Christian v R [2013] NSWCCA 98 (8 May 2013)

Last Updated: 14 April 2014

Court of Criminal Appeal New South Wales

Case Title:	Christian v R
Medium Neutral Citation:	[2013] NSWCCA 98
Hearing Date(s):	18 April 2013
Decision Date:	08 May 2013
Before:	Hoeben CJ at CL at [1] Davies J at [2] Adamson J at [77]
Decision:	1. Appeal allowed 2. Quash the conviction of the Appellant 3. Order a new trial
Catchwords:	CRIMINAL LAW - drugs - possession -evidence of earlier possession of similar drug - admissibility - basis for admissibility - whether tendency evidence - evidence wrongly admitted. EVIDENCE - admissibility - relevance - whether evidence admissible other than as tendency evidence - no examination of prejudice.
Legislation Cited:	Criminal Appeal Act 1912 Criminal Appeal Rules Drugs Misuse and Trafficking Act 1985 Evidence Act 1995
Cases Cited:	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
Category:	Principal judgment
Parties:	Craig Anthony Christian (Appellant) Crown (Respondent)
Representation
- Counsel:	Counsel: H Dhanji SC (Applicant) R Herps (Respondent)
- Solicitors:	Solicitors: William O'Brien & Ross Hudson Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2009/205417
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Norrish DCJ
- Date of Decision:	25 November 2011
- Court File Number(s):	2009/205417

JUDGMENT

1. HOEBEN CJ AT CL: I agree with Davies J.
   
2. DAVIES J: The Appellant was found guilty by a jury on 25 November 2011 on a charge of having supplied a prohibited drug namely 1,4- Butanediol. The supply was a deemed supply pursuant to s 29 of the Drugs Misuse and Trafficking Act 1985 because the quantity of the drug (84.4g) was more than a trafficable quantity. The trafficable quantity is 30g.
   
3. The Appellant appeals on the following grounds:
   

Ground 1: A miscarriage of justice was occasioned by the admission into evidence of the applicant's possession at the time of his arrest of a small brown bottle found to contain 1,4-Butanediol ('the small brown bottle');

Ground 2: A miscarriage of justice was occasioned by:

a. the reliance by the Crown as part of its case on the applicant's possession at the time of his arrest of the small brown bottle;

b. the absence of adequate directions as to how the evidence of the applicant's possession of the small brown bottle might properly be used.

Ground 3: The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

The facts

4. The Appellant is a boxing trainer and manager conducting the bulk of his work activities in Perth where he lives.
   
5. On 10 March 2009 he arrived early in the morning in Sydney from Perth to attend a fight on Wednesday 11 March involving a person he had previously trained and/or managed, and to accompany a then current client to a fight in which that person was involved on Friday 13 March.
   
6. The Appellant went to the Sheraton on the Park without a prior booking and obtained a room at 7:31am on 10 March 2009. As was customary, he was issued with two electronic cards to the room. He told the person at reception that he needed to sleep having arrived on the overnight flight from Perth.
   
7. Later that afternoon he purchased two "Mandarin Duck" brand bags at World Square.
   
8. The following day he went to Norton Street Leichhardt to have lunch with a person at the Grappa restaurant. As it happened that other person was under police surveillance. By reason of that the Appellant was followed when he concluded the lunch and ultimately drove in a taxi to Oxford Street, Paddington.
   
9. After coming out of a shop in Paddington he re-entered the taxi which had waited for him. A short distance later the taxi was pulled over by the police at 3:30pm. The Appellant was searched and in his possession was found a small brown bottle containing a fluid. When asked by the police what was in the bottle he said it was adrenaline. When asked why he had it he told the police that he trained fighters and used it to put on their cuts. It is accepted that adrenaline can be used in that way to inhibit bleeding.
   
10. Police also found cash in an amount of about $4000 in the Appellant's possession and a Sheraton Hotel access card. The Appellant denied that the access card was his, telling the police that he was staying at a friend's gym in Campbelltown and that he had never stayed at the Sheraton Hotel.
    
11. Not only was it untrue that he was not staying at the Sheraton Hotel at that time but he had stayed at the Sheraton on a number of occasions in the past.
    
12. He was arrested and taken to Surry Hills Police Station. He was released at about 8:00pm that night. He then returned to the Hotel. He apparently requested and was given another access card. However, when he endeavoured to gain access to his room he found that the police were in the process of executing a search warrant.
    
13. Items seized by the police when executing the search warrant included a Frantelle water bottle containing a yellow liquid, two resealable plastic bags containing a crystalline substance (subsequently determined to be 2.25g of methylamphetamine), a bong and a glass smoking pipe.
    
14. The methylamphetamine, the bong and the glass smoking pipe were all in a Samsonite suitcase which had a Virgin Airlines tag attached to it with the Appellant's name on it. The Frantelle bottle containing the yellow liquid together with a Citibank Visa debit card in the Appellant's name were found in a smaller black shoulder type bag.
    
15. Both the liquid in the small brown bottle (found on the Appellant when searched in Paddington) and the liquid in the Frantelle bottle were later found to be I,4-Butanediol otherwise often known as GHB.
    
16. The Crown led evidence of the events of the afternoon of 11 March 2009 including the finding of the small brown bottle and the subsequent analysis of its contents.
    
17. The Appellant gave evidence at the trial. He denied that the Frantelle bottle and its contents belonged to him. He maintained his assertion that he believed that what was contained in the small brown bottle was adrenaline and that he had brought it from Perth for his client who was to fight on the Friday night. He intended giving it to him on the Wednesday evening at the fight and that was why it was in his bag that afternoon. He was not going back to the hotel but was going directly to Campbelltown where the fight was to take place.
    
18. He said that a former client of his, Daniel Rowsell, had stayed with him at the hotel in his room. He said that he allowed him to do so because Mr Rowsell was then a drug addict who had no place of his own.
    
19. He said that Mr Rowsell arrived at the hotel with his clothes in plastic bags. The Appellant gave to Mr Rowsell the Samsonsite suitcase he had brought from Perth. That was why he, the Appellant, had purchased new bags on the Tuesday afternoon.
    
20. He said that when he returned to the hotel on the Tuesday afternoon after purchasing the bags he saw the methylamphetamine and the drug paraphernalia. He realised that it belonged to Mr Rowsell and, accordingly, he put it in the Samsonsite suitcase. It was because of the presence of those drugs that he lied to the police the following afternoon. He thought that if he admitted that he was staying at the Sheraton Hotel they would search the room and find the drugs. That would either lead to problems for him or problems for Mr Rowsell.
    
21. Mr Rowsell also gave evidence. He said that he became involved with drugs after his boxing career finished at the end of 2003. He became addicted to drugs. He was using GHB heavily as well as ice "to keep going".
    
22. There was corroborating evidence from hospital records showing the number of times that Mr Rowsell had been admitted to Accident & Emergency by reason of GBH overdoses. There was no challenge to Mr Rowsell's evidence that he had been and was at the relevant time a drug addict and using GHB.
    
23. Mr Rowsell said that the Frantelle bottle and its contents, the ice and the drug paraphernalia all belonged to him. He said that he was responsible for GHB being in the small brown bottle because he had found the bottle and put that substance into it. He could not remember if the small brown bottle contained any liquid when he found it but said that if it did he would have emptied it.
    
24. Although Mr Rowsell had an incomplete memory of what he did on 10 and 11 March he remembered that he had used drugs, had at least one woman up to the room, tipped the GHB into the small brown bottle and had been alone in the room at various times when the Appellant was absent.
    
25. Records from the hotel showed when the door to the room was opened on each occasion and by which access card that had been done. Ignoring the times that room was accessed by staff members for one reason or another the records disclosed the following:
    

10/03/09 7:39am Card 11283

10/03/09 12:46pm Card 11283

10/03/09 2:19pm Card 11283

10/03/09 4:53pm Card 394

10/03/09 5:51pm Card 394

10/03/09 6:15pm Card 394

10/03/09 9:16pm Card 394

11/03/09 2:06am Card 394

11/03/09 3:13am Card 11283

11/03/09 10:05pm Card 11283

These records suggest but do not prove that two persons rather than one were entering the hotel room at different times. At the very least it is known that the last entry recorded was made by Mr Rowsell, and that it was the Appellant who used Card 394 on the afternoon/evening of 10 March after he returned from purchasing the two new bags.

26. It was never put to the Appellant nor to Mr Roswell that they had agreed on the account of events which they gave.
    

Grounds 1 and 2: Admissibility of small brown bottle evidence

27. The parties addressed arguments concerning these two grounds together. It is convenient to deal with them in that way.
    
28. It is important, first, to note a significant change during the course of the trial. The Crown relevantly opened to the jury describing the search of the Appellant in Paddington as follows:
    

The Accused was subsequently searched by Senior Constable Bastan and by Sergeant Singh and during the search of the brown bag a small, brown coloured bottle containing a yellow liquid was found, the Accused was asked what it was and he said, "Its adrenalin." The question, "Why do you have it?" he said, "I train fighters and I use it to put on their cuts". ... Subsequent analysis of this liquid identified the prohibited drug 1,4-butanediol with a weight of 23.49 grams. (emphasis added)

29. When outlining the search at the Sheraton Hotel the Crown Prosecutor said:
    

The search was recommenced and a number of items were located and seized. Amongst them was a 250ml Frantelle bottle containing a liquid. This was inside a bag which also contained a City Bank (sic) card in the name of the Accused. Again this bottle was sealed and put in a bag and all the rest of it. It was subsequently analysed by an analyst and it was found to be again the drug Butanediol with a weight of 84.4g. This substance identical to the substance that was seized from the bag that the Accused had on him earlier in the day. (emphasis added)

30. When Detective Symons first gave evidence he read his statement to the Court. In that statement he referred to the finding of the Frantelle bottle "containing yellow liquid". He then gave evidence that the liquid was sent away for testing but that the empty Frantelle bottle was at Court.
    
31. He also gave evidence of liquid being found in the small, brown bottle when the Appellant was arrested in Paddington. No description of the liquid was given. He said that that liquid was sent away for analysis also.
    
32. In cross-examination he was asked if he had any recollection about the appearance of the liquid in the small brown bottle but he said that he did not.
    
33. For reasons that were not made apparent Detective Symons was recalled and what was said to be further re-examination by the Crown Prosecutor took place. The following evidence was given including in some further cross-examination at the end of what was said to be re-examination:
    

Q. If I could show you this package? Is that the Frantelle bottle that was found in the room at the Sheraton Hotel in that little bag on top of the Samsonite bag?

A. Yes.

Q. And most of the liquid's been taken out of it, correct?

A. Yes.

Q. For testing purposes and that sort of thing?

A. That's right.

Q. But there is some residue in there?

A. Yes.

Q. Tell me what colour it is?

A. I suppose you'd say like an off yellow.

Q. I think one of the officers, I think Officer Klotz I think may have described as lime, so yellowy lime?

A. Yeah.

CROWN PROSECUTOR: Could that be marked for identification your Honour?

MFI #7 FRANTELLE BOTTLE WITH YELLOWY LIME RESIDUE

Q. Then Officer, while we had the morning tea break, did you take out the bottle into which the material that was found in Mr Christian's shoulder bag was put into?

A. Yes.

Q. It had been take out of their containers in that shoulder bag and poured into another bottle?

A. That's right.

Q. In the presence of Officer Klotz and myself and Mr Djemal did you pour some of that liquid into the top of that bottle?

A. Yes.

Q. What colour was it?

A. Clear.

FURTHER CROSS-EXAMINATION BY MR DJEMAL

Q. I don't think I'll, so just to be clear Officer have you got a copy of exhibit B there? If that could be given to you?

A. Look I can see it from here.

Q. Exhibit B you've got the little bottle with the red lid on it there, that's the first picture there I think it's picture number 26. See that there? So the contents of that particular bottle is clear liquid is that right?

A. Yes.

Q. Which was found on Mr Christian and obviously what's observable here on the same exhibit, photograph 30, the contents of that was a different colour as in yellow?

A. Yes.

34. Immediately after that evidence a Statement of Agreed Facts was handed up and read to the jury. When that had been done the Crown Prosecutor announced that there was a further agreement "between both parties that adrenaline is a clear liquid".
    
35. This evidence represented a significant change in the case. By reason of the Crown's opening that the small, brown bottle contained yellow liquid the jury is likely to have concluded, until this evidence was given, that the liquid in the small brown bottle was from the same source as the liquid in the Frantelle bottle. The finding of the small brown bottle with that liquid in the possession of the Appellant would have been a significant piece of circumstantial evidence bearing on the issue of the possession of the Frantelle bottle. Indeed, the Crown had referred to the substance in the Frantelle bottle as being identical to the substance in the small brown bottle.
    
36. In his closing address the Crown said nothing about the different liquids in the two bottles. He referred to the small brown bottle being found in the Appellant's possession when he was arrested and that it contained a prohibited drug. He referred to the evidence of the Appellant that he had brought adrenaline in the small brown bottle from Perth, and to Mr Rowsell's evidence of pouring some of his GHB into the small brown bottle. In relation to that the Crown wrongly referred to this evidence as Mr Rowsell having said that he rummaged through the Appellant's property to find the small brown bottle. The Crown used that to discredit Mr Rowsell by saying "This is a mate ... rummaging through his property". In fact Mr Rowsell said no such thing.
    
37. Mr Rowsell gave the following evidence in chief:
    

Q. Did you ever see a bottle like that in room 624 while you were up there?

A. At the time I was there I didn't remember it, no. I remember it later when I took Craig's bags to him.

Q. What did you remember?

A. I remembered him, he told me that he'd been arrested for something in a brown bottle and then it registered to me that I had put 1,4 in it.

Q. Was there anything in the bottle when you put 1, 4 in it?

A. At the time I don't remember if there was I tipped it out. It wasn't something that I wasn't really thinking about at the time I suppose.

38. In cross-examination he gave this evidence about that matter:
    

Q. Just want to go back, you said that you put some G into a bottle you saw in the room which had a stopper on it?

A. Yeah.

Q. Was that out of the water bottle he'd bought the G in?

A. It could have been, could've been in another bottle, I'm not sure.

Q. How many bottles of G did you bring to the hotel?

A. I - no idea at the time, I didn't know when I walked in. Later I'd realised I'd lost a substantial amount of G and then the bottle was clear that I had it in, the amphetamines I'd had. Later on I realised the brown bottle because I'd poured contents into it, that was it.

Q. You're not sure whether they came out of the bottle that had been shown to you, the drink bottle?

A. They could've, I could've had another bottle.

Q. Could've had another bottle, what happened to that other bottle?

A. I'm not sure.

Q. Leave it behind in the hotel?

A. I don't know maybe I did, I could've used it for anything, pour water in, I don't know.

Q. Could you have had three or four bottles of G with you?

A. I could well have.

Q. What did G cost?

A. The amount that I had left, like I remember it because substantial to me was three days worth of drugs and that's what I've lost. When I went to the hotel room the one thing that I was thinking about going to gaol, was thinking about the police - the funny thing was - the thing worse to me was that I'd lost my drugs.

Q. Coming back to my question what did it cost you?

A. Sorry, the G?

HIS HONOUR

Q. You were asked by the Crown how much did it cost?

A. Yeah sorry mate, I'd say what was in that bottle was about two and $400 worth.

Q. How much was in the other bottle you might have taken with you?

A. A hundred bucks worth.

Q. And there could have been two other bottles you had with you?

A. I - from what I remembered pouring into a brown bottle it could have been the remainder of a bottle that I had, that I'd carried but it was only a small amount.

Q. Didn't you know that was Mr Christian's bottle?

A. It didn't really - this time it didn't - there was no real care factor I guess, not care factor I appreciated things that people did for me but I was a drug addict I didn't think of consequences, I didn't -

Q. When you say you poured this liquid in did you know there was other liquid already in that bottle?

A. I wouldn't have left any other liquid that was in a bottle, no.

Q. So if the bottle already liquid in it you would have poured it down a sink would you?

A. Yes I would have.

Q. Did you do that?

A. I guess it did yes.

Q. What do you mean you guess you did, did you or didn't you?

A. Well that's what had happened so I guess I did.

Q. Why didn't you get a bottle out of the bathroom and rinse it out, put your G in that?

A. It was just there and was convenient.

Q. Hotels give an array of bottles for their guests don't they, shampoos, conditioners?

A. I don't know it wasn't something that at the time that I thought about.

Q. Didn't you have a look around the room that you were staying in?

A. I'm not sure whether I looked around the room or whether I didn't.

39. In his closing address counsel for the Appellant said this in relation to the small brown bottle:
    

The other things in the Samsonite bag, he's not charged with those, and I'll get to those, but we're here for the bottle. How do they link the bottle to him? And if they try - and I mean a lot's been made out of the brown dropper bottle which is exhibit B. Now if that was yellow, all right they've got some inferences there because they can infer and say well the bottle in his possession is the same colour liquid as the bottle that's in the other one and they'd have a line of reasoning. It's a different colour. So that alone says no connection. It's not the same.

40. A little later in the address counsel for the Appellant said in passing:
    

The little bottle, not the same colour, ...

41. The Trial Judge provided detailed, written directions about important matters to the jury. In the course of those the following appeared:
    

This case is concerned with the alleged possession of the substance found in the hotel room, referred to the analyst's certificate exhibit E "Item 2". The Accused's alleged possession of a smaller quantity of the same substance, is relevant as one of several circumstances or "facts" upon which the prosecution relies to invite you to draw the inference of intentional possession of the quantity of the prohibited drug found in the hotel room.

...

You are not to reason, if you so find, he "possessed" the prohibited drug in the eye dropper (brown) bottle (photo 26, exhibit B), therefore he must have possessed the "prohibited drug" alleged to be in the "Frantelle" bottle in the hotel room. Further, I point out that he could not have possessed the prohibited drug in that brown bottle found when he was arrested if he believed it to contain adrenaline.

42. In his summing up the Judge made these remarks relevant to the issue of the small brown bottle:

You will have to, however, consider other matters: The Accused's responses to the police about what he believed was in the brown bottle when he was arrested - he said it was adrenaline; the Accused's assertion of the fact that he used it for cuts on fighter.

43. A little later he said this:
    

This case is concerned with the alleged possession of the substance found in the hotel room, referred to in that certificate. The accused's alleged possession of a smaller quantity of the same substance is relevant as one of several circumstances or facts upon which the prosecution relies to invite you to draw the inference of intentional possession of the quantity of the prohibited drug found in the hotel room. However, you will bear in mind the submissions made about this matter by both parties. You will bear in mind, for example, the different appearance of the liquid in the two bottles, and the accused's evidence as to his reason for having the brown bottle.

I point out to you that, even if you were satisfied beyond reasonable doubt the accused did possess the prohibited drug in the manner I have described to you as a matter of law in the 'brown bottle', you should not reason "Ah, because he supplied that quantity in the sense of had it in his possession, that must mean he had a tendency to supply the other quantity". That does not follow. You cannot use his possession, if you are so satisfied - that is intentional control, of the prohibited drug within the brown bottle - as establishing that he intentionally possessed the bottle that was found in the hotel room. It is relied upon for a limited purpose - that is it is one of the number of circumstances pointed to by the prosecution as establishing the accused's guilt. If the accused believed that what was in his possession when he was arrested was adrenaline, or that belief on his part is a reasonable possibility, his possession of that quantity of the substance will not assist you in determining whether he knew the substance in the room was a prohibited drug. In fact, it might assist you in concluding that it is a reasonable possibility that at least that he did not know of the prohibited drug in the room.

You are not to reason, if you so find he possessed the prohibited drug in the eye-dropper bottle, therefore he must have possessed the prohibited drug alleged to be in the Frantelle bottle in the hotel room. Further, I point out that he could not have possessed the prohibited drug in that brown bottle found when he was arrested if he believed it to contain adrenaline. It would obviously not be a case of him possessing the prohibited drug, because he had a belief that it was adrenaline, not a prohibited drug. (emphasis added)

44. It is apparent from that last passage that the Trial Judge informed the jury that the evidence was not to be used as tendency evidence. Indeed, the Crown did not put the evidence forward as tendency evidence. However, it is not apparent how the evidence could be used other than as tendency evidence. Certainly, the jury were not told how they could use the evidence.
    
45. The Crown at first contended that the evidence about the small, brown bottle was contextual evidence, but submitted orally that the better description was circumstantial evidence. The Crown submitted that it was highly probative evidence that added to the improbability that the Appellant did not know of the Frantelle bottle in the hotel room. The Crown submitted that it tended to establish that the Appellant was engaged in a criminal enterprise and increased the probability that he had sole possession of the Frantelle bottle.
    
46. Labelling the evidence in a particular way (contextual or circumstantial or relationship) does not really advance an understanding of its admissibility. Rather, the issue of its admissibility is to be determined by an analysis of its relevance: R v Quach [2002] NSWCCA 519 at [7]- [8].
    
47. To be relevant the evidence had to be evidence that "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". The fact in issue was whether the Appellant was in possession of the prohibited drug in the Frantelle bottle found in the hotel room. It might have been arguable, if the liquid in the small brown bottle was the same liquid as was found in the Frantelle bottle, that evidence of the liquid in the small brown bottle was relevant to the issue of whether or not the Appellant was in possession of the Frantelle bottle. That is likely to be the reason that the Crown opened the case in the way that it did and led evidence of the finding of the small brown bottle with its liquid and the subsequent results of the analysis of that liquid.
    
48. The Crown submitted that evidence of the liquid in the small brown bottle was admissible because it was the same drug and the same liquid as was found in the Frantelle bottle, because it went to the issue of the Appellant's denial of his occupancy of the hotel room and because it was relevant to rebut a suggestion that the drug in the room was in his possession for his own use.
    
49. However, where the only connection between the two lots of liquid was that both contained the same prohibited drug, the evidence would only be admissible, if at all, as tendency evidence. The liquid was not the same liquid. Where the defence opened, not on the basis that the drug in the Frantelle bottle was for the Appellant's personal use but that the issue was in whose possession it was (with Mr Rowsell's name being mentioned), evidence concerning the liquid in the small brown bottle could not have been admitted to rebut an anticipated suggestion that the drug in the Frantelle bottle was for personal use. This was reinforced by what had been said to the trial judge in the absence of the jury and before the opening addresses. Counsel for the Appellant expressly said that he was "not running personal use" - rather, the issue was whether he possessed it in the room.
    
50. In R v Vincent Yiu Chen Fung [2002] NSWCCA 479; (2002) 136 A Crim R 95 the accused was arrested in possession of a backpack. The backpack contained a green garbage bag with four smaller packages in it, each of which was wrapped and sealed with adhesive tape. The packaging was distinctive. Inside those packages was a quantity of heroin having a gross weight of 3.519 kilograms. The accused's case was that he had no idea what was in the backpack. He had been asked by a friend to deliver it to another person.
    
51. The Crown led evidence at the trial, over the objection of the defence, that the accused had a close relationship with the person who asked him to deliver the bag including evidence of a number of intercepted telephone conversations between them from which it could be inferred that there was an arrangement about the delivery of the bag, and also evidence that that person and another member of his family had been found in possession of heroin packaged in a similar way to that found in the backpack.
    
52. Sully J (with whom Beazley JA agreed) examined the evidence that was given concerning the similar packaging of the heroin and said:
    

[45] In my opinion, a fair reading of the passages quoted from the evidence of these two Crown witnesses does not convince that the evidence, if accepted at its highest point in favour of the Crown, was capable of establishing beyond reasonable doubt that the packaging of the heroin seized on 20 June, when compared with the packaging of the heroin seized subsequently in September, was so distinctive that any heroin found packaged in that fashion could be sourced back to either or both of the Lams. That consideration, alone, would be sufficient, in my opinion, to demonstrate that the materials categorised as B, C and D in the statement of Ground 1 were not relevant to proof of the issue of relevant knowledge in the appellant as at 20 June. I observe that, as best the fact can be judged from the available trial transcript, there was no application for a hearing on the voir dire in order to test the admissibility of this particular evidence. It would have been, as I respectfully think, appropriate for the learned trial Judge to have taken evidence on the voir dire in order to determine the admissibility of the challenged evidence. Had that course been followed, and had there been elicited on the voir dire the evidence that came subsequently to light in the trial proper, then the learned trial Judge would have been assisted much better than in fact happened, in coming to a properly reasoned conclusion about the relevance of the particular material.

53. The categories referred to in that extract were set out in the judgment at [29] as follows:
    

The Appeal against Conviction: Ground 1

The Ground is:

"The learned trial judge erred in allowing "relationship evidence" to be admitted in the form of:

A. Times and duration of telephone calls between the appellant and Mr. Michael Lam and Mr. Sik Lam

B. Evidence of the surveillance and arrest of Mr. Michael and Mr. Sik Lam for supplying heroin on occasions subsequent to the alleged supply by the appellant.

C. Evidence of similar packaging and method of supply by Mr. Michael and Mr. Sik Lam on subsequent occasions.

D. Evidence of the similarity of the three heroin seizures."

54. In the same way, once the evidence in the present case disclosed that the liquid in the small brown bottle was clear liquid and that the liquid in the Frantelle bottle was yellow, it could not be established beyond reasonable doubt that the liquid in the small brown bottle was the same as the liquid in the Frantelle bottle. It was not, therefore, relevant to proof of the matter of possession by the Appellant of the Frantelle bottle except, arguably, as tendency evidence.
    
55. In R v Ngatikaura [2006] NSWCCA 161; (2006) 161 A Crim R 329 the Respondent was arraigned on a charge of supplying heroin on 3 November 2004. The supply charge was based on the deeming provisions in s 29 and arose from the police finding on the execution of a search warrant at her home 5.74g of heroin, more than $5000 in cash and other items associated with the supply of heroin.
    
56. On a pre-trial application the Crown sought to have admitted into evidence two earlier offences of supply of heroin committed by the Respondent to which he entered pleas of guilty. These offences were committed on 28 September 2004 and 20 October 2004. The Trial Judge refused to admit the evidence and an appeal was brought under s 5F Criminal Appeal Act 1912 against rejection of the evidence.
    
57. The evidence had been put forward by the Crown not as tendency or propensity evidence but "simply evidence that shows that at that relevant time, that around the time of the deemed supply, that she was engaged in the business of supplying heroin".
    
58. Simpson J said:

[66] Because the Crown disclaimed any reliance upon s97, no notice of the kind referred in subs(1)(a) was given. That may, for the moment, be put to one side. S97 does not necessarily preclude the admission of any evidence that shows that an accused person has committed another crime, or has a tendency or disposition or propensity to commit a crime whether of a specific or general nature: see Harriman; Sultana; R v Cornwell [2003] NSWSC 97; 57 NSWLR 82; R v Quach [2002] NSWCCA 519. S97 precludes the admission of the evidence (unless it overcomes the test imposed by subs(1)(b)) where it is tendered for that purpose; where it is tendered for another purpose, such as those mentioned in the authorities I have cited, even where it also incidentally proves criminal disposition or tendency, it is not necessarily rendered inadmissible, although it would then be necessary to give consideration to s95 of the Evidence Act, and to give the jury appropriate directions.

[67] It is, of course, necessary precisely to analyse the manner in which the Crown would seek to use the evidence. That was disclosed clearly in the argument, both in the District Court and on appeal - it was expressed as tendered to prove that the respondent was a drug dealer.

[68] I am (with respect to Beazley JA who takes a different view) quite unable to see that this evidence was tendered for any reason other than to prove that the respondent had a tendency to deal in drugs. Even if it were to be said that the evidence was tendered to rebut the respondent's anticipated defence, that the drugs and other items were the property of her husband, and that their presence within the home was not within her knowledge, nevertheless that rebuttal was to be achieved by showing that she had a tendency to supply and deal in drugs. This, in my opinion, emerges quite clearly from the responses given by the Crown Prosecutor on the appeal. Evidence of the respondent's previous drug dealings was tendered to show that she was in possession of the drugs the subject of the present charge; the evidence of her previous drug dealings would help to establish her guilt of the present charge because it would show that she had a tendency so to behave.

[69] That, to my mind, does not necessarily render the evidence inadmissible. It simply means that the appropriate procedures had to be followed and the necessary tests applied. I outlined these in R v Fletcher [2005] NSWCCA 338 at [33] and [45].

59. Her Honour went on to say that if consideration had to be given to the evidence as tendency evidence regard would need to be had to s 101 Evidence Act 1995 and ss 135 and 137 would be immaterial.
60. Rothman J (who agreed with Simpson J) said this:
    

[77] In this case, the Crown seeks to tender evidence which it says is not being adduced to prove tendency. In other words, the Court is not faced with the issue of whether the evidence satisfies s.97 of the Act, but rather whether s.97 of the Act applies to exclude the evidence; i.e. is it tendency evidence?

[78] Unless excluded by a specific provision of the Evidence Act, all relevant evidence is admissible: s.56 of the Act. It is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of the fact in issue in the proceeding": s.55 of the Act. Probative value is the extent to which evidence is relevant.

[79] Thus the first question that must be asked by any person seeking to adduce evidence is "could the evidence rationally affect (directly or indirectly) the probability of the existence of a fact in issue?" If the answer to that is in the affirmative, then, subject to exclusionary provisions, it is admissible. But s.97 is an exclusionary provision. It excludes tendency evidence unless the requirements of s.97 are satisfied.

[80] Evidence of a tendency that a person has or had, to act in a particular way, or have a particular state of mind, in order to prove that the person did, at the point in time relevant to the issues before the Court, act in a particular way, or have a particular state of mind, is tendency evidence. It will be prohibited, notwithstanding that it is relevant, unless it satisfies s.97 (and in the case of a criminal proceeding, s.101) of the Act.

[81] The question that must be asked in relation to such evidence, or indeed any evidence, when evaluating relevance, is precisely how it seeks to make more probable the existence of the fact in issue. If it affects, rationally, the assessment of the probability of the existence of the fact in issue by applying a reasoning process described in s.97 ("tendency reasoning"), it is inadmissible unless it has a significant probative value. Section 97 of the Evidence Act is engaged by the purpose and reasoning process, not its rational effect;

"What is not to be admitted is a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning be the only purpose for which the evidence is adduced as a matter of law, the evidence is not admissible." (per Lord Hailsham in DPP v Boardman [1975] AC 421 at 453)

[82] One must be careful in applying pre-Evidence Act judgments to the admissibility of tendency evidence under the Evidence Act. However, the common law principles on such issues may be used as a guide in the evaluation of the admissibility of evidence, even under the Evidence Act.

[83] The High Court in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 summarised the principles applicable, prior to the Evidence Act, in the following way:

"Propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person to commit the crime charged. ...It was also accepted that in order to be admissible, propensity evidence must possess 'a strong degree of probative force' or the probative force ... must clearly transcend the prejudicial effect of mere criminality or propensity." (at pp 480-481) (The emphasis is my own)

[84] To a large degree the provisions of s.97 reflect the above passage from the joint judgment of their Honours Mason CJ, Deane and Dawson JJ. Once the "propensity" or "tendency" reasoning process is involved, the prima facie position is that the evidence is inadmissible, unless it has a significant probative value. In other words, the reasoning process adopted must show something more than that the accused has a disposition to commit the crime or is the sort of person to commit the crime.

61. His Honour went on to hold that the evidence sought to be adduced was tendency evidence and that it was inadmissible until the requirements of s 97 were satisfied.
    
62. In my opinion, the position in the present case is stronger for the Appellant than that in either Fung or Ngatikaura. What was contained in the small, brown bottle could at best have come from a common source with what was contained in the Frantelle bottle but there was no evidence to support such an inference. What was clear is that it could not have come directly from the Frantelle bottle. The evidence about the liquid in the small brown bottle could only be evidence that the Appellant had a propensity or disposition or tendency to have in his possession that drug although there was no evidence to link it to the drug in the Frantelle bottle.
    
63. If it was tendency evidence it is doubtful that its probative value could outweigh its prejudicial effect on the Appellant. That matter was never considered because there was no objection to the evidence being led. That was no doubt because of the Crown's opening and because it was not known until Detective Symons was recalled that the substance in the small brown bottle was not the same as the substance in the Frantelle bottle.
    
64. Rule 4 Criminal Appeal Rules, when viewed strictly, applies although at the time the evidence was led it was believed by all that the liquid was the same in both bottles. The Crown opened and led evidence that was later demonstrated to be wrong. If the evidence was admissible it was only admissible as tendency evidence. Not only was no notice served pursuant to s 97 but the Crown said on this appeal that the evidence was not put forward as tendency evidence. By reason of the opening and the leading of the evidence no balancing exercise was conducted either under s 101 (if it was tendency evidence) nor ss 135 and 137 (if it was not).
    
65. These matters have brought about a miscarriage of justice because the Appellant was deprived of a chance of acquittal that was fairly open to him: KBT v The Queen (1997) 191 CLR 417 at 423-424; Baini v The Queen [2012] HCA 59; (2012) 87 ALJR 180 at [26] - [27]. The matter could not be corrected by directions from the Trial Judge although his Honour attempted to minimise the damage in what he said (set out at [43] above).
    
66. The situation in which the Appellant found himself at the trial can be said to be relevantly the same as in Fung with Sully J saying:
    

[59] There is the further consideration that there is, in my opinion, a risk which is both real and unacceptable that the prejudicial effect of the wrongly admitted evidence unfairly influenced the verdict of the jury. It is true that the jury was given some direction by the learned trial Judge as to the impermissibility of a process of reasoning that is normally described as guilt by association. It seems to me, however, that the very nature of the evidence which was wrongly admitted entails a risk, real and unacceptable, not that the jury wilfully ignored the directions of the trial Judge, but that the subliminal impact of the wrongly admitted evidence might have had an influence that it ought not to have had.

[60] For those reasons, I am of the opinion that there was, in the relevant statutory sense, a substantial miscarriage of justice by reason of the wrongful admission at trial of the evidence that I have been discussing in connection with Ground 1.

67. In my opinion, grounds 1 and 2(a) are made out. In the ordinary course it would be appropriate to uphold the appeal on these grounds and to order a re-trial. It is necessary, however, to say something about Ground 3 which asserts that the verdict of the jury was unreasonable. If that was found it would be necessary to direct an acquittal.
    

Ground 3: Unreasonable verdict

68. The Appellant submitted that, regardless of whether grounds 1 and 2 succeeded, the verdict of the jury was unreasonable or could not be supported having regard to the evidence.
    
69. The Appellant submitted that the Crown case as to possession was entirely circumstantial and relied on inferences of guilt from certain facts. The Crown had to prove, the Appellant submitted, that the Appellant had exclusive possession of the GHB in the Frantelle bottle. The Appellant submitted that it was not enough to show that the Appellant had hired the room in which the GHB was found nor was it sufficient that the bag in which it was found contained his credit card nor that the Samsonite bag near where it was located had a luggage tag bearing the Appellant's name.
    
70. The Appellant submitted that there was not only the possibility of another person having possession of the GHB there was also positive evidence from Mr Rowsell. That evidence tended to show that a person other than the Appellant had access to the room, that there were two key cards issued and that they were used at various times. In addition, there was undoubted evidence that Mr Rowsell was a drug addict who regularly used the prohibited drug found in the Frantelle bottle.
    
71. The Appellant drew attention to statements of principle in R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89 at [9] and Jackwitz v R; Franklin v R [2006] NSWCCA 419 at [34]. The Appellant also referred to the factual circumstances in a number of the cases including Amanatidis, R v Matthews [2004] NSWCCA 259; R v Filippetti (1978) 13 A Crim R 335; R v Burns (Court of Criminal Appeal, 19 August 1988, Unreported) and R v Bazley (Court of Criminal Appeal, 23 March 1989, Unreported) which he sought to use analogously.
    
72. In my opinion it is not appropriate, in the light of the conclusions regarding grounds 1 and 2, to deal with arguments concerning whether or not the verdict was unreasonable. In Fung the Appellant argued as a further ground that the verdict of the jury was unreasonable. This Court determined that there had been a substantial miscarriage of justice by reason of the wrongful admission at trial of the evidence, to which reference has earlier been made (the similar packaging of the heroin and the association with the Lams).
    
73. In dealing with the ground based on an unreasonable verdict Sully J said:
    

[65] I do not think that it can be said that a properly presented Crown case, untainted by the wrongful admission of what I might call the Lam evidence, could not properly be left to a jury. I have quoted previously the summary contained in the Crown's written submissions of the circumstantial case, exclusive of the Lam evidence, upon which the Crown relied at the appellant's trial, and would presumably rely again at a re-trial. That circumstantial case seems to me to exhibit precisely that "combination of suspicious circumstances and failure to make inquiry" of which the High Court says plainly in Pereira that it "may sustain an inference of knowledge of the actual or likely existence of the relevant matter". No doubt, and as the High Court was particular to emphasise, great care needs to be taken in the way in which such a case is left to the jury by the presiding Judge; but that is a long way short of saying that such a case cannot properly be left at all for the consideration of the jury.

[66] If that be a correct analysis, then it would not be appropriate, in my opinion, for this Court itself to pre-empt what might be done by a reasonable jury properly instructed at a properly conducted re-trial.

[67] I, therefore, would not uphold Ground 8. In the result, I would quash the appellant's conviction and order a re-trial.

74. The Crown case against the present Appellant was a circumstantial one. It required the jury to draw inferences and come to a view about whether or not they accepted the evidence of the Appellant and/or Mr Rowsell. Putting aside the evidence of the liquid that was found in the small brown bottle, it could not be said that a reasonable jury properly instructed could not convict the Appellant.
    
75. In those circumstances, ground 3 should not be upheld. There should be a new trial conducted in conformity to these reasons.
    

Conclusion

76. I propose the following orders:
    

1. Appeal allowed.

2. Quash the conviction of the Appellant.

3. Order a new trial.

77. ADAMSON J: I agree with Davies J.
    

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