R v Soteriou - [2013] SASCFC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SOTERIOU
[2013] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Stanley)
21 October 2013
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE
Appeal against conviction for trafficking in ecstasy - drugs found concealed in gutter of house adjacent to appellant's - plastic zip lock bags and "tick lists" found at appellant's house and his mobile telephone had SMS messages stored on it which prosecution alleged were referable to sales of drugs - whether the bags, lists and SMS messages were items of "discreditable conduct" within the meaning of s34P Evidence Act 1929 (SA) - whether the evidence was properly admitted - whether the trial judge had complied with the requirements of s 34P in admitting the evidence - whether the relevance of the evidence relied on "a particular propensity or disposition" in the appellant - whether the directions as to use and misuse of the evidence were adequate - whether the trial judge was required by s 32R(2) to direct that conclusions about this evidence were essential to the process of reasoning leading to guilt.
Held: appeal dismissed. Only the lists and SMS messages were discreditable conduct - all three items were relevant and admissible, being relevant to proof of possession and intention to sell - the lists and SMS messages suggested the appellant was in the business of dealing in drugs and, it followed, showed that he had a disposition or tendency to deal in drugs - although the evidence of those two items was not (ostensibly) admitted for such a purpose that would not preclude that use - the directions given going to the proper use of the evidence were appropriate and complied with s 34R(1) - the warning against propensity reasoning tended to contradict that direction and was not necessary, but could only have favoured the appellant - appropriately, no direction under s 32R(2) was given.
Evidence Act 1929 (SA) s 34P, s 34Q, s 34R, referred to.
KRM v The Queen (2001) 206 CLR 221; R v MBJ (2011) 110 SASR 1; Harriman v The Queen (1989) 167 CLR 590; R v MJJ, R v DJN [2013] SASCFC 51, applied.
R v Conley (1982) 30 SASR 226; R v Long; R v McDonnell [2002] SASC 426, (2002) 137 A Crim R 263, discussed.
R v CCN [2013] SASCFC 44; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 28; Martin v Osborne (1936) 55 CLR 367; R v Pfennig (1995) 182 CLR 461; R v Franco (2009) 105 SASR 446; Shepherd v The Queen (1990) 170 CLR 573, considered.

R v SOTERIOU
[2013] SASCFC 114
Court of Criminal Appeal: Sulan, Vanstone and Stanley JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of Vanstone J
VANSTONE J: John Soteriou was found guilty by verdicts of a jury of two counts of trafficking in a controlled drug. Each offence occurred on 2 February 2011, the first count alleged trafficking in the drug known as 2C-I and the second trafficking in a controlled drug known as TFMPP. Evidence called by the prosecution included what are sometimes referred to as “indicia of sales”, in this case notebooks containing lists of persons and amounts, SMS messages referring, sometimes obliquely, to what the prosecution said were sales negotiations and quantities of small plastic ziplock bags.
The question which arises upon the appeal is whether the admission and use of all or any of this evidence was regulated by s 34P of the Evidence Act 1929 and whether the evidence was properly admitted and directed upon by the judge.
For the reasons which follow I have decided that only the evidence of the notebooks and text messages fell within the ambit of s 34P. It is not necessary for this Court to analyse the reasons given by the trial judge for admitting that evidence since the issue is whether it was properly admitted. In my view the evidence was properly admitted as being “discreditable conduct”. In summing up the judge correctly identified and explained the relevance of the evidence. He also gave a propensity warning which, in my opinion, was not required. I would dismiss the appeal.
Background
On 2 February 2011 police attended at the home of the appellant. Within the house police located a mobile telephone from which text messages were extracted, notebooks containing handwritten entries and a large number of plastic resealable bags.
Examples of the text messages were as follows:
Incoming: how much can you pay before Thursday Jhon?
Incoming
from Cam:I’m coming back from victor on Saturday, i sold the rest yesterday so I have 200 to give you …
Incoming: from
“Berry Chad” Hey mate what biscuits you got?
The notebooks contained lists of names with corresponding numbers, often with amendments in the form of additions or subtractions. In at least one case an entry, referring to “Cam”, seemed to reflect a text message, being the second reproduced above.
Inside the gutter of a neighbouring property police located a camera bag containing a plastic bag, within which were 33 tablets, referred to as 2C-I (count 1) and a plastic bag within which were 153 tablets referred to as TFMPP (count 2). The DNA of two individuals was found on the camera bag, one DNA profile matching that of the accused. The prosecution case relied on inferences available from all the evidence, on the basis of which it was suggested that the camera bag was in the possession of the appellant and that he possessed the two controlled drugs for the purpose of trafficking.
The appellant gave evidence in his defence. He denied possession of the camera bag located in the gutter. He acknowledged that the mobile telephone belonged to him. He admitted that the notebooks contained some of his handwriting but asserted that the names and amounts were referable to monies owed to him by customers of his hairdressing and seafood businesses, as well as loans he had extended to friends. The appellant said that the plastic bags were his and that he used them for jewellery. He also acknowledged possessing plastic bags similar to those containing the drugs, which he used for his children’s lunches.
Arguments on appeal.
The appellant was represented upon the appeal (though not at trial) by Mr Moen. Mr Moen did not argue that all three items were inadmissible in the trial. Plainly they were strongly probative. However, he argued that the items were not such as to suggest that the appellant had been engaged in discreditable conduct and that they did not therefore attract the provisions of s 34P. Mr Moen further submitted that if, against his argument, the evidence did raise s 34P, then the judge had erred in failing to address the various requirements of the section. He noted that according to R v CCN [2013] SASCFC 44 at [29] it was necessary for the judge to consider each step of the s 34P process in relation to each charge. Mr Moen further argued that the directions in relation to the evidence were inadequate. In particular he argued that since the evidence was an “essential link in the process of reasoning leading to a finding of guilt” (s 34R(2) the judge was obliged to direct the jury that it was not to make use of the evidence unless the inferences arising from it were proved beyond reasonable doubt.
Mr Press, for the Director of Public Prosecutions, argued that the appellant’s possession of the plastic bags was not discreditable conduct.
As to the text messages and notebooks, Mr Press put that, because the evidence raised the inference that the appellant had previously engaged in drug transactions other than the conduct involved in the two charges, the evidence was subject to s 34P. However, Mr Press submitted that the text and notebook evidence was not admitted for a use relying on propensity or disposition under s 34P(2)(b). He argued that the messages and notebooks went to proof of possession of the drugs found in the camera bag and to proof of intention to sell. They were relevant to rebut any suggestion that the appellant’s DNA came to be on the camera bag innocently. Further, they tended to prove that the appellant had access to drugs and a customer base. All this led to the inference that the appellant was in the business of selling drugs and that in turn was strongly probative in terms of proving that the appellant was in possession of the camera bag and that his possession was for the purpose of trafficking in the drugs it contained. He argued that the evidence only needed to meet the test in s 34P(2)(a), that is, that its permissible use substantially outweighed any prejudicial effect that it had. He put that the items were cogent evidence and clearly met that standard.
It is convenient at this point to set out the terms of s 34P, 34Q and 34R.
34P—Evidence of discreditable conduct
(1)     In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)     Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)     In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)     Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)     The court may, if it thinks fit, dispense with the requirement in subsection (4).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
Was this discreditable conduct evidence
I start with the question whether the three items of evidence were discreditable conduct evidence. In terms of s 34P(1) that question is: Did the evidence tend to suggest that the appellant had engaged in discreditable conduct … other than conduct constituting the offence?
I agree with both counsel that the possession of the resealable plastic bags was not such evidence. Certainly the prosecution argued that the plastic bags were the tools of trade or paraphernalia or indicia of trading by a drug dealer – indeed there was some evidence from a police officer in this trial to that effect – but the very fact that the appellant still had possession of them indicated that they had not been used in the course of a drug trade. The subsection catches evidence suggesting that a defendant has, that is in the past, engaged in discreditable conduct; not that he might intend to do so in the future.
The notebooks and text messages stand differently. The text messages clearly speak of sales and payments. The subject matter of what is being traded is sometimes referred to as “biscuits” and other times as “green e’s”. However, viewing the various strands of the prosecution case cumulatively, the messages were clearly capable of demonstrating that the defendant had, in the past, sold drugs. Therefore the terms of s 34P were engaged.
The next question is whether the permissible use of the evidence relied “on a particular propensity or disposition”: s 34P(2)(b). It is instructive to consult the dictionaries on the meaning of the words “propensity” and “disposition”. I take the following definitions from the Oxford English Dictionary (2^nd ed, vol XII, Clarendon Press, Oxford 1989). Some of the definitions of “propensity” are as follows:
propensity
1.The quality or character of being ‘propense’ or inclined to something; inclination, disposition, tendency, bent. Const. to, towards (rarely for, of) with sb., or to with inf.
a.Disposition or inclination to some action, course of action, habit, etc.; bent of mind or nature.
b.Disposition to favour, benefit or associate oneself with some person, party, etc.; favourable inclination, good will.
c.Tendency or liability to some physical condition or action.
…
The definition of “disposition” includes the following:
disposition
1.(often foll. by to) a natural tendency; an inclination; a person’s temperament (a happy disposition; a disposition to overeat).
2. a. a setting in order, arranging.
b. the relative position of parts; an arrangement.
…
It can be seen that the definitions of both words are fairly undemanding. They include inclination or tendency. The words can apply to a criminal propensity or disposition, but need not. I consider that if the jury were minded to draw the inferences from the text messages and notebooks suggested by the prosecution, then inevitably it would have reached the view that the appellant had recently and repeatedly dealt in drugs, that he was in that business, and, it followed, that the appellant had a propensity or disposition to deal in drugs. In my view the step from the first and second conclusions to the third is a short one.
I acknowledge that in R v Conley (1982) 30 SASR 226 King CJ was not inclined to treat evidence tending to show continuing involvement in the drug trade as raising what was then called the “prohibited line of reasoning”.
Conley was an unusual case. He was charged with two counts of trading in heroin committed on 8 November 1979 and 22 November 1979 each based on the finding by police in his rubbish bin of plastic bags containing traces of heroin and, on the same information, two charges of possessing heroin for sale committed on the day of his arrest, namely 9 March 1981. On that day Conley had taken part in a transaction in which a police collaborator, Clark, handed $25,000 to Conley for the purchase of heroin. Police then found secreted at Conley’s house premises a bag containing 150 grams of heroin as well as another quantity of heroin in his motor vehicle. Conley gave an unsworn statement denying he was responsible for the bags in his rubbish bin, denying any intent to supply Clark with heroin and asserting that the heroin said to have been found at his house and car by police had been planted by them.
In this Court King CJ, with whom White and Cox JJ agreed, found that the evidence of each count was admissible on all other counts. The evidence tended to prove the general allegation that the appellant was trading in heroin. That fact would throw light on the innocent explanations given in respect of the plastic bags in his bin, his dealings with Clark and on the suggested police plants. “The combination of events rendered innocent explanations of each less likely”: 230. King CJ said that the evidence tended to show a continuity of interest in the drug trade during the relevant period. The relevance of the evidence was, he said, “quite unrelated to the prohibited line of reasoning by way of propensity”: 230. His Honour found that no direction on similar fact evidence was required. It would have been “labouring the obvious”: 231.
It is noteworthy that this was not a case where the prosecution relied on discrete crimes making up a pattern (for example, Perry v The Queen (1982) 150 CLR 580, Sutton v The Queen (1984) 152 CLR 28, Martin v Osborne (1936) 55 CLR 367) or conduct underlying a previous or subsequent conviction said to prove a distinctive propensity (for example, R v Straffen [1952] 2 QB 911, R v Pfennig (1995) 182 CLR 461). Rather, the evidence comprised a variety of incidents, each the subject of a charge, which together built a picture of a man involved, on an ongoing basis, in the heroin trade. The evidence did not lend itself to the type of sequential reasoning often a hallmark of what were in those times usually referred to as similar fact cases; and the charged incidents did not pretend to exhibit the striking similarities which were commonly seen as a touchstone of such evidence.
The common law has developed a great deal from the older cases which were inclined to equate propensity evidence with similar fact evidence. It would now seem factitious to say that evidence that suggests that previously, (but proximately) an accused had committed the very sort of crime with which he is charged does not invite reliance on propensity reasoning. The distinction between reliance on a continuing interest in the drug trade as against a propensity to trade in drugs seems to me to be difficult to maintain. That is not to say that Conley’s case would be decided differently today. On the contrary, I think it would not necessarily attract the provisions of s 34P at all, because the evidence presented did not go beyond conduct constituting the offences; and, if it did, it would clearly answer either test in s 34P(2).
It will be remembered that Conley was decided in a time when the law in Australia allowed the admission of evidence of other offending only if relevant to an issue other than propensity. That situation changed, explicitly, in Pfennig v The Queen (1995) 182 CLR 461. There, the plurality referred (at 481) to the earlier view as a “misunderstanding of the Makin principles”. That dramatic change and the question which consequently arises as to whether evidence of other misconduct is admitted for a propensity purpose or not necessarily informs the nature of any propensity warning required in such cases.
In my view it is noteworthy that King CJ found that the absence of a propensity warning and indeed the absence of any direction about use and misuse was not such as to jeopardise the convictions. The proper use of the evidence was so clear and the need to consider the evidence as a whole so obvious, that any direction about it would not have been likely to assist. I shall return to say more on the topic of the warning.
I mention another authority which assists to characterise the relevance of evidence of this nature.
In R v Long; R v McDonnell [2002] SASC 426, (2002) 137 A Crim R 263, this Court considered the admissibility and proper uses of evidence that both appellants had previously been involved in an amphetamine production. After a police raid at Ms Long’s home both appellants were charged with taking part in the production of methylamphetamine. Both were present at the time of the raid. Plainly an amphetamine “cook up” was underway there. Circumstantial and direct evidence linked McDonnell to the production. Another man, Furner, who pleaded guilty and gave evidence for the prosecution (although he was declared hostile) said that Long had given him permission to use the house for the production. One Sutcliffe gave evidence that some six to eight weeks earlier Furner and McDonnell had conducted a “cook up” at another house occupied by Ms Long.

Doyle CJ, with whose reasons Lander and Bleby JJ agreed set out at [35]-[36] a number of potential uses of the evidence of the earlier production not involving propensity reasoning. However, he went on to observe that legitimate propensity reasoning was also available. He said at [37] that if the evidence of the previous production was accepted:
… it would support a conclusion that [Long and McDonnell] were likely to be involved on the occasion charged. It was evidence of their complicity in the admitted offence by Mr Furner. To so reason would not be to reason that because they had offended before, they were likely to offend again. The reasoning is that the identity of the offence, of the location, of the method of operation and of the people present was such that it was highly improbable that those coincidences or repetitions could be explicable on any basis other than that Ms Long and Mr McDonnell were involved in the production of amphetamine on the second occasion.
Doyle CJ said that this was “either a form of propensity reasoning, or [was] so close to it that the distinction becomes insignificant”: [39].
In the instant case the evidence went directly to the two critical questions: was the bag of drugs in the gutter in the appellant’s possession and, if so, did he have it for the purpose of sale? If the jury accepted on the basis of the texts and notes that the appellant was trading in drugs then that would raise the improbability of the secreted drugs being other than his and the improbability of their being other than his “stock in trade”. A person in the business of selling drugs is likely to have, not just a ready line of communication and records of the business, but also a stock of the product he sells.
I am fortified in the view that this is evidence of propensity by the attitudes of the members of the High Court in Harriman v The Queen (1989) 167 CLR 590. There the appellant had been convicted for five counts of being knowingly concerned in the importation of heroin. The heroin had been posted by one Martin, from London, in April 1987 in five parcels to five separate addressees in Western Australia. There was no dispute that Martin had committed the offences. It was common ground that earlier that month Martin and Harriman had arranged to meet in Bangkok and that together they travelled to Chiang Mai by bus overnight and returned by air to Bangkok on the next evening. According to Martin’s evidence, Harriman had arranged for a quantity of heroin to be available for them to collect in Chiang Mai. Martin had then travelled to London from where the heroin was dispatched. The defence case was that Martin had acted independently of Harriman. After the cross examination of Martin the prosecution was permitted to lead evidence that Harriman and Martin had previously been involved in the sale and use of heroin, namely during the latter months of 1986 and the early months of 1987. The question was whether this evidence of earlier dealings was properly admitted.
All members of the Court found that the evidence was admissible. Brennan J found that the evidence, although not similar fact evidence, was evidence of propensity having a high degree of probative value. He said this at 595:
The concatenation of these pieces of evidence showed that Harriman, prior to April 1987, had participated repeatedly in one role or another in heroin dealing in Western Australia. He had participated in a trade notorious for its clandestine organization, the creation of distribution networks of dealer-users, the payment of large sums of money enforced (if need be) by vicious measures, and the urgent demand by addicts for sources of supply. A person who is shown to have participated to a substantial degree in that trade - I am not speaking of mere use or of an isolated sale - is likely to have incentives to continue his participation in the trade and, because of the nature of the trade, is more likely to have done so than one who has not been a substantial participant. Evidence of substantial participation in the heroin trade can support an inference of continued participation although, of course, each case depends on its own facts. In determining whether or not evidence of participation can support such an inference, regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case. In this case, the extent of Harriman's participation was such that, in the absence of anything to suggest that the participation by Harriman and Martin in the sale of heroin in Western Australia had been discontinued, the guilty inference might properly have been drawn.
Dawson J said, at 597, that the evidence of a previous relationship between the appellant and Martin involving dealings in drugs:
… was clearly evidence of a disposition or propensity upon [Harriman’s] part, indeed, on the part of both of them, to engage in dealings of that kind together with one another such as to make it highly improbable that their relationship in this case was of an innocent character.
Toohey J, at 609, said that although the evidence was likely to demonstrate a propensity on the part of the appellant to engage in heroin trafficking, it went beyond that. Gaudron J did not use the term “propensity evidence”, but like the other members of the Court found that it was admissible and had the high degree of probative value required by “improbability evidence”: 614. McHugh J, at 635, said this:
The evidence had the tendency to prejudice the applicant because the jury might think that he was a person who, by reason of his propensity to deal in heroin, was the sort of person who would import heroin into Australia. That potential prejudice, however, was clearly outweighed by the probative force of the evidence when considered with the other evidence because it indicated to the point of near certainty that Martin and the applicant were acting in concert in Chiang Mai.
I emphasise the statement of Brennan J already set out to the effect that evidence of substantial participation in the drug trade can support an inference of continued participation. This is the reason why the evidence in Harriman was admitted. That participation could be said to indicate an interest in the relevant trade, or an inclination to take part in the trade, terms I used in R v Franco (2009) 105 SASR 446 at 452 in discussing a different, but broadly analogous situation. In Harriman the previous involvement and the parallels between the previous and the charged offending raised the improbability that the activities of Harriman on the charged occasion were innocent. In Long v McDonnell the links between the two ventures again raised that improbability.
In the present case, the evidence of the appellant apparently conducting the business of trafficking in drugs from the very premises where he was found and near to where the drugs were located, was evidence of an interest in the trade and of his inclination or propensity to possess drugs for that purpose.
The evidence had strong probative value in relation to the two issues at trial and was correctly admitted. There was no reason to exclude it as an exercise of discretion.
It is true that the trial judge did not admit the evidence as being propensity evidence and that he found that the evidence “substantially outweighed any prejudicial effect” in terms of s 34P(2)(a) rather than applying s 34P(2)(b). However, as Kourakis CJ observed in R v MJJ, R v CJN [2013] SASCFC 51 at [16] additional permissible purposes may be identified subsequent to the ruling. His Honour went on:
Ultimately, on an appeal, it will be the legal conclusion reached by the Court of Appeal on the probative force of the uses left to the jury which will be determinative and if the evidence is admissible any error made by the trial judge in reaching the same conclusion is of no consequence.
I agreed with the Chief Justice’s reasons. I added at [236]:
A corollary of these principles is that no error of law is made by a trial judge who, for the wrong reasons, admits what is in fact legally admissible evidence. The question for the appeal court will always be whether the evidence was properly admitted. For this reason, where evidence is found by the appeal court to have been properly admitted no question of an error of law, or the application of the proviso, can arise.
Were the directions adequate
I deal first with the complaint by Mr Moen that no direction under s 34R(2) was given. In my view acceptance of this evidence and the implications arising from it was not “essential to the process of reasoning leading to a finding of guilt”: s 34R(2). A finding that the appellant was engaged in the business of trading in drugs was not a precondition to a finding on the general issue in the way contemplated by Shepherd v The Queen (1990) 170 CLR 573. No more need be said on that aspect.
The direction given by the judge about the notebooks was as follows:
³⁵Ladies and gentlemen, I now give you some particular directions about the notebooks and the text messages which were found in Mr Soteriou’s telephone and on his SIM card. As you know, the prosecution argues that the notebooks are “tick lists” or lists of amounts owed to the accused for drugs sold by him to people named in those books. You will remember the evidence of Detective Senior Sergeant Stanley that as a drug investigator he looks for such tick lists as an indicator of drug dealing. In the case of the text messages it is the prosecution case of course that those messages are about the sales of drugs. It is important for you to know how you may and may not use of evidence of the notebooks and the text messages. You must not use the evidence of the tick lists, if you find them to be such, to reason that because the accused has sold drugs in the past, if you are satisfied that he had done so, that he is the sort of person who would traffic in controlled drugs and is, therefore, guilty of one or both of the charges before the court today. You must not use the evidence in that way but you may use it in this way if you see fit. You may use the notebooks as evidence that the accused was involved in an ongoing business of selling drugs and if you find that he was engaged in such a business you may, if you see fit, use that fact as evidence of his possession of the drugs in the camera bag and of his intention to sell.
(emphasis added)
A parallel direction was given about the text messages.
I consider that the directions going to the proper use of the evidence were appropriate and complied with s 34R(1).
In relation to the propensity warning given by the trial judge, that is, not to reason that the appellant was the “sort of person” who would traffic in drugs, I consider that it tends to contradict the direction going to proper use. As I have stated, I consider that the evidence was propensity evidence. It was the inference that the appellant had a propensity to engage in the drug trade – from those very premises and in that very period – that gave the evidence its power. The distinction between conducting a business and having a propensity to engage in that business, and being the sort of person to engage in that business are in my mind all but illusory. This was not a case like Harriman where the previous conduct was removed from the charged conduct. The use of the evidence was obvious and was as the judge outlined. I consider that no propensity warning was required.
As McHugh J said in KRM v The Queen (2001) 206 CLR 221 at [32] where evidence is admitted as propensity evidence, a propensity warning can be given only in some very limited way. In R v MBJ (2011) 110 SASR 1 at 25, I reproduced the very general warning given by Cox J in the trial of Pfennig. In my opinion, if any warning is required at all in cases where evidence is to be used as propensity evidence, the purpose of that warning will be to ensure that the jury does not, as Cox J said in Pfennig “condemn a man simply on his record” or, as Kirby J said in KRM at 260, to ensure that “proof of one count is not taken, as such, as proof of another”.
In Conley’s case, as here, there could be no question of condemning the accused upon his record, because the accused person had no record. Rather, the evidence suggesting earlier offending was inextricably bound with the charged conduct. I consider that it was at least partly because of a similar analysis that King CJ found that to have given such a warning would have been to have stated the obvious. The other reason why there, as here, misuse was unlikely was because the proper use of the evidence was so obvious and the misuse so enigmatic and illogical. Why would the jury be inclined to take the notebooks and text messages, divorce them from the finding of the drugs in the gutter, and then convict the accused on that evidence alone?
In my opinion, in the circumstances of this case, there was no need for any propensity warning because there was, in a real sense, no misuse available.
The fact that the propensity warning was given could only have favoured the appellant.
Conclusion
The evidence was properly admitted. It met the requirements of s 34P of the Evidence Act.
The directions going to use were appropriate. The directions going to misuse were unnecessary but could only have favoured the appellant.
I would dismiss the appeal.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.