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Court of Criminal Appeal 27 October 2017

Davis v R

[2017] NSWCCA 257

Drugs
CRIMINAL LAW CONVICTION APPEAL WHETHER CROWN’S CROSS WHETHER EVIDENCE WAS INADMISSIBLE WHETHER THE PROVISO SHOULD BE APPLIED WHETHER TENDENCY DIRECTION WAS REQUIRED

Citation: Davis v R [2017] NSWCCA 257
Court: NSW Court of Criminal Appeal
Date: 27 October 2017
Judge(s): Hoeben CJ at CL, Price J, Schmidt J

Background

The applicant was convicted by jury of supplying a prohibited drug (methylamphetamine) contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The Crown's case rested on constructive possession: police executing a search warrant found approximately 25.64 grams of methylamphetamine hidden in the bedroom the applicant occupied at a Caringbah house.

The applicant's defence was that the drugs belonged to someone else. Two alternative candidates were identified: Martin Hogan, who had been staying with her and was present when police arrived, and Lauren Ironside, who had previously occupied the same bedroom and had a prior conviction for supplying drugs found under strikingly similar circumstances.

Both Hogan and Ironside denied any knowledge of the drugs found in the bedroom. The applicant had no prior criminal record for drug possession or supply.

  • Whether trial counsel's decision to adduce evidence of the applicant's own drug use and credit card fraud convictions occasioned a miscarriage of justice (Ground 1)
  • Whether evidence of Hogan's and Ironside's prior drug supply convictions was tendency evidence requiring special directions under the Evidence Act 1995 (NSW) and, if so, whether the judge's handling of that evidence miscarried (Ground 2)

Decision

Ground 1: Trial counsel's conduct regarding the applicant's own criminal history

The court found that trial counsel's decision to elicit evidence of the applicant's drug use and credit card fraud did not constitute conduct outside the range of a reasonably competent practitioner. Counsel had a legitimate forensic purpose: establishing the applicant as a drug user (rather than a supplier) and explaining the source of cash found at the premises. The court was not satisfied that this ground established a miscarriage of justice.

Ground 2: The direction concerning Hogan's and Ironside's prior convictions

This ground succeeded. Evidence that Hogan had prior convictions for drug supply and that Ironside had been convicted of drug supply in materially similar circumstances (found with methylamphetamine in small resealable bags, hidden on her person, while denying ownership) was central to the applicant's defence. That evidence was relevant not as tendency evidence in the technical sense under s 97 of the Evidence Act, but rather as directly probative of whether it was a reasonable possibility that one of those two individuals, rather than the applicant, had possessed the drugs.

The trial judge gave what Price J described as an "anti-tendency direction," telling the jury that it should not assume that because Hogan and Ironside had been drug suppliers in the past, they had "some kind of tendency" that could be taken into account when assessing their evidence. That direction was confusing and potentially led the jury to believe it could not use the prior convictions at all when evaluating the defence case. It diminished the significance of evidence that was vital to the applicant.

Although trial counsel did not object to the direction (engaging r 4 of the Criminal Appeal Rules), the court was satisfied the applicant lost a chance fairly open to her of acquittal, with no forensic advantage explaining counsel's silence. The misdirection amounted to a miscarriage of justice. The court declined to order a new trial, noting the applicant had served her entire sentence, that this would have been a third trial, and that more than six years had passed since the alleged offence. The conviction was quashed.

Orders Made

  • Appeal upheld
  • Conviction quashed

Key Takeaways

  • A direction telling the jury not to treat prior drug supply convictions as indicating a "tendency" can misfire where those convictions are relevant not as tendency evidence but as directly probative of a third party's possible possession of drugs.
  • Where evidence is vital to the defence and a jury direction diminishes its significance without forensic justification, the Court of Criminal Appeal may find a miscarriage of justice even if trial counsel did not object to the direction at the time.
  • Under r 4 of the Criminal Appeal Rules, failure to object at trial does not automatically preclude an appeal, but the applicant must still demonstrate that a miscarriage resulted.
  • The Court of Criminal Appeal confirmed that ordering a new trial is not automatic upon quashing a conviction; proportionality, the passage of time, and the fact that sentence has been served are all relevant discretionary considerations.
  • Distinguishing tendency evidence (governed by ss 97 and 101A of the Evidence Act) from evidence that is simply relevant to circumstantial reasoning about who possessed drugs is significant: the former attracts specific admissibility and direction requirements, while the latter requires the jury to be properly instructed on its actual probative relevance.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 6, 6(1)
- Criminal Appeal Rules (NSW), r 4
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Evidence Act 1995 (NSW), ss 38, 97, 101A, 103(1), 104, 104(2)

Cases
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886
- John Wayne Tsiakas v R [2015] NSWCCA 187
- Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Younan v R [2016] NSWCCA 248