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Court of Criminal Appeal 8 May 2013

Christian v R

[2013] NSWCCA 98

Drugs
CRIMINAL LAW DRUGS POSSESSION ADMISSIBILITY BASIS FOR ADMISSIBILITY WHETHER TENDENCY EVIDENCE

Citation: Christian v R [2013] NSWCCA 98
Court: Court of Criminal Appeal, NSW
Date: 8 May 2013
Judges: Hoeben CJ at CL, Davies J, Adamson J

Background

The appellant was a boxing trainer and manager who travelled from Perth to Sydney in March 2009 to attend two fights involving his clients. He checked into a Sydney hotel and, during a police search on the afternoon of 11 March, was found carrying a small brown bottle containing a liquid he described as adrenaline. Analysis later confirmed the liquid was 1,4-Butanediol, a prohibited drug commonly known as GHB.

A subsequent search of the appellant's hotel room uncovered a larger bottle also containing GHB, as well as methylamphetamine and drug paraphernalia. The GHB in the larger bottle formed the basis of the supply charge: because the quantity exceeded the trafficable amount (30 grams), supply was deemed under section 29 of the Drugs Misuse and Trafficking Act 1985 without any need to prove an actual transaction.

The appellant denied ownership of the hotel room items, attributing them to a former client and known drug addict who had been staying in his room. That individual gave evidence supporting this account. A jury nonetheless found the appellant guilty, and he appealed on three grounds: the wrongful admission of the small brown bottle evidence, inadequate jury directions about how to use that evidence, and an unreasonable verdict.

  • Whether evidence of the appellant's possession of the small brown bottle (containing the same drug as the charged quantity) was admissible at trial, and on what basis
  • Whether, if that evidence was tendency evidence within the meaning of the Evidence Act 1995, the proper admissibility requirements and prejudice analysis were carried out
  • Whether the trial judge gave adequate directions to the jury on the permitted use of the small brown bottle evidence
  • Whether the jury's verdict was unreasonable or unsupportable on the evidence

Decision

The Court found that the admission of the small brown bottle evidence was the central problem at trial. During the Crown's opening, the evidence was presented in a way that implicitly invited the jury to reason from possession of one quantity of GHB to possession of the other. The Court held that this amounted to tendency reasoning, yet the Crown had never sought to tender the evidence as tendency evidence under the Evidence Act 1995, and the trial judge had not conducted the required analysis, including whether the probative value of the evidence substantially outweighed the danger of unfair prejudice.

The Court examined whether the small brown bottle evidence could have been admitted on some other, non-tendency basis, such as being directly relevant to the charged supply. While there was some argument that the evidence was relevant to whether the appellant knew the nature of the substance in the hotel room, the Court found that without proper examination of prejudice and without appropriate jury directions, the evidence had been wrongly admitted and wrongly used. The absence of any direction to the jury about the limited purposes for which the evidence could be considered compounded the error.

On the unreasonable verdict ground, the Court declined to acquit the appellant. Applying the principles established in comparable authorities, the Court found that a properly instructed jury, presented with a Crown case untainted by the wrongly admitted evidence, could still have convicted the appellant. The circumstantial case, including the appellant's lies to police about not staying at the hotel, remained available and was not so weak as to make any conviction unreasonable.

Orders Made

  • Appeal allowed
  • Conviction of the appellant quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that where evidence of a prior or concurrent possession of a similar drug is used to support an inference of knowledge or possession in relation to a charged quantity, it is likely to constitute tendency evidence and must be assessed against the full requirements of the Evidence Act 1995, including a careful weighing of probative value against unfair prejudice.
  • Admitting evidence of this kind without identifying the basis for admissibility, without the Crown formally invoking the tendency provisions, and without any examination of prejudice constitutes a significant trial error capable of producing a substantial miscarriage of justice.
  • Inadequate jury directions compounded the error here: where propensity-style evidence is admitted, the jury must be told precisely how and for what purpose it may and may not be used.
  • A finding that evidence was wrongly admitted does not automatically lead to an acquittal. The Court assessed whether a properly instructed jury could still convict on the remaining evidence, and where the answer is yes, a retrial rather than an acquittal is the appropriate remedy.
  • Lies told by an accused to police about matters directly connected to a charge remain part of the available circumstantial case, even after tainted evidence is removed from consideration.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Drugs Misuse and Trafficking Act 1985 (NSW), s 29
- Evidence Act 1995 (NSW)

Cases:
- Baini v The Queen [2012] HCA 59; (2012) 87 ALJR 180
- Jackwitz v R; Franklin v R [2006] NSWCCA 419
- KBT v The Queen (1997) 191 CLR 417
- R v Amanatidis [2001] NSWCCA 400
- R v Bazley (Court of Criminal Appeal, 23 March 1989, Unreported)
- R v Burns (Court of Criminal Appeal, 19 August 1988, Unreported)
- R v Filippetti (1978) 13 A Crim R 335
- R v Matthews [2004] NSWCCA 259
- R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329
- R v Quach [2002] NSWCCA 519
- R v Vincent Yiu Chen Fung [2002] NSWCCA 479; (2002) 136 A Crim R 95