R v Singh

[2019] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SINGH

[2019] SASCFC 51

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Doyle)

17 May 2019

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

EVIDENCE - PROOF - STANDARD OF PROOF

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION

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

Appeal against conviction for one count of attempting to import a marketable quantity of a controlled precursor, contrary to ss 307.12 and 11.1 of the Criminal Code (Cth).

The appellant contends that the trial judge: did not adequately direct the jury as to the permissible uses of the discreditable conduct evidence adduced by the prosecution; erred in failing to give a Shepherd direction; gave inadequate directions in relation to the assessment of the reliability and credit of Ms Booth, a prosecution witness; and failed to adequately summarise the defence case. The appellant also alleges that the verdict was unsafe and unsatisfactory.

Held per Doyle J (Peek and Parker JJ agreeing):

1.       The trial judge’s directions adequately identified and explained the permissible uses of the discreditable conduct evidence and did not leave open, or in any way encourage the jury to make, impermissible use of the evidence.

2.       A Shepherd direction was not appropriate or required. A failure to give such a direction was not productive of a miscarriage of justice.

3.       The trial judge’s directions in relation to the assessment of the credibility or reliability of Ms Booth were adequate and did not occasion any miscarriage of justice.

4.       The jury were adequately directed as to the defence case.

5.       The cumulative significance of the circumstantial evidence was sufficient to sustain a finding by the jury that the appellant was guilty beyond a reasonable doubt of the offence charged.

6.       Permission to appeal on Grounds 3, 4 and 5 is refused. The appeal is dismissed.

Criminal Code (Cth) ss 11.1, 307.12, 307.13; Evidence Act 1929 (SA) ss 34P, 34R, referred to.
Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Tran [2017] SASCFC 99; R v Taheri [2017] SASCFC 92; R v Golubovic [2016] SASCFC 144; R v Soteriou (2013) 118 SASR 119; R v MJJ; R v CJN (2013) 117 SASR 81; R v Nieterink (1999) 76 SASR 56; R v Lowe [2016] SASCFC 118; Shepherd v The Queen (1990) 170 CLR 573; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; The Queen v Hillier (2007) 228 CLR 618; Velevski v The Queen (2002) 187 ALR 233; The Queen v Keenan (2009) 236 CLR 397; R v Davidson (2009) 75 NSWLR 150; R v Merritt [1999] NSWCCA 29; Burrell v The Queen (2009) 196 A Crim R 199; Rees v The Queen (2010) 200 A Crim R 83; R v Tartaglia (2011) 110 SASR 378; R v Wildy (2011) 111 SASR 189; R v Bauer (2018) 92 ALJR 846; Peacock v The King (1911) 13 CLR 619; Castle v The Queen (2016) 259 CLR 449; R v Ferguson [2018] SASCFC 130; The Queen v Perks (1986) 43 SASR 112; R v Franco (2009) 105 SASR 446; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; The Queen v Calides (1983) 34 SASR 355; Farrell v The Queen (1998) 194 CLR 286; R v AZIZ [1982] 2 NSWLR 322; Chamberlain v The Queen (1983) 72 FLR 1; Wyper v The Queen [2017] ACTCA 59, considered.

R v SINGH
[2019] SASCFC 51

Court of Criminal Appeal:       Peek, Parker and Doyle JJ

1. PEEK J:                I would dismiss the appeal.  I agree with the reasons of Doyle J.

2. PARKER J:          I would dismiss the appeal.  I agree with the reasons of Doyle J.

3. DOYLE J:             The appellant was charged on Information with attempting to import a marketable quantity of a controlled precursor, contrary to ss 307.12 and 11.1 of the Criminal Code (Cth). Following a trial by jury, the appellant was convicted of this offence.

4. The appellant initially sought to appeal her conviction on six grounds.  Ground 2 was abandoned at the permission to appeal stage.  Permission to appeal was granted on ground 6, but refused on grounds 1, 3, 4 and 5.  The appellant has since amended ground 1 to raise a question of law that does not require permission to appeal.  She has also renewed her application for permission to appeal in respect of grounds 3, 4 and 5.

5. The essence of the grounds of appeal now pressed is as follows:

   · Ground 1: The trial judge erred in failing to adequately direct the jury as to the permissible uses of the discreditable conduct evidence adduced by the prosecution, contrary to s 34R of the Evidence Act 1929 (SA).

   ·    Ground 3:  The trial judge erred in failing to direct the jury that the content of the conversation the appellant had with Ms Booth (as alleged by the prosecution) was an indispensable link in the chain of reasoning leading to conviction, and had to be proved beyond reasonable doubt before the jury could use it.

   ·    Ground 4:  The trial judge’s directions in relation to the assessment of the reliability and credit of Ms Booth’s evidence were inadequate.

   ·    Ground 5:  The trial judge failed to adequately summarise the defence case, and in particular failed to direct the jury that the prosecution needed to disprove as a reasonable possibility the two hypotheses that had been adverted to by defence counsel.

   ·    Ground 6:  The verdict was unsafe and unsatisfactory.

   Overview

6. On 25 January 2017, a parcel was sent via international post from India to Australia.  The sender’s address was given as an address in a suburb of New Delhi. The addressee’s name was the appellant’s name (Casey Singh).  However, the address on the parcel was 9 Weir Street, Largs Bay.  The appellant lived at the house immediately next door to this address, at 7A Weir Street, Largs Bay.  The customs declaration form attached to the parcel described the contents as five pairs of orthopaedic sandals for commercial sample.

7. The parcel arrived in Sydney on 2 February 2017.  When it was x-rayed, Australian Border Force officers detected an anomaly.  The parcel was examined and inside were five orthopaedic sandals (as opposed to five ‘pairs’ of sandals).  Concealed inside the sole of each was about 200 grams of a crystalline substance in plastic wrapping. 

8. A sample from each shoe was taken and analysed.  The samples were found to contain ephedrine, which is a “border controlled precursor” for the purposes of the relevant provisions of the Criminal Code, and is used in the production of methylamphetamine.  It was calculated, based upon the percentage of pure ephedrine in the samples, that the total weight of the pure ephedrine was 316.17 grams.  A “marketable quantity” for present purposes was 3.2 grams or more.

9. The parcel was seized by the border control officers.  They did not facilitate any controlled delivery of the parcel to its intended address.

10. Eight days later, at 7.30am on 10 February 2017, border control officers attended the appellant’s house. She was present with her mother, who also lived at 7A Weir Street. The border control officers undertook a search of her house and located some items that were consistent with drug use and manufacture (being some hydrochloric acid and pH strips in the roof cavity above the appellant’s bedroom; a glass condenser found under the appellant’s bed; and some messages from the appellant’s Facebook account that indicated an interest in illicit drugs, specifically methylamphetamine). The evidence in relation to these items was the subject of a discreditable conduct notice, was admitted on the basis it was evidence of discreditable conduct under s 34P of the Evidence Act, and is the subject of the complaint in ground 1.

11. Despite searches of the appellant’s computer, phone and other electronic devices, no evidence was found of the appellant having ordered or tracked the parcel from India, having contacted or spoken to anyone about the parcel, or otherwise having any connection to the parcel.  Similarly, her bank account records did not reveal that she had paid or received any large sums of money around the relevant time.

12. However, on the same day as the search of the appellant’s house, two border control officers (Officers Mark Bateman and Dario Baldassar) also spoke to the appellant’s neighbour, Ms Angela Booth, who lived at 9 Weir Street.  Ms Booth gave evidence that in early February 2017 the appellant had come to her front door and asked if a parcel had arrived for her.  There was a dispute in the evidence as to whether the appellant had said anything to Ms Booth to the effect that she was expecting a parcel sent from India, and in particular that the sender was a relative of her husband who lived in rural India.  Ms Booth said that the appellant was quite abrupt and demanding.  She also gave evidence of an earlier occasion when a parcel intended for the appellant had been delivered to her, and collected from her by the appellant.  There was also some evidence of a subsequent occasion upon which Ms Booth received mail intended for the appellant.  The evidence of Ms Booth is the focus of grounds 3 and 4, and is summarised in greater detail later in these reasons.

    The matters in issue at trial

13. The jury was (accurately) directed to the effect that the offence of attempting to import a marketable quantity of a border controlled precursor under ss 307.12 and 11.1 of the Criminal Code required proof beyond reasonable doubt that:

    1.   The appellant attempted to import the substance, by engaging in conduct that was more than merely preparatory (with ‘import’, in relation to a substance, meaning import the substance into Australia and including (a) bringing the substance into Australia; and (b) dealing with the substance in connection with its importation).

    2.   The appellant intended to import the substance.

    3.   The substance was a border controlled precursor.

    4.   The appellant was reckless as to the fact that the substance was a border controlled precursor.

    5.   The substance was a marketable quantity of a border controlled precursor; namely 3.2 grams or more.

14. While not of relevance to this appeal, there was some contest at trial as to whether the prosecution evidence established beyond reasonable doubt that the parcel contained a marketable quantity of the ephedrine in the parcel. For this reason, the jury was directed that in the event they were not satisfied that the charged offence was proven, they should consider the alternative offence of attempt to import a border controlled precursor in contravention of ss 307.13 and 11.1 of the Criminal Code.

15. Relevantly for the purposes of this appeal, the prosecution case was that the appellant attempted to deal with the substance (the ephedrine in the parcel) by taking steps to recover the parcel containing the substance from the delivery address (9 Weir Street); and that the appellant did so with the intention of importing the substance, in that she knew that the parcel contained the substance or was aware of the likelihood that it would contain the substance.  Put another way, and in more colloquial terms, as the trial judge instructed the jury, the issue was whether the prosecution had proven beyond reasonable doubt that the appellant was expecting the particular parcel and either knew or was reckless as to the fact that the parcel contained the substance.

16. The prosecution case in respect of the above was circumstantial.  It was ultimately distilled for the jury as involving the following seven facts or circumstances:

    1.   The parcel was addressed to “Casey Singh”, albeit at 9 Weir Street instead of 7A Weir Street.

    2.   The appellant’s approach to Ms Booth in late January or early February 2017 inquiring about a parcel.

    3.   The appellant’s demeanour during that approach, which the prosecutor contended was that of a person expecting a parcel.

    4.   The prosecution version of the content of the conversation that the appellant had with Ms Booth (in particular, the alleged reference to the parcel being sent from India).

    5.   The similarity in timing of the arrival of the parcel in Australia and the appellant’s approach to Ms Booth.

    6.   The Facebook messages which the prosecution contended demonstrated that the appellant had an interest in illicit drugs, specifically methylamphetamine.

    7.   The items located during the search of the appellant’s house, specifically the hydrochloric acid and pH strips found in the roof cavity, and the glass condenser found under the bed.

17. The appellant did not give evidence.  The defence case was that the circumstantial evidence adduced by the prosecution did not establish beyond reasonable doubt that the appellant knew or believed that the parcel intercepted in Sydney contained ephedrine.  While not challenging Ms Booth’s evidence to the effect that the appellant came to her front door in early February 2017 and inquired about a parcel, the defence case involved a challenge to the reliability of some of the detail of Ms Booth’s evidence, including her suggestion that the appellant said anything to suggest the parcel she was inquiring about had been sent from India.  It was contended that the inquiry about a parcel was unremarkable given Ms Booth’s evidence about the change in numbering of houses on Weir Street, and the evidence of an earlier parcel and later mail intended for the appellant being sent to Ms Booth’s address.  The defence case emphasised the absence of any other evidence connecting the appellant to the parcel.

18. The defence case also involved the suggestion by defence counsel in his closing address of two possible hypotheses consistent with the appellant’s innocence.  Both took as their starting point the Facebook messages suggesting the appellant had had some involvement in the use and supply of methylamphetmine.  The first hypothesis raised by defence counsel was that one of the appellant’s friends or associates from this ‘drug scene’ might have used her as a ‘patsy’; that is, they might have used her name and neighbour’s address without the appellant knowing.  Indeed, it was also suggested that this same associate might have hidden the drug-related items found in the appellant’s bedroom without her knowing.  The lack of any evidence of the appellant’s fingerprints or DNA connecting her to these items was said to leave this possibility open.  The second hypothesis raised by defence counsel was that the appellant might have been ‘set up’ by one of her associates.  In support of this hypothesis, defence counsel relied upon the obvious anomaly in the description of the contents of the parcel (namely, as containing five pairs of the orthopaedic sandals when in fact it contained five individual sandals), together with the “ridiculously large” size of the sandals and the incorrect address.

19. Before turning to address the individual grounds of appeal, it is appropriate to summarise in some more detail the evidence relevant to the issues raised on appeal.  It is convenient to do so by first addressing the evidence in relation to the matters found (and, indeed, not found) upon searching the appellant’s house and devices; and then, secondly, the evidence in relation to the appellant’s approach to Ms Booth.

    The evidence as to the search of the appellant’s house and devices

20. On 10 February 2017, border control officers attended and, pursuant to a warrant, searched the premises at 7A Weir Street where the appellant was living with her mother.

21. Under the appellant’s bed, they found a glass scientific instrument known as a condenser.  It was wrapped in a grey jumper within a green plastic bag, which was in turn inside a black bag bearing the letters RDX.  And in the roof space above the appellant’s bedroom, accessed via a manhole in that room, they found, wrapped in a blue plastic bag, a container of pH test strips and a San Pellegrino water bottle containing hydrochloric acid.

22. The prosecution led expert evidence to the effect that not only was ephedrine able to be used in the manufacture of methylamphetamine, but also that the other items mentioned above were also used in that manufacturing process.  There was evidence that hydrochloric acid could be used in the purification stage of methylamphetamine manufacture; that pH strips were often used to test the acidity of methylamphetamine oil during that process; and that scientific glassware was also needed or used in that process.

23. The evidence was that the glass condenser was forensically examined for fingerprints, but that no suitable fingerprints were located.  Neither the manhole, nor the items located in it, were tested for DNA or fingerprints.

24. The border control officers carrying out the search did not locate any of the other items commonly associated with involvement in the sale of illicit drugs, such as amounts of cash, tick lists, small plastic resealable bags, cutting agent or unexplained wealth.

25. The border control officers seized the appellant’s mobile phone, tablet, laptop computer and USB drives.  Pursuant to the warrant, the border force officers undertook searches of these devices using various search terms.  Some Facebook messages were located on the appellant’s phone which indicated that she would buy, supply and sell methylamphetamine on occasion within a group of her friends.  However, these searches of the appellant’s devices did not reveal any connection with the parcel sent from India, or its tracking number.  Nor did they reveal any communication or contact with the sender. 

26. The searches of the appellant’s banking records did not reveal any evidence of transfers of money to India by the appellant, or indeed any other large or unusual sums of money paid to or by the appellant.

    The evidence as to the appellant’s approach to Ms Booth

27. As mentioned, Ms Booth was interviewed by the border control officers Bateman and Baldassar on 10 February 2017.  She subsequently provided two written statements, prepared with the assistance of border control officer Iris Bunnik.  Her main statement was dated 15 February 2017, and she provided a short supplementary statement on 27 September 2018.  She gave oral evidence at the trial.  Officers Bateman, Baldassar and Bunnik also gave evidence in relation to their communications with Ms Booth.

    Ms Booth’s evidence

28. Ms Booth’s evidence was that she moved into the house at 9 Weir Street in February 2016.  Her house was one of four on the same block, all of which fronted onto Weir Street.  When she first moved into the house it was numbered 15A, but it was then changed to number 9 when “the council … changed the numbering of the four houses in the block.” 

29. Ms Booth said that the house immediately next to hers was 7A Weir Street.  There was no evidence as to what number it was prior to the re-numbering to which Ms Booth referred in her evidence; or, indeed, whether it was affected at all by the re-numbering of houses to which Ms Booth referred given that this house was on a separate block, and not one of the four houses on Ms Booth’s block.  That said, Ms Booth did later in her evidence refer to having had “a lot of trouble with the numbering.”

30. Ms Booth had occasionally said “hello” to a woman living at 7A Weir Street (whom was presumably the appellant’s mother), but she had not had any contact with the appellant other than the occasions she mentioned in her evidence, as summarised below.

31. Ms Booth said that the first of these occasions was in about June 2016 when “about two or three” parcels were delivered to her at 9 Weir Street.  She signed for the parcels, assuming at the time they were all intended for her.  However, once the delivery person had gone, she noticed that one of the parcels appeared to have come from India.  While she had been buying various things for her house from eBay or Amazon, she did not recall buying anything from India.  (She said in her evidence in chief that when she looked at one of the parcels she thought “That’s funny, I haven’t got anything from eBay that is ostensibly from India.”)  She then saw it was addressed to “Casey Singh” and realised it was not for her.  She tried to yell out to the delivery man but he had already gone.  She put the parcel on the dresser in her bedroom, intending to either give it back to the delivery man when he next came to her house, or take it to the post office when she went shopping, whichever came first.

1. But Ms Booth did not ultimately do either of these things with the parcel because the next day the appellant knocked on her door.  When she introduced herself as “Casey”, and once Ms Booth had confirmed she was from next door, Ms Booth told the appellant that she had a parcel for her, and gave it to her.

2. Ms Booth also described a second occasion in early 2017.  Ms Booth initially described this occasion as occurring in “about February 2017”.  When asked whether it was at the beginning or end of February, she said “End of February.  Sorry, no, end of January, sorry, start of February.”  She later said it was “about a week” before the occasion the border control officers attended.

3. Ms Booth said that on this occasion the appellant knocked on her door at about 1pm.  When Ms Booth opened the door, the appellant said to her “Where’s my parcel?” or “Give me [my] parcel.”  According to Ms Booth, the appellant’s tone of voice was “demanding, as though I should have a parcel.”  She described the appellant as looking pale and ill, wearing a dressing gown and having messy hair.

4. Ms Booth’s evidence was that she then queried with the appellant why she had not corrected her address in the months since the last parcel, or had not at least told the person sending her mail the correct address.  The appellant responded “Yes, but my husband’s relatives live in India in a rural area and, you know, it’s very hard to get in touch with them.”  Ms Booth later elaborated that the appellant said “my husband’s relatives live in a rural area in India and they’re not on the phone, so it’s very hard to get in touch with them.”

5. At one point in her evidence in chief, Ms Booth mentioned that there were three occasions upon which the appellant inquired after parcels.  During cross-examination, it was suggested to Ms Booth that her statements only made reference to two such occasions.  Ms Booth maintained that there were three occasions, although she could not remember the detail of the other occasion.  She maintained that she mentioned to Officers Bateman and Baldassar that the appellant had come round three times, but did not know whether this third occasion was mentioned in her statement.  She said that if it was not, then she should have corrected it.[1]

   [1]    This alleged inconsistency was never taken up with either Officer Bateman or Officer Baldassar.

6. During cross-examination, Ms Booth was also challenged as to various aspects of her evidence about the two occasions that she had described in her evidence.

7. As to the first of these occasions, it was put to Ms Booth that she had not mentioned anything about eBay in her statements.  She agreed that she had not, and that she had first mentioned it in her evidence.  But she maintained that she was simply describing what she had thought at the time she looked at the parcel; and was not suggesting that there was anything on the parcel itself suggesting it was from eBay.

8. As to the second occasion, it was put to Ms Booth that the appellant had said words to the effect “Has a parcel arrived for me?” and that that was the extent of what she said about the parcel; that she did not say anything about it coming from India, or about her husband having relatives in a rural area in India.  Ms Booth disagreed, and adhered to her evidence in chief.

9. It was put to Ms Booth that she never made any mention to Officers Bateman or Baldassar, when they interviewed her, of the appellant having said that she had a husband and relatives in India.  Ms Booth maintained that she did.

10. It was further put to Ms Booth that when she spoke with Officer Bunnik in connection with the preparation of her 15 February 2017 statement, she had said that she was not certain whether the appellant had stated that the parcel was from India, or whether she had simply thought it was from India by reason of the surname on the parcel or because Officer Bateman had made mention of a parcel from India.  Ms Booth’s response was that she could not remember who said what to whom in her dealings with the border control officers; and in particular that she could not remember exactly what she had said to them.  But she added that she did remember the appellant saying to her that she was waiting for a parcel from India, and that she did “definitely remember [the appellant] saying to me that her husband’s relatives lived in a rural area in India which was why it was so difficult to get in touch with them.”  She added that “I can remember her mentioning India and I can remember thinking Singh was a Pakistani name rather than Indian, that’s why it stuck in my head”.  She said that if she did tell Officer Bunnik that she was not sure whether the appellant had said the parcel was from India, then this was incorrect.  However, she acknowledged that her reference to the appellant saying that her husband had relatives in India was not in her first statement, and first appeared in writing in her second statement.

11. Later in her cross-examination, when challenged again about whether she could be sure that the appellant had said anything about a parcel coming from India, Ms Booth said she was “100% certain”.  She then clarified her answer, saying “What [the appellant] actually said to me was she was expecting a parcel from her husband’s relatives who live in a rural area in India.  So not directly expecting a parcel from India per se.”

12. Ms Booth acknowledged that the appellant might have said something about the sender of the parcel being her husband’s relatives in India on the first occasion (in June 2016), and that she (Ms Booth) might have said something to this effect to Officer Bunnik.  But she said that “I’m 100% certain she said it on the second occasion when she called for the parcel and there wasn’t one.”

13. Ms Booth was asked in cross-examination whether she thought it was “unusual” that the appellant had come to her house on the first occasion.  She answered “no, not really”, apparently in reference to the change in, or confusion about, the numbering in the houses on Weir Street.  Ms Booth was then asked about the reference in her first statement that she “didn’t find it unusual to receive mail addressed to other people close by”.  She accepted that this was in her statement.  She said that they were not her words, but that when she read the statement before signing it she had thought what was written was “fair enough” given that there had been “a lot of trouble with the numbering”.  But she maintained that this was not something she said, and that it was “very unusual for her to receive mail … at No. 9 that wasn’t addressed to [her].”  She acknowledged that she had not paid enough attention to her statement when signing it to realise it was incorrect.

14. Ms Booth was cross-examined about her communications with Officer Bunnik in connection with this matter.  She initially denied having ever sent Officer Bunnik any email discussing the case.  However, when questioned further on this topic, she acknowledged that she had replied to emails sent to her by Officer Bunnik and asking her some questions about the case, and that this reply had included “five or six paragraphs, it wasn’t anything terribly important”.

    Evidence of the border control officers

15. Officer Bateman gave evidence about his 10 February 2017 interview of Ms Booth.  He said that when the border control officers attended the appellant’s premises, he and Officer Baldassar also went next door and spoke with Ms Booth.  He was asked what he said to Ms Booth.  His evidence was as follows:

    A.I told her that we were next door executing or making some inquiries, executing warrants, and I wanted to talk to her about a parcel that had been addressed to her premises.

    Q.      Did you mention the name Casey Singh.

    A.      Yes.

    Q.      Did you mention whether the parcel had come from India.

    A.      No.  Not in the initial asking of the questions, no. 

    Q.      But at some stage throughout the conversation.

    A.      Once she had mentioned it, yes.

16. Officer Bateman then gave evidence that he was told by Ms Booth that there had been two occasions when the appellant came over to Ms Booth’s house requesting a parcel.  In relation to the first occasion, Officer Bateman said that he did not recall, and did not have any note of, Ms Booth saying anything to the effect that the appellant had said the parcel had come from India.  Officer Bateman’s evidence as to the second occasion was as follows:

    Q.So then Ms Booth spoke about a more recent occasion that Casey Singh came to her house.

    A.      Yes.

    Q.And she told you that she had come asking about a parcel from India and that the sender lived in a rural area.

    A.      Yes.

    Q.Now she never said to you that Casey Singh had told her that Casey Singh had a husband who had relatives who lived in a rural area, do you agree with that.

    A. Sorry, your question has confused me.

    Q.Nowhere in your notes is it reflected, is it, that Casey Singh said anything along the lines that she had a husband with relatives in India.

    A.       No, that’s correct, yes.

    Q.So she mentioned a rural area and that’s reflected in your notes, but she never told you that Casey had mentioned to her that she had a husband with relatives in India.

    A.      No.

17. Officer Baldassar also gave evidence of the interview with Ms Booth.  He said that he was not the lead officer, but that he did speak with her.  He said that handwritten notes were being taken contemporaneously by Officer Bateman (whom he described as the lead officer), but that he also made some notes in his own notebook.  He said that his recollection was that he wrote his notes some time later, about 30 minutes after they had left the next door premises.  Officer Baldassar’s evidence of their attendance upon Ms Booth was as follows:

    A.     I was introduced to her.  [Officer Bateman] was the lead.

    Q.Did you tell her that you had intercepted a parcel from India and it was addressed to her address and you wanted to ask her some questions about it.

    A.I’m going to say yes, but I wasn’t the lead person asking those questions and introducing ourselves.  [Officer Bateman] was.

    Q.      Okay, but you were there.

    A.      Yes, I was there, yes.

    Q.      Was that said before questioning Angela Booth.

    A.      Yes.

    Q.      Did she then willingly talk with you about that.

    A.      Yes.

    Q.Did you record in your notebook ‘Conversation with owner.  Invited inside.  Parcel from India for Casey.  Looked unwell.  Told did not have the parcel.’

    A.      That’s what I wrote in my notebook, yes.

18. Officer Baldassar acknowledged that there was no reference in his notebook to Ms Booth having said that Ms Singh mentioned that her husband had relatives in India, and he did not have any recollection of Ms Booth having said this.

19. Finally, Officer Bunnik gave evidence about her role in taking the first statement provided by Ms Booth.  She said:

    A.My recollections are I took Officer Bateman’s notes with me, to refer to, when writing the statement.  So, I had progressively gone through the things she had told Officer Bateman at the time of the warrant and when I got to the part where she had stated to Officer Bateman that she asked for a parcel from India, she was at that time a little bit unsure.

    Q.And, in fact, what Ms Angela Booth said to you, when you quite rightly tried to clarify what was in Officer Bateman’s notes, she told you that she wasn’t certain if Ms Singh stated the parcel was from India or if she thought it was from India because of the surname on the parcel, or if Officer Bateman had made comment that the parcel was from India.

    A.      Yes.

    Q.Finally there was some email correspondence where Ms Booth has sent a reply email to you on 3 August 2017, discussing her recollections of her conversations with Casey Singh.

    A.      Yes.

20. Officer Bunnik also gave evidence of an occasion in June 2017 (that is, about four months after the interception of the subject parcel) when Ms Booth contacted her and informed her that another item of mail had arrived for the appellant at 9 Weir Street.  While Officer Bunnik did not see it, she was informed it was a domestic envelope from Sydney (“it was just like a bill … it had like a little, little window with the address on there”), rather than an international parcel, and so she told Ms Booth to return it to its sender.

    Ground 1:  The discreditable conduct evidence

21. In ground of appeal 1, the appellant complains that the trial judge erred in failing to adequately direct the jury as to the permissible uses of the discreditable conduct evidence adduced by the prosecution, contrary to s 34R(1) of the Evidence Act. That section provides that, in the case of evidence admitted under s 34P as discreditable conduct evidence, the judge must “identify and explain the purpose for which the evidence may, and may not, be used.”

22. In determining the adequacy of the directions required by s 34R(1), the issue is ultimately whether the directions were sufficient to ensure that the fact-finder understood the permissible use(s) of the discreditable conduct evidence and that there was no occasion for concern that this evidence might be used for an impermissible use.[2]  While the focus of consideration of this ground must be the terms of the trial judge’s directions to the jury, the adequacy of those directions must nevertheless be assessed and determined in the context of the way in which the trial was conducted, including the way in which the parties may have invited or encouraged the jury to use, or not use, the evidence of discreditable conduct.[3]  It is thus appropriate to summarise that context before setting out the trial judge’s directions.

    [2]    Perara-Cathcart v The Queen (2017) 260 CLR 595 at [55]-[57], [66] (Kiefel, Bell and Keane JJ).

    [3]    Perara-Cathcart v The Queen (2017) 260 CLR 595 at [53], [62], [66] (Kiefel, Bell and Keane JJ); R v Tran [2017] SASCFC 99 at [163] (Doyle J); R v Taheri [2017] SASCFC 92 at [37] (Vanstone J, Parker and Lovell JJ agreeing); R v Golubovic [2016] SASCFC 144 at [80] (Blue J, Nicholson and Doyle JJ agreeing).

23. As set out earlier, the evidence of discreditable conduct relied upon by the prosecution in this case consisted of the Facebook messages which the prosecution contended demonstrated that the appellant had an interest in illicit drugs, specifically methylamphetamine (the Facebook messages); and the items located during the search of the appellant’s house, specifically the hydrochloric acid and pH strips found in the roof cavity above her bedroom, and the glass condenser found under her bed (the drug paraphernalia).

24. In the notice of its intention to adduce this evidence, the prosecution identified the permissible uses of the Facebook messages under s 34P(2)(b) of the Evidence Act in the following terms:

    a.     to establish the accused was involved in the use of and/or supply of illicit drugs;

    b.to establish the accused’s awareness of the concealment of substance within the parcel;

    c.to establish the accused’s motivation for attempting to take delivery of the substance within the parcel;

    d.to rebut any assertion by the accused that she had no intention, or did not believe another person intended, to manufacture a controlled drug using the imported precursor.

25. As to the drug paraphernalia, the notice identified the following permissible uses of that evidence under s 34P(2)(b):

    a.     to establish the accused’s intention to take delivery of the substance;

    b.to establish the accused’s knowledge with respect to the concealment of substance within the parcel;

    c.to establish the accused’s knowledge of the process of manufacturing methamphetamine;

    d.to rebut any assertion that the accused had no intention to manufacture a controlled drug from the imported precursor, or belief that another person intended to manufacture a controlled drug from the imported precursor.

26. In his opening address, the prosecutor mentioned the drug paraphernalia evidence to be adduced by the prosecution, explaining its relevance in the following terms:

    The relevance of that evidence on the prosecution case is that it perhaps gives a reason why the accused may have been willing to accept delivery of the parcel containing that substance from India and also potentially provides a reason why she may wish to import, or at least be involved in the importation of, a border controlled precursor and it may help you determine whether the accused knew what was inside the parcel and was addressed to her.

27. The prosecutor concluded his opening address by informing the jury that the trial judge would direct them on the law at the conclusion of the trial; that his opening was merely intended to assist them to put the prosecution case in some context, and that they must follow her Honour’s directions on the law.

28. At the conclusion of the opening address, defence counsel made an application to declare a mistrial.  He relied, inter alia, upon a submission that while the paraphernalia might be relevant for the uses identified in the prosecution notice, the prosecutor’s description of the relevance of that evidence in his opening was too close to the impermissible “bad person” propensity reasoning.  It invoked, or was too close to reasoning that the appellant was a bad person, and therefore more likely to have committed the offence charged.

29. The application to declare a mistrial was dismissed.  Her Honour reminded the jury that at the end of the trial she would give them some directions on the law, and would do so by reference to the evidence.

30. In the prosecutor’s closing address, the prosecutor, after referring to the evidence of the drug paraphernalia and Facebook messages, said:

    I should say at this point her Honour will give you directions about all those pieces of evidence and how you ought to use them and in particular how you are not to use them.  The prosecution doesn’t lead them to say because those things are there the accused is the type of person who would do this.  You can see for yourselves ladies and gentlemen it would be very unfair to reason that way against the accused but you might consider the evidence, those pieces of evidence, along with all the other evidence in determining whether the accused had the intention to take delivery of the substance and whether she knew it was concealed in the parcel.  You might also consider the evidence in determining whether the accused had some knowledge about the process of manufacturing methylamphetamine and how that might be a reason for her to attempt to take delivery of the parcel.

31. In defence counsel’s closing address, he did not address in terms the permissible uses that might be made of the discreditable conduct evidence.  His focus was rather upon putting that evidence in its context, which included the absence of evidence of various matters, so as to expose what he contended was the lack of probative force in the prosecution evidence.  Defence counsel also made passing reference to the Facebook messages indicating the existence of some friends or associates from the drug scene who may have been inclined to use her as a ‘patsy’, or indeed ‘set her up’, and hence as providing some evidential foundation for these hypotheses.

32. In her summing up, the trial judge summarised the evidence of the drug paraphernalia and Facebook messages.  Her Honour explained that this evidence, if accepted, was evidence of discreditable conduct on the part of the appellant.  Her Honour then directed the jury in relation to the permissible and impermissible uses of that evidence in the following terms:

    It is important that you understand how you may and may not use that evidence.  You may use that evidence in the ways suggested by the prosecution, namely, as pieces of circumstantial evidence tending to suggest that Ms Singh attempted to import the substance and intended to import the substance.  For example, it is put to you that the items found are commonly used in the manufacture of methylamphetamine from precursors such as ephedrine and [that this points] to Ms Singh's intention to take delivery of the substance and her knowledge with respect to concealment of the substance within the parcel.  In a similar way the text messages indicating interest in illicit drugs are said to be relevant to your consideration of the issues of attempting to import and Ms Singh's state of knowledge as to the substance.

    You may also use that evidence in the way suggested by [defence counsel], namely as an explanation of why Ms Singh's name might have been put on the parcel without her knowledge and how she might have had items located in her room.  He suggested that the messages in particular indicate that she had undesirable acquaintances who may have used her, in his words, as a patsy or who may have set her up.  He said that the messages further do not show a person who is a commercial drug dealer or one who was involved in the manufacture of illicit drugs. 

    These are all proper uses for that evidence but I must direct you that there are certain impermissible uses of that evidence.  It would be wrong for you to conclude from the evidence that Ms Singh is the sort of person who would be likely to commit the offence with which she is charged.  As I said she has been charged with a serious offence and is not to be convicted on insufficient or doubtful evidence. You may not approve of her conduct or her lifestyle, in fact you may strongly disapprove of it, but you should not allow such feelings to influence the decision that you must make in this matter.  It does not follow that because Ms Singh may have association with drug users, taken drugs or even sold drugs that she is guilty of the offence of attempting to import a border precursor.  It would be quite wrong to say 'Well, she's a drug user, she must be guilty' or 'she’s a drug user, she's exactly the type of person who would import ephedrine'.  It does not follow as a matter of logic and such approaches would be wrong and should not play any part in your deliberations.  Your job is to look at the whole of the evidence dispassionately and objectively to determine whether the prosecution has proven its case beyond reasonable doubt.

1. No complaint was made at the time in relation to this aspect of her Honour’s directions to the jury.

2. On appeal, the starting point for the appellant’s submissions was that the prosecutor’s opening address was relevant because it misstated (or at least obscured) the permissible use that might have been made of the discreditable conduct evidence, and invited the jury to reason (or at least did not warn the jury against reasoning) impermissibly.

3. The appellant contended that while the trial judge’s summing up did not positively misstate the permissible use that might be made of that evidence, her Honour did not set out that use in sufficiently precise and illuminating terms to alleviate any misunderstanding or confusion on the part of the jury as a result of the prosecutor’s opening address.  In particular, the appellant’s counsel contended that left in general terms, the trial judge’s reference to the Facebook messages indicating an “interest” on the part of the appellant in methylamphetamine was too close to, if not the same as, impermissible ‘bad person’ propensity reasoning.  The appellant submitted that the trial judge’s articulation of the permissible uses of the evidence was inadequate, and apt to encourage the jury to make impermissible use of that evidence.  This was said to be so, despite the appellant’s acceptance that the trial judge did accurately direct the jury as to the impermissible uses of that evidence.

4. In support of his submissions, the appellant’s counsel helpfully provided an indication of the directions that he contended ought to have been given in order to sufficiently identify the permissible uses of the discreditable conduct evidence for the jury.  In relation to the evidence of drug paraphernalia, the proposed direction was as follows:[4]

   The ephedrine concealed in the intercepted parcel is a precursor to the manufacture of methylamphetamine.  The pH strips, hydrochloric acid and glass condenser are all items used in the manufacture of methylamphetamine.  Possession of these items might therefore indicate to you that the accused had knowledge of, and an interest in, the process of manufacturing methylamphetamine, and an inclination to be involved in the manufacture of methylamphetamine.  If so, you might think that this makes it more likely that she knew about, and intended to take delivery of, the precursor ephedrine concealed in the parcel.

   And in relation to the evidence the Facebook messages, the proposed direction was as follows:[5]

   In relation to the Facebook messages, you might think that they indicate past use and supply of methylamphetamine by the accused.  You might think that they therefore indicate that the accused has an interest in using and supplying methylamphetamine, and an inclination or motivation to use and supply methylamphetamine.  If so, you might think that this makes it more likely that the accused knew about, and intended to take delivery of, the precursor ephedrine concealed in the parcel.

   [4]    As refined by me, having regard to the terms of the directions approved by this Court in R v Soteriou (2013) 118 SASR 119 at [35]-[37] (Vanstone J, Sulan and Stanley JJ agreeing).

   [5]    Again, subject to similar refinements by me.

5. Of course the trial judge was also required to direct the jury, as she did, as to the impermissible uses of the discreditable conduct evidence; and to the effect that the discreditable conduct evidence was circumstantial evidence to be considered by them in the context of the evidence as a whole.

6. When identifying the permissible use(s) of discreditable conduct evidence, precision and specificity are generally desirable.  This is so both so as to ensure that the jury are able to properly understand and employ the permissible use of that evidence, and so as to reduce the risk that they will stray into reasoning that involves an impermissible use of that evidence.  It is for this reason that (in different factual contexts) general descriptors of the relevance of the evidence, such as “background”, “context” or “relationship” evidence, have been deprecated as seldom illuminating.[6] 

   [6]    R v MJJ; R v CJN (2013) 117 SASR 81 at [19] (Kourakis CJ, Vanstone J agreeing); R v Nieterink (1999) 76 SASR 56 at [85] (Doyle CJ, Perry and Mullighan JJ agreeing).

7. It does not follow, however, that the articulation of the permissible use need be lengthy or detailed. Further, as the extent of the trial judge’s obligation under s 34R(1) is to be determined in the context of the conduct of the particular case, it does not extend to identifying or explaining every conceivable or theoretical line of reasoning, or every aspect of the permissible lines of reasoning. Nor does it extend to instructing the jury in logic, or in what would otherwise be obvious to them. Often a quite simple and succinct identification of the permissible and impermissible uses of the discreditable conduct evidence will be appropriate and sufficient, leaving it to the jury to determine whether and to what extent they are assisted by that evidence.[7]

   [7]    R v Taheri [2017] SASCFC 92 at [40] (Vanstone J, Parker and Lovell JJ agreeing); R v Soteriou (2018) 118 SASR 119 at [35]-[37] (Vanstone J, Sulan and Stanley JJ agreeing).

8. Here, the appellant complains about the generality of the trial judge’s articulation of the permissible uses of the discreditable conduct evidence, and in particular her Honour’s reference (in the context of the Facebook messages) to it indicating an “interest” in illicit drugs.  It was contended that her Honour did not go far enough in identifying the specific or particular propensity permissibly relied upon, so as to ensure it was adequately distinguished from the impermissible general or bare propensity reasoning.

9. It is true that her Honour identified the permissible uses of the evidence in fairly short and simple terms. In my respectful view, it would have been helpful and preferable had her Honour provided some minor elaboration, along the lines of the proposed directions set out above. However, I am nevertheless satisfied that the trial judge’s articulation of the permissible uses of the discreditable conduct evidence was accurate and sufficient to comply with s 34R(1) of the Evidence Act. The trial judge identified that the evidence formed part of the prosecution’s circumstantial evidence relevant to the issues of whether the appellant attempted to import the substance (by attempting to take delivery of the parcel), and did so knowing it contained the concealed ephedrine.

10. In relation to the drug paraphernalia, her Honour identified that these were items commonly used in the manufacture of methylamphetamine from precursors such as ephedrine, and hence probative of the appellant’s knowledge of, and intention to take delivery of, the concealed ephedrine in the parcel.  While her Honour did not expressly expose the intermediate step in this chain of reasoning (namely, that the appellant had an interest, or inclination to be involved, in the manufacture of methylamphetamine from ephedrine), I consider that her Honour’s directions were sufficient to identify and explain the permissible use of this evidence.

11. Similar reasoning applies in relation to her Honour’s directions as to the permissible use of the Facebook messages.  In this context her Honour did refer to the evidence indicating an interest in illicit drugs, but did not elaborate upon how this might be probative of the relevant intention or knowledge (for example, through an inclination or motivation to continue to use or supply methylamphetamine).  I accept that the reference to an “interest” in using or supplying drugs has a somewhat enigmatic quality to it, at least in the absence of an accompanying reference to it indicating an inclination or motivation to continue to use or supply.  However, the reference to the evidence indicating an interest was not left entirely in the abstract.  The jury was told that it was probative of the issues of knowledge and intent; and, in my view, would have understood how and why that might be so.  In the ultimate analysis, I am again satisfied that her Honour’s directions were sufficient to identify and explain the permissible use of the evidence.

12. I do not consider that her Honour’s directions as to the permissible uses of the discreditable conduct evidence left open, or in any way encouraged the jury to make, impermissible use of this evidence.  In reaching this conclusion, it is significant that the jury were provided with appropriately clear directions as to the impermissible use of that evidence.  That impermissible use (being essentially the simplistic or general propensity reasoning to the effect that the accused was a ‘bad person’ or the ‘sort of person’ whom the jury might conclude committed the offence charged regardless of any probative connection between the discreditable conduct and the charged offending) was sufficiently distinct from the permissible uses identified by the trial judge to avoid any risk of confusion by the jury.

13. In the overall context of this case, I do not regard the prosecutor’s failure to identify the impermissible use in his opening address as having much significance. The prosecutor having opened on the permissible uses, it would have been preferable had he or the judge also identified the impermissible use at that early stage of the trial. However, in circumstances where the prosecutor in his closing address, and the trial judge in her summing up, did so in clear terms, I do not consider that the absence of any earlier identification of the impermissible use ultimately resulted in a failure to comply with s 34R, or otherwise occasioned any miscarriage of justice.

14. Finally, it is of some (albeit limited) significance that defence counsel did not make any complaint at the time about her Honour’s directions in relation to the discreditable conduct evidence.[8] While the failure to complain did not relieve the trial judge of her obligation to give the direction required by s 34R, it does to some degree inform this Court’s consideration of the content of that obligation. It does so by providing some indication of the contemporaneous view of defence counsel (as a participant in the trial, with insight into the conduct and atmosphere of the trial and a focus upon the accused’s interests) as to the adequacy of the trial judge’s directions to convey the permissible and impermissible uses of the discreditable conduct evidence to the jury.[9]

    [8]    R v Lowe [2016] SASCFC 118 at [12]-[15] (Peek and Doyle JJ, Nicholson J agreeing).

    [9]    The Queen v Calides (1983) 34 SASR 355 at 359 (Wells J); Farrell v The Queen (1998) 194 CLR 286 at [53] (Hayne J); R v Aziz [1982] 2 NSWLR 322 at 330-331 (Samuels JA); Chamberlain v R (1983) 72 FLR 1 at 11-12, 17 (Bowen CJ and Forster J); Wyper v The Queen [2017] ACTCA 59 at [65]-[67] (the Court).

15. In my view, ground of appeal 1 has not been made out.

    Ground 3:  An indispensable link in the chain of reasoning

16. In ground of appeal 3, the appellant complains that the trial judge erred in failing to direct the jury that the content of the conversation the appellant had with Ms Booth (as alleged by the prosecution) was an indispensable link in the chain of reasoning leading to conviction, and had to be proved beyond reasonable doubt before the jury could use it.

17. Of the seven circumstantial facts relied upon by the prosecution, and listed earlier in these reasons, four of them (facts 2, 3, 4 and 5) relied upon Ms Booth’s evidence.  However, the defence case did not involve any challenge to Ms Booth’s evidence that the appellant came to her front door in early February 2017 and inquired about a parcel in something of a demanding or expectant tone (facts 2, 3 and 5).  The real issue in respect of Ms Booth’s evidence was the content of the conversation she had with the appellant on that occasion (fact 4); and, in particular, the defence challenge to Ms Booth’s evidence that the appellant said anything to suggest she was inquiring about a parcel that had been sent from India, including by referring to her husband having relatives in rural India.

18. The appellant contends that this aspect of Ms Booth’s evidence was so critical to the prosecution case that it was an ‘indispensable intermediate fact’, and ought to have been the subject of a Shepherd direction; that is, a direction of the type contemplated by the High Court in Shepherd v The Queen.[10]

    [10]   Shepherd v The Queen (1990) 170 CLR 573.

19. In considering whether a Shepherd direction was appropriate or necessary in the present case, the starting point is that the prosecution case was a circumstantial one. 

20. In a circumstantial case, the task of the jury is to assess the evidence as a whole and decide whether, on the basis of the evidence that they accept, the relevant element or offence has been proved beyond reasonable doubt.[11]  The evidence is not to be considered “in separate and isolated compartments”,[12] or in a “piecemeal” fashion.[13]

    [11]   Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J); Shepherd v The Queen (1990) 170 CLR 573 at 579-580 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing); The Queen v Hillier (2007) 228 CLR 618 at [46], [49] (Gummow, Hayne and Crennan JJ, Gleeson CJ agreeing).

    [12]   Velevski v The Queen (2002) 76 ALJR 402 at [44] (Gleeson CJ and Hayne J).

    [13]   The Queen v Keenan (2009) 236 CLR 397 at [128] (Kiefel J, Hayne, Heydon and Crennan J agreeing).

21. As a corollary of this, in a circumstantial case, individual facts and items of evidence are not subject to any particular standard of proof.  The jury are entitled to accept or reject any aspect of the circumstantial evidence (without determining whether it has been proved beyond reasonable doubt), and to give such weight as they consider appropriate to any particular item of evidence which they accept.  And then, having regard to the evidence they accept, and the weight they attribute to it, the jury must weigh up all of the circumstances and decide whether they are satisfied beyond reasonable doubt of the relevant element of the offence, or the defendant’s guilt.[14]

    [14]   Shepherd v The Queen (1990) 170 CLR 573 at 579-580, 586 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing); see also, by way of example, R v Long (2002) 137 A Crim R 263 at [70] (Doyle CJ, Lander and Bleby JJ agreeing) and Rees v The Queen (2010) 200 A Crim R 83 at [55] (Beazley JA, Hulme and Latham JJ agreeing).

22. As Dawson J explained in Shepherd v The Queen:[15]

    As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt.  That means that the essential ingredients of each element must be so proved.  It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt…  Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.

    [15]   Shepherd v The Queen (1990) 170 CLR 573 at 579-580 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing).

23. However, there is an exception to this general approach.  Where the case involves what may be described as an ‘indispensable intermediate fact’ (that is, a fact which in the context of the particular case is an indispensable step in the process of reasoning towards an inference of guilt), the jury must find that fact proved beyond reasonable doubt before acting upon it.  In such a case, it may be appropriate for the trial judge to give the jury a so-called Shepherd direction to this effect.

24. As Dawson J explained in Shepherd v The Queen:[16]

    … it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt.  Not every possible intermediate conclusion of fact will be of that character.  If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn.  But where – to use the metaphor referred to by Wigmore on Evidence … – 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.  It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.

    [16]   Shepherd v The Queen (1990) 170 CLR 573 at 579 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing).

25. His Honour later added:[17]

    The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt.  Still less does the case establish that a direction in those terms should be given to a jury.  Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt.  But to say as much is to do little more than state a truism.  It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

    Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case.  Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning.  Even then, particularly when that is obvious, the instruction may not be helpful.

    [17]   Shepherd v The Queen (1990) 170 CLR 573 at 585 (Dawson J, Mason CJ, Toohey and Gaudron JJ agreeing).

26. In determining whether, in a particular circumstantial case, a Shepherd direction is appropriate, it will be necessary to consider the role and significance of the particular evidence or fact in respect of which the direction is said to be appropriate.  If, by reason of either the inherent role or significance of that evidence or fact in the case, or in light of the way in which the case has been conducted, it forms an indispensable link in the chain of reasoning towards the defendant’s guilt, then such a direction may be appropriate.

27. An item of evidence or fact is more likely to be characterised in this way in a case involving a small number of circumstantial facts.  As McHugh J said in Shepherd v The Queen:[18]

    Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances – often numerous – which taken as a whole eliminate the hypothesis of innocence.  The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.

    In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt.  This is likely to be the case where the incriminating facts relied upon to establish the inference are few in number.  But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilty beyond reasonable doubt.

    [18]   Shepherd v The Queen (1990) 170 CLR 573 at 592-593 (McHugh J).

28. In R v Davidson,[19] Spigelman CJ used reasoning along these lines to both explain and distinguish the earlier decision of the New South Wales Court of Appeal in R v Merritt,[20] in which a Shepherd direction had been held to be appropriate:[21]

    In a case like R v Merritt, where there were only two intermediate facts, it was, to use the language of Dawson J, neither ‘unnecessary’ nor ‘confusing’ to give such a direction.  In a case such as the present where there are numerous separate facts, of varying degrees of probative force, it could very well be confusing to do so.  The prospect of confusion is a matter which has been emphasised in later cases …

    [19]   R v Davidson (2009) 75 NSWLR 150.

    [20]   R v Merritt [1999] NSWCCA 29.

    [21]   R v Davidson (2009) 75 NSWLR 150 at [8] (Spigelman CJ); applied recently in Haines v R [2018] NSWCCA 269 at [349] (the Court).

1. Spigelman CJ went on to reject the appellant’s contention in that case to the effect that there were three indispensable intermediate facts that ought to have been the subject of a Shepherd direction.  His Honour said:[22]

   With respect to each of these matters, as in Velevski, it would be wrong to suggest that the ‘jury will consider the evidence in separate and isolated compartments’ … That is not how the evidence was adduced or how it was relied upon.  Nor is it in any way appropriate to regard each of these matters as essential steps which must be separately determined as distinct intermediate facts.  They, and the other facts cannot ‘be considered piecemeal’, to use the terminology from R v Hillier.

   …

   The way this case was run, and the way it was summed up by his Honour to the jury, was that all of the facts, including aspects of the phone calls and the postal box and the despatch of the money, each of which had elements linking it to the appellant, were separate matters the combined effect of which was such as could satisfy the jury beyond reasonable doubt of the appellant’s guilt.  This was the approach most recently affirmed in R v Hillier and R v Keenan …

   [22]   R v Davidson (2009) 75 NSWLR 150 at [17], [20] (Spigelman CJ).

2. In the same case, Simpson J (with whose reasons Spigelman CJ and James J agreed) proposed a test for the identification of indispensable intermediate facts in a circumstantial case in terms of a circumstantial fact which, if not established, would result in there being no case to go to the jury:[23]

   Whether a fact on which the Crown relies as part of a circumstantial case is or is not “indispensable” may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury.  If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not “indispensable”.  Where the answer is in the negative, the fact is “indispensable” and the jury should be directed accordingly.

   [23]   R v Davidson (2009) 75 NSWLR 150 at [74] (Simpson J, Spigelman CJ and James J agreeing).

3. Simpson J did not accept that there were any indispensable intermediate facts in that case that required a Shepherd direction.  Even though the evidence in relation to one such fact was “very powerful”, this did not make it indispensable; even without that evidence, there was a still a case to go to the jury.[24]

   [24]   R v Davidson (2009) 75 NSWLR 150 at [75] (Simpson J, Spigelman CJ and James J agreeing).

4. Subsequent authorities from New South Wales have taken a similar approach, making it plain that it will be rare that a Shepherd direction will be appropriate or necessary in a case involving a significant body of circumstantial evidence.[25]

   [25]   See, for example, Burrell v The Queen (2009) 196 A Crim R 199 at [84]-[136] (the Court); Rees v The Queen (2010) 200 A Crim R 83 at [46]-[55] (Beazley JA, Hulme and Latham JJ agreeing); Wood v The Queen [2012] NSWCCA 21 at [555]-[570] (McClellan CJ at CL, Latham and Rothman JJ agreeing); Dennis v The Queen [2012] NSWCCA 120 at [29]-[37] (Macfarlan JA, Rothman and Davies JJ agreeing).

5. By way of example, in Burrell v The Queen,[26] the appellant contended that certain evidence, described as “the Pajero evidence”, related to an indispensable intermediate fact.  In rejecting this contention, the Court of Appeal emphasised the way in which the case had been conducted.  The Court said:[27]

   His Honour’s direction was correct.  The Crown case was not confined to the Pajero evidence in the sense that it was an indispensable intermediate fact.  Although the primary thrust of the Crown case was that the Pajero evidence was the most likely means and time at which Mrs Whelan was abducted, it relied upon all of the circumstances of the case, including circumstances that had no direct link with the Pajero evidence or the other two main bodies of evidence…

   Even if one or more of the three bodies of evidence was not sufficient, the inference of guilt could be drawn from the range of circumstantial facts of which the Crown adduced evidence.  The broader case was not abandoned by the Crown, nor did it undergo any mutation in the Crown’s address to the jury, considered in its entirety, in which the Crown reminded the jury of the larger body of evidence.  The Crown case at all times remained one where individual facts gained cogency from other facts in the case.

   [26]   Burrell v The Queen (2009) 196 A Crim R 199.

   [27]   Burrell v The Queen (2009) 196 A Crim R 199 at [133]-[134] (the Court).

6. Similarly, in Rees v The Queen,[28] Beazley JA (with whom Hulme and Latham JJ agreed) rejected a contention that evidence in relation to the location of the appellant’s wallet required a Shepherd direction.  While this was a “strong piece of circumstantial evidence, it was not the only evidence that linked him with the commission of the offences.”  Her Honour explained:[29]

   Counsel for the appellant contended that the finding of the wallet under the appellant's bed was effectively the only evidence that linked him directly with the offences. The finding of other items outside his room was not directly attributable to his involvement in the offences. Counsel for the appellant submitted, therefore, that the location of the wallet (said to be Mr Park's) under the appellant's bed was clearly the most critical piece of circumstantial evidence implicating the appellant in the offences. The appellant's argument was that if the wallet found by police was not Mr Park's wallet, the evidence of finding a brown wallet was irrelevant. If the wallet was not found in the appellant's bedroom, the Crown would be unable to point to any circumstance which would make it more likely that the appellant had brought the wallet back to his bedroom at Cobbitty, rather than Mr Hynds having brought it back to the premises. He submitted, therefore, that because the evidence of the discovery of the wallet could potentially swamp any doubts the jury might have had about the Crown case, a Shepherd direction should have been given.

   This submission suffers from the same erroneous premise as was identified in Velevski at [44], namely, that a jury will consider the evidence in separate and isolated compartments. Although the finding of Mr Park's wallet under the appellant's bed was a strong piece of circumstantial evidence, it was not the only evidence that linked him with the commission of the offences. His involvement in the joint criminal enterprise was pointed to by each of the circumstantial matters identified … above. They were entitled to accept or reject any aspect of the evidence, and to give such weight as they chose to any particular piece of evidence which they accepted. Having regard to the evidence the jury accepted and the weight attributed to any particular evidence, the jury was required to weigh up all of the circumstances and decide whether they were satisfied beyond reasonable doubt of the appellant's guilt of the three offences with which he was charged. The trial judge, correctly, so directed the jury.

   [28]   Rees v The Queen (2010) 200 A Crim R 83.

   [29]   Rees v The Queen (2010) 200 A Crim R 83 at [54]-[55] (Beazley JA, Hulme and Latham JJ agreeing).

7. The issue was considered by this Court in R v Tartaglia.[30]  Sulan J (with whose reasons Peek J relevantly agreed) adopted an approach broadly similar to that articulated by Simpson J in R v Davidson.  In particular, his Honour suggested that in a case where the particular item of circumstantial evidence is of sufficient importance that, without it, the Crown case would collapse, then it may be considered an indispensable link in the chain of reasoning and warrant a Shepherd direction.  His Honour explained:[31]

   The general direction that circumstantial evidence depends upon the combined strength of all the facts which are proved, although correct, failed, in this case to have regard to the fact that, in considering whether the case had been proved, the evidence of the appellant’s involvement with the drugs and paraphernalia at Richmond was of such significance that it required a direction that it must be proved beyond reasonable doubt.  The general direction overlooks that in some cases of circumstantial evidence, there are facts which, if not established despite other items of circumstantial evidence, would result in the case collapsing.  Those facts, rather than being a strand in the rope as described in cases of circumstantial evidence, are in effect a link in the chain.

   The evidence of the appellant’s involvement with the Richmond premises was such a fact, or facts, which is a link in the chain of proof necessary to establish that the appellant was involved in manufacturing methylamphetamine at the St Agnes premises.

   [30]   R v Tartaglia (2011) 110 SASR 378.

   [31]   R v Tartaglia (2011) 110 SASR 378 at [10] (Sulan J, Peek J relevantly agreeing at [169]).

8. After considering the decision in Burrell v The Queen, Sulan J continued:[32]

   In my view, the evidence from which the jury was asked to conclude that the appellant was in possession of drugs and equipment at the Richmond house was necessary to establish his guilt in respect of the St Agnes house.  The evidence of the Richmond house, and the conclusion that the appellant was in possession of the drugs and equipment, or was at least involved in some illicit activity in respect of the drugs and equipment at the Richmond house, was a necessary link to establish his guilt in respect of the St Agnes house.  In my view, without that evidence, the appellant could not have been convicted of that charge.

   Unlike the position in Burrell, for reasons which I have given, the Richmond evidence was of such importance that, without it, the prosecution case must fail.  For the conclusion of guilt to be drawn, it was necessary to be satisfied of the appellant’s involvement in the manufacture of drugs or possession of drugs and equipment at the Richmond premises.

   [32]   R v Tartaglia (2011) 110 SASR 378 at [10] (Sulan J, Peek J relevantly agreeing at [169]).

9. Kourakis J (as he then was) took a different view, concluding that a Shepherd direction would not have been appropriate.  His Honour said:[33]

   … it would, in my respectful opinion, have been wrong to direct the jury that they should be satisfied that the appellant was in possession of the drugs and equipment at the Richmond house before they could use that evidence in proof of the offence charged.  This was a case in which the evidence of the appellant’s presence at St Agnes had to be considered together with the evidence of the contemporaneous presence of the appellant and ephedrine at the Richmond house.  The evidence could not be compartmentalised.

   [33]   R v Tartaglia (2011) 110 SASR 378 at [54] (Kourakis J).

10. The courts’ reticence to isolate particular items of circumstantial evidence as being appropriately the subject of a Shepherd direction is also apparent from decisions declining to support such directions in cases involving circumstantial evidence in the nature of lies and other post-offence conduct.[34]  In my view, this same reticence is a fortiori appropriate in cases such as the present, which do not include circumstantial evidence of this nature.

    [34]   R v Wildy (2011) 111 SASR 189 at [24]-[26] (Vanstone J, Sulan J agreeing); Veleski v The Queen (2002) 76 ALJR 402 at [44] (Gleeson CJ and Hayne J).

11. Finally, I note the recent observations of the High Court on the topic of Shepherd directions in The Queen v Bauer.[35]  In the context of directions in relation to uncharged acts in a case involving allegations of sexual offending, the Court said:[36]

    Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt.  Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt.  And, as explained earlier in these reasons, a trial judge is [statutorily] precluded from giving such a direction in Victoria.

    [35]   The Queen v Bauer (2018) 92 ALJR 846.

    [36]   The Queen v Bauer (2018) 92 ALJR 846 at [86] (the Court) (citations omitted).

12. Turning to the circumstances of the present case, and as explained earlier in these reasons, the central issue in the case was whether the prosecution had proven beyond reasonable doubt that the appellant was expecting the parcel that had been intercepted, and either knew or was reckless as to the fact, that the parcel contained the concealed ephedrine.  Importantly, the prosecution case in respect of these matters was a circumstantial case.  The case was presented and conducted in this way, and the jury were instructed in this way.  The circumstantial evidence was distilled by the trial judge for the jury as relating to the seven facts or circumstances listed earlier in these reasons. 

13. The jury were given the standard circumstantial evidence direction that instructed them to consider the combined strength of the circumstantial evidence that they accepted.  They were not ever instructed by the trial judge, or invited by either the prosecutor or defence counsel, to assess or rely upon any particular circumstantial fact or facts in isolation from the balance of the circumstantial evidence. 

14. A potential qualification to this is that defence counsel did in his closing address, when challenging Ms Booth’s evidence in relation to her reference to the parcel (or her husband’s relatives) being from India, suggest that the case “rises and falls on this evidence,” and that the jury should acquit the appellant if concerned about her reliability on this issue.  However, in the context of the addresses as a whole, I do not think this reference was of much moment in the present context.  While it was a submission intended to focus the jurors’ minds upon the significance of this aspect of the evidence, I do not think it detracted from the overall effect of the prosecution and defence addresses; namely, that this evidence needed to be considered by the jury in the context of the circumstantial evidence as a whole.

15. Nor, in my view, was there anything inherent in the role or significance of circumstantial fact 4 (namely, the content of the appellant’s conversation with Ms Booth and in particular the alleged reference to the parcel being sent from India) in the context of this case that warranted its characterisation as an indispensable intermediate fact appropriately the subject of a Shepherd direction.

16. It is true that fact 4, if accepted by the jury, would have been strongly probative of a connection between the appellant and the intercepted parcel (given that the evidence suggested that the intercepted parcel was in fact sent from India).  But, analogously with the situation in Rees v The Queen,[37] the evidence of fact 4 was not the only evidence probative of that connection.  And nor, in my view, was it crucial evidence in relation to that connection, in the sense that the prosecution case would necessarily have collapsed or failed without it. In this respect, the evidence was more akin to the evidence in Burrell v The Queen[38] than the evidence in R v Tartaglia.[39]

    [37]   Rees v The Queen (2009) 196 A Crim R 199 at [133]-[134] (Beazley JA, Hulme and Latham JJ agreeing).

    [38]   Burrell v The Queen (2009) 196 A Crim R 199.

    [39]   R v Tartaglia (2011) 110 SASR 378.

17. I acknowledge that at one point in her summing up the trial judge said “[y]ou might think that if you cannot accept Ms Booth’s evidence the prosecution’s circumstantial case becomes somewhat tenuous.”  However, understood in context, this was a reference to the case being tenuous in the absence of any of the facts supported by Ms Booth’s evidence (that is, facts 2, 3, 4 and 5), and not simply the absence of fact 4.  Her Honour’s statement thus did not provide any support for fact 4 being afforded the status of an indispensable intermediate fact.

18. Each of the other six circumstantial facts, if accepted by the jury, was probative of a connection between the appellant and the intercepted parcel (and also her knowledge or recklessness as to it containing the concealed ephedrine).  And, when considered in combination, they were capable of supporting a case to go to the jury, even in the absence of fact 4.

19. The fact that the parcel named the appellant as the addressee (fact 1) was probative of a connection between the appellant and the parcel.  Further, the probative value of fact 1 must be considered in light of the essentially undisputed evidence in relation to facts 2, 3 and 5 (namely, that in about early February 2017 the appellant inquired of Ms Booth about a parcel in a tone or manner that suggested she was expecting a parcel).  Given the similarity of timing (between the interception of the parcel and the appellant’s inquiry of her neighbour), and the fact that she made the request of her neighbour who lived at the street address to which the parcel was incorrectly addressed, this evidence – if accepted – was strongly probative of a connection between the appellant and the parcel.  That was so quite apart from any consideration of the evidence that the appellant had some esoteric knowledge as to the parcel’s origins in India (fact 4).  Further, the evidence as to the Facebook messages (fact 6) and drug paraphernalia (fact 7), while primarily probative of the appellant’s knowledge or recklessness as to the contents of the parcel, was also (in combination with the evidence of facts 1, 2, 3, and 5) probative of the appellant’s connection with the intercepted parcel.

20. Having considered the potential combined probative value of these ‘other’ circumstantial facts, I am not satisfied that fact 4 was a crucial or indispensable link in a chain of reasoning that the jury were directed or invited to consider in reasoning towards their conclusion on what I have described as the central issue in the case, and hence the appellant’s guilt.  Nor, in my view, was there any significant possibility, given the way the case was presented and conducted, that the jury would have reasoned this way of their own accord. There was nothing about the evidence in relation to fact 4 that rendered it particularly vulnerable to separate or sequential consideration by the jury.  In my view, the jury would have understood that this evidence, and its probative significance, fell to be assessed in light of the circumstantial evidence as a whole, and not in any compartmentalised or piecemeal fashion.

21. For these reasons, I am not satisfied that a Shepherd direction was appropriate or required, or that the failure to give such a direction was productive of a miscarriage of justice.  To the contrary, I consider that there was a real risk that any attempt to give a Shepherd direction in respect of fact 4 would have been unhelpful or confusing for the jury.

22. Finally, I am reinforced in my conclusion that this ground must fail by defence counsel’s failure to request, or to complain about the failure to give, a Shepherd direction in relation to circumstantial fact 4.  While accepting that this failure is not necessarily fatal to the success of this ground of appeal, it is nevertheless relevant to the appellant’s ability to establish a miscarriage of justice.[40]  The failure is relevant not because the appellant is necessarily bound by the conduct of her counsel, or because it is otherwise prevents the complaint being made upon appeal.  Rather, it is relevant because the failure, at least to some extent, informs and reflects the way in which the trial was conducted – which, as I have explained, is relevant to consideration of whether a Shepherd direction was necessary to avoid a miscarriage of justice.  It supports the view that the case was not conducted on the basis that the evidence as to fact 4 was to be treated any differently from the balance of the circumstantial evidence forming part of the prosecution case; and it provides some indication that defence counsel, who had the benefit of contemporaneous insight into the atmosphere of the trial, did not regard fact 4 as an indispensable intermediate fact warranting a Shepherd direction.[41]

    [40]   R v Lowe [2016] SASCFC 118 at [12]-[15] (Peek and Doyle JJ, Nicholson J agreeing).

    [41]   See the authorities in footnote 9.

1. I would refuse permission to appeal on ground 3.

   Ground 4:  The directions in relation to Ms Booth’s evidence

2. In ground of appeal 4, the appellant complains that the trial judge’s directions on assessing the reliability and credibility of Ms Booth’s evidence were inadequate in that her Honour failed to direct the jury that they could use the (alleged) lies told by Ms Booth in rejecting the balance of her evidence, and failed to direct the jury that an honest witness can be innocently mistaken.

3. During the course of argument on the appeal, the appellant identified five aspects of Ms Booth’s evidence said to involve either inconsistent statements or lies.  It is appropriate to comment briefly upon these alleged inconsistencies or lies before considering the adequacy of their treatment by the trial judge.

4. The first related to Ms Booth’s reference in her evidence to a third occasion that the appellant had inquired about a parcel, albeit that she was not able to remember anything further about that occasion.  It will be recalled from the summary of her evidence set out earlier in these reasons that Ms Booth maintained that she mentioned the three occasions to Officers Bateman and Baldassar; but that she did not know whether the third occasion had been mentioned in her statement.  She said that if it was not, then she should have corrected it.  This evidence is said by the appellant to disclose an inconsistent statement by Ms Booth.  While the evidence does not clearly establish the asserted inconsistency (given that the statement is not in evidence, and that Officers Bateman and Baldassar were not directly asked whether Ms Booth ever made reference to a third occasion), its existence was perhaps open to be inferred from the absence of any reference to a third occasion in the evidence of the relevant border control officers.

5. The second related to Ms Booth’s evidence in relation to whether she thought it was “unusual” that the appellant had come to her house about a parcel on the first occasion.  I have earlier summarised the relevant evidence.  While Ms Booth’s evidence in this respect gave rise to the possibility of an inconsistent statement, the evidence was somewhat equivocal.  The imprecision of the evidence and questioning left it open that Ms Booth made two slightly different (but not necessarily inconsistent) statements – namely that it was not “unusual” (in the sense of untoward or unexpected) that there might have been a mix-up in the mail given the renumbering of houses in Weir Street, but that it was “unusual” (in the sense that it had not often happened) that she received mail intended for the appellant.

6. The third related to Ms Booth’s denial that she sent an email to Officer Bunnik discussing the case, in light of her later acceptance that she did reply to an email about the case and Officer Bunnik’s evidence that she did receive a reply email from Ms Booth discussing her recollections of her conversations with the appellant.  The appellant contends that the initial denial was a lie.  While it may be accepted that there was something of a shift in Ms Booth’s evidence in this respect, the significance of it, and whether it might qualify as a lie, would depend on the view taken of Ms Booth’s explanation in terms of a distinction that she drew between emails she sent to Officer Bunnik and those that were merely replying to emails sent to her by Ms Bunnik.

7. The fourth related to Ms Booth’s acceptance that she first mentioned “eBay” in connection with the parcels received in June 2016 during her evidence.  While the appellant relies upon this as an inconsistent statement by Ms Booth, for the reasons explained in the earlier summary of the evidence, this is perhaps more in the nature of a mere elaboration by Ms Booth rather than an inconsistency between her evidence and things earlier said (or not said) by her on the topic of the first occasion that the appellant visited Ms Booth to collect a parcel.

8. The fifth related to Ms Booth’s evidence in relation to the appellant having said, on the second occasion that the appellant visited to collect a parcel, something to the effect that she was expecting a parcel from India, or at least saying something implying that the sender was a relative of her husband from rural India.  I have earlier summarised the evidence of Ms Booth, and Officers Bateman and Baldassar and Bunnik on this topic.  The appellant contends that Ms Booth’s evidence on this topic was a lie, or at least inconsistent with earlier statements by Ms Booth. 

9. As to the foundation for this contention in respect of the fifth impugned aspect of Ms Booth’s evidence, it is the case that while Ms Booth claimed to be “100% certain” that the appellant said words suggesting that the sender was a relative of her husband from rural India, she nevertheless accepted that this was not in her first statement, and so first appeared in writing in her second statement (made only a few weeks prior to trial). 

10. It is also significant in this respect that Officer Bunnik gave evidence that when taking the first statement from Ms Booth she had said she was “a little bit unsure” whether the appellant had said anything to the effect that she was expecting a parcel from India.

11. There was also the evidence of Officers Bateman and Baldassar.  The former gave evidence that Ms Booth did make reference to the appellant saying she was expecting a parcel from India, and that he (Officer Bateman) did not mention it coming from India until after Ms Booth had done so.  On the other hand, he did not recall or make any note of Ms Booth referring to the appellant saying she had a husband with relatives in rural India. 

12. Officer Baldassar, on the other hand, when asked whether they had told Ms Booth at the outset that they had intercepted a parcel from India addressed to her street address, and that they wanted to ask her some questions about it, answered “I’m going to say yes, but I wasn’t the lead person asking those questions and introducing ourselves.”  Taken literally, this would suggest that Officer Bateman was the person who first mentioned the parcel being sent from India.  However, not only was this contrary to the evidence of Officer Bateman, but also the tenor of Officer Baldassar’s evidence was that he was not very clear in his memory as to precisely what was said on this occasion – in part because Officer Bateman was the lead officer, and the one asking the questions and making contemporaneous notes.  It may also be that Officer Baldassar did not appreciate the significance of the inclusion in the question he was asked of the words I have italicised (that is, the reference to an intercepted parcel from India, as opposed to an intercepted parcel simpliciter).  There is also the evidence that Officer Baldassar’s notebook included reference to “Parcel from India for Casey”.  While this may have been a note of something said by Officer Bateman, it is also potentially (and perhaps more naturally) construed in its context as a note intended to reflect something said by Ms Booth.

13. In summary, in relation to this fifth impugned aspect of Ms Booth’s evidence, while the evidence was somewhat unclear or equivocal in several respects, it may be accepted that it left some room or potential for a finding of inconsistency (and perhaps a lie) by Ms Booth on the topics of whether, on the second occasion, the appellant did in fact mention her husband’s relatives in rural India, or indeed otherwise make any reference to expecting a package from India. 

14. In his closing address, the prosecutor emphasised that Ms Booth was not challenged in her evidence that the appellant came over to her house in early February 2017 asking for a parcel.  He then reminded the jury in general terms about the evidence in relation to whether the appellant made reference on that occasion to the parcel or her husband’s relatives being from India.  The prosecutor said:

    Having deliberated you might reasonably entertain some doubt about whether the accused did indeed mention relatives to Ms Booth but one thing you do know she mentioned to Officer Bateman is India as the place the parcel originated from.  As I say, remember Ms Booth never saw this parcel so ask yourself how does she know it came from India? I invite you to conclude that it must be because the accused told her.  It certainly wasn’t Officer Bateman, he told you that, as for Officer Baldassar with respect to him he couldn’t really remember so you might think his evidence doesn’t take you very far.

15. The prosecutor then added that even if the jury were unsure about the content of the conversation at Ms Booth’s front door, it was nevertheless a matter of significance that she had appeared at Ms Booth’s front door that day expecting, indeed demanding, a parcel.  He invited the jury to consider whether it was more than simply a coincidence that she did do so, some six months after her previous visit and at about the date of the parcel’s arrival in Australia.

16. Defence counsel considered Ms Booth’s evidence at some length in his closing address.  He described her as an old and argumentative witness, who was prepared to mislead the jury.  He submitted that the jury could not place any weight upon her evidence.  In support of this submission he relied upon what he described as a “concession” by the prosecution about the reliability of her evidence (in the passage from the prosecutor’s address extracted above).  He proceeded to identify what he said were some inconsistencies in her evidence that were relevant to the jury’s assessment of Ms Booth’s credibility and reliability.

17. Defence counsel then summarised the pertinent aspects of the evidence of Ms Booth, and Officers Bateman, Baldassar and Bunnik in relation to whether the appellant had made reference to the parcel (or her husband’s relatives) being from India.  Defence counsel submitted that there was inconsistency in Ms Booth’s evidence, and the potential for contamination (from a border control officer having first mentioned that the parcel was sent from India).  He added that “it might be innocently, Angela Booth has simply got it wrong”.

18. While defence counsel went on to submit that there was “a huge amount of inconsistency in her evidence”, he did not identify any other particular instances of inconsistency of Ms Booth’s evidence.

19. In an exchange between counsel and her Honour immediately following addresses, it was agreed that it would be appropriate that her Honour give a prior inconsistent statement direction to the jury, albeit that the inconsistency or inconsistencies said to warrant this were not clearly identified.

20. In her summing up, the trial judge gave a number of directions relating to the assessment of the credibility and reliability of witnesses, both generally and in the particular case of Ms Booth.  Early in her summing up, her Honour gave standard and general directions about the assessment of witnesses, but indicated that she would later give some more specific directions in relation to the evidence of Ms Booth.

21. The trial judge commenced her subsequent treatment of Ms Booth’s evidence in the following terms:

    In considering the circumstances that the prosecution relies upon [defence counsel] invited you to carefully consider Ms Booth's evidence because he says this is critical to the prosecution case.  Her evidence forms the basis of three of the factors relied upon by the prosecution, what Ms Singh said when she inquired about the parcel, when she made that inquiry and how she made that inquiry.  You might think that if you cannot accept Ms Booth's evidence the prosecution's circumstantial case becomes somewhat tenuous.

    [Defence counsel] suggested to you that there is evidence before you that Angela Booth has made statements out of court that are inconsistent with the evidence that she gave you in court.  He also submitted that her evidence generally is unreliable.  You might think [the prosecutor] conceded that there were some issues with Ms Booth's evidence but he invited you to consider her evidence as a whole and in particular where the issue of India came from if she was not told that by Ms Singh.

22. Her Honour then instructed the jury it was a matter for them what they made of Ms Booth’s evidence, but said that she must give them a direction about prior inconsistent statements.  Her Honour then gave a standard direction about the general approach to prior inconsistent statements.  In applying that general direction to the case, her Honour directed:

    Ladies and gentlemen, it is a matter for you what you make of Ms Booth's evidence and both counsel's submissions but I must give you a direction about prior inconsistent statements.  Prior inconsistent statements of any witness in a criminal trial are not put before you for the truth of the facts they purport to assert. Rather, they are put before you to enable you to assess whether you can accept the evidence that the witness gave on oath in court.  The basic principle is that the case must be decided on the evidence given on oath and subject to cross-examine in court.  What a witness has said out of court is not, strictly speaking, evidence in the case.  Prior inconsistent statements only go to the reliability or the credibility of the witness given from the witness box in court.

    [Defence counsel] submitted to you that prior inconsistent statements demonstrate unreliability on the part of Ms Booth.  It is a matter for you what you make of that submission and Ms Booth's evidence but you should carefully consider both before reaching a decision because if a witness gives sworn evidence that is significantly different from statements made on earlier occasions a jury must exercise caution before accepting the sworn evidence of that witness. It is for you to assess the significance of each inconsistency you find proven.  Does it touch on an important case in issue in the case or is it peripheral or incidental?  If it does touch on an important issue, is there an acceptable explanation consistent with Ms Booth's sworn evidence being believable and reliable? Obviously enough, the more significant the inconsistencies the greater the risk that the sworn evidence will be unreliable.

    Do you think that Ms Booth has lied or equivocated about statements out of court which she has previously made.  If you do, that may also be a factor in assessing her truthfulness and reliability and in deciding whether you accept her evidence generally.

23. The trial judge then embarked upon a relatively detailed summary of various aspects of the evidence relevant to their assessment of Ms Booth’s evidence.

24. Her Honour commenced by summarising the evidence of Officers Bateman, Baldassar and Bunnik as to their interactions with Ms Booth.  Her Honour did so in similar terms to the summary I have set out earlier in my reasons.

25. The trial judge then reminded the jury of various aspects of Ms Booth’s evidence.  Her Honour mentioned Ms Booth’s evidence about the renumbering of the street addresses, and the earlier (mid 2016) occasion that she received a parcel addressed to the appellant.  In that context, her Honour also mentioned Ms Booth’s acceptance that the first time she had made reference to eBay in relation to the first visit was when giving evidence in court.

26. The trial judge next provided a detailed summary of Ms Booth’s evidence (particularly under cross-examination) in relation to what the appellant said to her on the occasion that she visited about a parcel in early February 2017, and in particular whether the appellant mentioned the parcel, or her husband’s relatives, coming from India.  Again, the summary was in similar terms to that set out earlier in these reasons.  Her Honour concluded her treatment of Ms Booth’s evidence by observing that the reliability or otherwise of her evidence was an important issue for the jury, and that this was why she had considered it appropriate to summarise it in some detail.

27. At the end of the summing up, defence counsel complained that her Honour’s directions in relation to the assessment of Ms Booth’s evidence were inadequate, and sought a redirection.  He said:

    Your Honour dealt with credit, but in my submission perhaps you did not go far enough in terms of the unreliability of a witness.  For example, to say that even a truthful witness might be innocently mistaken and that inconsistent statements - actually, I think your Honour did say that - affects reliability. But importantly, when we come to then Ms Booth's statement, and your Honour did set out in detail the evidence, but in my submission your Honour could go further because it is so important in this particular matter, that indeed when Ms Booth said 'No, I did not say to Ms Bunnik that I was unsure', that that clearly is inconsistent with Ms Bunnik's evidence.

    Your Honour set it out but that is so important and crucial to the assessment of the reliability of Ms Booth because if she has either lied or innocently mistaken about not saying that to Ms Bunnik then that might be used to assess the balance of her evidence.  So I would ask that that be drawn to the jury's attention on the topic of unreliability.

28. The prosecutor opposed any redirection, and her Honour declined to redirect the jury.

29. It is unfortunate that the contended lies or inconsistencies in the evidence of Ms Booth were not crystallised for the jury into the five statements or topics that were identified in the submissions advanced on appeal (as summarised above).  Neither defence counsel nor the trial judge approached the matter in that structured way.

30. Whilst it would have been preferable had the contended lies or inconsistencies been identified for the jury in this more structured way, I am satisfied that her Honour’s directions in relation to the assessment of Ms Booth’s evidence were adequate, and did not occasion any miscarriage of justice.

31. The main contest in relation to Ms Booth’s evidence lay in her evidence that the appellant had, on the occasion in early 2017, made reference to the parcel, or her husband’s relatives, having come from India.  This aspect of the evidence was thoroughly canvassed in her Honour’s directions.  It was made plain that the defence case involved a challenge to Ms Booth’s evidence, and that the basis for this challenge was both Ms Booth’s own equivocations in her evidence on this issue, and the evidence of the border control officers which left open the possibility of a prior inconsistent statement or statements by Ms Booth on this topic.  While it is apparent from my earlier summary of the evidence on this topic that it raised some relatively nuanced issues, given her Honour’s earlier general directions about the assessment of witnesses, I consider that it was sufficient that her Honour identified the issue that arose in relation to this aspect of Ms Booth’s evidence, and the evidence that needed to be considered by the jury in addressing it.

32. In relation to the other four (contended) inconsistencies identified on appeal – being the first four listed by me – they were of lesser significance in the context of this case.  In my view, they were in the nature of inconsistencies or discordances often found in a witness’ evidence, and forming part of the general and overall assessment of a witness’ evidence, rather than matters that required individualised or specific directions.  While two of them were individually mentioned by defence counsel in his request for a redirection, none of them were matters that had been separately addressed by defence counsel in his closing address.  From the terms of her Honour’s directions as a whole, the jury would have understood that they were matters they needed to consider in assessing the credibility and reliability of Ms Booth’s evidence, both in relation to those particular topics and more generally.  Indeed, her Honour expressly directed the jury that if they thought Ms Booth had lied or equivocated, this “may also be a factor in assessing her truthfulness and reliability and in deciding whether you accept her evidence generally.”

1. Returning to the specific complaints made in the articulation of this ground of appeal, the first was that the trial judge failed to direct the jury that they could use the (alleged) lies told by Ms Booth in rejecting the balance of her evidence.  This is addressed in the preceding paragraph.

2. The second was that the trial judge did not direct the jury that an honest witness can be innocently mistaken.  I do not accept that it was necessary for the trial judge to give a direction to this effect.  That a person may be honestly mistaken is obvious and a matter of common sense.  In light of the general directions given to the jury about assessing the reliability of witnesses, they would have understood that this was a possibility they needed to consider.

3. In summary, in the context of the present case, I do not consider that her Honour’s directions in relation to the assessment of the credibility or reliability of Ms Booth were inadequate or otherwise occasioned any miscarriage of justice.

4. I would decline permission to appeal in relation to proposed ground of appeal 4.

   Ground 5:  Failure to adequately summarise the defence case

5. In ground of appeal 5, the appellant complains that the trial judge erred in failing to adequately summarise the defence case.  The inadequacy was said to arise from the trial judge’s failure to direct the jury that the prosecution must disprove as a reasonable possibility both the ‘patsy’ and ‘set up’ hypotheses referred to earlier in these reasons.

6. These two hypotheses consistent with the appellant’s innocence were first raised by defence counsel in his closing address.

7. In her summing up, and in the course of her directions in relation to the approach to be taken by a jury to a circumstantial evidence case, the trial judge twice gave standard Peacock[42] directions to the effect that the inferences sought to be drawn against the appellant must be the only rational inferences which the established facts enable the jury to draw; and that they could not return a verdict of guilty unless the facts excluded any reasonable explanation consistent with innocence.

   [42]   Peacock v The King (1911) 13 CLR 619 at 630.

8. It is true that the trial judge did not subsequently say, at least not in precise terms, that the defence case involved not only a general denial that the prosecution had proved its case to the necessary standard, but also two particular hypotheses consistent with the appellant’s innocence.  However, it is not as though the trial judge entirely overlooked or omitted to mention these aspects of the defence case.

9. When directing the jury in relation to the permissible uses of the discreditable conduct evidence, the trial judge mentioned both hypotheses.  Her Honour said:

   You may also use that evidence in the way suggested by [defence counsel], namely as an explanation of why Ms Singh's name might have been put on the parcel without her knowledge and how she might have had items located in her room.  He suggested that the messages in particular indicate that she had undesirable acquaintances who may have used her, in his words, as a patsy or who may have set her up.  He said that the messages further do not show a person who is a commercial drug dealer or one who was involved in the manufacture of illicit drugs. 

10. It was not unexpected that her Honour would raise these hypotheses in the context of her directions about the discreditable conduct evidence given that this is the context in which they were first raised by defence counsel.

11. The trial judge returned to these hypotheses, at least in general terms, towards the conclusion of her summing up, when summarising the defence case.

12. After summarising various submissions made as to the lack of weight that should be attached to the circumstantial evidence relied upon by the prosecution, and the significance of some of the gaps in the evidence, the trial judge mentioned the absence of any DNA or fingerprint evidence connecting the appellant with the drug paraphernalia found in her house.  Her Honour then mentioned defence counsel’s submission that this means “you cannot exclude the reasonable possibility that they were placed there by someone else.”

13. Following completion of the summing up, defence counsel complained that the judge had not made adequate reference – at least not in her summary of the defence case – to the two possibilities raised by him (namely the ‘patsy’ and ‘set up’ hypotheses).  This was the second topic in respect of which he sought a redirection.  Again, this was met with opposition from the prosecution, essentially on the basis that her Honour had said to the jury that if there were aspects of the addresses not covered then it did not mean they were not worthy of the jury’s consideration; that the judge had only mentioned some parts of the prosecution address; and that addresses had occurred just the previous afternoon and so would have been fresh in the jurors’ minds.

14. It is trite that, as an incident of a trial judge’s obligation to direct and assist the jury, the trial judge must summarise the defence case.  This will generally involve identifying the substance of the defence case, and then relating it to the evidence, and doing so in a fair and balanced way.  However, beyond this general statement there is a danger in being too prescriptive in terms of what is required.  The law permits a degree of flexibility and individual style in terms of how the summing up is structured, and the level of detail to which it descends.[43]  The trial judge is not obliged to repeat all of the arguments of defence counsel.[44]

    [43]   Castle v The Queen (2016) 259 CLR 449 at [59] (Kiefel, Bell, Keane and Nettle JJ; Gageler agreeing); R v Ferguson [2018] SASCFC 130 at [196] (Blue J, Doyle J and Chivell AJ agreeing); The Queen v Perks (1986) 43 SASR 112 at 115-116 (King CJ).

    [44]   R v Franco (2009) 105 SASR 446 at [37] (Vanstone J, Anderson and Kourakis JJ agreeing); The Queen v Perks (1986) 43 SASR 112 at 115-116 (King CJ).

15. Here the trial judge’s summing up was generally succinct and to the point. In my view, while her Honour’s summary of the defence case was relatively brief, the defence case was nevertheless summarised accurately, and in a fair and balanced way. It was summarised in a broadly equivalent level of detail to her Honour’s summary of the prosecution case. In my view, the relative brevity of her Honour’s summation of the parties’ cases was entirely appropriate given the short duration of the trial,[45] and the limited scope and complexity of the issues and evidence. It was also of some significance in this respect that the defence hypotheses in question were not matters that were the subject to any positive evidence that needed to be summarised. Rather, they arose merely from submissions made by defence counsel in his closing address.

    [45]   Five days, including the addresses and summing up.

16. The addresses of both the prosecutor and defence counsel were short, and would have been fresh in the jurors’ minds when they retired the next morning to consider their verdict.  Her Honour told the jury that she was not going to repeat all of the arguments of counsel given that they had just heard them.  She added that the addresses of both counsel were a central part of the trial that they were bound to consider; and that if she did not comment on all points they made, they should not assume they were not worthy of consideration.

17. Insofar as the appellant’s complaint focussed upon the location in her Honour’s summing up of the clearest reference to the two hypotheses raised by defence counsel, I do not consider that the complaint has substance.  It is generally a matter for the trial judge to determine how best to structure his or her summing up.  Further, in this case, the appropriateness of raising those hypotheses in the context of consideration of the discreditable conduct evidence can hardly be criticised when defence counsel had adopted a similar structure in his closing address.

18. Finally, while the trial judge might usefully have repeated reference to the two hypotheses in her later summary of the defence case, I do not consider that the failure to do so caused any miscarriage.  The jury were adequately directed as to this aspect of the defence case, and by reason of the Peacock directions earlier given by her Honour, would have understood the need for them to be satisfied that the prosecution had excluded the defence hypotheses beyond reasonable doubt before convicting the appellant.

19. I would refuse permission to appeal on ground of appeal 5.

    Ground 6:  Unreasonable verdict

20. In ground of appeal 6, the appellant complains that the verdict of guilty was unsafe and unsatisfactory; that is, unreasonable or cannot be supported having regard to the evidence, within the meaning of s 353(1) of the Criminal Law Consolidation Act 1935 (SA).

21. There is no dispute as to the principles applicable in considering this ground of appeal.  The task of this Court is as stated by the High Court in M v The Queen.[46]  The question is one of fact which the Court must decide by making its own independent assessment of the evidence, and determining whether, notwithstanding that there was evidence upon which the jury might convict, it would be dangerous to allow the verdict of guilty to stand.  The Court must ask itself whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.[47]

    [46]   M v The Queen (1994) 181 CLR 487 at 492-495 (Mason CJ, Deane, Dawson and Toohey JJ), as applied, for example, in The Queen v Nguyen (2010) 242 CLR 491 at [33] (the Court).

    [47]   Libke v The Queen (2007) 230 CLR 559 at [113].

22. The plurality in M v The Queen added:[48]

    But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.

    … To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.

    … In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

    [48]   M v The Queen (1994) 181 CLR 487 at 493-495 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted).

23. The thrust of the appellant’s challenge to the jury’s verdict under this ground of appeal was two-fold.  First, it involved a challenge to Ms Booth’s evidence in relation to circumstantial fact 4 (namely that the appellant made reference to the parcel (or her husband’s relatives) coming from India when she visited to enquire about a parcel in early February 2017).  And, secondly, it involved a challenge to the weight of the balance of the circumstantial evidence, particularly when considered in light of various gaps or absences in the evidence.

24. As to the first limb of the appellant’s challenge, while the defence case did not involve any challenge to Ms Booth’s evidence to the effect the appellant visited in early February 2017 inquiring about a parcel that is, circumstantial facts 2, 3 and 5), it did involve a challenge to Ms Booth’s evidence in relation to circumstantial fact 4.  It was contended that Ms Booth’s evidence on this issue was tainted by inconsistencies, if not lies, both as to the appellant’s references to India and more generally.

25. I have earlier outlined the five aspects of Ms Booth’s evidence said to involve inconsistencies or lies.  As would have been apparent from my summation and analysis of those aspects of Ms Booth’s evidence, I do not consider that they involved any clear or significant inconsistency in Ms Booth’s evidence.  While there were some aspects of her evidence that required careful consideration by the jury, and the prosecutor and trial judge acknowledged as much, it remained open to the jury to accept Ms Booth’s evidence to the effect that the appellant made reference to the parcel she was expecting having come from India, or from her husband’s relatives in India.  Put another way, I consider that the jury’s advantage in having seen and heard Ms Booth give her evidence entitled them to resolve the asserted doubts about her evidence in favour of accepting her evidence in relation to fact 4.  The asserted inconsistencies and frailty in Ms Booth’s evidence were not, in my view, of a nature or significance to require the jury to reject her evidence in relation to circumstantial fact 4.  The jury may have entertained doubt about her evidence in this respect; but they were not required to do so.

26. While this conclusion is sufficient to dispose of this ground of appeal, I further consider that even if the jury were required to, or did, reject Ms Booth’s evidence in relation to circumstantial fact 4, the balance of the evidence was in any event sufficient to leave it open to the jury to convict the appellant.

27. There is some overlap between my reasons for this conclusion and my earlier reasoning in relation to ground of appeal 3 (which involved a contention that circumstantial fact 4 was an indispensable link in the chain of reasoning to guilt).  As I explained in that context, the balance of the circumstantial evidence had significant probative force.  The very fact that the parcel named the appellant as the addressee (fact 1) was a significant matter.  Further, this evidence needed to be considered in combination with the undisputed evidence that in early February 2017 the appellant visited Ms Booth and inquired about a parcel in a manner and tone that suggested she was expecting a parcel (facts 2, 3 and 5).

28. The appellant contended that the weight of the above evidence was significantly diminished, if not entirely neutralised, by the evidence of Ms Booth to the effect that there had been some confusion following the change in street numbering of houses on Weir Street, and that the appellant had six months earlier visited to inquire about a package that had been sent to Ms Booth’s address.  The appellant also relied in this context on the evidence to the effect that there had also been a subsequent letter to the appellant misdirected to Ms Booth.

29. While the above evidence was obviously relevant to the weight to be attached to the evidence in relation to facts 1, 2, 3, and 5, I do not think it carried the significance that the appellant sought to attribute to it.  Ms Booth’s evidence about the renumbering was very general, if not vague.  It did not provide any basis for concluding that the appellant’s house had been renumbered, and, if anything, suggested to the contrary.  Further, I do not consider that the previous visit by the appellant to collect a parcel was of much moment.  It was not as though the appellant had a practice of enquiring about misdirected mail that might have diminished the significance of the enquiry in early February 2017. And consistently with this, Ms Booth’s evidence of this occasion in early February 2017 suggested that the enquiry was one made in the expectation that Ms Booth would have a parcel, rather than on the off chance that she might have one.  In the circumstances, the evidence as to the address on the parcel, and the nature and timing of the enquiry by the appellant about that parcel, retained a strong probative value, particularly when considered in combination with the discreditable conduct evidence (facts 6 and 7).

30. Further, it is my view that was so despite the gaps or absences in the evidence.  It was relevant that the searches made of the appellant’s devices and financial records did not reveal any communication or connection with the parcel or its sender, or any evidence of the receipt or transfer of money by the appellant of apparent significance.  It was also relevant that there was no DNA or fingerprint evidence linking the appellant to the drug paraphernalia.  However, despite these gaps or absences in the evidence, I consider that the cumulative significance of the circumstantial evidence (even without reliance upon the evidence in support of circumstantial fact 4) was sufficient to sustain a finding by the jury that the appellant was guilty beyond reasonable doubt of the offence charged.

31. I would therefore reject ground of appeal 6.

    Conclusion

32. For the reasons set out, I would refuse permission to appeal on Grounds 3, 4 and 5, and dismiss the appeal.