had, a tendency to act in a particular way, unless notice is given and the evidence, either alone or together with other evidence to be adduced, has significant probative value. Section 101 prohibits the admission of tendency evidence unless its probative value substantially outweighs any prejudicial effect that the evidence may have.

Under s 101A of the Evidence Act, evidence that is only relevant because it affects the assessment of the credibility of a witness or person is credibility evidence. Under s 102, credibility evidence is inadmissible unless one of the identified exceptions applies. One such exception is provided by s 103, under which credibility evidence may be adduced in cross-examination if the evidence could substantially affect the assessment of the credibility of a witness.

Under s 104 of the Evidence Act, an accused may not be cross-examined about a matter relevant to the assessment of his or her credit without the leave of the court. Such leave must not be granted unless certain conditions are met. One condition is that the accused has adduced evidence that tends to prove that a Crown witness has a tendency to be untruthful and that evidence was relevant solely, or mainly, to that witness's credit.

The Appellant's Contentions on the Appeal

The appellant contends that the evidence that was critical to the trial judge's determination was the inconsistency between the person nominated by the appellant on 17 January 2010 and 18 January 2010 as being the person responsible for the cars, namely Stephen Graham, and the person nominated in his statement of 22 January 2010 as being the person responsible for the cars as well as the drugs, namely Colin Stevens. The appellant contended that the trial judge had concluded that the falsity of nominating Stephen Graham was relevant as to who it was that was in the room, if anybody, apart from the appellant. The appellant contended that, by saying that the jury would be directed that any issue about whether the jeep was stolen or not was immaterial, his Honour implicitly accepted that questions as to the ownership of the vehicles was not a fact in issue in the proceeding. The appellant contended that the sole relevance of the appellant's lies about Stephen Graham was as admissions that went to his credibility in his account of who possessed the drugs. Thus, it was contended, its relevance was as a statement expressing consciousness of guilt.

The appellant contended that the disputed evidence could not support an inference that the statements about Stephen Graham were made out of the knowledge that the truth would implicate him in the offence charged. When the appellant nominated Stephen Graham, the police were not investigating the presence of drugs. The statements made on 17 January 2010 and 18 January 2010 could not, the submission went, have been made out of a consciousness of guilt about the drugs. If they had been, the appellant would have removed the drugs from his property immediately upon the departure of the police on 18 January 2010. Therefore, the nomination by the appellant of Stephen Graham as the owner of the utility and the jeep was, so the submissions went, not relevant as an admission. The inference that the statements regarding Stephen Graham were made out of a consciousness of guilt about the drugs was, therefore, not available on the evidence.

The appellant contended that no other basis was identified as to how his lies could rationally affect the assessment of his statements. The only other conceivable relevance of the evidence was to prove that the appellant had a tendency to lie, or for the purpose of assessing the credibility of the account given by him in his statement of 22 January 2010, or to prove the bad character of the appellant. In the circumstances, the submission went, the evidence would be inadmissible on any of those bases.

The appellant contended that, as a result of the admission of the lie regarding Stephen Graham, a considerable amount of evidence was led in an attempt to prove that what he subsequently said, on 22 January 2010, about the motor vehicles, the utility in particular, was true and to explain the purpose of the lie. Both categories of evidence occupied a substantial proportion of the hearing time and neither had any significant probative value in determining the real issue in the trial, namely, whether the Crown could establish beyond reasonable doubt that the appellant had exclusive possession of the drugs.

The Crown did not dispute that Colin Stevens had in fact purchased the utility from the appellant, but suggested that the utility had been purchased with drugs that were the subject of the indictment. The evidence adduced on behalf of the appellant to explain the purpose of the lie focused on the criminal past of Colin Stevens and the fact that the appellant was intimidated by him.

The Court has a wide discretion as to whether a new trial should be ordered. The appellant points to the fact that, by the time the appeal is dealt with, he will have served a substantial part, if not the whole, of the sentence imposed. He says that, if the Court of Criminal Appeal finds that the disputed evidence was not properly admitted and allows the appeal, a conviction is unlikely. He points to the fact that the drugs were found in a bedroom with two beds. The second bed had bed clothing on it and clothing and other furniture in the room supported the appellant's evidence, and the evidence of Mr Stevens, that they were sharing the room during the relevant period. The Crown did not dispute that fact.

Further, the appellant says, there was no direct evidence that otherwise linked the appellant with the drugs, or the name Stephen Graham, in the context of assessing the credibility of his account in relation to the drugs. The appellant asserted that the lie told by him could never rationally have been told out of consciousness of guilt in relation to the drugs. Therefore, it was submitted, the direction about stolen vehicles, in addition to placing additional emphasis on inadmissible evidence, would have been confusing to the jury.

Under s 6 of the Criminal Appeal Act 1912, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal may be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The appellant contends that it could not be said that no substantial miscarriage of justice has actually occurred, unless the Court is persuaded that the evidence admitted at the trial proved, beyond reasonable doubt, the appellant's guilt of the offence of supplying prohibited drugs. He contends that, in the present case, the properly admissible evidence squarely left open the question of whether or not the appellant had exclusive possession of the drugs. Accordingly, the Court should not be persuaded that the evidence that was properly admitted would have proved the appellant's guilt beyond reasonable doubt. Therefore, the appellant says, if the Court accepts that the disputed evidence should not have been admitted and allows the appeal, conviction at a second trial is unlikely.

Whether the Trial Judge Erred

The statements made to Senior Constable Dickson on 17 January 2010 and 18 January 2010 are inconsistent with the appellant's statement of 22 January 2010 as to a fact in issue, namely, whether or not there was another occupant of the loft area who may have been responsible for the presence of the drugs. The statement of 18 January 2010, in which no mention is made of Colin Stevens and in which Stephen Graham is nominated as coming in the jeep to buy the utility, is entirely in conflict with the appellant's statement of 22 January 2010, which replaces Stephen Graham with Colin Stevens and Jay White, saying that Jay White drove the jeep and Colin Stevens bought the utility.

It was a fact in issue whether or not Colin Stevens had access to the loft and the drugs the subject of the charge. The question is whether the appellant's initial giving of a false name, Stephen Graham, instead of his later statement of the names Jay White and Colin Stevens, in relation to the person or persons who had responsibility for the cars, could rationally affect the probability of the existence of the fact as to whether or not any other person had access to the loft area and thus may have been responsible for the presence of the drugs. The conversations in issue were not simply statements about the cars but were conversations about certain individuals.

The appellant's statements concerning Stephen Graham and the jeep were relevant to a fact in issue in the trial, namely, whether any other person had access to the loft area. The statements concerning Stephen Graham and the jeep were relevant, such that they could rationally affect, at least indirectly, the assessment of the probability of the existence of a relevant fact, namely, who came to the appellant's property, when that person did so, the purpose for which the person did so and the circumstances in which the person did so. All of those matters were relevant to the issue of who had access to the loft area and whether or not the presence of such a person could potentially negate the appellant's possession of the drugs. Accordingly, the Crown contends, the statements about Stephen Graham were admissible as relevant representations made by the appellant for a purpose other than proof of an asserted fact. They were admissible under s 60, as well as under s 66A, as being a contemporaneous representation about the appellant's knowledge.

Once the relevance of a prior statement has been established, the statement is evidence of the truth of the statement, unless application is made under s 136 of the Evidence Act to limit its use. No such application was made on behalf of the appellant.

Prior inconsistent statements do not amount to character evidence. Further, the disputed evidence was not relied upon by the Crown as constituting a tendency of the appellant to lie. There was no failure to have regard to Parts 3.6, 3.7 and 3.8 of the Evidence Act.

The Crown's case was that the appellant had given two versions of events that occurred at his property. The first, made on 18 January 2010, concerned the attendance of Stephen Graham. The second, made in his statement of 22 January 2010, confirmed that the statement about Stephen Graham was false and asserted that there were in fact two people who had come to the appellant's property with the jeep. The two versions are incapable of standing together.

Having concluded that the disputed evidence was relevant, the trial judge considered its probative value and the question of unfair prejudice. Section 137 provides that, in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. The use of the world could draws attention to what it is open for the tribunal of fact to conclude. Evidence has probative value, for the purposes of s 137, if it is capable of supporting a verdict of guilty. It was open to the jury to conclude that the appellant's initial response to police was the truthful one. If they so concluded, the appellant would be found to be in possession of the drugs. Indeed, if the jury accepted the truth of the appellant's initial statement, the jury was almost bound to do so, since there was no limitation placed on the prior inconsistent statement under s 136 of the Evidence Act.

In relation to the danger of unfair prejudice element of s 137, counsel for the appellant asserted that the disputed evidence was extremely prejudicial because the appellant was contradicting himself and there were two different versions about a stolen car. However, prejudice is only operative in the s 137 weighing process to the extent it is unfair. As stated above, for the purposes of s 137, evidence will be probative only if it is capable of supporting a verdict of guilty. Evidence is not prejudicial for the purposes of s 137 merely because it strengthens the prosecution case. It is prejudicial for the purposes of s 137 only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task (see Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51]).

There may be real unfairness to a defendant if jurors are likely to view particular evidence as doing more harm to the defendant's case than the evidence objectively merits by, for example, giving it undue weight or by using it to engage in an impermissible form of reasoning, such as tendency or coincidence reasoning (see R v Yates [2002] NSWCCA 520 at [252]). Section 137 involves weighing the extent to which, having regard to the whole of the evidence that is to be given, the evidence is capable of proving the prosecution case and thus being harmful to the defendant's case, against the risk that that evidence will be taken by the jury to do more harm to the defendant's case than is objectively or properly warranted in the circumstances.

It may be, therefore, that the weighing process under s 137 involves considerations that, while distinct and opposing, are not entirely incommensurable. It involves weighing the extent to which impugned evidence is fairly prejudicial, in the sense that it is capable of being properly detrimental to the defendant's case, against the risk that the impugned evidence will lead the jury, because of its capacity to elicit emotional reactions or impermissible reasoning, to treat it in such a way that is unfairly prejudicial, in the sense that it is improperly detrimental to the defendant's case.

The weighing of the unfair detriment to a defendant's case against the fair detriment must incorporate consideration of any judicial directions that could be given to minimise the prejudice (see R v Cook [2004] NSWCCA 52 at [37]). Thus, there must be a real risk that the jury will misuse the evidence in some way and that the risk will exist, notwithstanding a proper direction from the court, which it should be assumed will be given. In the present case, the disputed evidence contained a denial by the appellant that he owned the jeep and that he did not know that it was stolen. There was no suggestion that he was facing any charges in relation to the jeep.

At the trial, the trial judge gave a direction to the jury concerning the allegations about motor cars that had not been lawfully acquired, some having been stolen. His Honour directed the jury that that was "by the by" and that it was not a trial about motor cars. His Honour directed that those issues had not been gone into and that the jury had only heard about all of that because of what was said in relation to who was responsible for the motor cars and the initial introduction of Mr Stephen Graham. His Honour concluded by saying that it was very important that the jury not transfer any concern about the motor cars onto the issue about drugs, and that that was important.

By giving those directions to the jury, the relevance of the motor vehicles was highlighted, but without the evidence about the motor vehicles substantially impinging, in terms of unfair prejudice, on the question of whether or not the appellant was in possession of the drugs. The jury was reminded, during the Crown's closing address, that the fact in issue in the trial was the possession of the drugs. The jury was reminded of the appellant's conversation with Senior Constable Dickson on 19 January concerning the loft area. That was necessary because of the appellant's statement of 22 January 2010, which contained information contrary to the information originally given to police on 17 and 18 January 2010. The fact of, and circumstances surrounding, the jeep coming onto the appellant's property three to four months previous was relevant to a fact in issue, namely, who had attended on that day and whether or not that person had the opportunity to bring onto and leave at the appellant's property the drugs the subject of the charges.

The trial judge had proper regard to s 137 and gave appropriate directions to minimise any possible prejudice. In his summing up, the trial judge gave a direction on lies. His Honour clearly told the jury that they should approach the question of the appellant's lies with considerable care, before they could take that into account.

The issue before the jury was whether the relevant parts of the appellant's statement of 22 January 2010 were a lie, told by the appellant after the fact, to negate the issue of possession of the drugs. Replacing Stephen Graham with Jay White and Colin Stevens was directly relevant to the issue of possession because those two had supposedly stayed over night in the loft area about three or four months previously. Their presence provided an alternative explanation consistent with innocence for the presence of the drugs in the black coloured metal tin in the chest of drawers. That is why questions were raised about the existence of Jay White.

The jury was informed that the fact in issue was whether the appellant was in possession of the prohibited drugs. The jury was directed that the determination of that issue would depend, in part, upon what conclusions were drawn about the appellant's conversation with police, the contents of his statement of 22 January 2010 and the view that the jury formed about the honesty and accuracy of the appellant and Colin Stevens. The jury's verdict must be taken to be a rejection of the appellant's case, namely, that the pills belonged to Jay White or Colin Stevens and were, unbeknownst to him, deposited at some point during their stay, when they attended with the jeep. The impugned evidence relating to the appellant's statements about the stolen jeep is probative, because those statements inextricably tied the issue of who occupied the loft with the identity of the individuals involved with the jeep and the utility. The impugned evidence was thus relevant to the question of who occupied the loft where the drugs were found. While there was a risk that the impugned evidence would be unfairly prejudicial to the appellant, in involving mention of a stolen jeep, that risk was substantially eliminated by the trial judge's direction. In the circumstances, the probative value of the evidence was not outweighed by the risk of unfair prejudice to the appellant.

Conclusion

There was no error in the ruling made by the trial judge on the voir dire. For the reasons indicated above, the disputed evidence was relevant. Further, it was not relevantly prejudicial such that it should have been excluded under s 137. The appeal should be dismissed.

SIMPSON J: I have read in draft the judgments of Emmett JA and Latham J. I take a different approach and come to a different result.

On 1 September 2011 the appellant was arraigned in the District Court at Lismore on an indictment that charged a single count of supply of a prohibited drug (MDMA, also known as ecstasy). He entered a plea of not guilty and a trial before a jury proceeded. On 8 September 2011 the jury returned a verdict of guilty. Subsequently the appellant was sentenced to imprisonment for 15 months. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, execution of that sentence was suspended.

The appellant now appeals against the conviction. He does not seek leave to appeal against the sentence. The sole ground of appeal upon which he relies concerns the admission of certain evidence. The ground of appeal is formulated as follows:

"1. His Honour erred in admitting the evidence in relation to the stolen car.

Particulars of error:

(a) His Honour erred in concluding that the evidence was relevant;

(b) His Honour erred in failing to have regard to Parts 3.6, 3.7 or 3.8 of the Evidence Act;

(c) His Honour erred in his assessment of the probative value and unfair prejudicial effect of the evidence."

(Part 3.6 of the Evidence Act 1995 deals with tendency and coincidence evidence; Pt 3.7 deals with credibility evidence; Pt 3.8 deals with character evidence.)

The Crown case

The Crown case of supply was based upon s 29 of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"), pursuant to which possession of not less than a specified quantity of a prohibited drug is deemed to be for the purpose of supply (unless specified circumstances, not here relevant, exist), and the definition of "supply" in s 3, pursuant to which possession for the purpose of supply constitutes supply.

The core facts the Crown alleged can be shortly stated.

As at 19 January 2010 the appellant lived in a two-storey house on a rural property in a country town near Kyogle in northern NSW. Also living in the house, but separately, was his former wife, Leanne Remado Doolan, the appellant's two sons, and the girlfriend of one of the sons. The appellant occupied a loft style bedroom on the second storey of the house. On 19 January 2010 police officers (including Constable Steve Hoffman, Senior Constable Opryszko, and Senior Constable Dickson) executed a search warrant at the premises. The appellant accompanied the police officers through the loft bedroom, which he acknowledged to be his. He was asked if anybody else was staying there with him to which he replied "Nah". Asked "Just you?", he replied "Yeah".

Senior Constable Opryszko searched a dressing table in the bedroom, in the top drawer of which he located a black metal tin which contained four plastic resealable bags. In the bags were 34 "small green coloured pills with a cannabis imprint on the side". When given an opportunity to comment on the pills, the appellant declined. Later analysis identified the tablets as MDMA. The quantity was sufficient to satisfy s 29 of the DMT Act, such that possession would be deemed to be for the purpose of supply.

I interpolate that, on those facts, the Crown could establish a prima facie case.

However, on Friday, 22 January 2010, the appellant presented himself to Senior Constable Dickson at the Kyogle Police Station. He told Senior Constable Dickson that he wished to provide a statement. Omitting formal parts, the statement was in the following terms:

"3. I reside at ... with my ex-wife Leanne DOOLAN, my son Matthew DOOLAN and his girlfriend Nicki MCCONNELL, and my son Liam DOOLAN. Leanne stays sometimes at the house and is at the house more during the week than not. The others live there on a permanent basis. I have lived at the property for 10-11 years.

4. Around 4pm one day in late August to early September 2009, Colin STEVENS and Jay WHITE attended my property. Jay WHITE is in his mid thirties and is a medium build and about 85kgs. He had sandy hair. I was told WHITE hung around Lismore. They arrived in a silver Jeep with Jay driving. Jay, Colin and I had a drink and they stayed the night. Jay WHITE left the next day but Colin stayed for two to three weeks before leaving. One day, Jay turned up and put the Jeep up on ramps and dropped the oil out of it. I sold Colin my white ute and they left later that day in it. Jay came back once or twice but never took the Jeep over the next few months. I never saw him again. The Jeep stayed up on the ramps. I asked STEVENS to speak with WHITE and get him to take the Jeep and his stuff from my property. He told me he would but this never happened.

5. On 18 January 2010, the police attended my property at ... The police informed me that the QLD registration plate attached to the Jeep was stolen. They later told me that the Jeep was also stolen and they were seizing it. A tow truck took the Jeep away and the police left.

6. On 19 January 2010, the police attended my property with a search warrant. I informed the police during the search warrant that the upstairs loft area was mine. I share that area with Colin STEVENS when he resides there. STEVENS will stay for a few days then disappear for a few days. He left on the Saturday prior to the search warrant. My living area is at the far end of the loft, from the bed back to the window. The drawers, the bunk bed and anything near the stairs belongs to STEVENS. I didn't know what possessions STEVENS had prior to the search warrant."

At the time he made this statement, the appellant had not been charged with any offence. There is material before this Court (Particulars of Trial), not presented in the trial, that the appellant was charged with the offence by being served with a Court Attendance Notice on 15 July 2010.

It could be anticipated, from the appellant's statement (which became Exhibit C in the trial), that he would defend any charge that eventuated on the basis that the drugs were not under his exclusive control: see Filippetti v R (1978) 13 A Crim R 335; R v Anderson (NSWCCA, 15 December 1983, unreported); R v Bazley (NSWCCA, 23 March 1989, unreported).

Accordingly, in order to rebut such a defence, the Crown proposed to adduce evidence of statements previously made by the appellant, inconsistent with what he had said in his statement. This evidence was evidence concerning two vehicles, a Holden Commodore utility and a Jeep Cherokee, and includes the evidence the subject of the ground of appeal. Since the ground of appeal challenges the decision to admit the evidence, it is appropriate that it be considered on the basis of the material that was before the judge when he made the decision. A voir dire was conducted, at the outset of the trial, and before the jury was empanelled. A number of statements were before the judge. For that reason, what follows is drawn, not from the transcript of the trial, but from the statements on which the Crown proposed to rely, and upon which the trial judge determined to admit the evidence. The evidence on the voir dire was to the following effect.

On 18 January 2010, Senior Constable Opryszko and Senior Constable Dickson went to the appellant's property. There they saw a silver Jeep Cherokee, which was on ramps and which appeared to have been there for some time. Senior Constable Dickson ascertained that the vehicle had been reported stolen in Queensland. He told the appellant that it was stolen, and cautioned him. According to Senior Constable Dickson's statement, the following conversation then took place:

Constable Dickson: Who owns the car?

Appellant: Steven Graham. He's from Brisbane or Lismore.

Constable Dickson: How old is he?

Appellant: About 35.

Constable Dickson: How do you know him?

Appellant: He bought the ute off me.

Constable Dickson: Do you have a contact number for him?

Appellant: No.

Constable Dickson: How did the car get here?

Appellant: He turned up in it when he came to buy the ute. He changed the oil in it and then he left. I haven't seen him since.

Constable Dickson: How long ago did the car turn up?

Appellant: About 3-4 months ago.

Constable Dickson: Did you think it was weird that he didn't come back for the car?

Appellant: I thought it was really weird. I tried to get hold of him but I couldn't find him.

Constable Dickson: What did you plan on doing with the car if no one came back for it?

Appellant: I wasn't on planning doing anything. It's his - it's not mine.

Constable Dickson: So you never met Steven Graham the day before you sold him the Commodore?

Appellant: No.

Constable Dickson: How many times have you been inside the car?

Appellant: Once. That was yesterday when the other guys come out.

Constable Dickson: Were you aware that the Jeep was stolen before the police informed you earlier today?

Appellant: No.

This conversation was recorded in Constable Dickson's notebook, which was signed by the appellant.

Curiously, Constable Hoffman gave a similar, although abbreviated, account of a conversation with the appellant. I say curiously because Constable Hoffman attributes the questions, not to Constable Dickson, but to himself.

In August 2011, Constable Hoffman made various inquiries with a view to locating "Jay White". The results of the inquiries were such as to cast doubt on the reliability or credibility of the appellant's account in paragraph 4 of his 22 January statement.

Also before the judge was a statement made by Colin Stevens, but it has no bearing on the present issue.

The attendance at the appellant's property was not entirely spontaneous. The day before, 17 January, Casino Police had become aware of a suspicious vehicle (the Holden utility) parked in a Casino street. Inquiries proved that the appellant was the registered owner. Senior Constable Opryszko spoke to the appellant, who told him that he had sold the vehicle, several months earlier, to a man called Steven Graham. He said that he did not know Mr Graham's address or location "or anything like that". This evidence was given by Senior Constable Opryszko in the trial. It was not presented in the voir dire. I mention it to give context to the arrival of the police at the appellant's premises on 18 January and again on 19 January.

The District Court proceedings

Before the jury was empanelled defence counsel notified an objection to some of the evidence on which the Crown proposed to rely. Counsel did not identify, with any degree of clarity, the evidence to which objection was taken. The transcript records that, in response to a question from the trial judge, she said:

"I'm saying the material that's inadmissible is anything in relation to the Jeep and the names given to the police officers in relation to a Jeep which was stolen, apparently, in 2008 and when your Honour looks at the statement of Senior Constable Dickson, he notes that there was a considerable amount of grass etc underneath the Jeep which is at that stage on some blocks."

She said that the basis of the objection was relevance, and asked, rhetorically:

"What relevance does a connection with a stolen Jeep have with what's in the house?"

A fairly lengthy debate ensued, between defence counsel and the trial judge. Inter alia, counsel is recorded in the transcript as saying:

"Your Honour, the problem is that the jury are going to hear all this extraneous material about a stolen Jeep, that's a matter that's still in the Local Court, charges are pending, it shouldn't be heard before this jury, it's a charge of deem (sic) supply."

and:

"Yes your Honour but they're going to hear two stories in relation to the Jeep, which really has no bearing. The fact that the Jeep was stolen outside NSW has no bearing on this trial."

The Trial Advocate, representing the Crown, is recorded as saying:

"No and your Honour, in relation to and I said this before lunch in relation to when the papers were handed up, I do think that the matter could be run, if necessary, on the basis that the police were making inquiries about the motor vehicle and in relation to the statement, the notebook statement, that Mr Doolan made on 18 January, which he signed in Senior Constable Dickson's notebook. I wouldn't be proposing to lead the last question and answer, which relates to were you aware that the Jeep was stolen before you were informed about that? So in the Crown submission that would also ameliorate --

HIS HONOUR: What you're saying is that there would be some editing because in fact that's referred to in Mr Hoffman's statement too.

...

TRIAL ADVOCATE: No your Honour, that's all been excluded, it's been narrowed down to simply --

HIS HONOUR: Alright, so there'll be further editing to do about what you say. Do you need to have time to discuss that or do you want to say to me now what you've got in mind?" (bold added)

His Honour appears to have accepted that the parties could agree on the editing of the statements and indicated that he would not uphold defence counsel's objection. The transcript records the following exchange:

"DEFENCE COUNSEL: Your Honour, the concerns that I have in relation to the prejudicial effect that it has on my client namely that this vehicle has been investigated by the police, he's asked questions about it, asked who purchased it off him, obviously the vehicle has attacked (sic - attracted) some police attention.

HIS HONOUR: No, he didn't purchase it from --

DEFENCE COUNSEL: No, how it got there, who left it, doesn't know the name of the person and all those sorts of questions really aren't relevant in relation to this matter. The only thing that's relevant in relation to this matter is the names." (bold added)

What can be discerned from counsel's argument, although it was put in a somewhat elliptical or diffuse way, was that she challenged the relevance of the evidence, and also sought to have it excluded by reason of its prejudicial effect. Despite the deficiencies of the articulation of the argument, it can be seen that the second basis of objection was s 137 of the Evidence Act, which obliges a judge, in a criminal trial, to refuse to admit evidence tendered by the Crown if its probative value is outweighed by the danger of unfair prejudice to the accused.

The trial judge left it to counsel to have some discussions about editing but said that he would give a general ruling, which he did. He identified the evidence the subject of objection as "evidence on stolen Jeep". He recounted briefly the evidence of the execution of the search warrant, and the location of the drugs, and then said:

"What then happened was that on 22 January, that is three days after the search, the accused arrived at the local police station and makes a statement in connection with occupancy of that room and dealing also with the vehicle that is alleged to be stolen, that is the Jeep. In that statement he says that he sold his Ute to a person called Colin Stevens. On 18 January he told the officers, according to them, that he had sold it to somebody called Steven Graham. The details of Mr Stevens do not coincide with Mr Graham nor his activities nor his whereabouts.

The statement on the 22nd goes on to say that Mr Stevens is a regular visitor and in fact occupied the area upstairs where the drugs were found on a frequent basis and indeed the statement says the drawers, the bunk bed and anything near the stairs belongs to Stevens.

So the issue clearly is was there another occupant who may have been responsible for the presence of the drugs."

He rejected the argument that the evidence was not relevant, and said that it was:

"... clearly relevant as to who it was that was in that room, if anybody, apart from the accused and given what he has recorded as saying on the 18th and then what he says on the 22nd there is a clear conflict as to who was the purchaser of the Ute." (bold added)

He then dealt equally briskly with counsel's argument that the evidence was "unduly prejudicial" and added:

"And there the matter rests evidentially and the jury will be directed if requested and indeed perhaps even if not requested that any issue about that vehicle is not for them as to whether or not it was stolen and if so to whose knowledge it was stolen, is quite immaterial. The issue is was the accused in possession of the drugs in the upstairs of that house. So I cannot see that there is any undue prejudicial effect at this stage."

I pause to observe that, contrary to what was said by the trial advocate, when Senior Constable Dickson gave evidence, he did not omit the last question and answer from the recorded interview with the appellant, in which he asked if the appellant was aware that the Jeep had been stolen (to which the appellant gave a negative answer). Constable Hoffman also gave evidence of having told the appellant that inquiries showed that the registration plates were stolen. Counsel for the appellant made no protest that this evidence had been given, contrary to the stated intention of the Trial Advocate.

The appeal

Sections 5 and 6 of the Criminal Appeal Act 1912 permit a person convicted on indictment to appeal, inter alia, on any ground that involves a question of law (such as the wrongful admission of evidence) but also permits this Court to set aside a conviction on the basis of a miscarriage of justice. Since the ground of appeal is directed solely to the decision to admit the evidence, the correctness of the decision is to be determined by reference to what was before the judge on the voir dire. (That is not to say that some other point concerning the admission of the evidence could not be raised as a miscarriage of justice, but that was not the subject of any ground of appeal.)

Counsel who appeared for the appellant on the appeal also had difficulty in identifying with precision the evidence he contended should not have been admitted. Initially, he confined the argument to paragraphs 4 and 5 of the appellant's 22 January statement. He then broadened that to include the evidence of the police officers about the visits to the appellant's property on 17 and 18 January, as being "directly linked" with paragraphs 4 and 5, and as being "interrelated". That is, effectively, all of the evidence of the 17 and 18 January visits, leaving only the evidence concerning the execution of the search warrant on 19 January.

In my opinion, the relevant evidence falls into two separate categories, which need to be addressed separately. The first, and most obvious, is the evidence that showed that the Jeep (on the appellant's premises) was stolen. As was clear from the position adopted by the Trial Advocate on the voir dire, that evidence could easily have been excised, and, indeed, she signalled her intention to take that course. That did not, however, happen.

That there was on the appellant's property a stolen vehicle was of no relevance to the charge of supply of a prohibited drug. The evidence that suggested that the Jeep was stolen should have been rejected on that basis alone. Moreover, even if held to have some slight relevance, it had miniscule probative value with respect to the central question, the ownership of the drugs, and was highly prejudicial. It should have been excluded by reason of s 137 of the Evidence Act.

A more difficult question concerns the remaining evidence to which appeal counsel referred - the evidence in paragraphs 4 and 5 of the appellant's 22 January statement, and the related evidence of the police officers of the 17 and 18 January visits.

The central fact in issue in this trial was whether the appellant was in possession of the drugs found in his bedroom, ie whether they were under his control. In paragraph 6 of his statement he sought to attribute ownership of those drugs to Colin Stevens. He said that he shared the loft bedroom area with Colin Stevens, when Colin Stevens was in residence; that Stevens came and went, a few days at a time; that Stevens had left the previous Saturday; that the drawers, bunk bed and anything else near the stairs (where the drugs were found) belonged to Stevens; and that his own living area was at the far end of the loft.

It was legitimate for the Crown to anticipate that he would rely on such an assertion by way of defence, and to seek to meet it.

Evidence that the appellant had, on a prior occasion, said something inconsistent with that would therefore have been admissible. But there was no evidence that, on a prior occasion, the appellant had said something inconsistent with that.

What there was, was evidence that, on a prior occasion, he had said something inconsistent with the contents of paragraph 4.

Paragraph 4 was directed to an entirely different question - the circumstances in which the stolen Jeep came to be on the property. The appellant's account was that, in August or September 2009 - the previous year, three to four months earlier - Stevens and Jay White had come to his property, White driving the Jeep. The two men stayed the night, and White left the following day. Stevens remained for two to three weeks. Sometime after he had left, White returned. The appellant gave some detail that fixed White with proprietorship of the Jeep. He said that he (the appellant) sold his Holden utility to Stevens, and Stevens and White drove off in it.

What the appellant said in this paragraph was, in two respects, inconsistent with what the appellant had told Senior Constable Dickson only three days earlier. He told Senior Constable Dickson that the person who owned the Jeep was Steven Graham. And he told Senior Constable Dickson that it was Steven Graham who had bought his Holden utility.

The Crown therefore sought to adduce the evidence of the inconsistencies in respect of the vehicles as relevant to the assessment of the credibility of the appellant's account of the circumstances of the occupation of the loft bedroom in paragraph 6. I cannot accept that that was legitimate.

That the appellant had given a false account (if it were held to be a false account) to police about the ownership of the Jeep or the circumstances in which it came to be on his property was not relevant to whether he, or Stevens, or somebody else, was in possession of the drugs in the bedroom. Nor was the evidence of the conflicting accounts the appellant had given of his disposal of the Holden utility.

As at 22 January, there were, in fact, and certainly in the appellant's mind, two parallel lines of inquiry that might have involved the police. One concerned the Jeep. The other concerned the drugs. There was no evidence of any such line of inquiry concerning the Holden utility. As is the way with parallels, the two lines did not intersect. The one had no bearing on the other. The only way the evidence of the conflict in the appellant's accounts about either vehicle could have been made relevant was as tendency evidence - the tendency of the appellant to give false information to police, or even to invoke (falsely) the name Steven Graham. The Crown did not tender the evidence on a tendency basis. Had it done so, it would have had to contend with the exclusionary provisions in ss 97 and 101 of the Evidence Act.

It may be that the Crown case theory was that the appellant traded the Holden utility for the drugs (see the judgment of Emmett JA at [45]). If there were evidence to that effect, that might have been sufficient to establish the necessary link between what the appellant said to police about the disposal of the Holden utility, and what he said to police about ownership of the drugs. But there was, in the material presented to the judge on the voir dire, absolutely nothing to support such a link. Any such connection was, on the evidence, entirely speculative.

Whether the appellant could have been cross-examined on the statements - see s 104 of the Evidence Act - is a different issue, and one that need not, and cannot, here be resolved.

In my opinion, the objection to the admission of this evidence on the basis of lack of relevance ought to have succeeded. As with the evidence earlier considered, even if it had some marginal relevance, its probative value (other than as to tendency, for which it was not tendered) was slight and its prejudicial effect substantial. It was capable of showing the appellant to be a person who was loose with the truth when questioned by police. It called into question his credibility in respects unrelated to the drug charge. It ought to have been excluded under s 137 of the Evidence Act.

I would allow the appeal and quash the conviction. Notwithstanding the appellant's argument to the contrary, I would order a new trial. Whether or not there is to be a new trial is a matter that lies properly within the determination of the Director of Public Prosecutions.

LATHAM J : I have had the advantage of reading Emmett JA's judgment in this matter and I gratefully adopt his Honour's summary of the facts. My reasons for joining in the orders proposed by his Honour appear below.

The objection to the evidence on the voir dire was taken before the jury was empanelled. The appellant's counsel at trial submitted that any evidence "in relation to the Jeep and the names given to the police officers in relation to the Jeep which was stolen .... in 2008" was inadmissible because it was not relevant to the finding of the drugs within the appellant's house. The question of the prejudice occasioned by references to a stolen motor vehicle was a secondary aspect to the application. At no stage during the argument did the appellant's counsel at trial articulate with any greater precision the objectionable evidence by reference to the relevant paragraphs in the statements that were tendered to the trial judge on the voir dire.

On the hearing of the appeal, as Emmett JA has noted, the appellant's counsel specified those paragraphs of the police statements and the appellant's statement tendered on the voir dire that were said to be comprehended by the objection. They are set out in Emmett JA's judgment at [5], [7] and [17].

There was no objection taken at trial or on the hearing of the appeal to the evidence of Senior Constable Opryszko. His statement did not form part of the material tendered on the voir dire. He gave evidence of attending the appellant's premises on 17 January 2010 to enquire about the Holden utility parked in Casino. On that occasion, the appellant said he had sold the utility several months previously to a person by the name of Stephen Graham.

On the following day, when Constable Hoffman and Senior Constable Dickson spoke to the appellant concerning the ownership of the Jeep, the appellant disclosed that Stephen Graham had not only purchased the utility but that he had left the Jeep there at the same time, that the appellant had not seen him since, and that he had no means of contacting him. Thus, the only information additional to that provided to Senior Constable Opryszko was that the appellant believed that Stephen Graham owned the Jeep and that he was not well known to the appellant.

The search of the appellant's home took place the very next day. Before any search of the loft area was conducted, the appellant indicated that he wished to show Constable Hoffman something. The appellant took Constable Hoffman to the loft area and pointed out a hypodermic needle and a number of tattooing needles. It was at this point that the appellant said that it was his bedroom and there was no-one else staying there. Thereafter, the black tin containing the drugs were found. The appellant was asked about the pills but declined to comment.

This chronology is central to an appreciation of the appellant's voluntary statement to police on 22 January. Had the appellant not proffered the statement, in particular paragraph 6, there was a prima facie case of possession of the drugs by the appellant, based upon his own acknowledgment of sole occupancy of the loft area. By providing the statement, the appellant sought to rebut that case by the introduction of another occupant of the loft area, namely Colin Stevens.

However, the appellant went further than simply nominating Colin Stevens as an occasional resident of the premises. The appellant's explanation nominated Colin Stevens as the purchaser of his utility on an occasion when Mr Stevens was in the company of Jay White, who drove to the appellant's property in the Jeep. The appellant's statement in this regard was inconsistent with the information he had provided to police on every previous occasion, namely that it was Stephen Graham (a relative stranger to the appellant) who had purchased the utility and was responsible for the Jeep.

The Crown was provided with a copy of a statement by Mr Stevens dated 8 June 2011 (which was provided to the trial judge on the voir dire). The statement asserted that Mr Stevens stayed at the appellant's property from time to time over a number of months, including January 2010, where he shared the loft area with the appellant. Paragraph 8 of that statement referred to an occasion when Mr Stevens travelled to the appellant's property with Jason White in a Jeep, which was left there. The statement also claimed that Mr Stevens knew of the presence of drugs in a drawer in the loft area in January 2010, and that the drugs belonged to another person who Mr Stevens declined to name.

Against this background, it was entirely appropriate for the Crown to seek to tender the appellant's statement of 22 January in its case at trial, in anticipation of evidence in the defence case, either from the appellant or Mr Stevens or both. The Crown was not only entitled to do so, it was obliged not to split its case. Given that Mr Stevens' statement claimed ownership of the drugs in another person who had impliedly placed the drugs in the drawer, it was reasonable to anticipate that Mr Stevens' knowledge of that fact could only be explained by reference to an occasion when he was at the appellant's property with that person. One such occasion was his visit to the appellant in the company of Jay (Jason) White.

Thus, the appellant's account of the circumstances under which Mr Stevens and Mr White came to stay at the appellant's property in about August or September 2009 was relevant to (in the sense that it could affect, directly or indirectly, the jury's assessment of) the principal fact in issue, namely whether the appellant had exclusive possession of the drugs. There could be no meaningful assessment of the credibility of that account without a consideration of the appellant's prior inconsistent statements to police on 17 and 18 January concerning the identity of the purchaser of the utility and the owner of the Jeep.

As it transpired, Mr Stevens did give evidence to the effect that Jay White was responsible for placing the drugs in the drawer, when they both stayed with the appellant in the loft. Mr Stevens also maintained that there was only one occasion when Mr White visited the appellant with him, namely, when he drove the Jeep there and purchased the utility. In his evidence in chief, Mr Stevens said that he had not stayed with the appellant since that night, although he later agreed that his statement asserted that he had stayed with the appellant from time to time in January 2010. He further stated that he was "pretty sure" that Jason White was with him at the appellant's property in January 2010. This account was also not consistent with the appellant's version of events.

It was squarely put to the appellant and to Mr Stevens that Jay White did not exist. Evidence was introduced at trial of the enquiries police made in an effort to locate a Jason White in the age group nominated by the appellant and Mr Stevens, and from the north coast of NSW. One person fitting that description was found and interviewed, but he denied any knowledge of the appellant or Colin Stevens or of a silver Jeep. The Crown's position at trial was that the appellant's false account of Mr Stevens' and Mr White's visit to the property in paragraph 4 of the statement of 22 January was adopted by Mr Stevens after the appellant had discussed with him and shown to him a copy of that statement.

The course of the trial confirmed what the trial advocate anticipated when the application to exclude the evidence was heard. The appellant's account in his statement of 22 January of the circumstances surrounding the purchase of his utility and the abandonment of the Jeep was inextricably linked with the explanation proffered to the jury for the presence of the drugs in the drawer in the loft.

In summary, the application to exclude the evidence was the product of a recognition on the appellant's part that the jury would be less likely to accept his account in his statement as credible (and/or Mr Stevens proposed evidence) if they were aware of earlier inconsistent statements he made to police, concerning the sale of the utility and the origins of the Jeep. It was the identity of the person to whom he sold the utility, whether it was that same person or another who also left the Jeep at the premises, when that occurred, and under what circumstances which were critical to the credibility of the appellant's defence, not whether the Jeep was stolen to the knowledge of the appellant.

On the hearing of the appeal, the appellant's counsel devoted a considerable portion of his argument to the proposition that the appellant's prior inconsistent statements to police on 17 and 18 January were wrongly treated as lies going to a consciousness of guilt. This topic was not raised by anyone at trial until after the summing up, during which the trial judge gave an Edwards direction (Edwards v The Queen [1993] HCA 63; 178 CLR 193) in conventional terms concerning the appellant's admitted lies to police on 17 and 18 January. Immediately after the summing up concluded, and in the presence of the jury, both counsel for the appellant and the trial advocate confirmed that there was no reliance on lies to prove guilt and that the Crown case had only ever sought to use the statements for the purpose of undermining the credibility of the appellant's account at trial. The trial judge then said to the jury :-

So really it is getting quite clear that you cannot really use that as evidence of guilt when it is not put forward as it.

No further direction was sought and no complaint is made on the appeal about the trial judge's directions. I agree that there is no basis upon which the appellant's admitted lies to police on 17 and 18 January evinced a consciousness of guilt with respect to the appellant's possession of the drugs, in the light of the fact that the drugs were not discovered until 19 January. The direction ought not have been given, but it was effectively withdrawn and corrected: see Dhanhoa v The Queen [2003] HCA 40 at [34]; 217 CLR 1, at 12.

There was not, in my view, any danger that the prejudice associated with the police enquiries into a stolen motor vehicle would relevantly outweigh the probative value of the evidence of the conversations between the police and the appellant. The trial judge gave adequate directions in the course of the summing up :-

[T]here are allegations about motor cars not being lawfully acquired, some having been stolen. That is by the by. This is not a trial about motor cars. Those issues have not been gone into. You have only heard about all of this because of what was said in relation to who was responsible for the motorcars and the initial introduction of Mr Graham.

..............................................................................

That is why you have heard about the motorcars but it is very important you should not transfer any concern about motorcars into this issue about drugs, and that is an important thing.

The appellant's submissions alleging error on the part of the trial judge in failing to have regard to the tendency provisions, the credibility rule and the character provisions in the Evidence Act 1995 are unfounded. The Crown never sought to use the evidence of the appellant's statements to police as tendency evidence, nor could that have been done. The credibility rule does not apply, nor is leave required, for the purposes of cross examination of an accused with respect to a prior inconsistent statement: ss 103(1), 104(3)(c). At no stage was it suggested that the appellant was a person of bad character.

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Decision last updated: 03 July 2013

Medium Neutral Citation:	Doolan v R [2013] NSWCCA 145
Hearing dates:	27 March 2013
Decision date:	03 July 2013
Before:	Emmett JA at [1]; Simpson J at [65]; Latham J at [107]
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal - conviction for offence of supplying prohibited drug - evidence - admission of inconsistent statements by appellant about stolen motor vehicle - relevance - where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found CRIMINAL LAW - appeal - conviction for offence of supplying prohibited drug - evidence - admission - warning to jury - s 137 Evidence Act 1995 - whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence
Legislation Cited:	Criminal Appeal Act 1912 ss 5, 6 Crimes (Sentencing Procedure) Act 1999 s 12 Drug Misuse and Trafficking Act 1985 ss 3, 25(1), 29 Evidence Act 1995 ss 55, 56, 60, 66A, 97, 101, 101A, 102, 103, 104, 136, 137, Pts 3.4, 3.6, 3.7, 3.8
Cases Cited:	Festa v The Queen [2001] HCA 72; 208 CLR 593 R v Yates [2002] NSWCCA 520 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 R v Cook [2004] NSWCCA 52 Filippetti v R (1978) 13 A Crim R 335 R v Anderson (NSWCCA, 15 December 1983, unreported) R v Bazley (NSWCCA, 23 March 1989, unreported) Edwards v The Queen [1993] HCA 63; 178 CLR 193 Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Category:	Principal judgment
Parties:	William Patrick Doolan (Appellant) Regina (Respondent)
Representation:	Counsel: I Nash (Appellant) R Herps (Respondent) Solicitors: Bolt Findlay Solicitors (Appellant) Director of Public Prosecutions (Respondent)
File Number(s):	CCA 2010/150588
Decision under appeal	Citation: [2012] NSWSC 455 Date of Decision: 2011-11-30 00:00:00 Before: Black DCJ File Number(s): DC 10/150588