R v Becirovic

[2017] SASCFC 156

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BECIROVIC

[2017] SASCFC 156

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)

24 November 2017

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - PROBATIVE VALUE - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Application for permission to appeal against conviction.

The applicant and a co-defendant Ms Hunt were tried by Judge alone in the District Court on three counts of trafficking in a controlled drug, one count of possession of a controlled drug, and two counts of possessing a firearm without a licence relating to drugs and firearms found by police on 7 January 2011 at house premises at Glandore occupied by Ms Hunt and allegedly also occupied on a part time basis by the applicant.

The applicant and Ms Hunt were was found guilty on one count of trafficking and one count of possession of a controlled drug on counts 3 and 4. The applicant was found guilty and Ms Hunt not guilty of the remaining counts.

The grounds of appeal are that the convictions are unreasonable and unsupported by the evidence; error in the admission of and directions regarding discreditable conduct evidence; inadequacy of reasons for the findings of guilt, and error in the admission and use of certain documents found at the premises.

Held, allowing the appeal in part:

1.   Per Lovell & Hinton JJ. The Judge erred in using the documents found at the premises for an impermissible hearsay use (at [194]).

Per Blue J (dissenting). The Judge did not err in the admission and use of the documents found at the premises (at [38]).

2.   Per Blue J and Lovell & Hinton JJ. The Judge did not err in admitting evidence relating to other counts in relation to counts 1, 2, 5 and 6 or engage in impermissible propensity reasoning (at [48] and [203]).

3. Per Lovell & Hinton JJ. The Judge erred in failing to give himself the directions required by section 34R of the Evidence Act 1929 (SA) (at [207]).

Per Blue J (dissenting). The Judge did not err in failing to give himself the directions required by section 34R of the Evidence Act 1929 (SA) (at [57]).

4.   Per Lovell & Hinton JJ (Blue J agreeing). It was open to the trier of fact to be satisfied beyond reasonable doubt of the applicant’s guilt on each count (at [255]).

5.   Per Blue J and Lovell & Hinton JJ. The Judge’s reasons were inadequate in relation to counts 1 and 2 (at [82] and [257]).

6.   Per Lovell & Hinton JJ The Judge’s reasons were inadequate in relation to counts 3 and 4 (at [274]).

Per Blue J (dissenting). The Judge’s reasons were adequate in relation to counts 3 and 4 (at [70]).

7.   Per Blue J and Lovell & Hinton JJ. The Judge’s reasons were adequate in relation to counts 5 and 6 (at [91] and [282]).

8.   Per Blue J and Lovell & Hinton JJ. In the circumstances, the proviso cannot be applied (at [125] and [303]).

9.   Order: Per Lovell & Hinton JJ (Blue J dissenting as to counts 3 and 4). Permission to appeal granted. The applicant’s convictions on counts 1-4 set aside and the matter remitted for re-trial on those counts (at [306]).

Firearms Act 1977 (SA), s 5, s 11; Juries Act 1927 (SA) s 7; Controlled Substances Act 1984 (SA) s 32, s 33L; Criminal Law Consolidation Act 1935 (SA) s 353; Evidence Act 1929 (SA) s 34P, s 34Q, s 34R, s 45A, referred to.
The Queen v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Filippou v The Queen (2015) 256 CLR 47; Weiss v The Queen (2005) 224 CLR 300, applied.
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Cesan v The Queen (2008) 236 CLR 358; R v Romeo (1982) 30 SASR 243; Myers v DPP [1964] 2 All ER 881; The Queen v Hillier (2007) 228 CLR 618; Fleming v The Queen (1998) 197 CLR 250; Wilde v The Queen (1988) 164 CLR 365, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"possession", "circumstantial evidence"

R v BECIROVIC
[2017] SASCFC 156

Court of Criminal Appeal: Blue, Lovell and Hinton JJ

BLUE J.

1. This is an application for permission to appeal by Kenan Becirovic against conviction by a Judge of the District Court sitting alone of one count of trafficking in a commercial quantity of a controlled drug,[1] two counts of trafficking in a controlled drug,[2] one count of possession of a controlled drug[3] and two counts of possession of a firearm without a licence.[4]

   [1]    Controlled Substances Act 1984 (SA) subsection 32(2).

   [2]    Controlled Substances Act 1984 (SA) subsection 32(3).

   [3]    Controlled Substances Act 1984 (SA) subsection 33L(1).

   [4]    Firearms Act 1977 (SA) subsection 11(1).

2. The counts related to the following items found by police at house premises at Glandore on 7 January 2011:

   (a)861.8[5] grams of tablets containing 1-benzylpiperazine (BZP) (commonly sold as ecstasy) found hidden in an empty paint tin in the garden shed (count 1);

   (b)42.3 grams of a substance containing 7.06 grams of cocaine found hidden in an artificial pot plant in the dining room (count 2);

   (c)2.95 grams of a substance containing 0.51 grams of cocaine and 8.45 grams of a substance containing Mephedrone (an ecstasy like substance) contained in plastic bags found hidden in an ‘Easy Mac’ box in the kitchen pantry (counts 3 and 4);

   (d)two unlicensed Class D firearms being a semi-automatic repeater rifle and 12 gauge pump action shotgun found hidden behind an empty bookshelf in the garden shed.

   [5]    All weights referred to herein are rounded to the nearest 1/10^th of a gram.

3. The facts, issues, Judge’s reasons for verdict and submission by the parties on appeal are summarised in the reasons of Lovell and Hinton JJ.

4. A feature of the trial was that the prosecution case was entirely documentary. Not one witness gave evidence at the trial.

5. The application for permission to appeal raises the following issues:

   1.Did the Judge err in admitting or using invoices and other documents found at the subject premises (ground 9)?

   2.Did the Judge err in admitting evidence relating to other counts in relation to counts 1, 2, 5 and 6, engage in impermissible propensity reasoning or fail to give himself the directions required by section 34R of the Evidence Act 1929 (SA) (grounds 6 and 7)?

   3.Are the verdicts unreasonable or unable to be supported having regard to the evidence (grounds 1 to 5)?

   4.Did the Judge provide inadequate and/or irrational reasons for the findings said to support the verdicts (ground 8)?

   5.If error is established (other than on grounds 1 to 5), can and should the proviso be applied?

   The invoices and other documents: ground 9

6. Ground 9 is that the Judge erred in admitting documents located in the Glandore property and the Chrysler sedan outside the property when there was insufficient connection between the documents and the applicant and the use of the documents was dependent on the testimonial use of the documents involving a hearsay purpose.

   Background

7. The prosecution tendered at trial documents proving that the applicant and Ms Hunt had a son, Arman, born in October 2009 and had been in a relationship since at least 2007 (notwithstanding that the applicant was married and generally resided with his wife and two children at Eden Hills). The prosecution tendered documents showing that in 2010 Ms Hunt was living at Richmond, in May 2010 she entered into a contract to purchase the Glandore property and in June 2010 settlement took place with the transferees being her parents.

8. The prosecution tendered declarations by police officers who attended at the Glandore premises on 7 January 2011 stating that they observed extensive renovations being undertaken, some rooms having been completed and others uncompleted, and numerous items of new furniture and appliances. They found clothing and accessories belonging to a male and female in each half of a wardrobe and drawers in the bedroom, male toiletries in the bathroom, and male steroids in a medicine cabinet, the pantry and the refrigerator in the kitchen.

9. The prosecution tendered statements by police officers that they found two toothbrushes in the bathroom which they submitted together with the steroid bottle from the medicine cabinet for DNA testing and a statement by a Forensic Science South Australia officer of testing that demonstrated a match between DNA found on the toothbrush and steroid bottle and the DNA of the applicant. The prosecution tendered statements by police officers that they found water bottles in the bedroom and kitchen which they submitted for fingerprint testing and a statement by a Forensic Science South Australia officer of testing that demonstrated a match between fingerprints found on the water bottles and the fingerprints of the applicant.

10. The prosecution tendered numerous photographs obtained from the premises and from Ms Hunt’s phone showing the applicant with and without Ms Hunt. The prosecution also tendered documents that proved that the Chrysler sedan parked in the driveway at the premises was registered in the name of the applicant’s wife.

11. The evidence summarised above demonstrated a clear connection between the applicant and Ms Hunt, the Glandore premises and the Chrysler sedan. Given that evidence, while the documents the subject of this appeal ground added a little colour to the picture, they cannot be regarded as critical in respect of the connection between the applicant and Ms Hunt, the Glandore premises and the Chrysler sedan.

    The documents

12. The prosecution tendered at trial two groups of documents found by the police at the Glandore premises on 7 January 2011 (the documents).

    1.One bundle comprised documents found in the bedroom contained within two “Cocksauld” brand folders and two bundles comprised documents found in the dining room in a sideboard in a leather diary and striped box (which became exhibits P9A, P10A and P11A respectively).

    2.One bundle comprised documents found in the glove box of the black Chrysler sedan parked in the driveway registered in the name of the applicant’s wife (which became exhibit P19A).

13. The Judge admitted as against the applicant only those documents that contained his name or telephone number (the admitted documents). The Judge’s description of the admitted documents found in the house (with emphasis added in bold to the ostensible references to the applicant) are set out in the following table:

Date	Document Title	Description of Document
12/8/2010	Cash Sale Tax Invoice	Bone Timber Industries in the sum of $1172.80.  Name Kenan typed “Hunt” handwritten. 8 Almond Grove Glandore. Contact mobile [phone].
13/8/2010	Quote	Statesmen Windows in the name of Kenan Hunt, 0432162572 of 8 Almond Grove Glandore. Total quote $2073.  $1000 deposit paid remaining balance to be paid in cash on delivery.
16/9/2010	Contract for Sale	Relates to sale of Audi A6 in the name of Laura Hunt of 19 Clark Avenue Glandore mobile [phone].  $1000 deposit paid in cash.
11/12/2010	Tax Invoice	De Lights for $680 in the name of Keno mobile [phone].
03/08/2009	Contract for Sale of Used Motor Vehicle	Contract between Murray Bridge Motor Company Pty Ltd and Wheel Worx Pty Ltd of 71-73 Port Road, Thebarton business phone [phone] mobile [phone], for $66100.
16/08/2010	Tax Invoice	Harvey Norman Bedding Marion for $9500 in the name of Peter Hunt, 8 Almond Grove Glandore, 0432162572. Cash – in instalments.  Final instalment made 22/12/2010 Items purchased: ·    Blue Ray Device ·    Accusound 5.1 Blk Piano ·    Onkyo HDMI 1.4A ·    1M HDMI Cable ·    Monster Power ·    Convoy MC 2M Digital Fibre ·    2m HDMI Cable ·    Monster 30m XP Speaker Cable ·    Monster MC XP ·    Outdoor Speakers ·    Mobile Installation Services ·    Monster Aerial Cable ·    Dining Table ·    Buffet ·    10 x Alabama Dining Chair Brown ·    Byron Bay Small Coffee Table
26/09/2010	Tax Invoice	Harvey Norman Bedding Marion for $3,750 In the name of Peter Hunt, 19 Clark Avenue Glandore, 0432162572.  $1,000 cash deposit paid. Items: ·    Toscana King Bed ·    Toscana 11 Drawer Chest ·    Toscana 3 Drawer Bedside
27/09/2010	Tax Invoice	Harvey Norman Bedding Marion for $1,456 (cash payment) in the name of Peter Hunt, 19 Clark Avenue Glandore, 0432162572 Items: ·    JVC Everio Full HD Black ·    Sony DSCTX%
9/12/2010	Order Form	Power Dekor Supply and install - 12mm Hickory Gloss Underlay Trims. $7,198 cash payment in the name of Kenan Becirovic, 8 Almond Grove Glandore, 0432162572.
23/12/2010	Tax Invoice	Harvey Norman Bedding Marion for $3,750 cash payment in the name of Peter Hunt, 19 Clark Avenue Glandore.  0432162572
16/9/ ??	Cash Receipt	Wavelength Developments trading as “Autos Sell” 106 Finniss St, Oaklands Park 5046. $1,000 cash being For “A6 part payment” in the name of Kenan Becirovic.

1. The Judge’s description of the admitted documents found in the Chrysler sedan (with emphasis added in bold to the ostensible references to the applicant) are set out in the following table:

Date	Document Title	Description of Document
Free Accident Tow Card	Document states: “Cost of Tow in the metropolitan area....to be charged to Adrian Brian Automotive” in the name of Kenan and Abby Becirovic, 9 Wilunga Street, Eden Hills.
Service and Warranty Handbook	Relates to Rego No S189ACK Customer Statistics: “Private-Couple” Kenan and Abby Becirovic, 9 Wilunga Street, Eden Hills.
21/04/2009	Service Repair Order	Invoice for “Paint Boot Lid as Required” Vehicle Reg no: “AGRESSA” From Adrian Brien Automotive 1305 South Road St Marys 5042 $250 cash terms.  Kenan Becirovic and Abby, 9 Wilunga Street, Eden Hills, 0421595225.
01/05/2009	Receipt	Adtrans Automotive Group Pty Ltd, Melrose Park SA 5039 Customer A/C: 59075.  $250 credit card payment.  Kenan Becirovic & Abby, 9 Wilunga Street Eden Hills.
20/09/2010	Prescription and Repeats Document	Xanax Tr-Score Tab 2mg 50 Dr. Zuvela Marko Chemist: Carrig Chemists Chemplus Westfield Marion, Oaklands Park 5046 for Kenan Becirovic, 9 Wilunga Street, Eden Hills.
20/09/2010	Prescription and Repeats Document	Lexotan Tablets 6mg 30 Chemist: Priceline Plympton 392 Marion Road Plympton 5038 for Kenan Becirovic, 190/12 Mosely Street, Glenelg.

The voir dire

1. At the outset of the trial, the Judge conducted a voir dire to determine numerous issues, including applications for severance and separate trials and applications to exclude evidence of the search by the police on 7 January 2011. The voir dire extended over six days. The admissibility of the documents was a relatively minor issue compared to other issues argued on the voir dire. At the end of the voir dire, the Judge made rulings on all of the voir dire issues.

2. The prosecutor identified two uses the prosecution sought to make of the documents as against the applicant:

   1.They demonstrated a degree of connection between the applicant on the one hand and Ms Hunt and the Glandore premises or the Chrysler sedan on the other hand (the connection purpose).

   2.They demonstrated expenditure by the applicant of large amounts of cash on various items, which in turn was indicative of drug trafficking because drug trafficking has a tendency to generate large amounts of cash and unexplained wealth (the cash purpose).

3. The use of documents sought to be used for the connection purpose fell into three categories:

   (a)invoices and other documents found in the house relating to items generically (generic documents);

   (b)invoices found in the house that on the prosecution case matched goods independently proved to have been installed in the Glandore premises at a certain time as part of the renovation and furnishing of the premises (establishment documents);

   (c)invoices and other documents found in the Chrysler sedan relating to the vehicle or the applicant (Chrysler documents).

4. The Judge was taken to the decision of this Court in R v Romeo[6] in which this Court applied the decision of the House of Lords in Myers v Director of Public Prosecutions[7] and cases which followed it[8] that at common law evidence of a document is not admissible as evidence of the truth of its contents and this applies for example to a car manufacturer’s record of engine numbers stamped on its engine blocks and to an invoice showing the identity of the purchaser of invoiced goods.

   [6] (1982) 30 SASR 243.

   [7] [1965] AC 1001.

   [8]    Patel v Comptroller of Customs [1966] AC 356; Re Gardner; ex parte RJ Gardner Pty Ltd (1967) 13 FLR 345; R v Kelly (1975) 12 SASR 389.

5. The prosecutor relied on section 45A of the Evidence Act 1929 (SA) (the Evidence Act) for admission of the documents.[9] Section 45A rendered an ostensible business document admissible as evidence of the truth of its contents without further proof. Section 45A provided:

   [9] Section 45A has since been repealed and replaced by section 53 in almost identical terms with effect from 4 April 2016.

   45A Admission of business records in evidence

   (1)An apparently genuine document purporting to be a business record—

   (a)     shall be admissible in evidence without further proof; and

   (b)     shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).

   (2)A document shall not be admitted in evidence under this section if the court is of the opinion—

   (a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or

   (b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or

   (c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.

   (3)For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.

   (4)In this section—

   business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;

   business record means—

   (a)     any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or

   (b)     any reproduction of any such record by photographic, photostatic, lithographic or other like process.

6. It is to be observed that subsection 45A(1) renders admissible any document that purports to be a business record if it is apparently genuine. If this criterion is satisfied, the document is admissible without more. Subsection 45A(2) confers on the court a discretion to exclude admission of the document on one of three grounds (a statutory embodiment of or variation on the common law general unfairness (Christie) discretion) but the onus of persuasion on exclusion lies on the party opposing tender of the document.[10]

   [10]   Burnside Sub-Branch RSSILA Incorporated v Burnside Memorial Bowling Club Inc (1990) 58 SASR 324 at 339 per Jacobs, Cox and Matheson JJ.

1. The documents are all paradigm business records and there was no suggestion at trial otherwise.

2. The Judge initially raised with the prosecutor a question whether under section 45A the prosecution needed to satisfy the court that the maker of the document could not be called to give evidence[11] but the prosecutor later referred the Judge to subsection 45A(2) and demonstrated that it is to be admitted unless a ground is established to reject it (ie it is an exclusionary provision).

   [11]   [T221/38].

3. In relation to the documents tendered for the generic purpose, the Judge accepted that the references in the admitted documents to the applicant by name or phone number were relevant to prove a general connection between the applicant on the one hand and Ms Hunt and the Glandore premises on the other hand. It was not submitted by the applicant that the admission of the documents should be excluded pursuant to subsection 45A(2)(a) because the maker of the document could and should be called by the prosecution or otherwise. The submissions made by the applicant in opposition to admission of the documents were based on relevance, ie they had no probative value because there was no evidence how or why the applicant’s name or phone number came to be placed on the documents or what that meant.

4. In relation to the use of the documents for the establishment purpose, the Judge said that the mere admission into evidence of an invoice for an item could not prove that the item was present at the Glandore premises. The Judge said that, if there was independent proof (by observations by the police or photographic evidence) that an item shown on an invoice was installed in or otherwise present in the Glandore premises on a particular date (what the Judge called “a temporal connection”), the proof of presence might demonstrate a connection between the applicant and the item’s presence at the premises on that date. The applicant objected to admission of the documents for this purpose on the ground of relevance but made no submission that the admission should be excluded in the exercise of the discretion pursuant to subsection 45A(2).

5. In relation to the use of the documents for the cash purpose, the Judge said that the invoices on their face were incapable of proving that cash had been paid for an item shown on an invoice or that cash was paid by the applicant. The Judge said that, if there was independent proof of payment of cash by the applicant, such proof might enable use of the documents for the cash purpose. The use of the documents to prove unexplained wealth was strenuously opposed by the applicant. Again, the ground of opposition was lack of relevance. It was not submitted by the applicant that the admission of the documents should be excluded in the exercise of the discretion pursuant to subsection 45A(2)(a). The Judge did not ultimately use the documents for the cash purpose.

6. The applicant did not even hint at seeking exclusion of the documents pursuant to subsection 45A(2). Any such application would have been bound to fail. The documents were paradigm business documents recording transactions that the salespersons would have had no prospect of recalling. It would have been pointless to require them to be called to give evidence. It is no doubt for this reason that the applicant did not seek exclusion of the documents pursuant to subsection 45A(2).

   The ruling

7. The Judge ruled at the end of the voir dire that the admitted documents would be admitted. The Judge confirmed in the ruling that the admitted documents were incapable of proving that payment was made for an item in cash or by the applicant and this would need to be proved by independent evidence. The Judge expressed the ruling in the following terms:

   As to the various documents comprising mostly invoices and receipts, ALM36 will be admitted in aid of the proof of the relationship between the accused and connection with the premises. But I would not allow proof of the underlying fact of a cash payment unless that cash payment can be proved by other associated and independent means.

8. Although the Judge did not say that the documents were admitted pursuant to section 45A, this was necessarily the basis of their admission. This is evident from the submissions made by the parties on the voir dire coupled with the fact that neither the applicant nor Ms Hunt at any stage submitted that the Judge should exclude admission pursuant to subsection 45A(2) or even referred to that provision coupled with the fact that the reason that the Judge limited the use of the documents (absent independent evidence) was based on probative value/relevance rather than subsection 45A(2).

9. The Judge’s ruling that the documents did not evidence payment in cash or payment by the applicant and hence could not be used for the cash purpose is of course not challenged on appeal but was plainly correct. Retailers generally describe a sale as a “cash sale” if it is not a sale on credit terms (such as on a 30 day account for business purchasers or “no deposit interest free” terms for consumers). Describing a sale as a “cash sale” is not evidence that the customer paid cash as opposed to a credit card. All of the invoices relied on by the prosecutor, as the applicant pointed out in submissions to the Judge, were addressed to Ms Hunt or her parents and the mere fact that the applicant’s name or telephone number was also recorded in the invoice was no evidence that he was the purchaser or paid the purchase price.

   The use of the documents in the reasons for verdict

10. The Judge’s reasons for verdict are consistent with the ruling. For example, the Judge consistently said that the documents could not be used for the cash purpose. In relation to the admitted documents that had been found in the striped box, the Judge said:

    These are admissible against both accused to demonstrate connection with each other insofar as their names or telephone numbers appear thereon.  They are not admissible to prove Mr Becirovic paid the invoice(s) himself, or that this was done in cash.  They are further admissible as proof of the connection of one or both to the Glandore property, as and when an identifiable temporal nexus is established.  Those connections are identified later.

11. The Judge explained why the generic documents had probative value and were thereby relevant. The Judge said that:

    … the evidence of the contents of the documents in Tables B, C and D above, in their extraordinary conjunction with so much other evidence located around the residence referable to Mr Becirovic, are probative of the fact that they must be associated with him as a matter of ordinary human experience and as a matter of coincidence.  The principle is expressed by Wigmore as applying where extraordinary evidence ‘consists of particular facts of human conduct or external events which are of themselves only minor and additional and are not the sole mode of proof for the matter in issue’: Wigmore on Evidence, 34th Ed d 1904.

    This is a process of reasoning independent ‘of, the number of items of circumstantial evidence but the causal relationship … between those items’: R v Tartaglia.  Likewise when speaking of the added strength of proof through ‘reciprocal confirmation’:

    … a number of independent circumstances point to the same conclusion, the probability of the justness of that conclusion is not merely the sum of the simple probabilities of those circumstances, but the multiplied or compound ratio of them.

    This type of evidence is a species of real or original circumstantial evidence when used in this way.  This was the very point made by King CJ in R v Wilson and Morrison, that as so used it ‘may be viewed as objective facts which tend, as part of a circumstantial chain, to establish their identity’, and in R v Bilick and Starke, as ‘evidence in the nature of connection’.[12]

    [12]   Footnotes omitted.

12. The Judge explained in similar terms why the Chrysler documents had probative value and were thereby relevant. The Judge said:

    Much the same process of reasoning applies to an analysis of Mr Becirovic’s potential connection to the Chrysler in the drive way.  Three documents in the glove-box make reference to ‘Kenan and Abby Becirovic’ of the Eden Hills address.  The glove-box contained two prescription medications in his name.  The registration and insurance documents were in his wife’s name.  These materials are exactly the kind of documents you would expect to find in the glove-box if it was regularly used by Mr Becirovic, and as such serve to support the conclusion that this vehicle was associated with him, without requiring proof of the underlying assertions contained within those documents.  Given the earlier primary findings in respect of his close and personal connection with Ms Hunt and the Glandore property, the only reasonable conclusion is that he left the Chrysler there.  It seems hardly plausible that his wife would take and leave it at the place of the abode of her husband’s mistress, assuming she was aware of that relationship, which is by no means apparent, or that Ms Hunt would be responsible for two large motor vehicles.

13. The Judge explained why the establishment documents had probative value and were thereby relevant to proof that the applicant was somehow associated with specific items that had been purchased and installed at the premises. The Judge said:

    Several documents found in the two Cocksauld folders and in the striped box, are connected to the Glandore property by independent original evidence, linking them to it… 

    …

    It is as apparent as it can be from the combination of circumstances marshalled above, that there is such a close interrelated nexus in point of time and in point of circumstance as of 7 January 2011, leading to the inevitable conclusion that the specified items in these specific documents were delivered and installed in the Glandore premises.  The combined coincidences are simply too great to allow for any reasonable view of matters to the contrary…

    The reasoning process is then, no different from that explained by Cairns LC in Belhaven Stanton Peerage:

    My Lords in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together.  You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner.  But on the other hand, you will have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.[13]

    [13]   Footnotes omitted.

14. In the course of these explanations, the Judge made observations that the documents were not being used in an “impermissible hearsay” fashion. While the Judge’s idiosyncratic language is apt to be confusing, the fact remains that the documents had been admitted pursuant to section 45A, no submission had been made by the defendants seeking their exclusion pursuant to subsection 45A(2) and the documents were plainly admissible and capable of being used by the Judge in the manner manifested in the reasons for verdict.

    The argument on appeal

15. The applicant’s primary contention on appeal is that the admitted documents were not admissible because they were not relevant. The applicant points to the fact that the prosecution led no evidence as to how his phone number or name came to be on any of the invoices and submits that documentary evidence is inadmissible unless a sufficient connection between the document and the accused can be established. The applicant submits that the mere presence of his telephone number or name on the invoices did not establish any connection with him as he did not sign or acknowledge any of the invoices. They could therefore not be probative at all of any connection with the Glandore premises.

16. This contention must be rejected. It is to be accepted, as the Judge accepted, that the invoices are not probative of the applicant purchasing or paying for the goods but the presence of his name and/or phone number on the invoices is probative that he had some connection, however slight, with the ordering of the goods in question. The documents are therefore relevant. While their weight is limited and they were not necessary to establish the connection because it was already abundantly established by the evidence summarised at [8] to [11] above, the Judge did not err in concluding that the documents were relevant and therefore admissible.

17. The applicant makes an alternative contention that the documents were impermissibly used by the Judge for a hearsay purpose. I accept that the documents were in one sense necessarily used for a hearsay purpose because the authors were not called to give evidence. However, a document’s use for a hearsay purpose is permitted by section 45A of the Evidence Act. The applicant submits that “in the course of argument the Judge indicated that he would not admit [the documents] as business records because he was of the opinion that (in the words of s 45A(2)) ‘the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document’”. This submission must be rejected for the reasons given above. A perusal of the transcript demonstrates that, despite initial concern expressed to the prosecutor, the Judge never refused to admit the documents because the author could and should be called and the Judge was never invited to exclude admission of the documents under subsection 45A(2).

18. This ground of appeal is not made out.

    Discreditable conduct evidence

19. Grounds 6 and 7 both address discreditable conduct evidence by way of cross-admissibility between counts charged.

    Admissibility and use: ground 6

20. Ground 6 is that the Judge erred in admitting evidence relating to other counts for a propensity purpose in relation to counts 1, 2, 5 and 6 and in engaging in impermissible propensity reasoning in respect of such evidence contrary to sections 34P and 34Q of the Evidence Act.

21. The Judge first found that counts 3 (trafficking) and 4 (as to the alternative of simple possession) relating to the cocaine and Mephedrone found in the Easy Mac box in the kitchen pantry were proved beyond a reasonable doubt. No complaint is made on appeal that the Judge admitted or used evidence relating to other counts in finding these two counts proved beyond reasonable doubt against the applicant.

22. The Judge then considered count 2 which related to the large quantity of powder containing cocaine hidden in the plant in the dining room. One possibility consistent with innocence that the Judge considered was that a third party (neither the applicant nor Ms Hunt) had hidden the cocaine in the pot plant. This was obviously inherently unlikely but the unlikelihood of a third party hiding drugs around the premises increased if there were two drugs (those subject of count 4 which the Judge had already found proved against the applicant and those the subject of count 2 which the Judge was considering) hidden around the premises.

23. The Judge next considered count 1 which related to the large quantity of BZP (commonly sold as ecstasy) found in a paint tin in the garden shed. Again, in considering the possibility that a third party had hidden the BZP in the paint tin, the Judge considered that it was unlikely in the extreme that a third party had hidden drugs in three separate places around the premises (those subject of counts 2 and 4 which the Judge had already found proved against the applicant and those the subject of count 1 which the Judge was considering). In this respect, the Judge said:

    It is here that the findings of guilt on the previous charges become relevant, except for that on count 3 for reasons already explained.  Once it is acknowledged that he is in the joint possession of the premises, and to have known specifically of the cocaine in the kitchen and dining room and the 4-MMC [Mephedrone] in the box from the pantry cupboard, there is no other logical explanation other than that he was immediately associated with the drugs in the shed.  It is highly implausible that a complete stranger would coincidentally secrete such valuable drugs in such an exposed place.  The only explanation therefore is that Mr Becirovic was responsible for putting them there deliberately, knowing exactly what they were.

    To so reason is not to use the earlier findings of guilt on counts 2 and 4 on an impermissible propensity basis.  Rather, it is to acknowledge that those conclusions are circumstantially highly probative of guilt as to count 1, because of the extreme coincidental improbability that a stranger was responsible for putting such valuable drugs in the rear shed.  Any ‘prejudice’ here lies wholly in proof of guilt, that is the presence of the drugs in three places controlled by him occurring coincidentally: R v Zhang.

24. Finally the Judge considered counts 5 and 6 which related to the firearms in the garden shed. Again it was inherently unlikely that a third party would have hidden firearms in the shed but this unlikelihood increased if not only firearms but also valuable drugs were hidden in the shed. The fact that the Judge had already found count 1 proved beyond reasonable doubt involving the BZP tablets in the same shed was circumstantially relevant to the question whether the applicant was responsible also for the firearms. In this respect, the Judge said:

    As to Mr Becirovic, the same process of reasoning applies as it does with respect to count 1, that is through the medium of coincidence.  There is no reasonable possibility that he was not responsible for the tablets.  It is but a small inference from there that he must be associated with those firearms, on the same improbability basis that it is highly unlikely anyone else would have hidden them in the shed. 

25. The applicant’s principal contention under this ground is that the Judge adopted propensity reasoning. This contention must be rejected. The Judge only used the findings on the counts already found proved beyond reasonable doubt to exclude the reasonable possibility that the drugs or firearms (as the case may be) were hidden by a third party. This did not involve the conduct of the applicant at all, let alone any propensity by the applicant to act in a particular way.

26. The applicant contends that the evidence relating to the Mephedrone the subject of count 4 had insufficient probative value in connection with the charge of possession of cocaine and BZP the subject of counts 2 and 1 respectively because they are different types of drugs. However, the Judge was addressing the likelihood of a third party hiding drugs generically in the premises and for this purpose it did not matter whether the drugs were cocaine, ecstasy or Mephedrone.

27. The applicant contends that any permissible use of the evidence could not be sufficiently clearly differentiated from an impermissible use. However, the permissible use (unlikelihood of a third party hiding drugs or weapons in multiple locations in the premises) has nothing to do with the impermissible use (the applicant committed one offence, therefore he is likely to have committed another offence).

28. This ground of appeal is not made out.

    Directions as to use: ground 7

29. Ground 7 is that the Judge failed to direct himself at all, or in the alternative adequately, in accordance with the requirements of subsection 34R(1)[14] of the Evidence Act and did not adequately identify the evidence that he was using (as opposed to his own prior findings) or the permissible or impermissible uses of such evidence.

    [14]   Ground 7 refers also to subsection 34R(2) but this subsection has no relevance and was not relied on during the hearing of the appeal.

30. Subsection 34R(1) of the Evidence Act provides:

    34R—Trial directions

    (1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.

1. First the applicant contends that the Judge did not identify the particular evidence that he was using but instead referred to his own earlier conclusions in respect of other counts. This is a pedantic complaint. Whenever a finding that an offence the subject of one count has been proved is relevant to whether another count has been proved, it goes without saying that it is the evidence giving rise to the finding of guilt of the former count that is relevant to the latter count. In each case, the Judge identified the evidence relating to the former count in making the finding of guilt of that count.

2. Secondly the applicant contends that the Judge did not identify how he used the evidence of discreditable conduct and hence did not identify its permissible use. This contention is a repeat of the contention advanced in respect of ground 6 and must be rejected for the same reason. The Judge clearly explained the permissible use of the evidence as going to the inherent unlikelihood of a third party hiding drugs in multiple places in the premises, which the Judge described idiosyncratically as “coincidence”.  For the reasons given above, this was a clearly explained and manifestly permissible use of the evidence.

3. Thirdly the applicant contends that the Judge did not identify the impermissible use of the evidence, ie how it may not be used. This again is a pedantic complaint. When the Judge’s reasons are read in context, the Judge did identify the impermissible use.

4. The Judge addressed sections 34P and 34R under the heading “Evidentiary considerations”. The Judge referred to the discreditable conduct evidence having a probative value substantially outweighing the prejudicial effect. The Judge said:

   They are not admitted for the impermissible purpose of proving past dealing in unlawful drugs, or for any propensity purpose.

5. When the Judge reached consideration of the question whether each separate count had been proved beyond reasonable doubt, the Judge referred back to “an impermissible propensity use”. In respect of count 1, in the passage extracted at [43] above, the Judge said:

   To so reason is not to use the earlier findings of guilt on counts 2 and 4 on an impermissible propensity basis. 

6. The Judge identified the impermissible use of the discreditable conduct evidence as being propensity reasoning that because the applicant dealt in one lot of drugs he was more likely to be guilty of dealing in another lot of drugs. It is clear that the Judge did not engage in any form of impermissible reasoning or adopt any impermissible use of the discreditable conduct evidence. In the context of a trial by Judge alone, the Judge adequately identified and explained both the permissible and impermissible uses of the evidence of guilt on one count in respect of another count.

7. This ground of appeal is not made out.

   Verdict unreasonable: grounds 1 to 5

8. Grounds 1 to 4 are that the verdicts on counts 3/4, 2, 1 and 5/6 respectively are unreasonable and incapable of being supported having regard to the evidence. Ground 5 is that the Judge erred in law in finding that the applicant was in joint possession, control and management of the Glandore premises.

9. I agree with the reasons of Lovell and Hinton JJ for rejecting these grounds.

   Adequacy of reasons: ground 8

10. Ground 8 is that in relation to each count the Judge provided inadequate and/or irrational reasons for the findings said to support the convictions. This ground is advanced in the alternative to grounds 1 to 5.

11. The applicant makes seven contentions (some of which overlap) why the reasons were inadequate and/or irrational, which contentions apply to differing counts.

    Reasons in respect of counts 3 and 4

12. The applicant’s first and primary contention applicable to counts 3 and 4[15] is that the Judge’s reasons proceeded on the footing that the applicant was to be found guilty of each count unless it was a reasonable possibility that some third party was responsible for the drugs the subject of the count, thereby ignoring the possibility that Ms Hunt was solely responsible for the drugs.

    [15]   This contention is also made in respect of counts 1 and 2.

13. As observed above, when the Judge came to consider whether each charge had been proved beyond reasonable doubt, the Judge started with counts 3 and 4. Because the cocaine and Mephedrone the subject of counts 3 and 4 were both found in the same Easy Mac box in the kitchen pantry, it was accepted at trial and it is accepted on appeal that they were bound together in the sense that each defendant was either guilty of both counts or not guilty of either count.

14. The Judge first considered whether counts 3 and 4 being trafficking (or the statutory alternatives[16] of possession of controlled substances) were proved beyond reasonable doubt against Ms Hunt. The Judge found that trafficking of the Mephedrone and possession of the cocaine were proved beyond reasonable doubt against Ms Hunt. In reaching this conclusion, the Judge relied on matters including Ms Hunt’s occupancy of the house and her DNA having been found on the bags containing the Mephedrone. No challenge is made on appeal to the Judge’s findings in relation to Ms Hunt.

    [16]   Controlled Substances Act 1984 (SA) section 33R.

15. The Judge then turned to consider whether trafficking or the alternative charge of possession was proved against the applicant. The Judge found that trafficking of the Mephedrone and possession of the cocaine were proved beyond reasonable doubt against the applicant. In reaching this conclusion, the Judge relied on matters including the applicant’s joint occupancy of the house, the extent of his control over and movements throughout the house and the fact that a male steroid was found in a Quick Oats box adjacent to the Easy Mac box containing the Mephedrone and cocaine. The Judge found that the applicant placed the male steroid in the Quick Oats box which he placed next to the Easy Mac box. The Judge found:

    The Coles Quick Oats box on the top shelf of the kitchen pantry, placed immediately forward of the ‘Easy Mac’ cheese box, stored the two containers of the Sustanon male steroid.  Given the antecedent conclusion of Mr Becirovic’s close and intimate association with the home, the only inference open is that he placed them there himself for his own personal use.  It is unlikely in the extreme that testosterones were kept there other than by him.  That inference is reinforced by his DNA detected on the two containers from the medicine cabinet containing male hormones.  Once it is accepted that Mr Becirovic was in the joint possession of the premises and exercised control over them, and in light of the proof of his extensive movements throughout the home, there can be no doubt that he was aware of the drugs and knew what they were. 

16. The Judge specifically negated the reasonable possibility that someone other than the occupiers (ie Ms Hunt and the applicant) placed the drugs in the kitchen pantry.

17. The applicant submits that the Judge did not consider or exclude the reasonable possibility that Ms Hunt was solely responsible for the drugs because the Judge did not explicitly say so. I reject this submission. The Judge had already found that it was proved beyond reasonable doubt that Ms Hunt had possession of the drugs. This was the context in which the Judge considered whether it was proved beyond reasonable doubt that the applicant also had possession of the drugs. The very thing that the Judge was considering in the passage extracted at [65] above was whether it was proved that the applicant also had possession of the drugs in addition to Ms Hunt. The logical opposite of that proposition was that there was a reasonable possibility that it was only Ms Hunt who had possession of the drugs. In the circumstances, it would have been completely otiose for the Judge to have said that he was negating this reasonable possibility.

18. The applicant’s second contention applicable to counts 3 and 4[17] is that the Judge failed to consider the implications of his findings that Ms Hunt’s son probably slept in the same bedroom as her, that only one bed was slept in and that the applicant resided with his wife and family in Eden Hills. The applicant submits that the implication to be drawn is that it is unlikely that the applicant resided at or exercised control, management or care of the Glandore premises. The applicant submits that it was incumbent on the Judge to deal with circumstances that pointed away from the conclusion that the applicant had joint possession of the premises.

    [17]   This contention is also made in respect of counts 1 and 2 and also ostensibly counts 5 and 6.

19. This contention must also be rejected. First, contrary to the applicant’s submission, the Judge did not make a finding that only one bed was slept in and it is notable that the applicant does not give any reference to the Judge’s reasons for verdict in respect of any such finding. Secondly photographs of the bedroom tendered at trial showed a cot in which Arman obviously slept. Thirdly the fact that the applicant generally resided with his wife and family in Eden Hills is not inconsistent with his spending nights with Ms Hunt and the evidence was overwhelming that he did so. Fourthly this submission was not put to the Judge by the applicant’s counsel at trial, being the same counsel on appeal.

20. This ground of appeal is not made out in respect of counts 3 and 4.

    Reasons in respect of counts 1 and 2

21. The applicant’s first and primary contention applicable to counts 1 and 2 is that the Judge erroneously treated his finding that Ms Hunt was not proved beyond reasonable doubt to have been in possession of the drugs as tantamount to a finding beyond reasonable doubt in the case against him that she was not in possession of the drugs. The applicant also submits that the Judge failed to exclude the reasonable possibility that Ms Hunt was solely in possession of the drugs.

22. In relation to count 2 being trafficking of the cocaine hidden in the pot plant in the dining room, the Judge first considered whether it was proved beyond reasonable doubt against Ms Hunt. The Judge concluded that it was not proved beyond reasonable doubt that Ms Hunt knew of the existence of the cocaine in the pot plant.

23. The Judge then turned to consider whether it was proved beyond reasonable doubt that the applicant was guilty of trafficking of the cocaine. The Judge explicitly eliminated the reasonable possibility that a third party had placed the cocaine in the pot plant but did not address whether there was a reasonable possibility that Ms Hunt had done so. The Judge said:

    With respect to Mr Becirovic, in light of the antecedent findings already made, it is not reasonably open to infer that anyone else was responsible for such a valuable drug other than him.  …  It is quite simply unlikely in the extreme as a matter of common sense that another person would coincidentally store this valuable drug where it was found.  Since the remaining elements of this offence are proven, he must be found guilty of count 2.

24. In relation to count 1 being trafficking of the BZP hidden in the paint tin in the garden shed, the Judge first considered whether it was proved beyond reasonable doubt against Ms Hunt. The Judge concluded that it was not proved beyond reasonable doubt that Ms Hunt knew of the existence of the paint tin or its contents.

25. The Judge then turned to consider whether it was proved beyond reasonable doubt that the applicant was guilty of trafficking of the BZP. The Judge explicitly eliminated the reasonable possibility that a third party had placed the BZP in the paint tin in the shed but did not address whether there was a reasonable possibility that Ms Hunt had done so. The Judge said:

    Matters stand quite differently in the case of Mr Becirovic.  A temporal link to him is that involving the same substance found in the medicine cabinet, albeit in a different form (pills and powder).  It is here that the findings of guilt on the previous charges become relevant, except for that on count 3 for reasons already explained.  Once it is acknowledged that he is in the joint possession of the premises, and to have known specifically of the cocaine in the kitchen and dining room and the 4-MMC in the box from the pantry cupboard, there is no other logical explanation other than that he was immediately associated with the drugs in the shed.  It is highly implausible that a complete stranger would coincidentally secrete such valuable drugs in such an exposed place.  The only explanation therefore is that Mr Becirovic was responsible for putting them there deliberately, knowing exactly what they were.

26. As a matter of logic, the Judge either segued from a finding that it was not proved beyond reasonable doubt that Ms Hunt was in possession of the BZP in the paint tin to a finding that it was proved beyond reasonable doubt that she was not in possession thereof or the Judge gave no reasons for finding that it was proved beyond reasonable doubt that Ms Hunt was not in possession (to the exclusion of the applicant) of the BZP in the paint tin. It follows that the Judge’s reasons for verdict on counts 1 and 2 are inadequate because ultimately there is no explanation for exclusion of the reasonable possibility that Ms Hunt was in sole possession of the BZP in the paint tin. The Director concedes that this is the case.

27. Given this conclusion, it is not necessary to address the other complaints made by the applicant in respect of counts 1 and 2 but I do so briefly for the sake of completeness.

28. The applicant contends that the Judge’s findings that Ms Hunt lacked the financial means to purchase large quantities of drugs was illogical because it ignored the obvious possibility that she intended to deal in such drugs and had obtained them on credit and the Judge’s finding that she had no reason to go to the shed was illogical because it ignored the obvious possibility that she had been to the shed in order to place the BZP there. The applicant submits that the Judge gave no reasons for excluding these possibilities in the case against him.

29. It may be accepted that the Judge had no basis to make any finding about Ms Hunt’s financial means or reason to go to the shed as reasons to doubt that she was in possession of the drugs in question. This does not avail the applicant because the Judge had no reason to make any equivalent findings in respect of him or use them in his favour.

30. The applicant submits that the Judge provided no reasons for his apparent finding that the BZP found in the medicine cabinet belonged to the applicant, which the Judge then used when finding beyond reasonable doubt that the applicant was in possession of the BZP tablets in the shed. The applicant submits that the Judge made no finding that the BZP found in the medicine cabinet belonged to the applicant.

31. The Judge referred to the applicant’s DNA being found on a container found in the medicine cabinet, but the container contained methandrostenolone (a male hormone) rather than BZP which was found in another container in the medicine cabinet. The Judge evidently confused the two containers and made an error of fact. This is not an inadequacy of reasons but a simple error of fact.

32. This ground of appeal is made out in respect of counts 1 and 2.

    Reasons in respect of counts 5 and 6

33. The Judge referred to the rebuttable presumption created by subsection 5(14) of the Firearms Act 1977 (SA) (the Firearms Act) which provided:

    (14)For the purposes of this Act (other than Part 3 Division 2A), a person possession of a firearm if—

    (a)     the person has custody of the firearm or has the firearm in the custody of another; or

    (b)     the person has and exercises access to the firearm; or

    (c)     the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.

    (15)   However, subsection (14)(c) does not apply if the person establishes that—

    (a)     he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft, or

    (b)     the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.

34. The Judge first considered whether Ms Hunt had rebutted the presumption. The Judge was satisfied (notwithstanding that she did not give evidence) on the balance of probabilities that she did not know and could not reasonably be expected to have known that the firearms in the shed were on the premises for essentially the same reasons as the Judge found that she was not proved to have been in possession of the BZP in the shed.

35. The Judge then turned to consider the case against the applicant. The Judge found that the applicant had “care of the premises” and accordingly the presumption crated by subsection 5(14) applied. The Judge found that the applicant had not rebutted the defence under section 5(15)(a) because he had not established that he did not know and could not reasonably be expected to have known that the firearms were on the premises. The Judge found that the applicant had not proved the general defence under section 36A that “the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence”.

36. The Judge found that in any event the prosecution had proved beyond reasonable doubt that he was in possession of the firearms. The Judge said:

    As to Mr Becirovic, the same process of reasoning applies as it does with respect to count 1, that is through the medium of coincidence.  There is no reasonable possibility that he was not responsible for the tablets.  It is but a small inference from there that he must be associated with those firearms, on the same improbability basis that it is highly unlikely anyone else would have hidden them in the shed.

37. The applicant makes the same contention in respect of counts 5 and 6 as he makes in respect of counts 1 and 2 that in the passage extracted in the previous paragraph the Judge erroneously treated his finding that Ms Hunt was proved on the balance of probabilities not to have been in possession of the firearms as tantamount to a finding beyond reasonable doubt in the case against him that she was not in possession of the firearms. The applicant also submits that the Judge failed to exclude the reasonable possibility that Ms Hunt was solely in possession of the firearms. This contention must be upheld for the same reasons as in respect of counts 1 and 2. However this error will not be material, and will not avail the applicant, unless error is also demonstrated in the Judge’s alternative reasoning based on subsections 5(14) and (15) of the Firearms Act.

38. The applicant contends under grounds 4 and 5 that the evidence was incapable of supporting the Judge’s conclusion that he had control, care and management of the premises. That contention must be rejected for the reasons given by Lovell and Hinton JJ. The applicant contends in the alternative that the Judge’s reasons for reaching this conclusion were inadequate.

39. The Judge referred at length to the body of evidence adduced about the male clothing, male hormones and other indicia that a male was living in the house; the applicant’s DNA and fingerprints found in the house; the numerous photographs of the applicant with and without Ms Hunt found in the house and on her phone; the length of the relationship between the applicant and Ms Hunt; and the birth of the applicant’s and Ms Hunt’s son. The Judge said:

    As with Ms Hunt, there can be no doubting the longstanding close personal and romantic relationship between them.  There are collections of numerous photographs holidaying together in 2007 and 2008, found in the leather diary from the sideboard of the dining room, at a New Year party in 2008, as well as numerous shots of them together stored on her iPhone taken between 10 December 2010 and 1 January 2011.  The sheer volume and content of the SMS messages recorded on Ms Hunt’s mobile phone (quite apart from the number of incoming and outgoing telephone calls the contents of which are not known), reveal continuous exchanges of an intimate nature and of a continuing commitment to each other between late 2010, right up to and including 7 January 2011.  Additional photographs of the progress of the renovations or extensions prove him to be on the Glandore property on 30 October, 25 November and 26 December 2010 at least.

    Nor is there any doubt that the relationship remained on foot as of 7 January 2011.  The lock screens on Ms Hunt’s iPhone contained a portrait of them, cheek to cheek.  There was a similar but not identical portrait on the bedside table next to the water bottle which bore their finger prints, quite apart from the text messages of that very day.  On 26 December 2010 Mr Becirovic can be seen unpacking and assembling a double bed in the Glandore property.  The finger prints of Mr Becirovic on the water bottle on the bedroom side table and on the water bottle on the kitchen sink, support that conclusion.  Whilst not decisive considered in isolation since there is no evidence of how the bottles got there or for how long they were in that position, it is more than likely that with such frequently used items, the finger prints were deposited relatively recently.  Likewise, whilst equally inconclusive of itself, the DNA on the two toothbrushes in the bathroom suggest a reasonably proximate connection to the inner sanctums of the house in point of time, particularly when coupled with the half wardrobe of exclusively male items including toiletries in bedroom 1.

    The presence of steroids in the medicine cabinet in the kitchen are of no probative value standing alone.  Even so, Mr Becirovic’s DNA on the lid of the shorter white container, places him at another inner area of the house.  The testosterone in the two ‘Sustanon’ boxes located in the ‘Quick Oats’ cereal box on the top shelf of the kitchen pantry in conjunction with the two glass vials of testosterone ethanthate in the crisper of the fridge, supports the conclusion that he had access to the inner most places in the home of a kind that are regularly used in ordinary everyday domestic activities.  This is a classic circumstantial case with so many items of evidence when individual items considered in isolation may be quite inconclusive, but when combined in their united force, serve to prove beyond reasonable doubt access by Mr Becirovic to regularly used parts of the house, such as the bedroom, the bathroom and the kitchen cupboards, the medicine cabinet and the refrigerator in particular.

    …

    On the basis of the body of evidence, the male clothing, the male hormones, finger prints and the DNA, the presence of the Chrysler sedan and the large number of documents and photographs referable to him at poignant times, several having a distinct temporal connection with identifiable items in the house, combine to the point that the only reasonable inference to draw is that Mr Becirovic came and went to the Glandore premises as and when he pleased, and when there that he exercised control over the premises as if he were joint owner or occupier with Ms Hunt.

    It is not to the point that he was not present on the day the police attended, or that he cannot be proven to have been there any later than 26 December.  He is demonstrated by an imposing body of evidence to have exercised the rights of ownership and possession jointly with Ms Hunt, and as a necessary aspect of that right, to exclude all others from the house had he wanted to.

    Given this conclusion it is strictly unnecessary to proceed to examine whether Mr Becirovic falls within one or another of the definitions of ‘occupies … has care, control or management of, premises’ contained in s 5(14)(c) of the Firearms Act, so as to engage the rebuttable presumption contained therein.  As noted, the section removes the requirement of exclusive possession.  It provides access to a firearm may constitute possession of it.  ‘Care or management’ is generally a state of affairs significantly less demanding than proof of control.  In R v Sandery, I observed that in ordinary parlance ‘control’ meant ‘to exercise restraint or direction over’, or ‘the fact of checking and directing action’, concepts less demanding than possession at common law.  On the basis of the above primary findings of fact, there can be no doubt that Mr Becirovic was at the very least in control of the Glandore home occupied by Ms Hunt.[18]

    [18]   Citations omitted.

1. The Judge’s reasons were perfectly adequate on this topic and were compelling.

2. This ground of appeal is not made out in respect of counts 5 and 6.

   The proviso

3. The Director, rightly acknowledging that the Judge’s reasons are inadequate in respect of counts 1 and 2, contends that the proviso can and should be applied. The Director contends that the evidence adduced at trial (all of which was documentary) inevitably proved beyond reasonable doubt the applicant’s guilt of counts 1 and 2.

4. The applicant contends that the failure by the Judge to provide adequate reasons for the finding of guilt in respect of counts 1 and 2 itself comprises a substantial miscarriage of justice. The applicant contends that this Court should not proceed to consider the Director’s contention on its merits about the inevitability of a conviction.

5. Subsections 353(1) and (2) of the Criminal Law Consolidation Act 1935 SA) (the Consolidation Act) provide:

   (1)The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

   (2)Subject to the special provisions of this Act, the Full Court shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.

6. The first limb within subsection (1) is that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. In this event ex hypothesis no question of application of the proviso will arise and the Court will direct that a judgment of acquittal be entered under subsection (2).

7. The second limb is that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law. In the context of a jury trial, a wrong decision on a question of law means an error by the trial judge. It encompasses a wrong decision to admit or not admit evidence; a failure to give a direction or a misdirection to the jury; and various other errors by the trial judge before or during trial up to and including verdict and conviction. The error must be material to the result to be capable of justifying a decision that the judgment should be set aside.[19] An error will not be material if it is irrelevant to the result or favourable to the accused. If error of law is established, consideration of the proviso will arise and subject thereto the Court will ordinarily direct a retrial under subsection (2).[20]

   [19]   See the formulation by French CJ, Bell, Keane and Nettle JJ in Filippou v The Queen [2015] HCA 29 (2015) 256 CLR 47 at [13]. See at [84] per Gageler J.

   [20]   The court having a discretion to direct a verdict of acquittal if there are special reasons why the appellant should not be put to a retrial.

8. The third limb is that on any ground there was a miscarriage of justice. In the context of a jury trial, a miscarriage of justice other than one already encompassed in the first and second limbs effectively means that there has been a material failure of due process.[21] The failure must be material to the result to amount to a miscarriage.[22] A failure will not be material if it is irrelevant to the result or favourable to the accused. If miscarriage is established, consideration of the proviso will arise and subject thereto the Court will ordinarily direct a retrial under subsection (2).

   [21]   See for example Cesan v The Queen [2008] HCA 52, (2008) 236 CLR 358 at [66]-[899] per French CJ.

   [22]   See the formulation by French CJ, Bell, Keane and Nettle JJ in Filippou v The Queen (2015) 256 CLR 47 at [14]. See at [85] per Gageler J.

9. The second and third limbs are complementary in the sense that they cover the field of grounds capable of leading to an order for a retrial (the first limb leading to a judgment of acquittal). In Weiss v The Queen[23] Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ used the term “irregularity” to refer to an error of law and miscarriage of justice collectively and I adopt that term.

   [23] (2005) 224 CLR 300.

10. Subsection (1) distinguishes between a miscarriage of justice simpliciter and a substantial miscarriage of justice. Notwithstanding that the Full Court finds that there has been a material error of law or miscarriage of justice, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

    General principles as to construction of the proviso

11. Over the years a number of principles have been articulated as to when the proviso is to be applied. However, first and foremost the language of the statute (construed in the conventional manner[24]) is to be applied rather than substituting for that language a set of judge-made subsidiary rules or glosses upon the statutory language.[25]

    [24]   By reference to its text, context and evident purpose.

    [25]   Fleming v The Queen [1998] HCA 68, (1998) 197 CLR 250 at [12] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ; Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300 at [31] and [42] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Cesan v The Queen (2008) 236 CLR 358 at [123] per Hayne, Clinton and Kiefel JJ; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, (2012) 246 CLR 92 at [21]-[24] per French CJ, Gummow, Hayne and Crennan JJ; Baini v The Queen [2012] HCA 59, (2012) 246 CLR 469 at [25]-[26] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

12. In Weiss v The Queen[26] Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ said:

    The questions that are to be decided in the appeal must be considered against some fundamental, if obvious, propositions. First and foremost, the root question is one of statutory construction. It is the words of the statute that ultimately govern, not the many subsequent judicial expositions of that meaning which have sought to express the operation of the proviso to the common form criminal appeal provision by using other words.  

    …

    This Court has repeatedly emphasised the need, when applying a statutory provision, to look to the language of the statute rather than secondary sources or materials. In Fleming v The Queen, the Court said that “[t]he fundamental point is that close attention must be paid to the language” of the relevant criminal appeal statute because “[t]here is no substitute for giving attention to the precise terms” in which the relevant provision is expressed.

    Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was “inevitable”.  Other cases ask whether the accused was deprived of a “chance which was fairly open … of being acquitted” or a “real chance” of acquittal.

    These expressions attempt to describe the operation of the statutory language in other words.  They must not be taken as substitutes for that language.  They are expressions which may mask the nature of the appellate court’s task in considering the application of the proviso. 

    …

    It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier.  (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.)  It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test.  It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.[27]

    [26] (2005) 224 CLR 300.

    [27]   At [31]-[33], [42]. (Citations omitted)

13. The expression of principles as to when the proviso is to be applied has accordingly waxed and waned over the years. However, notwithstanding the above caveat the following principles have remained constant or at least are authoritatively established at the present time:

    1.The Court cannot consider that that no substantial miscarriage of justice has actually occurred “unless the appellate court is persuaded that the evidence, properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”.[28]

    [28]   Weiss v The Queen (2005) 224 CLR 300 at [44] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Baini v The Queen (2012) 246 CLR 469 at [28] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

    2.The assessment referred to in 1 (the merit assessment) is to be made by the appellate court applying the correct principles to the evidence properly admissible at the trial (ie on the basis of no irregularity).[29]

    [29]   Wilde v The Queen (1988) 164 CLR 365 at 372 per Brennan, Dawson and Toohey JJ.

    3.The merit assessment is to be made by the appellate court itself on the whole of the record of the trial in the same way as an assessment is made whether a verdict is unreasonable or cannot be supported having regard to the evidence (as articulated in M v The Queen[30] and subsequent authorities[31]).

    4.The merit assessment is not to be undertaken by speculating on the result that the jury (or judge alone) or a reasonable jury (or judge alone) who heard the case would or might have reached in the absence of the irregularity.[32]

    5.It is unnecessary and undesirable to express the task of the appellate court in making the merit assessment in terms of whether a reasonable jury would find the accused guilty beyond reasonable doubt because it is apt to distract the appellate court from the task of itself making the assessment as set out in 3.[33] However, if the task is expressed in those terms, it should be expressed in terms of whether the appellate court is satisfied that it would not have been open to a jury to acquit (or that a conviction was inevitable) rather than in terms of whether the appellate court is satisfied that it would have been open to the jury to convict.[34]

    6.In making the merit assessment, the appellate court must take into account the natural limitations of appellate review.[35] In particular, when there was contested evidence at trial turning on an assessment of credit or reliability or a choice between accounts by different witnesses, the appellate court will often if not usually be precluded from reaching the necessary persuasion.

    7.The merit assessment is to be made:

    (a)    taking into account the fact that the jury (or judge alone) returned a guilty verdict and its implications as to their assessment of the issues and the evidence;[36]

    (b)    tempered by taking into account the extent to which the guilty verdict may have been affected by the irregularity: when there was contested evidence at trial it is necessary for the appellate court to consider whether the view of the jury (or judge alone) of the evidence may have been affected by the irregularity.[37]

    8.There are some cases in which the nature of the irregularity is such that it amounts to an actual substantial miscarriage without further enquiry regardless of a merit assessment.[38] As this is a central issue on this appeal, it is explored in detail below.

    9.If the court considers that no substantial miscarriage of justice has actually occurred, it has no discretion but to dismiss the appeal notwithstanding the use of the word “may” in subsection 353(1).[39]

    10.The proviso applies to a trial by Judge alone just as the three limbs of subsection 353(1) apply to a trial by Judge alone.[40]

    [30] (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ.

    [31]   See for example MFA v The Queen[2002] HCA 53, (2002) 213 CLR 606 at [25]-[26] per Gleeson CJ, Hayne and Callinan JJ and [53]-[59] per McHugh, Gummow and Kirby JJ.

    [32]   Baiada Poulty Pty Ltd v The Queen (2012) 246 CLR 92 at [33] per French CJ, Gummow, Hayne and Crennan JJ.

    [33]   Weiss v The Queen (2005) 224 CLR 300 at [32]-[33] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [33] per French CJ, Gummow, Hayne and Crennan JJ.

    [34]   Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [30]-[32] per French CJ, Gummow, Hayne and Crennan JJ.

    [35]   Cesan v The Queen (2008) 236 CLR 358 at [127]-[130] per Hayne, Clinton and Kiefel JJ; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [28], [31] per French CJ, Gummow, Hayne and Crennan JJ; Baini v The Queen (2012) 246 CLR 469 at [25]-[26], [29] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

    [36]   Weiss v The Queen (2005) 224 CLR 300 at [43] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Cesan v The Queen (2008) 236 CLR 358 at [127]-[130] per Hayne, Clinton and Kiefel JJ; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [28], [31] per French CJ, Gummow, Hayne and Crennan JJ; Baini v The Queen (2012) 246 CLR 469 at [29] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; Patel v The Queen [2012] HCA 29, (2012) 247 CLR 531 at [128]-[129] per French CJ, Hayne, Crennan, Kiefel and Bell JJ

    [37]   Cesan v The Queen (2008) 236 CLR 358 at [127]-[130] per Hayne, Clinton and Kiefel JJ; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [28], [31] per French CJ, Gummow, Hayne and Crennan JJ; Baini v The Queen (2012) 246 CLR 469 at [29] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; Patel v The Queen (2012) 247 CLR 531 at [128]-[129] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

    [38]   Wilde v The Queen (1988) 164 CLR 365 at 372-373 per Brennan, Dawson and Toohey JJ; Weiss v The Queen (2005) 224 CLR 300 at [31] and [42] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

    [39]   Baiada Poulty Pty Ltd v The Queen (2012) 246 CLR 92 at [25]-[26] per French CJ, Gummow, Hayne and Crennan JJ.

    [40]   Fleming v The Queen (1998) 197 CLR 250 at [24] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.

14. In Wilde v The Queen[41] Brennan, Dawson and Toohey JJ described the manner in which the Full Court is to make the merit assessment in the following terms:

    Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case.[42]

    [41] (1988) 164 CLR 365 at 372.

    [42]   At 372. (Citations omitted)

15. In Weiss v The Queen[43] Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ elaborated on and qualified the required approach in the following terms:

    [43] (2005) 224 CLR 300.

    Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was “inevitable”.  Other cases ask whether the accused was deprived of a “chance which was fairly open … of being acquitted” or a “real chance” of acquittal.

    These expressions attempt to describe the operation of the statutory language in other words.  They must not be taken as substitutes for that language.  They are expressions which may mask the nature of the appellate court’s task in considering the application of the proviso. 

    …

    Three fundamental propositions must not be obscured.  First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred.  Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks.  It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction.  Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.

    …

    That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.  The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.  There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction.  In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial.  But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

    It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier.  (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.)  It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test.  It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.

    There are, however, some matters to which particular attention should be drawn.  First, the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict.  The court is not “to speculate upon probable reconviction and decide according to how the speculation comes out”.  But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury.  The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial.  Secondly, it is necessary always to keep two matters at the forefront of consideration:  the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt.

    …  No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given.  But one negative proposition may safely be offered.  It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

    Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt.  What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt.  Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.[44]

    [44]   At [32]-[33], [39], [41]-[45]. (Citations omitted)

1. Thus satisfaction on the part of this Court of the appellant’s guilt beyond reasonable doubt is a necessary but not sufficient condition for the application of the proviso.[167] Any determination of whether no substantial miscarriage of justice has actually occurred is to be undertaken having regard to the nature of the irregularity that this Court must necessarily have determined occurred, considered in the context of the particular circumstances of the case and the particular issues at trial.[168] It must be borne in mind that some irregularities may amount to such a serious breach of the presuppositions of the trial as to deny the application of the proviso.[169] As Gummow and Hayne JJ observed in Evans v The Queen:[170]

   The graver the departure from the requirements of a fair trial, the harder it is for an appellate court to conclude that guilt is established beyond reasonable doubt. It is harder because the relevant premise for the debate about the proviso’s application is that the processes designed to allow a fair assessment of the issues have not been followed at trial.

   [167] AK v Western Australia (2008) 232 CLR 438 at [53], [59] (Gummow and Hayne JJ); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [29] (French CJ, Gummow, Hayne and Crennan JJ); Cesan v The Queen(2008) 236 CLR 358 at [124] (Hayne, Crennan and Kiefel JJ); Reeves v The Queen (2013) 88 ALJR 215 at [50] (French CJ, Crennan, Bell and Keane JJ); Gassy v The Queen(2008) 236 CLR 293 at [18] (Gummow and Hayne JJ); Weiss v The Queen (2005) 224 CLR 300 at [44]-[45] (the Court).

   [168] See, for example, AK v Western Australia (2008) 232 CLR 438 at [42], [55] (Gummow and Hayne JJ); see also Reeves v The Queen (2013) 88 ALJR 215 at [51]-[58] (French CJ, Crennan, Bell and Keane JJ).

   [169] Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [22] (French CJ, Gummow, Hayne and Crennan JJ); Filippou v The Queen (2015) 256 CLR 47 at [15] (French CJ, Bell, Keane and Nettle JJ).

   [170] (2007) 235 CLR 521 at [42].

2. We turn to consider the application of the proviso in relation to our conclusion on the eighth ground of appeal that the Judge’s reasons were inadequate.

3. Where s 353(1) of the Criminal Law Consolidation Act 1935 speaks of the verdict of a jury, it must, in the case of a trial conducted by judge alone under s 7 of the Juries Act 1927, be viewed through the prism of s 7(4).[171]

   [171] Fleming v The Queen (1998) 197 CLR 250 at [26] (The Court).

4. In Fleming v The Queen the appellant was convicted after a trial by judge alone of three counts of aggravated indecent assault and one count of sexual intercourse with a person of or above the age of 10 years and under the age of sixteen years.[172] The complainant was a 15 year old student; the appellant the deputy principal of the school she attended and her mathematics teacher.

   [172] Fleming v The Queen (1998) 197 CLR 250 at [26].

5. The offences took place in New South Wales and were tried by a judge of the District Court of that State sitting without a jury as is permitted by the Criminal Procedure Act 1986 (NSW).

6. Under s 33(3) of the Criminal Procedure Act 1986 a judge trying a criminal case without jury is required to take into account any warning that the law would require be given to a jury were the matter tried by a judge and jury. Section 33(2) of the same Act requires that a judge include in any reasons provided the principles of law applied and findings of fact relied upon.

7. In the High Court it was contended that the trial Judge was required to administer a warning to himself that he carefully scrutinise the evidence of the complainant before acting upon it by reason of her age, emotional instability and infatuation with the appellant. The judge’s reasons were silent on the issue.

8. The High Court accepted the submission that the suggested warning was required. It held that the discharge of the obligation contained in s 33(3) was achieved as indicated by s 33(2).[173] The Court said:[174]

   … if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.

   The Court further held:[175]

   No doubt consciousness of the importance of such a warning will be of second nature to many judges. However, as we have said, an animating principle which lies behind the requirements of s 33 is that criminal justice not only be done but also be seen to be done. The judgment must show expressly or by necessary implication that the warning was taken into account. If the judgment does not do so, a breach of s 33(3) has occurred. It is no answer that the trial judge is an experienced judge who was well aware of the requirement of a warning and that he or she must have taken the warning into account.

   It follows that, in the present case, there was a failure by the trial judge to include in his judgment reference to the warning which was required to be given to a jury and this demonstrates a breach of the requirement of s 33(3) that the judge “take the warning into account”. This failure involved a wrong decision on a question of law and the second limb of s 6(1) of the Criminal Appeal Act was attracted. The requirement of s 33(3) being mandatory in the sense discussed earlier in these reasons, there also was a miscarriage of justice within the third limb of s 6(1).

   (Citations Omitted)

   [173] Fleming v The Queen (1998) 197 CLR 250 at [32].

   [174] Fleming v The Queen (1998) 197 CLR 250 at [30].

   [175] Fleming v The Queen (1998) 197 CLR 250 at [37]-[38].

9. The Court then turned to consider the application of the proviso:[176]

   With respect to the application of the proviso, it has been held in this Court that not every wrong decision on a question of law will lead to the quashing of the conviction or a new trial and that “[t]here is no rigid formula to determine what constitutes such a radical or fundamental error” as to preclude the application of the proviso. There may be cases where the failure to satisfy the requirements of s 33 involves errors that are so trivial that the Court of Criminal Appeal may conclude that there has been a trial according to law, notwithstanding that failure. However, given the importance of the subject-matter of the warning demanded by this case, the miscarriage of justice was a substantial one. This was not a case for the application of the proviso.

   Further, there was considerable force in the appellant’s submission that the trial judge in approaching the matter in stark terms of belief or disbelief of the complainant or the appellant did not give the complainant’s evidence the sufficiently careful scrutiny which the warning, carried into effect, would have required.

   (Citations Omitted)

   [176] Fleming v The Queen (1998) 197 CLR 250 at [39].

10. We note that s 33(2) and (3) are stated in mandatory terms. Non-compliance with the requirements of those sub-sections amounted to an error of law for the purposes of the common form appeal provision. However, significantly, it was not the mere inadequacy of the trial Judge’s reasons that led to the conclusion that the proviso was inapplicable. It was the importance of the warning and its absence from the reasons.

11. In AK v Western Australia the appellant was convicted of three counts of indecent dealing by a judge sitting without a jury.[177] The identity of the person who sexually interfered with the complainant was in dispute. Gleeson CJ and Kiefel J recorded:[178]

    Section 120(2) of the Criminal Procedure Act provides that the judgment of the judge in a trial by judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied. The effect of such a statutory requirement was considered by this Court in Fleming v The Queen. All the members of the Court of Appeal agreed that the trial judge did not state his reasons for rejecting the appellant’s arguments on identification. That he considered such arguments, and that he presented counsel, for comment, with substantial reasons why they may not be accepted, appears from the record of his exchanges with counsel in the course of address. However, such exchanges do not form part of a statement of the reasons for decision, and, in his stated reasons, the judge simply did not address the arguments of counsel at any level either of specificity or generality. He may well have thought that it was a fairly hopeless point, but it was seriously put and was not entirely lacking in substance. It was not sufficient to point out its weaknesses in the course of address; it had to be dealt with (although not necessarily at great length) in the reasons for decision. There being a question of identification raised, the judge was obliged to say why, and how, he resolved it in favour of the prosecution.

    [177] (2008) 232 CLR 438.

    [178] AK v Western Australia (2008) 232 CLR 438 at [16] (Gleeson CJ and Kiefel J).

12. It had also been argued that the trial Judge’s treatment in his reasons of the complainant’s credibility was inadequate.

13. A majority of the Western Australia Court of Criminal Appeal held that the proviso applied. Buss JA was in the minority. His Honour was concerned that the inadequate treatment by the trial judge of the complainant’s credibility prohibited the application of the proviso.

14. In the High Court the appellant submitted that the majority of the Western Australia Court of Criminal Appeal was wrong to apply the proviso. Gleeson CJ and Kiefel J held:[179]

    [179] AK v Western Australia (2008) 232 CLR 438 at [26]-[28] (Gleeson CJ and Kiefel J).

    There is force in the concerns of Buss JA as to the position in which the trial judge’s failure to give reasons left the Court of Appeal. It is not to be doubted that there will be cases in which a failure to give reasons will leave an appellate court in no position to apply the proviso. At the same time, it should be remembered that the most common case, in practice, for the application of the proviso is a case of trial by jury, where there are no reasons for decision and, obviously, no findings upon or descriptions of demeanour. The “natural limitations” referred to in Weiss may apply, but if absence of reasons for a guilty verdict were conclusive then the proviso could never apply to trial by jury.

    We have referred above to the reasoning of Pullin JA and Roberts-Smith JA on the third ground of appeal. It is unnecessary to repeat it. We see no answer to a point that weighed heavily with the majority: the fact that the only competing possibility was that the complainant was indecently dealt with by the appellant’s brother. All three members of the Court of Appeal accepted that somebody had indecently dealt with the complainant on the occasion she described; that it was a male; and that it could only have been either the appellant or his brother. The complainant’s certainty that it was the appellant was obviously based partly upon a rejection of the idea that it was the brother. By the time she gave her evidence, she had been through a sexual association with the appellant; an association that, for her, had very serious consequences. There was nothing to suggest that the brother had ever been, or wanted to be, sexually involved with her. Circumstantial evidence is sometimes spoken of as though it were inherently less compelling than direct testimony. Often, especially in identification cases, the truth is the opposite. Undisputed objective circumstances may be more reliable than direct testimony. Here, the direct testimony of the complainant was supported by circumstantial evidence. There was no conflict of evidence between the complainant and some other witness. An evaluation of the complainant’s uncontradicted testimony, supported as it is by undisputed circumstantial evidence, was possible on the basis of the written record of the proceedings.

    The reasoning of the majority of the Court of Appeal appears to us to be well-founded and the conclusion correct.

    Gummow and Hayne JJ held:[180]

    [180] AK v Western Australia (2008) 232 CLR 438 at [55]-[59] (Gummow and Hayne JJ).

    In every case it will be necessary to consider the application of the proviso (and here s 30(4)) taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal. In the present case there were two features of the error identified as occurring at trial which are important in deciding whether the Court of Appeal could conclude “that no substantial miscarriage of justice has occurred”. First, s 120(2) of the Criminal Procedure Act required the reasons to articulate the connection identified between the relevant legal principle (in this case, proof beyond reasonable doubt) and the relevant findings of fact. Second, the particular failure that was identified related to the central issue in the appellant’s trial on the counts of indecent dealing and was constituted by the complete failure to articulate any of the reasoning by which the trial judge reached the ultimate conclusion that the appellant was guilty of each of those charges.

    Complete failure to meet the mandatory requirements of s 120(2) of the Criminal Procedure Act with respect to the central issue in the appellant’s trial was a substantial miscarriage of justice. It was a substantial miscarriage because the Criminal Procedure Act required that the trial of the appellant yield a reasoned decision that met the criteria stated in the statute. This trial did not, and it did not in respect of the central issue that was tried.

    Section 120(3) provides that “[t]he validity of a trial judge’s judgment is not affected by a failure to comply” with the requirements of s 120(2). But that provision addresses only the question of validity of the orders made, a question which was once answered by reference to a distinction between directory and mandatory requirements. Failure to comply with s 120(2) does not render void the court’s orders convicting and sentencing an offender. It was not, and could not be suggested, however, that s 120(3) denies that a failure to comply with s 120(2) is an error of law. And when read as a whole, s 120 makes plain that the result of trial by judge alone must be a reasoned decision that complies with s 120(2).

    Once it is recognised that the Criminal Procedure Act requires that a trial by judge alone is to be concluded in this way, it is evident that to examine, as the Court of Appeal did, whether a chain of reasoning could be articulated that would support, even require, the verdict that was reached at trial was not to the point in deciding whether there was a substantial miscarriage of justice. It was not to the point because the relevant error or miscarriage which is the premise for consideration of the proviso is an error or miscarriage constituted by a failure to provide, as s 120(2) required, a reasoned decision about the central issue that was tried. The appellant was not tried in accordance with the requirements of s 120.

    When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury’s verdict might have been different if the identified error had not occurred. That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant’s guilt it cannot be said that there was no substantial miscarriage of justice. But just as persuasion of the appellate court of the accused’s guilt does not in every case conclude the enquiry about the proviso’s application in appellate review of a jury trial, enquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice. In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice.

    The fifth member of the Court was Heydon J.  He held:[181]

    The s 120(2) duty in the present case. Just as the importance of s 120(2) is very great, so the extent of non-compliance with it in this case was extreme. The non-compliances cannot be described as constituting mere “irregularities”. It is not material that those non-compliances “did not affect the evidence which was led”. Nor is it correct to see the non-compliances as not having been “in the conduct of the trial itself”, any more than the addresses of counsel or the summing up in a trial by jury can be said not to be in the conduct of the trial itself. The duty to comply with s 120(2) is an essential means of securing the fair and just conduct of the trial, and is also an essential means of revealing any deficiencies in the trial as a whole.

    In Fleming v The Queen it was said that there may be cases where the failure to satisfy the requirements of the then New South Wales equivalent to s 119(3) “involves errors that are so trivial that the Court of Criminal Appeal may conclude that there has been a trial according to law, notwithstanding that failure”. So too a failure to satisfy the requirements of s 120(2) may involve omissions to include principles of law or findings of fact which are so trivial that it is open to conclude that there has been a trial according to law notwithstanding those omissions. But in Fleming v The Queen, given the importance of the subject-matter of the warning about the need to assess the relevant witness’s reliability in the light of her age, emotional instability and infatuation with the appellant in that case, the miscarriage of justice was a substantial one, and the proviso was not applied. Here too, given the importance of the requirement of a statement of findings in a factually unusual and puzzling case, and the extent of the breach of that requirement, the proviso should not be applied. The error was one which was a sufficiently “serious breach of the presuppositions of the trial” to go to “the root of the proceedings”.

    [181] AK v Western Australia (2008) 232 CLR 438 at [109]-[110] (Heydon J).

15. No member of the High Court in AK held that a breach of the statutory obligation would invariably prohibit the application of the proviso. The difference between the minority and the judges forming the majority centres on the perceived degree of departure from the obligation to provide reasons. At one extreme, if reasons are so inadequate and the proviso is applied, it may be said that the appellant was in reality tried by the Court of Criminal Appeal. At the other, to allow an appeal where the reasons are inadequate in one particular aspect, but no substantial miscarriage of justice has occurred in the relevant sense, would result in a return to the application of the Exchequer rule.

16. In AK from the majority’s point of view the statute required a reasoned decision which, it not containing reasons for the determination of the central issue tried in the case, was not provided.[182] In Fleming it was the importance of the warning.

    [182] Cesan v The Queen (2008) 236 CLR 358 at [124] (Hayne, Crennan and Kiefel JJ).

1. In this State even though there is no statutory duty imposed, the importance of a reasoned decision in a trial by judge alone cannot really be said to be any different, particularly having regard to the importance of reasons to the exercise of judicial power and the judicial function and to the duty vested in this Court by s 353 of the Criminal Law Consolidation Act 1935. Whether or not the proviso can be applied where reasons are inadequate will depend very much on the departure that they disclose from the fundamental presuppositions of a fair trial or which, in their silence, the reasons provide no comfort as to their having been compliance with the same.

2. We consider the prosecution case strong. However, as we have said, the inadequacy of the Judge’s reasons does not allow us to be satisfied that the burden and standard of proof has been applied and applied rigorously. It cannot be doubted that the burden and standard of proof are fundamental presuppositions of a fair trial. Putting to one side the application of s 5(14) of the Firearms Act 1972 in relation to counts 5 and 6, the inadequacy of the Judge’s reasons that we have articulated pervades all counts. In the circumstances we do not consider this an appropriate case for the application of the proviso in relation to the eighth ground of appeal.

3. We indicate that the errors subject of grounds 7 and 9 occasioned no substantial miscarriage of justice. With respect to ground 7, bearing in mind the cross-admissibility of the evidence, we are satisfied that no impermissible use occurred. As to ground 9, we are satisfied that the impermissible use of the documents could have resulted in no different conclusion. The evidence of the applicant’s relationship with Ms Hunt and his residential status as we have described it was overwhelming.

4. We note in passing the Judge’s decision to sever counts 7-9 concerning firearms located in a Chrysler motor vehicle parked in the driveway of the Glandore premises and his finding that the applicant possessed the car. Given that Ms Hunt will not be a co-accused at the retrial, and the probative nature of the evidence, that ruling should be reconsidered.

   Conclusion

5. We would grant the applicant permission to appeal on all grounds. We find the eighth ground of appeal made out to the extent that we have indicated. We would set aside the applicant’s convictions on counts 1-4 and remit the matter for re-trial on those counts.