R v Long and McDonnell

R v LONG & McDONNELL
[2002] SASC 426
Court of Criminal Appeal: Doyle CJ, Lander and Bleby JJ

DOYLE CJ: The appellants were convicted on a charge of taking part in the production of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA).
There is no doubt that at the time and place in question methylamphetamine was being produced by Mr Furner. He was charged with the appellants. He pleaded guilty, and was called as a witness by the Prosecutor. The issue was whether the appellants participated in the offence.
The prosecution case against Ms Long was that she gave permission for the use of the house, of which she was a tenant, for the production of the methylamphetamine. She was present at the house when the police arrived, while the production was in process. Her defence was that she did not know that Mr Furner had set up equipment in the house to produce a drug, and did not give him permission to do so.
The prosecution case against Mr McDonnell was that he helped Mr Furner set up the equipment, knew what Mr Furner was going to do, and had agreed to help him dismantle the equipment just before the police came to the house. Mr McDonnell was found by police with Mr Furner in the room in which the equipment was set up. Mr McDonnell said that he was a regular visitor to the house. He had been there on the night in question, drinking with two other men who were also charged. He did not know what Mr Furner was doing in the room in question. After some drinking and talking he went to sleep. He was awoken by Mr Furner in the morning and at his request accompanied him to the room where the equipment was, just before the police arrived. He had not agreed to help Mr Furner. He moved a couple of glass containers around, “just to get them out of the way”. Then the police entered the room.
With that brief introduction, I will summarise the facts before dealing with the grounds of appeal.
Facts
About 4am on 30 September 2000 a man telephoned the Holden Hill Police Station. He informed a police officer that amphetamine was being produced in a house at a stated address on North-East Road. He said it was being produced by Mr McDonnell. He gave some further details.
At trial Mr Sutcliffe gave evidence that he made that phone call. His evidence was that he had been at the house that night. He saw Mr McDonnell carry boxes into the house. He later looked in the room to which Mr McDonnell took the boxes and saw that it was “set up like a chemistry lab.” Mr McDonnell said to him at some stage that it was a “cook up”, a term often used to refer to this method of producing drugs. Mr Sutcliffe said he had gone there to talk to Ms Long, with whom he had previously had a relationship. At some stage he overheard Mr Furner, Mr McDonnell, the two other men and Ms Long talking about doing some harm to him. This related to his relationship with Ms Long. He was scared and left the premises. He telephoned the police to get back at Mr McDonnell.
Mr Sutcliffe also gave evidence that about six to eight weeks before 30 September Mr Furner and Mr McDonnell had conducted a “cook up” at Ms Long’s house for the purpose of producing drugs. On this occasion the “cook up” took place in the laundry. He heard Mr McDonnell tell Ms Long that he had left some amphetamine in the kitchen for her.
The admissibility of this evidence is challenged on appeal, as is the direction that the Judge gave to the jury about the evidence.
I return to the narrative. Two detectives and two uniformed police officers went to the house at about 9am. Detective Ranger, the senior police officer, decided to search the premises. He held a general search warrant. He was in charge.
The four police officers entered the premises by the front gate. Detective Ranger and one police officer went to the front door. The two others went to a padlocked side gate. Detective Ranger knocked at the front door, and called out that the police were present. After a few moments Constables Denton and Van der Stelt, who could see men in the backyard, possibly leaving the premises, jumped the side gate and ran to the backyard. They found two men at the rear of the house. In response to a shouted instruction from Detective Ranger they forced the back door and opened the front door of the house for Detective Ranger and Constable Clarke.
An application was made to the Judge at the commencement of the trial to have all evidence obtained from the search that followed excluded, on the grounds that the search was unlawful. The Judge refused that application. That decision is challenged on appeal.
In an inner room of the house the police found equipment and chemicals suitable for making methylamphetamine. It was set up to do so. They found Mr McDonnell and Mr Furner in that room.
The police found Ms Long on a bed in a bedroom across the hallway from the room in which the equipment was. She was under the covers and was wearing tracksuit pants and a windcheater.
The two men in the backyard were Mr Koliroff and Mr Kuzmanouski. Mr Koliroff was charged with the others, but in breach of his bail failed to appear at trial. Mr Kuzmanouski was also charged, but was acquitted after the Judge directed the jury that there was no case to answer in relation to him.
As I have said, Mr Furner pleaded guilty. He gave evidence as a witness for the prosecution. He said that he had asked Ms Long for permission to use her house to make amphetamine. It appears from his evidence that he had the necessary equipment, and had used the equipment on previous occasions to produce drugs. Mr Furner said that Ms Long agreed to him using the house, and that she was to receive a share of the product of the operation. However, his evidence left unclear whether she knew that she would get a share. He said that she let him into the house, and was about the place when he was setting up the equipment and producing the drug.
A ground of appeal complains of the failure of the Judge to give an accomplice direction in relation to his evidence.
Mr Furner’s evidence was to the effect that the three men had nothing to do with his activity, and were not going to share in the product of it. Mr Furner said that he woke Mr McDonnell up and asked him to help him clean up, just before the police arrived. His evidence-in-chief tended to distance Mr McDonnell from the enterprise. The Prosecutor was given leave by the Judge to cross-examine Mr Furner on the basis that he was adverse for the purposes of s 27 of the Evidence Act 1929 (SA).
Mr Furner also denied that he had produced amphetamine at Ms Long’s house on a previous occasion, as claimed by Mr Sutcliffe.
The case against Mr McDonnell was based mainly on the following matters. It was put to the jury as a circumstantial case.
First, the evidence of Mr Sutcliffe that about six to eight weeks earlier Mr Furner and Mr McDonnell were mixing chemicals in glass beakers and that Mr McDonnell told Mr Sutcliffe they were doing “a cook up.” Second, Mr Sutcliffe’s evidence that on 29 September 2000 he saw Mr McDonnell carrying equipment into the house. Third, Mr Furner’s evidence that he woke Mr McDonnell and asked him to help tidy up, and Mr McDonnell agreed. Fourth, the evidence of the police that they found Mr McDonnell and Mr Furner in the room where the equipment was set up. Fifth, the fact that in that room police found an extraction jar on which were found Mr McDonnell’s fingerprints, and according to a fingerprint expert Mr McDonnell must have handled that jar twice. The jar could have been used in the production of drugs. Sixth, the fact that in Mr McDonnell’s motorcar in the backyard of the house the police found a piece of paper on which was written a list of chemicals and other items. Seventh, the fact that in Mr McDonnell’s motorcar the police found a piece of flue. There was a temporary flue installed in the room in which the production was taking place. The piece of flue found in the car was different in appearance. Eighth, the fact that when the police searched Mr McDonnell they found a quantity of amphetamine on his person in a snap-seal bag. Although not mentioned by the Judge, there was also Mr McDonnell’s evidence that he was a user of amphetamine.
A ground of appeal challenges the admissibility of the evidence that Mr McDonnell had amphetamine in his possession.
The prosecution case against Ms Long was also circumstantial, and rested mainly on the following matters. First, the evidence of Mr Sutcliffe that she had been at the house on the previous occasion on which Mr Furner and Mr McDonnell were mixing chemicals, and that she received some amphetamine from Mr Furner at that time. Second, Mr Furner’s evidence that he got permission from Ms Long to use her house. Third, Mr Furner’s evidence that when he came to the house on 29 September he told Ms Long that he would try to make speed, and she gave her permission. Fourth, the fact that Ms Long was in the house while the drug was being produced. Fifth, the fact that when the Prosecutor cross-examined Mr Furner, Mr Furner said that Ms Long was expecting to receive some of the product from him, if the process worked. Ms Long admitted that she used amphetamine.
I now turn to the grounds of appeal.
The lawfulness of the entry and search
After hearing evidence on the application to have the evidence of the search excluded, the Judge made a number of findings.
He found that before he arrived at Ms Long’s house Detective Ranger had reasonable cause to suspect that the offence in question had been committed at the premises. The basis for the reasonable cause was the information provided by Mr Sutcliffe by telephone. There are no grounds to disturb that finding.
That belief was a sufficient basis for Detective Ranger to enter the premises, without Ms Long’s permission, in exercise of the power conferred by the general search warrant. That warrant conferred a power to enter premises, with such assistants as Detective Ranger thought necessary, if he had reasonable cause to suspect that an offence had been recently committed in the premises. The belief was also a sufficient basis for the entry of the other three police officers, acting as his “assistants” for the purposes of s 67(4)(a) of the Summary Offences Act 1953 (SA). They were his assistants because they were acting under his general direction.
Ms Powell QC for the appellant submits that the conduct of Constables Denton and Van der Stelt, in jumping the locked gate and going to the back of the house, was unlawful. That submission rests on evidence given by Detective Ranger that his decision to execute the warrant in his possession was not made until he shouted out to Constables Denton and Van der Stelt to kick the back door down. Ms Powell’s submission is that the police initially entered the premises in exercise of an implied licence, that any implied licence did not permit entry beyond the locked gate, and that the police trespassed unlawfully when they jumped the locked gate. The entry was unlawful because any implied licence to enter the premises did not extend to the area beyond the gate, and Detective Ranger had not yet decided to execute the warrant or to make use of the powers that it conferred. Accordingly any evidence thereafter was obtained unlawfully.
I do not accept this submission.
Even if it was unlawful for the Constables in question to jump over the gate and go to the back of the premises, the Judge was right in holding that he should not exercise his discretion to exclude the evidence. Most of the relevant evidence was obtained after Detective Ranger decided to exercise the powers conferred by the warrant. Only a few moments elapsed between the suggested unlawful act of jumping the locked gate, and the exercise of the warrant. Moreover, Detective Ranger had in his possession at all times a warrant that, if invoked, would have authorised everything that was done. If he erred, it was only in thinking that he need not invoke the powers conferred by the warrant when his two assistants jumped over the gate. In all the circumstances, the unlawfulness can be regarded as relatively minor, and attributable to nothing more than a mistake as to when the powers conferred by the warrant should be invoked.
Although that suffices to support the decision that the Judge reached, I add that I doubt whether the premise underlying the argument is made out. In R v Romeo (1982) 30 SASR 243 at 277, Cox J (with whom the other two members of the court agreed) considered a similar situation which he described as follows:
“What is the position if a man forces his way into a house with two warrants in his possession, one which he erroneously believes gives him the required authority and the other which he erroneously believes does not? If his state of mind is relevant, he is clearly not relying upon the second.”
His answer (at 277) was as follows:
“However, if the detectives in this case correctly believed that the law authorized them to act as they did that morning, and if in an objective sense they were right about that, I do not think in principle that their acts would be invalidated merely because they had a wrong view about the proper source of their legal authority.”
Detective Ranger held a warrant which, if invoked, authorised what was done. At most, he wrongly thought that he did not need to invoke the powers conferred by the warrant until the back door was kicked down. He believed that he was authorised by law to act as he and his assistants did, and he was correct in the sense that the warrant that he held, if invoked, did authorise what was done. Like Cox J, not having heard full argument on the point, I prefer not to decide it, but it is appropriate to record that I regard the reasoning of Cox J as persuasive.
It may also be that s 75 of the Summary Offences Act gave Constable Denton and the other Constable power to jump over the gate. That section authorises a member of the Police Force, without any warrant, to apprehend any person whom the member has reasonable cause to suspect of having committed an offence. Constable Denton said that he suspected that the two men he saw in the backyard were involved in the commission of an offence involving the production of amphetamine. Dinan v Brereton [1960] SASR 101 is authority to the effect that a police officer exercising this power has authority to enter on private property for the purpose of effecting an arrest under that provision. Once again, it is not necessary to decide this point.
For the reasons given I conclude that the Judge was right in declining to exercise his discretion to exclude the evidence.
The evidence of previous production
I begin by summarising how this evidence could be used by the jury, if admissible and if accepted by them.
As against Ms Long, the evidence could be used as follows. It could be used as proof that Ms Long was willing to allow her house to be used to produce amphetamine. This use would rebut any suggestion by her that she would not do a thing like this. It could prove that she would allow Mr Furner in particular to use her house for this purpose, making it more likely that on a later occasion she would have given permission to him to use her house to make amphetamine. The evidence that she received some of the product on the previous occasion could provide evidence of a motive to allow Mr Furner to use her house on the occasion charged. This evidence would gain added force from the evidence that she used amphetamine.
As against Mr McDonnell, the evidence could be used as follows. It could establish that he knew, to some extent at least, how to set up the equipment and how to make amphetamine. Mr Sutcliffe’s evidence was that he saw Mr McDonnell and Mr Furner mixing up chemicals. Proof that Mr McDonnell had previously helped Mr Furner with the process gave added significance to the evidence that he was found in the same room as Mr Furner and the equipment when the police arrived. It would tend to rebut any claim of accidental presence or of innocent association. Another way of putting it is that it threw light on their relationship. The evidence of the earlier occasion would suggest that Mr Furner would trust Mr McDonnell to help him with the process. The evidence would gain added force from the evidence that Mr McDonnell was a user of amphetamine, and from the evidence that he was found in possession of amphetamine. That evidence would suggest a motive to assist Mr Furner.
The evidence could be used in another and more general way. Evidence that on a previous occasion Mr McDonnell and Mr Furner used Ms Long’s house, with her permission, used similar equipment and engaged in the very same process, tended to show the involvement of Ms Long and Mr McDonnell in an identical offence, at the same premises, involving Mr Furner. If this evidence was accepted it would support a conclusion that they were likely to be involved on the occasion charged. It was evidence of their complicity in the admitted offence by Mr Furner. To so reason would not be to reason that because they had offended before, they were likely to offend again. The reasoning is that the identity of the offence, of the location, of the method of operation and of the people present was such that it was highly improbable that those coincidences or repetitions could be explicable on any basis other than that Ms Long and Mr McDonnell were involved in the production of amphetamine on the second occasion.
The first kind of use identified by me is not an example of the use of the evidence to support propensity reasoning. It does not involve reasoning “… that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged”: Pfennig v The Queen (1995) 182 CLR 461 at 480-481 Mason CJ, Deane and Dawson JJ. The evidence is used in a different and more limited way. So, for example, proof that Ms Long was willing to allow Mr Furner to use her house to produce amphetamine is proof of an aspect of her relationship with Mr Furner, rather than of a propensity to offend. The point is clearer in relation to proof that Mr McDonnell knew how to produce amphetamine by the process in question.
The second kind of use of the evidence identified by me is either a form of propensity reasoning, or is so close to it that the distinction becomes insignificant. Used in that second way the evidence supports a conclusion that Ms Long and Mr McDonnell were implicated in the offence charged because of the coincidences or similarities between the earlier incident and the occasion charged. The reasoning is that proof of involvement in an offence in such similar circumstances supports an inference that they would have been involved when the offence was repeated under virtually identical circumstances (subject to proof of the guilty involvement of Ms Long and Mr McDonnell).
The High Court has established what I have called an exclusionary rule or presumption in relation to evidence that discloses the commission by an accused person of criminal offences on occasions other than that charged. I discussed this topic at some length in R v Nieterink [1999] SASC 560; (1999) 76 SASR 56. I will not repeat what I said then. I will repeat just two passages from my reasons. With reference to the exclusionary rule, I said at [32]:
“The decisions establish what can be called an exclusionary rule or presumption. It is not easy to state that rule or presumption in precise terms. It may be that there is no precise rule or presumption, and that the High Court is dealing with a general principle that has a number of different applications. For present purposes it suffices to refer to the following statement of principle by Mason CJ, Deane and Dawson JJ in Pfennig v The Queen (1995) 182 CLR 461 at 475. They refer to:
‘... the general principle that it is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.’
It is to be noted that that statement of principle refers both to the nature of the evidence (evidence disclosing criminal acts) and to its use (reasoning from conduct or character that the accused committed the offence).”
After considering a number of decisions of the High Court, I concluded that the exclusionary principle did not govern exclusively the admission of evidence disclosing uncharged criminal acts. I said at [75]:
“My conclusion from my consideration of the reasons of the various members of the High Court in BRS and in Gipp is that most members of the

Court have, at various stages, accepted the admissibility of evidence of uncharged criminal conduct, independently of the operation of the exclusionary principle. It is not easy to extract clear and precise statements of principle, because, as is so often the case with issues that arise in connection with the law of evidence, the application of the principle in the particular case depends very much upon the manner in which the evidence is used in the particular case. Nevertheless, I am satisfied that the principles stated in Hoch and Pfennig, which I have called the exclusionary principle, do not govern exclusively the admission of evidence of uncharged criminal acts.”
I illustrated the application of my conclusion, in the context of a sexual offence involving a girl of fourteen, at [76]:
“Applying those principles to the present case, I conclude that the evidence of the uncharged acts was admissible, in brief, on a number of bases. First, it could explain how the first charged incident came about, because it showed what might be called a lead up to the first charged incident. It could also explain the lack of surprise on the part of R. It could explain the confidence that the appellant might have had in repeating his conduct when committing each of the alleged offences. The submission of R to him over a period of time would give him confidence that she would submit again. It might help to explain the fact that R did not complain to her mother. The evidence could also establish a sexual attraction by the appellant towards R.”
I said that used this way, the evidence was not subject to the exclusionary principle. Mullighan J agreed with my approach.

In R v Palaga [2001] SASC 174; (2001) 80 SASR 19 I adhered to that view, referring to the recent decision of the High Court in KRM v The Queen [2001] HCA 11; (2000) 206 CLR 221. I refer, without repeating them, to my reasons in particular at [44]-[53]. On that occasion Nyland J agreed with my reasons.
The first possible use of the evidence identified by me is not an instance of propensity reasoning, and so the evidence was admissible for that purpose whether or not it satisfied what I have called the exclusionary principle.
Ms Powell argued otherwise. She submitted that the evidence did have to satisfy the exclusionary principle if it was to be admitted. That principle is conveniently stated by the majority in Pfennig at 481-482:
“The insistence in some of the judgments of this Court on the need to show that propensity evidence was relevant to ‘some other issue’ as one of the prerequisites of its admissibility so as to prove the commission of the offences charged contributed to a misunderstanding of the Makin principles and to statements of principles which lacked a clear and coherent theoretical foundation. So much was recognized by Mason C.J., Wilson and Gaudron JJ. in Hoch v. The Queen where their Honours stated that the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its 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. Mason C.J., Wilson and Gaudron JJ. said:
‘Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force … That strength lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.’
This passage should not be understood as asserting that ‘striking similarities’ or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.” (Footnotes omitted.)
In the present case the evidence given by Mr Sutcliffe was disputed, and so the following further passage from the majority reasons (at 482-483) is also relevant:
“Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here ‘rational’ must be taken to mean ‘reasonable’ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.” (Footnotes omitted.)
I defer for the moment the question of how the Judge told the jury they might use the evidence.
Ms Powell submitted that there was a rational view of the evidence of Mr Sutcliffe consistent with innocence. That view was that Mr Sutcliffe had fabricated the evidence. As there was such a rational view, the evidence was not admissible. She made the point that Mr Sutcliffe was likely to be an accomplice in relation to the earlier occasion. He was living at the house at the time, he was Ms Long’s friend or partner, he was an amphetamine user and he knew what was happening. As an accomplice he was an unreliable witness. He had a motive to cause trouble for Ms Long and Mr McDonnell. His evidence about the earlier occasion was uncorroborated. All of these points indicated that he might have fabricated his evidence.
She drew in particular on the reasons of the majority of the High Court in Hoch v The Queen (1998) 165 CLR 292. That was a case involving alleged sexual offences against three different boys. Each boy gave evidence of indecent conduct by the accused in strikingly similar circumstances. The issue was the admissibility of the evidence of each boy on the counts relating to each other boy. The majority (Mason CJ, Wilson and Gaudron JJ) said at 296:
“In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view – viz. joint concoction – is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.”
They went on to hold that the evidence was not admissible because concoction was a reasonable explanation for the striking similarity of the incidents described. They said at 297:
“In the present case it is clear from the evidence that the several complainants had a close relationship as well as opportunity to concoct their accounts of the offences charged. One complainant was ill disposed towards the applicant even before the events the subject of the counts in the indictment were said to take place. There is no feature of the case which displaces concoction as a reasonable explanation of the several accounts. The evidence of the several complainants lacked the requisite probative force necessary to render it admissible as similar fact evidence in relation to the other offences charged. There was therefore a miscarriage of justice by reason that the evidence was wrongly admitted and by reason of the refusal of the application for separate trials.”
Ms Powell also submitted that the Judge should have directed the jury that they could not act on Mr Sutcliffe’s evidence unless satisfied of its reliability beyond reasonable doubt. It is common ground that the Judge did not so direct the jury. He treated the evidence as an item of circumstantial evidence, subject only to the general directions which he gave to the jury in relation to circumstantial evidence.
Finally, Ms Powell submitted that the Judge’s directions were in any event inadequate. The Judge told the jury that the case against Ms Long and Mr McDonnell rested substantially upon circumstantial evidence. No criticism can be made of his treatment of circumstantial evidence. He used the analogy of a rope comprising many strands. He told the jury that they must first decide what facts they accepted as established by the evidence, and then what inference or inferences they were prepared to draw from those facts. He had not told the jury that whenever he referred to something being established, he meant by proof beyond reasonable doubt. He clearly summarised the matters relied upon by the prosecution as against each accused. He reminded them from time to time of the analogy of the rope, and of the two steps they had to take. He emphasised the need to consider “the combined strength of the established facts.” He then gave the jury a specific direction about the evidence of Mr Sutcliffe. It is convenient here to set out also his direction about the evidence that Mr McDonnell and Ms Long used amphetamine, and that Mr McDonnell was found in possession of amphetamine. This is what the Judge said:
“Next, ladies and gentlemen, I need to give you a direction concerning Sutcliffe’s evidence of events which allegedly occurred at the house in about August 2000. That evidence was led by the prosecution for a specific and limited purpose, that is, as circumstantial evidence to be considered with all the other circumstantial evidence in relation to the laboratory on 29/30 September. The evidence was not put before you to show that McDonnell and Long each had a general disposition to commit crime. It would be quite wrong to reason that McDonnell or Long is guilty of the offence charged because of a general disposition to commit crime.
I make the same point about the concessions of both McDonnell and Long that they were users of amphetamine. It is one thing to be a user of amphetamine, quite another to take part in the manufacture of the drug. Again it would be quite wrong to reason that McDonnell or Long is guilty of the offence charged because of a general disposition to commit crime.
I make the same point about the evidence of Constable Denton, that McDonnell was found, on being searched, to be in possession of a quantity of amphetamine. That evidence was led by the prosecution for a specific and limited purpose, that is, as an item of circumstantial evidence to be considered with all the other circumstantial evidence in relation to the laboratory on 29/30 September 2000. Again I emphasise that this evidence was not put before you to show that McDonnell has a general disposition to commit crime.”
The Judge did not explain the possible uses of the evidence in the manner outlined by me. He left it to the jury simply as circumstantial evidence to be used by them, along with other circumstantial evidence.
The admissibility of the evidence of previous production
As is apparent from the passages above, the Judge told the jury that the evidence of previous production of amphetamine was led for “a specific and limited purpose”, and was not to be used to show “a general disposition to commit crime.”
If the Judge had explained to the jury how the evidence could be used for a “specific and limited purpose”, not involving propensity reasoning, and along the lines suggested by me, it would not be necessary to consider whether the evidence satisfied the principles identified in Hoch and Pfennig in particular.
But the Judge did not explain to the jury what the “specific and limited purpose” of the evidence was. In my respectful view he should have done so. Without that guidance, there is a risk that the jury resorted to a form of propensity reasoning. Telling the jury how they could properly use the evidence, along the lines indicated by me, would remove that risk. The failure to do so, and reliance simply on a warning in general terms not to reason from “a general disposition to commit crime” means that the risk that the evidence was used for a propensity purpose remains. Nor am I sure what the jury would make of an unexplained reference to “a general disposition to commit crime.” This expression is well known to lawyers, but might not be well known or fully understood by jurors. I am not satisfied that the jury would have understood it as wholly excluding propensity reasoning.
If the evidence was to be used to support propensity reasoning, some guidance should have been given to the jury about this. In my respectful opinion it would have been preferable if the Judge had said to the jury, for example, that they should not reason that simply because Ms Long and Mr McDonnell had committed the same offence at Ms Long’s house, together with Mr Furner, it followed that they had committed or were likely to have committed the offence charged. The Judge should have said that reasoning in that way would be to reason that because a person has offended once, they were guilty of a further alleged offence. The jury should have been told that this evidence could be used, along with the other circumstantial evidence, if the jury thought that the coincidence of offence, persons involved, location and method of operation were such as to help the jury reach a conclusion about the involvement of Ms Long and Mr McDonnell in the offence charged. This is the sort of direction that should have been given in relation to the use of the evidence to support propensity reasoning.
Of course, as I have already pointed out, if the jury were to be directed to use the evidence for a more limited purpose, it was necessary for those more limited purposes to be explained to the jury, as well as for the jury to be told how not to use the evidence.
Having made those general comments, I turn now to deal with the submissions advanced by Ms Powell.
Mr Millsteed QC, counsel for the Director of Public Prosecutions, submitted that there was no risk of the jury using the evidence to support propensity reasoning. For the reasons that I have given, I do not agree. As my reasons indicate, the distinctions that have to be drawn in this area are not simple ones. The risk of unfair prejudice from this kind of evidence is significant. I am not satisfied that the jury would have understood that they could and should use the evidence in the more limited manner, not involving propensity reasoning, identified by me and by Mr Millsteed in his submissions.
I urge trial judges in cases like this to be more specific in explaining to the jury how such evidence can be used, when it is put before the jury on a basis that does not involve propensity reasoning, and also when it is put before the jury on a basis that it does involve propensity reasoning. That will help the jury understand how the evidence should not be used. I refer, without repeating it, to what I said on this point in Nieterink at [84]-[87]. As McHugh J said in BRS v The Queen (1997) 191 CLR 275 at 305:
“If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused’s propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.”
This passage was referred to with approval by McHugh and Hayne JJ in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 at [77]. The sort of direction that McHugh J envisaged will usually be given only if it identifies the permitted and non-permitted uses of the evidence.
Because of the risk that the jury used the evidence to support a form of propensity reasoning, it is necessary to consider whether the evidence was admissible if used in that way. I refer here to propensity reasoning along the lines already identified by me.
Before turning to admissibility, it is necessary to say something more about the Judge’s directions. Usually, as I have already said, it will be necessary for a judge to explain how the evidence can be used to support a form of propensity reasoning, and how it should not be used. But in this case the line of reasoning that involves propensity reasoning is simple and obvious. It is as I have said, that the earlier use of Ms Long’s house to make amphetamine by the same process, with her permission, and involving Mr McDonnell and Mr Furner, left as the only reasonable inference in this case the conclusion that when Mr Furner was found engaging in the same process at Ms Long’s house, Mr McDonnell being present, that Ms Long and Mr McDonnell were participating in the offence charged. For convenience I refer here to this evidence in isolation, although it was one item of the circumstantial case only. This was not the kind of case in which it may be necessary for the judge to identify for the jury, for example, relevant similarities, to comment on their significance, and to explain how the similarities might be used. That sort of direction will be necessary in some cases.
That being so, in the present case the direction that the Judge gave was adequate in relation to the use of the evidence for propensity purposes. While I have reservations about doing no more than warning the jury not to rely on “a general disposition to commit crime”, in the present case the permissible propensity use was so obvious, and the impermissible propensity use so unlikely, that the direction is adequate.
The evidence could be used to support propensity reasoning only if it was admissible applying principles identified by the High Court in cases such as Hoch and Pfennig. In fact, the Judge considered the admissibility of the evidence by reference to these cases, although it seems that by his direction he intended to direct the jury to use the evidence in a fashion that did not involve propensity reasoning.
I do not accept Ms Powell’s submission that the evidence was inadmissible because of the possibility that Mr Sutcliffe fabricated it.
In Hoch the basis for using the evidence on each count in support of the case on each other count lay in the argument that if three different boys described very similar sexual incidents involving the accused, their evidence was likely to be true, as a matter of experience and common sense, because of those similarities. The only other explanation would be coincidence (which would be extraordinary) or concoction. But if concoction by the boys was a reasonable or rational explanation for the similarities, the evidence was wholly deprived of its probative force. In Hoch the opportunity for concoction was apparent on the facts. There was, according to the majority in the High Court, nothing to displace the apparent possibility or real possibility of concoction by one or more of the boys. The critical point about Hoch is that the similarity between the incidents, on which the admissibility of the evidence depended, was reasonably explicable on the basis that the similarity was concocted.
The point of distinction is illustrated by what Gaudron J said in Harriman v The Queen (1989) 167 CLR 590 (at 614) about the decision in Hoch. She said:
“The probative value of what I shall, for want of a better expression, call ‘improbability evidence’ lies in the evidence, if accepted, not being susceptible of rational explanation on a basis inconsistent with the guilt of the accused: Hoch (1988) CLR, at p296. Where that probative value derives, if at all, from the improbability of concoction then it is necessary to inquire, as in Hoch, whether the evidence is capable of rational explanation on the basis of concoction. But that situation aside, probative value is a matter quite distinct from the question whether the evidence is necessarily, or even likely, to be accepted by a jury as true.”

In the present case the issue is different. As is so often the case when applying the principles of the law of evidence, the manner in which the issue arises is critical. The issue in the present case is not whether Mr Sutcliffe and another witness or other witnesses might have collaborated to create evidence of apparently similar conduct. Mr Sutcliffe’s evidence does not derive its probative value from the improbability of concoction, in the way in which the evidence in Hoch did. The issue is whether Mr Sutcliffe was telling the truth in relation to the previous production of amphetamine. Of course, the evidence of previous production gained its probative force from the coincidence of people involved, location and conduct. And it is true that a possible motive for Mr Sutcliffe to give evidence could be demonstrated, as Ms Powell did. But unlike Hoch, there is no fact in the present case (such as a proved close relationship between the boys in Hoch) which demonstrably gave rise to the possibility of concoction among witnesses, depriving the evidence of the required probative force.
It cannot be the case that whenever evidence of this kind is tendered, the evidence becomes inadmissible if counsel for the accused can point to a circumstance that makes it possible that the witness is lying.
Nor is this a case like Pfennig, in which evidence of suggested similar facts (a later sexual offence involving the accused) became admissible only after the trial judge was satisfied as a matter of fact of the presence of facts or the occurrence of events connected with the offence charged that gave rise to the similarity relied upon between the offence charged and the uncharged act relied on in proof of the offence charged. There was no dispute here about what Mr Furner was doing at Ms Long’s house when the police arrived. And there could be no dispute about the significant similarities that the offence charged bore to the evidence of previous production, if that evidence was accepted.
While the evidence here had force only if Mr Sutcliffe was believed, its admission did not require a finding by the trial Judge that there was no rational or reasonable explanation for the evidence on the basis that Mr Sutcliffe was lying.
Should the Judge have directed the jury not to act on the evidence unless satisfied beyond reasonable doubt of its truth?
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, or that the particular fact alleged (here the involvement of Ms Long and Mr McDonnell in the production) is proved.
I have earlier summarised the prosecution case against Ms Long and Mr McDonnell. It depended on the combined force of a number of items of evidence. Proof of the earlier production was not indispensable to a finding of guilt. The prosecution case was a solid one, especially as against Mr McDonnell, without that evidence. I refer for convenience to the statement by McHugh and Hayne JJ in their dissenting judgment in Gipp of the relevant principle, which is not in doubt. They said at [79]:
“It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in Shepherd v The Queen (1990) 170 CLR 573 at 579 where:
‘the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so.’
That statement was made with respect to circumstantial evidence but is equally applicable to a case such as the present.”
On this point I refer also to what Mason CJ said in Shepherd v The Queen (1990) 170 CLR 573 at 576. I add that in the present case there is no risk of the jury having fastened on this evidence in isolation, and having used it as a sole basis for a finding of guilt, even though the prosecution did not put its case that way. There is nothing in the summing up to suggest that they might reason this way, and everything the Judge said pointed to the contrary. Viewing the case as it was presented at trial, I am satisfied that the emphasis was on the other circumstantial evidence, rather than focussing on this particular item.
There was no need to give the suggested direction.
I have already dealt, along the way, with the submission that the Judge’s directions were inadequate. In summary, the summing up was inadequate, viewed as a direction on the use of the evidence of previous production to support proof of particular matters, not involving propensity reasoning. While more could usefully have been said in relation to the use of the evidence to support propensity reasoning, the correct use of the evidence was obvious, and an inappropriate use of the evidence was highly improbable. The jury did not need further guidance, although it would have been desirable to give it.
There is a final point to be made about the admissibility of the evidence of previous production. If the evidence of the uncharged act was admissible only if it had a high degree of probative force, in my opinion it had that probative force. There was no dispute here about what Mr Furner was doing at Ms Long’s house when the police arrived, and there could be no dispute about the significant similarities that the offence charged bore to the evidence of previous production, if that evidence was accepted. The evidence gained its probative force from the coincidence of people involved, location and conduct. There is no fact which demonstrably gave rise to the possibility of concoction, such as in Hoch, depriving the evidence of its probative force. I am satisfied that there is no reasonable view of the evidence, if accepted, other than that it supports an inference that the accused were guilty of the offence charged. If the evidence is required to meet the stringent Pfennig test, in my opinion it meets it.
For those reasons in my opinion the evidence was properly admitted and the directions were adequate.
Evidence of the use and of the possession of amphetamine
This evidence relating to the use by Ms Long and Mr McDonnell of amphetamine, and the possession of amphetamine by Mr McDonnell, could be used by the jury to support a conclusion that as users of amphetamine, each of the accused had a reason to give permission for the house to be used or to assist with the process of production. The evidence was not used to support propensity reasoning.
The evidence was simply one piece of circumstantial evidence, to be considered along with the circumstantial evidence as a whole. To be admitted, the evidence did not have to satisfy the principles stated in Hoch and Pfennig. It did not have to be evidence which, considered in isolation, was capable of no rational or reasonable explanation other than on the basis of guilt.
I reject the submission that this evidence was not admissible.
Failure to give an accomplice warning
On the evidence, Mr Furner was an accomplice of Ms Long and Mr McDonnell, if they were guilty.
The Judge did not give to the jury the warning usually given in relation to the evidence of an accomplice. The Judge gave the following direction about Mr Furner:
“Trevor Furner has pleaded guilty to the charge of taking part in the manufacture of methylamphetamine and has yet to be sentenced. You will have to ask yourselves some questions about him when you come to consider his evidence. Did he appear to be unwilling to tell the truth or the whole truth on every occasion? Was he trying to protect or minimise the role of others? Was he trying to minimise his own involvement at the expense of others? Whatever the answers I suggest you should subject his evidence to careful scrutiny before you decide to rely upon any part of it.”
The Judge did not tell the jury that it was dangerous to act upon Mr Furner’s evidence in the absence of corroboration. On the other hand, bearing in mind that there was significant corroborative evidence, this meant that the jury were not told that if there was corroborative evidence they might, not withstanding the warning, but having regard to the reasons that can make accomplice evidence unreliable, nevertheless choose to act on the evidence of Mr Furner.
Counsel asked the Judge to give an accomplice direction, but did not press the point when the Judge pointed out that there was substantial evidence corroborating the evidence of Mr Furner. In my view that is not a sufficient reason of itself to refrain from giving the usual warning. The presence of corroborative evidence does not make the warning irrelevant. As I said in R v Power (1996) 87 A Crim R 407 at 411, when a warning is given it should not be given in terms that imply that if corroborative evidence is found, special care is no longer needed. On that point, see also R v Baker [2000] SASC 407; (2000) 78 SASR 103 at [4] Duggan J.
I accept that usually an accomplice warning is required as a matter of law. But there may be circumstances in which the warning is not necessary. R v Gallagher [1986] VR 219 was such a case. There the evidence of the suggested accomplices was, by and large, favourable to the accused. It was held that the failure to give the warning did not result in a miscarriage of justice. A similar approach was taken in R v Royce-Bentley [1974] 1 WLR 535 at 538-539. That was a case in which the accomplice gave evidence some of which was favourable to the defence and some of which was favourable to the prosecution. It was held that the Judge was not obliged to give an accomplice direction.
In the present case Mr Furner gave evidence which was capable of implicating Ms Long and Mr McDonnell. But that evidence was somewhat equivocal. And overall, a reading of his evidence makes it clear that he tended to distance the accused from the offence that he was undoubtedly committing. The effect of his evidence was that he was the one who took the equipment there, he set the equipment up, he operated the equipment, he did not tell others what he was doing. The evidence he gave that was capable of implicating Ms Long and Mr McDonnell was by no means forthright. Nevertheless, it did tend to inculpate them, but only in a limited way.
My view is that in these particular circumstances the accused had an interest in the jury accepting the thrust of Mr Furner’s evidence to the effect that if the accused were involved at all, it was peripheral. Because the inculpatory evidence was rather tentative, it was possible that the jury would discount it even further, and in the end conclude that Mr Furner was not to be treated as an inculpatory witness. A full accomplice warning, in the usual terms, might have caused the jury to doubt the exculpatory tendency of his evidence, and might have pointed the jury in the opposite direction.
Bearing in mind what the Judge said, and not overlooking the fact that he did alert them to the possibility that Mr Furner was trying to protect or minimise the role of others, my view is that there has not been a miscarriage of justice in this respect. It would have been better if the Judge had given a direction more along the lines of the usual accomplice direction, modifying it somewhat to take account of the particular features of this case. But in the end, having regard to the substantial corroborative evidence, the direction the Judge actually gave, and the particular features of Mr Furner’s evidence to which I have referred, I am satisfied that there was no miscarriage of justice.
Accordingly, I reject this ground of appeal.
In the course of argument, although it did not form the subject of a ground of appeal, the issue arose whether an accomplice warning should have been given in relation to Mr Sutcliffe’s evidence about the previous occasion on which amphetamine was produced at the house. Not having heard full submissions on the point, I prefer not to express a firm view on it. I am inclined to think that such a warning is not necessary in relation to involvement in an offence with which the accused are not charged.
Conclusion
For those reasons I do not accept any of the grounds of appeal, and would dismiss the appeal.
LANDER J:I agree with the Chief Justice’s reasons that the appeal should be dismissed.
BLEBY J: I agree that the appeal should be dismissed. I have nothing to add to the Chief Justice’s reasons.

[2002] SASC 426

20 December 2002