Trudgian v The State of Western Australia - [2006] WASCA 271

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRUDGIAN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 271

CORAM: STEYTLER P
ROBERTS-SMITH JA
McLURE JA

HEARD: 11 OCTOBER 2006

DELIVERED : 11 OCTOBER 2006

PUBLISHED : 8 DECEMBER 2006

FILE NO/S: CACR 33 of 2006

BETWEEN: ANDREW STUART TRUDGIAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
File No  :IND BRO 1 of 2005

Catchwords:

Criminal law and procedure - Selfincriminating evidence - Certificate of indemnity under Evidence Act 1906 (WA), s 11 - Whether certificate should be granted in presence of jury - Appropriate direction to jury on effect of certificate

Criminal law and procedure - Whether trial Judge misdirected jury as to elements of possession - Whether trial Judge should have corrected comments made in closing submission that were unsupported by evidence - Whether trial Judge misdirected jury as to evidence of appellant's good character - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 11, s 12, s 13
Evidence Amendment Act 1990 (WA)
Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1)(a)

Result:

Appeal against conviction allowed on ground 2 in respect of counts 4 and 5
Conviction quashed on counts 4 and 5
Retrial ordered in respect of counts 4 and 5
Appeal against conviction dismissed in respect of count 3

Category: A

Representation:

Counsel:

Appellant: Mr L M Levy
Respondent: Mr A L Troy

Solicitors:

Appellant: Laurie Levy & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Atholwood (2000) 110 A Crim R 417
Attorney‑General for Western Australia v Cockram (1990) 2 WAR 477
Davies v The State of Western Australia [2006] WASCA 151
Davis v The Queen (1990) 5 WAR 269
Hugo (2000) 113 A Crim R 484
Jones v The State of Western Australia [2006] WASCA 192
Lai v The Queen [1990] WAR 151
Markovina v The Queen (No 2) (1997) 19 WAR 119
Melbourne v The Queen (1999) 198 CLR 1
Oui v The Queen [2006] WASCA 76
Truong v The State of Western Australia [2006] WASCA 1

Case(s) also cited:

Attwood v The Queen (1960) 102 CLR 353
He Kaw Teh v The Queen (1985) 157 CLR 523
Pham v The Queen [2004] WASCA 104
R v DDR [1998] 3 VR 580
R v Murphy (1985) 4 NSWLR 42
R v Solway [1984] 2 Qd R 75
R v Trimboli (1979) 21 SASR 577
Wedd v The Queen (2000) 115 A Crim R 205

STEYTLER P: The appellant was charged with two counts of selling or supplying methylamphetamine (counts 1 and 2) and three counts of possession of methylamphetamine with intent to sell or supply (counts 3, 4 and 5). He pleaded guilty to each of counts 1 and 2. He pleaded not guilty to counts 3, 4 and 5. He was tried by a jury in the District Court of Western Australia in respect of those charges. He was convicted on all three of them. He has appealed against his convictions. At the conclusion of argument on the appeal, the Court allowed the appeal against conviction on each of counts 4 and 5, saying that it would deliver its reasons for doing so in due course. The Court reserved its decision as regards the appeal against conviction on count 3.

The evidence at trial

The prosecution case, as it emerged during the trial, was that the three offences were committed on 6 August 2004 at Broome. On that date, police officers executed a search warrant on a workshop at 46 Blackman Street. The workshop was rented by the appellant. He used it for the purposes of his beach buggy hire business. When the police arrived there were three people in the workshop. These were the appellant, Mr Shane Eylward and Mr Matthew Mullins.
The police searched the appellant and took from him a mobile telephone in a black leather pouch. As the leather pouch was unzipped, a small press‑seal bag containing white powder fell from it. Subsequent chemical analysis revealed that the powder was methylamphetamine. It weighed 2.08 grams and had a purity of approximately 10 per cent. This led to the bringing of the charge the subject of count 3.
The police found another 9 small bags in the laundry or bathroom area of the property. These were secreted behind a painting. They contained a white powder. Subsequent chemical analysis revealed that the powder was methylamphetamine. It weighed 8.31 grams and had an average purity of approximately 11 per cent. This gave rise to count 4 on the indictment.
In the course of searching a mezzanine area of the property, the police found a sunglasses case concealed under a sofa bed. The case contained a plastic bag with a white crystal substance. Subsequent analysis revealed this to be methylamphetamine. It weighed 2.53 grams and had a purity of 76 per cent. This gave rise to the charge the subject of count 5 on the indictment.
The police also located a latex glove containing approximately 20 small press‑seal plastic bags. These were on a workbench in the workshop. A set of electronic scales was found in the kitchen drawer, but an analysis of these revealed no illicit substances.
The police also searched the appellant's home in Broome. They found $16,000 in cash in a safe in the appellant's bedroom.
The appellant gave evidence at the trial. He admitted possessing the methylamphetamine the subject of count 3 but denied that he had intended to sell or supply it, saying it was for his personal use. He denied any knowledge of the drugs the subject of counts 4 and 5. He said that the money found at his home was money that he had been earning through his business over about four years. He also said that the gloves, bags and scales found at the workshop belonged to Mr Eylward, who was one of his employees.
The appellant admitted that he used methylamphetamine. He said that this was supplied to him by Mr Eylward. He also admitted having supplied one person with 2 grams of methylamphetamine on 1 July 2004 (it was this that had given rise to counts 1 and 2 on the indictment, to which he had pleaded guilty), but he denied selling the drugs for profit. He said that he had started using amphetamines after he had been diagnosed with chronic fatigue due to sleep apnoea in early 2004, for which he had been prescribed ephedrine by his doctor.
Mr Eylward was called as a witness by the defence. At first, he declined to answer questions about the drugs found at the workshop upon the basis that his answers would incriminate or tend to incriminate him. Defence counsel then invited the trial Judge to require him to answer the questions pursuant to s 11 of the Evidence Act 1906 (WA). So far as it is relevant, that section reads as follows:
"11. Court may compel answer to incriminating question
(1)Whenever in any proceeding any person called as a witness … declines to answer any question … on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question … tell such person that, if he answers such question … and other questions … that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned.
(2)Thereupon such person shall no longer be entitled to refuse to answer any question … on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the judge, the judge shall give such person a certificate to the effect that he was called as a witness … in the said proceeding and that his evidence was required for the ends of justice, and was given to his satisfaction.
(2a)Where in a proceeding a person is given a certificate under subsection (2) in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question … is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceedings."
The trial Judge acceded to defence counsel's invitation. He told Mr Eylward that he was required to answer the questions put to him and that if he answered them in a satisfactory manner he would be granted a certificate under s 11 "which will protect you from prosecution upon what you say". Mr Eylward then answered the questions put to him. The effect of his evidence was that he admitted that he was a drug dealer and said that the drugs the subject of counts 4 and 5 belonged to him. He also acknowledged that the latex glove and press‑seal bags found in the workshop belonged to him. He said that he had stored the drugs the subject of counts 4 and 5 behind the painting for the purpose of "general sale". He said that he had not told the appellant that they were there and that the appellant had not been aware that they were there. He said that the methylamphetamine found in the sunglasses case was for his personal use. He said that he had intended to "snort" it and that, although he did not know its exact purity, he knew that it was "pretty strong".
Mr Eylward was asked why he had kept his drugs at the appellant's workshop. He said that this was because his own premises had been raided by the police some six weeks earlier. He acknowledged in the course of cross‑examination that, during the search of the workshop, he had been asked by police if he knew to whom the drugs the subject of counts 4 and 5 belonged and that he had responded, "No comment". He said that this was because he was scared of going to gaol.
At the conclusion of Mr Eylward's evidence, defence counsel asked the trial Judge to decide whether or not a certificate should be granted. The trial Judge responded by saying, in the presence of the jury, that it was unnecessary for him to deal with that issue "right now" and that it was not for him to express any view about it at that stage.

The prosecutor's closing address

During the course of his closing address, the prosecutor attacked the credibility of Mr Eylward. In the course of doing so, he said that the certificate which the Judge had been asked to provide under s 11 of the Evidence Act "precludes him [Mr Eylward] from prosecution". He went on to say:
"What it really means is that anything he said in evidence today can't be used against him in a prosecution. So nothing is going to happen to him, and of course the hope is that nothing is going to happen to Mr Trudgian. This is nothing more, what you heard today, of [sic] a concoction between two men, one saying, 'It was my drugs,' knowing he can't be prosecuted for it, in an effort to try and get his mate off."
The prosecutor finished his closing address by saying:
"The state asks you not to be fooled by the evidence of Mr Eylward. He was brought along in this trial to really just throw a cloud over the issue, to relieve himself from any prosecution that may occur and to get his friend off at the same time."
Earlier in the course of his closing address the prosecutor had attacked Mr Eylward's evidence that the drugs found in the sunglasses case were for his personal use. He said, of this evidence:
"Well, members of the jury, you don't leave your commonsense outside the jury room when you come and sit on a jury. Sniffing 76 per cent crystalline methylamphetamines? You have got to be joking. It’s a matter for you."
He went on to say:
"Another thing you might think was very interesting about the defendant's evidence; the accused's evidence, was this business about the ephedrine. This all started because of sleep apnoea, and he was prescribed ephedrine for sleep apnoea. Sleep apnoea is when you're awake all night. Do you need ephedrine when you stay awake all night? One would think you would take sleeping tablets. It’s a matter for you. You may have some experience in these matters, but can you imagine taking methylamphetamines when you have got sleep apnoea? It's ridiculous. Sleep apnoea means you can't sleep. Why then would you take speed?"

The trial Judge's directions to the jury

In the course of directing the jury, the trial Judge spent some time on the concept of possession. After giving some examples of what might constitute physical possession, he said:
"To be in possession you don't have to have the drug on your person physically. All that needs to be proven is that you know where it is and you can and you intend to access it when you feel like it … "
Then, after telling the jury that knowledge is a requirement of possession and that the appellant denied any knowledge of the drugs the subject of counts 4 and 5, he went on to say:
"He says he did not know that they were there and he has called evidence from a man who has said that those drugs were his. So it is a question of fact for you to determine and the question is: are you satisfied beyond reasonable doubt the accused did know those drugs were there behind the picture and in the glasses case on the mezzanine.
If you are convinced or if you are satisfied beyond reasonable doubt he did know they were there, then it is likely you would ‑ and given that they were in his place, on the evidence it is likely that you would find that he was in possession of them given there is no dispute that they were drugs, and then if you found he was in possession of them, because of the quantity of each being well over two grams in each case and the lack of suggestion for personal use or anything like that, then you would find, I would think, that there was intent to sell or supply and you would be likely to find the accused guilty as charged in relation to counts 4 and 5.
So really in the state of the law your verdict in relation to counts 4 and 5 depends upon how you decide this issue of possession and perhaps more clearly depends upon whether you find beyond reasonable doubt the accused was in possession in relation to four and five which boils down further to whether you find beyond reasonable doubt he knew the drugs were there where they were found."
The trial Judge also dealt with the issue of good character. The appellant had given evidence of the fact that he had no criminal record of any significance. Evidence was also led from a witness, Ms Anne Brown, who attested to the appellant's good character. She lived next door to his workshop and had known him for just over four years. She said that he had been helpful to her and that he was "very honest and upfront with things". The trial Judge said, in this last respect:
"The accused person has adduced evidence of good character from his neighbour. You will remember the lady who gave evidence. Evidence of good character is often called in criminal trials and it is evidence which is important for you to consider … [I]t doesn't mean that because of good character, a person is incapable of breaking the law. There is a first time for everybody. Every person who breaks the law for a first time presumably prior to then had good character, but it is evidence for you to bear in mind."
He said nothing concerning the application for a certificate under s 11 of the Evidence Act.
Once the trial Judge had completed his summing up, defence counsel made a half‑hearted application for a redirection in two respects. The first related to what had been said by the trial Judge concerning the element of possession. Defence counsel suggested that the trial Judge might wish to tell the jury that knowledge was a necessary but not sufficient basis for a finding of possession. The second related to the certificate. Defence counsel pointed out that a witness who has been given a s 11 certificate can still be prosecuted for perjury if shown to have given his evidence dishonestly. The trial Judge, having heard from the prosecutor, declined to give either redirection.

The grounds of appeal

There are five grounds of appeal. Ground 1 contends that the trial Judge misdirected the jury as regards the element of possession. Ground 2 contends that he erred in failing to direct the jury as regards the effect of the granting of a certificate under s 11 of the Evidence Act. Ground 3 contends that he followed the incorrect procedure in relation to the granting of a certificate under s 11 and that the certificate should have been granted or refused in the presence of the jury. The appellant contends that this error gave rise to a miscarriage of justice. Ground 4 contends that the trial miscarried when the prosecutor advanced submissions in the course of his closing address to the jury that were not supported by evidence. This refers to the prosecutor's comments that crystalline methylamphetamine with a purity of 76 per cent could not have been intended to be inhaled by Mr Eylward and that the appellant could not have been prescribed ephedrine for sleep apnoea. The final ground (it is numbered 6 because leave to appeal was refused in respect of ground 5) is to the effect that the trial Judge misdirected the jury as regards the use to which the evidence of the appellant's good character might be put.

Grounds 2 and 3 - the section 11 certificate

I will deal first with grounds 2 and 3.
The background to, the rationale for and the requirements upon a trial Judge dealing with a s 11 certificate are set out in the judgments of Brinsden J in Attorney‑General for Western Australia v Cockram (1990) 2 WAR 477 and Malcolm CJ in Markovina v The Queen (No 2) (1997) 19 WAR 119 at 122 ‑ 127. It is unnecessary to repeat what was there said. However, it is worth mentioning that, at the time of the decision in Cockram, s 13 of the Evidence Act provided that, if a witness received a certificate under s 11 or s 12, "he shall be freed from all criminal prosecutions and penal actions, and from all penalties, forfeitures, and punishments to which he was liable for anything done before that time in respect of the matters touching which he is so examined". Similar words can still be found in s 13. However, in 1990 that section was amended by the Evidence Amendment Act 1990 (WA) (Act 47 of 1990) so as to give it operation only in the case of a s 12 certificate (given in restricted categories of cases, none of which are presently relevant). Section 11 was also amended so as to introduce subs (2a), quoted above. The only protection now afforded to the recipient of a s 11 certificate is accordingly that the witness' answers to the questions are not admissible in evidence in criminal proceedings against that person other than on a prosecution for perjury committed in the proceeding in which the evidence was given.
Section 11 certificates are ordinarily given in the presence of the jury. In Markovina (at 126), Malcolm CJ said that this is because the granting of a certificate puts the witness in a very special category. This was said by him in the context of the grant of a certificate to a prosecution witness. He suggested that this was "a circumstance which enables the defendant to say that the witness is unreliable".
In Hugo (2000) 113 A Crim R 484, the court was invited to reconsider whether the normal practice of giving a s 11 certificate in the presence of the jury was desirable. It declined to do so upon the basis that that was not an appropriate case in which to question the established practice (at 526). However, Sheller AJ (with whom Pidgeon and Anderson JJ were in agreement) said (at 527):
"Given that certificates of immunity should generally be granted in the presence of the jury, the trial judge should take care, either then or in his directions to the jury or both, to explain to the jury the limited nature of the satisfaction which is preconditional to the granting of such a certificate, namely that it is not a finding by the trial judge of credit or truthfulness on the part of the witness, and that that question is for the jury to determine as they do with any witness."
He went on to say (at 527 ‑ 528):
"As I have said, I think that ordinarily when a trial judge compels a witness who has claimed privilege to give evidence pursuant to s 11, an explanation should be given to the jury as to why such an order is made, why a certificate is granted if it is granted and the consequences of this in terms of the unreliability of the evidence and the immateriality of the fact that the trial judge is satisfied in accordance with s 11."

If, in the course of explaining the effect of a s 11 certificate, the trial Judge leaves a witness with the impression that he or she is immune from prosecution for perjury, this may affect the force of the oath or affirmation the witness has taken: Markovina, above, at 127 per Malcolm CJ. Moreover, it would be incorrect for counsel to assert that the effect of the grant of a certificate was that the witness could lie with impunity and it would be appropriate, in such a case, for the trial Judge to direct the jury accordingly: Hugo at 527 per Sheller AJ. As I have said, the recipient of a s 11 certificate can be prosecuted for perjury in respect of the evidence given. Moreover, that person can also be prosecuted in respect of an offence or offences admitted in the course of the evidence, notwithstanding the grant of a s 11 certificate. The only effect of the certificate is, as I have said, that the evidence given under its protection will not be admissible in those proceedings or in any criminal proceedings against the witness other than for perjury.
In the present case, the only explanation of the effect of a s 11 certificate that was given in the presence of the jury was that which was given to Mr Eylward when he was required to answer the questions put to him. As will be apparent, he was told that if he answered the questions in a satisfactory manner the trial Judge would grant him a certificate which would protect him "from prosecution upon what … [he said]". Moreover, as I have explained, the certificate itself was not given in the presence of the jury. As to this, I would be loathe to hold that such a certificate must always be given in the presence of the jury. Much may depend upon the individual circumstances of the case. In this case, the jury knew only that, if Mr Eylward gave his evidence "in a satisfactory manner", he would be given a certificate which protected him from prosecution upon what he said. The grant of a certificate in their presence would have told them no more than that the trial Judge regarded the answers as having been given in a satisfactory manner, in which event the trial Judge would have been obliged to tell the jury that this had no bearing on their assessment of the credit or truthfulness of the witness. The failure to adopt that course, and the fact that the trial Judge said, instead, that there was no need to deal with that issue "right now", had no other consequence, in this case, than that the jury did not know whether or not the witness had, in the Judge's opinion, answered questions in a satisfactory manner, whatever that may have meant. I am not persuaded that this disadvantaged the appellant in any way. Rather, it seems to me to have been entirely neutral so far as the jury's assessment of Mr Eylward's credibility was concerned, the issue having had no other significance. Ground 3 has consequently not been made out.
As to ground 2, the trial Judge's failure to explain to the jury what was the effect of the granting of a s 11 certificate seems to me to fall within a different category, at least in circumstances in which the prosecutor had told the jury, without contradiction, that anything said by Mr Eylward in the course of his evidence could not "be used against him in a prosecution", that "nothing is going to happen to him" and that he "was brought along in this trial to really just throw a cloud over the issue, to relieve himself from any prosecution that may occur and to get his friend off at the same time". In my respectful opinion, the trial Judge's failure to correct what had been said by the prosecutor (which suggested, also, that a certificate had been, or would inevitably be, given) would have left the jury under the impression that Mr Eylward could lie with impunity, if he chose to do so, when in reality he was able to be prosecuted for perjury if it could be proved that he had in fact lied and, indeed, he could be prosecuted for his possession of the drugs, if that could be proved without relying upon the evidence given by him in these proceedings. It seems to me to be undeniable that this misapprehension may have had a significant effect on the jury's assessment of the reliability of Mr Eylward's evidence.
While there was, as counsel for the respondent pointed out, other material which detracted from Mr Eylward's credit, it is impossible to know what would have been the jury's assessment of the credibility of his evidence if they had been properly directed as regards the effect of the grant of a certificate. This conclusion leads inevitably to the result that ground 2 should be upheld so far as the convictions on counts 4 and 5 are concerned and that those convictions should be quashed. Because Mr Eylward's evidence had no bearing on count 3, there having been no dispute that the drugs the subject of that count belonged to the appellant and had been found in his possession, success on this ground has no bearing on the appellant's conviction on that count.

Ground 1 - the element of possession

There is no dispute in this appeal as regards the proposition that in a case of this kind, where the drugs were not in the physical possession of the accused person, it is necessary for the prosecution to prove that he had control or dominion over them, or that he had the order of disposition of them: see s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and the definition of "to possess", and derivatives of that verb, in s 3(1) of the Act. In Lai v The Queen [1990] WAR 151 at 155 Wallace and Nicholson JJ said:
"It is now well settled that … possession [for the purposes of s 6(1)(a)] requires either actual physical custody or alternatively, de facto custody in the sense that the accused person may be said to exercise control and dominion over the article in question. That, of course, may follow if it could be established beyond reasonable doubt that the accused person knew of the existence of the package in question … in his restaurant because it was his restaurant. However, as was decided in R v Solway [1984] 2 Qd R 75, before a person can be said to be in possession of a prohibited plant or a dangerous drug it may be necessary to show that he not only knew of its existence but laid some claim to it or exercised some control over it … "
This passage was cited with approval by Malcolm CJ, with whom Wallwork and Anderson JJ were in agreement, in Atholwood (2000) 110 A Crim R 417 WASCA 76 at [44]. See also Davis v The Queen (1990) 5 WAR 269 at 273; Davies v The State of Western Australia [2006] WASCA 151 at [40] per Pullin JA with whom Martin CJ agreed; and Jones v The State of Western Australia [2006] WASCA 192 at [19], per Wheeler JA.
Consequently, it would ordinarily be a mistake for a trial Judge to direct a jury that it is enough, in order to prove possession, that the accused knew that drugs were in the place or places in which they were found. However, that is not what was done by the trial Judge in this case. As will be apparent, he told the jury that if they were satisfied beyond reasonable doubt that the appellant knew that the drugs were where they were found, and given that they were in the workshop rented by him, it was likely that they would find that he was in possession of them. While he did not, as he should have done, explain what constitutes possession for the purposes of s 6(1)(a) of the Misuse of Drugs Act, it is at least debatable whether any miscarriage resulted from that omission in the circumstances of this case. However, because ground 1 necessarily bears only upon the convictions on counts 4 and 5, it is unnecessary for me to reach any conclusion in that respect, given that I have already decided that those convictions should be set aside.

Ground 4 - submissions that were unsupported by evidence

As to ground 4, it seems to me, first, that it was plainly inappropriate for the prosecutor to have suggested that the crystalline methylamphetamine the subject of count 5 could not have been for Mr Eylward's personal use because it could not be snorted in that form and at that purity. There was no evidence to support either proposition. However, because those comments related only to Mr Eylward's credibility, and therefore only to counts 4 and 5, it is unnecessary to say anything more in that regard.
The evidence concerning the prescription of ephedrine as a consequence of sleep apnoea was, as I have said, given by the appellant. Once again, there was no evidence to support the prosecutor's assertions that sleep apnoea results in a person being "awake all night" or that ephedrine would not be prescribed in the case of such a condition. The appellant's evidence had not been that he had used ephedrine, and later amphetamines, in order to make himself sleep. Rather, he said that he had been diagnosed with chronic fatigue because of sleep apnoea and that a bad night's sleep would make him feel drowsy the next day, causing him to take ephedrine to "bring … [him] to a normal level". He said that the ephedrine gave him a "lift" and that he subsequently discovered that amphetamines did the same thing for him. The prosecutor's assertions were consequently entirely inappropriate and should not have been made. However, it seems to me that they did not result in any substantial miscarriage.
While neither the trial Judge nor defence counsel corrected the prosecutor's inappropriate assertions, as in my respectful opinion each should have done, there is nothing to suggest that the jury would, by then, have forgotten what had been said by the appellant. His evidence was given on the same day as the prosecutor's closing address. He had not been cross‑examined on this aspect of it. Moreover, the evidence was peripheral. It had been given only to explain how it was that the appellant had begun using amphetamines. This was a matter of little significance in the greater scheme of things. That may explain why, although the point was pursued on behalf of the appellant in written submissions lodged in advance of the appeal, no mention was made of it in oral submissions. Of course, if the jury believed that the evidence had been dishonestly given (and the trial Judge had told the jury, in the course of his summing up, that it did not matter what either counsel thought about any witness and that it was only their own assessment of the witness that mattered), this might reflect adversely upon their view of the appellant's credibility generally. However, in the circumstances it seems to me to be most unlikely that this evidence, even if it was regarded by the jury as having been dishonestly given, could have been thought by them to be significant enough to tip the scales against him. I would consequently not uphold ground 4.

Ground 6 - good character

As to ground 6, in Melbourne v The Queen (1999) 198 CLR 1 the High Court held that a Judge is not obliged to direct a jury about an accused's good character. Rather, he or she has a discretion whether or not to do so after evaluating the probative significance of the evidence in relation to the accused's propensity to commit the crime charged and the accused's credibility: Oui v The Queen [2006] WASCA 76 at [11] per McLure JA and Truong v The State of Western Australia [2006] WASCA 1 at [43] per Simmonds AJA. As will be apparent, the trial Judge did address this issue in his summing up. He referred to the evidence of Ms Brown and said that evidence of good character was "important for … [the jury] to consider". However, counsel for the appellant contends that this did not go far enough. He pointed out that good character evidence is led for two purposes, the first being to persuade the jury that the accused was unlikely to have committed the crime in question and the second being in order to support the accused's credibility generally.

In this case, as I have mentioned, the appellant had pleaded guilty to counts 1 and 2, being charges of sale or supply of methylamphetamine. In those circumstances the evidence of his good character had no probative significance in relation to his propensity to commit the crime charged in each of counts 3 (in respect of which the appellant had admitted possession), 4 and 5. The fact that he had previously sold methylamphetamine demonstrated conclusively that he did have a propensity to commit crimes of that kind. While the evidence had a bearing on the appellant's credibility, in my opinion what was said by the trial Judge to the effect that the evidence of good character was "important" for the jury to consider was sufficient in the circumstances.
Ground 6 has not been made out.

Conclusion

It was for the reasons that I have given in respect of ground 2 that I joined in the decision of the Court to allow the appeal to the extent of quashing the convictions in respect of counts 4 and 5. For the reasons given when dealing with grounds 4 and 6, I would dismiss the appeal so far as it addresses the conviction on count 3. We have earlier ordered a retrial in respect of counts 4 and 5.
ROBERTS-SMITH JA: I agree with the President.
McLURE JA: I agree with Steytler P.