R v Franco - [2009] SASC 370

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRANCO
[2009] SASC 370
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Kourakis)
4 December 2009
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
Appellant convicted by jury of two counts of taking part in manufacture of methylamphetamine - complains of certain directions given by trial judge in course of summing up - evidence that appellant possessed a bottle of methylamphetamine shortly after second charged occasion - trial judge directed jury as to use that could be made of evidence based on whether or not satisfied beyond reasonable doubt that methylamphetamine in bottle came from batch manufactured - jury directed in alternative that if not so satisfied they could still use evidence as showing appellant had an interest in methylamphetamine - whether alternative direction introduced new path of reasoning to proof of guilt - whether alternative direction invited jury to engage in impermissible propensity reasoning.
Held: no new basis for conviction introduced - use to which prosecution put evidence was clear - no question of inferring prior offending from evidence arose - whilst judge erred in introducing criminal standard of proof, alternative use open and would have survived application of exclusionary principle - observations on exclusionary principle in relation to evidence showing an interest in an illegal substance.

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY
Whether possession of bottle of methylamphetamine was evidence capable of corroborating evidence of accomplice - appellant's argument that leaving evidence of the bottle as corroboration confusing and unfair not made out - appeal dismissed.
Harriman v The Queen (1989) 167 CLR 590; R v Lander (1989) 52 SASR 424; Doney v The Queen (1990) 171 CLR 207; R v Perks (1986) 43 SASR 112, applied.
R v Solomon [1980] 1 NSWLR 321; R v Franco (2003) 139 A Crim R 288, distinguished.
Edwards v The Queen (1993) 178 CLR 193; R v Long & McDonnell (2002) 137 A Crim R 263; R v Palaga (2001) 80 SASR 19; R v Nieterink (1999) 76 SASR 56; R v Conley (1982) 30 SASR 212, considered.

R v FRANCO
[2009] SASC 370

VANSTONE J: After a long trial in the District Court before a judge and jury, the appellant was found guilty of two counts of taking part in the manufacture of methylamphetamine.
He appeals, with permission, against the verdicts on three grounds (grounds 3 to 5) raising directions given by the trial judge in the course of his summing up. He also renews his application for permission to appeal in respect of the judge’s refusal to exclude some evidence said to be more prejudicial than probative, as well as an alleged failure by prosecuting counsel to adhere to the terms of a ruling by the judge as to admissibility and use of a particular body of evidence. Permission to appeal on these latter grounds was refused by a single judge of this court. I deal first with the grounds upon which permission to appeal has been granted.
Grounds 3 and 4 raise directions given by the trial judge in the course of the summing up to the jury as to the treatment of a particular item of evidence, being a small bottle of methylamphetamine seen in the appellant’s possession. Before setting out the relevant directions, I shall say a little of the essential facts comprising the prosecution case.
Background
Both offences were said to have taken place at premises at Tarqui Drive, Paralowie. This was the home of the prosecution witness, Ms Reading. Prior to the appellant’s trial, Ms Reading had been sentenced for manufacturing methylamphetamine at these premises on the occasion of count 2. Ms Reading gave evidence which directly implicated the appellant in respect of both counts. She said that on the occasion of count 1, the appellant had, for the third time, used her home for the purpose of manufacturing methylamphetamine. She said that on the first such occasion he had brought with him a suitcase, which he had then left in her spare bedroom. Police surveillance on this occasion confirmed her evidence that during the period that the appellant was at the house, Ms Reading went to purchase caustic soda and to fill up a gas bottle. She said that these things had been done at the request of the appellant and to assist him in producing the illicit drug.
Ms Reading said that on the occasion of count 2 the appellant came to her home, by arrangement, and she saw him manufacturing methylamphetamine. Police surveillance disclosed that earlier that day the appellant was at his sister’s home at Seymour Avenue, Windsor Gardens. At those premises were a number of items associated with methylamphetamine manufacture. The appellant was seen to depart carrying a brown paper bag. He then drove to the Tarqui Drive premises. He was seen to carry inside a brown paper bag. The appellant was there from about 11:00am to 1:27pm, when he left the house and was arrested. Subsequent examination of the inside of the house established that methylamphetamine had been very recently produced there.
The prosecution case was that, as police approached the appellant for the purpose of arresting him, he tipped onto the ground the contents of a bottle he was holding. He then dropped the bottle, which was retrieved. Scientific examination demonstrated that it contained methylamphetamine. The scientist compared the contents of the bottle with residues found within the laboratory inside the house and expressed the view that they were “very likely” to have come from the same source. That was based on parallels between the composition of certain by-products in each. In addition, traces of methylamphetamine and pseudoephedrine were found on the appellant’s hands and clothing.
In his address to the jury, counsel for the prosecution suggested the jury could find on the whole of the evidence that the methylamphetamine in the bottle had recently been manufactured inside the premises. By contrast, defence counsel suggested that further comparative testing of the source of the drug could have been done, such that a definitive statement could have been made. He suggested the jury was left in a position whereby the evidence was inconclusive and it should not speculate as to what further testing could have revealed.
Directions on the bottle
In this context the judge gave the jury the first of the impugned directions:
The fourth topic I address is the use you may make of the evidence of the police witnesses as to that bottle of methylamphetamine oil TDP2 in the photos in Exhibit P4 allegedly in the possession of the accused and allegedly upturned by him, as well as the traces of methylamphetamine under his fingernails, clothes and with the addition of pseudoephedrine on his hands. If you found beyond reasonable doubt that the methylamphetamine in that bottle and on his hands or otherwise was from the same batch as that located and tested by Dr Cox in the equipment in the kitchen of 41B, then you may well conclude such a finding is very cogent evidence of his involvement in the manufacturing process, particularly if you accept Dr Cox’s evidence that there was a completed process of manufacture which had occurred in 41B that very day shortly before his arrest. But ladies and gentlemen, even if you were not satisfied beyond reasonable doubt that it came from the same batch found in 41B, then it remains a piece of circumstantial evidence that he had, if you are satisfied that he had possession of that bottle of methylamphetamine base oil, and had the other traces of methylamphetamine on his body, it would be evidence, as I say that you could use as part of the circumstantial case that he had an interest in methylamphetamine, and that that may explain his attendance at 41B on those days, 20 July 2005 and 11 August 2005. As I have said three times already, I will explain to you about circumstantial evidence in due course.
(italics added)
Mr Niarchos, for the appellant, argued that by allowing the jury to take account of the evidence, even if it indicated no more than “an interest in methylamphetamine”, the judge was introducing a new and alternative path of reasoning in relation to the bottle. Because that use had not previously been raised, neither prosecution nor defence had put any submission to the jury dealing with it. In arguing that this was contrary to principle, he relied on R v Franco (2003) 139 A Crim R 228 and R v Solomon [1980] 1 NSWLR 321. Furthermore, counsel argued that the direction had the effect of inviting the jury to engage in “impermissible propensity reasoning”. He submitted that the jury should have been told that, if it were not satisfied beyond reasonable doubt that the contents of the bottle came from the production in the house, it should ignore the evidence.
In my view, the direction under consideration has nothing in common with the impugned direction in the previous Franco case. There, as here, the charge was taking part in the manufacture of methylamphetamine. The prosecution proved that the appellant lived at the premises where the production of methylamphetamine was in progress, that trace materials had been found on his hands and that he had purchased iodine, a chemical used in such a manufacture. It argued that from these matters the jury could infer that, either the appellant directly took part in the manufacture, or at least, he had permitted others to do so at his premises. In his summing up, the judge left to the jury a further basis, namely evidence of the co-accused that he saw the appellant add sugar to some oil on a plate, which, upon tasting, turned out to be methylamphetamine. As can be seen, the additional path of reasoning involved a suggested basis for guilt based on a quite separate step in the production, and not one which had been particularised or opened upon. The court held that the defence had been prejudiced by the introduction of this basis for conviction, particularly having regard to the fact that cross-examination, both of the co-accused and also of the scientific evidence, might well have undermined it. For this (and other reasons) the conviction was quashed.
In Solomon, the appellant was convicted of murder. Despite counsel for the prosecution having expressly disavowed reliance on reckless indifference as a sufficient mental element, the judge left it to the jury. It was acknowledged in the Court of Appeal that on the facts of the case, such a conclusion was open. It was further acknowledged that a judge is not to be restricted by the way in which the prosecution formulates its case. In those circumstances any challenge on appeal would necessarily need to show, at the least, that the accused person was “thereby placed at a tactical disadvantage”: Street CJ at 327. Both the Chief Justice and Moffit P (Begg J contra on this point) held that the course taken by the trial judge “deprived counsel of the opportunity of addressing the jury” in respect of the recklessness issue: Moffit P at 256. The conviction for murder was set aside.
I consider we should be slow in attempting to draw any sort of general principle from this case. It was critical to the decision that prosecuting counsel had deliberately and expressly rejected recklessness as a basis and that this had led defence counsel to take a certain position. While I think it would rarely be advisable for a trial judge to introduce a new basis for conviction without, at least, raising it with counsel, at the appellate stage each case must be evaluated on its peculiar facts.
The situation in the present case is, in any event, different. The judge was directing the jury on permissible use of a particular item of evidence. That is to be contrasted with a direction which introduces a new and alternative actus reus, or a direction which introduces a further mental element expressly discarded by the prosecution. As a general rule, neither judge nor jury is to be confined in the use they can make of items of evidence by the uses to which counsel choose to put such evidence. The jury may use items of evidence as it sees fit, subject to any limiting direction from the judge.
The next question is whether the use to which the judge alluded, in the italicised passage, was a proper use.
There is an air of unreality in discussing the question as I have framed it. That is because, in my view, it would have been better had the jury not been invited to consider the question of whether it was satisfied beyond reasonable doubt that the bottle (and samples from his hands) contained the product of the manufacture inside the house. Had that question not been posed, then it would not have been necessary to discuss with the jury the result of a negative answer to that question. (I suspect that the judge thought it necessary to descend to this analysis because of the way in which defence counsel addressed the issue.) I say that the inquiry was not a helpful one because, except in the most unusual of cases, a jury is not required to decide whether a particular fact in issue is proved beyond reasonable doubt, or whether it is prepared to draw an inference beyond reasonable doubt from an item of evidence. What must be proved to the jury’s satisfaction are the elements of the offence. Whether the case is based on direct evidence, or, in a circumstantial case, as this one, partly, was, the relevant inquiry is whether, upon the whole of the evidence, the jury is satisfied of each element of each count. In the course of reaching such a conclusion, the jury would, of course, consider the items of evidence which might lead to such a conclusion. But it is not helpful to suggest that any threshold test, as it were, should be applied to any particular item of evidence.
I refer to what Doyle CJ said, with the concurrence of Lander and Bleby JJ, in R v Long and McDonnell (2002) 137 A Crim R 263; [2002] SASC 426 at [70]:
When the prosecution case is based on circumstantial evidence, it is the combined force of the items of circumstantial evidence that must be assessed. No single item has to be proved beyond reasonable doubt before it can be taken into account by the jury. The jury must assess the evidence as a whole, and then decide, considering its combined effect, whether it bears no rational explanation other than the guilt of the accused …
In this regard the judge’s direction could not have disadvantaged the appellant.
I return to the question of whether the alternative use of the appellant’s possession of the bottle left to the jury by the judge was a proper one.
In answering that question I think it is helpful to contemplate two different scenarios. The first is this. If, as was the case, there was evidence of consistencies as between the methylamphetamine in the bottle and substances within the house, or, had the evidence merely been that there was nothing to preclude a common source for both the substances, then the evidence of the bottle and its contents would have been relevant and admissible as being, potentially, the fruits of the production within the house. A comparable situation would be where a bank robbery was committed and the accused was found outside the bank with $5,000 in cash, which could have been part of the proceeds of the robbery. There, it would not matter whether or not the prosecution could link serial numbers on the notes in the accused’s possession with those stolen from the bank.
In both instances, the possession of items would be objective evidence of the accused’s possession of a thing which might be associated with the offence and would be a circumstance tending to connect him with the crime. In other words, the evidence would be admissible as directly relevant to the charged transaction; also, in a sense, part of the crime scene, or, perhaps part of the res gestae. As the judge pointed out in this case, such evidence would be “very cogent evidence of [the accused’s] involvement in the manufacturing process”. This was a fair observation.
The direction given on the basis that the jury might not be satisfied that the substance emanated from the production within the house (emphasised in italics) was more suited to a situation in which the methylamphetamine in the appellant’s possession was demonstrably not from a batch recently produced in the house. That was not the evidence before the jury, but such a situation is the second scenario which I propose to address. My view is that, even if evidence had tended to exclude a common source, the appellant’s possession of methylamphetamine outside the house at the time of his arrest would still have been relevant and admissible. In those circumstances the bottle and its contents could show “an interest in methylamphetamine”. More specifically, it could be said that such evidence would show an inclination to possess methylamphetamine; although not an inclination to manufacture it. Such an interest in, or inclination to possess, methylamphetamine, being contemporaneous with the manufacture at Tarqui Drive, would raise the improbability of the appellant’s presence there, alone in the house, for over two hours, being other than connected with the production which had just taken place there. The critical feature of such evidence is the connection, both in time and place, of the methylamphetamine in the accused’s possession with the crime.
I turn to the question, then, of whether on either scenario, any question of propensity reasoning arises. On either version of my first scenario, where the evidence is led to show the appellant having left the premises with the fruits of production in his possession, no question of propensity reasoning arises. If used in that way, there is no assertion that, because of some other crime committed by the accused, the evidence against him in relation to the charged offence is stronger. On the contrary, the evidence is led as being linked to the very transaction charged.
However, if, on my second scenario, the evidence is led merely to demonstrate that the accused has an interest in methylamphetamine, or a propensity to possess methylamphetamine, then the question of whether that involves propensity reasoning is more difficult. In R v Palaga (2001) 80 SASR 19, Doyle CJ grappled with the question of whether any evidence which tends to prove the accused’s guilt of a crime, other than the charge, attracts the exclusionary principle stated in Pfennig v The Queen (1995) 182 CLR 461. In his reasons at [52] (with which Nyland J agreed) he expressed the view that the mere fact that evidence might disclose criminal conduct was not, of itself, sufficient to attract the exclusionary principle. In that regard he confirmed views he had expressed earlier in the Court of Criminal Appeal in R v Nieterink (1999) 76 SASR 56, with which Mullighan J agreed. There, the Chief Justice pointed out that in many circumstances evidence disclosing uncharged criminal conduct might be relevant and admissible without reference to any chain of reasoning involving propensity. That approach resonates with views expressed by the previous Chief Justice, King CJ in R v Conley (1982) 30 SASR 212. There the prosecution case was presented on the basis that, throughout the period of the charges the appellant was involved in the heroin trade and that each charge was an incident of that trade. King CJ said that the evidence going to each count was relevant to the other counts, other than by way of propensity reasoning.

However, each case must turn on its own facts and the particular use to which the evidence is put. Notwithstanding the analysis provided in these three authorities dealing with different situations, I am inclined to the view that evidence involving proof of an interest in an illegal substance does raise propensity reasoning, such as to attract the exclusionary rule. The same could be said of a sexual interest in children proved by conduct on another occasion.
In the present case there need be no attempt to finally express my view on that question as this was not the primary and obvious use of the evidence and, in any event, I consider that the evidence under consideration would survive an application of the exclusionary rule. Its probative force would transcend such prejudicial effect as it carried with it. Put differently, it would be an affront to common sense to exclude the evidence: Harriman v The Queen (1989) 167 CLR 590, per Brennan J at 594, per McHugh J at 633; Hoch v The Queen (1988) 165 CLR 292, 300 per Brennan and Dawson JJ. If the exclusionary rule is framed as it was in Pfennig, then I would be prepared to find that “the objective improbability of [the evidence] having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged”: Pfennig at 481-2 per Mason CJ, Deane and Dawson JJ. Therefore, even on my second scenario – a much stronger position in terms of the appellant’s argument – the evidence would be properly admitted as showing an interest in methylamphetamine. The direction upon it was not in error and nothing more was required.
In summary, my view is this. The use to which the prosecution put the evidence was clear. It suggested the methylamphetamine in the bottle was the product of the production with which the appellant was charged. On its case, no question of inferring prior offending from the evidence arose. In those circumstances no particular direction was required. The use comprehended by the judge’s fallback direction was available. Although I do not consider that it was necessary (or advisable in terms of introducing a false threshold test, as already discussed) to direct in this way, and that it was apt to invite difficulties and complications which were not otherwise present, there was no error in law or fact, nor was there any unfairness to the appellant. The argument on this ground fails.
Directions on the bottle as corroboration
Ground 4 concerns the judge’s direction on the topic of corroboration of the evidence of the accomplice. In particular, it challenges the direction in which the judge left to the jury, as evidence capable of amounting to corroboration, the same small bottle already the subject of discussion. The judge said:
There is also the evidence of the methylamphetamine in the bottle … allegedly held by him. … if you were satisfied beyond reasonable doubt that the bottle contents and the methylamphetamine under his nails and hands and clothes came from the same batch as that identified in the samples tested by [the scientist] from the equipment found in the kitchen of [Tarqui Drive] that would of itself amount to corroboration at law.
I note that at the time of the argument on permission to appeal, this ground complained that the bottle should not have been left as an item of potential corroboration at all. Upon the appeal, counsel sought to argue only that the directions given on this topic were in error.
Again, it will be noticed, the judge directed the jury in terms of satisfaction beyond reasonable doubt that the contents of the bottle and the methylamphetamine on the appellant’s hands and clothes, were part of the product of the recent manufacture within the house.
I consider that, to put the matter in that way, was to unduly fetter the jury’s approach to use of the evidence. Again, no particular standard of proof is required of items of evidence left to the jury as potential corroboration. The direction also tended to introduce an element of circularity. Because if the jury were satisfied to the criminal standard that the contents of the bottle and the methylamphetamine inside the house had a common source, then there would be no need to consider the evidence of the accomplice and to apply the warning as to her evidence. The direction was unduly favourable to the appellant.
The principle is that evidence left as corroboration of other evidence must be independent evidence tending to support or confirm the evidence to be corroborated in a material particular and it must confirm that the accused committed the crime. It must render that other evidence more probable: R v Baskerville [1916] 2 KB 658; R v Kilbourne [1973] AC 729, 758; R v Lander (1989) 52 SASR 424, 426. But the corroborating evidence need not be proved to any particular standard before it is used for that purpose. As the High Court said in Doney v The Queen (1990) 171 CLR 207 at 211:
It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice: see R v Baskerville [1916] 2 KB 658; Reg v Hester [1973] AC 296, at 325.
In Edwards v The Queen (1993) 178 CLR 193 the High Court made further observations touching this topic in the context of suggested lies told by the accused left as corroboration of the complainant’s evidence. At 202, Brennan J said:
The telling of a lie by an accused is frequently relied on as a piece of evidence tending to inculpate the accused in the offence charged. The jury must consider the weight to be given to that evidence, but the weight of particular pieces of evidence does not involve a standard of proof. The relevant standard of proof governs the making of a finding of material fact on the pieces of evidence which logically, if not chronologically, the jury has already evaluated. The standard directions given by judges to juries in criminal cases distinguish (perhaps without consciously adverting to the distinction) between the evaluation of evidence and the finding of material facts. Recognition of this distinction goes a long way towards avoiding whatever misunderstanding there may be about the majority judgments in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 relating to the drawing of an inference of guilt.
In the joint judgment of Deane, Dawson and Gaudron JJ, at 210, the following observation was made:
Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.
Mr Niarchos argued that leaving the item of evidence to the jury in this way when the jury had already been given a specific direction about the bottle was “confusing and unfair”. In my view, apart from the error in applying a standard of proof to the bottle as a prerequisite to its use as corroboration, the direction was unexceptional. This ground must fail.
Directions on the defence case
The next complaint, ground 5, concerns directions given to the jury in respect of the brown paper bag seen in the appellant’s possession on the occasion of count 2. The appellant was seen to leave his sister’s house while carrying a bag and he was seen to enter the Tarqui Drive house holding one. Police photographed the appellant as he carried it in. On the prosecution case it must have contained an ingredient required for the production. Evidence about the bag was also given by the accomplice, Ms Reading. She said that when the appellant entered the house on that occasion he was carrying a brown paper bag, which she saw contained a white crusty substance. Later, when the police searched the house, a brown paper bag containing parts of empty boxes of tablets containing various decongestants was found on the bed in the main bedroom. It became an exhibit. Ms Reading denied knowledge of it. The bag depicted in the police photograph could not necessarily be identified with the one found within the house. That was a matter of debate. But from the prosecution viewpoint, the value of the evidence was that it showed transport of something from the sister’s house to Tarqui Drive. Whether the exhibit bag was the same one, or not, did not detract from this.
In his final address to the jury, counsel for the appellant argued that the bag seen in the surveillance photograph and the bag found in the bed were necessarily different. As I understand it, that was based on the appearance of the bag in the photograph as compared with the exhibit. I might say that my own comparison of the two would not incline me to accept that submission. In any event, in his summing up, the judge referred to defence counsel’s suggestions on this topic. He did so in the context of a general discussion of circumstantial evidence. The judge said this:
He also pointed directly to the brown paper bag which the accused was allegedly seen to take from his sister’s house on 11 August 2005 and take to [Tarqui Drive] as shown in the photographs Exhibit P3. He said ‘Look, you have got to look to these facts to see whether they are in fact the case’. He said ‘How could you possibly infer it was the same brown paper bag as located on the bed?’. He asked you to have a look at the bag in Exhibit P6 and compare it with printing all over it with what was in the photographs in P3. Whether you accept a particular fact as being established, is a matter for you. You are, of course, entitled to take into account the whole of the evidence as I have said.
The argument of the appellant’s counsel before this Court is that the final two sentences of that direction tended to undermine defence counsel’s submissions. He put to this Court that the judge should have expanded on the arguments supporting the submissions. For instance, the judge might have referred to the fact that the exhibit appeared to be of a different colour from the bag depicted in the photograph. He could have alluded to the fact that, far from it containing the crusty substance described by Ms Reading, the bag found had “cut-outs from medications in it”. Counsel also complained that the prosecution’s submission to the jury that the bags were one and the same was based only on inference, against a failure to ask Ms Reading whether the exhibit bag was the one carried into the house by the appellant.
A trial judge is required to put to the jury the substance of the defence case and to explain how it bears upon the elements of the charge. The obligations upon the trial judge will vary from case to case, depending on the length and complexity of the issues and the way in which they have been crystallised in the evidence and in counsels’ addresses. But the judge is not obliged to repeat all the arguments of defence counsel: R v Perks (1986) 43 SASR 112 at 116; R v Grant (2006) 95 SASR 152 at [98]-[101].
In my opinion the judge was not required to descend into any detail about the arguments put in respect of the paper bag. The issue was a straightforward one. As already mentioned, whether the bag seen in the photograph was indeed the one which became an exhibit was not the most crucial aspect of the evidence. I refute the suggestion that anything the judge said in his direction tended to undermine defence counsel’s arguments to the jury. Just as counsel for the prosecution could have asked Ms Reading how the bag in the appellant’s possession compared with the one found on the bed, so could defence counsel. Ms Reading’s silence on that issue did not impede counsel’s submissions on the topic. The criticisms advanced are not made out.
Application for permission to appeal
Prior to the empanelment of the jury, the appellant sought to have excluded from the trial all evidence relating to police surveillance of the home of the appellant’s sister at Seymour Avenue and the search of those premises, which took place at about the same time as the accused’s arrest.
As I follow it, defence counsel argued to the judge that, inasmuch as the premises belonged, not to the accused, but to his sister, the evidence was more prejudicial than probative and that, even if some part of what was found at Seymour Avenue was relevant on the prosecution case, that did not extend to the entirety of the matters and things associated with methylamphetamine use and production found at Seymour Avenue.
In my view this ground is not arguable. Given that the accused was seen to carry something from the Seymour Avenue house to the Tarqui Drive premises, the finding at Seymour Avenue of relevant items, including evidence of the extraction of pseudoephedrine and other ingredients for amphetamine production, was plainly admissible. It tended to show that the appellant had access to items necessary for amphetamine production. It was evidence which supported the credibility of Ms Reading. The judge’s ruling on admissibility was clearly correct. Once the finding of these items was to be admitted into evidence, the jury was entitled to know what other items of an incriminating nature were found there. That was relevant to give colour to the more critical ingredients. It had the potential to throw light on any evidence to be given or argument that might be advanced by the appellant or his sister as to how the ingredients came to be at the Seymour Avenue house and as to their use.
It was suggested by the appellant that the judge’s ruling on admissibility confined the items about which evidence might be given and the use that could be made of them. Even if that is so (which is not clear to me), the use to which they were put by the prosecutor was a permissible one and conformed with his argument to the judge. As to the overwhelming prejudice said to be associated with the evidence, I would say this. It was clear to the jury that the house was that of the appellant’s sister and, accordingly, the fruits of the search were only prejudicial to the appellant, insofar as the jury associated them with the appellant.
I would refuse permission to appeal on these grounds.
Conclusion
The appeal should be dismissed.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by Vanstone J.
KOURAKIS J: I agree that the appeal should be dismissed for the reasons given by Vanstone J.