Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Poniris v R [2014] NSWCCA 100
• Hearing dates: 24 March 2014
• Decision date: 05 June 2014
• Before: Macfarlan JA at [1]; Adamson J at [83]; Bellew J at [84]

Decision

(1) Refuse leave to the appellant to rely on any of his four grounds of appeal.

(2) Appeal dismissed.

• Catchwords: CRIMINAL LAW - appeal against conviction - whether defence counsel implicitly relied upon s 137 Evidence Act at trial - whether trial judge obliged to consider application of s 137 in the absence of reliance on that section - whether leave required pursuant to r 4 Criminal Appeal Rules where objection to admission of evidence is taken on one basis at trial and on a different basis on appeal - leave under r 4 refused - whether trial judge failed to advise jury of limitations on use of the evidence and to properly direct jury on motive to lie
• Legislation Cited: Crimes Act 1914 (Cth); Crimes Act 1900 (NSW); Criminal Appeal Act 1912 (NSW); Criminal Appeal Rules (NSW); Evidence Act 1995 (NSW); Migration Act 1958 (Cth)
• Cases Cited: ARS v R [2011] NSWCCA 266; Aytugrul v The Queen [2012] HCA 15; 247 CLR 170; Bin Sulaeman v R [2013] NSWCCA 283; Chand v R [2011] NSWCCA 53; Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424; Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1; Doe v The Queen [2008] NSWCCA 203; 187 A Crim R 328; FDP v R [2008] NSWCCA 317; 74 NSWLR 645; Festa v The Queen [2001] HCA 72; 208 CLR 593; Flanagan v R [2013] NSWCCA 320; Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593; James v R [2014] HCA 6; 88 ALJR 427; Kuehne v R [2011] NSWCCA 101; Papakosmas v R [1999] HCA 37; 196 CLR 297; Penza and Di Maria v R [2013] NSWCCA 21; Pemble v R [1971] HCA 20; 124 CLR 107; Potts v R [2012] NSWCCA 229; 227 A Crim R 217; R v BD (1997) 94 A Crim R 131; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228; Shepherd v R [2011] NSWCCA 245; Steve v R [2008] NSWCCA 231; 189 A Crim R 68; Vickers v R [2006] NSWCCA 60; 160 A Crim R 195; Ward v R [2013] NSWCCA 46
• Category: Principal judgment
• Parties: Christopher Poniris (Appellant); Regina (Respondent)
• Representation: Counsel: G Brady (Appellant); H Wilson SC (Respondent); Solicitors: Nyman Gibson Stewart (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/10676

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-06-29 00:00:00
• Before: Woods DCJ
• File Number(s): 2009/10676

Judgment

1 MACFARLAN JA: In March 2012 the appellant stood trial in the District Court on ten criminal charges, three of which were brought in the alternative. The seven principal charges comprised one count of shoot with intent to murder, two counts of supplying not less than the commercial quantity of a prohibited drug (namely cocaine and heroin), two counts of possession of a firearm with defaced identification and two counts of acting with intent to pervert the course of justice. The Crown case was that the appellant was part of a joint criminal enterprise with Joseph Metlej and others to remove William Metlej from the Metlej family business so that Joseph Metlej could take control of it. They planned to do this by falsely implicating William Metlej in drug and firearm offences.

2 The appellant pleaded not guilty to all charges. His case was that he was not a party to the joint criminal enterprise and that the three main witnesses giving evidence against him lied about his involvement in order to divert attention from their own crimes. The jury returned verdicts of guilty on all seven principal counts.

3 On 29 June 2012 the trial judge imposed sentences in relation to each offence, amounting to an overall sentence of 18 years imprisonment with a non-parole period of 13 years and 6 months.

4 The appellant appeals against each of his convictions. For the reasons given below, I have concluded that his appeal should be dismissed.

THE FACTUAL CIRCUMSTANCES

5 The following descriptions of the factual circumstances surrounding the charges in the indictment are taken from the parties' written submissions.

The Crown case

6 Joseph and William Metlej are brothers. The Metlej family owned and operated a successful construction and property development company established by Joseph and William's father, Youssef Metlej. Both brothers worked in the family business but Joseph's position was subordinate to that of his older brother William. This led to arguments between the brothers and caused Joseph to become resentful and jealous of William.

7 In about 1997 the appellant and Joseph Metlej became friends. The appellant, who was then a plumber working at the State Rail Authority, told Joseph that he was working undercover for the Australian Federal Police (AFP) and introduced Joseph to a number of police officers with whom he was friendly.

8 After a time, the appellant and Joseph Metlej devised a plan to remove William Metlej from his position in the family business, so that Joseph could assume control. They decided to plant prohibited drugs and a firearm in William's home and then alert the police. The appellant was struggling financially and hoped to take advantage of Joseph's acquisition of control of the business.

9 Joseph gave evidence that he "really wanted to keep [the appellant] as a friend" because he "never had any other friends", and therefore he went along with the plan (Transcript p 229). Others were involved in the scheme at various times, including Andrew Maratos and Robert Martin, both of whom gave evidence that the appellant had held himself out to be an undercover agent with the AFP (see Transcript pp 431-2 (Maratos), 598, 606-7, 640, 660 (Martin)).

10 In 1998 the appellant used $25,000 provided to him by Joseph Metlej to obtain almost half a kilogram of cocaine and a defaced .32 calibre pistol. He supplied these items to Joseph for him to plant them and a set of scales in William Metlej's home to make it appear that William was a drug dealer. In September 1998, Joseph Metlej went to his brother's home and placed the items in a wardrobe in the bedroom shared by William Metlej and his wife Chantal (sometimes referred to in the evidence as Chantelle). The appellant then arranged for Andrew Maratos to inform the New South Wales Police of the presence of those items in William's home. Maratos did so through his solicitor.

11 The police undertook a search of William's home but failed to find the drugs or the firearm, locating only the set of scales. However the items were discovered some days later by Chantal Metlej and taken by William to the police.

12 In March 1999 the appellant and Joseph Metlej made another attempt to carry out their plan, this time with Joseph placing a gun and a quantity of heroin in William Metlej's garage. Acting on information again provided by Andrew Maratos, the AFP executed a search warrant on William's premises and found 281 grams of heroin and a loaded .45 calibre pistol. William Metlej was charged, but the charges were dismissed at a committal hearing a year later.

13 In late 2001 the appellant, still intent upon destroying William Metlej, recruited Christian Follert through an intermediary, Robert Martin, to kill William for the sum of $50,000. On 28 November 2002 Follert went to William's home and shot him twice as he knelt beside his car in the street changing a slashed tyre. One bullet struck William in the head and another in the upper right arm, with a third bullet striking William's car. William survived.

The defence case

14 The appellant did not give evidence at his trial. Nor was any oral evidence called on his behalf, although seven documentary exhibits were tendered.

15 The defence case at trial was that the appellant was not involved in any joint criminal enterprise to plant drugs and firearms at William Metlej's home, nor was he involved in any joint enterprise to shoot William Metlej. The defence contended that the three main prosecution witnesses (being Joseph Metlej, Andrew Maratos and Robert Martin) carried out the offences charged in the indictment, and that each lied in giving evidence of the appellant's involvement. In exchange for their testimony, Maratos and Martin had been granted indemnities against prosecution for their respective roles in the joint criminal enterprise, and Joseph Metlej had received a suspended sentence for his crimes "in large part because he had promised to testify against the appellant" (Crown's written submissions at [17]). The defence suggested that inducements offered by the New South Wales Crime Commission to some of those involved in the offences had led to them wrongly implicating the appellant (ibid at [18]).

16 According to the defence, Joseph Metlej "began a campaign of harassment and hatred against William and Chantelle Metlej" in early 1998 and this was the "real motive" for the offences (appellant's written submissions at [11(c), (e)]).

17 While the defence accepted that the appellant had been friendly with a number of police officers, it denied that he had ever held himself out to be an undercover agent of, or an officer in, the AFP.

GROUNDS OF APPEAL AGAINST CONVICTION

GROUND 1: THE JUDGE ERRED IN ADMITTING INTO EVIDENCE EXHIBITS W, X, Y AND AA BEING ITEMS FOUND AT THE APPELLANT'S RESIDENCE IN 2007

18 This ground concerns the admissibility and permissible use of items found at the appellant's residence during the execution of a search warrant in September 2007. In general terms, the Crown relied on these items as evidence capable of corroborating assertions by witnesses whose credibility was impugned (namely Joseph Metlej, Maratos and Martin) that the appellant passed himself off as either a police officer or someone working covertly for the police (Transcript pp 662, 666, 671, 675). Counsel for the appellant at trial objected to the tender of the four exhibits on the ground that they were not relevant to the issues at trial, principally by reason of the gap in time between 2007 (when the items were found) and the dates alleged in the indictment.

19 Exhibit W was an internal NSW Police envelope addressed to "Chris Poniris, DEA Office, AFP Building, Goulburn Street". The envelope contained documents that were dated at various points in 1999 and were therefore temporally connected with the charges in the indictment, although the documents themselves were otherwise irrelevant to the issues at trial (being concerned with building work carried out on the appellant's property). The trial judge ruled that the exhibit was admissible as material capable of bearing upon the question of whether the appellant "was connected with or represented himself to be connected with police during the period covered by the indictment" (Judgment of 21 March, p 1).

20 Exhibit X was a confidential NSW Police manual relating to a Glock self-loading pistol. It was dated 1997. Exhibit Y was an 18-page set of documents connected with a firearms licence issued to the appellant. Con Adams' signature appeared on the documents at a number of places. Joseph Metlej gave evidence both at the trial and before the NSW Crime Commission that he had fired a Glock pistol at a police firing range with the appellant and Con Adams, a man who the appellant introduced as an officer in the NSW Police Force but who was in fact the proprietor of a security firm. It was suggested to Joseph in cross-examination that he had lied about that event, and in response the Crown relied upon Exhibit Y to support his credibility in relation to that part of his evidence (Transcript pp 674, 678-9).

21 In relation to Exhibit X, the trial judge stated that:

"The Crown is entitled to lead evidence of other material which may relevantly bear upon the story told by Mr Joseph Metlej. One aspect of that story is evidence that he is a person of a vulnerable character and mental state, liable to be influenced by a person purporting to be a friend. A particular aspect of this is that the friend in question, the accused Mr Poniris, is said by the Crown to have held himself out to have connections with police and policing of a kind likely to assist, on the Crown's case, in an exercise in manipulating Mr Joseph Metlej" (Judgment of 21 March, p 2).

22 After referring to Joseph's alleged attendance at the police firing range, his Honour ruled in relation to Exhibit X that there is "some relevance in this item" (ibid, p 3).

23 Finally, Exhibit AA was a police helmet with the words "Sgt Adams" appearing on the back and therefore apparently belonging to Sergeant George Adams, a friend of the appellant. Exhibit AA was tendered by the Crown as evidence capable of demonstrating an association between the appellant and George Adams (Transcript p 671). The trial judge ruled that both Exhibit AA and Exhibit Y:

"have some limited relevance. In each case the only relevance is to show some connection or association between, in the first case, George Adams and in the second case a person called Con Adams. On that limited basis, I will allow that evidence to be led" (ibid).

24 When Exhibit AA was tendered, the trial judge indicated to the jury that it was relevant

"only in the sense that you've already heard evidence that there is a Sergeant George Adams who apparently is pretty good at taekwondo and he had lessons and this item simply shows connection or association, apparently, between Mr Poniris and the man Sergeant George Adams. There's no suggestion that he stole the helmet or anything. It's just to show that there was some connection with George Adams" (Transcript pp 697-8).

25 In the Crown's closing address to the jury, the Crown Prosecutor dealt with the exhibits in the following terms:

"Is there evidence ... that supports the very, very crucial part of Joseph Metlej's claims that Christopher Poniris was the other guy that was his friend, worked with him in this campaign that went on over some years? ... There's some pieces of evidence in this case that lend support to what Joseph Metlej is saying in effect that Christopher Poniris passed himself off as someone who was working for the police" (Transcript of 22 March 2012, p 3).

26 After referring to Exhibit AA, the Crown continued:

"But there's other things that were found by the police at Christopher Poniris' home that speak volumes. Volumes in terms of supporting what Mr Joseph Metlej says about Christopher Poniris passing himself off as a policeman" (ibid).

...

"You might remember that Joseph Metlej told you that he injured his webbing between his index finger and thumb in the course of firing the [Glock]. There's some evidence that lends support to what Joseph Metlej is saying on that point.

There is the exhibit that is exhibit X, the Glock self-loading pistol [manual] which has a date stamp on each page, 1997, so it's before, it's around the time or thereafter that Mr Poniris and Mr Joseph Metlej meet according to Joseph Metlej and there's also the exhibit [Exhibit Y] that was also found at Christopher Poniris' home which is those documents relating to his firearms licence.

You've had a look at the documents and you know basically what's happened is he's been told that he hasn't undergone his necessary regular accreditation course. When he then resubmits that in 2005 what name appears as signing off on that in some way? Con Adams" (ibid p 7).

27 Defence counsel's closing address countered as follows:

"The Crown case really is built around a theory that Mr Poniris is responsible because he wanted to get access somehow or other to the Metlej company. It relies on those three witnesses [Maratos, Joseph Metlej and Martin] and there's little or no independent evidence. There is the material that was found at the house ... Interestingly enough not one witness said they saw any of those documents ... These happen to be things that were found in 2007. Whether they existed in that form earlier or later, we don't know. What they're brought into play for is to show that Mr Poniris has some police associates and he does because he used to go to karate. He used to go to karate ... run by Sergeant George Adams who's a different person from Con Adams who's not a policeman. And that's not disputed and it's not denied that he does know people who are police officers.

The defence says to you that those documents and things are a bit of [a] red herring in the sense that there is no denial that Mr Poniris knows some police officers and had colleagues who were police officers. No witness saw those things; they're not used in any way to suggest he's a police officer" (ibid p 39).

28 In the course of his summing-up, the trial judge made the following observations to the jury:

"... the evidence of Mr Joseph Metlej, Maratos and Martin, is subject to a number of criticisms and concerns - that is why the Crown, in its case, seeks to put before you whatever independent evidence it can to support the case it presents" (p 48).

...

"The Crown put to you that of course the centrepiece of his case is the evidence of Joseph Metlej, that alone you might be sceptical about what he says, but you have got to take into account not only his evidence but all the other evidence in the case. And the Crown says there are a lot of things that substantiate what he says ... exhibits W, X, [Y] and AA support the proposition the Crown makes that lying behind all of this is that you have Mr Poniris who is a kind of Walter Mitty type character, thinking he is a police officer of some sort and attaching himself in friendship to a fellow (Mr Joseph Metlej) who is as his brother put it, "different" but who is plainly mentally odd in the sense that he suffers from Asperger's syndrome ...

So you would accept that the items found at the search, which link back in time to some ten years before, demonstrate that Mr Poniris was holding himself out to be some kind of police officer - a very strange thing to do ..." (pp 58-59).

...

"However defective in some respects [the evidence of Joseph Metlej, Maratos and Martin] might be, it was not the result of collusion, the Crown says. The Crown says that if you look at the item which is the letter, exhibit W, found at his house, this shows how he was living a life of self deception and deception of others and he has got himself as part of the DEA [possibly an acronym for Drug Enforcement Agency: Transcript p 583] at the Australian Federal Police.

The [Glock] document [Exhibit X] ... with a date stamp of 1997 on it, supports the argument that Mr Poniris was associating with police, pretending to be a police officer and he was living that kind of fantasy life, into which he drew Joseph Metlej, on the Crown case" (p 60).

29 As noted above, counsel for the appellant at trial objected to the tender of the four exhibits on the ground of relevance. On appeal, however, the appellant conceded that the items had some, albeit "exceptionally limited", relevance (appeal transcript, p 23) but contended under his first ground of appeal that the trial judge erred in failing to exclude the items under s 137 of the Evidence Act 1995 (NSW) on the basis that their probative value was outweighed by the danger of unfair prejudice to the appellant being caused by their admission into evidence. The danger of unfair prejudice was said to lie in the risk that the jury might place too much weight on the exhibits, or use them as evidence of bad character, or might conclude that the appellant used the items to impersonate a police officer or had a propensity to pass himself off as a police officer (appellant's written submissions at [44], [47]-[49]).

30 Counsel for the appellant accepted that defence counsel at trial did not in terms rely upon s 137 (appeal transcript, p 1; written submissions at [29]). However, he submitted that there were references by defence counsel to a risk of the jury making improper use of the evidence and that as the appellant objected to the material (albeit only on the ground of relevance), the trial judge was obliged to undertake the balancing exercise provided for by s 137. While appeal counsel initially contended that the trial judge had an obligation to consider excluding the evidence under s 137 irrespective of any objection (written submissions at [30]), this submission was subsequently withdrawn (supplementary submissions at [5]). The submissions on which the appellant came to rely were that s 137 was relied on at trial implicitly, even if not expressly, and alternatively that the appellant's objection on the ground of relevance was sufficient to require the trial judge to consider whether s 137 applied.

Whether the appellant relied on s 137 at trial

31 Section 137 of the Evidence Act provides as follows:

"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

32 The suggestion that defence counsel at trial implicitly or indirectly raised the issue of s 137 must be rejected. Leaving aside the objections taken at trial as to the relevance of the exhibits, the only arguable references by defence counsel to the risk of improper use of the evidence by the jury were as follows. In relation to Exhibit Y, counsel said:

"The fact that Mr Con Adams, who's not a police officer, has signed something to do - and who's the proprietor of a security firm, which has Glock pistols, has signed a document saying somebody is accredited or not accredited to have a Glock, doesn't in any way at all mean that he was present at a firing range. It just doesn't connect and it'd be an improper use of that document for the jury to draw that conclusion. The fact that Con Adams has signed a document at some other point in time, saying that this man - and is a proprietor of a security firm. He's not a policeman. Saying that this man is accredited to use a Glock would - no jury could possibly use that properly to say that Mr Con Adams had taken Mr Metlej to a firing range, a police firing range and has pretended to be a police officer and been issued with a newly issued Glock pistol and use it." (emphasis added) (Transcript p 679)

33 In the course of objecting to Exhibit W, defence counsel argued:

"Nobody says, "I saw an envelope", nobody has any reference to an envelope, and as to what the contents of the envelope are, which - clearly, they belong to the envelope, when they were put in there, is impossible to say and it's pure speculation and doesn't advance the Crown case in any way, shape or form." (emphasis added) (Transcript p 676)

34 In my view, the appellant's submission that these objections taken by defence counsel demonstrate that he raised the risk of unfair prejudice and therefore, implicitly, the issue of s 137 for the trial judge's consideration cannot be accepted. The fundamental objection at trial to the admissibility of the four exhibits was plainly one of relevance (see Transcript pp 665-6, 674-6). The defence bore the onus of having the evidence excluded under s 137 on the basis of unfair prejudice (Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593 at [46]; Kuehne v R [2011] NSWCCA 101 at [21]) but defence counsel, no doubt for good reason (there being no suggestion of incompetence), chose not to invoke it (see Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at [64]). As observed by R A Hulme J, with whom Beazley P and Bellew J agreed, in Bin Sulaeman v R [2013] NSWCCA 283:

"[t]here is a general requirement in an adversarial court or tribunal that counsel make clear the grounds on which they press an objection or seek some other ... procedural or discretionary ruling ... At least in criminal trials in NSW, the only limit to that rule is the requirement upon the trial judge to ensure for the accused a fair trial according to law ... A trial judge is entitled to, and counsel are obliged to provide, a proper foundation on which to base a ruling when asked to exercise a discretionary power. Objections to evidence are not at-large contentions concerning admissibility; they are vehicles for the raising of specific issues" (at [133], [139]).

35 I do not consider that, in the statements at the trial relied upon on appeal, defence counsel was asserting a prospect of prejudice to his client by the jury's misuse of the evidence, such as to impliedly invoke s 137. Rather, in my view counsel was simply advancing his submission that the items were irrelevant and therefore inadmissible.

Whether an independent obligation to consider s 137

36 The question which then arises is whether, because the appellant had objected to the evidence on the ground of relevance, the trial judge was obliged to undertake the balancing exercise set out in s 137 in the absence of any reliance by the defence on that section. The appellant contended that the "requirement to ensure a fair trial must include a consideration of section 137" (supplementary submissions at [12]).

37 Whether there is a duty on a trial judge to consider excluding evidence pursuant to s 137 in the absence of an application to do so has been the subject of authority in this Court.

38 The reasoning in this Court's earlier decision in Steve v R [2008] NSWCCA 231; 189 A Crim R 68 was disapproved in FDP v R [2008] NSWCCA 317; 74 NSWLR 645. In the latter case, the appellant had pleaded guilty to three counts of taking a child with intent to remove the child from the lawful control of the complainant (his wife) without her consent, and was convicted at trial of the further offence of wounding contrary to s 35 Crimes Act 1900 (NSW). On appeal, the appellant contended that the trial miscarried due to the reception of inadmissible or unfairly prejudicial evidence to which no objection was taken at trial - namely, evidence of the making of an Apprehended Domestic Violence Order against the appellant and of particular statements made by the appellant towards his wife during the course of an argument.

39 This Court, constituted by McClellan CJ at CL, Grove and Howie JJ, held that a trial judge is not obliged by s 137 to reject evidence on his or her own motion in the absence of an objection based on that section.

40 The Court adopted (at [28]) the following passage from the joint judgment of Gleeson CJ and Hayne J in Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1:

"[20] Sections 114 and 115 [concerning identification evidence], like many other provisions of the Evidence Act, declare that evidence of a certain kind is not admissible in certain circumstances, or unless certain conditions are fulfilled. Yet evidence of a kind to which those sections refer may not be the subject of objection. Counsel for an accused person may have any one of a number of reasons for not objecting. A trial judge ordinarily will not know why no objection is taken, and may have no right to enquire ... The Evidence Act applies in an adversarial context. It is the parties, and their counsel, who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection ..."

41 The Court in FDP v R continued:

"[28] With respect, we find the argument contained in paragraph 20 in the judgment of Dhanhoa set out above compelling in rejecting the notion that, generally speaking, a trial judge should take upon himself or herself the role of determining the admissibility or reception of evidence to which no objection is taken by a lawyer representing an accused person. There may be provisions that unambiguously impose such an obligation on a court by the wording of the section, for example s 275A [of the Criminal Procedure Act 1986 (NSW), now repealed], or by reason of its subject matter; for example provisions concerned with the exclusion of evidence in the public interest such as s 130. But we do not believe that s 137 falls into either of those categories and therefore, imposes an obligation on a trial judge to reject evidence of his or her own motion where no objection is taken and the accused is legally represented. There may be exceptional situations where a trial judge is compelled to intervene in order to prevent a miscarriage of justice, but there is in our opinion no provision of the Evidence Act that requires such intervention." (emphasis added)

[29] So far as s 137 is concerned, we do not understand how a trial judge could reliably undertake the balancing exercise that the section requires between the probative value of the evidence and the danger of unfair prejudice without a complete understanding of both the Crown and defence cases and the arguments to be addressed to the jury by the parties. Yet the section is engaged when the Crown first introduces the evidence that is later impugned in this Court. This difficulty is alone sufficient to lead us to the conclusion that s 137 cannot operate to oblige a judge to reject evidence that may later be seen in the context of the whole of the trial to have resulted in a miscarriage of justice."

42 The Court found that no miscarriage of justice had occurred as a result of the admission of the evidence in question and dismissed the appeal against conviction. In that case, no objection at all had been taken at trial to the tender of the evidence. However, I consider the Court's reasoning to be equally applicable where, as here, an objection is taken to the evidence but on a basis other than s 137. This is arguably an a fortiori case because it is clear in such a situation that defence counsel (assuming that the accused is represented) has turned his or her mind to the admissibility of the evidence and, it can be inferred, has decided to confine the objection to one of relevance.

43 Furthermore, contrary to the appellant's contention, I do not consider the reasoning in FDP to be inapplicable where, as in the present case, the evidence is tendered late in a Crown case which concludes the evidence at the trial because the accused does not call evidence. Although the Court in FDP remarked on the difficulty of applying s 137 where the trial judge has less than complete knowledge of the parties' cases, this was not the basis, or at least not the only basis, of the Court's decision. In any event, in the situation postulated by counsel for the appellant in this case, whilst the evidence might be near completion, closing addresses are yet to be made.

44 In Potts v R and Shepherd v R [2011] NSWCCA 245, the Court affirmed the decision in FDP that s 137 of the Evidence Act does not impose an obligation on a trial judge to reject evidence to which no objection under s 137 has been taken at trial by defence counsel (at [66] and [30] respectively). In the latter decision, the Court stated that it "should be careful in the assessment of submissions made by reference to provisions of the [Evidence] Act which are said to apply, when no argument to that effect was made to the trial judge (in particular by experienced counsel)" ([30]).

45 Finally, in Penza and Di Maria v R [2013] NSWCCA 21, Hoeben JA reviewed the reasoning in Steve v R, FDP v R and Chand v R [2011] NSWCCA 53 in respect of s 137. In relation to Chand, his Honour noted (at [197]) that:

" ... with the concurrence of McClellan CJ at CL and Blanch J, I upheld a ground of appeal based on s 137 Evidence Act, even though objection had not [been] taken to the evidence at trial. I did so because the Court was referred to the decision in Steve v R but was not referred to FDP. Having now had the opportunity of reading both those decisions, I have no doubt as to the correctness of the reasoning in FDP and that on this issue, Le and Steve should not be followed."

46 At [226] of Penza and Di Maria Campbell J, with whom Button J agreed on this point, preferred to reserve his position in relation to s 137 since

" ... strictly, this aspect does not arise for the reasons expressed by [Hoeben JA] at [192]-[193]. And, as the differences were not identified by counsel nor addressed by them, I would prefer to leave the resolution of the question to an appropriate case where the Court has had the benefit of full argument."

47 In both Steve and Chand, where the Court found that the trial judge ought to have considered s 137 independently of any objection by trial counsel, the danger of unfair prejudice arising from the evidence in question was plain. In Steve, the material included evidence of "extreme bad character" (being that the appellant was a sexual predator, a child molester and a person of violent disposition towards women), and tendency or propensity evidence in respect of which no notice had been served on the accused (see ss 97, 100 Evidence Act; Steve at [61]-[62], [64], [66]-[67], [69], [81]). Moreover, that material was either irrelevant or bore "no probative value" at all (at [58], [60], [64], [66], [69]).

48 Likewise in Chand, the evidence consisted of 20 COPS entries detailing complaints made by the appellant to the police in relation to alleged conduct on the part of his neighbours, problems with the CIA, and planes flying over his house in order to spy on him and his family (see [80]). In the context of an allegation that the appellant had intentionally driven his vehicle at a motorbike ridden by a neighbour, that evidence clearly posed a danger of unfair prejudice to him.

49 Where, as in those cases, the danger of unfair prejudice is manifest, an obligation to exclude the evidence under s 137 may arise in accordance with the trial judge's overriding obligation to ensure a fair trial according to law (Pemble v R [1971] HCA 20; 124 CLR 107 at 117-8 per Barwick CJ; James v R [2014] HCA 6; 88 ALJR 427 at [24]). However, any risk of undue prejudice arising from the exhibits impugned in the present case cannot be characterised as so obvious or self-evident that the trial judge was obliged to intervene to ensure that the appellant was not denied a fair trial by reason of their reception into evidence. The decision of counsel for the appellant at trial to refrain from invoking s 137 for the trial judge's consideration and to object instead to the admission of the evidence on the basis of relevance tends to confirm this to have been the case: see Ward v R [2013] NSWCCA 46 at [27].

50 Accordingly, I consider that the trial judge did not err in failing to consider s 137 of his own motion. The question then arises of whether the appellant can rely on s 137 for the first time on appeal, either as of right or pursuant to r 4 of the Criminal Appeal Rules (NSW).

Whether rule 4 applicable

51 Rule 4 of the Criminal Appeal Rules provides as follows:

"4 Exclusion of certain matters as grounds for appeal etc

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."

52 It was common ground between the parties that the appellant required leave under r 4 to raise Grounds 2, 3 and 4 of the appeal as the complaints embodied within those grounds were not raised for the trial judge's consideration (see appellant's supplementary submissions at [3]). However, the appellant contended that he did not need leave to rely on Ground 1, even assuming that it did not reflect a point taken at first instance, because he had objected to the subject evidence, although on a different ground to that the subject of Ground 1. At the appeal hearing, the parties were directed to file and serve supplementary written submissions on the operation of r 4 where objection to the admission of evidence is taken at trial on one basis and, on appeal, objection is taken on a different basis. The Crown submitted, and the appellant denied, that r 4 applies in those circumstances.

53 In Bin Sulaeman v R, the appellant was convicted of aggravated people smuggling. He appealed against his conviction inter alia on the basis that the trial judge erred in admitting evidence of a confession. Counsel for the accused had objected at trial to the admission of the evidence by reference to ss 85, 90, 138 and 139 of the Evidence Act, but on appeal raised various points concerning the Migration Act 1958 (Cth) and Crimes Act 1914 (Cth) which had not been relied on at trial. R A Hulme J (with whom Beazley P and Bellew J agreed) held that r 4 applied to those points (at [132]). In coming to that conclusion, his Honour observed that:

"Reading the rule literally, leave would not be required to appeal an evidentiary ruling where objection was taken on any ground. That is, no matter how unmeritorious the objection that was taken at trial, an appellant is thereby free to raise any new ground for the objection on appeal. That cannot be the correct reading of the rule because it flies in the face of established principles of appellate procedure" (at [124]).

54 A similar conclusion with respect to r 4 was reached by Simpson J in Vickers v R [2006] NSWCCA 60; 160 A Crim R 195. In that case, counsel for the appellant had argued at trial that a particular statement ought to be excluded for discretionary reasons but on appeal contended that the statement was hearsay which was not rendered admissible by s 65 of the Evidence Act. The appellant submitted that leave was not required to advance this objection in light of the objection to the evidence at trial. Her Honour held that it was. James and Hall JJ preferred to reserve the question of whether leave under r 4 was required ([16] and [120]), although Hall J considered Simpson J's reasons to be "persuasive" ([120]). Her Honour's decision with respect to the scope of r 4 was cited with approval in Shepherd v R at [26].

55 In the present case, the objection to the four exhibits at trial was based on relevance, while the objection advanced on appeal is based upon s 137, the former having now been conceded (as noted at [29] above). In my view the objection as to relevance cannot suffice to allow objections on any basis to be advanced on appeal without first obtaining leave. To hold otherwise would be contrary to the purpose of r 4 and the discouragement of "armchair appeals" which that provision seeks to achieve (see Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 at [169]-[170]; Flanagan v R [2013] NSWCCA 320 at [69]-[72]). It would also undermine basic principles of appellate review and the efficient administration of justice. The decisions in Bin Sulaeman, Vickers and Shepherd support this conclusion.

56 Accordingly, the appellant requires leave pursuant to r 4 to proceed with all four grounds of appeal.

Whether leave should be granted under rule 4

57 In Papakosmas v R [1999] HCA 37; 196 CLR 297, McHugh J articulated the following principles with respect to the application of r 4:

"There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant" (at [72]).

58 In the present case the appellant must therefore demonstrate that a miscarriage of justice was, or at least may have been, occasioned by the admission into evidence of the four exhibits.

59 In ARS v R [2011] NSWCCA 266, Bathurst CJ provided the following summary of important considerations in relation to the operation of r 4 (at [148]):

"The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].

The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].

A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].

An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."

60 The appellant has not in my view demonstrated that he lost "a real chance (or a chance fairly open) of being acquitted" by the admission into evidence of the four exhibits. Whether unfair prejudice might have arisen from the admission of those exhibits must be considered in the context of the trial as a whole and in conjunction with the body of evidence of which they formed a part: Aytugrul v The Queen [2012] HCA 15; 247 CLR 170 at [30]. The Crown case at trial was that the appellant was motivated by the prospect of financial gain to remove William Metlej from his position of control of the Metlej family business so that Joseph Metlej could assume his place, giving the appellant greater access to the company. One aspect of that case was that Joseph was a vulnerable and impressionable person "liable to be influenced by a person purporting to be a friend" (Judgment of 21 March p 2, quoted above at [21]).

61 By the time that the four exhibits were tendered, oral evidence had been given by Joseph Metlej, Maratos and Martin that the appellant had held himself out on various occasions to be an undercover agent with the AFP or otherwise working covertly for the police (Transcript pp 225-8 (Joseph), pp 431-2 (Maratos), 598, 606-7, 640, 660 (Martin)). The exhibits were tendered for the purpose of providing some corroboration of this evidence. The appellant's sensible withdrawal on appeal of his objection to them based on relevance recognised that they were capable of doing this.

62 The conclusion that trial counsel did not regard the items as unfairly prejudicial is supported by the terms of his final address to the jury (quoted above at [27]) in which he made no attempt to dissuade the jury from making any improper use of the exhibits. He simply sought to contradict the Crown's case that they were relevant to corroborate the evidence of the Crown's principal witnesses, contending that they would be of little, if any, use to the jury.

63 The Crown referred to the purpose of the exhibits in its closing address (see [25] to [26] above). The trial judge did likewise (see [24] and [28] above). His Honour warned the jury on a number of occasions of the caution with which the evidence of Joseph Metlej, Maratos and Martin should be approached, and the need to seek verification of their respective accounts in the independent evidence. His Honour stated:

"you would be very cautious for reasons I have explained ... to accept any of their evidence standing alone. You would be looking, and you will be looking no doubt when you deliberate, particularly to see whether outside of their three bodies of evidence there are other things independently which support their various stories" (Summing-Up pp 43-4).

64 In these circumstances, it must have been abundantly clear to the jury why the four pieces of evidence were admitted.

65 The appellant submitted that the risk of misuse of them by the jury was highlighted by the Crown's closing address when the Crown stated that the exhibits "speak volumes. Volumes in terms of supporting what Mr Joseph Metlej says about Christopher Poniris passing himself off as a policeman" (Transcript p 3, quoted at [26] above; written submissions at [45]). However, once those items were ruled to be admissible, the Crown was entitled to rely upon them in support of its case and in support of the evidence that the appellant was passing himself off as a police officer. The weight to be accorded to the exhibits was a matter for the jury, as the Crown acknowledged in its closing address (Transcript of 22 March, p 5), and reasons for attributing little weight to those items were a matter for defence counsel to advance in closing address.

66 There was clearly room for two views as to the weight that should be given to the items: the defence said little and the Crown said much. It was for the jury to choose between these views. Accepting (as the appellant now does) that the items were of at least some relevance, I do not consider that acceptance by the jury of the Crown's submissions concerning the weight to be attached to them could have constituted misuse of the evidence. That would have involved the items' use for the purpose for which they are accepted to have been relevant and a decision as to how cogent they were in fulfilling that purpose. The latter was quintessentially a matter for the jury.

67 It is well established that evidence is not unfairly prejudicial merely because it strengthens the Crown case (see Papakosmas at [91]). Rather, the prejudice contemplated by s 137 is prejudice that is unfair "because there is a real risk that the evidence will be misused by the jury in some unfair way": R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL; see also R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [72] per Spigelman CJ (Simpson and Adams JJ agreeing). As stated by McHugh J in Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51], evidence is unfairly prejudicial under s 137:

"... only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may inflame the jury or divert the jurors from their task."

68 The tender of the four items in question in the present case did not give rise to such a risk. The purpose for which they were tendered was made plain to the jury by the closing addresses of both the Crown and the defence, and by the terms of the trial judge's summing-up. There is no reason to conclude that the jury did more than accept the Crown submissions concerning the items, a course that was open to it.

69 In these circumstances, the appellant has not established that a miscarriage of justice, which would provide a basis for a grant of leave under r 4, may have occurred. Moreover, it is highly likely that an application at trial under s 137 to exclude the four items would have failed. The evidence would have been found to possess some probative value and not be such as might be misused by the jury so as to cause unfair prejudice to the appellant.

GROUND 2: THE JUDGE FAILED TO ADVISE THE JURY ON THE LIMITED RELEVANCE OF EXHIBIT Y IN ACCORDANCE WITH HIS JUDGMENT ON THE ADMISSIBILITY OF THE EXHIBIT

70 The appellant accepts that r 4 applies to this ground. The appellant must therefore establish that a miscarriage of justice was, or at least may have been, occasioned by such a failure.

71 Exhibit Y was the bundle of documents concerning the appellant's firearms licence. It was admitted into evidence in the following circumstances.

72 Detective Nestorovic, through whom the exhibit was tendered, was asked by the Crown whether the name "Con Adams" appeared on any of the documents comprising Exhibit Y (Transcript p 695). After responding in the affirmative, Detective Nestorovic complied with a request by the Crown to mark with "Post-it" notes any pages upon which the name "Con Adams" appeared. The evident basis upon which that exhibit was placed before the jury was to draw some link between Con Adams and the appellant. The fact that the trial judge did not in terms later advise the jury of this "limited relevance" of the item in accordance with his judgment on admissibility was not therefore of significance because the purpose of the tender would have otherwise been apparent to the jury from what occurred at the time of tender. In any event, as I have concluded above (see [68]) and reiterated below in relation to Ground 4, the purpose for which Exhibits W, X, Y and AA were tendered was made clear to the jury by counsels' addresses and the trial judge's summing-up.

73 The appellant submitted that the manner in which the Crown addressed the jury in relation to Exhibit Y went beyond the trial judge's ruling on admissibility. He pointed to the passage in the Crown's closing address quoted at [26] above in support of his submission.

74 I reject this submission. I do not consider that the Crown went beyond relying on Exhibit Y to demonstrate a connection or association between the appellant and Con Adams. This was the basis upon which the exhibit was admitted into evidence by the trial judge's judgment of 21 March 2012.

GROUND 3: THE TRIAL JUDGE FAILED TO DIRECT THE JURY OF THE LIMITATIONS [ON USE] OF THE EXHIBITS W, X, Y AND AA

75 The trial judge was not requested to give the direction the subject of this ground of appeal. Nor was he requested to give any direction concerning potential misuse of the items or alternate scenarios that may have been open on the evidence, nor was any redirection sought by defence counsel after or in the course of the summing-up. This supports the view that, in the context of the trial, fairness did not require that such directions be given. While his Honour did not refer in his summing-up to the limited basis upon which exhibit AA, being the helmet, was admitted (as to which see [23] above), the jury had been advised at the time of its tender of the limited use to which it could be put: namely, to show some "connection or association" between the appellant and Sgt George Adams (see [24] above). As his Honour noted to the jury at that time, "[t]here's no suggestion that he stole the helmet or anything. It's just to show that there was some connection with George Adams" (see [24] above). Defence counsel, having conceded that point with his Honour (Transcript p 680), made no attempt in his closing address to warn the jury against impermissible use of the item (Transcript p 39 as quoted at [27] above). Furthermore, what I have said above concerning the four items and Exhibit Y in particular (see [62] to [64], [68], [72]) indicates that the jury would have been well aware of the purpose for which the items were sought to be used.

76 For these reasons, I do not consider that the appellant has established any deficiency in the trial judge's directions to the jury. As a result, leave to raise Grounds of Appeal 2 and 3 should be refused.

GROUND 4: THE JUDGE ERRED IN FAILING TO PROPERLY DIRECT THE JURY ON THE QUESTION OF A MOTIVE TO LIE

77 In relation to this ground, the appellant submitted that it was necessary for the trial judge to direct the jury that a rejection of a motive to lie on the part of Joseph Metlej, Maratos and Martin would not lead to a conclusion that those witnesses were telling the truth. The appellant pointed out that each of the three main witnesses was the subject of significant cross-examination on his motive to lie about the appellant's involvement in the joint enterprise. That motive was said to be to obtain and retain the benefit of an indemnity, in the case of Martin and Maratos, and, in the case of Joseph Metlej, to minimise his sentence. The appellant submitted that in these circumstances the "motive to lie direction is fundamental to the onus of proof" and that "it is so fundamental to a fair trial, particularly when the motive to lie played such a large part in the trial" that a failure to give the direction occasioned a miscarriage of justice (written submissions at [75]). The appellant did not seek such any such direction at trial.

78 The appellant relied in support of its submission upon the following statement by Latham J (with whom Spigelman CJ and Hidden J agreed) in Doe v The Queen [2008] NSWCCA 203; 187 A Crim R 328 at [58]:

"Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive ("the central theme"), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful."

79 Doe, and the cases upon which it relied, concerned convictions for sexual assault offences and an impermissible invitation to the jury to question why the complainant would lie. Such an invitation arguably reverses the onus of proof by placing a burden on the accused to demonstrate why the complainant would lie.

80 In the present case, the potential unreliability of the three relevant witnesses was squarely canvassed in the appellant's cross-examination of them, by the Crown itself and in the trial judge's directions to the jury. In addition to his thorough directions concerning onus and standard of proof, the trial judge instructed the jury that "it is not for the accused to establish the reason or reasons why the witness was lying" (Summing-Up pp 1-2, 8-9). At no stage was the jury invited to reason that a rejection of the asserted motives would lead to the conclusion that the three witnesses were telling the truth.

81 In these circumstances, I do not consider that it was necessary for the direction referred to by the appellant to be given. I would therefore refuse a grant of leave under r 4 of the Criminal Appeal Rules to rely on this ground.

CONCLUSION AND ORDERS

82 I propose the following orders:

(1) Refuse leave to the appellant to rely on any of his four grounds of appeal.

(2) Appeal dismissed.

83 ADAMSON J: I agree with Macfarlan JA.

84 BELLEW J: I agree with Macfarlan JA and the orders his Honour proposes.

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Decision last updated: 05 June 2014