Keller v R
[2006] NSWCCA 204
•26 July 2006
CITATION: Keller v R [2006] NSWCCA 204 HEARING DATE(S): 5 May 2006
JUDGMENT DATE:
26 July 2006JUDGMENT OF: Studdert J at 1; Hall J at 58; Latham J at 59 DECISION: Appeal allowed; conviction and sentence quashed; new trial ordered. CATCHWORDS: Criminal law - expert evidence as to the subject matter of conversations being drug supply - whether such evidence should have been admitted - criminal law - expert evidence - sufficiency of summing up. LEGISLATION CITED: Evidence Act
Criminal Appeal ActCASES CITED: HG v The Queen (1999) 197 CLR 414
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
R v David & Gugea (unreported, NSWCCA, 10 October 1995)
R v Huynh (unreported, NSWCCA, 13 May 1996
Weiss v The Queen (2005) 80 ALJR 444PARTIES: Matthew Glen Keller v Regina FILE NUMBER(S): CCA 2004/3050 COUNSEL: S. Odgers SC (Appellant)
G. Rowling (Crown)SOLICITORS: Roderick Storie (Appellant)
S. Kavanagh (Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/1263 LOWER COURT JUDICIAL OFFICER: Urquhart DCJ LOWER COURT DATE OF DECISION: 22 October 2003
2004/3050
Wednesday 26 July 2006STUDDERT J
HALL J
LATHAM J
1 STUDDERT J: The appellant, Matthew Glen Keller, stood trial in the District Court with the co-accused, Anthony Denholm. The indictment contained two counts against the appellant:
Count 1 - that he between 1 October and 13 October 2001 at Sydney in the State of New South Wales did supply a prohibited drug, namely cocaine, being in a quantity which was not less than a commercial quantity;
In the alternative, Count 2 - that he between 1 October and 13 October 2001 at Sydney in the State of New South Wales did knowingly take part in the supply of a prohibited drug, namely cocaine, being in a quantity which was not less than a commercial quantity.
2 The co-accused was charged on one count only (count 3), in the same terms as Count 1.
3 The jury found the appellant guilty in respect of count 1 and the co-accused guilty in respect of count 3.
4 On 17 December 2003 the appellant was sentenced to imprisonment for eight years six months to commence on 22 October 2003. A non parole period of five years four months was set, to expire on 2 February 2009.
5 The appellant appeals against his conviction and seeks leave to appeal against the sentence imposed.
6 The first and second grounds of appeal focus upon the evidence of a police officer, Ian Smith, and opinion evidence which he gave concerning the meaning of various words uttered in intercepted conversations. The third ground of appeal raised a question as to "fresh evidence". Before considering the grounds of appeal, it is appropriate to outline the prosecution case.
7 The Crown case was that the appellant in Melbourne arranged with a person named Shannon Purdie in Sydney to buy a kilogram of cocaine. The appellant sent the co-accused to Sydney with money to pay for the cocaine and to take the drug to the appellant in Melbourne. The co-accused was under observation after he arrived in Sydney and after he was observed to come into possession of a backpack, he was followed to Central Railway Station where he was arrested. The backpack was found to contain what proved to be a block of cocaine weighing 505.5 grams and of 67.4% purity.
8 The Crown case relied mainly on telephone intercept evidence. There were six intercepted calls critical to the Crown case, and I record the following extracts from these calls:
"I. At 11:17 am on Tuesday 9 October 2001 the appellant rang Purdie :
Keller: …what's doing brother?
Purdie: …just took me days and days to hunt something up that bit of a thing we're talking about…I just found the cunt um yesterday…
Keller: …well, hang on, I just want to clarify one thing…it won't be the biggest thing, it'll be maybe for half or something…maybe for half of that you know, like it might be for say ten of them or a bit more or…
Purdie: Oh no I went and see I went to see me actual mate…like 'cause I didn't um remember I said I can get one two off a bloke…
Keller: …what have I gotta bring that's what I'm saying.
Purdie: Well you gotta bring the thing what we, what I said…
Keller: The whole big thing .
Keller: …remember how we said like I can get ten twenty whatever.
Purdie: Yeah, yeah, but I don't I didn't even bother seeing him, I went straight to me other mate.
Keller: Yeah all right you getting the whole, getting the whole .
Purdie: Well it's the only way you'll get absolute fuckin um you know.
Keller: Oh I don't know if I'm gunna have the whole thing though, that's the problem…
Purdie: …I'll probably, no actually yeah I got, yeah, I got twenty.
Keller: So it's a bit of pressure to get it all that's all so maybe, maybe look I'll just come there with whatever I've got and if it doesn't work out it doesn't work…
Purdie: But I mean I'd, I'd like to make five or ten myself too…
Keller: Yeah, yeah of course, yeah, I've, I've, don't worry, I've checked it all out and that it should, won't be a problem but the cunts just won't give me the things, you know.
Purdie: Mm and it's absolute fuckin rocket fuel man.
II. At 5.34 pm on Thursday 11 October 2001 the appellant rang an unknown male [Mitch Latimer]:
Keller: …but um yeah so the teeth there's one of those there.
Male: Right, I can do a couple .
Keller: Large ones.
Male: A couple of large ones straight away I reckon.
Keller: Yeah, no worries all right, well, not the real big one, there's only one big one.
Male: Right, do you wanna unload the big one or not?
Keller: No no just in
Male: No just the littles
Keller: Oh well you know the, the next ones down there.
Male: Yeah all right, well I'll grab a farmer off ya …When can I get that organised?
Keller: Oh it'll be tomorrow…
Male: How much, how much, half a metre.
Keller: One, one block right.
Keller: So that'll be…um so that two, two daughters all up.
Male: Yeah, yeah just say, just say a double daughter…
Keller: …they're gunna be five for the…for the thingo you know.
Male: Is it good?
Keller: The best ever…
Male: That's a fuckin big statement mate…
Keller: …It'll be, um, untickled , it'll be lovely…
Male: All right brother, we'll work the New South out and hen's teeth…tomorrow aye.
III. At 7.22 pm on Thursday, 11 October 2001 Denholm in Sydney rang the appellant:
Keller: …Are the boys looking after you or what?
Denholm: Um nine, nine o'clock tomorrow morning…that's when I get the results…
Keller: Oh well just kick back, and where are you, at Darling Harbour or?
Denholm: Um, um what's it called, oh some nudey bar…No, no I'm, I'm friggin Fibs, fibs, lies and uh Sweet, Sweet…Sweet it's called…Fibs, Sweet lies are the best Fibs…
Keller: …So what's going on, you've got a hotel room.
Denholm: Well, I've just gotta, I'll just get a room and do it in the morning.
IV. At 12.35 am on Friday, 12 October 2001 Denholm rang the appellant:
Keller: …What, did big Fahey come there did he…The Sergeant of Arms?
Denholm: …He didn't come anywhere, he was with thingo when I first met them at the joint down the road and they just see ya later pal we got our money we're off.
Keller: …You gave them the money you idiot.
Denholm: …I'm flying back to, I'm not fucking getting the thingo.
Keller: No fuck that.
Denholm: No, I'm on the aeroplane that's the easiest bit of all time. No nothing no questions asked.
Keller: No, no, no, no.
Denholm: Yes, I'm not fuckin getting the bus or train, I'm flying.
Keller: Yeah, no, don't do that no it's just in case.
Denholm: No, I'm flying I don't give a fuck what you say.
Keller: (laughs) All right.
V. At 10.42 am on Friday 12 October 2001 the appellant rang Denholm:
Keller: What's going on..
Denholm: …Supposed to be seeing him at eleven but oh they've changed the time three times today already.
Keller: Oh that's all right though just don't panic.
Denholm: …Someone he said something last night about more money or something.
Keller: …Right I'll speak to him don't, don't worry, he'll ring me all right.
VI. At 12.44 pm on Friday 12 October 2001 Purdie rang the appellant:
Purdie: So he's got…half the job done okay.
Keller: Yeah cool.
Purdie: But I had, I had to seal the deal, I've all ready used some of me own money but that doesn't matter didn't get that done.
Keller: Yeah, yeah.
Purdie: …all he can do is spear back right…and then come back and get the rest…but make sure he doesn't fuck around mate 'cause fuckin I'm…
Keller: No what, what when can he come back?
Purdie: Now right now he's sweet, he's got it.
Keller: Oh he can come back today.
Purdie: He's got it on him right now.
Keller: All right.
Purdie: Tell him to come back of what he's got but he's got to come back and pay the rest of the money and get the rest.
Purdie: …I've done all I can do I'm fuckin mate, I left myself six hundred bucks to go and do the National Run.
Purdie: …Then he's gotta um, um, fix the, get, get the rest of the thing right …or today or tomorrow…and then just come and pick it up.
Purdie: …You know lucky I couldn't even fuckin get it done.
Keller: Some the, them, um, danger factor but there's not much we can do about it.
Purdie: …There's nothing I, I've done everything I can then, I've already outlaid my um two oh that I had.
Purdie: …Take away twenty, right…From the whole amount, from the one forty…So make sure you give him enough to square up the one twenty…And just put the other twenty on my bill…But I'll need it but I mean they need theirs more than I need mine…So it's another um eighty…so mate make sure he spears the eighty."
(Emphasis added in the above extracts)
9 There was evidence that the appellant withdrew $40,000 from his bank account on 10 October 2001 which, of course, was the day following conversation I. Another feature of the evidence was that an address book with telephone numbers belonging to the co-accused was found during a search of the appellant's premises.
10 The appellant gave evidence in this case. He said that the co-accused came to Sydney at the appellant's request not to purchase drugs but to purchase a motor vehicle on his behalf from the man Purdie. The co-accused was given a second task by the appellant, which was to provide Purdie with jewellery that had been stolen on 2 October 2001, which Purdie was to dispose of. The appellant's case was that the telephone intercepts related to these assignments and also to marijuana. They had nothing to do with any supply of cocaine.
The opinion evidence
11 At the time of giving evidence Ian Smith was an officer with the Australian Federal Police. He outlined his experience, commencing when he joined the Australian Military Police in 1988. From 1988 to 1993 he served with the Military Police in Melbourne, Brisbane, Wagga, Townsville and Canberra investigating, inter alia, drug related crime. His evidence was that he became familiar with drug-related terminology and the method of operation of drug users and low-level dealers. He undertook further specialised training in drug related investigation in 1994. That training extended to drug-related terminology and the methods of operation of drug users and drug dealers. From 1994 to 1998 he did work overseas, which included, in part, investigation into drug dealing and drug related crime. In 1998 he joined the Australian Federal Police and did further training in drug investigation work, and between 1999 and 2001 he was with a special task force involved in investigating the importation and supply of a range of illegal drugs. According to the witness, his responsibilities since then have required him to maintain his knowledge of drug investigation techniques and drug related terminology.
12 He gave evidence that he was conversant with the method of operation and terminology used by a variety of drug syndicates and that he was familiar with prices relating to the importation and supply of prohibited drugs. He said that people buying and selling drugs communicated by trying to conceal the subject of the conversation and they did this by the use of agreed expressions or terms used in normal conversation that had certain meanings.
13 The witness gave evidence as to various meanings conveyed in the intercepted conversations.
14 Dealing with conversation I, the evidence of the witness was that the words "that bit of a thing" was a reference to drugs. "Maybe for half or something" was talk about an ounce of drugs. The reference to "ten of them or a bit more" was a reference to payment of an amount of money. The reference to "getting the whole, getting the whole", was a reference to an amount of drugs. The words "I got twenty" referred to an amount of money. The reference to "rocket fuel" was a reference to the purity of a drug and generally refers to cocaine.
15 Turning to call II: the reference to "teeth" was a reference to cocaine, which, according to the witness, whilst not a common term in Australia was well known internationally. It was referred to on a website run by the US Government. The reference to "a couple" and to "large ones" referred to the amount of drugs. The words "not the real big one, there's only one big one" referred to the amount of drugs. The reference to "a farmer" meant a quarter of a kilogram of cocaine. The words "one block" referred to the amount of drugs, and so too did the earlier reference to "half a metre". "A double daughter" was a reference to half a kilogram of cocaine. "Five for the…thingo" referred to an amount of money and an amount of drugs. The words "The best ever" referred to the purity of the drugs. The word "untickled" referred to the purity of the drugs, and specifically drugs not cut down to street level purity.
16 As to call III: the words "the results" refer to a drug transaction.
17 As to call VI: The witness said that the words "half the job done" refer to a drug transaction. The words "the rest of the thing right" refer to drugs. The words "my um two oh" refer to an amount of money. The reference to "twenty" was a reference to a larger amount, as was the reference to "one forty". The reference to "one forty" related to $140,000, according to the witness.
18 I add that there had been a conversation between Mr Keller and Mr Purdie prior to conversation I. That earlier conversation, not relied upon by the prosecution at trial, was on 2 October 2001 (Exhibit 9 at the trial) and in that conversation there had been a reference to "big ones", which the witness considered at first was a reference to drugs. Before trial, the witness had conceded he was wrong. He had earlier thought the reference was to "big one", not "big ones", and when this misunderstanding was corrected he changed his opinion and accepted that the conversation of 2 October 2001 was about jewellery (T 718-719).
The grounds of appeal
Ground 1: The trial judge erred in admitting opinion evidence from Ian Robert Smith
19 It was submitted that the evidence of this witness should have been excluded as not satisfying s 79 of the Evidence Act. Alternatively, it was submitted that the evidence should have been excluded pursuant to s 137 of the Evidence Act.
20 Before the evidence of the witness was heard by the jury, his evidence was taken on the voir dire and the trial judge ruled that it was admissible. It is noteworthy that the evidence in chief on the voir dire was received substantially in statement form and in that statement the witness referred to words used in the intercepted conversations, expressing the opinion that the language was consistent with being a reference to drugs and to money. For instance, in para 10 of the statement he referred to the reference to "twenty" being "consistent with being reference to $20,000" and the reference to "big one" being "consistent with a reference to an amount of drugs."
21 In ruling that the evidence taken on the voir dire was admissible before the jury, the judge said, in part:
"True it is that, unlike many scientific experts, that is, witnesses who give evidence based upon their expertise within one of the science disciplines, Federal Agent Smith did not provide a chain of reasoned arguments to arrive at the opinion he expressed as to the consistency in meaning of words and expressions predicated upon the fact that a code of some sort was being used.
Chains of reasoned arguments in support of an opinion, in my view, vary as to their length and as to the links within the chain. I am satisfied on the evidence before me that such evidence as was provided enables me to conclude that the evidentiary provisions of the Act which otherwise would prevent the opinion being expressed are overcome such that the opinion can be expressed."
22 His Honour went on to consider whether he should exclude the evidence pursuant to s 137 of the Evidence Act but resolved that issue, too, in the Crown's favour.
23 Although the issue presented on the admissibility question on the voir dire proceedings appears to have been whether the witness could give evidence that the language employed in the intercepted conversations was consistent with being language referable to a drug transaction, that is not the way in which the evidence was given before the jury. Mr Odgers acknowledged that if the witness had limited himself to expressions of opinion as to the consistency of the language used being referable to a drug dealing, the appellant would have no complaint. I consider Mr Odgers was correct in making that concession.
24 I find it puzzling that the evidence was given before the jury in the manner in which it was. Having referred to the experience of the witness in the investigation of drug offences over a period of fourteen years and having referred to the knowledge of drug terminology acquired in that period, and the use made in that context of expressions intended to conceal the subject of the conversation, the Crown Prosecutor took the witness to the conversations in the various telephone intercepts, referring him firstly to conversation I (above) and the expression "that bit of a thing". The Crown Prosecutor asked the witness this question:
"Q. Based on your experience, are you able to proffer an opinion as to what that means?
A. In my opinion, Purdie is talking about drugs."
25 The above question and answer exemplifies the manner in which the examination in chief proceeded. The witness was taken to other passages in the intercepted conversations and asked what words used meant, and the witness responded in the manner in which he did in the answer already recorded. I find it puzzling that the evidence was elicited in this manner because in asking the questions which were asked the Crown Prosecutor was going a step further than simply asking the witness to express an opinion as to whether the language used was consistent with language used in a drug transaction. It is also puzzling that no objection was taken to the questions asked because at least by the time the answer recorded above was given it would have become apparent that questions similarly expressed were likely to elicit answers similarly expressed going beyond answers limited to the question of consistency.
26 The Crown here submitted that since objection was not taken to the questions asked of the witness in examination in chief, this Court should conclude that a deliberate tactic was adopted by counsel appearing for the appellant at trial to allow evidence in that form to be introduced and then to attack it in cross examination. Hence, the Crown argued the appellant ought not to be heard in this Court to complain about the evidence that was given.
27 I do not accept that submission. Whatever be the explanation for the way in which the evidence was given before the jury, it is clear that the appellant through counsel took objection at the trial to the introduction of evidence of the type that was given. Not only did that objection prompt the proceedings on the voir dire, but after the evidence had been given before the jury, it prompted an application to the trial judge for the exclusion of the expert testimony that had been given. That application was unsuccessful.
28 Section 79 of the Evidence Act has to be read in conjunction with s 80. Under the latter provision, evidence of an opinion is not inadmissible only because it is about "an ultimate issue" but caution has to be exercised when considering expressions of opinion close to the ultimate issue. Hence, in R v GK (2001) 125 A Crim R 315 at 324 Mason P said:
"In New South Wales opinion evidence is not inadmissible only because it is about a fact in issue or an ultimate issue (Evidence Act, s 80(a)). However, judges should exercise particular scrutiny when experts move close to the ultimate issue, less they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions (see Steffen v Ruban (1966) 2 NSWR 622 at 626; Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313 at 350-351; HG v The Queen (1999) 197 CLR 414 at 427-428; Makita [a reference, of course, to Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705]."
29 It seems to me that in a situation such as occurred in the present case where a witness is expressing evidence that the speaker was talking about drugs, it is necessary that there be a manifest foundation for the evidence, namely:
(i) that it should be made apparent that the opinion expressed "is wholly or substantially based" upon the expert training, study or experience of the witness: s 79;
(ii) that the reasoning process of the witness should be sufficiently exposed to enable an evaluation as to how the witness used his expertise in reaching his opinion.
30 Thus, for instance, in HG v The Queen (1999) 197 CLR 414, Gleeson CJ said (at 427-428):
"It is not in dispute that psychology is a field of specialised knowledge, and that a psychologist may be in a position to express an opinion based on his or her specialised knowledge as a psychologist. However, the witness had to identify the expertise he could bring to bear, and as Clark v Ryan (1960) 103 CLR 486 illustrates, his opinions had to be related to his expertise."
31 In Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Heydon JA said (at 744 [85]):
"…it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially upon the expert's specialised knowledge."
32 Whether the opinion evidence given by the witness meets with the requirements considered above requires close attention to the lengthy evidence given by the witness before the jury at T 670-746.
33 Certain of the answers given in cross examination suggested that the witness did not draw a clear distinction between an expression of opinion that something spoken was consistent with being a reference to drugs, and asserting that something was a reference to drugs. For example, at T 704:
"Q. You have, throughout your evidence in answer to the prosecutor, selected particular parts in the transcript, coming from the tape and said this is a reference to an amount of drugs?
A. I said 'in my opinion', this is a reference to whatever particular instance I was talking about. It is consistent in my experience.
Q. You have not used 'consistent' until I just mentioned it?
A. I have used the term in my experience on a number of occasions.
Q. Are you saying, for instance, when you said to the jury that the expression 'half a metre' or 'one block' is a reference, in your opinion, to an amount of drugs or are you saying that it is consistent with that?
A. I am saying in my opinion, in my experience, it is consistent with the reference to an amount of drugs.
Q. If you're saying it is consistent with something, it means that it possibly means something else?
A. In my opinion in that context, it means what I have said in my opinion.
Q. If you use the expression something consistent with something, then it means to you that it might mean something else?
A. I don't know whether you are talking about this particular substance or in general conversation.
Q. Leaving aside this particular matter. Speaking generally, you say something is consistent with something, then it means that it is possibly consistent with something else?
A. It can be. It depends on the context.
Q. Are you saying to the jury that in your opinion, these various references are references to drugs or that they are consistent with references to drugs?
A. I am saying in any opinion with my experience, those terms are consistent with the - whatever it was that I said.
Q. They might they might mean something else?
A. In that context in my opinion, no."
34 The witness referred on a number of occasions to context as a basis for his opinion (for example, in the passage above set out, and again in the answer at T 723.50 and in the answer at T 738.5).
35 The witness when asked about call III gave the following responses to the following questions (T 737):
"Q. You've said that the reference at page one, halfway down Mr Denholm saying 'that's when I get the results' is in your opinion a reference to a drug transaction?
A. That's correct.
Q. What Mr Denholm seems to be saying there is that if you look a few lines before that that he's meeting something at 9 o'clock the next morning, doesn't he?
A. That's right.
Q. That's when he gets the results?
A. Yes.
Q. You can't say that simply by reading that, someone saying he's going to meet someone at 9 o'clock in the morning that that relates to drugs can you?
A. I placed this telephone conversation in the total context of which it was involved.
Q. What was the total context Mr Smith that you're talking about, what are the contextual matters that you rely on reaching that conclusion?
A. The fact that Mr Denholm was arrested with half a kilo of cocaine the following day.
Q. You just reasoned backwards. He's got the drugs on him so therefore he must be talking about drugs, is that your process?
A. It's consistent with the outcome.
Q. But that's your process of reasoning is it?
A. In this particular matter?
A. Yes?
A. Yes."
36 On my reading of the evidence, the witness does not appear to have identified the contextual matters which led him to the opinions expressed and, of course, to the extent that he relied upon the co-accused's arrest on the day after the conversation last referred to above, he was not relying upon his expertise as such. Rather, he was relying upon the circumstance that the co-accused was found in possession of half a kilogram of cocaine on the day after he had spoken to the appellant and concluding from this that the conversation the day before the co-accused's arrest was about the subject matter of cocaine.
37 It does not appear to me that the witness identified in the course of his evidence those matters which led him to conclude that in the conversations intercepted the subject matter was drugs. The witness did give some evidence of the wholesale value of a kilogram of cocaine between July and December 2001. He said that a kilogram of cocaine would have had a street value of $389,000 (T 693). That figure was based upon thirty-five percent purity. However, the witness did not expressly link his knowledge of the street value of a kilogram of cocaine with the sums mentioned in the intercepted conversations, and, indeed, the witness stated (T 741) that he did not know the wholesale price for 505 grams in the relevant period.
38 Reference was made to R v David & Gugea (unreported, NSWCCA, 10 October 1995). In that case evidence was given as expert evidence that the subject matter of conversations was in fact the supply of heroin. In the judgment of the court, it was considered that it was appropriate for the expert to give evidence that the relevant conversations could be referring to the supply of heroin, not that they did in fact relate to the supply of heroin. That case, of course, preceded the operation of the Evidence Act. Their Honours remarked (p 8):
"This is not the occasion to consider whether the law permits (or permitted) an expert to answer the ultimate question which the jury have to determine, if only because the rule, so far as it existed at common law, has now been abolished for the future by s 80 of the Evidence Act 1995. The principal objection to an expert giving evidence such as was given in the present case is that it is always liable to so influence a jury that they would not trouble to make up their own minds. In a case such as the present, it would necessarily require the exercise of the trial judge's discretion to exclude it."
39 Their Honours then went on (at p 9) to identify further problems about the expert evidence which had been given. One of those problems was identified thus:
"For example, Sgt Drury was invited to express his opinion concerning the real subject matter of these conversations without first identifying the basis upon which that opinion was formed, although to a large extent the basis of his opinion was explored in cross examination. That was not the correct way of going about it."
40 The evidence of the police officer was held to have been incorrectly admitted and a new trial was ordered.
41 There was a different outcome in R v Huynh (unreported, NSWCCA, 13 May 1996). In this case the appellant was convicted of two offences of conspiracy to supply heroin and the charges followed extensive surveillance. There were secretly recorded conversations in which the appellant and his associates spoke in guarded and cryptic language. Sometimes they slipped into more revealing dialogue. On occasions the drugs were referred to explicitly as heroin and on other occasions the word "stuff" was used. In the judgment of Gleeson CJ, with whose judgment the other members of the court agreed, R v David & Gugea was distinguished. The Chief Justice said (at p 9):
"…it does not seem, as far as appears from the judgment [in David & Gugea] that there was all the background material, including discussions of weights, measures, quantities and the like, and specific discussion of drug dealing and heroin, that existed in the present case. At the most it could be said that the people whose conversations had been intercepted could have been drug dealers. Here the evidence, apart from the opinion evidence, showed that the appellant was a dealer in heroin.
The evidence was admissible…"
42 The differing outcomes in David & Gugea and in Huynh highlight the necessity for a close consideration of the circumstances of the particular case. Returning to the present case, I do not consider it has been shown that the opinions expressed by the witness were wholly or substantially based upon his specialised knowledge. Further, I do not consider that the reasoning process of the witness has been sufficiently exposed to establish how his conclusion was based upon his specialised knowledge, if such be the case. Hence I consider that the evidence of Federal Agent Ian Robert Smith that the conversations were about drugs should ultimately have been excluded from the consideration of the jury.
43 I add that even if strictly the evidence was admissible under ss 79 and 80, I consider it should have been excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the appellant. It is clear from the evidence that the witness gave that in part the opinion of the witness was arrived at having regard to the discovery of the cocaine in the possession of the co-accused who had conversed with the appellant. To that extent, of course, the opinion of the expert was not based upon his particular expertise, and it seems to me that there was the very real risk that the jury would be distracted from making its own evaluation of the evidence by reason of the assertion of the police officer as an expert that the conversations were about drugs. Moreover, absent the exposure of the reasoning process of the police officer, this opinion was not open to close scrutiny by the jury.
44 For these reasons, I consider that ground 1 has been established.
Ground 2: The trial judge erred in his directions to the jury regarding the opinion evidence of Ian Robert Smith
45 The trial judge was asked to direct the jury that "the expert opinion is no better than the facts on which it is based" (T 90). In other words, the judge was asked to alert the jury to the danger of accepting the evidence of the witness if it was not based on fact. The judge did respond to that request by directing the jury as to their function when considering the evidence of the witness. His Honour said (SU 97):
"I want to say something more before I move on about Federal Agent Smith's evidence. You will recall that I told you yesterday that ordinarily a person is not able, as a witness, to express an opinion. There is an exception to that, when that person is presented as an expert, and it is on that basis that Federal Agent Smith was presented to you. It is very important that you understand this. When Federal Agent Smith was in the witness box he was that, a witness, like all other witnesses. You listened to what he told you in evidence. You appraise it. You accept what you want to accept. You reject what you want to reject. You use your reason, of course in the process, and then you give, to whatever you do accept, such weight as you consider it ought to have."
46 That direction did not respond specifically to the application of counsel.
47 Earlier, the trial judge had conducted a very thorough review of the evidence of Federal Agent Smith, and on two occasions during that review the jury was reminded of its function: at SU 42-43:
"Now be that as it may, as I said to you before the adjournment however, it is a matter for you what you accept and what you don't accept and what weight you give to it. And I briefly mentioned to you then how in the course of cross examination a number of matters had been raised with Federal Agent Smith on the basis that he didn't have that area of expertise upon which he relied in giving evidence which he did give. It is that area that I want to take you to now to remind you of those so that you are the better able to give consideration to 'do we accept what Federal Agent Smith says, what part do you accept, do we reject any part of it, what part do we reject, and what weight do we give to it.'"
and, then at SU 47:
"His expertise which he asserted as put in question in cross examination and one of the matters that you will need to consider is what you accept and what weight you give to what you accept of Federal Agent Smith's evidence."
48 The jury was reminded in a close review of the cross examination of the importance that the witness placed upon context (SU 60-62, 65, 71).
49 Once again (SU 71), the jury was reminded of its role during the course of the review of the evidence of the expert witness:
"The bottom line of this is that it is not for Federal Agent Smith but for you to decide what, if anything, words mean."
50 Later in the summing up the judge reminded the jury of the submissions made on behalf of the appellant advancing the reasons why Federal Agent Smith's evidence ought not to be accepted (SU 113 and following).
51 The trial judge provided the jury in the summing up with a most careful review of the evidence of Federal Agent Smith and of the submissions advanced on behalf of the appellant as to why the jury should not accept his evidence. However, the trial judge gave to the jury no instruction as to the necessity for it to analyse the basis upon which the officer reached his opinion. Nor did the judge caution the jury against accepting the opinion evidence without such analysis. It was not enough for the judge to remind the jury, as he did on the various occasions to which I have referred, that it was a matter for the jury to determine in the context of considering his evidence what evidence was to be accepted and what was not.
52 I consider there is substance in ground 2. Once the judge decided that the evidence was to be left for the jury's consideration, it was essential that the jury be given the further cautionary instruction.
53 For the above reasons, I conclude that the appeal should be allowed.
54 It was submitted by the Crown that in the event that any error in the conduct of the trial was established, this was a case in which the proviso to s 6 of the Criminal Appeal Act should be applied. That submission has to be considered adopting the approach defined in Weiss v The Queen (2005) 80 ALJR 444. Whilst the prosecution case could be regarded as formidable without the expert opinion that the speakers were in fact talking about cocaine, nevertheless I do not consider that this is a case for the application of the proviso having regard to the focal importance of the evidence of Federal Agent Smith. Hence I consider there ought to be a new trial.
55 I referred earlier to a third ground of appeal, which was expressed thus:
"A miscarriage of justice was caused by the absence of fresh evidence at the trial."
56 Time did not permit that ground to be argued on 5 May last when grounds one and two were argued. The hearing was adjourned to be relisted on a date to be appointed by the registrar. However, the appellant does not contend that ground three, if successful, would entitle him to a judgment of acquittal, and it is acknowledged by the appellant that if that ground succeeded the consequence would be an order for a new trial. Since I consider that the appellant is entitled to a new trial by reason of having succeeded on grounds one and two, it seems to me that a new trial should now be ordered, thus avoiding any further delay in hearing argument as to ground three.
57 Hence, I now propose the following orders:
1. that the appeal be allowed;
2. that the conviction and sentence of the appellant be quashed;
3. that a new trial be ordered.
58 HALL J: I agree with Studdert J.
59 LATHAM J: I agree with the proposed orders and with the reasons in support thereof.
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