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Court of Criminal Appeal 16 April 2002

REGINA v LISA BEVAN

[2002] NSWCCA 224

Drugs
CRIMINAL APPEAL DRUG SUPPLY OFFENCES MISCARRIAGE EVIDENCE ACT, S44 FAILURE TO GIVE ANY DIRECTION.

Citation: Regina v Lisa Bevan [2002] NSWCCA 224
Court: New South Wales Court of Criminal Appeal
Date: 16 April 2002
Judge(s): Mason P; Barr J; McClellan J

Background

The appellant was tried in the District Court on charges arising from a police undercover operation. Two undercover officers made controlled drug purchases from her, and listening devices captured conversations supporting the Crown case. On 11 July 2000, police executed a search warrant at her home and found equipment and materials consistent with the packaging of methylamphetamine for street sale, along with substantial amounts of cash.

The appellant was acquitted on a charge of supplying cannabis but convicted on a charge of ongoing supply of methylamphetamine under the Drug Misuse and Trafficking Act 1985, s 25A(1), and on a separate charge of deemed supply of methylamphetamine. In her evidence she denied the transactions, offered alibi evidence, and attributed the items found in the kitchen to her husband.

The appellant appealed her convictions, contending that the conduct of the trial had produced a miscarriage of justice.

  • Whether cross-examination about large sums of money put through poker machines during a period well before the charged offences was properly permitted under the Evidence Act, s 44
  • Whether the trial judge's failure to give any direction to the jury about that cross-examination resulted in a miscarriage of justice
  • Whether the proviso (allowing a conviction to stand despite an error, where the Crown case was so strong that no substantial miscarriage of justice occurred) should apply

Decision

Mason P (with whom Barr J and McClellan J agreed) accepted that the Crown case was strong: the police evidence was corroborated by listening device material in relation to two of the three actual supply transactions required for the s 25A(1) conviction. However, the third transaction was supported only by the police officers' evidence, placing the credibility of the appellant directly in issue.

The cross-examination about poker machine activity presented the central problem. The Crown put to the appellant that between January 1998 and March 1999, she and her husband had put over $95,000 through machines at a Bathurst RSL club. This period preceded the charged offences by well over a year. The Crown sought to justify the questioning as a response to the appellant's comment about winning money on poker machines, but the Court found that linkage was never established, particularly given the substantial time gap between the RSL records and the events charged.

The effect of the cross-examination was to leave open a suggestion that the appellant and her husband had accumulated property from illicit dealings well before the charged period, and had attempted to launder the proceeds through poker machines. That suggestion was never adequately addressed by the trial judge, who gave no direction to assist the jury in evaluating it. Evidence from a defence accountant, Mr Flannery, which might have neutralised the prejudicial impact, was partly excluded on Crown objection and was in any event never explained to the jury.

The Court declined to apply the proviso. While one interpretation of the cross-examination was benign, there remained a real risk that the jury drew adverse inferences about the appellant's credibility from the unanswered suggestion of earlier criminal dealing. Because credibility was pivotal on at least one count, that risk was sufficient to constitute a miscarriage of justice warranting a new trial.

Orders Made

  • Appeal upheld
  • Convictions set aside
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that cross-examination suggesting a defendant accumulated assets from illicit dealings during a period well before the charged offences carries a significant prejudice risk, particularly where the connection to the charged events is not established.
  • Under s 44 of the Evidence Act, the permissible scope of cross-examination about a witness's financial affairs is limited, and the Crown must establish a proper basis connecting the subject matter to the issues in the trial.
  • Where potentially prejudicial cross-examination is permitted, the trial judge carries a corresponding obligation to direct the jury on the proper use of that material; failure to give any such direction can constitute a miscarriage.
  • A strong Crown case does not automatically attract the proviso where the credibility of the accused remains central to at least one count and the prejudicial material may have infected the jury's assessment of that credibility.
  • Upholding the appeal, the Court treated the uncorrected suggestion of prior criminal dealing as sufficiently capable of distorting the jury's verdict to require the convictions to be set aside entirely.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 44 (restrictions on cross-examination about a witness's financial affairs)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1) (offence of ongoing supply of prohibited drug other than cannabis)

Cases cited: None identified in the provided text.