AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 3 July 2013

Doolan v R

[2013] NSWCCA 145

DrugsTheft & property
CRIMINAL LAW APPEAL EVIDENCE RELEVANCE ADMISSION WARNING TO JURY

Citation: Doolan v R [2013] NSWCCA 145
Court: Court of Criminal Appeal
Date: 03 July 2013
Judge(s): Emmett JA at [1]; Simpson J at [65]; Latham J at [107]

Background

The appellant was convicted in the District Court of supplying a prohibited drug, following a trial before judge and jury. The prosecution arose after police executed a search warrant on the appellant's rural property and found prohibited drugs in a loft-style bedroom. The central question at trial was who controlled or occupied that bedroom, since identifying the occupant was directly relevant to establishing the supply offence.

During police inquiries on 17 and 18 January 2010, the day before the search, police attended the property in connection with a stolen motor vehicle found there. In the course of those inquiries, the appellant made statements about the vehicle and attributed it to a person he named as "Steven Graham." Those statements were later shown to be inconsistent with each other.

The significance of those statements at trial was that "Steven Graham" and another name given by the appellant were also linked by other evidence to the room where the drugs were found. The trial judge admitted the statements over the appellant's objection, and the appellant appealed on the ground that admission was an error.

Legal Issues

  • Whether the appellant's inconsistent statements to police about the stolen motor vehicle were relevant to the drug supply charge under ss 55 and 56 of the Evidence Act 1995
  • Whether the trial judge should have excluded the statements under s 137 of the Evidence Act 1995, on the basis that the unfair prejudice to the appellant outweighed the probative value of the evidence
  • Whether the trial judge erred in failing to apply the tendency, credibility, or character provisions of the Evidence Act 1995 to the impugned statements

Decision

Relevance of the statements:
The Court held that the appellant's statements about the stolen vehicle were relevant to the drug supply charge. The names the appellant gave to police in connection with the vehicle were the same names that appeared in evidence about who occupied the bedroom where the drugs were found. That connection provided a rational basis for the jury to use the statements when assessing the identity issue at the core of the trial.

Section 137 exclusion:
The Court rejected the argument that s 137 required exclusion of the statements. The probative value of the evidence was substantial because it bore directly on the contested question of who controlled the relevant room. The Court found there was no material danger that the prejudice arising from the stolen vehicle context would outweigh that probative value, particularly given the directions the trial judge gave the jury to keep the motor vehicle material separate from the drug charge.

The misdirection on consciousness of guilt:
The trial judge initially gave the jury a direction suggesting the appellant's lies to police might indicate a consciousness of guilt in relation to the drugs. The Court found that direction was erroneous, since the drugs were not discovered until the day after the statements were made. However, the trial judge effectively withdrew and corrected the direction before the jury retired, which the Court held was sufficient to remedy the problem, consistent with the approach in Dhanhoa v The Queen [2003] HCA 40.

Tendency, credibility, and character provisions:
The Court dismissed the appellant's submissions that the trial judge failed to apply the tendency provisions, the credibility rule, or the character provisions of the Evidence Act 1995. The Crown never relied on the statements as tendency evidence. The credibility rule did not apply in these circumstances, and leave is not required to cross-examine an accused on a prior inconsistent statement under ss 103(1) and 104(3)(c). At no point was the appellant's character put in issue.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Prior inconsistent statements made in an entirely separate police investigation can be admissible in a drug supply trial where the statements share a factual connection, such as the naming of the same individuals, with the core issue in the later prosecution.
  • Under s 137 of the Evidence Act 1995, the assessment of whether unfair prejudice outweighs probative value is informed by the directness of the evidence to a contested issue at trial and by any curative jury directions given in relation to the prejudicial material.
  • A misdirection on consciousness of guilt does not automatically warrant a new trial if the trial judge subsequently withdraws and corrects the direction before the jury retires.
  • The credibility rule under the Evidence Act 1995 does not prevent cross-examination of an accused on a prior inconsistent statement; ss 103(1) and 104(3)(c) remove the need for leave in that context.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that adequate jury directions limiting use of prejudicial contextual material can be a relevant factor in resisting exclusion under s 137.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 ss 5, 6
- Crimes (Sentencing Procedure) Act 1999 s 12
- Drug Misuse and Trafficking Act 1985 ss 3, 25(1), 29
- Evidence Act 1995 ss 55, 56, 60, 66A, 97, 101, 101A, 102, 103, 104, 136, 137, Pts 3.4, 3.6, 3.7, 3.8

Cases
- Festa v The Queen [2001] HCA 72; 208 CLR 593
- R v Yates [2002] NSWCCA 520
- R v Shamouil [2006] NSWCCA 112; (2006)
- 66 NSWLR 228
- Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
- R v Cook [2004] NSWCCA 52
- Filippetti v R (1978) 13 A Crim R 335
- R v Anderson (NSWCCA, 15 December 1983, unreported)
- R v Bazley (NSWCCA, 23 March 1989, unreported)
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1