Washer & Anor v The State of WA

[2007] HCATrans 186

[2007] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P6 of 2007

B e t w e e n -

RAYMOND JOHN WASHER

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 27 APRIL 2007, AT 10.03 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR C.B. BOYCE for the appellant.  (instructed by Office of David Grace QC)

MR S. VANDONGEN:   If the Court pleases, together with my learned friend, MR S.F. RAFFERTY, I represent the respondent.  (instructed by Director of Public Prosecutions (WA))

GLEESON CJ:   Yes, Mr Grace.

MR GRACE:   Your Honours, the issues raised by this appeal concern whether an accused person is permitted to adduce evidence of his acquittal of a crime in circumstances where evidence relied upon at an earlier trial was adduced by the prosecution at a subsequent trial as propensity evidence in support of guilt and if such evidence is admitted or adduced, how must a jury be directed to use that evidence?  I wanted first ‑ ‑ ‑

KIRBY J:   Does the second question strictly arise given that the evidence was not adduced?  I mean, in effect that is asking us to give an advisory opinion for the conduct of any future trial, is it not?

MR GRACE:   In effect, it is submitting that this Court ought to endorse the approach adopted by this Court in Storey.

KIRBY J:   I realise that, but the strict legal question that arises is did the Court of Appeal err in failing to find error on the part of the trial judge in refusing to admit evidence of the acquittal in the first trial?

MR GRACE:   Yes, that is strictly correct, your Honour.  I wanted first, your Honours, to outline the factual basis that underpins the legal argument, but prior to doing that, could I seek leave, with the consent of the respondent, to formally amend the grounds of appeal which misstate the exact nature of the charge, the subject of the first trial?  Could I refer your Honours to the appellant’s appeal book volume 2 at page 692.  Could I indicate that this correction is referred to in the written submissions.  At page 692 you will see there grounds 2.1 and 2.2.  Ground 2.1 is sought to be amended, as I said, by consent, in the third line after the word “conspiring” by deleting the words “to possess drugs with the intent” and replacing those words with the following:  “with Whitsed and Bowles to sell or supply” and inserting the words “a prohibited drug, namely methylamphetamine”.

GLEESON CJ:   Yes, you have that leave.

MR GRACE:   The same amendment in ground 2.2, third line and fourth line is sought.

GLEESON CJ:   Yes, you have leave.  Could you file an amended notice of appeal?

MR GRACE:   Yes, we will do that, your Honour.  Your Honours, I wanted to take you to the evidence that was common to both trials very briefly just to identify where that evidence is.  In a nutshell, that evidence comprised the following.  Conversations between Washer and Bowles on the one hand, and Washer and Whitsed on the other and the product of searches of Washer’s residence to prove that between – the collective force of that evidence was to prove that between 13 April 2000 and 21 March 2001, Washer, Whitsed and Bowles conspired to sell or supply drugs.

If I could take you to appeal book volume 1, at page 423 - I will not be reading from these transcripts, but I just wanted to identify them for your Honours.  At 423 to 426, at 428 are the relevant passages; 3 July 2000 at pages 439 to 443 and 445 to 446; 7 July at pages 447 to 449; 11 July at 457 to 464.  The evidence concerning the searches is referred to in the judgment below at paragraph 64 at volume 2 of the appeal book at page 662.  I next want to take your Honours to the prosecution reliance on ‑ ‑ ‑

KIRBY J:   You have given us the reference.  What do you say is the effect of those references?

MR GRACE:   Well, that is the sum total of what is referred to in the judgment below of the drug‑dealing evidence, that is the evidence that was common to both trials.

KIRBY J:   Do you accept that that is the sum total?

MR GRACE:   Yes. 

KIRBY J:   Yes.

MR GRACE:   Now, the prosecution reliance on the drug‑dealing evidence at the first trial is made clear, if I could take your Honours to the passages, in volume 1 of the respondent’s additional materials book.  Could I take you to firstly page 5 of that book, and your Honours ought to see a page that has a heading on it, “PARTICULARS OF OVERT ACTS”. 

GLEESON CJ:   Yes.

MR GRACE:   Could I just identify to your Honours which of those overt acts were relied upon in the second trial.  In respect of item 2, the conversations of 2 June and 7 June.  In relation to item 4, the conversations of 30 June and 11 July.  In relation to item 5, that discussion.  In relation to item 6, that collection of money.  In relation to item 7, the keeping of the ledger of stock and debtors and that was evidenced by the account book that was produced at both trials.  In relation to item 8, the possession of those various items which were revealed upon the search.  Could I next, in the same volume, take ‑ ‑ ‑

KIRBY J:   Just a moment. Were particulars of overt acts given that demonstrate that overlap?

MR GRACE:   In the second trial?

KIRBY J:   Yes.

MR GRACE:   No, not is my understanding.

KIRBY J:   Anyway, you say that by reference to the transcript you could demonstrate that that is the overlap.

MR GRACE:   Yes.  Indeed, the court below accepted that.  Could I take your Honours next to the State opening address to the jury in the first trial.  In that opening there are various references – could I take you to page 92 at point 5 on the page:

Now, what are the circumstances here?  Mr Washer, Mr Whitsed and Mr Bowles are all men who the prosecution say were known to each other –

et cetera.  What is given then is a narrative of what the men did.

KIRBY J:   This is in the first trial?

MR GRACE:   This is in the first trial.

KIRBY J:   All of the materials in the additional respondent’s material are of the first trial?

MR GRACE:   Yes.

KIRBY J:   I see Mr Vandongen is nodding.

MR GRACE:   Yes, that is true, both volume 1 and volume 2.  Over on page 94 you will see reference at the top of the page to conversations between Whitsed and Tippett.  I am not going to read these passages to you, just to paraphrase them.  There is reference to the conversations and then you will see in the fourth paragraph on page 94 reference to the calculations.  I just want to read that passage to you:

The calculations:  you will hear the conversations about who got what; how much he had got.  You will hear a conversation about the loss of customers, and talking about the business and who did what.  Significantly, members of the jury, you will hear, we will suggest, talking about quantities and the cost per ounce, and various individuals:  who owes; people have paid so much.  So you will actually hear the individuals discussing these conversations; discussing these matters and these conversations took place between 30 June and 11 July 2000 and they were variously between Mr Washer and Mr Whitsed, and Mr Washer and Mr Bowles; not the three of them together at any point that has been recorded.

GLEESON CJ:   Mr Grace, I may have misunderstood something I read in the written submissions from one of the parties, but I got the idea from somewhere that one of the issues at the first trial was whether those conversations were about drugs or whether they were about something else.  How was that issue raised?  Did Mr Washer give evidence at the first trial?

MR GRACE:   No, Mr Washer called evidence from a Mr Levissianos.  His evidence appears at page 468 of that same volume you are looking at, your Honour.

GLEESON CJ:   What was the brief effect of that evidence?

MR GRACE:   He was a gold prospector.  He said that he dealt in gold and sold gold to Washer.

GLEESON CJ:   Was there any similar issue raised at the second trial?

MR GRACE:   Yes, in the second trial there was cross‑examination of police directed to the product of their searches, which included reference to what was on the conversations that had been recorded and also in relation to items that had been seized.  The defence raised before the jury was that what Washer was talking about was not drugs; it was something else.

GLEESON CJ:   So in the first trial there was some evidence called on behalf of the defence that tendered positively to support a suggestion that what they were talking about was gold.

MR GRACE:   Yes.

GLEESON CJ:   At the second trial there was, what, cross‑examination of the police to suggest not that they were talking about gold but that they might have been talking about something other than drugs.

MR GRACE:   Well, wood, and there was the fact that Washer had a sawmilling business and a furniture construction business.  So the cross‑examination was to the effect, to the police, that what they may have been talking about was that.  Discussions about ‑ ‑ ‑

GLEESON CJ:   Or what, timber?

MR GRACE:   ‑ ‑ ‑ dealings in wood or other items, not drugs.

GLEESON CJ:   But at the second trial there was no ‑ ‑ ‑

MR GRACE:   There was no positive evidence called.

GLEESON CJ:   ‑ ‑ ‑ positive evidence to support that.

MR GRACE:   No.

GLEESON CJ:   Thank you.

MR GRACE:   There was also the record of interview of Washer where he denied any involvement in drugs and denied that the conversations were about drugs.

GLEESON CJ:   What did he say they were about?

MR GRACE:   He said they were about business.  He was a businessman and he had various businesses, but he denied anything to do with drugs or that the conversations were about drugs.

KIRBY J:   One of the passages in the written submissions talk about mallee roots and things of that kind.  Was that a proposition?

MR GRACE:   That was all the issue concerning the sawmilling or wood business.  That was all to do with that issue.

GLEESON CJ:   That would be a bit difficult to relate to the scales, I suppose.

MR GRACE:   Yes.  The evidence in relation to the scales was this, that there was a covert search in July and the result of the covert search was that as a result of a swab of the scales and a coffee grinder, there were traces of methylamphetamine discovered.  On 21 September there was a subsequent search and the same items were again swabbed and revealed the same result.  One of the issues was the items may have remained unaltered between the two dates, but putting that to one side, the defence raised in relation to that was that the jury could not exclude beyond reasonable doubt that the scales and the grinder belonged to someone else, because the premises where they were found were frequented not only by Washer but by others or habited by not only Washer but others. 

Could I take your Honours to page 95 in that volume 1?  There there are references to the searches and I will not read that.  Page 96 there is reference to the scales and the grinder that your Honour the Chief Justice just asked me a question about and that is referred to on that page.  At page 98 at point 5 on the page there is reference to the ledger.  This was a book:

kept at Mr Washer’s premises –

which said it gave –

details of sales or supplies to friends or associates of drugs and the moneys owed as a result of that.

That was a book that was produced on both trials.

At page 100, and this is significant, your Honours, could I take you to the fourth paragraph on that page:

So, members of the jury, we would suggest that that is a very significant indication that what was going on here was, in effect, the business of supplying illicit drugs; in, to be specific, methylamphetamine; that that is what they were engaged in doing, and it’s more significant and it’s a matter for you to listen and compare, but on a couple of occasions in relation to the conversations from the listening device placed in Mr Washer’s house at Mars Street, it does appear very clearly that they are discussing particular figures and numbers and there are two places in the ledger where one can see precisely the same number and the mathematics that’s going into calculating that number is being spoken out loud on the tape or on the recording.

At page 102, again the fourth paragraph, talking about the record of interview, “He”, being Washer:

denied that he was talking about illicit drugs, he denied that he was talking about methylamphetamine, he denied having anything to do with the sale methylamphetamine but it might be of some significance that he again confirmed that the writing in the book was his and when asked, basically did not give any indication or explanation as to what these numbers signified or would signify.  When he was asked what he was talking about he was played parts of the excerpts of the recording device material and was asked what he was talking about, at one stage he suggested he was talking about sausages or beach sand, and he was asked about the scales that had been found in his place that had methylamphetamine on and at one stage he said it must have been a drug dealer that had sneaked into kitchen and had used his scales.

KIRBY J:   Sneaking into the kitchen and using his scales seems a little bit thick.  I am beginning to see a rock of the proviso arising in the distance.

MR GRACE:   I will seek to address your Honours upon that at a later stage, but could I say this.  During the course of that interview, which was videorecorded, there was a lot of sarcasm not all going one way between the police and Washer.  That is revealed on that tape and it was the subject of discussion and submission, so the jury were given full submissions in relation to that particular issue.

Could I take you next to the Respondent’s Additional Materials book at volume 2.  Firstly, could I take your Honours to page 534.  This is in the course of the learned trial judge’s summing up in the first trial.  You will see in the fourth paragraph on page 534:

The prosecution seeks to prove what the accused did by inviting you to draw further inferences in part from what they said on the telephone and elsewhere –

et cetera.  At page 539, the penultimate paragraph, the fifth-last line:

You are being asked to draw an inference that they are talking about selling and supplying methylamphetamine in recorded conversations.  You are being asked to draw an inference that they are talking about money obtained from or paid for methylamphetamine on recorded conversations.

At 542, second-last paragraph, a reference to Mr Levissianos, the goldminer.  At page 544 the learned trial judge said in the fourth paragraph on that page:

Can I just say this, however:  the heart of the prosecution case obviously, it seems to me, is the telephone intercept and listening device evidence.  You have been taken through parts of that; certainly taken through the parts the prosecution especially points to, namely the listening device conversations from 30 June and following and the case hinges on what you make of that evidence, assisted by what you make of the other evidence.

At 548, referring to the arguments of State prosecuting counsel, second paragraph – could I perhaps start at the top of the page and paraphrase:

There was no contest that the voices are the voices . . . Mr Washer and Mr Bowles, although perhaps less clear with respect to Mr Whitsed . . . 

Counsel put to you that the phone records only show connection between the accused persons, that is the phone records.  You are to look at the evidence, according to counsel, that is put before you and not worry about what you do not have.  Counsel said that the centre of the case was the listening device conversations on 30 June and 3, 7 and 11 July and that the essentials of what was said can be heard, and counsel invited you to listen to those things.

Counsel said you should conclude that what is said can only be references to drugs.  In other words, counsel’s view was that the inference that it was references to drugs is the only reasonable inference.  Counsel reminded you of things said by Mr Washer and Mr Whitsed on the listening device recording on 30 June.  Counsel put to you that the conversation is about drugs and money – amounts of drugs and money.

Then in the next paragraph there are references to the 3 July, 7 July and 11 July conversations.  Could I just in answer to your Honour Justice Kirby refer to the last few lines of that fourth paragraph on page548 where his Honour says:

where at the end of the conversation one of the persons speaks about the need to stop by the butcher’s and then Mr Washer and Mr Whitsed were stopped by police a very short time later and one of them had a bag of mince.

So that was the reference to the sausages in the interview.  At 552 the defence of Washer is touched upon and you will see in the third paragraph that:

Counsel alleged that police have deliberately not investigated matters . . . Counsel suggested that police jumped to conclusions in this matter; they didn’t check . . . the coffee grinder or the scales for fingerprints or for DNA.  Counsel suggested that a man named Di Lena could have owned the grinder or scales.

Then in the next paragraph there is reference to the financial records and it could not be concluded beyond reasonable doubt that they are reference to drugs.  At the bottom of the page:

He submitted to you that on analysis you shouldn’t be convinced beyond reasonable doubt that the conversations recorded by police phone or listening device are about drugs.  He put to you that the police failed to seek full phone records at a time when they would have been available.  He submitted to you that there was no physical connection between Mr Washer and the grinder and scales, other than the fact that they were found in two of his houses.

So that was how that trial was played out.

GLEESON CJ:   You may wish to deal with this now or a little later, but what is of interest to me at the moment is the practical operation of the conclusions for which you contend.  If I could engage in a bit of reverse engineering, let us assume that you have persuaded us of your ultimate proposition, which is that at the second trial he should be given the full benefit of the acquittal at the first trial as that concept is explained in Storey.

MR GRACE:   Yes.

GLEESON CJ:   You have spent the last 10 or 15 minutes explaining to us as we sit here with the benefit of transcript and records of what went on at the first trial the way this was played out at the first trial.  The jury at the second trial presumably would not have the benefit of any of the material that we have spent the last 10 or 15 minutes looking at.

MR GRACE:   Correct, your Honour.

GLEESON CJ:   What would the trial judge actually tell the jury about what went on at the first trial, or what would be proved about what went on at the first trial, in order to enable the jury at the second trial to understand the significance of this evidence and the way in which they were to give your client the full benefit of his acquittal?

MR GRACE:   We do attempt, your Honours will know, in our submissions to draft a suggested direction.

GLEESON CJ:   I am thinking about evidence first of all.  Would the jury simply be told that he was acquitted of a conspiracy with Bowles and Whitsed, full stop, or would they be told that this evidence was sought to be used at the first trial in support of the allegation that he was guilty of a conspiracy with Bowles and Whitsed, full stop, or would they be told that at the first trial there was evidence that these conversations were about a gold‑dealing business, a matter that did not emerge in evidence at the second trial?  In other words, how much information by way of evidence would the jury have been given if the primary judge had allowed the first question to which objection was taken?

MR GRACE:   The answer to that question has to be given in the context of the directions that were given in the second trial because in the second trial his Honour gave very careful directions in relation as to how the jury was to use the evidence given in both trials in relation to the issue of intent to sell or supply.

GLEESON CJ:   But in relation to your first proposition which was that the second trial there should have been allowed evidence that he was acquitted.  Would that be the sum total of the evidence that would get before the jury on that matter, the fact that he was acquitted, full stop?

MR GRACE:   No.

GLEESON CJ:   What else would get before them, by way of evidence.

MR GRACE:   By way of evidence? 

GLEESON CJ:   Would they be told about what went on at the first trial?

MR GRACE:   No, not necessarily, unless it was necessary in order to put in proper context, in fairness to the accused person ‑ ‑ ‑

GLEESON CJ:   That is what I am trying to understand.

MR GRACE:   Yes, yes.

GLEESON CJ:   What I am trying to understand is how, as a matter of practical forensic procedure, you would get into this question of the acquittal at the first trial at the second trial.  How much would the jury have to know?  How much would they be permitted to know?  Or would they have to know as much as you have told us in the last 10 or 15 minutes?

MR GRACE:   No, no, no, I am not suggesting that.  But it may well be that there ought to have been some latitude given in the cross‑examination of the relevant police officer which is set out in the judgment of the court below – and I can take your Honours to the exact page of the transcript – where the police officer is asked, and the question is cut off midstream, where the police officer is asked, in effect, “you charged Washer with Whitsed and Bowles, you relied upon in that prosecution before telephone conversations or intercepted or listening device conversations and the searches” ‑ ‑ ‑

GLEESON CJ:   I am trying to put myself in the position of a trial judge and if I had been in the position of a trial judge the first question I would have asked myself is, where is this heading?  If I allow this question, where do we go from there?

MR GRACE:   It is heading to support for the proposition and the common law that the accused man should have the full benefit of his acquittal; that the State is using the evidence that was common to both trials arguably to undermine the effect of that acquittal.

HAYNE J:   But it is that arguably that requires elucidation, because the bare fact that evidence is called at trial 1 coupled with acquittal at trial 1, does not conclude any question about admission of the same evidence at trial 2, does it?

MR GRACE:   We unsuccessfully argue that, but we said it did but failed.

HAYNE J:   That is water under the bridge.

MR GRACE:   That is water under the bridge, yes.

HAYNE J:   Yes.

MR GRACE:   But, yes, I take your Honour’s point.

HAYNE J:   But then, once we have evidence which was led at trial 1 admitted at trial 2, what is the connection that then is drawn as a matter of evidence or as a matter of judicial direction, founded one wonders on what, that gets you to the end point, you say, of do not impugn the acquittal?

MR GRACE:   As I said in answer to the Chief Justice, there perhaps needs to be some latitude allowed in the nature of the questions asked by defence counsel to elicit out the fact that this same evidence was relied upon at the first trial to prove exactly the same as what is being sought to be proved at the second trial, namely an intent to sell or supply drugs, and that the result of that trial was an acquittal.

KIRBY J:   Could you give us the overlap that existed?  It was an allegation of the same crime exactly?

MR GRACE:   I have outlined in the amendments that we have made that it was not exactly the same crime.

KIRBY J:   I am not talking about the participants in the crime.  I am talking about the nature of the offence, the offence presumably against the Code, is it?

MR GRACE:   No, it is an offence against the Misuse of Drugs Act (WA). The alleged intent to sell or supply on the part of Washer is the common feature in relation to both trials.

KIRBY J:   The drug is the same that is being alleged, is it not?

MR GRACE:   The drug is the same.

HAYNE J:   The drug type is the same.  It is not the same drugs.

MR GRACE:   No, same drugs.  I will take your Honours ‑ ‑ ‑

HAYNE J:   Same shipment.

MR GRACE:   No, not the same shipment, but they were in the business of dealing in methylamphetamines.

GLEESON CJ:   Same kind of drug.

MR GRACE:   Same kind of drug, yes.

HAYNE J:   Yes.

KIRBY J:   And the interval is a period that falls within the period of the first alleged offence of which you secured the acquittal.

MR GRACE:   Yes.  The second trial was in relation to approximately a two‑week period of a conspiracy which fell within the much wider dates of the first period of the first trial.

GLEESON CJ:   The second trial related to a drug shipment from Queensland.

MR GRACE:   Yes.

GLEESON CJ:   A substantial quantity that ended up being found by the police in some abandoned car near Coonamble, is it not?

MR GRACE:   Near Coonabarabran.

GLEESON CJ:   Near Coonabarabran.  That quantity of drugs had nothing to do with the first trial?

MR GRACE:   No, nothing, except that it was relied upon as going towards the proof of the intent to sell or supply.

GLEESON CJ:   The background to both trials was the allegation that your client was a drug dealer.

MR GRACE:   Yes.

GLEESON CJ:   But saying that your client is a drug dealer does not establish that he is guilty of either of the particular offences.

MR GRACE:   No, it does not.  However, I have taken you at some length to what was argued in the first trial in order to put in proper context that the issue was not whether there was an unlawful agreement in the first trial between Washer, Whitsed and Bowles.  That was not the issue that the trial was fought on.  The issue the trial was fought on was whether what they were talking about was drugs.

GLEESON CJ:   What prompted my question to you is that if you look at the decided cases like Storey and some of the others, what I might call the relationship between the first alleged offence and the second alleged offence is really fairly simple and fairly clear.

MR GRACE:   Yes.

GLEESON CJ:   At this stage I do not find the relationship between the first alleged offence and the second alleged offence in this case quite so simple.  As I understand it, a common feature of both cases is that the Crown set out to establish as evidence of the offences alleged that your client carried on a general business of drug dealing.

MR GRACE:   Yes, in order, in turn, to establish the element required in the second trial of intent to sell or supply.

GLEESON CJ:   How would a jury at the second trial know whether a jury at the first trial had concluded that your client was a drug dealer?

MR GRACE:   The jury at the first trial did not conclude that he was a drug dealer.

GLEESON CJ:   How do we know that?  They found him not guilty of a particular conspiracy with two other people.

MR GRACE:   Yes.

GLEESON CJ:   This gets back to the question of issue estoppel in criminal proceedings.

KIRBY J:   It may also get back to what Chief Justice Barwick said about the full force and effect of the jury’s acquittal because the jury does not give reasons and because one can only speculate as to what the reasons were, you have to, as it were, assign reasons that are of the most beneficial to the accused otherwise there is an impugning of the verdict, at least upon one view of what it meant, what it stands for.

MR GRACE:   Yes.  I may be best able to answer your Honour the Chief Justice’s question if I could take you to the way in which the second trial was run, the same exercise, because then it will become clear how this evidence was being used and then it will become clear as to how we submit this evidence could have been elicited and how the judge could have directed upon it.

GLEESON CJ:   Thank you.

KIRBY J:   I think it is a pity that in your written submissions, which are otherwise very helpful, you did not, as it were, establish with the references to the transcript that we can check what you say is the exact gamut of the overlap between the two trials.  We are now sitting here like schoolchildren taking notes about it, but that is the essence of the task.

MR GRACE:   Yes, we did at least in relation to the second trial refer to that, I must say, your Honour ‑ ‑ ‑

KIRBY J:   Are you going to take us to the second trial now?

MR GRACE:   Yes, if I may.  Can I take you to ‑ ‑ ‑

KIRBY J:   There was some particularisation in the second trial, was there not, that the reference to “and others” is said to be a reference in respect of the telephone conversations that were used in the first trial, the reference to “and others?”

MR GRACE:   Yes, but their names were given.  They were not anonymous, if that is what your Honour meant by the question.  Could I take you to the appellant’s additional materials book?  At page 5, line 33:

The state’s case is that Washer and Di Lena have an ongoing drug‑dealing business, sometimes together, sometimes with other people.

At page 8 ‑ ‑ ‑

KIRBY J:   Can I ask, do we have a transcript of why defence counsel at the trial asked the judge?  Is there a transcript of the explanation that was given of what the defence counsel were setting out to establish by proof of the acquittal?

MR GRACE:   Yes.  It is very brief ‑ ‑ ‑

KIRBY J:   You had better take us to that in due course, but anyway you ‑ ‑ ‑

MR GRACE:   Yes, I will take your Honours to that. 

KIRBY J:   What are we reading now?  Is this the opening statement?

MR GRACE:   This is the opening of the State prosecutor in the second trial.  On page 9, line 25, reference to various items that were found.  At page 12 ‑ ‑ ‑

KIRBY J:   I am sorry to interrupt again, but was the sequence of events that the counts of the indictment in the first trial were disposed of and then the count of the second indictment was found that led to the second trial, or were the charges laid at the same time?

MR GRACE:   They were laid at the same time.  It was a joint indictment.  The indictment was severed and the order of the trials was as occurred.  There was one count on each indictment.

KIRBY J:   Is that relevant?  Does that suggest that the original object of the State was to try your client on all of these matters in the one trial?

MR GRACE:   A trial judge, for reasons no doubt to do with ensuring a fair trial, severed the indictment.  I am not privy to the exact reasons why that occurred and as to what the submissions were.  The Crown agreed, I am told, that that occurred, and perhaps had something to do with what would have been a very unwieldy nature of a joint trial involving five persons in the dock and two separate conspiracies.  Could I take your Honours to page 12 at line 19:

In the morning of 30 June 2000 –

so this is an overlap -

so we’re getting on to a little less than a month later after the drug transaction goes wrong –

and I might add after the date of the conspiracy has ended –

Washer’s conversation with another colleague of his, a man by the name of Gavin Whitsed, occurs at Washer’s home in Carlisle and of course this is being recorded, as I said to you, with one of those bugging devices.

Now, what the state says to you is that the conversation is generally about drug dealing between Washer and Whitsed, but then it progresses on to be specific about the failure of this drug deal. 

Then at page 14 at line 20:

On 11 July 2000, in another recorded conversation at Washer’s house, Washer and his colleague Whitsed embark on a lengthy discussion about drug transactions within the Rebels club in Perth.  Particularly discussing amounts of drugs and moneys outstanding.

This kind of evidence about drug transaction the state says is relevant to prove a number of things:  firstly, it’s to prove that Washer is not talking about sand or carrots or sausages or anything innocent, he’s talking about drugs; secondly, it’s to show that Washer’s intention or his intention when those drugs arrived in Perth, the ones from Queensland, his intention was his share of it at least was to sell or supply them as part of his drug-dealing, drug‑making venture – sorry, moneymaking venture.

And then in the closing address in the same book at page 38, line 19:

The evidence about drug dealing in this trial is simply to show two things:  (1) it negates any suggestion that Washer is talking about anything other than drugs, not mallee roots, not beach sand, not jarrah, not anything of that but drugs; secondly, that when the drugs come over from Queensland his intent was to sell or supply because here we have him on 29 June, talking about drugs.  On 30 June, one day later, we have Washer talking about with Whitsed.  In fact, again they appear to be discussing amounts of drugs, dollar values of those drugs and the various people they have supplied the drugs to and how much they owe and there’s quite a bit of that in the conversation.

HAYNE J:   Given that is the way in which the State seek to use this what I will call overlapping evidence, do you say that in consequence of the acquittal at trial 1, it was open or not open to a jury at trial 2 to look at that evidence and conclude from it that Mr Washer was a drug dealer?

MR GRACE:   It was open to them to conclude that he was a drug dealer, but only in circumstances where the rebutting evidence, if I could use that phrase, was before them, to put that evidence in its proper context.

GLEESON CJ:   How could they do that without informing them at the first trial there was evidence that he was a gold dealer and an argument that these conversations were about gold, and the jury were then not convinced beyond reasonable doubt that they were about drugs?  What does a jury at the second trial make of this partial information about what went on at the first trial?

MR GRACE:   It could be restricted, your Honour, to simply the jury being told that his defence at the first trial was that he was not talking about drugs, rather than going to any particular specifics.

KIRBY J:   That makes it difficult for the second jury to give full effect to the verdict in the context in which the verdict was given.

MR GRACE:   Yes.  I am sorry to go back to the anterior issue which concerns admissibility, but this is the vice inherent in the admission into evidence of these listening devices or telephone intercept products where it was sought to be used as common evidence in both trials.

HAYNE J:   But as things presently stand where we are in the system, it would not be inconsistent with acquittal at trial 1 for the jury to conclude from the evidence led at both trials that Mr Washer was a drug dealer.

MR GRACE:   No, it would not be inconsistent if one accepts the validity of what was said in Storey’s Case with the corollary that there has to be a jury direction of the fact of the acquittal to balance the adverse effect of the propensity evidence and to accord with what your Honours the Chief Justice and Justice Hayne said in Carroll.  I think it was paragraph 28.

GLEESON CJ:   The problem is that there is no crime of being a drug dealer.

MR GRACE:   No.

GLEESON CJ:   And he was not on either occasion charged with being a drug dealer.

MR GRACE:   Yes.

KIRBY J:   Can I ask in the way it came out, the application is made to adduce evidence of the acquittal; the judge stops that.  Would it have been open to the judge to say, “If we’re going to have evidence of the acquittal, we have to have at least some evidence of the issues that were debated in the first trial”?

MR GRACE:   It becomes very unwieldy, I accept, but there has to be some accommodation made.

KIRBY J:   We are not indulging here in a wholly theoretical question.  You are in the midst of a trial, there is this poor judge sitting there, the application is made to adduce the evidence of the acquittal, and the judge reads Storey and sees he has to say, “You mustn’t impugn it, you must give it its full force”, but what is its full force?  What if the jury then comes back and says, “We would like to know what we are to make of the – can you give us some more help on that”.  It is almost certain that some juries would do that, and then what does the judge say?

MR GRACE:   The judge would of course have the benefit of the transcript of the first trial and of course the judge’s directions in the first trial.  He would be aware of the way in which the State and defence fought the first trial, what the issues were in that trial, and would be able then to determine whether the common evidence was evidence that featured strongly in the first trial or not.

KIRBY J:   The judge might be aware of that, but how does the judge convey this to the jury?

MR GRACE:   By allowing limited basis of questioning by defence counsel, if defence counsel so chooses to place before the jury evidence that was the subject of the first trial and the result of that trial.

KIRBY J:   You say whatever has to be done consistent with Storey and Carroll, the one thing that cannot be done is to deny you any benefit at all of the earlier acquittal if there is, as there is, an overlap between the period, an overlap in some of the issues and in the nature of the drugs that are involved and that the one thing that cannot be done – whatever can be done, and however it would have developed at trial we will not know, because it was denied – is you cannot keep it from the jury because in that way you are in a sense disrespecting the first jury’s verdict.

MR GRACE:   Yes.

GLEESON CJ:   Can you explain to us, with all the extra information we have, what was the benefit of his first acquittal as related to the second charge?

MR GRACE:   Could I take your Honours to the passage in the summing‑up of the learned trial judge in the second trial to point out what we say would be the benefit?

GLEESON CJ:   Yes.

KIRBY J:   I interrupted you when you were taking us through the appellant’s extra material.  Is there any other material that we should have flagged?

MR GRACE:   On page 39 through to 43 there is extensive reference to the conversations that are what is called the “drug dealing evidence”.

KIRBY J:   Does that relate to the intent of your client in the period of the second alleged offence?

MR GRACE:   It relates to his existence as a drug dealer and in the drug‑dealing business at a time postdating the conspiracy, the subject of the second trial, adduced in order to prove the intent to sell or supply the drugs, the subject of the conspiracy in the second trial.  Could I take your Honours to the appeal book volume 1.  Perhaps before I do that, it may be of assistance if I took your Honours to the issue that your Honour Justice Kirby raised with me, that is, the nature of the objection that counsel took during the course of the trial.  Can I take you to page 213 of volume 1 of the appeal book?

KIRBY J:   Where is this in the conduct of the trial?

MR GRACE:   This is in the State’s case in the course of the cross‑examination of Mr Butler.  Mr Butler was, I believe, the police informant or at least in charge of the investigation.  Can I take you to line 21 on page 213.  Mr Scudds is defence counsel for Washer, and he asks this question:

In relation to the Deadwood Sawmilling company and the Westbond, did you make an inquiry about whether mallee root was sold by the single tonne, whether millings was sold, whether there was a thing called gum special?  Did you make any inquiry in relation to ‑ ‑ ‑?‑‑‑I think it’s common knowledge that wood can be sold by the tonne.

There are further questions about that.

Then could I take you over the page on to page 214.  He asked questions – and this is cross‑examination of course – about the number of hours involved in the surveillance operation.  You will see at line 25:

How many hours, a hundred hours?---Yes.  For the last four years all those calls have been available to the defence.

How many hours in the other process, 800 hours – no; a thousand hours of listening device?---I think I said approximately.  Anywhere between 600 and a thousand . . . 

In relation to the conversations that we’ve heard in relation to Mr Washer and Bowles on the 3rd, the 7th and Mr Whitsed on 11 July, do you recall those?---Yes.

The next question is not relevant, but the very next question is the question that is the basis of this appeal:

In relation to Mr Washer, Bowles and Whitsed, you in fact charged those ‑ ‑ ‑

Ms Barbagallo, who is the State’s prosecutor, gets up and says:

I object to this line of questioning.  This is just outrageous.

The trial judge asks the jury to retire.  He then asks:

Where is this going, Mr Scudds?

GLEESON CJ:   A very good question.

KIRBY J:   It is going to Storey.

MR GRACE:   Yes:

SCUDDS, MR:   Mr Washer and the other gentlemen were charged in relation to those calls, that they were involved in a conspiracy to possess methylamphetamine with intent to sell or supply.  He was acquitted of that charge.  Otherwise the jury will simply think that it’s sitting out there and the allegation is that he’s involved in drug conversations with those two gentlemen, and with all respect he should be given the full benefit of the acquittal.  It’s as simple as that.

WISBEY DCJ:   He has got the full benefit of the acquittal because this case is nothing about that.

SCUDDS, MR:   Well, it is.  In this case they say that that is not an innocent association, that’s what the crown position is in relation to this matter, and those conversations do not involve Mr De Lena, they involved Mr Washer, Mr Whitsed and Mr Bowles.

Then Ms Barbagallo says:

my respectful submission is the jury’s version or jury’s decision in relation to those calls on a different charge at a different time and a different place, different everything, cannot conceivably be relevant to this jury.  What another set of people thought about another conspiracy involving three other people is just irrelevant.  I mean, it’s a conspiracy.  A jury could have returned a verdict of not guilty based on the fact that they didn’t think they were in an agreement; not that they weren’t involved in drugs, they weren’t in an agreement.

Can I just add this to my submission:  if these calls could in any way be argued inadmissible or having no weight due to some previous jury verdict then they should never have been put before this jury and in fact my learned friend argued that.  Your Honour did not find favour with that submission properly for the reasons that your Honour ruled in their admissible.

SCUDDS, MR:   Sir, I refer you to the case of Storey which is a similar situation where the was the fact of a prior incidence and then an allegation of forcible removal and then an allegation of rape, and the fact that the matter was raised in relation to the forcible removal.  I would have thought that it is relevant that in fact they’re acquitted of that charge.  That’s my respectful submission.

BARBAGALLO, MS:   Is that a New South Wales decision?

SCUDDS, MR:   I believe it’s a High Court decision.

WISBEY DCJ:   In my view it is not appropriate to ask this witness about another charge and the outcome of that other charge.

That is the end of it.

KIRBY J:   His Honour did not even know of the Storey decision.

MR GRACE:   No, he did not.

HEYDON J:   That does not follow at all.  Ms Barbagallo apparently did not know about it.

GLEESON CJ:   The question is asked by Ms Barbagallo.

KIRBY J:   Well, he thought it might have been a New South Wales decision.

HEYDON J:   Ms Barbagallo thought that.

KIRBY J:   I think the matter having been raised, his Honour should have been given more assistance.

HEYDON J:   I agree.

KIRBY J:   I think his Honour indicated he needed more assistance.

HAYNE J:   There is reference in those exchanges to an earlier ruling.  Is that the ruling which appears at pages 4 and following of the appeal book?

MR GRACE:   Yes.

HAYNE J:   In particular, this aspect of the matter insofar as it is dealt with is dealt with at page 9, is it?

MR GRACE:   Yes, at paragraph 8.

HAYNE J:   There is no explicit reference to Storey there.

MR GRACE:   There is some further attempted questioning and could I indicate this, that as your Honours are aware, there were three accused in the second trial, three separate counsel representing the accused.  The counsel for the co‑accused to Washer, that is, counsel for Di Lena and Scott, asked police questions about whether Di Lena or Scott were charged at the earlier trial.  Could I take your Honours to page 303.

KIRBY J:   Does this mean that the jury was becoming more and more aware of the fact that there had been an earlier trial?

MR GRACE:   Yes.

KIRBY J:   It was not informed of what ‑ ‑ ‑

MR GRACE:   They were well aware there had been an earlier trial because questions were asked of witnesses from time to time to the effect, particularly the police witnesses, “You have said on a previous occasion X and now you’re saying Y”, so it was before ‑ ‑ ‑

KIRBY J:   They were never told what the outcome of that earlier trial was?

MR GRACE:   No, they were never told.  Can I give you an example at page 217.  This follows immediately upon this discussion about asking the question that his Honour ruled could not be asked.  This is Mr Smith who acts on behalf of Di Lena.  At the bottom of page 217 at line 40 Mr Smith says:

Detective, just a few minutes ago Mr Scudds was asking you some questions about you having given evidence at a trial last year?---Yes.

I just want to confirm that trial last year doesn’t involve Mr Di Lena, does it?---No.

He wasn’t involved in any way in that whatever it is you’re referring to?---He wasn’t accused.

That is as far as that goes.  Then at page 303 at the bottom of the page referring to the record of interview, and this is cross‑examination of the police officer who conducted the interview, or one of the police officers who conducted the interview, at the bottom of page 303, second‑last question:

Then you raise some calls with him in relation to Mr Whitsed and Mr Bowles?---Yes, yes.

He was in fact charged with two different conspiracies, wasn’t he?‑‑‑Who - - -

Then State counsel jumps up and says:

BARBAGALLO, MS:   Your Honour, I object to that.  I thought that was discussed yesterday and it’s, in my submission, each irrelevant.

Then the jury is asked to retire.  At line 20:

SCUDDS, MR:   Well, the relevance is simply this, sir:  he states on the video that he – he is questioned in relation to both conspiracies.   He says on the video that he intends to explain himself.  We led evidence at the trial last year and the jury need to know that the trial concerned him last year.  I’m not going to lead from the witness the outcome.  I’m simply going to lead from the witness that he was charged and the matter went to trial last year and that’s all I intend to lead.

WISBEY DCJ:   But of what relevance?

SCUDDS, MR:   On the relevance that otherwise the jury think that he says in here that he’s going to explain himself or he was going to bring people along and he does that last year and then the jury are left thinking, “Well, he hasn’t done it this time.”  when in fact - - -

WISBEY DCJ:   But he doesn’t have to.  The jury are going to be told he doesn’t have to.

SCUDDS, MR:   Well, it’s seen as an oddity that what can occur is ‑ ‑ ‑

WISBEY DCJ:   What you propose to do isn’t going to tell the jury that but do you want to tell them that he explained himself last time but he doesn’t want to explain himself this time?

SCUDDS, MR:   No, no, I don’t.  What I intend to do - - -

WISBEY DCJ:   What you intend to do is what?

SCUDDS, MR:   I intend to lead from the witness – I can’t see how, out of fairness, that the - - -

Over the page on 305:

WISBEY DCJ:   Don’t worry about the fairness just tell me what the relevance ‑ ‑ ‑

SCUDDS, MR:   Well, I am worried about fairness. 

WISBEY DCJ:   Just tell me about relevancy for a moment.

SCUDDS, MR:   The relevancy is that he was questioned in relation to two conspiracies and he was charged with two conspiracies and one of them was disposed of last year.  We have had questions about what happened last year and the jury are left in a vacuum and I think out of fairness – there was no objection to Mr Smith or Mr de Vries leading evidence that their clients had nothing to do with the charge last year and I think the jury needs to be aware that it did involve Mr Washer and that’s all they need to be aware of.

WISBEY DCJ:   In my view, it’s not relevant and cannot be pursued.

KIRBY J:   It is now hanging in the air.

MR GRACE:   It is hanging in the air.  Can I take your Honours, as I said I was going to do, to the summing‑up in the second trial.

KIRBY J:   Far from getting any benefit of the acquittal in the first trial, so far as the jury knew, he might well have been convicted at the first trial.  It might be a not unreasonable inference for them to draw that he had been convicted because if he had been acquitted, surely the court would have been informed.

MR GRACE:   The jury may have thought that but they are instructed not to speculate about what happened with Whitsed and Bowles and of course ‑ ‑ ‑

KIRBY J:   We can instruct juries not to speculate until we are blue in the face, but they are sitting there as people with common sense and they will speculate.

MR GRACE:   Can I take your Honours to page 346 at line 15 and this is in the course of the summing up:

The state says to you in respect to the recorded conversations, that some of the interviews – some of the recorded conversations it says are evidence of drug dealing by the accused person, subsequent to the period alleged in the indictment, that is the period of the conspiracy.

If you are satisfied that that was the case, that it was evidence of drug dealing, you could only use it for a limited purpose and that purpose is in making a determination if you are satisfied that the accused person had entered into a conspiracy to possess the amphetamine.  You can only use that material in determining whether it was proper to draw the inference from all the facts that the intention of the accused in possessing the methylamphetamine was to sell or supply it to another.

The fact that the accused person has been involved in drug dealing if that was your finding, is no basis for concluding that person’s guilt in respect of the charge that you are being asked to consider.  That charge can only be proved by the evidence directly referable to it.  As I have said, you cannot reason and it would be quite impermissible reasoning to say if you were satisfied that the evidence disclosed, drug dealings by the accused subsequent to the period of the indictment, that that was evidence which indicated that the accused was guilty of the offence charged.

And then at page 355 at line 23 again reference in the context of the directions in respect of conspiracy, a reference, I will not read that to you.  At page 357 at line 23:

In considering the question of intent, if you were satisfied that the accused person had entered into an agreement to possess the methylamphetamine – and you are looking at the question of the intent to sell or supply – you would be entitled to look at the amount of the drug and for the accused person’s involvement in the dissemination of drugs in the period immediately or reasonably approximate to the offence, since those matters would clearly be relevant factors to take into account in inferentially concluding what that person’s intention was if that person had obtained possession of the substance.

It was on that issue of intent, as I have explained to you a couple of times, that much of the surveillance material is relevant, the state says, to you, the recorded conversations, properly interpreted, demonstrate a dealing in illicit substances by the accused persons and that is a factor which you could take into account in determining what the accused person’s intention was in respect of the methylamphetamine which we are concerned.  I mention it again because it is very important, the fact than an accused person was dealing in drugs, if that be your finding, subsequent to the period alleged in the indictment – or prior thereto for that matter – is no basis for determining that he or she is guilty of the offence charged.

Now, it was there at that spot, if not earlier, in the directions that if there had been an evidentiary foundation that the direction concerning the rebuttal acquittal evidence or the propensity rebuttal evidence, if I could use that phrase, ought to have been given.

GLEESON CJ:   Who was the person who had arranged for the hire of the car?  The car was hired in Queensland and the payment of the hire was arranged in Perth by somebody.

MR GRACE:   Scott.

GLEESON CJ:   Scott was the woman?

MR GRACE:   Scott gave her credit card.  Scott was the de facto wife of Di Lena.

GLEESON CJ:   What happened to the woman who had abandoned the car with the relevant methylamphetamine in it near Coonamble?

MR GRACE:   She was arrested and charged, spent seven months in gaol and then received an indemnity to give evidence on behalf of the prosecution and gave evidence.

GLEESON CJ:   In these proceedings?

MR GRACE:   Yes.  Her name was Lennon and her evidence appears in the appeal book.

HAYNE J:   Was there a real and lively dispute at trial, Mr Grace, that if there was conspiracy to possess four pounds of methylamphetamine that it was for some purpose other than to sell or supply?

MR GRACE:   No.

HAYNE J:   The real killing ground in the case is whether there was conspiracy to possess it, was it not, to which Mr Washer was a party?

MR GRACE:   And whether in proving the intent, as read to you, that he had the intent to sell or supply.

GLEESON CJ:   But you would not want to ‑ ‑ ‑

MR GRACE:   But that was not ‑ ‑ ‑

HAYNE J:   Four pounds is a lot of ‑ ‑ ‑

GLEESON CJ:   You would not possess that quantity for your own consumption.

HAYNE J:   Four pounds pure?

MR GRACE:   No, no.  In fact one of our arguments in the court below was – and counsel announced this, although they did not make a formal admission under the Evidence Act, section 32 – counsel said there is no issue about intent.  If the jury was to find an unlawful agreement to possess, it would have had to have axiomatically been with an intent to sell or supply.  It could never have been suggested that it was for own use, for instance.  So it would have had to have been for intent and that was one of the arguments that we raised in the court below, that this was a non‑issue.  Therefore, because it was a non-issue there was no need for this evidence to be admitted in the first place.

But the court below said, well, intent to sell or supply was an element of the crime.  Therefore, the Crown was entitled to adduce evidence that went to proof of that element.  The evidence at the first trial was evidence that went to prove that element.  Therefore, it is admissible even though section 31A was not engaged by the trial judge or by counsel at the time.  Nevertheless, it was admissible under general principles at least and also under section 31A as the court below found.  Therefore, it goes in - then what happens?  That is the issue.

We say that counsel was perfectly within his rights in accordance with Storey’s Case and with the state of the common law of Australia to ask the question that he did and to seek to elicit the evidence of the acquittal in the way he did.

HEYDON J:   Can I just raise this with you?  On page 215 you took us to where the vital question was half asked and then objected to.  Counsel did not say to the judge, “I want to ask the following questions, a line of questions.  I want to elicit certain types of evidence, possibly from this witness and possibly from other witnesses, and I want to invite you to direct the jury in a certain way”.  Now, it was not done.  Nothing can be done about that, but could you tell us precisely what questions Mr Scudds would have asked if he were acting in accordance with your theory of the case and precisely what direction the trial judge should have given in light of the evidence that those questions would have brought into play?

MR GRACE:   Yes, I will attempt to formulate them now.  “Officer, you in fact charged Mr Washer with a conspiracy with Whitsed and Bowles to sell or supply methylamphetamine between the various dates and that charge was the subject of a trial in this court last year.  You relied upon in that trial the – counsel would then list the various items of evidence – that you now seek to rely upon in this trial as proving an intent by Washer to sell or supply the methylamphetamine”.

GLEESON CJ:   No, he could not have asked that question as relevant to the issue of whether there was such an intent.

MR GRACE:   Yes.

GLEESON CJ:   That question suggests or is capable of suggesting that was the whole of the proof.

MR GRACE:   Yes.  “As relevant to the question of the intent, you would agree that it was necessary for the Crown to prove in the first trial the element that Washer had the intent to sell or supply methylamphetamine?”  “Yes.”  “And the result of the first trial was that Washer was acquitted.”  “Yes.”  “Washer raised a defence that the conversations had nothing to do with drugs?”  “Yes.”  Perhaps the last question could be the second last.  That would be the evidentiary basis upon which the matter would then be before the jury.

HEYDON J:   Would it be admissible in re-examination to ask for details of that defence about gold transactions and so on?

MR GRACE:   Subject to the collateral evidence rule ‑ ‑ ‑

HEYDON J:   The purpose of re-examination is to clarify – one of the purposes is to clarify doubts in evidence that has come in in cross‑examination.

MR GRACE:   Yes.  I would suggest not, because of the collateral evidence rule that – sorry.  Perhaps I expressed that inappropriately.  That one is then getting into perhaps credit issues affecting not the witness but the accused person as to the merits of the defence and seeking to attack the defendant’s credit through the evidence of the police officer, which would have the tendency to undermine the effect of the acquittal.

HEYDON J:   So you can bring in evidence of a charge and of an acquittal but you cannot bring in any further details that might illuminate what that acquittal signified and what its force was?

MR GRACE:   But the result of allowing that sort of evidence to be given, your Honour, would be that there may well then commence a collateral trial of that particular issue.  So a trial within a trial would occur in relation to the nature of the defence at the first trial and what effect that may have had upon the jury’s verdict.

HEYDON J:   It would be open in re-examination to ask questions about – I suppose this might have emerged in cross‑examination actually, one of the questions you posited.  The precise dates, the times, the nature of the drug, the quantity of the drug, circumstances like that, are they permissible in re‑examination if they did not come out in cross‑examination?

MR GRACE:   Is your Honour talking about the particulars of the first count?

HEYDON J:   Yes.  The charge that there was an acquittal on at the first trial.

MR GRACE:   Yes.  There was not any specific amount specified.  It was just a general allegation of drug dealing, not involving any particular transaction.  But taking the import of your Honour’s question, the trial judge would have to be careful to put limits on the nature of the questions asked clearly in order for there not to be a trial within a trial.

KIRBY J:   I realise that we are asking these questions in order to test the hypothesis that you are advancing that you were entitled to have this evidence, but in a sense the refusal to permit that evidence to come in cut off the concrete case that might then have emerged that this Court would be grappling with if you had been entitled and allowed the opportunity of adducing the evidence of the acquittal before the jury.  So we are doing this on the hypotheses we speculate about, but which did not emerge because of the judge’s ruling.  We see so many cases in this Court where trial counsel do not take points and do not reserve issues and do not refer to the relevant authority, but in this case your point, as I understand it, is the point was raised, it was reserved and the critical authority was referred to.

MR GRACE:   Yes.

HAYNE J:   Then can we, taking account of what Justice Kirby has just said, can we invert the process to test the argument you advance?  Consistent with Storey, the State could not have gone to the jury inviting the jury as part of its reasoning process to take the step of concluding that between April 2000 and March 2001, Mr Washer conspired with Messieurs Whitsed and Bowles to sell or supply methylamphetamine.  That is the clearest example, I would have thought, of doing something that Storey says you may not.

MR GRACE:   Correct.  Yes, your Honour.

HAYNE J:   In the present case, because there is an overlap in the evidence led at trial 1 and trial 2, you say that the principle underpinning Storey is engaged.  Correct?

MR GRACE:   Correct.

HAYNE J:   But what is the step in the reasoning process of the jury that the manner of presentation of the case at trial invited them to take which derogated in any way from the acquittal at trial 1?  What is the step in reasoning that the jury are to take that derogates from the conclusion that Mr Washer was found not guilty of conspiring with Whitsed and Bowles?

MR GRACE:   Because the jury is invited by the State to accept the uncontradicted evidence, or unqualified evidence, that the post-dated drug‑dealing evidence revealed an intent to sell or supply methylamphetamine.  That is the step.  If the jury takes that step, they are doing it in a way in which they are not, unbeknown to them, giving full effect to the acquittal in a trial that was solely run, in my submission, on the basis that those conversations did or did not relate to drugs.

GLEESON CJ:   Take the point that was actually made in argument by the Crown Prosecutor here.  She said that it is consistent with the verdict of the jury at the first trial that each of Mr Washer and Mr Bowles and Mr Whitsed is a drug dealer.  Each of them could be a drug dealer, and yet Mr Washer could be innocent of conspiring with the other two to supply drugs.  She says, as I understand her argument, that could explain the decision of the jury at the first trial.

MR GRACE:   My answer to that is that that is an artificial construct which does not marry with the way in which the first trial was conducted, but even if ‑ ‑ ‑

GLEESON CJ:   That is the problem, you see.  The jury would not know on your hypothesis the way in which the first trial was conducted. 

MR GRACE:   In the questions that I postulated in answer to Justice Heydon’s question earlier about the type of questions that would be asked, they would be in effect told that.  Can I just go back.  The second part of the answer to your Honour’s question is that even if what counsel below says was correct, it is only an argument.  It does not mean that that is the basis upon which the jury found in the way they did.

GLEESON CJ:   We will never know the basis on which the jury found in the way they did.

KIRBY J:   That is true of every jury verdict unless it is a special verdict.

GLEESON CJ:   But the point that counsel was seeking to make and that we need assistance on is that it is not inconsistent with a verdict of not guilty of conspiring with Bowles and Whitsed to conclude that each of Washer and Bowles and Whitsed was a drug dealer.

MR GRACE:   One thing for sure is that the verdict does not allow the conclusion to be made that they were drug dealers.

KIRBY J:   It is an evidentiary ingredient that you are denied, that the jury at the very least, one might think, would say to itself, “We’re told that the earlier jury made this decision.  We’re told we have got to give respect to that.  Perhaps we had better have a good look and a thorough look at this and examine it afresh in the light of that evidentiary element”, but they are not given that.

MR GRACE:   No, and the evidence just sits out there like a rock.  It is of course very damaging and highly prejudicial propensity evidence and without being able to elicit evidence of the acquittal - even if we had gone into evidence, we could not have elicited evidence of the acquittal - we are left in a very prejudicial and unfair situation.

HAYNE J:   Well you speak of prejudice and unfairness.  Is that saying more than that the evidence of the intercepts was liable to cruel misconstruction by the jury as to what it revealed?  On their face the intercepts were singularly unhelpful to Mr Washer, were they not?

MR GRACE:   Absolutely, your Honour.  No quarrel.

HAYNE J:   I understand why you want to then attach the word “prejudice” or “unfair” to it, but stripped to its bones, is there more than saying the evidence was strong.

MR GRACE:   The evidence was strong, but not only that the evidence that was elicited in the absence of countervailing evidence or very strong arguments to cast doubt upon it, suggested a great propensity on the part of Washer to sell or supply drugs.

HAYNE J:   Mr Grace, I believe I understand your argument in relation to the intercepted conversations between Washer, Bowles and Whitsed, but in relation to the scales with the traces of methylamphetamine on them, what connection did they have with any alleged agreement between Washer, Bowles and Whitsed, except that that same evidence happens to have been relied on in the first trial?

MR GRACE:   Just as another indicia of being involved in the drug‑dealing business.

GLEESON CJ:   Let us test your proposition by reference to those pieces of the evidence of the scales and the methylamphetamine on them.  He could have been in business as a drug dealer without having any kind of agreement with Bowles or Whitsed.

MR GRACE:   Yes.

GLEESON CJ:   As I understand it, neither Bowles nor Whitsed was connected with those scales.

MR GRACE:   I am not sure that that is correct, your Honour.

GLEESON CJ:   Let us assume that for the moment.  They were found on his premises.  I thought there was one other individual who was said, perhaps, to have had access to them.

MR GRACE:   Di Lena.

GLEESON CJ:   Yes.

MR GRACE:   But the conversations that were recorded recorded certain conversations between Whitsed and Washer or Bowles and Washer at the location where the scales were found that may have had some relationship to the scales.  It could not be, could it, that the use that your side really wanted to make of this acquittal was to suggest that he was acquitted of being a drug dealer?

MR GRACE:   No.

GLEESON CJ:   Because he was never acquitted of being a drug dealer.

MR GRACE:   No, I accept that.

KIRBY J:   You do not know.  We do not know what the jury would have made of the evidence of the acquittal.

MR GRACE:   We know that he was acquitted of unlawfully agreeing with Whitsed and Bowles to sell or supply methylamphetamine.  We know that inherent in the way in which that first trial was run was - the sole issue that really was agitated was that he was not talking about drugs.  Therefore, there was no intent to sell or supply drugs.  We know that an element of the first trial or the offence, the subject of the first trial, was an intent to sell or supply drugs.

GLEESON CJ:   You do not suggest, do you, that part of the benefit of his acquittal at the first trial is that he should be taken not to be a drug dealer?

MR GRACE:   At least in relation to the allegations in the first trial that is the effect of the jury’s verdict.

GLEESON CJ:   So you suggest that Storey is authority for the proposition that for the purposes of the second trial both sides should have proceeded upon the basis that your client did not have a propensity to deal in drugs?

MR GRACE:   For the purposes of the second trial the matter should have proceeded on the basis that my client was innocent of the allegation that between whatever dates the first trial encapsulated he had conspired to sell or supply drugs.

GLEESON CJ:   No, with Whitsed and Bowles.

MR GRACE:   With Whitsed and Bowles, yes.

GLEESON CJ:   That is right.  There is a big difference between saying, “This man is a drug dealer” and saying, “This man has made an agreement with Whitsed and Bowles to deal in drugs.”

MR GRACE:   Yes, I appreciate there is a difference.

GLEESON CJ:   The question is whether or not you suggest that Storey is authority for the proposition that at the second trial he should have been given the benefit of a conclusion or an assumption that he was not a person with a propensity to deal in drugs.

MR GRACE:   My submission is that he should have been given that presumption.

KIRBY J:   Is not what is required that it be placed before the jury so that they draw their inferences and reach their conclusions on that matter?

MR GRACE:   Yes.

KIRBY J:   That is the essence of it.  It is really a right of the jury to know this.  In this trial the jury was just left in the air and, I would have thought, would have inferred that he had been convicted because no one told them that he had been acquitted.

MR GRACE:   Just to go back to ‑ ‑ ‑

HAYNE J:   Just to pursue that a moment, Mr Grace, what the jury knew about there being an earlier trial was confined to questions that were asked by counsel, objected to and never answered, is that right?

MR GRACE:   No.

HAYNE J:   In the case of Mr Washer?

MR GRACE:   There were questions asked, and I cannot point to them at this moment, about what he said on a previous occasion – put to a policeman, for instance – being at variance to what he was saying now but, other than that, no.

KIRBY J:   Was he asked questions about the gold theory?

MR GRACE:   No.  We do not know the basis upon which the jury acquitted at the first trial.  We can only ‑ ‑ ‑

KIRBY J:   It sounds as though they acquitted – I mean, it is speculation – on the basis that a majority of 10 drew the conclusion that he had been engaging in gold dealings, which was a case you did not run at the second trial.

MR GRACE:   No.

KIRBY J:   The awkwardness of the hypothesis you put up – and this may require some elucidation of what Storey requires – is that the second jury is not really told, according to your submission, as I understand it, of the foundation of the acquittal in the first trial.  They are simply informed of the fact of the acquittal.

MR GRACE:   Are you saying in the hypothetical situation?  Yes.

KIRBY J:   Your submission, as I understand it, is that if the question had been permitted and you asked those questions that you outlined, it would not have gone into the basis, or an explanation of the jury’s verdict, or possible explanation, it would simply be the fact of it and the instruction not to reach any conclusion of their own that impugned the first jury’s verdict.

MR GRACE:   Yes, but we say that was absolutely necessary to ensure the correct balance was reached.

KIRBY J:   I understand all that, but the question still lingers in the air:  what is the answer the judge gives if the jury comes back and says first of all, “What does ‘impugn’ mean?”, and, second, assuming that they understand that, what are we to infer from the acquittal?  How does it impinge upon this case?

MR GRACE:   It is a balancing factor for the jury to take into account in assessing the impact upon the alleged propensity evidence.

CRENNAN J:   But how does a balance work, Mr Grace, if there is a possibility that giving the benefit of the acquittal in the second trial has the capacity perhaps to mislead the jury?

MR GRACE:   A judge obviously has to be careful in what he says to the jury to describe what occurred in the first trial if there is an evidentiary foundation for that, and perhaps tell them not to speculate.  It gets back to this issue that the State makes a forensic decision to rely upon this propensity evidence.  That is the first decision that forms the basis upon which it would seek to admit the material.  Once it seeks to admit the material it goes in with whatever qualifications and caveats that that material requires or has attached to it.

What it has attached to it is the caveat or the qualification that this very same evidence was the issue upon which a first trial was fought.  The result of the first trial was the jury was not satisfied beyond reasonable doubt.  Therefore, it has the effect of being evidence that could be taken into account to rebut the alleged propensity evidence that says to establish the intent to sell or supply and if the effect of that is to set at nought the propensity evidence, that is the result of the forensic decision made by the State.

GLEESON CJ:   But the verdict of the jury of the first trial is not inconsistent with the proposition that this man is a drug dealer.  It is inconsistent with the proposition that he made an agreement with Whitsed and Bowles to supply drugs, which is a different thing.

MR GRACE:   With an intent to sell or supply drugs, which is the subject of the propensity evidence in this trial.  It is that element that is the issue.

HAYNE J:   Was the common evidence, that is, the evidence common to both trials, led at the first trial as propensity evidence?

MR GRACE:   It was led as actual evidence at the heart of the case, the centre of the case, as evidence of ‑ ‑ ‑

HAYNE J:   Overt acts.

MR GRACE:   Overt acts, yes.  Your Honours may gain some assistance from the decision of the Supreme Court of Alaska in Hess which is on our list of authorities.  There is a copy of it in the respondent’s book of additional materials. 

KIRBY J:   Your written submissions call our attention to the House of Lords decision in Z which has been followed in New Zealand that appears to take a different course to the course that this Court took in Storey.  I did not understand the respondent’s submissions to be asking this Court to follow Z and to revise Storey.  Is it your understanding that that is what we are being asked to do, or not?

MR GRACE:   No, it is not my understanding that that is the case.

KIRBY J:   Even under Z, as I understand it, in the House of Lords, you are still entitled to call the evidence about the acquittal.  What consequences it has is a different matter, but there is nothing that is inconsistent in Z with the calling of the evidence.  It bites later.

MR GRACE:   Correct, your Honour.  Hess is a decision of the Supreme Court of Alaska and it is reported ‑ ‑ ‑

GLEESON CJ:   Where is this - in the materials you said?

MR GRACE:   A convenient copy is in the respondent’s book of additional materials, volume 2. It is 20 P 3d 1121 (Alaska 2001).

KIRBY J:   As I understood your written submissions the United States law as stated in the Supreme Court of the United States is closer to Z than it is to Storey.

MR GRACE:   Yes, it is.

KIRBY J:   That is that the offence arises at a later stage where an endeavour is used to charge a person in a way that is inconsistent.  Is that correct?

MR GRACE:   Yes, that is correct.  There is an interesting comment in the dissenting judgment of Justice Brennan ‑ ‑ ‑

KIRBY J:   Perhaps you will come to that after you have taken us to the Alaskan case.

MR GRACE:   Yes.  Now at paragraph [11] in Hess the following is stated - this on page 601 of the volume of the appeal book

The state here introduced evidence that Hess had sexually assaulted A.R. in order to show his “subjective awareness of [H.W.’s] response to the sexual activity which [was] taking place.”  The state explained that “[e]vidence of Hess’ prior sexual assaults is directly relevant . . .   Proof that Hess has [in the] past . . . disregarded the lack of consent expressed by his sexual partners is highly probative evidence that in this case, Hess was willing to ignore the risk that H.W. had not given her consent . . . ”  Thus, as Hess asserted, the state intended to use evidence of his conduct with A.R. to prove his propensity to disregard H.W.’s alleged lack of consent.  The acquittal was therefore more important for its bearing on the inference of propensity to be drawn in assessing his conduct with H.W. than for its bearing on the historical facts of his conduct with A.R.

Then if I could take you to paragraph 13 under the heading, “Was the evidence more prejudicial than probative?”:

The superior court declined to inform the jury of Hess’s prior acquittal partly because it reasoned that the jury would be confused.  It was concerned about instructing the jury on the different proof standards.

Now, what had occurred was that Hess had been acquitted of the major crime of sexual assault but found guilty of a lesser crime which had a preponderance of probabilities test.  So that is what his Honour was talking about there.

Then if I could ask your Honours to turn to page 1129 of the report which is on page 603 of the appeal book volume, and you will see in the first substantive paragraph on that page his Honour says this:

Evidence of a prior acquittal may cause confusion if the jury takes it as proof that the defendant is “innocent” of the prior charge, rather than as evidence that reasonable doubt existed as to at least one element of the acquitted charge.  But a high risk of unfair prejudice may outweigh the risk of confusion, and a jury instruction explaining the requisite levels of proof may minimize the risk of confusion.

Because we think that the acquittal had substantial probative value to Hess, that its exclusion hampered his ability to respond to A.R.’s propensity evidence testimony, and that any undue prejudice its admission would cause the state could be avoided or minimized by appropriate instructions, we conclude that it was error not to inform the jury of Hess’s acquittal.

Over the page on page 1130, left‑hand column, second‑last paragraph:

The state relied on A.R.’s testimony and made it an important part of its case at the second trial.  The state argued that the only issue was H.W.’s lack of consent; to establish Hess’s reckless disregard for H.W.’s lack of consent, the state relied on A.R.’s testimony that A.R. did not consent.  And it urged the jury to do the same.  But if the second jury had known that the first jury had reasonable doubt about whether Hess recklessly disregarded A.R.’s lack of consent or whether A.R. did not consent, the second jury might also have had reasonable doubt about whether Hess recklessly disregarded H.W.’s wishes.

The error may have substantially affected the verdict.

The conviction was reversed and there was a remand for a retrial.  That case, although there is in the degree and depth of analysis that one would have perhaps liked, nevertheless gives some support, it is submitted, for the appellant’s submissions in relation to the allowance of rebuttal evidence of the defendant’s propensity to commit a particular crime.  Can I just briefly refer your Honours to Justice Brennan’s comments in a dissenting judgment in Dowling.  Dowling was one of the cases that your Honour Justice Kirby just referred to as being more akin to the Z position in England. 

KIRBY J:   Is this in any of the material that is before us?

MR GRACE:   Yes, I believe it is.  No, it is not.

KIRBY J:   What is the citation?

MR GRACE:   The name of the case is Dowling v United States 493 US 342. It is a 1990 decision of the Supreme Court of the United States and at page 362 point 5 of that page his Honour Justice Brennan in his dissenting judgment said this:

The Court’s only response is that the defendant is free to introduce evidence to rebut the contention that he committed the prior offense.  This response, of course, underscores the flaw in the Court’s reasoning:  introduction of this type of evidence requires the defendant to mount a second defense to an offense for which he has been acquitted.

That is an attack on the majority reasoning.

KIRBY J:   The argument that would be given against that is it is not the same offence.  It is a different offence at a different time between different parties in respect of different factual issues and therefore it is not requiring the person to redefend himself or herself against the first offence.

MR GRACE:   That is so.  Could I also in the respondent’s book of additional materials take your Honours to the unreported decision of the Court of Appeal of England in Colman and Terry [2004] EWCA Crim 3252. It appears at page 605 of volume 2 of the respondent’s book of additional materials. Could I take your Honours to paragraph 35. There the court, after considering Sambasivam and Z, said this:

The rationale of the exceptions stated, by way of example in that proposition –

the case of Hui Chi-Ming from Archbold –

appears to be that where an earlier acquittal is arguably attributable to some aspect of the evidence which is common to both trials and/or otherwise relevant to an issue in the second, evidence of the acquittal may be admissible in the later trial.

At paragraph 48 on page 617, after considering this Court’s decision in Carroll and the various judgments that had been given in Z, Lord Justice Auld said this:

The third point arising out of the speeches in Z is the contribution of the principle of fairness to the question whether evidence of a previous acquittal before a jury can be contradicted by the prosecution for the purpose of proving a different offence.  Lord Hobhouse spoke . . . of fairness to both sides and the growth of protections to the defence, particularly in the advent since Sambasivam of section 78 of the Police and Criminal Evidence Act 1984:

“ . . . Fairness requires that the jury hear all relevant evidence . . . Any prejudice to the defendant arising from having to deal a second time with evidence proving facts which were in issue at an earlier trial is simply another factor to be put into the balance.  The fact that the previous trial ended in an acquittal is a relevant factor in striking this balance but it is no more than that.  It is not, as would be the result of upholding the rule in Sambasivam’s case, conclusive.”

In those remarks he echoed, though without citation, similar observations of Lord Lane CJ in R v H ‑ ‑ ‑

KIRBY J:   Could I just understand, I am not entirely familiar with Z yet because I have not read it, but is it your submission that even consistent with Z your submission would be entitled to succeed in the United Kingdom and New Zealand?

MR GRACE:   Yes, it would.  Z sought to undermine Sambasivam.  Sambasivam, of course, has been wholly adopted, in effect, by Storey and Garrett in this Court.

KIRBY J:   That was a Privy Council decision from Malaya, was it not?

MR GRACE:   Yes.

KIRBY J:   How would you explain in a sentence the difference that has now emerged between the Z line of territory and the Storey line of territory?

MR GRACE:   Your Honours would be assisted by Justice Howie’s exposition of the difference which appears in the case which is on our list of authorities, the New South Wales Court of Criminal Appeal decision of Chekeri (2001) 122 A Crim R 422, and could I take your Honours to page 433 of the report and to paragraph 52. In Justice Howie’s judgment with whom, I might add, the other members of the court, Chief Justice Spigelman and Justice Greg James agreed, his Honour says this:

Further the effect of the decision in Z is that the principle of double jeopardy is not infringed, if in later proceedings the acquittal is challenged by evidence adduced to prove that the accused was guilty of the earlier offence.  The principle is infringed if the accused is put on trial again for the offence of which he has been acquitted or if in some other way he is to be punished again for the same offence ‑ ‑ ‑

The decision appears to me as inconsistent with Storey in that their Lordships saw no distinction between the admission of evidence which, on the one hand, only tended to show that the accused was guilty of the offence for which he had been acquitted but was adduced for some other reason than to assert that the accused was guilty of that offence, and evidence which, on the other hand, was adduced to prove that the accused was in fact guilty of the earlier offence if that fact was relevant to the proof of the offence for which he is later being tried.  However, that was a distinction which was maintained throughout the judgments in Storey.  The decision also appears to me to be inconsistent with the views expressed as to the weight to be accorded to an acquittal in Rogers.

What that emphasises is what flows through the judgments of this Court in Garrett and Storey and going back to Kemp and Wilkes.  In relation to Kemp, of course, the statement of Sir Owen Dixon that acquittal is equated with innocence and the theme is that an acquittal is a decision by the lawfully constituted tribunal which is treated by subsequent tribunals as being incontrovertibly correct.

GLEESON CJ:   Where in Z did they deal with the matter you referred to a minute ago about proof of the acquittal?

MR GRACE:   I am sorry, your Honours, are you referring to what Justice Howie had to say, or ‑ ‑ ‑

GLEESON CJ:   No, you said a moment ago in response to a question asked by Justice Kirby that Z and the New Zealand decision which you said followed Z dealt with the question of proof of the acquittal.  I just would like to see how they handle that.

MR GRACE:   I hope I have not misled your Honours.  I did not mean to say that Z directly adverted to that question.  What I was saying was Z is not inconsistent.  What I meant to say was Z is not inconsistent with the eliciting of evidence of acquittal.

GLEESON CJ:   That is as high as you put it?

MR GRACE:   My junior has just assisted me, I think.  In Lord Hutton’s judgment ‑ ‑ ‑

KIRBY J:   I think you refer to this in your written submissions, Lord Hutton’s reasons.

MR GRACE:   Yes, at paragraph D on page 505 is the closest, your Honours, in Z.  This is in the Appeal Cases volume.  Do your Honours have that, paragraph D?

GLEESON CJ:   Thank you.

MR GRACE:   There Lord Hutton says:

I would wish to add that the issue which arose in Reg v Hay (1983) 77 Cr.App.R. 70 as to the effect of a prior acquittal when the Crown on a subsequent prosecution seeks to rely on part of a confession, the other part of which the earlier jury has not accepted, does not arise in the present case and therefore, without intending to cast any doubt on the decision, I express no opinion upon it.

So there has never been any ‑ ‑ ‑

GLEESON CJ:   I have not quite followed the significance of that.

MR GRACE:   I might need to go back into Hay’s Case.

GLEESON CJ:   Yes.  I had understood an earlier submission you made fairly recently to say that Z supported your argument in this case.

MR GRACE:   No.  My submission was intended to convey that Z is not inconsistent with our submission.

GLEESON CJ:   Have the English courts or the New Zealand court dealt with the problem that you were being asked questions about earlier, that is to say, proving the acquittal and what you prove about the acquittal?

MR GRACE:   No, except for what I have read to you from the English Court of Appeal in Colman, that unreported decision in 2002 in Colman.

KIRBY J:   That opinion seemed to reach the conclusion stated before going on to the European authorities which confirmed what Lord Justice Auld said so it is not contaminated by the European authorities.

MR GRACE:   No, it is not, and, of course, Hess’ position in the United States which is not inconsistent with what the Supreme Court has had to say about the admissibility of the evidence.  Perhaps as the final matter could I ‑ ‑ ‑

HAYNE J:   Just before you come to that, can I again follow through what would happen with the jury at trial 2 if the evidence that was objected to was led?  Do I understand your submission to come to this, that it would have been at least open to the trial judge – it may be that you go so far as to say that the trial judge should have given the following direction to the jury if there had been evidence that Mr Washer had been acquitted at trial 1?

MR GRACE:   Yes.

HAYNE J:   “The evidence”, that is, the overlapping evidence, “was led at an earlier trial.  The jury at that earlier trial, which was a trial for a different offence and on different evidence from the evidence you have heard, acquitted Mr Washer of the charge then under consideration.  The jury at that first trial may have entertained a doubt that the evidence”, which is the overlapping evidence, “bears the complexion that the prosecution says it does”.  The real punch in the direction comes next.  “You, the jury, must proceed.  You, the jury, may proceed on the basis that it is doubtful that the evidence bears the complexion the prosecution asserts.”  Is that what it comes to, Mr Grace?

MR GRACE:   The alternative would be, your Honour, for the judge to say to the jury, “You can weigh that evidence in the balance as to whether you accept the State’s proposition that that evidence evinces an intention to sell or supply drugs in the circumstances when that was an element of the crime that the jury at the first trial acquitted Mr Washer of”.

KIRBY J:   But would you not on your submission have to add, “But in reaching your verdict the law is, and I have to tell you that the law is, that you must not reach a conclusion that is inconsistent with the verdict of not guilty reached by the earlier jury which in our law is equivalent to a conclusion of innocence of the offence charged”?

MR GRACE:   Yes, except that would perhaps introduce another factor into it which ‑ ‑ ‑

KIRBY J:   I mean, either we are back‑pedalling on Storey or we are not.  The intermediate courts are still applying Storey.

MR GRACE:   Yes.  If one is strict in one’s adherence to Storey, then what your Honour says is correct, and I am referring particularly to what his Honour Chief Justice Barwick had to say at page 372 point 5 of Storey.

KIRBY J:   Maybe in the light of Z we should modify what Storey says though there is no request for us to do that.

GLEESON CJ:   Would you mind explaining to us then what conclusion of the jury would be inconsistent with the verdict at the first trial?

MR GRACE:   The conclusion of the jury that would find that the propensity evidence or the so‑called drug‑dealing evidence relied upon by the State evinced an intention to sell or supply drugs.

GLEESON CJ:   Alone or in combination with Bowles and Whitsed?

MR GRACE:   On the part of Washer, that Washer had an intent to sell or supply drugs.

GLEESON CJ:   But it is not, is it, inconsistent with the jury’s verdict at the first trial?  It is not inconsistent with his innocence of being a conspirator with Bowles and Whitsed that he is a drug dealer.

MR GRACE:   If you were to take an artificial construct, with respect, of the way in which the first trial was conducted, the answer is yes.

GLEESON CJ:   But the jury know practically nothing about the way the first trial was conducted.  If it is complicated for you to explain to us what would be inconsistent with the jury’s verdict at the first trial, how was the judge supposed to explain it to the jury?

MR GRACE:   Maybe he just does not need to go into that sort of detail. 

HAYNE J:   It is no good giving the jury a ritual incantation, Mr Grace ‑ ‑ ‑

GLEESON CJ:   You can confront the jury with a sonorous generality such as “Give him the full benefit of his acquittal” and there would not be one juror in 50 who would understand what that meant.

MR GRACE:   Perhaps one lawyer in 50.

HAYNE J:   It all has a delicious air of unreality when we are talking about four pounds.  If once you get to the point that this man conspired with others to possess the substance, what was he going to do - fertilise the garden with it?

MR GRACE:   Exactly, your Honour, so why did the Crown make the forensic decision to rely upon this evidence, I ask rhetorically?  If that was the overwhelming strength of their case, what on earth were they doing eliciting this sort of evidence?

HAYNE J:   Doing what counsel always do:  wear belt, braces and a bit of string round the trousers, Mr Grace, and that is what counsel are paid to do.

MR GRACE:   But the result of it is that if the prosecution seeks to act in that way and if the evidence is otherwise admissible, then they have to face the consequence of having the counter direction which is the subject of our submissions.

KIRBY J:   I may be wrong but it seems to me that the stronger the case of the Crown against you, the more important it is that you should have the feather of Storey to fly with and not to have the fact of an earlier trial laid bare before the jury without telling them that in that trial you were acquitted.

MR GRACE:   Yes, I do not disagree with that, your Honour.  Perhaps as a final matter, could I take your Honours to the journal article authored by Mr Paul Roberts of the University of Nottingham, which is on the list of authorities.  It bears a citation [2000] Crim L R 952.  There the learned author reviews the cases that deal with the issue of acquitted misconduct evidence and double jeopardy principles from Sambasivam to Z.  At page 966 under the heading “Previous Acquittals as Evidence in Rebuttal”, he says this halfway down the page:

A final outstanding matter, left unresolved in Z itself, is the status of the fact of an acquittal where the underlying conduct is relitigated in subsequent proceedings.  Should a defendant in a case like Z, for example, be permitted to tell the jury that he has already been acquitted of three of the incidents which the prosecution now cites as part of a pattern of conduct proving his guilt of the present charge?  It is submitted that he should.  Defendants should in principle always be able to tell the jury about a relevant previous verdict bearing on the issues in the current trial.

Then there is a reference to Hollington v Hewthorn and over the page on page 967 he says:

Acquittals, being the outcome of an unreasoned general verdict, are usually too inscrutable to be relevant evidence in later proceedings.  However, a prior acquittal may become relevant where the prosecution chooses to rely on evidence of previous misconduct bound up with the acquittal.  Suppose, for example, that a previously litigated incident resulted in the defendant being convicted of one or more charges, but acquitted of others.  If in subsequent proceedings the prosecution wishes to rely on the underlying misconduct as evidence supporting the instant charge (e.g. as ‘similar fact’ evidence of system, or to impeach the accused’s credit), the prior acquittals as well as the convictions resulting from that misconduct ought to be put in evidence.  The principle is illustrated by Doosti –

and I will not read that example to your Honours.

If I could just go back to the bottom of page 967:

A flexible Doosti-fairness principle would afford defendants an appropriate opportunity to lessen the impact of previously acquitted misconduct evidence adduced by the prosecution.  Pointing to a previous acquittal in these circumstances would not conclusively establish the defendant’s factual innocence of the previous charge – that would reintroduce Sambasivam by the back door – but would only amount to one further consideration for the jury to factor into its deliberations.  Nor should there be a proliferation of collateral issues.  Any prosecutor displaying an over-zealous interest in revisiting the circumstances of a prior acquittal would run the risk of being stayed for abuse of process, to the extent that the second prosecution appeared to be turning into a re-run of previously acquitted charges.  Indeed, it might be advisable for prosecutors themselves to admit up‑front that they are relying on previously acquitted misconduct evidence, much as defendants sometimes confess their previous convictions in the witness box in order to avoid the prejudicial impact of less controlled revelations . . . 

But inviting a jury to contradict the factual basis of a previous acquittal, without any intimation of the earlier contrary finding, would be a poor way to show respect for prior verdicts in criminal cases.  Better that the jury should appreciate the wider ramifications of any decision it might be contemplating.  Transparency here could only bolster the moral authority of a guilty verdict where a jury, in an appropriate case, decides to contradict a previous acquittal, on the basis of its considered judgement that subsequent events and proceedings have afforded a superior vantage point to discern where truth and justice lie.  This, in the end, might be all that Sambasivam was really striving to achieve; and its rule might happily have been left to stand for that proposition, had it not overreached itself in relation to previously acquitted misconduct evidence.

GLEESON CJ:   Can I take you back to page 966, the introductory paragraph?

MR GRACE:   Yes.

GLEESON CJ:   Last sentence.

Defendants should in principle always be able to tell the jury about a relevant previous verdict bearing on the issues in the current trial.

Of course the jury would have to be told what the bearing is, would they not?

MR GRACE:   Yes.

GLEESON CJ:   And those concluding paragraphs that you just read to us seem to suggest that the jury would have to be told all about what that bearing was so that they could decide for themselves how they should approach the circumstance that there was an earlier acquittal, provided always of course that they cannot themselves reach a conclusion that is inconsistent with the earlier acquittal.

MR GRACE:   Yes.

GLEESON CJ:   But that does not mean they can not take a different approach to the evidence, or to some evidence, that a jury took in an earlier case.

MR GRACE:   That is so.

HAYNE J:   And in the case with which we are presently concerned, where the disputed evidence is propensity evidence, is not the point at which to resolve these questions of use and prejudice at the point of admission and once it is admitted then it goes forward.  If there is a Storey point, if its admission is in truth impugning the earlier verdict, that may be if not powerful reason may be conclusive reason to exclude it at all.

MR GRACE:   Yes, and that is what we argued.

HAYNE J:   I understand that and I know that those issues are not on the table, but in determining the issue which is on the table, it would be important not to distort the proper development of principle and application of principle by failing to give proper attention to the fact that there is a logically prior step in the case of propensity evidence which is the admissibility question.

MR GRACE:   All that needs to be established, your Honour, is that the verdict may have turned upon the jury not accepting that there was the intent.

KIRBY J:   Keep your eye on your ground of appeal, Mr Grace, because the question that is asked at least has one possible outcome, which is that the issues of Storey that you raise in this matter were more properly matters to be taken at the point of the objection which is not before this Court than at the point where, the evidence having been admitted, the Court is considering what should be done about it.

MR GRACE:   Yes.  The ground of appeal does ‑ ‑ ‑

KIRBY J:   I feel for the trial judge because at the point where the evidence is tendered the trial judge will often not know how it is all going to fall out and how the case will develop and how any overlap between the two trials will emerge in the end, and that is when Storey bites.

MR GRACE:   In this case there were extensive pre‑trial submissions and a quite detailed ruling on the admissibility of the evidence and we have already referred to that.  I am not quite sure I understood what your Honour was adverting to in relation to the ground of appeal.

KIRBY J:   The question Justice Hayne was asking you is in a sense, as I  understood it, that this Court on the special leave application, having excluded from its consideration the anterior question, then the issues that you have agitated before us do not properly arise at the second stage.  They arise at the first stage which is not before us.  Can I make it more clear?

MR GRACE:   No, your Honour, I understand, but, with respect, could I submit that there is a necessary merging of some of the issues that is required in order to properly put the submissions in support of the ground of appeal.

GLEESON CJ:   Before you conclude, would you mind telling us what you want to say about what Justice Gibbs said in Storey 40 CLR 388 at the top of the page.

MR GRACE:   Is your Honour talking about the word “sometimes”?

GLEESON CJ:   Yes.

MR GRACE:   It is hard to give practical application to what Justice Gibbs had in mind when he used the word “sometimes”.  It is clear and at the very least, in our submission, that in the circumstances of the appellant’s case this was a situation that fell within Justice Gibbs’ statement of necessity for the reasons that we have advanced.

KIRBY J:   His Honour’s statement does not seem all that different from what the Supreme Court of Alaska said, namely that you have to tailor the charge to the jury for the particular circumstances of the case.

MR GRACE:   Yes.  Can I take your Honour the Chief Justice to the last sentence in that paragraph because what occurred – and I am taking your Honours to the questions asked by counsel for the co‑accused as to their clients’ involvement in the previous trial, so it would have been apparent to the jury in this trial that Washer had been charged in relation to the first trial, so it could not be suggested in the circumstances of the appellant’s case, to use Justice Gibbs’ formulation in Storey, that the question as to whether the accused had committed that previous offence was not raised and it would not have been likely to occur to the jury to consider that question.

GLEESON CJ:   The previous offence was whether he had entered into an agreement with Bowles and Whitsed.  The essence of the previous offence was agreement with Bowles and Whitsed.

MR GRACE:   Yes, but the details of that offence were not before the jury.  The fact that there had been a prior trial and charges involving those others was before the jury but not the details and the type of description that your Honour has indicated.

GLEESON CJ:   Were you going to say something about the proviso?

MR GRACE:   Yes, I was.  Your Honours, I have already taken you to what the Supreme Court of Alaska said in Hess on that particular issue.  What we say is that if error has been shown that this was a fundamental flaw in the trial.  It was a fundamental flaw because we do not know on what basis the jury came to its final conclusion.  We do not know what effect this propensity evidence relied upon had on the jury’s verdict.

We do not know whether the jury reasoned by reason of their acceptance of the propensity evidence that any defence that Washer sought to raise or any arguments that he sought to raise would fall on deaf ears.  The jury verdict was tainted by the admission of that drug‑dealing evidence and without the qualifying effect of the evidence of acquittal or evidence of rebuttal, as I call it, one could not say that the jury verdict was inevitable.

KIRBY J:   But we are now, as Weiss teaches us, sitting here with all the wisdom of the transcript and argument and analysis and effectively asking ourselves:  has a miscarriage of justice occurred as a result of any failure to give a Storey‑type direction?  Now, if when we do that, sitting with our authorities substituted for that of the Court of Appeal of Western Australia, and we examine the way the first trial was run, which was the gold

hypothesis, and the way the second trial was run, which was not a gold hypothesis, why would we, exercising that power under the proviso, not conclude that whatever might theoretically be the requirement that in this particular case, seeing as you did not in the second trial run the same case as in the first, that there really is not any foundation of injustice in the outcome and especially having regard to the quantity of the drug and the other evidence against your client?

MR GRACE:   Yes.  There are two answers to that.  Firstly, the point that your Honour Justice Kirby made earlier about the stronger the case the more important it is for this evidence to be elicited in order to create the balance that was the appellant’s due in this trial.  The second point is that, lest your Honours think that this was a lay down misere for the prosecution, the jury was out for 25 and a half hours.  It was unable to reach a unanimous verdict and came back with a majority verdict of 10 out of 12.

KIRBY J:   Was that in the second trial?

MR GRACE:   In the second trial.

KIRBY J:   I thought in the first trial there was a jury verdict of 10.  So in both trials there were jury verdicts of 10?

MR GRACE:   Both trials there was; 10 out of 12 for acquittal in the first and 10 out of 12 for conviction.

HEYDON J:   Is that relevant under Weiss?  Does not one examine the evidence rather than length of the retirement?

MR GRACE:   Weiss, of course, did not consider that particular issue.  Under Weiss strictly, no.

KIRBY J:   The length of time may be irrelevant but it is not uncommonly referred to.

MR GRACE:   Yes.  I do not know if I can assist your Honours any further.

GLEESON CJ:   Thank you, Mr Grace.  Yes, Mr Vandongen.

MR VANDONGEN:   If your Honours please, can I commence by giving a practical answer to your Honour the Chief Justice’s question to my learned friend about what was said by his Honour Justice Gibbs at page 388 of the decision in Storey and a practical answer in terms of the facts in this particular case.  In this case the drug‑dealing evidence, as it was called by the Court of Appeal, included not only the listening device material but the grinder and the scales that were located during the two searches. 

If we were here talking about the grinder and the scales as being the only evidence that was common between the two trials, one can see how what Justice Gibbs was saying at page 388 would have application.  It would not be a situation, notwithstanding the relevance of that evidence in the first trial, that a jury would be thinking as a matter of natural tendency that it would establish that the person was guilty of the first charge, and in those circumstances a warning would not be required.  The respondent’s central submission is that is precisely what occurred here even when you add into it the listening device material.

KIRBY J:   Also the ledger which was apparently used in the first and second trials.

MR VANDONGEN:   Yes, there was that common element.  The ledger, however, at the second trial was relied upon in a more specific sense in that in an entry which the accused admitted he had made on 29 May 2000, that there was an entry there which read “J, 55,000”, which linked directly in with the specific offence the subject of the second indictment.

KIRBY J:   The second indictment was from 18 May 2000 to 2 June 2000.

MR VANDONGEN:   Correct.  29 May being a relevant date, if one looks at the chronology, was when shortly after one of the offenders, Mr Di Lena, travelled to Queensland.  I think he travelled on 28 May 2000.  On 29 May there was this entry made of $55,000 and you need to take into consideration the evidence of Detective Steel, the detective that was called to give expert evidence about the value of the drugs, the 1.96 kilograms.

KIRBY J:   Was that given in the first trial?

MR VANDONGEN:   Not about this particular amount.  He gave general evidence of an expert nature in the first trial.  In the second trial he gave general evidence but particularly about the value of the particular amount of methylamphetamine, 1.96 kilograms.

KIRBY J:   But is this not your problem, that you have the first trial which deals with a long period, the second trial which deals with a shorter period which is totally contained within the longer period and you have common elements in the evidence and similar features of the charges and you have hanging in the air what on earth happened in that first trial which came out of the fact that the first trial came out and the jury are not told that the accused has the benefit of the acquittal in the first trial.

MR VANDONGEN:   Can I take that phrase “the benefit of the acquittal” as being the starting point because some content and ambit needs to be given to that particular phrase but ‑ ‑ ‑

KIRBY J:   Some content but here nothing was given.

MR VANDONGEN:   In determining whether or not the accused was entitled to the benefit of the acquittal at the second trial, standing here today some content needs to be given to what that means because, in our respectful submission, there is a confusion on the part of the appellant about what that means.  In fact, they appear to be submitting on two different levels what the meaning of that phrase “benefit of the acquittal” in fact contains.  The first is this issue of contravention of an earlier acquittal and reliance upon Storey.

GLEESON CJ:   Contradiction, you mean?

MR VANDONGEN:   Contradiction, yes.  The second basis is this issue of relevance which, in our submission, is a completely separate and distinct basis upon which one could argue that evidence of an acquittal could be placed before a jury.  The decision of Hess and the other decisions that my friend has mentioned are not decisions concerned with the incontrovertibility of earlier acquittals but to do with relevance, whether or not the acquittal is relevant for another purpose.  Those two principles, in my submission, need to be borne clearly in mind, that the two cannot be allowed to be confused. 

Your Honour Justice Kirby mentioned to me a moment ago that there was some overlap between two trials.  It is important, in our submission, and consistent with what your Honour the Chief Justice, Justice Hayne, Justice Gummow and Justice Gaudron said in Carroll to focus on the elements of the offence, the elements of the first offence in this particular matter, in order to determine whether or not there is some inconsistency between the way in which the evidence was used at the second trial and whether or not it controverted the earlier acquittal.

To that end, if I could refer your Honours to the indictments.  They are found in the appeal book at page 1 and in the respondent’s book of additional materials also at page 1.  There you will see – true it is that the earlier conspiracy alleges that the offence took place between a very large period of time, between April 2000 and March 2001, and that the second charge was wholly encapsulated within that particular time period.  The first charge, however, was an allegation that on an ongoing basis Mr Washer, Mr Whitsed and Mr Bowles had conspired together to supply a prohibited drug, namely methylamphetamine, during that period of time on an ongoing basis.

The second trial did not concern Mr Whitsed and Mr Bowles at all.  It concerned instead Mr Washer conspiring with Mr Di Lena and Ms Scott to obtain a specific quantity of methylamphetamine, 1.96 kilograms, from a source in Queensland, for it to be brought back to Western Australia and for it to be jointly possessed by Mr Di Lena and Mr Washer with an intent to sell or supply.  So, in our submission, two completely separate and distinct allegations, albeit that the second allegation was encapsulated in a time sense within the first allegation.

It is important, in our submission, when looking at whether or not there has been an inconsistency in the way in which the second trial was run, and in particular in relation to the use of the drug‑dealing evidence to focus on the elements of the first offence.  They are set out in our written submissions, but essentially there was this agreement between those particular people at that particular time to do a particular thing.

GLEESON CJ:   I guess we owe it to our federal system that the second offence was presented as a conspiracy at all because the second offence related to a particular drug deal, but what happened in Western Australia was the agreement because the drugs never made it to Western Australia.

MR VANDONGEN:   Yes, that is quite right.

KIRBY J:   But the commonalities we have are the times overlap, the offence is conspiracy in both, Mr Washer is in both, and each relates to a prohibited drug, each relates to the same prohibited drug, and the first count of selling and supply includes possession, and intent is common.

MR VANDONGEN:   When one is looking at the elements, there are no common elements between the two offences.  The elements of the first offence are an agreement between Mr Washer and two other persons named in the indictment and an intention on the part of Mr Washer, relevant to Mr Washer, to carry out the objects of that conspiracy.  They are the only elements.

KIRBY J:   But if the guiding principle is, as Lord Justice Auld said, a principle of fairness in the conduct of trials, successive trials, and I suppose non‑oppression, then you have to look at the extent of the overlap in fact I would have thought.

MR VANDONGEN:   If one goes beyond the elements of the offence to look to see whether there is an overlap, one gets then into questions of issue estoppel, in my submission, which in this country are no longer relevant in criminal proceedings since Rogers’ Case.

KIRBY J:   That appears to be an attack on Storey.

MR VANDONGEN:   No.  In my submission it is not an attack on Storey, if one looks at Storey in the context of what was said in Carroll.

GLEESON CJ:   I though the majority in Storey said that issue estoppel has no place in the criminal law.

MR VANDONGEN:   Well, not quite.  I think three of the Justices there made that conclusion.  The others left some limited scope for issue estoppel to arise, but certainly that was one of the questions that was before the Court in Storey’s Case, whether or not issue estoppel had any application in criminal proceedings.

GLEESON CJ:   But nobody is arguing issue estoppel here.

MR VANDONGEN:   Well, in my submission, they are in the sense that my friend to a question that your Honour put to him about the direction that would be given at the second trial clearly said that what would be directed is that the jury had a reasonable doubt about whether or not Mr Washer was a drug dealer at the earlier trial and that, in my submission, is issue estoppel.

GLEESON CJ:   Just a minute.  Mr Grace’s predecessor at trial was trying to get some evidence admitted.

MR VANDONGEN:   Yes.

GLEESON CJ:   Issue estoppel is not a principle you rely on in order to get some evidence in, is it?

MR VANDONGEN:   No, it is not, but the way in which ‑ ‑ ‑

GLEESON CJ:   The issue estoppel is not a principle you rely on in order to get the judge to direct a jury to a certain effect.

MR VANDONGEN:   No, but it is being put on the part of the appellant, although not expressly, that the earlier acquittal was controverted by the use of the listening device material particularly at the second trial, because the jury’s verdict in the first trial established that he was not a drug dealer.

GLEESON CJ:   That is the proposition that Justice Hayne raised a short time ago.  If there were any room for issue estoppel in the criminal law here, the point at which it would take effect would be at your attempt to lead evidence of the coffee grinder.

MR VANDONGEN:   Yes, it would, but when looking at this case and looking at the application of Storey’s Case which was concerned with directions that should be given by a judge, after evidence which has a tendency to controvert an earlier acquittal has been adduced, what is the content of those directions and more particularly for the purposes of this case, whether or not such a direction should be given.  The direction should be given if there is a risk, in our submission, that an earlier acquittal will be controverted by a jury either finding facts or reasoning towards guilt in a way which would controvert the earlier acquittal.  What my friend argues is that that would occur in this case because the jury would reason towards guilt in a way which was inconsistent with an earlier jury’s finding not beyond reasonable doubt that his client was not a drug dealer. 

In my submission, that is a reliance upon issue estoppel and not upon the principles of incontrovertibility of acquittals.  In our submission, what Storey’s Case is about at its heart is whether or not a direction should be given in circumstances where there is a risk that a jury will reason towards guilt, as I have said, or find facts that will necessarily controvert an earlier acquittal and it is easy to see in Storey’s Case on the facts there how that may have occurred because of the close connection between the forcible abduction of the woman and the later rape.

GLEESON CJ:   The Court actually held in Storey, did it not, that what the judge said was sufficient?

MR VANDONGEN:   Some of the Justices did.

GLEESON CJ:   But what was the actual decision in Storey?  I know this is frightfully old‑fashioned but what did Storey actually decide?

MR VANDONGEN:   It actually decided that the direction given by the judge was not sufficient to overcome the prejudice and the prejudice – when I talk about prejudice I am talking about in a sense that there was the risk of the earlier acquittal being controverted.  That is my understanding.

HEYDON J:   That is what three members of the majority said but Justice Jacobs joined them not on the ground of misdirection but on the ground of wrongful admission of evidence.

MR VANDONGEN:   That is quite right, yes, your Honour.

HEYDON J:   It strictly has not got a ratio decidendi.

MR VANDONGEN:   I thought I might be perhaps overstating it but that is quite right, yes.  Justice Jacobs ruled that the evidence itself was inadmissible.

GLEESON CJ:   Is it your submission that Z is inconsistent with Storey?

MR VANDONGEN:   Yes, it is, and it is for this reason – and one needs to go back to Garrett’s Case.  In Garrett’s Case Chief Justice Barwick, who gave the judgment on the part of the whole Court, held that where evidence was adduced at a trial which undermined an earlier acquittal which showed that the accused was in fact guilty of the earlier offence, it was not admissible and he did not go on to consider whether or not there was the need for directions, it was simply inadmissible.

Storey’s Case recognised that there may be instances where evidence of this nature may be adduced and be admissible because it did not contravene Garrett’s Case but nevertheless had a tendency to controvert an earlier acquittal.  In Z’s Case the nub of the decision was doing away with the distinction between evidence which showed that a person was guilty of an earlier offence in respect of which he or she had been acquitted and evidence which tended to show that he or she had been guilty of an earlier offence in respect of which they had been acquitted.

GLEESON CJ:   Now, insofar as you say in your submissions that there is a difference between Z and Storey, I take it you are not inviting us to depart from Storey?

MR VANDONGEN:   Had the grounds of appeal dealt with the issue of admissibility, then that would have raised the correctness of Storey, more particularly Garrett in light of Z.  The grounds of appeal do not raise issues of admissibility.  They assume the evidence was admissible and deal only with the question of the admissibility of the acquittal and the consequential directions in accordance with Storey.  Z says nothing about what directions should be given by a trial judge in circumstances where evidence of this nature is admitted, neither does Degnan, which is the New Zealand Court of Appeal decision which followed Z, and neither does the more recent decision of Gee which is referred to in my friend’s outline.  None of those decisions deal with this issue of the direction.

GLEESON CJ:   By “evidence of this nature”, do you mean evidence of the acquittal?

MR VANDONGEN:   No, I mean evidence which establishes the guilt of a person, or has the tendency to establish the guilt of a person, albeit that they have been acquitted of that offence.

GLEESON CJ:   There is no complaint about the directions that the trial judge gave to the jury on the strength of the evidence that was adduced in the present case.  The argument against you is that there should have been more evidence adduced, although there is a little uncertainty about how much more, and then the argument adds “and if that evidence had been adduced it would have been necessary for the judge to give a certain direction to the jury”.

MR VANDONGEN:   The respondent takes a slightly different position in relation to that.  If a direction should have been given, then it matters not whether the evidence of the acquittal should have been adduced in a formal sense or whether or not the trial judge should have merely informed them of the acquittal.  That possibility was left open in Storey’s Case itself that it may not be necessarily the case that there needs to be an evidentiary foundation for the direction.  It would either be through evidence adduced by the accused or by an admission made by the prosecution or by the trial judge simply informing ‑ ‑ ‑

GLEESON CJ:   But there would need to be an evidentiary basis for any explanation that you went on to give the jury about what they were to make of the earlier acquittal.

MR VANDONGEN:   Absolutely, yes.

KIRBY J:   But all of this is hypothetical because your predecessor at the trial took the objection, kept it out, and we therefore do not know what evidence would have unfolded in the course of the trial.  All we know is, rightly or wrongly, that the evidence was not placed before the jury.

MR VANDONGEN: Can I say, she took the objection at trial, but the objection was raised in a pre‑trial hearing under what was then section 611A of the Criminal Code which allows the trial judge, or a judge, to deal with preliminary matters as if they were conducting the trial.

KIRBY J:   What, at the pre‑trial the accused sought to adduce evidence of the acquittal?

MR VANDONGEN:   At the pre‑trial the issue was raised as to whether or not the Crown, or the State, could lead the evidence which came to be known as the drug‑dealing evidence.  It was objected to by defence counsel and it resulted in the ruling that your Honours will see in the appeal books from Judge Wisbey.

KIRBY J:   Is there a transcript of that application?

MR VANDONGEN:   There is.  It is not contained in any of the appeal books.

KIRBY J:   I would like to have a look at that.

MR VANDONGEN:   We can certainly arrange for that to be done.

KIRBY J:   Was there a ruling on it by the – was it the same judge as conducted the trial?

MR VANDONGEN:   Yes, it was, your Honour.

KIRBY J:   Did his Honour give a ruling?

MR VANDONGEN:   He did, your Honour.  It is contained within the appeal books.  I will get the reference in a moment.  There is an unreported District Court judgment by his Honour Judge Wisbey.

HAYNE J:   It is the judgment at pages 4 and following of appeal book 1 to which I had referred earlier.

MR VANDONGEN:   Thank you, your Honour.  It is not a particularly helpful judgment because it does not set out in any great sense the basis upon which his Honour overruled the objection, but certainly there were written submissions that were made by Mr Washer’s counsel during the course ‑ ‑ ‑

KIRBY J:   Where is this, I am sorry?  Is it in the respondent’s book of additional materials?

MR VANDONGEN:   No, it is in the appeal book, volume 1 at page 4.

KIRBY J:   I see.  In making the application at trial, did the accused’s counsel refer to Storey?

MR VANDONGEN:   Not in the transcript that I have read, no, but in the written outline of submissions, which was in a tabular form, counsel for Mr Washer referred to the fact that he had been previously acquitted of the first conspiracy, but there was no reference to Storey’s Case.

HEYDON J:   At the trial there was a reference to Storey’s Case.

MR VANDONGEN:   At the trial there was a very brief reference to Storey’s Case, yes.

KIRBY J:   This is in the pre‑trial we are talking about now. 

MR VANDONGEN:   Going back to the pre‑trial ‑ ‑ ‑

KIRBY J:   There was no reference to any authority on the matter?

MR VANDONGEN:   Not that I can recall, no.  But the issue of him having been previously acquitted was raised.

KIRBY J:   Where is that in Judge Wisbey’s ‑ ‑ ‑

MR VANDONGEN:   It does not find its way into the reasons of his Honour Judge Wisbey.

KIRBY J:   I think I would like to have a look at the transcript of the argument.

MR VANDONGEN:   We can certainly arrange for that to occur, your Honour.  In our submission, what is occurring here is two layers, as it were, of principle operating in relation to this issue of whether the evidence of the acquittal should have been admitted at the trial.  One relates to Storey’s Case and one relates to more general issues of relevance.  My friend took your Honours to the decision of Hess, which I will do so in a moment, from Alaska.  That case was not concerned with Storey’s Case, it was concerned with issues of relevance and what use a jury could make of an earlier acquittal as a fact in determining and assessing the credibility of a particular witness and assessing the propensity of the accused in this particular way, and I will come back to that in a moment.

GLEESON CJ:   This must be a practical problem that, in a sense, flows from separating trials.

MR VANDONGEN:   My friend incorrectly said that the two charges were originally joined in the one indictment, there was an application for severance which the Crown agreed to.

GLEESON CJ:   Some of the cases talking about the principles on which you sever trials refer to what they call a scandal of inconsistent verdicts.

MR VANDONGEN:   Yes.  In this case there would not be an inconsistent verdict situation.  The acquittal on count 1, the first conspiracy, can stand quite comfortably with the conviction on count 2, having regard to not only the elements but the factual basis upon which those two charges were based.

HAYNE J:   The very fact of severance is some indication of the separateness of the issues.

MR VANDONGEN:   Yes.

KIRBY J:   There were added parties and the complexity of controlling a trial with multiple issues presenting.  There is no doubt that there were elements that were different but there is equally no doubt that there were elements of overlap, and the question then is whether that being the fact, especially in the circumstances, some evidence of the acquittal should have been available to the accused, is something that he could place before the jury for forensic as well as legal purposes.

MR VANDONGEN:   And that is where the respondents say that the appellant divides off into the other area of principle, that is relevance.  It is not concerned with the issue of Storey’s Case and the incontrovertibility of acquittals.  I will deal with those in two separate headings.

GLEESON CJ:   All right.  Perhaps you can come to that after lunch, Mr Vandongen.  We will adjourn now until 2.00 pm. 

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Yes, Mr Vandongen.

MR VANDONGEN:   Thank you, your Honours.  Can I firstly deal with some housekeeping matters?  Can I ask your Honours to look at appeal book volume 2, page 668.  At paragraph 99 of the judgment of his Honour Justice of Appeal Roberts-Smith is set out the listening device recordings that were relied upon as drug‑dealing evidence.  Can I make this point clear?  The first listening device conversation dated 29 June 2000, which is referred to there, was not in fact relied upon by the State at the first trial.  There was a concession that was made, you will see, at paragraph 97:

that most, if not all, of the recorded conversations had been led against the appellant on his earlier trial.

That concession was not properly made or not correctly made.  In fact, that listening device conversation was not relied upon, as I said, at the first trial. 

KIRBY J:   I do not think this appeal is going to turn on that point.

MR VANDONGEN:   No, but your Honours were concerned to know precisely what constituted the drug‑dealing evidence and to make it perfectly clear that that was not included in it.   The other point to be made about that drug‑dealing evidence, particularly the listening device material, is that it would be wrong to classify it all as drug‑dealing evidence, evidence which was relevant to the issue of intent on the second trial.  In fact, a large proportion of the listening device material was directly relevant to the issue of whether or not Mr Washer was a party to the conspiracy alleged in the second trial.  We make that point in our submissions and we hope that we have made the point that those listening device recordings, insofar as they were relevant on a drug‑dealing basis was in a limited sense.  Some of the recordings, for instance, talked about the $55,000 that had been used by Mr Washer in the purchase of the drugs.

GLEESON CJ:   You mean to describe that as “propensity evidence” is an oversimplification?

MR VANDONGEN:   It is, your Honour.  We make that point in our submissions and at paragraph 5.5 of our written submissions we have, I think, made it clear by reference to the appeal book volume 1 the page references that we have particularly relied upon as drug‑dealing evidence.

KIRBY J:   I am beginning to wonder why you relied on it at all.

MR VANDONGEN:   One can understand why it was relied upon when it was evidence directly relevant to a conspiracy alleged and certainly, although it was not left this way by the trial judge, a matter which I will come to in a moment, those conversations which were directly relevant to the conspiracy were necessarily put in context by the drug‑dealing evidence.  The way in which the State put its case to the jury was that those earlier parts of those listening device conversations which concerned drug dealing generally put into a proper context what Mr Washer was recorded as saying later in those recordings concerning the particular conspiracy charged, although that was not the way it was left by the trial judge, a matter which I said I will come to in a moment.

Justice Hayne, I think, with my learned friend, asked the question whether or not – and this is in relation to the counsel for the co‑accused eliciting evidence that their clients had not been charged in relation to the first conspiracy.  At appeal book 194 in volume 1 at line 30 and following Mr Scudds who appeared for Mr Washer asked a series of questions of Detective Butler, the officer in charge of the case, which brought out the fact that Detective Butler had testified at the prior trial.  When one goes to the questions and answers that were put by defence counsel for the co‑accused, there they talk about “A few minutes ago you were asked questions about an earlier trial?---Yes.”  And the question then was “And that did not involve my client.”  It is a reference, in our submission, back to appeal book 194.

GLEESON CJ:   Mr Vandongen, when you said a moment ago that some of that evidence of intercepted conversations was not mere propensity evidence, did you mean by that that some of it was evidence of overt acts in pursuance of the conspiracy?

MR VANDONGEN:   No, they were not overt acts because the conversations took place after the finalisation of the second conspiracy, but they were characterised by the prosecutor at trial as evidence of admissions or statements against interests by Mr Washer. 

GLEESON CJ:   I understand that.  What is going through my mind is this.  I am wondering to what extent the particular problem that we are looking at in this case is a result of the circumstance that the two trials were for conspiracy, which is an offence that has certain particular characteristics.  Were any of the cases that have been referred to in argument directly or indirectly so far, cases like Z, Storey and the other cases, conspiracy cases?

MR VANDONGEN:   No, they were not.  Z was a sexual offence and the Crown in that case sought to rely upon similar fact evidence of prior sexual offences by the accused in respect of which he had been acquitted; equally in Degnan’s Case.

GLEESON CJ:   Putting to one side the coffee grinder and the scales, the particular feature of this case is that the conversations between Messrs Washer and Whitsed and Bowles were relied on at the first trial as overt acts evidencing the conspiracy.

MR VANDONGEN:   Yes.

GLEESON CJ:   But neither the conversations themselves nor the criminal tendency perhaps evidenced by the conversations constituted a crime or the crime charged.

MR VANDONGEN:   No, and I think the prosecutor at trial made the point rather succinctly that Mr Washer had not been acquitted of those conversations.

GLEESON CJ:   Whereas in all the other cases I think that have been referred to in argument so far, the conduct in question was a crime and was the crime that had gone to verdict.

MR VANDONGEN:   Which is why before the break I referred to the question of issue estoppel and submitted that that in fact is what my friends are relying upon in asserting that the earlier acquittal in some way tainted or coloured the evidence of drug dealing that was used at the latter trial in a way which showed that he was not drug dealing at the time.

GLEESON CJ:   There is a potential for confusion in thought here unless the particular characteristics of the crime of conspiracy are kept in mind.

MR VANDONGEN:   Yes, and the elements, in my submission, which is why before the break I also took your Honours to Carroll, which I will do in a moment, where your Honour in your Honour’s judgment made the point that incontrovertibility of verdicts of acquittal needs to be looked at in the context of the elements of the offence in respect of which there has been an acquittal, not in respect of the evidence that has been led.

GLEESON CJ:   Yes.  I think we had a similar issue in a Western Australian appeal not in relation to res judicata or issue estoppel but in relation to that unfortunate man who had said he made a mistake when he went fishing for lobsters.

MR VANDONGEN:   Yes, I know the case.  Although I do not know it intimately I know the case that your Honour is talking about.

GLEESON CJ:   The point – I think it was crucial.  I forget the name of that case now but what was crucial to the decision was the identification of the elements of the offence as distinct from the facts on which reliance is placed to prove the offence.

MR VANDONGEN:   That, in the respondent’s submission, is critical in this case in determining whether or not the principles in Storey have been breached by the failure to give a direction of the sort that was contemplated would need to be given in Storey.

GLEESON CJ:   Are there any cases in this line of country, Storey, Z and so forth, that deal with this problem in the context of conspiracy charges?

MR VANDONGEN:   Not that my researches have been able to find.  If I can take your Honours to Storey and to some of the parts of the judgment there that we, the respondent, rely upon.  Central to our submission is that Storey is authority – and perhaps before I go to this, your Honour the Chief Justice asked me before the break what in fact the question in Storey was.  At page 368 of the decision, Commonwealth Law Reports in the judgment of Chief Justice Barwick you will see there he refers to two questions that are raised and he has delineated them by the letters (a) and (b).

Whilst the case was about issue estoppel it did not resolve it given the way in which the judgments fell out.  Central to our argument, your Honours, is that Storey is authority for the proposition that a direction need only be given where there is a risk that a jury considering evidence that has been led at a prior trial will either find facts or reason towards guilt in a way in which will controvert or be inconsistent with the earlier acquittal.  It is the focus upon risk that the need for a direction falls to be considered. 

The word “tendency” is used in Storey’s Case and, in my submission, the word “tendency” there is not tendency in the sense of relevance.  One thinks of this Court’s decision concerning the issue of section 59 of the Evidence Act (Cth) concerning what “relevance” means in terms of a tendency to produce, in the minds of a jury, a question as to whether or not a fact in issue is more probable than not.  It is not used in that sense in Storey’s Case.  It is used in the sense that does the evidence have a tendency on its face to lead to the risk that a jury will reason in the way I have just described. 

Now, in support of that, your Honours, could I take you firstly to a part of a judgment of his Honour Justice Gibbs that your Honour the Chief Justice took my friend to before the lunch break.  It begins at the bottom of page 387 and goes over to the end of the first paragraph on 388.  This particular part of the judgment was relied upon quite heavily by his Honour Justice of Appeal Roberts-Smith in the court below as justifying a conclusion that in this particular case a direction of the sort ordinarily required by Storey, if the preconditions are met, was not required in this case.

What his Honour Justice Gibbs recognises there is that in cases where there is a commonality or a crossover of evidence, a warning will not always be required.  In our submission, it will depend upon whether or not there is a risk that a jury will reason in the way in which I mentioned a few moments ago.

That line of reasoning was also taken up by Justice Aickin at page 425 of that in the first complete paragraph beginning “It will in every case” and Justice Aickin’s reasons Justice Stephen agreed with.  None of the other judges dealt with this and it is perhaps not surprising that they did not because of the facts in Storey itself where the issue of the forcible abduction with the intent to carnally know the woman in question was so inexorably linked to the issue of her later rape that it would not have appeared to be – the direction would have been required in those circumstances because of that inexorable link, but at least the other Justices dealt with this issue of risk.

Now, Chief Justice Barwick at page 372 in the third paragraph which begins, “The correct principle relevant” - at the bottom of that paragraph the sentence beginning, “Where evidence which would tend to prove” ‑ ‑ ‑

KIRBY J:   Do you accept what Chief Justice Barwick says?

MR VANDONGEN:   Yes, your Honour.  It is implicit in what he says there, in our submission, that if there is no risk that the jury would use the evidence in the way there, that is in the way of controverting an earlier acquittal, then there is no need for a direction.

Justice Mason dealt with the issue at page 397 in the first complete paragraph beginning, “Compliance with the principle” and in particular the sentence beginning, “The ground of that decision implicitly acknowledged”.  Then, if I can take your Honours to page 398 to the paragraph beginning, “Fairness to the Crown” and to the last seven or so lines beginning after the quote, “he did not give sufficient emphasis”.  Justice Jacobs on page 408 at the bottom of the page, the sentence beginning, “Consequently, every effort should be made at the later trial to avoid evidence” - and over the page.

What those passages show, in our submission, is that what the concern was in Storey was this issue of risk, whether or not there was a risk that the jury would find facts or reason in a way which would controvert or be inconsistent with the earlier acquittal.  The question that then arises in the context of this appeal is, was there such a risk?

Before I go to that, if I can ask your Honours to look at Carroll’s Case, and the point of looking at Carroll’s Case is to make this point that when we are looking at the issue of controvertibility or incontrovertibility of acquittals, it is a focus on the elements of the offence in respect of which there has been an acquittal.  At page 649, in the joint reasons of your Honour Chief Justice Gleeson and Justice Hayne, at paragraph 40, particularly the last four lines where your Honours make the point that:

the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.

In our submission, when your Honours said “issues” your Honours were referring to the elements in issue at the first trial.

GLEESON CJ:   Yes, but in the present case was there a risk in relation to those intercepted conversations, that the jury would use them to say, “Here in those conversations we hear Washer making an agreement with Bowles and Whitsed to supply drugs of much the same kind as is alleged in the present case, and we will treat his propensity to make agreements with people of that kind - makes it easier for us to conclude that he made such an agreement with Scott and the other persons”?

MR VANDONGEN:   The respondent says no, and to answer that question I need to go to the directions that were given by his Honour, because the question of whether or not that may have occurred, whether there was a risk of that occurring, needs to be looked at in the context of the way in which the jury were directed to use the evidence, and if I can ask your Honours to look at volume 1 of the appeal book and ask your Honours to first go to page 155 of the appeal book at line 18.

Before going to what his Honour directed the jury there, this is a direction given to the jury in the course of the trial.  It is a direction given immediately after some of the recorded conversations have been played to the jury, and your Honours will see at page 150 the “Compact disc” that contained the recorded conversation was tendered at page 150, and that some of the conversations that were relied upon were then played, including on page 154 the “listening device” conversation which forms part of the “drug‑dealing evidence”, so‑called, the recording on “30 June 2000” which appears at the top of page 154.

What his Honour did then on page 155 is perhaps contrary to the way in which the State wished this evidence to be left.  He narrowed it specifically down to the issue of intent.  What his Honour said in relation to this issue of propensity is that:

it is not evidence that can be used in determining whether the accused conspired to obtain the methylamphetamine.  [Its] use will only be if you are satisfied that the accused conspired to obtain the methylamphetamine.  You could then look at it in determining what his intention – whether it helped you in determining what his intention was to do with the methylamphetamine, if acquired.

So the jury could only use this drug‑dealing evidence in relation to the issue of Mr Washer’s intent which, as an aside, was not an element of the offence in the second conspiracy.  They could only use it in that way after they had found that he was a party to the conspiracy alleged, in the limited sense a party to a conspiracy to possess the methylamphetamine.

Now, his Honour returned to that – that is in the course of the trial.  His Honour returned to the issue of how that evidence could be used when he summed up to the jury at page 346.  The relevant direction begins at around about line 17, the sentencing beginning “The state says to you in respect to the recorded conversations” and it finishes in the paragraph beginning before around about line 38. 

He repeats with the direction that he gave earlier, that it is only to be used after the issue of conspiracy to possess has been found by the jury and then only in relation to the issue of Mr Washer’s intent.  I said before as an aside that it was not element.  Strictly speaking his intent was not an element of the offence of conspiracy to possess with intent.  The elements were an agreement to possess with intent to sell or supply and an intention to carry out the objects of that conspiracy.  Where Mr Washer’s intent was relevant was not as an element but as a step towards reasoning that the conspiracy extended beyond possession into the realms of possession with intent.

GLEESON CJ:   As has been pointed out on a number of occasions already, seems like pushing at an open door.

MR VANDONGEN:   Yes, your Honour.  Certainly I will be making those submissions in the course of some brief submissions on the proviso.  His Honour returned again to emphasise the limited purpose to which this evidence could be used at page 357 of the appeal book.  He is there dealing with the issue of intent in terms of the intent to carry out or further the objects of a conspiracy.  At line 25 he returns to the issue of intent to sell or supply methylamphetamine and repeats what he has said on two previous occasions about the limited use to which this evidence could be put.

KIRBY J:   These passages on 346 and 357 were read to us.

MR VANDONGEN:   No, we are not going to read them to your Honour, just referring them to you.  They are important, in our submission, not for the purposes to which you were taken before but to put in context this issue of whether or not there was a danger, a risk that the jury would have controverted the earlier acquittal because the jury were told you can only use it in this way.

GLEESON CJ:   Look at page 357, line 26:

you would be entitled to look at the amount of the drug and –

I think there may be a word out of place there –

the accused person’s involvement in the dissemination of drugs in the period immediately or reasonably approximate to the offence –

Again, it depends at the level of particularity or generality with which you express this concept of involvement, but at one level of particularity that could refer to an agreement between the accused and Bowles and Whitsed.

MR VANDONGEN:   It could, but if your Honour goes back to what Justice Gibbs said, that would hardly have occurred to the jury in this case because it was being put in the limited sense in relation to Mr Washer’s intention, whether Mr Washer was involved in the dissemination of drugs personally and from that whether or not he had the necessary intent, particularly when it was coupled with some directions that his Honour gave at pages 368 and 381.  At 368 at about line 15, the sentence beginning:

He says that the recorded conversations, some of them between Washer . . . Whilst I have mentioned Whitsed and Bowles, reference has been made by counsel to them, you are not to involve yourselves in speculating about Whitsed and Bowles.  Your task is to address the indictment that is presently before you and the people on that indictment.

His Honour returned to that question at page 381 at the top of the page.

KIRBY J:   On one view that is - I mean it is an understandable direction given his ruling, but it is a negative direction not to even speculate that Washer may have been acquitted.  So it is far from adding to the scales on the other side.  It really subtracts.

MR VANDONGEN:   In the sense where we are dealing with the question of whether there was a risk that the jury may have controverted the earlier acquittal it is an important direction and it does not subtract anything from the defence case, in my submission.

KIRBY J:   Well, the defence case in this respect never got before the jury.

MR VANDONGEN:   No, but in my submission, what your Honour is putting to me comes and it may be of relevance in the second question, whether or not this evidence was relevant for another purpose, not in the sense that it was controverting the acquittal but whether it had some other work to do, some other part to play in the trial.

So having regard to those directions, it was the limited way in which the jury was to use this evidence.  What the State invited the jury to do in those contexts was to use the drug‑dealing evidence in this way, to reason that the appellant personally was engaged in the business of dealing in drugs at a time proximate to the allegations in the second indictment and that as a result, if the jury found that, having already before they embarked upon this reasoning process, having found that he was already a party to the conspiracy to possess, if the jury followed his Honour’s directions which they must have done, that from an inference that he was engaged in the business of dealing in drugs, the State sought to draw a further inference that he had the particular intent at the time.  It was limited to that purpose only.

Nowhere in that reasoning process, in our submission, was there a danger that the jury would find facts or reason towards that guilt or reason towards intent in a way which would controvert the earlier acquittal in a way in which the jury would find, positively find the existence of any or all of the elements of the first offence.

GLEESON CJ:   I think we were told by Mr Grace earlier that there was no particularisation of the overt acts in the second trial.

MR VANDONGEN:   There was.  There was a letter that was sent some time before the trial.

GLEESON CJ:   Is that in evidence?

MR VANDONGEN:   No.  I hasten to rely on that letter in any way because the letter from the State prosecutor set out particulars for both conspiracies.  When it came to trial for the first conspiracy the particulars changed somewhat and appeared in the form in which they appear in the respondent’s additional material.

GLEESON CJ:   Is the opening address of counsel for the prosecution recorded?

MR VANDONGEN:   Yes.  For the second trial?

GLEESON CJ:   For the second trial.

MR VANDONGEN:   Yes.

GLEESON CJ:   Did that in at least informally particularise the overt acts?

MR VANDONGEN:   Informally, yes, it did.

GLEESON CJ:   Did it say anything that was relevant to the argument with which we are now concerned?

MR VANDONGEN:   It did.

KIRBY J:   We were read part of that, were we not?

MR VANDONGEN:   You were taken to it this morning by my friend.  Of particular relevance to this is page 14 of the appellant’s additional book of materials and the bottom paragraph beginning “This kind of evidence about drug transaction”.  But I hasten to say again that that is not the way in which the evidence was left to the jury by the trial judge.  In fact, after the trial judge gave those directions limiting it to intent, the prosecutor complained and referred to his Honour’s earlier ruling that it was relevant in the way in which the State had opened its case.  His Honour refused to direct the jury in the more amplified form in which the State put its case in opening.

To round off the submission, perhaps by repeating myself, but in the process of reasoning that the jury was invited to proceed upon in the context of the directions there was no risk that they would have made any findings or conducted any reasoning that would have controverted the earlier acquittal in accordance with Storey.

Can I move on now to deal with what, in the respondent’s view at least, is the second basis upon which the appellant argues that evidence of his acquittal should have been allowed to be tendered or adduced at his trial.  If your Honours look at paragraph 11 of – I do not take your Honours to it now, but if your Honours look at paragraph 11 of the reply that was filed in this case, the appellant specifically says that evidence of the actual acquittal, putting aside how the acquittal came about, was relevant to the question of whether the talkers in the listening device conversations were speaking about drugs in the drug‑dealing evidence.  That is, in a sense, the way in which the appellant says, independently of Storey, this evidence should have been allowed to have been adduced. 

In support of that assertion, the appellant has referred to a number of cases.  Before I go to those cases there are some fundamental problems, in our submission, with a reasoning that is invited by paragraph 11 of the reply.  In our submission, the reasoning towards relevance proceeds in this way.  The appellant was acquitted of the first conspiracy.  The evidence at that trial was the listening devices and it was asserted by the prosecution during the first trial that what they were speaking about, what Mr Washer was speaking about in those listening devices, was drugs.

It follows from that, so the appellant’s argument goes, that because he was acquitted at the first trial it follows as a matter of necessity that the jury found that he was not talking about drugs in the listening device conversations.  That is the process of reasoning which the respondent says is the process that is being sought to be used in order to justify evidence of the acquittal as being relevant independent of the issues in Storey.  There are some fundamental problems with that reasoning process, in our submission.  Firstly, the verdict of acquittal in no way says anything about whether or not Mr Washer was talking about drugs in those listening device conversations.

KIRBY J:   We just do not know.  It is completely enigmatic.

MR VANDONGEN:   In order to reach the conclusion that that is what they found, firstly, there would need to be an assumption that the jury is an homogenous unit.

KIRBY J:   All Mr Grace has said is it is relevant to the question.  What the jury makes of it is the jury’s business.  You want to deny the jury the entitlement of hearing this.  It was the accused who had a lot of problems in his case and wanted to have it before the jury. 

MR VANDONGEN:   The respondent’s position is that it was not relevant.

KIRBY J:   We have not yet got in this country to the position that the accused is just supposed to roll over, legs in the air and say “I give up”.  I mean, that is not the way it happens in this country.  People have a right to defend themselves.

MR VANDONGEN:   Certainly, your Honour, and the respondent is not in any way arguing that they do not have that right.

GLEESON CJ:   That is what we need to know.  If the evidence had got in it was not just going to be hanging there.  Counsel were going to address about it and the judge was going to direct about it.  So if the evidence was relevant and was admitted we need to understand what the defence counsel could have said to the jury about it in his final address and what the prosecutor could have said to the jury about it in her final address and what the judge should have said to the jury about it in the directions because that is all bound up with the question of whether the evidence got in.  Once it got in it was not just going to hang there.

MR VANDONGEN:   No.

KIRBY J:   We will never really know that because your predecessor objected to it and it did not get in, so all of this is a hypothesis we are playing with.  The preliminary question is, should it have got in, then we would have had a concrete case which courts can bite on and say that should not have been said or that part should not have been admitted or these directions should have been given.  Instead of that we are playing with phantoms because we just do not know.  We do not know because of something that happened in your camp.

MR VANDONGEN:   In our submission, your Honours, the first question is whether or not evidence of the acquittal was relevant to any of the facts in issue in the trial.  If it was not relevant to a fact in issue, it was not admissible and having regard to the reasoning process that I have just outlined which in the respondent’s submission is the reasoning process which is being invited by the appellant in this case, it does not demonstrate relevance.  There are some fundamental difficulties with it.  Firstly, as I have said, the jury’s verdict says nothing about whether or not the jury was satisfied or not satisfied that Mr Washer personally was dealing in drugs.

It is based on an assumption also that the jury is an homogenous unit, that all of the members of the jury reached the acquittal verdict by way of the same path.  There is no way of knowing whether 10 of the jury, eight of the jury or whatever number made any conclusions about whether Mr Washer was dealing in drugs.  It is further ‑ ‑ ‑

KIRBY J:   That seems to me to be against you because the very enigmatic character of jury verdicts is a reason why courts cannot, as it were, try to work it out logically. It has to be entrusted to the jury to make of it what they will. That is our system. You may say a lot of European people think the jury system is crazy, and there is discussion about this in the context of the European Convention, but it is our system, and it is in our Constitution.

MR VANDONGEN:   The difficulty, though, your Honour, is that for it to be led in this way in the favour of the accused would deny the fairness that is to be accorded to the prosecution because there is no way of knowing how the jury arrived at their acquittal and particularly no way of knowing whether or not they reached any view about Mr Washer’s ‑ ‑ ‑

GLEESON CJ:   But surely the jury would not be invited by the judge to psychoanalyse the earlier jury.  The question is what the jury at the second trial could legitimately have made of the evidence.  That is the question that determines whether the evidence is relevant.  If there was anything favourable to the accused that they could legitimately have made of it then the accused was entitled to have it.

MR VANDONGEN:   I agree.

GLEESON CJ:   So the question we have to ask ourselves is not what reaction the jury might have had – we cannot guess that.  The question we have to ask ourselves is – and if this is the question of relevance – what was the use the jury could legitimately have made of that evidence if they had received it, and that was a matter about which the trial judge would have had to give them directions.  Now, the question is, why do you say, as you have to say, that there is no legitimate use favourable to the accused that the jury could have made of that evidence if it had been received?

MR VANDONGEN:   Because there is no way of knowing what process of reasoning the jury went through in the first trial.  They may have, as it was in issue in the trial, concluded that Mr Whitsed, the co‑accused, was not in fact one of the people speaking on the listening device conversations.  One of the defences that was put by Mr Whitsed was, “It’s not me”.

GLEESON CJ:   Suppose the evidence had got in and the judge had then directed the jury, not by some generality such as, “Give them the benefit of the acquittal” but the judge had directed the jury by saying to them, “You may not hypothesise, assume, guess, speculate that Washer and Bowles and Whitsed made an agreement to supply methylamphetamine and the reason you may not do that is because he has been accused of that, charged and tried and acquitted and that is the beginning and end of it.”  Now, the question is, if that had happened, would that have protected the accused against some form of impermissible reasoning that the jury might otherwise have engaged in?

MR VANDONGEN:   No, your Honour, because there was no process of reasoning open to the jury which would have involved them reaching such a conclusion when, having regard to the directions that were given, that is limited to Mr Washer’s intent, there was no part of that reasoning process that the jury would have found as a fact that he had conspired with Mr Bowles and Mr Whitsed in the manner alleged in the first count, the first indictment.

Can I perhaps – I am reluctant to go to cases but it may be of use to look at the way in which acquittal evidence has been used in other cases where it has been held to be relevant where the issues before the jury at the first trial were obvious and as a result of which the acquittal evidence – the evidence of the acquittal – was relevant to an assessment of something - a fact in issue - at the second trial.

There are some cases referred to in the case of Hui Chi‑Ming which is referred to in our outline of submissions.  I do not need to take you to those but I will refer to them.  They are referred to in there and they are also referred to in our outline of submissions.  The first case which is a case of Hay (1983) 77 Cr App R 70 concerned two charges – one charge of arson and one charge of burglary in relation to Mr Hay. The trials were separated and Mr Hay went to trial on the first charge - I think it was either the arson or the burglary charge, I cannot remember as I am standing here – but the only evidence relied upon by the Crown in proof of that count was a confession and the confession was not just a confession to that first count but it was a confession to both counts, the burglary and the arson. He was found not guilty by the first jury of the burglary charge and it followed from that the jury were not satisfied, necessarily not satisfied beyond reasonable doubt that the confession was true.

HAYNE J:   That is a variant on Rogers, is it not?

MR VANDONGEN:   It is.  It is…..Rogers but it must be said that these cases occurred after the issue of issue estoppel was held not to be applicable in the criminal proceedings in the UK.  I am thinking of Humphry’s Case and the like.

HAYNE J:   What unites those cases is analysis first, at the level of elements of offence; second, at the level of issues in the case.  So in Storey the acquittal for the abduction with intent was relevant and the acquittal of that was important because the rape was said to have occurred after what had earlier been alleged to be a forcible abduction from the station.

MR VANDONGEN:   Yes, your Honour.  That is Hay’s Case and what happened there was, in the second trial, that is the trial of the arson count, the evidence was sought to be led of the fact that he had been acquitted in the first trial as being relevant to the issue of whether or not the confession was true.  That is not this case here.  The jury’s verdict is opaque in this particular case.  The other case that is referred to is one of Dootsi and in Dootsi’s Case again there were two trials some six months apart.  The first trial concerned a drug matter as did the second trial.  What was common between the two trials was the police officer who arrested Mr Dootsi.

In Dootsi’s Case, when the appellant sought to cross‑examine the police officer about the fact that he had been acquitted in the first trial, the trial judge upheld a prosecution objection and refused to admit the evidence of the acquittal and on appeal that was held to be a correct decision because at that point in time the evidence of the acquittal was not relevant.  When it came time to cross‑examine the accused, the prosecution cross‑examined him about his record including a conviction which related to the first trial.  He had been convicted at the first trial but also acquitted of another count.  So the prosecution seeking to impugn his character cross‑examined the accused about the conviction that arose out of the first trial but did not mention the fact that he had also been acquitted.

In re‑examination of the accused the appellant’s counsel sought to adduce evidence of the fact that he had been acquitted and on appeal, as a matter of fairness and relevance, the Court of Appeal said that he should have been permitted to have adduced that evidence in re‑examination; a different situation to here.  One can see the relevance there in addressing the imbalance that had occurred as a result of the prosecution cross‑examination.

GLEESON CJ:   I understand the argument against you to come down to this, and put aside the coffee grinder and the scales.  On the issue of intent to dispose commercially of this quantity of drugs once it made it from Queensland to Perth, it was relevant for the jury to consider that your client was in the business of dealing in drugs.  An example of his doing such business or engaging in such business was his making an agreement with Bowles and Whitsed to supply drugs.  That, as I understand it, is the essence of the case against you.  Why is that not an aspect of the way the jury were left to consider this case if they wished?

MR VANDONGEN:   We say that it would not have occurred to the jury to reason in that way and we rely upon what Justice Gibbs said in Storey’s Case, that a direction is not always required.  It is only required when the tendency is on its face and where it is not something that the jury would necessarily have been speculating about – about whether or not there had been a conspiracy.

GLEESON CJ:   Does that amount to the proposition that whatever agreement, if any, there might have been on foot between Bowles and Whitsed was not relevant to the way the jury were invited to reason about this evidence?

MR VANDONGEN:   Yes.  It was not concerned with whether or not Mr Washer had struck any sort of agreement with Bowles and Whitsed as a combination.  It was concerned with whether or not Mr Washer was dealing in drugs.

KIRBY J:   The difficulty with that proposition, however, is that what the jury make of it is for the jury and one suspects that sometimes juries, like lay people generally, simply ask the question, “Is this a good or a bad man?” and if they are told that the earlier jury has concluded that he was not guilty, acquitted, ie, innocent in law, then, at the very, very least it means that in their process of reasoning on this case, which overlaps the earlier case, that they would scrutinise the evidence more carefully and in fairness should have that element added to the scales.  That essentially is what Mr Roberts says in his article.

MR VANDONGEN:   What Mr Roberts says in his argument is ‑ ‑ ‑

KIRBY J:   A question of fairness.

MR VANDONGEN:   He does cast it in the terms of question of fairness, but, in our submission, fairness is not the basis of admissibility.  It must be relevance.  If it is not relevant it is not admissible on any basis.  I think from memory Professor Roberts acknowledges, and with reference particularly to the decision of Dootsi, that finding a clear principle – a principle basis upon which evidence of an acquittal is admitted, is difficult when one looks at the case of Hay, Dootsi and other cases.

KIRBY J:   Well, I have no doubt that there would be cases where the earlier file grows more and more irrelevant.  Where you have the commonalities that exist in this case, most especially the contemporaneity, the identity of the drug, the importance of intent, then it is very difficult to say that it is not relevant.

MR VANDONGEN:   Well, at the risk of repeating my submission, the respondent’s position is that it is not relevant.  The case of Hui Chi-Ming makes it clear that, generally speaking, evidence of an acquittal is not relevant but recognises that there had been exceptional cases in which it has been admitted and it refers to the case of Hay and another case of Cooke (1986) 84 Cr App R 286 and the case of Dootsi which I have mentioned.  What is clear in each of those cases is that they themselves recognise that they are exceptional cases.  The case of Hay, the Court of Appeal there recognised expressly that it was an exceptional case in which evidence of the earlier acquittal was relevant to this issue of whether or not the confession in that case was reliable or not.

My friend places some reliance on the decision of Hess from the Supreme Court of Alaska.  It is important in my submission to look at Hess carefully to appreciate that in Hess – and this hearkens back to a question or a proposition put to me by Justice Hayne that one needs to focus on the elements and that is precisely what happened in Hess.  By way of background in Hess, Hess was charged with an offence of sexual assault in the first degree which required proof of sexual assault and reckless, as it were, reckless indifference as to the complainant’s intent.  They were the elements of that particular offence.

He was charged and the prosecution sought to lead evidence of a prior sexual assault against the woman, AS, in exactly the same charge of sexual assault in the first degree with the same elements.  What happened in the trial of AS was that Mr Hess was found not guilty but found guilty of an alternative offence – an alternative offence of sexual relations with a child.  It was necessarily implicit in the jury’s verdict in the case of AS that they had found in his favour that he did not recklessly or have a reckless indifference towards the complainant’s consent.

Now, that is important because that is the very basis upon which the prosecution sought to rely upon the evidence of AS in establishing a propensity on the part of Mr Hess to engage in sexual intercourse with women with reckless indifference to their consent, in particular, in the particular case, the complainant, HS, in this case.  So whilst the court there held that the evidence of the acquittal was relevant, it was relevant because of the way in which the earlier trial had been fought and the jury’s verdict, and it was relevant because it went to the issue of his propensity in relation to a particular element of the offence.

KIRBY J:   Could that happen here, that if a person denied an offence with A, that the prosecutor could call B to prove that he had committed the offence he was alleged to have committed against A with B?

MR VANDONGEN:   No.  In the UK, Z’s Case would allow you to ‑ ‑ ‑

HAYNE J:   We decided that point in the Queensland similar fact case, did we not, recently?

MR VANDONGEN:   In Phillips Case, yes.  At page 602 of our additional book of materials, volume 2, in the second column, the very last sentence or partial sentence of the judgment there, the court makes this comment:

Thus, the peculiar circumstances here make the acquittal on the sexual assault charge potentially useful in deciding whether Hess had a propensity to recklessly disregard a companion’s wishes.  The acquittal was therefore potentially useful in deciding whether he recklessly disregarded H.W.’s lack of consent.

That came about in the peculiar circumstances because of the way in which the earlier trial involving AS had resolved itself, resolved itself in a way in which it was obvious that the jury had rejected the prosecution’s case in relation to whether or not he had recklessly disregarded AS’s consent.

The other case that I wanted to take your Honours to was the case of Terry and Colman which is relied upon by my friend.  It is set out in the same book at page 605.  I think your Honour Justice Kirby referred to what Lord Justice Auld said in that case.  The first thing that needs to be made clear is that the issue of whether or not evidence of the acquittal was admissible was not in issue before the Court of Appeal.  The issue before the Court of Appeal was what consequences flowed from the admission of the acquittal.  What was argued was that the acquittal established that the appellant was innocent of the counts in respect of which he had been acquitted.

KIRBY J:   Did any of their Lordships cast doubt on the admissibility of the evidence of the acquittal?

MR VANDONGEN:   No, they did not but it was not a ground of appeal, it was not a subject of the appeal.  What happened in Terry’s Case was that I think there were nine counts relating to a burglary crime spree centring around the theft of a particular motor vehicle in which police had put a listening device.  What was in issue at the trial was whether Terry was in the car making the incriminating statements at the time they were being recorded.  It was a question of identity.  In four of the counts the prosecution relied only upon the evidence of a voice identification expert who gave evidence that her evidence could not stand alone in identifying Terry but that it would support other evidence establishing that he was in the car.

Because that was the effect of the expert’s evidence, the trial judge directed the jury at the trial to enter verdicts of acquittal in relation to those four counts.  The defence then sought to call those acquittals in aid at the very same trial in order to establish the positive fact that Mr Terry was not in the car on those four occasions, with the consequence that he was also not in the car when the other conversations were recorded.  That was rejected by the Court of Appeal as being an appropriate way in which to use the evidence of the acquittal.  Whilst not doubting the propriety of putting the acquittal before the jury in that case, it was not to be used for that purpose.

GLEESON CJ:   What did they say it could be used for?

MR VANDONGEN:   It is difficult because it was not part of the argument, but at page 611 at the bottom of the page is the actual direction that was given by the trial judge.  It was:

“a not guilty verdict is conclusive of the innocence of that particular defendant on that particular charge –

and then, importantly, went on to say –

but of course it has no further significance, it does not have any impact on the remaining charges which it is your duty to try.”

I do not hear the appellant arguing that that is the sort of direction that is sought in this case.

GLEESON CJ:   But a useful practical test of the relevance of evidence is to ask yourself, if the evidence gets in, what is the judge going to tell the jury about how they can use it?  The test of whether evidence is relevant is whether it has probative value in respect of some fact in issue or some fact relevant to a fact in issue.  So the second point that Mr Grace raises in his appeal is intimately connected with the first point.

MR VANDONGEN:   Yes.  We say it is not relevant.  The process ‑ ‑ ‑

GLEESON CJ:   In the English case that you are referring to, the Court of Appeal decided what use could not be made of it, but did not say anything about the use that could be made of it.

MR VANDONGEN:   No, they did not and in my researches there has been no decision that I have been able to find that deals with this question.  What they did say is they did not criticise the direction that was given and it was a very limited direction and it is not one which would have assisted Mr Washer in any sense, in my submission.

HAYNE J:   It would not have assisted the jury either.  It would not have assisted the jury much, would it?

MR VANDONGEN:   No.

KIRBY J:   It would depend on what was said by counsel.  I mean after all it is conclusive of the innocence of that particular charge, and then it would depend upon what was the relevance of that particular charge which would no doubt have been the subject of addresses.

MR VANDONGEN:   I might be wrong, but I think the judgment dealt with what counsel said and counsel was told by the trial judge that if he dealt with the acquittal evidence in a way in which suggested innocence of the first four counts, it would entitle the prosecution to then adduce further evidence in rebuttal to establish that he was in fact in the car, in other words, to lead the evidence of the voice expert.

KIRBY J:   All of this is against the background of the binding rule in Z which his Lordship refers to earlier in that passage, which is different from ‑ ‑ ‑

MR VANDONGEN:   It is in a sense, but it is not, because in this case we are dealing with evidence that has been admitted.  So in a sense, Z is irrelevant to that question.  The question then becomes what direction is required, if any.  Terry and Colman’s Case is perhaps the closest example post Z - in fact the only example we could find that deals with this issue of the direction to be given.  But again that particular case was peculiar, in our submission, going back to this issue of relevance, because it was in the same trial and it was immediately apparent why the verdicts of acquittal had been entered, because the prosecution was unable to establish that he was in the car.  That is not this case here.

Now, your Honours, can I conclude my submissions on that point with one proviso, and that is to go to the proviso?  Can I ask your Honours on that point ‑ ‑ ‑

KIRBY J:   Is this the new form of proviso in Western Australia or the old form?

MR VANDONGEN:   The new form, your Honour.

KIRBY J:   The new form?

MR VANDONGEN:   Yes.  The Court of Appeal was dealing with the question in the context of the Criminal Appeals Act 2004.

GLEESON CJ:   Say that again, please?

MR VANDONGEN:   Criminal Appeals Act.  It is in our list of statutes, your Honour, the relevant section.

GLEESON CJ:   Yes.  Criminal Appeals Act what?

MR VANDONGEN:   2004.  Section 30.

GLEESON CJ:   Thank you.

MR VANDONGEN:   The proviso section is in section 30(4).  My friend reminds me it is attached to the back of our submissions.  Can I very briefly deal with the issue of the proviso?  Can I ask your Honours to look at appeal book volume 2 and particularly to page 664?  Can I preface my remarks to what I am going to take your Honours to there.

If it is taken that the directions of the trial judge limited the use to which this evidence could be put, then whether your Honours are dealing with the issue that arose in Storey’s Case in terms of whether or not this evidence controverted the earlier acquittal or whether there was a risk that that would have occurred and a direction is required or if your Honours are looking at it from the point of view of just general relevance, in our submission, it is very important to appreciate that it only went to this issue of intent and Mr Washer’s intent particularly.

Now, I think both your Honour the Chief Justice and Justice Hayne have already remarked quite strongly about the fact that we were dealing here with 2 kilograms of methylamphetamine.  At the appeal, at paragraph 75, my learned friend who appeared for Mr Washer, it is recorded:

argued strongly that the challenged evidence –

that is the evidence that we have been discussing –

ought not to have been admitted because it did not go to any contested issue in the case. 

Justice Roberts‑Smith goes on to quote my friend from the appeal:

“there was going to be no issue about the possession of the necessary intent because after all possession of two kilograms could hardly be said by anyone to be for their personal use, it had to be with an intent to sell or supply” . . . prior to the trial before any evidence was heard before the jury counsel had already told his Honour the issue of intent was not an issue.”

There is a further passage at paragraph 77, but on page 665.

KIRBY J:   What is the page of Justice Roberts‑Smith’s statement there?

MR VANDONGEN:   The page of the appeal book is 664 and this is in volume 2 of the appeal book and I have referred there to paragraph 75, your Honour.  The issue is further taken up on page 664 where it is confirmed that my friend said to the Court of Appeal below that “intent was not an issue” at the trial.  At paragraph 93 on page 667, the last two sentences beginning:

The evidence also tended to prove the element of intent to sell or supply.

Importantly it said:

Indeed, it was not put otherwise either to us or at trial:  the argument was not that the evidence did not have probative value in that way, but rather that it ought not to have been led because it was unnecessary as that element was not in issue.

HEYDON J:   Everything is in issue unless there is a formal admission, is it not?

MR VANDONGEN:   That is right.  In terms of looking at the proviso it is, in my submission, significant that counsel at the court below was telling the court that it was not in issue.  The court below specifically made mention of the fact that there had been no specific admission.

HEYDON J:   Yes.

KIRBY J:   This, of course, is at the level of the Court of Appeal after the trial which has been conducted on the particular basis and he is trying to make the most that he can of the situation that he then faces, but the question is anterior to that.  It is whether or not in the trial the accused ought to have had this ingredient in his armoury or be denied.

MR VANDONGEN:   Yes, that is an anterior question, but of course what was said in the Court of Appeal and what is obvious, in our submission, from the quantity of drugs involved was that intent was not an issue.  That is extremely relevant in considering whether or not the proviso has any application in this case.

GLEESON CJ:   But if the trial judge had allowed the evidence in and had given the jury the direction that I mentioned earlier – that is, had said to the jury, “This man has been acquitted of making an agreement with Bowles and Whitsed and whatever other use you make of that evidence of the intercepted telephone conversations, it must not be a use that attributes to him any agreement between Bowles and Whitsed.  It is settled by the decision of another jury that he did not make an agreement with Bowles and Whitsed”.  Question:  what impact could that have had on the fairness of the trial of the accused?

MR VANDONGEN:   In our submission, none, because of the directions that his Honour gave limiting the use of the evidence to intent, but importantly, limiting its use only after the jury had found the existence of and the accused participation in a conspiracy to possess.

GLEESON CJ:   If we thought there was a possible application of the proviso, this is an issue that the Court of Appeal of Western Australia has never considered, is it not?

MR VANDONGEN:   That is right.

KIRBY J:   But if the judge’s direction had been slightly different to that which the Chief Justice postulated, namely, “Ladies and gentlemen of the jury, you have heard a lot of statements about an earlier trial.  You now know there was an earlier trial because the police officer said so.  The earlier trial related to a conspiracy which overlapped with this conspiracy.  It related to a charge of conspiracy which is the same charge as here and it related to a conspiracy concerning methylamphetamine and in respect of that charge the earlier jury acquitted the appellant and that in law, I tell you, is equivalent to a finding that he was innocent, and in your deliberations on the charge he now faces which relates to a different conspiracy but in the same period and in relation to the same drug, nothing that you may do in your conclusion must cast any doubt on his innocence of that earlier charge of which he was acquitted”.

MR VANDONGEN:   But in the context of intent mainly.  The jury could not have used that evidence – if that is the way in which – there was a danger that they would reason that way, they could not have used that evidence in determining the existence of ‑ ‑ ‑

KIRBY J:   All right, sharpen it up to relate to intent, but with those additional ingredients.  Is it not at least possible, likely that the jury would go out and at least take into consideration in their deliberations the fact of the earlier acquittal and the conclusion in law that that is equivalent to a finding by the earlier jury of innocence, and at the very least scrutinise the evidence against the appellant on the issue of intent with greater care and scrutiny?

MR VANDONGEN:   But dealing with it in the context of the proviso, given the limited direction, that it is to be used in relation to the issue of intent only, having regard to the amount of drug in question and the sophisticated nature in which this operation unfolded, it was, as my friend conceded below, a non‑issue.  So even if that direction had been given, in our submission, no substantial miscarriage of justice has been occasioned.

KIRBY J:   I understand that, and that has to be given a lot of thought, but it is a little bit like Nudd where the question is whether the appellant ever really got a fair trial on the way to the verdict which led to the conviction, and there is still an issue, as Justice McHugh repeatedly said in this Court, as to whether the proviso bites when you have not had what is the assumption of a fair process in Nudd – the Court unanimously held that it did, the evidence was overwhelming – but there is a preliminary question.  If you have not had your feather, that you have been sent naked into battle, the Crown wants you just to lie down and give up – or the State, as it is now ‑ ‑ ‑

MR VANDONGEN:   I do not think the State wanted anyone to lie down and I do not think anyone did in this trial, your Honour.

KIRBY J:   No, they did not.  They are here today because of the fact that they say they were bereft of a point – anyway, I think we know where we stand.

MR VANDONGEN:   Those are my submissions, if it pleases.

GLEESON CJ:   Yes, thank you, Mr Vandongen.  Yes, Mr Grace.

MR GRACE:   Could I take your Honours to page 660 of appeal book, volume 2.  There at paragraph 50 is set out section 31A of the Evidence Act.  This evidence that we are complaining about was admitted over objection as “propensity evidence”.  Now, could I take you to subsection (2) and read:

Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers –

(a)      that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

(b)      that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

Why do I raise that in the context of this appeal?  This was the basis upon which this evidence the court below found to have been properly admitted, that it was relevant evidence of guilt.  Guilt of what, guilt of the crime.

GLEESON CJ:   Evidence of guilt means, I presume, evidence of a fact in issue or a fact relevant to a fact in issue having a probative significance.

MR GRACE:   Yes.  If that is right, if it is a fact having probative significance, then evidence in rebuttal of that probative value is relevant.  If that evidence in rebuttal is the evidence of acquittal, then that evidence is admissible to rebut that propensity evidence, that is the evidence of guilt.

HAYNE J:   There is a certain slide in those propositions, Mr Grace.  You assume an identity between the propensity evidence which is in the form of the listening device tapes and the evidence of acquittal.  That is the whole point that we have to decide.  True it is, assume it, you get to your answer.  I understand that.

MR GRACE:   Yes.  The reference by my learned friend to paragraph 75 of the judgment of the court below proceeds on a very uncertain footing.  The reason for that is that paragraph 75 only comes into play once the jury has found that he was dealing in drugs on the previous occasion.  Until that finding is made, until the jury concludes that the conversations with Whitsed and Bowles revealed a dealing in drugs ‑ ‑ ‑

HAYNE J:   No, reveal that Mr Washer was dealing in drugs.

MR GRACE:   That Mr Washer was dealing in drugs, before they come to that conclusion, they cannot proceed to use it as evidence in support of an intent.

KIRBY J:   That is what I put to the prosecutor, but the argument put to us is that your statement that it was self‑evident by the very quantity that your client had the intent to sell or supply – and, one might add, in particular where no alternative hypothesis was put such as gold or some other arguable case – that really we should not be worrying our heads about this because it is such an overwhelming case and that you effectively conceded that in paragraph 75.

MR GRACE:   My submission is I did not concede it was an overwhelming case.  What I conceded was that if the jury was to find that there was an unlawful agreement to possess drugs, it would be axiomatic that they would have to find that there was an intent to sell or supply.

GLEESON CJ:   What was the defence case at trial?

MR GRACE:   That the jury ought not to be convinced beyond reasonable doubt that what he was talking about was drugs.  The basis of that case was the eliciting in cross‑examination of the fact that various items of evidence, including the ledger book and so on and other conversations that the police listened to, evidenced the fact that he was talking about other things such as wood, sawmilling ‑ ‑ ‑

HAYNE J:   Ounces of jarrah.

MR GRACE:   Yes.

GLEESON CJ:   But that is only on the way.  The ultimate defence case must have been that he had no connection with this quantity of methylamphetamine that was found in the car at Coonamble.

MR GRACE:   Yes, and that he had no agreement.  The prosecution could not prove beyond reasonable doubt any agreement with Di Lena and Scott.

GLEESON CJ:   I am not suggesting that it will come to this, but if it did, if we considered the proviso for ourselves we would have to look at the strength of the prosecution evidence, would we not, including that woman who was driving the car and who abandoned the car and the drugs at Coonamble?

MR GRACE:   Yes.

GLEESON CJ:   How was she approached, as it were, in cross‑examination on behalf of your client?

MR GRACE:   That she was inextricably tied up with knowledge of the fact that she was carrying the drugs in question, that she was a culprit.

GLEESON CJ:   But she presumably identified him as one of the people for whom she was doing this?

MR GRACE:   No, she did not.  She identified Di Lena.

GLEESON CJ:   Did Di Lena and Scott give evidence?

MR GRACE:   No.  Scott did.  I am sorry, Scott did.

GLEESON CJ:   What did Scott have to say?

MR GRACE:   She said she had no knowledge of the fact of the intention to traffic in drugs, in effect.  She said she had no involvement.  Di Lena prevailed upon her to provide her credit card for the purposes of the hiring of the car.  She did so out of allegiance and loyalty to Di Lena but she had no knowledge otherwise.  The problem for her was that there were some conversations in which she participated with Di Lena in about September in which she evinced some knowledge of the fact of what had occurred.

GLEESON CJ:   Insofar as your client was doing anything other than putting the Crown to proof of its case, presumably what his case was would appear from his record of interview?

MR GRACE:   Yes, and the puttage.

GLEESON CJ:   What was that?

MR GRACE:   The puttage, that what was being discussed was other things not drug – there were never any mention of drugs on the tapes.

GLEESON CJ:   So his case was, “I’m not a drug dealer and I don’t know anything about the car in Coonamble or what was in it and the scales and the coffee grinder might have been put in my premises by others and those conversations you hear me having with Whitsed and Bowles are not conversations about drugs”.

MR GRACE:   Yes.

KIRBY J:   They are about little bits of wood and so on that just happened to be tremendously valuable?

MR GRACE:   No, there was puttage, you will see, if your Honours do read the cross‑examination of the police officers, there is puttage and positive answers given about how wood is dealt with in tons and so on - there is reference to that which was relied upon as positive evidence.

GLEESON CJ:   Would the jury have been entitled to hear evidence of this matter if the acquittal had been opened up, that at the first trial he did not say it was wood, he said it was gold?

MR GRACE:   If one uses the directions by the trial judge given in Garrett and perhaps Storey as the benchmark, the answer to that question is yes.

KIRBY J:   That would not have helped.  Although, did this come at a point where it was still open to your client at the trial to posit that explanation?

MR GRACE:   Yes.  This objection to the evidence occurred in the Crown case.

KIRBY J:   Yes, and quite early, I think.

GLEESON CJ:   But you mean when we are dealing with the proviso we should assume that if this evidence got in, he would have had the opportunity to begin to say that this was gold, not wood.  It would have given him opportunity to change his story.

MR GRACE:   Well, he did not have the story in terms of a positive story.

GLEESON CJ:   No, that is right.  That is the point.

MR GRACE:   Yes.  Your Honours, could I just briefly refer you to Garrett and you will see at page 442 in Garrett (1978) 139 CLR 437 that the trial judge’s summing‑up is set out in the judgment of Chief Justice Barwick at that page and towards the bottom you will see:

So it is also with the evidence that you have heard about the past prosecution for rape and the accused’s acquittal on that charge . . . The fact is that we do not know and cannot know the basis of the jury’s verdict, and we are not to speculate about it.  We are not trying that case; we are trying this one.  We do not know whether the verdict means the jury thought the accused was innocent in the true sense, or whether they thought the charge was not proven.  We do not know whether they believe Miss Golding or not.  We do not know whether there was any corroboration . . . 

So you see, ladies and gentlemen, that in order to weigh up the case for the Crown and the case for the accused you needed to know the facts of the previous charge and its outcome.  Indeed, you could not have understood the references which the accused made to it when he was questioned by the police, if you had not known about it.  But you are not to speculate about the circumstances that gave rise to it, or attempt to use those circumstances about which you know so little as a basis for the decision you have to make on the facts of this case.”

That is an example of how the trial judge could have directed the jury in this case.

KIRBY J:   The bottom line becomes, if you had got that type of general direction against the very substantial prosecution case against you, would it have made any difference?

MR GRACE:   In our submission, yes.  It would have balanced the possible prejudicial effect of the propensity evidence given in the way it did, that this man is a bad man because he deals in drugs.  You can be in no doubt that he dealt in drugs because listen to the conversations between him and Whitsed and Bowles.  He is a drug dealer.  Now, your Honours know that that direction was overturned because it was found to be too neutral in that it did not give him, Garrett, the full benefit of the acquittal to which he was entitled.  That was emphasised in the subsequent year when Storey’s Case was delivered. 

Just briefly returning to Storey, could I take your Honours to page 375 in the judgment of Chief Justice Barwick.  Towards the bottom of the page, about eight lines up from the bottom, his Honour says this:

It would have been enough to have emphasized that the respondents had been acquitted and that the jury he was addressing must give full effect to that verdict:  that they must approach their task in relation to the charges of rape on the footing that the accused had been acquitted of having forcibly taken her away from the Clifton Hill railway station.  He made it clear to the jury that they were not to consider whether or not the respondents were guilty of abduction:  they could not be tried twice for that crime as they had both been acquitted of it.  He did, however, say:  “But consequently you are relieved of the task of considering whether the accused were or were not guilty of forcible abduction and you will confine your deliberations to the various counts of rape.”

That was how his Honour the Chief Justice referred to that.  At the next paragraph he said, about five lines up from the bottom on page 376:

I think the jury were told in substance that they must give effect to the acquittal and not turn their minds to the question whether the respondents were guilty of forcible abduction . . . that they should use the evidence only in relation to the question of her consent to the subsequent intercourse.

The finding was that the judge did give the full benefit of the acquittal in those circumstances.  Justice Gibbs refers of course to Garrett.  Could I take your Honours to page 387.  In the passage immediately before the passage that your Honour Chief Justice referred to me this morning, at point 6 his Honour says:

From this survey of the authorities it will have been seen that there is a well‑established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted.  Whether this principle is regarded as an extension of autrefois acquit, or as an application of the rule against double jeopardy, does not much matter.  Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted.  The evidence in question in Sambasivam’s Case should in my opinion have been excluded entirely, as their Lordships hinted, but no objection was taken to it at the trial.  However evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused was guilty of an offence of which he has been acquitted -

and then that passage that it may be sometimes necessary to warn is then referred to.  But then on to page 390, referring to the actual direction given in the case, his Honour says this about point 4 or point 5 on the page after the quotation:

Once the question of abduction had been raised it might have been desirable for the learned trial judge to have emphasized more strongly to the jury that they were bound to accept the verdict of acquittal and that the appellants were to be taken as entirely innocent of the offence of abduction.

Then we go next to the judgment of Justice Mason and after referring to Garrett halfway down page 396, his Honour says this:

Both these decisions establish, quite independently of the doctrine of issue estoppel, that the principle of res judicata as applied in criminal proceedings will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is sought to be relied upon.

Now that is exactly this case, it is submitted. 

In its application in this fashion res judicata gives expression to the notion that once a person is acquitted of an offence, the acquittal must be recognized fully and without qualification for all purposes in criminal proceedings. 

If I could jump to the first paragraph on page 397, his Honour says:

Compliance with the principle of res judicata does not in my view necessarily entail the exclusion at a subsequent trial of relevant evidence which might on its face, if unexplained, tend to suggest that the accused was guilty of an offence of which he has already been acquitted.  Sambasivam . . . did not go so far, leaving unresolved the question whether the statement should have been rejected in its entirety in that case.  The ground of that decision implicitly acknowledged that the requirements of res judicata may be satisfied in an appropriate case by the admission of evidence of this kind accompanied by a precise instruction to the jury that the prior acquittal cannot be challenged and that the evidence, for what it may be worth, is to be understood in this light.

The evidence for what it may be worth.  The point about that is, the point I was seeking to make before lunch, was that the State makes a forensic decision to elicit the evidence.  The defence in those circumstances should be able to elicit evidence of the acquittal as rebuttal of the propensity evidence so relied upon by the State.  If that is right, the evidence, for what it may be worth, is to be understood in that light.  That is consistent with what Justice Mason had to say.

GLEESON CJ:   I know we are not concerned with this issue, but at the time the judge was considering the admissibility of this evidence and the Crown was deciding whether to lead it, nobody knew what, if anything, your client was going to say by way of defence.

MR GRACE:   No.

GLEESON CJ:   For all they knew your client might have been going to give some evidence.

MR GRACE:   Yes, but there is one thing for sure he could not say and that was that he was acquitted because that had already been ruled upon.

GLEESON CJ:   When it was later said after all the evidence was in it is perfectly obvious that he had the intent.  The quantity of drugs demonstrates that assuming he had the intent to possess.

MR GRACE:   That was never said before the jury.

GLEESON CJ:   No.  What I am saying is that at the time decisions were being made to adduce the evidence and to admit the evidence, nobody knew what the defence case was going to be.

MR GRACE:   No, that is true.  The final point I want to make in reply is perhaps to take up a point that your Honour Justice Heydon raised originally with me and that is how the decision in Weiss by this Court has changed the way in which the proviso is adopted or applied.  Could I take you to paragraph 43 in Weiss and your Honours will recall that in paragraph 43 the fact that the jury did return a guilty verdict is a matter that can be taken into account, of course, in the court’s application of the proviso.  Similarly, although it was never discussed in Weiss, the fact that the jury, it is submitted, took 25 and a half hours to reach its majority 10:2 verdict for guilt.  At paragraph 45 could I just read this:

Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt.  What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt.  Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

We say at the very least this case falls within that category.  Those are the matters.

GLEESON CJ:   Thank you, Mr Grace.  We will reserve our decision in this matter and we will adjourn until 10.15 on Tuesday, 15 May 2007 in Canberra.

AT 3.38 PM THE MATTER WAS ADJOURNED