R v Lumsden

[2003] NSWCCA 83

CITATION:	R v. Lumsden [2003] NSWCCA 83
HEARING DATE(S):	5 July 2002
JUDGMENT DATE:	3 April 2003
JUDGMENT OF:	Mason P at 1; Hulme J at 12; Smart AJ at 61
DECISION:	Appeal dismissed
CATCHWORDS:	Admission of identification evidence of Sgt Rayner and directions as to that evidence not erroneous - admissibility of evidence of drugs found at applicant's premises 2 months after offence - directions not inadequate - cross-examination by Crown of defence witness did not breach the credibility rule as matters had substantial probative value
LEGISLATION CITED:	Evidence Act 1995 Crimes Act 1900 Criminal Procedure Act 1986
CASES CITED:	BRS v The Queen (1997) 191 CLR 275 Domican v The Queen (1991-1992) 173 CLR 555 Attorney General v Willessee [1980] 2 NSWLR 143 Hinch v The Queen (1987) 164 CLR 15 Markby v R (1978) 140 CLR 108 R v Andrews [2003] NSWCCA 7 R v AB [2001] NSWCCA 496 R v Glasby [2000] NSWCCA 83 R v Glennon (1982) 173 CLR 592 R v Beattie (1996) 40 NSWLR 155 Harriman v The Queen (1989) 167 CLR 590 R v Taouk, R v Hanna [1982] 2 NSWLR 974
PARTIES :	Regina Christine Lumsden
FILE NUMBER(S):	CCA 60162/2002
COUNSEL:	Appellant: P. G. Berman S. C Respondent: P. Barrett
SOLICITORS:	Appellant: D. J. Humphreys Respondent: S. E. O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/61/0131
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

CCA 60162/2002

MASON P
HULME J
SMART AJ

Thursday 3 April 2003

REGINA v Christine LUMSDEN

Judgment

1 MASON P: I have had the benefit of reading, in draft, the reasons of Hulme J and Smart AJ. They set out the material facts and the issues raised in the five grounds of appeal.

2 Like Hulme J, I agree with Smart AJ on Ground 1.

3 I agree with Hulme J on the remaining grounds, subject to the following as regards Ground 3.

4 I cannot accept the proposition that evidence of an accused person’s involvement in criminal activity other than that charged is highly prejudicial and inadmissible on that account. Thus formulated, it would exclude cogent and properly probative evidence of a high-speed getaway from a bank robbery or of currency offences in connexion with a drug importation.

5 On the other hand, evidence as to the criminal conviction of an accused person in relation to a discrete offence (especially if of the same nature as that charged) will almost invariably be inadmissible. But that is because of the combined impact of the conviction (which puts guilt or innocence beyond doubt) and its capacity to induce the jury to engage in propensity or tendency reasoning. Such evidence is highly prejudicial and unfair in its trenching upon the presumption of innocence. No such question arises here.

6 Evidence of uncharged, discrete criminal activity that is relevant to proof of the crime charged is not excluded by s97 of the Evidence Act, at least to the extent that it is not relied upon to establish a propensity or tendency to commit the crime charged. Nothing suggests that the evidence about discovery of the methylamphetamine at the appellant’s house on 2 July 2001 was relied upon in such an impermissible way. The evidence was admitted without objection at trial.

7 A duty to direct the jury not to use properly admissible evidence for improper propensity or tendency reasoning may be enlivened in a particular case (see BRS v The Queen (1997) 191 CLR 275). But this is not the issue raised in Ground 3, which addresses the very admissibility of the evidence.

8 I agree with Hulme J that the evidence was admissible because it was probative of facts tending to establish the offence charged, namely an ongoing business operated by the appellant from her home involving possession of the drug there, which was readily accessible for supply as required.

9 The point on which I wish to reserve my position, vis a vis the reasons of Hulme J, is the question whether the evidence was incapable of being tendency evidence simply because it was evidence of physical inanimate facts. As presently advised, I do not share that view. The finding of the drugs in the house only assumed relevance because it was the appellant’s house and because this gave rise to the inference that they were in her possession. These facts in combination could be capable of giving rise to a tendency issue in particular circumstances (absent in the present case).

10 Ground 3 also fails because no objection was taken at trial and because the presence of this evidence did not cause any substantial miscarriage.

11 The appeal should be dismissed.

12 HULME J: In this matter I have had the benefit of reading in draft form the reasons for Judgment of Smart AJ. I agree with his Honour that the first ground of appeal, in which it was claimed that the trial judge erred in admitting the identification evidence of Scott Raynor, fails. I agree also that Detective Rayner’s evidence was identification evidence. I disagree with his Honour in respect of the other four grounds and as to the disposition of the proceedings. His Honour’s account of the evidence and issues however enables me to deal with some of the matters more cryptically than otherwise.

Ground 2
His Honour’s direction to the jury concerning Rayner’s purported identification was inadequate, or misled the jury as to the effect of Detective Rayner’s evidence.

13 The conclusion that Detective Rayner’s evidence was identification evidence disposes of the second part of this ground. The first part of the ground provides yet another instance where this Court is asked to allow an appeal on a basis quite inconsistent with the way in which the trial the subject of appeal was conducted. Hopefully, the now introduced practice of regularly recording counsel’s addresses will reduce the frequency with which this occurs.

14 Detailed consideration of the transcript of the proceedings at first instance makes it clear that, once the trial judge decided to admit the evidence of identification of the Accused as involved in the first instance of supply, that identification ceased to be a significant issue in the trial.

15 Before the jury, the Crown called five witnesses. The first was Detective Radwan. He gave evidence that he met “Christine Lumsden” outside 50 Rodd Street, Canowindra on the morning of 2 May 2000 when she arrived in a blue Toyota station-wagon. Further questioning indicated that the “meeting” was in fact a sighting. The sighting was in the context of evidence from Detective Radwan that the Appellant drove up and supplied something to Toni Slattery who supplied it to Detective Radwan.

16 Detective Radwan’s evidence that it was the Appellant whom he met was given without objection although it should be noticed that later, after objection, his evidence suggesting that it was the Appellant who was involved was framed by reference to the person who had been in the station-wagon on the morning of 2 May. There was no cross-examination challenging the evidence to which I have referred.

17 Detective Radwan said also that he did not see the number of the blue vehicle at that time but, after recognising that it was the same vehicle on the evening of 3 May, recorded its number, QYU-656. After the Crown was allowed to further examine him in chief, he also gave evidence that on the morning of 2 May 2001 at 50 Rodd Street, Canowindra he had asked Toni Slattery if he could buy some “goey” and she said “yeah, I’ll call Chris”. Toni Slattery then left the premises for a short time. She returned a few minutes later, saying her (presumably Chris’) phone was busy. Soon after Toni Slattery left and returned again and shortly afterwards the blue Toyota station wagon arrived outside. There was no challenge to any of this evidence.

18 The second area of the trial which shows that there was no significant dispute concerning the identification of the Appellant is the evidence in chief of Detective Rayner, who was the second witness, and the way in which it was permitted to be given. In that evidence, he said that on the morning of 2 May he saw a blue station-wagon QYU-656 driven by a woman he described, drive past the vehicle in which he and Detective Smith were seated undertaking surveillance of and about 50 Rodd Street, and pull up outside those premises. Then he observed someone walked from the premises to the vehicle, and spend a short time there. Then Detective Rayner gave the following evidence, again without objection.

Q. Did you subsequently make an enquiry as to who the car was registered to?
A. Yes.
….
Q. Who was it registered to?
A. The accused, Christine Lumsden.
Q. Did you see her again on that day, the 2 May?
A. Yes I did.
….
Q. What time?
A. It was a short time after I saw the vehicle leave 50 Rodd Street, about 11.48am.
Q. What was the car doing?
A. It was parked against the kerb … and the accused was seated in the driver’s seat of the vehicle, it was stationary obviously.
….
Q. Did you have a chance to have a good look at the occupant?
A. I did … .
Q. Where you satisfied it was the same person you’d seen previously in the other street?
A. Yes I was satisfied it was the seme person I’d seen just a matter of moments before when the car drove past me initially.

19 Again, although Detective Rayner was cross-examined, there was no challenge to any of the evidence to which I have just referred.

20 The same absence of dispute is evident in the evidence of the third witness, Detective Smith. Detective Smith said that he knew the Appellant previously. He said also that on the morning of 2 May he saw the vehicle QYU-656 driven by the Appellant pull up outside 50 Rodd Street, that Toni Slattery went to the vehicle and “sort of lent” into it. Again there was no challenge in cross-examination to this evidence.

21 Reference should also be made to the fact that immediately after Detective Smith retired, the Crown Prosecutor announced:-

Your Honour, although I opened to the jury and nominated a large number of prosecution witnesses, as far as the Crown’s concerned, there is no need to call any further witnesses. However, I say this in open court because I wish to make any of them available to my friend for cross-examination should he choose to.

22 Counsel for the Appellant then indicated he wished to cross-examine two other persons. Their evidence related to events on the evening of 2 May, not the morning. Earlier, after it had been suggested in cross-examination that Toni Slattery hid the drugs she supplied in a rockery (by inference thus making it unnecessary for them to have been supplied by the Appellant), the Crown Prosecutor had indicated in the absence of the jury that:-

“We do have phone records as well Your Honour and we’re going to tend to the matter at about the time the transaction was made as far as we’re concerned. We have phone records linking the accused with the number of a neighbour of … . I was tossing up in my mind whether to lead that in chief for various reasons but now that its been raised. (sic)”

23 Later, during cross-examination of Toni Slattery, she agreed that it was possible that, if the Appellant’s line was busy, she tried to ring the Appellant over 10 times on the morning of 2 May from the phone of a neighbour. The terms of the questioning would suggest that the Crown had records of the phone calls from the neighbour’s phone.

24 While not conclusive, this material suggests very strongly that, at the conclusion of Detective Smith’s evidence, the Crown Prosecutor regarded the topic of the identification of the Appellant in connection with events of the morning of 2 May as not, or not seriously, in issue. Except in one respect during the evidence of Detective Radwan, there had been no objection to the evidence tending to identify the Appellant. The evidence included both evidence of the sighting of the car and of the Appellant’s ownership of it and of the sighting of her, none of which had been challenged.

25 The defence adduced no evidence as to who, other than the Appellant, might have been driving her car in Rodd Street on the morning of 2 May. The only direct evidence tending to suggest that it was not the Appellant who was involved in the supply of drugs at that time was some of the evidence given by Toni Slattery who was called in the defence case. Ms Slattery said that the drugs she supplied to Detective Radwan on the morning of 2 May were obtained from a rockery in her garden where she had them stored. Furthermore, although she agreed in evidence in chief that she had told Detective Radwan she would ring “Chris”, Ms Slattery said that she did not ring anybody.

26 In cross-examination Ms Slattery agreed that she could have rung Chris and although there are no express admissions that she did so, her denials do not appear from the printed page to be persuasive. More importantly, although in evidence in chief Ms Slattery said that she saw Christine Lumsden regularly in her blue Toyota and could have seen her on the morning of 2 May, in cross-examination she said she thought Christine came to 50 Rodd Street that morning, and that she herself would have gone out to see the Appellant about being taken down the street. She also said that Detective Radwan might still have been there at the time but that she had given him the drugs by that time, something like 10 to 15 minutes beforehand.

27 Thus the only witness in the defence case who gave evidence as to events of the morning of 2 May said that she thought the Appellant and her car were in the street that morning at about the time Detectives Rayner and Smith, in evidence which was unchallenged, said that they saw the Appellant and her car there. And, as I have said, there was no explanation as to how the Appellant’s car might have been there without the Appellant.

28 For completeness, I should refer to the only other evidence which suggests that the Appellant was not in Rodd Street on the morning of 2 May. The Appellant’s husband asserted that he and the Appellant were at the house of a Mr Thurtell from about 2 to 8.30 pm on 2 May, apart from an half hour or so between about 3.30 and 4 pm when the Appellant was picking up her children from school. Mr and Mrs Thurtell gave similar evidence. If that evidence was correct, the Appellant could not have supplied the drugs on the evening of 2 May at the time Detective Radwan said he was supplied, viz at about 8pm.

29 Detective Radwan said that drugs with which he was supplied on the evenings of 2 and 3 May were supplied by the same person he had seen in the blue car on the morning of 2 May. If this, and the evidence to which I have referred in the immediately preceding paragraph is correct, the Appellant could not have been the person seen by Detective Radwan in the morning. However, the evidence can hardly be said to amount to a challenge to Detective Rayner’s identification of the Appellant.

30 Of course, the onus of proof of the Appellant’s involvement remained on the Crown and his Honour had thus to give the jury some directions on the topic of identification. When his Honour came to sum up, his remarks on the topic included the following. He pointed out that the law recognises that errors and mistakes in identification have been made in the past and that everyone may have had the experience of seeing or speaking to someone who turned out not to be the person originally thought. His Honour pointed out that quite often people who make identification are thoroughly convinced and honest but may be mistaken. The jury were told to look closely at the identification evidence.

31 It was pointed out that Detective Smith was in a different position from Detective Rayner. Detective Smith had had dealings with the Appellant in the past and knew her by appearance and name. Reference was made to Detective Smith’s evidence of seeing the Appellant drive past him on the morning of 2 May and of recognising her but his Honour pointed out that Detective Smith had not seen the Appellant standing up but only seated in the car.

32 His Honour said that the law recognises that the most satisfactory identification is a line up but drew the jury’s attention to counsel’s submission as to the undesirability of interrupting an ongoing police operation and to whether it would have been of any use to have a line up after one of the police officers was involved in the Appellant’s arrest. Turning to Detective Rayner, his Honour said:-

“Well now the evidence of Detective Sergeant Rayner is in a somewhat different situation of course because he clearly said “I have never met this person before. I don’t know her personally. I come from Orange but I saw her first of all when the car drove past our car”, that he was with Smith in. “I saw her then. I was also in a police car a short time later that morning when I saw the accused’s car and I saw her getting out of it in another street in Canowindra.” Now, in that situation, again, you would have to look at his capacity as a police officer. He is not in any particular category of course because he is a police officer but he is someone who you might think is trained to make observations and retain things in his mind. He did not see her again, of course, for two months – that is another matter which you would have to take into account – but when he went out there and he went out there on the raid and at the time of the arrest on 2 July, when he went out there he said “It’s the same person”.

33 There was no request for any redirection. Nor had there been any request for a warning under s165 of the Evidence Act – matters which further support the view that Detective Rayner’s identification evidence was not a significant issue.

34 There can be no doubt that if Detective Rayner’s evidence of identification of the Appellant at the time of her arrest represented “any significant part of the proof of guilt”, the directions given were inadequate – Domican v R (1991-1992) 173 CLR 555 at 561-2. They did not contain a “clear and cogent” warning as to the dangers of convicting on the basis of it, nor was there any instruction “as to the factors which may affect the consideration of … (it) in the circumstances of the particular case”. Obviously, there was a risk – whether great or small was a matter for the jury – that, if Detective Rayner’s observations and recollection of the offender had been less than perfect, that he would be influenced to pick the Appellant because, when he went to her home, he first saw her in conversation with 2 other police officers.

35 However, in light of the matters to which I have referred, it is impossible to avoid the conclusion that in the way the case was run, Detective Rayner’s identification of the Appellant did not represent a significant issue or significant part of the proof of her guilt. This ground fails.

Ground 3
The evidence as to drugs found at the premises of the Appellant on 2 July 2001 should not have been admitted.

36 The first count against the Appellant alleged that between 1 May 2001 and 30 May 2001 on three or more separate occasions during that period she supplied methylamphetamine for reward. The case presented was in effect that when approached, directly or indirectly, on 2 and 3 May the Appellant supplied a quantity of the drug for $50 per time. That evidence suggested that the Appellant was, at that time, conducting a business of such supply. The quantities supplied were, according to the evidence, .3, .3 and .21 of a gram. The methylamphetamine found in the Appellant’s premises on 2 July was contained in six (or 9 – there is some inconsistency in the evidence) re-sealable plastic bags. The quantity totalled 2.24 grams. That evidence would suggest that the Appellant was at that time engaged in a business of the supply of methylamphetamine. In my view such evidence “could” rationally affect the assessment of the probability of her having been conducting such a business in May and thus the probability of whether it was she who supplied the drugs on 2 and 3 May and in particular whether she was the driver of her motor vehicle at the time the drugs seem to have been supplied from it.

37 I do not suggest that, of itself, the possession of the drugs in July would have been enough to prove her participation in events in May but I am certainly persuaded it is relevant. In reaching that conclusion, I am conscious that the presumption of continuance is generally employed in the reverse direction and that the time gap of 2 months substantially affects the weight of the evidence. However, I am unable to see that it is of no weight whatsoever. Furthermore, no objection was taken to the admissibility of this evidence. That is, of course, not an answer to the ground of appeal if any of the provisions of the Evidence Act, e.g. Section 137, required its exclusion but I see no basis for such a contention.

38 It was submitted that “any suggestion that an accused person has been involved in other criminal activity has been rightfully regarded as highly prejudicial” and reference was made to Attorney General v Willessee (1980) 2 NSWLR 143 at 150 and Hinch v R (1987) 164 CLR 15 at 28, 37. So expressed the proposition must be rejected and the authorities cited do not support it. What they do say is, to quote one of the passages (164 CLR at 28):-

“Yet knowledge of a prior conviction is likely to prejudice a jury against an accused person and induce a jury to conclude that he had a propensity to commit the offence charged. For this reason the acquisition by a jury of knowledge of a prior conviction of the accused is usually regarded as causing such prejudice that the trial is invalidated thereafter: Willessee. ”

39 As formulated, the proposition would preclude in most cases an offender being charged with more than one offence at a time – a result which is so contrary to common practice as to demonstrate error in the proposition leading to the result.

40 I do not for one moment deny that evidence that an accused person has been involved in criminal activity is liable in many cases to be prejudicial. Especially is this so if the evidence is of conduct which tends to show propensity to commit offences generally or offences of the type charged or, depending on it nature, is of a prior conviction, a fact which of itself is calculated to be strongly indicative of earlier guilt. But the facts here are substantially different.

41 The evidence of the presence, and by inference the possession, of the methylamphetamine found at the Appellant’s house was not radically different from the evidence of the Appellant’s possession implicit in the evidence of the 3 instances of her supply. Thus, for example, relative to the charge of supply on the morning of 2 May, the evidence of possession in July was not inherently more prejudicial or “unfairly prejudicial” than the evidence of supply on the evening of 3 May.

42 If irrelevant, the evidence of possession in July should have been excluded on that ground, but if relevant its probative value was not outweighed by the danger of unfair prejudice.

43 It was further submitted on behalf of the Appellant that the evidence was tendency evidence and asserted, without dissent, that no notice of intention to adduce the evidence was given.

44 Section 97 of the Evidence Act provides:-

“Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

45 If the evidence falls within the first of the paragraphs quoted, then there are provisions of the Act, in particular ss99 to 101 to which regard must also be had.

46 The evidence of the presence of methylamphetamine in the Appellant’s premises at the time of the police search is not tendency evidence. It is evidence of physical inanimate facts, not evidence of conduct of the Appellant. And even if that view be wrong, the prohibition in s97 is on the use of conduct etc to prove that a person had a tendency to act in a particular way, not on use to prove, by a more direct form of reasoning, that a person did act in a particular way. As to the distinction, see Markby v R (1978) 140 CLR 108 at 116

47 Even if the chain of reasoning be that in totality the circumstances are indicative of possession of the amphetamine by the Appellant in July, that it is to be inferred from this (and other) evidence that at that time there was a business of amphetamine selling and of conduct by her in carrying the business on, [and thus a likelihood that she was carrying it on some time earlier,] it still does not seem to me that the only way the evidence should fairly be described is that it proves the Appellant had a tendency to sell amphetamines. It also tends to prove she was selling them.

48 I should observe also that there is nothing in the summing up to suggest that arguments based on tendency were ever put to the jury.

49 The conclusions at which I have arrived make it unnecessary for me to consider in any detail other issues which arise under s97 and its associated sections of the Act. I would merely say that there is much to be said for the view that the Appellant should not be allowed to raise the issues in this Court, given that there was no objection taken at the trial. The trial judge was never asked to consider whether, even if notice was not given precisely as required by s99, the service of the Crown brief amounted to reasonable notice under s97 – see R v Andrews [2003] NSWCCA 7 at [14]. See also R v AB [2001] NSWCCA 496 at [14-15]. Given the absence of objection, it is inconceivable that the evidence was not contained in that brief. Nor was his Honour given the opportunity of considering whether the requirement of notice should be dispensed with under s100, conditionally or unconditionally. This Court should not readily accept the burden of deciding these questions for the first time.

50 This ground fails.

Ground 4
His Honour’s direction concerning the drugs found at the Appellant’s premises on 2 July 2001 was inadequate.

51 It was submitted that, if admissible, the evidence of the finding of amphetamines at the Appellant’s premises on 2 July required careful direction by the Judge to avoid the jury indulging in impermissible reasoning and that the jury should have been told they could not substitute the uncharged and unspecified criminal behaviour associated with those drugs for the offences appearing in the indictment.

52 However, his Honour did direct the jury that the Crown had to prove beyond reasonable doubt “the essential elements of the charges themselves”. He identified those in the first count as being the 3 individual charges of supply included in the indictment and then emphasised that the first charge was that “on those three occasions, two on 2 May and the third on 3 May that she supplied a prohibited drug.” Later his Honour repeated yet again that “to return a verdict of guilty on the first charge, you would have to be satisfied beyond reasonable doubt that those three individual transactions, supplies, occurred, that I have outlined to you.”

53 Trials proceed on the basis that juries will adhere to directions given - see R v Glasby [2000] NSWCCA 83 at [112] et seq.; R v Glennon (1992) 173 CLR 592 at 614. Almost invariably a jury is told and expected to exercise their “common sense”. The jury were invited to do so in this case. The suggestion that in addition to the directions which his Honour gave, the jury needed to be told that they could not substitute possession of drugs two months later for the conduct charged seems to me consistent only with the view that the jury would ignore the clear directions they were given and had no common sense.

54 In saying what I have I do not suggest that there are not cases where a further direction along the lines suggested is needed. Cases where there are a series of charges of, for example, sexual assault, where it is difficult to identify the occasions charged from occasions where there was other similar conduct are prime examples of where such a further direction may be required. But the facts of this case are far, far removed from those.

Ground 5
The Crown Prosecutor’s cross-examination of witnesses called by the Appellant (Mr Thurtell and the Appellant’s son, Mr Michael Lumsden) breached the credibility rule found in s102, Evidence Act.

55 After Mr Thurtell volunteered that he had “done time” and “been away for 6 months” he was asked, in effect, whether his imprisonment arose from the commission of two offences. One was of supplying a prohibited drug, the second was of having goods in personal custody reasonably suspected of being stolen or that didn’t belong to him.

56 The second of these offences is clearly one which in almost all cases, bespeaks dishonesty. The first is indicative of a disregard of a law designed and calculated to reduce harmful conduct within the community and akin to the conduct with which the Appellant was charged. The credibility of Mr Thurtell and the reliability of his evidence were important factors in the case. Had I been the tribunal of fact and given the task of assessing the accuracy of Mr Thurtell’s evidence, I would have been very interested to know of those offences because they bear on the issue of whether he should be believed, either in terms of inherent honesty or because he might see nothing wrong in the conduct with which the Appellant was charged, and thus be more willing to help her regardless of the truth. I agree with Smart AJ that it does not follow that because a man has supplied drugs he will give false alibi evidence. I would go further and say that persons convicted of having goods in custody, whether or not the product of drug sales, may also tell the truth. Someone with convictions for both offences may do so. However, it seems to me very relevant to an assessment of whether that person should be relied upon to tell the truth to know of his prior convictions. The evidence had “substantial probative value” and thus was admissible under s103(1).

57 The particular questioning of the Appellant’s son which was objected to was questioning which involved the suggestion, with which he agreed, that he had two cannabis plants growing in the Appellant’s house on 2 July. I agree that, if nothing more appeared, such evidence would have no substantial probative value and thus be inadmissible. However, the questioning arose in the context that the Appellant’s son was claiming that the amphetamine found there on 2 July was his even though, notwithstanding the charges against his mother, he had not revealed the fact until he gave evidence in February 2002.

58 The tenor of the cross-examination was to the effect that the Appellant’s son had the cannabis plants growing on 2 May, that they were found by the police during the search of the premises on that day, that the son admitted to the police possession of the cannabis plants but, notwithstanding the finding also of amphetamine, he did not assert possession of that until the trial. Had the Appellant’s son agreed with all of these suggestions, his evidence in that regard would have been of substantial probative value in assessing the reliability of his late assertion that the amphetamine found was his. In fact the Appellant’s son denied being spoken to by any police about the raid on 2 July but that does not matter. The fact that all the admissions sought were not forthcoming does not make the questioning or the answers which were given, inadmissible. The test under the s103 of the Evidence Act of whether evidence has substantial probative value does not depend on whether the cross-examiner received the answers sought – R v Beattie (1996) 40 NSWLR 155 at 163.

59 This ground also fails.

Conclusion

60 In my view none of the grounds of the appeal are made out and the appeal should be dismissed.

61 SMART AJ: Christine Lumsden appeals against her conviction of the offence that on three separate occasions during a period of 30 consecutive days (1-30 May 2001) she supplied a prohibited drug (methylamphetamine) for financial or material reward. She was sentenced to imprisonment for 2½ years to date from 2 July 2001 with a non-parole period of one year. She was released from prison on 1 July 2002. She was also charged with three individual offences of supply a prohibited drug, namely on 2 and 3 May 2001. These constitituted the offence charged in count 1. A verdict was not sought on these counts because of the verdict on count 1.

62 From late April to early July 2001 the police were engaged in Operation Southwick which was targeting the supply of prohibited drugs in the Cowra and Canowindra area and surrounding small towns.

63 On 2 May 2001 a Det Snr Constable was an undercover operative using the assumed name of Sammy Radwan. After attending a briefing with Det Sgt Rayner and Det Snr Cons Brett Smith and some other police officers Radwan was handed a $50 note by another police officer for the purpose of purchasing prohibited drugs. He went to 50 Rodd Street, Canowindra, by pre-arrangement, and met up with Colin and Toni who lived there. They were heavy users of methylamphetamine (speed or goey). Radwan stated that after entering the house he said, "Can I get a fifty of goey?" and she replied, "Yeah, I'll call Chris." Toni left the house and returned a few minutes later, saying that her (Chris') phone was busy. After some further discussion Toni left 50 Rodd Street and returned a short time later and said, "She'll be here in ten minutes." After a short period an early model (1975-1978) blue coloured Toyota Corona station wagon stopped directly in front of the house. Toni left the house and went to the passenger side front door of that vehicle.

64 Radwan was standing on the verandah watching. He was about 10 metres away. Radwan had given Toni the $50 note. She had nothing else in her hand. He could see her hands the whole time on her trip to the vehicle. Radwan said that Toni leant into the vehicle and that he could see that she was handing something to the driver of the car. The driver of the car leant behind herself and reached into a bag that was situated somewhere behind the driver's seat and then handed something to Toni. Toni walked away from the vehicle and handed him a small clear resealable plastic bag that contained a white powder. Radwan showed it to a man next to him called Paul (a police informer) and then put the small bag containing the white powder in his pocket. Radwan kept it with him and later handed it to a detective. It was found to be 0.3 grams of methylamphetamine.

65 Radwan said that about 8pm that day in the gaming room of the Junction Hotel he saw the same lady whom he had earlier seen in the station wagon. Colin and Toni were also there. He had a conversation with Toni and again handed Toni $50. Toni walked up to the lady he had seen in the station wagon. That lady was at a gaming machine. Toni handed the $50 note to the lady who reached into her handbag and pulled out something and handed it to Toni. Radwan did not see exactly what came out of the lady's handbag. He was sure that Toni had nothing else in her hands when she approached the lady. When Toni walked back her fists were clenched and subsequently she handed him a small resealable plastic bag containing white powder (0.21 grams of methylamphetamine) at the house at 50 Rodd Street to which they had walked. Later, he handed that small bag to Det Pack.

66 Radwan went inside the Canowindra Citizens and Ex-Servicemen's Club after 7pm on the following day, having recognised the blue Toyota Corona station wagon in the car park as being the same car that he had seen the previous day outside 50 Rodd Street. He noted the registration number, QYU656 When he walked into the Club's gaming room he saw the same lady whom he had seen at the Junction Hotel the previous day and had seen driving the blue Toyota Corona station wagon. The man who had been with her at the Junction Hotel was again with her. She had the same floral bag as she had had at the Junction Hotel. Radwan gave this evidence:

“I said: Hi, how are you going, can I get another fifty?

She said: I don’t know you.

I said: I was with Toni yesterday when you got me a fifty.

She said: What’s Toni done to me?

I said: I got one off you yesterday.

She said: At the Junction Hotel

I said: Yeah, that’s right

She said: Have you got the money.”

He handed her $50.

67 The lady reached into the outer pocket of the floral bag. Radwan said that on this occasion he saw that she had about six other resealable plastic bags with white powder in the outer pocket of her bag. She removed one of those bags and handed it to Radwan. Later on he handed that small bag to Det Smith. It contained 0.3 grams of methylamphetamine.

68 In cross-examination Radwan agreed that when on the verandah of 50 Rodd Street he was able to see into the station wagon to some extent and that he could clearly see the person inside that station wagon. He agreed that he gave this description of the female in the car, "Anglo Celtic in appearance, 40 years of age, long blond hair with dark streaks, fair skin, medium to large build." He was challenged on whether the lady had a large build.

69 Radwan agreed that Toni was well known to the police as a drug dealer and was a specified target. Radwan rejected the suggestion that he did not get a good look at the lady in the Junction Hotel. He insisted that he got a good view of her face in that hotel. He also rejected the suggestion that the woman who drove the station wagon and stopped outside 50 Rodd Street was not the same person as the lady to whom he handed the $50 note in the Club.

70 Det Snr Cons B Smith estimated that over a period of seven years to 2 May 2001 he had spoken to the appellant on between five and ten occasions. He had spoken to her once about a random breath test. On other occasions he had spoken to her about traffic matters. He insisted that he knew her by sight and name. On 2 May 2000 he and Sgt Rayner were in a car parked in Rodd Street beside a park, keeping an eye on 50 Rodd Street and an undercover operative. He saw the appellant travelling towards the front of the police vehicle in her blue Toyota station wagon. As she drove past he saw that the driver was the appellant. She parked outside 50 Rodd Street. He saw Toni come out of the premises, go to the passenger side of the vehicle, open the front passenger door and lean into the vehicle. There was some movement inside the vehicle and it looked as though something was taking place but he was unable to see what it was.

71 Sgt Rayner said that after a police briefing on 2 May 2001 he and Det Smith set up a surveillance operation just before 11 am in Rodd Street. He saw Radwan and another person attend the vicinity of 50 Rodd Street. Radwan and, it seems, his companion entered the premises. A short time later Sgt Rayner saw a sky blue coloured Corona or Corolla station wagon arrive outside 50 Rodd Street and park in a position very close to outside 50 Rodd Street. He noted the registration number QYU 656. He saw the driver of the vehicle. She was a female around the mid to late thirties with predominantly blonde hair with some dark sections. He said that the appellant drove past him and at that point she would have been possibly ten metres away from him. After the station wagon was parked Sgt Rayner saw another person leave the house, walk to the station wagon and walk back to the house. Rayner was about 500 metres away. He could not tell whether the person was a man or a woman. The person was thin. Shortly after the person went back towards the house the station wagon travelled further up Rodd Street. Sgt Rayner said that it was several minutes from the time he first saw the station wagon approaching his surveillance position until it left 50 Rodd Street. He subsequently ascertained that the blue station wagon was registered in the appellant's name.

72 A little later he saw the station wagon parked in the main street of Canowindra and the appellant sitting in the driver's seat. He was a matter of metres away as he drove past and was able to have a good look at the appellant. He saw the appellant again a number of days later.

73 On 2 July 2001 about 10.55 am Sgt Rayner led a team of police who executed a search warrant on the appellant's residential premises at 7 Rosewood Cottage, The Pines, just out of Canowindra. He also intended to arrest the appellant on the subject charges. When Sgt Rayner arrived the station wagon was parked near the house. After being cautioned that she did not have to say anything the appellant exercised her right of silence. Some white powder which was contained in one large bag and five smaller bags was found. There was other evidence that there were eight bags. The white powder was, on analysis, found to be methylamphetamine.

74 Neither Smith nor Rayner saw the transactions at the Junction Hotel or the Club. The Crown established through Radwan's evidence that it was the appellant who supplied drugs on those occasions and that it was the same woman who supplied the drugs on each of the three occasions. Smith and Rayner established that it was the appellant who supplied the drugs on the first occasion. It necessarily followed, if Radwan's evidence was accepted, that it was also she who supplied drugs on the other two occasions.

75 The appellant did not give evidence but that must not be held against her. Toni gave evidence that as at 2 May 2001 she had known Paul (the informer) for a couple of years. On that morning he had introduced her to Sam (Radwan). Radwan asked her if she knew where he could get some amphetamines. Toni stated that she said, "Yeah, I could find out." She told him that she would go and telephone Chris to find out. This was a ruse. She was not going to telephone Chris and did not do so. She said this because Paul had asked them not to tell anyone where they got their drugs from. Toni said that she used to obtain her drugs from Paul. For the previous couple of months he had left the drugs in their front garden under a rock.

76 Toni stated that after speaking with Radwan she went for a walk down the road and back. She got the satchels from under the rock and went back inside the house. She said nothing about the telephone being busy. She thought that she gave Radwan one hundred dollars worth of amphetamines in two bags. She said that while she was outside she thought she saw a blue Toyota but she was not sure. When asked whether she saw the appellant in her blue Toyota, Toni replied, "I did but I'm not sure if it was on that day." When asked whether she remembered going over to the car that morning Toni replied, "I could have." She said that she had no specific memory. She explained that she used to use "speed" regularly and that her memory about a lot of things had just gone. She said that she remembered getting the drugs from under the rock "because it was a regular occurrence I suppose." Toni said that the appellant did not supply her with any drugs on that day or at all. She remembered from whom she used to buy her drugs. She had put the money away to give to Paul later on. She pleaded guilty to a charge of supplying drugs on that day. Toni said that she could have gone with the appellant in her car down to the shops.

77 Toni thought that she went to the Junction Hotel that evening with Colin, her de facto. She could not remember supplying drugs to Radwan on that evening but she could have done so. She pleaded guilty to a charge to that effect. She could not remember where she got the drugs from and could "not recall that evening very much at all." She did not think that she saw the appellant. She thought that there was only her and Colin in the poker machine room. Toni's credibility was severely damaged in cross-examination. Much of her evidence in chief was hard to accept.

78 Mr T R Lumsden, the appellant's husband, stated that he and the appellant were at Rick Thurtell's place from about 4pm to 8.30 pm on 2 May 2001 and thereafter at Rosewood Cottage later in the evening. Mr E J Thurtell supported the alibi to some extent. He was unable to say when the appellant left except that it was dark. Ms T L Thurtell verified the presence of the appellant at her father's premises. She said that the appellant and her husband went home "around tea time. Around dark. It was just dark." Mr Bowd confirmed the presence of the appellant at Thurtell's premises. He left when it was dark. The appellant was still there. She and her husband were inside the house having a drink.

79 Mr M J Lumsden, the appellant's son, stated that the drugs found in the house were his and were for his own use.

80 Appeal Ground 1 reads:

"The trial judge erred in admitting the identification evidence of Scott Rayner."

81 At the trial the appellant challenged the admissibility of the identification evidence of Sgt Rayner and the judge held a voir dire to determine its admissibility.

82 The appellant submitted that the identification evidence of Rayner and Smith was essential to the Crown case and that the circumstances in which Rayner purported to identify the appellant were seriously defective. They appeared from his evidence in chief. He had not known her prior to 2 May 2001. The appellant contended that the evidence was inadmissible by virtue of s.114(2) of the Evidence Act 1995 which provided:

"(2) Visual identification evidence adduced by the prosecutor is not admissible unless:

(a) an identification parade that included the defendant was held before the identification was made

(b) it would not have been reasonable to have held such a parade,

or

and the identification was made without the person who made it having been intentionally influenced to identify the defendant."

83 Section 114(3) provides:

(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:
(a) the kind of offence, and the gravity of the offence, concerned, and

(b) the importance of the evidence, and
(c) the practicality of holding an identification parade having regard, among other things:
(i) if the defendant failed to cooperate in the conduct of the parade – to the manner and extent of, and the reason (if any) for, the failure, and
(ii) in any case – to whether the identification was made at or about the time of the commission of the offence, and
(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification."

84 The appellant complained that there was no attempt by the judge to comply with the provisions of s.114(3). There was no reference to any of the factors mentioned in that subsection. That does not necessarily mean that the judge dealt with the matter inadequately. He concentrated on the facts of this case.

85 The judge accepted that in the circumstances which prevailed in the present case it would not have been reasonable to have an identification parade as far as Rayner and Smith were concerned because of their positive identifications. The judge said:

"… in both of those cases it would be pointless and useless for an identification parade to be held after the arrest of the accused.

The accused was arrested some two months later … because of an ongoing operation that she was not the only one the subject of the undercover operation in Canowindra."

86 The appellant submitted:

"16. The only fair way to obtain evidence of Rayner's identification would have been for the appellant to have been offered the opportunity of participating in a line-up, at which Rayner would attempt to pick out, from a number of similar females, the person who he saw on 2 May 2001. There was nothing at all to prevent this taken (sic) place.
17 . The trial judge held that 'it would be pointless and useless for an identification to be held after the arrest of the accused' (judgment 19 February 2002 at 2-3). That is true only if one looks at the circumstances of the arrest which actually occurred in this case. It would have been pointless to conduct an identification parade after Rayner had seen the appellant in her home – in that case all he would be identifying is the person he saw under arrest on 2 July 2001. However it would certainly not have been 'pointless and useless' for the appellant to have been arrested in the absence of Rayner (after all Smith said that he recognised the appellant as being the person who was involved in the transaction on 2 May 2001) and for her to have been placed in a line-up for Rayner to attempt an identification."

87 The principal identification was that of Detectives Smith and Radwan. Det Smith had known the appellant for some years. Det Radwan was in close proximity to her in Rodd Street, at the hotel and at the Club. Her car in the Club car park attracted Radwan's attention. The evidence of Sgt Rayner identifying the appellant was subsidiary but it was still significant.

88 While Sgt Rayner did not know who she was, he was in the police car with Det Smith and saw her in her car as she drove by and in her car at the shopping centre. He learnt her name from Det Smith. He also watched her activities near 50 Rodd Street from a distance of about 500 metres. On 2 July 2001 he knew that he was going to her home and went there.

89 Senior counsel for the appellant accepted that once Sgt Rayner went to her home there was no point in having an identification parade. It was his contention that if the Crown wished to rely on his evidence to confirm the identity of the appellant as the lady who went to 50 Rodd Street on 2 May 2001 and supplied a small quantity of amphetamines then he should not have taken part in executing the search warrant at the appellant's home. This would have enabled a meaningful identification parade to be held in which Sgt Rayner could have attempted to identify the appellant. There were other police who could have attended to the execution of the search warrant.

90 The appellant pointed to other instances where police officers are not permitted to give evidence of what they have seen or heard. For example, under s.424A of the Crimes Act 1900 and its successor, s.108 of the Criminal Procedure Act 1986 admissions allegedly made by suspects to police relating to indictable offences and not tape recorded may not be given in evidence, subject to the exceptions mentioned in those sections. While it took a little time, police officers became familiar with those provisions and adjusted to them.

91 The appellant submitted that likewise police officers who may be called upon to give identification evidence will learn to conduct themselves so as not to compromise any identification evidence which they may be able to give. It was a serious matter to effectively deprive an accused of the benefit of an identification parade.

92 The judge approached the matter on the basis that it would not have been reasonable to have held an identification parade. He said:

The Crown has submitted that the Court is entitled to look at the circumstances … and … conclude that there (sic) was in effect not reasonable to have an identification parade because of these positive identifications [in Rodd Street, later in the main street and at her home].
I am satisfied that this is the situation as far as the evidence of Rayner and Smith is concerned, that in both of these cases it would be pointless and useless for an identification parade to be held after the arrest of the accused.
The accused was arrested some two months later as I am told because of the ongoing operation that she was not the only one the subject of the undercover operation in Canowindra.
I am satisfied also that s.137 of the Act would not prevent the evidence being given. I am not satisfied that the probative value of this evidence would be outweighed by its unfair prejudice to the accused."

93 The judge was dealing with the admissibility of the evidence of both Smith and Rayner. In this Court the challenge was to the admissibility of Rayner's evidence.

94 Once Sgt Rayner went to the appellant's home, executed the search warrant, saw her and her car there and arrested her there was no point in holding an identification parade. The judge was correct to hold in terms of s.114(3) of the Act that it would not have been reasonable to hold an identification parade.

95 Nevertheless, the broader question remains whether that evidence should have been admitted. That is determined by applying s.137 of the Act. The probative value of the evidence is substantial but not critical given the other evidence of identification. Its probative value is not outweighed by the danger of unfair prejudice. Sgt Rayner was careful in his evidence as to what he could see and could not see in Rodd Street and elsewhere. This is sufficient to dispose of ground 1 but I would add some further comments.

96 I would not hold as a general rule that a police officer who may be called upon to give identification evidence should not take part in execution of a search warrant at a suspect's premises and that if he does so, he cannot give identification evidence. Nor is there anything in the present case which would warrant the application of such a principle.

97 The effect of the judge's summing-up was that the primary evidence of identification was that of Det Smith, a local police officer who knew the appellant. The judge pointed out that the evidence of Det Sgt Rayner was in a different category. He had not met the appellant previously and he came from Orange. He saw her as she drove by in Rodd Street and in a parked car (the same one) in the main street of Canowindra. The judge told the jury that he did not see her again for two months but said it was the same person. The judge told the jury of the pitfalls of evidence of identification and warned the jury to look closely at the evidence of identification.

98 The Crown submitted that Det Sgt Rayner did not purport to identify the appellant in his evidence other than to say that it was the appellant with whom he spoke at her home on 2 July 2002. It was pointed out that Rayner was the arresting police officer and submitted that as he did not purport to identify the appellant there was no reason to exclude his evidence. I am unable to agree that the evidence of Rayner was not identification evidence. At T71-72 this evidence appears:

"Q: Who was it [the blue station wagon] registered to?
A: The accused, Christine Lumsden.
Q: Did you see her again on that day, the 2 May
A: Yes I did.
Q: Where?
A: … parked in the main street of Canowindra which is Gaskell Street I believe

Q: What time?
A: It was a short time after I saw the vehicle leave 50 Rodd Street, about 11.48am

Q. What was the car doing?
A. It was parked against the kerb, the eastern kerb of Gaskell and the accused was seated in the driver's seat of the vehicle. …
…
Q: Were you satisfied it was the same person you'd seen previously in the other street?
A. Yes I was satisfied it was the same person I'd seen just a matter of moments before when the car drove past me initially."

99 "Identification evidence" is defined thus in the dictionary:

"identification evidence means evidence that is :

(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:
(i) the offence for which the defendant is being prosecuted was committed, or
(ii) an act connected to that offence was done,
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or
(b) a report (whether oral or in writing) of such an assertion."

100 The evidence of Det Sgt Rayner amounts to saying that the appellant was or resembles a person who was present at or near a place where the offence for which the appellant was being prosecuted was committed and an act connected to that offence was done at or about the time at which the offence was committed and that assertion was based on what Det Sgt Rayner saw.

101 I would reject Ground 1 for the reasons I have given which are substantially those given by the judge. As earlier stated I reject the Crown contention that Det Sgt Rayner's evidence was not identification evidence.

102 Appeal Ground 2, as amended, reads:

"His Honour's direction to the jury concerning Rayner's purported identification was inadequate, or misled the jury as to the effect of Detective Rayner's evidence."

103 The appellant complained that Det Rayner was presented with only one person to identify on 2 July 2001 in circumstances where it must have been obvious that the appellant had been singled out preparatory to being placed under arrest. Det Rayner went to the appellant's home to arrest her (T73) and saw her car there before he went in (T74). The appellant submitted that Det Rayner must have clearly expected to see the person whom he had seen on 2 May 2001. When he arrived he saw the appellant speaking to two other police officers (T73). It was submitted that this "identification" was equivalent to a one person line-up with the person holding a sign saying "pick me".

104 The appellant submitted that it was incumbent upon the judge to bring the deficiencies in the identification to the notice of the jury. The judge, after pointing out (SU8) in general terms the problems with identification evidence and instructing the jury to look closely at that evidence, reviewed the evidence of Det Smith and Det Rayner. The appellant contended that nowhere did the judge point out "the most essential feature of Rayner's evidence, namely, that the circumstances in which he first saw the appellant on 2 July 2001 made it almost inevitable that he would identify her as the person he saw on 2 May 2001." The appellant further complained, "Instead of pointing out that deficiency, the direction actually bolsters his identification evidence with his Honour referring to some supposed training Rayner had undergone which made him better than he would otherwise have been at making observations and retaining things in his mind."

105 The Crown's response was that the evidence of Sgt Rayner was not identification evidence. I have already explained why I am unable to accept that proposition. The Crown stressed that significant pieces of circumstantial evidence were the identity of the appellant's vehicle in Rodd Street and the Club's car park and the evidence of Rye/Slattery that the appellant arrived at 50 Rodd Street, albeit after the package of drugs had been given to the undercover officer. There was strong circumstantial evidence. The difficulty is that the evidence of Det Rayner of identification represented a significant part of the evidence in support of the offence charged: Domican v The Queen (1992) 173 CLR at 561. The evidence of Det Smith as to identification was more significant as were the surrounding circumstances. However, it could not be said that the evidence of identification of Det Sgt Rayner was not a significant part of the Crown case.

106 The initial complaint made is well grounded. I do not need to deal with the amendment. The judge did not point out the difficulties which attended Sgt Rayner's evidence. Ground 2 has been established.

107 The second part of this ground (the amendment) was intended to be relied on by the appellant if this Court upheld the Crown's contention that the judge had misled the jury in treating Det Rayner's evidence as identification evidence. Both in his judgment of 19 February 2002 and in his summing-up the judge appeared to treat the evidence of Det Rayner as identification evidence. The judge was not asked at the end of his summing-up by the Crown to withdraw this statement, made immediately after his references to the evidence of Dets Smith and Rayner in his summing-up, namely:

"Well now, members of the jury, the Crown's case does to a certain extent rely on those identifications."

108 I should also add that the appellant did not seek any further identification directions. The evidence given was in truth identification evidence. I am not satisfied that the judge misled the jury.

109 Appeal Ground 3 reads:

"The evidence as to drugs found at the premises of the appellant on 2 July 2001 should not have been admitted."

110 The appellant submitted that the relevance of the drugs found at the premises of the appellant some two months after the supply on 2 May 2001 was not clear. The appellant submitted that any suggestion that an accused person has been involved in other criminal activity has been rightfully regarded as highly prejudicial: Attorney General v Willessee [1980] 2 NSWLR 143 at 150; Hinch v The Queen (1987) 164 CLR 15 at 28, 37. The appellant contended that the result of the Crown leading that evidence was to create unfair prejudice against the appellant. She called on her son to give evidence that the drugs found on 2 July 2001 were his and that his mother (the appellant) knew nothing about them. This led to the Crown Prosecutor cross-examining the appellant's son in a way which informed the jury that two cannabis plants were found at the appellant's home on 2 July 2001.

111 The Crown submitted:

"As the major charge against the appellant was one of ongoing supply of methylamphetamine evidence of possession of similar or identical drugs was relevant and admissible Harriman v The Queen (1989) 167 CLR 590, R v Taouk, R v Hanna [1982] 2 NSWLR 974.
The significant issue in the trial was whether the appellant was the person with whom the undercover officer dealt when he made the three purchases of amphetamine on 2 and 3 May 2001. It was suggested by Rye/Slattery that the appellant had nothing to do with the supply at 50 Rodd Street and the appellant's arrival at and departure from that address was coincidental and innocent. It is to that issue that evidence of association with possession of amphetamine goes."

112 No objection was taken to the admission of the evidence as to the amphetamine found at the house. A criminal trial proceeds on the basis that timely objections to evidence will be taken. One of the problems with the evidence in question is that the amphetamine was found two months after the alleged offences. In my opinion that is too remote in point of time to be probative. I would have taken a different view if that powder had been found at the appellant's home within a few days, perhaps even seven days. That evidence should not have been admitted. Accordingly, it is unnecessary to deal with the argument that the evidence was tendency evidence and notice of intention to rely upon it should have been given. It was common ground that no notice had been given. The Crown disputed that this evidence was tendency evidence.

113 Appeal Ground 4 reads:

"His Honour's direction concerning the drugs found at the appellant's premises on 2 July 2001 was inadequate."

114 The appellant submitted that even if the evidence as to the finding of amphetamines at the appellant's premises on 2 July 2001 was admissible it required careful direction by the judge to avoid the jury indulging in impermissible reasoning. No direction was given.

115 The appellant further submitted that as the evidence could only have been relevant as tendency or coincidence evidence the jury should have been told that they could not substitute the uncharged and unspecified criminal behaviour which related to the finding of the drugs on 2 July 2001 for the offences appearing in the indictment and that they could not convict the appellant merely because they were satisfied about other criminal activity arising from the finding of drugs on 2 July 2001: BRS v The Queen (1997) 191 CLR 275 esp per Kirby J at 331-332.

116 The Crown responded that the appellant called evidence of alibi as to one of the occasions of supply, namely, the evening of 2 May 2001 at the Junction Hotel. The appellant's son gave evidence that he was in possession of the amphetamine found in the search of the family home. The Crown pointed out that no additional directions were sought by the appellant's counsel at the trial and that in the circumstances none were necessary. Giving them would complicate the trial in an undesirable fashion. The Crown submitted that the appellant should not be granted leave to rely on this ground.

117 In view of the conclusion reached on Ground 3 this is an academic point. If, contrary to my conclusion the evidence was admissible, then the jury should have been alerted to the fact that the appellant had neither been charged nor convicted of any offence arising out of the finding of the amphetamine in the family home and that even if they were satisfied beyond reasonable doubt that the amphetamine had been found in the appellant's possession in the family home this did not establish or tend to establish that she had supplied amphetamine on 2 and 3 May 2001.

118 Appeal Ground 5 reads:

"The Crown prosecutor's cross-examination of witnesses called by the appellant, (Mr Thurtell and the appellant's son, Mr Michael Lumsden) breached the credibility rule found in section 102, Evidence Act ."

119 Mr Thurtell gave evidence in chief of the appellant being at his home on the evening of 2 May 2001. In cross-examination these passages appear:

“Q. ….Well, didn’t Mr Lumsden come and ask you to give evidence?
A. No, I got a phone call from his solicitor to come and make a statement. I was told I wouldn’t be giving evidence because I done time – I wouldn’t be in Court.
………
Q. He didn’t say that to you - ?
A. -Like I said, I’ve been away for 6 months since that time.
Q. Yes. Well you were convicted last year of supplying a prohibited drug weren’t you?

Q. You were given 9 months in prison with a non-parole period of 6 months?

Q. You did 6 months as well for goods in personal custody reasonably suspected of being stolen didn’t you?
Objection
Q. The goods in custody charge means that you were found with things that didn’t belong to you?
A. It was $150 is what they were talking about that had the number off and nothing else.
Q. Was that found with you at the same time as the drugs was it?
A. Yep, yep. That was, yeah.”

120 It will be noted that Mr Thurtell volunteered that he had done time and that he had been away for 6 months. The Crown prosecutor then elicited the details. That made the matter more potent.

121 The appellant submitted that as the detail elicited by the Crown prosecutor in cross-examination could only have been relevant to the credit of Thurtell, the alibi witness, the questions were in breach of the credibility rule in s.102 of the Evidence Act 1995. She contended that none of the exceptions applied. She argued that the only possible exception appeared to be s.103(1) which provides:

"The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value."

122 The appellant contended that this matter received no attention at the trial. No judgment was delivered on the objection. The appellant submitted that the prejudicial effect of this material went far beyond simply diminishing the credibility of the witness. The evidence suggested that the appellant was an associate of a drug dealer, specifically an amphetamine dealer.

123 The appellant complained that the cross-examination of the appellant's son by the Crown prosecutor elicited that two cannabis plants were found at the appellant's premises in addition to amphetamine. The flavour of the cross-examination was that the appellant's son was taking the blame for the amphetamine found on 2 July 2001, whereas in reality the amphetamine belonged to the appellant. The son's assessment of the quantity involved would not allow him to be prosecuted for deemed supply. The cross-examiner also suggested that the cannabis plants also belonged to the appellant. The appellant submitted that the son's admission of possession of two cannabis plants on 2 July 2001 could not have had "significant probative value" which was required before such cross-examination was permissible.

124 The Crown pointed out that the arguments now advanced by the appellant were not advanced before the trial judge. It was submitted that the appellant should not be permitted to rely upon them.

125 The Crown submitted that the evidence elicited had substantial probative value. Thurtell was giving alibi evidence which could be regarded as important. The jury had to assess that evidence. Might it be accurate and reliable? The material elicited would have tended to undermine the value of the alibi evidence. Thurtell, a drug supplier, was helping to provide an alibi for a person charged with a drug supply offence. Section 103(2) provides:

"(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred."

126 Section 103(2)(a) has no application. It is not clear when Thurtell's conviction and gaoling occurred but it seems to have taken place after 2 May 2001 and prior to the appellant's trial on 20 February 2002.

127 My mind has fluctuated whether the evidence elicited from Thurtell has substantial probative value. I have assumed that the goods in custody charge related to moneys reasonably suspected of being unlawfully obtained, that is, from drug sales. I make this assumption because of the evidence of Thurtell that he had $150 on him when arrested for supplying drugs.

128 It does not follow that because a man has supplied drugs on an occasion he will give false alibi evidence. He was deposing to the appellant being at particular premises at a particular time in connection with a legitimate business matter of her husband, whom he knew well. On balance, the material elicited by the Crown prosecutor does not have substantial probative value. It does have prejudicial value. Hence the cross-examination eliciting the details of Thurtell's convictions was not permissi ble.

129 The evidence elicited by the Crown that on 2 July 2001 the appellant's son had two cannabis plants growing in the family home had no probative value. The offence of ongoing supply alleged centred on events of 1 and 2 May 2001. The son was not giving alibi evidence.

130 The departures from correct legal practice in the trial are, when taken together, such that it cannot be said that there has been no miscarriage of justice. The Crown case was strong but not impregnable. The offence of ongoing supply is a serious one. The appellant has served the non-parole period of her sentence. It would be most unlikely, if the appellant were to be re-tried and convicted that any greater sentence would be imposed on her. Because of the strength of the Crown case and the serious nature of the offence it would not be correct to enter verdicts of acquittal. It will be a matter for the Director of Public Prosecutions whether he prosecutes again.

131 I propose the following orders:

1. Appeal against conviction allowed; conviction quashed.

2. New trial ordered.

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Last Modified: 04/14/2003