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Court of Criminal Appeal 3 April 2003

R v. Lumsden

[2003] NSWCCA 83

Drugs
DIRECTIONS NOT INADEQUATE CROSS

Citation: R v Lumsden [2003] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 3 April 2003
Judge(s): Mason P, Hulme J, Smart AJ

Background

The appellant was convicted in the District Court of ongoing supply of a prohibited drug, following a trial before Shillington DCJ. The charges arose from events on 1 and 2 May 2001, during which police surveillance at premises in Canowindra produced evidence that the appellant supplied a substance to an informant through an intermediary. A blue Toyota station wagon registered to the appellant featured prominently in the Crown case.

The prosecution also relied on evidence that methylamphetamine was found at the appellant's home approximately two months after the alleged offences, on 2 July 2001. A defence witness, Thurtell, gave alibi-style evidence placing the appellant at particular premises for a legitimate purpose at the relevant time.

The appeal raised five grounds, challenging the admission of identification evidence, the adequacy of jury directions, the admissibility of the drug-find evidence, and the propriety of the Crown's cross-examination of the defence witness.

  • Whether the trial judge erred in admitting the identification evidence of Detective Rayner
  • Whether the jury directions concerning Detective Rayner's identification evidence were adequate
  • Whether evidence of drugs found at the appellant's premises approximately two months after the offences was admissible
  • Whether the Crown's cross-examination of the defence witness Thurtell about his prior convictions breached the credibility rule under the Evidence Act 1995

Decision

The three judges were divided on the outcome. Mason P and Smart AJ agreed that Ground 1 (the admission of Detective Rayner's identification evidence) failed, and Mason P agreed with Hulme J on the remaining grounds. Smart AJ, however, disagreed with Hulme J on Grounds 2 through 5 and would have dismissed the appeal entirely. Hulme J's reasons, in which Mason P concurred on the remaining grounds, determined the result.

On the drug-find evidence (Ground 3), the court held the evidence was admissible because it was probative of facts tending to establish the offence: it supported an inference of an ongoing business operated by the appellant from her home, with drugs accessible for supply. Mason P agreed with the admissibility conclusion but reserved his position on whether such evidence was incapable of being tendency evidence simply because it involved physical, inanimate facts. He considered that the combination of the drugs being found at the appellant's house and the inference of her possession could, in different circumstances, raise tendency issues.

On the Crown's cross-examination of Thurtell (Ground 4), Hulme J held that the material elicited about his convictions did not have substantial probative value within the meaning of s 103 of the Evidence Act 1995. The cross-examination about a goods-in-custody charge and drug-supply conviction did not sufficiently bear on whether Thurtell would give false alibi evidence. Additionally, eliciting evidence that the appellant's son had cannabis plants growing at the family home had no probative value at all. These departures, taken together, meant a miscarriage of justice could not be ruled out.

The majority ultimately found that, while the Crown case was strong, it was not impregnable. Given the seriousness of the ongoing supply charge and the cumulative effect of the errors, a new trial was ordered rather than verdicts of acquittal.

Orders Made

  • Appeal against conviction allowed; conviction quashed
  • New trial ordered

Key Takeaways

  • Evidence of uncharged criminal activity found at an accused's premises can be admissible where it tends to prove the offence charged (here, an ongoing drug supply business), provided it is not relied upon to establish propensity or tendency in a prohibited way under s 97 of the Evidence Act 1995.
  • A conviction for an accused person in a discrete prior matter will almost invariably be inadmissible, given the combined effect of established guilt and the capacity to induce propensity reasoning; the court distinguished this from evidence of uncharged criminal activity that is directly relevant to the offence charged.
  • Under s 103 of the Evidence Act 1995, cross-examination of a witness about prior convictions is only permissible where the evidence has substantial probative value; the Court of Criminal Appeal found that a drug-supply conviction did not automatically bear substantially on whether a witness would fabricate alibi evidence.
  • Identification evidence from a police officer who registered the accused's vehicle and later observed her in person was treated as identification evidence, triggering the applicable evidentiary rules and jury direction requirements.
  • Cumulative trial irregularities, even where the Crown case is strong, can be sufficient to warrant quashing a conviction and ordering a new trial rather than entering acquittals, particularly for serious offences.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 103
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- BRS v The Queen (1997) 191 CLR 275
- Domican v The Queen (1991-1992) 173 CLR 555
- Attorney General v Willessee [1980] 2 NSWLR 143
- Hinch v The Queen (1987) 164 CLR 15
- Markby v R (1978) 140 CLR 108
- R v Andrews [2003] NSWCCA 7
- R v AB [2001] NSWCCA 496
- R v Glasby [2000] NSWCCA 83
- R v Glennon (1982) 173 CLR 592
- R v Beattie (1996) 40 NSWLR 155
- Harriman v The Queen (1989) 167 CLR 590
- R v Taouk; R v Hanna [1982] 2 NSWLR 974