R v Sielaff[2023] QCA 115

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  The appellant was convicted, following a trial by jury, of one count of burglary in the night, while armed and in company; one count of attempted armed robbery, in company, with personal violence; and one count of threatening violence at night.  He appeals against the convictions on the following grounds:

   1. (a)
      first, that “without the learned trial judge’s permission, the Crown prosecutor wrongly asked questions of the appellant tending to show that he had committed or been convicted of offences other than that with which he stood charged thereby occasioning a miscarriage of justice”; and
   2. (b)
      second, that “a miscarriage of justice was occasioned by the learned trial judge’s failure to direct the jury as to the use to be made of the wrongfully admitted evidence concerning the appellant’s prior imprisonment”.
2. [2]
   The two grounds are necessarily linked – the appellant accepts that, even if the first ground is made out, it is only if the second is also made out that the appeal would succeed.
3. [3]
   In my view, there was no miscarriage of justice and the appeal should be dismissed.  In order to explain the reasons why, it is necessary to say something more about how the trial evolved.
4. [4]
   The appellant was charged with another person, Ms Kissier.  The Crown case was that the appellant and Ms Kissier went to the home of the complainants, Mr Pitts and Ms Fahrenhorst, who were known to them, at about 10 pm on the night of 25 August 2020.  A third unnamed person was also with them.  Ms Kissier went into the house first, seemingly under the ruse of visiting Ms Fahrenhorst, and wanting to use the bathroom.  She asked for the complainants’ dogs to be put outside.  At that point, the appellant and the unnamed person (whose face was partially covered with a scarf) entered the house.  The unnamed person demanded money and jewellery from the complainants.  When they said they did not have any, the appellant pointed a firearm at them; and the unnamed person produced a taser, which was used in relation to Mr Pitts.  Mr Pitts ran to the kitchen, to try to let the dogs back into the house.  Ms Kissier tried to prevent that.  The appellant was still pointing the firearm and Ms Kissier told him to “shoot him, shoot him”.  Mr Pitts managed to get the door open, and the dogs ran in and chased the offenders, who then ran out the front door and got into a car.  Mr Pitts followed them out to the car, to see what the number plate was.  The unnamed person got out of the car again and pointed a gun at Mr Pitts.  Mr Pitts was able to hide behind a gate, which gave him some protection when the unnamed person discharged the gun, resulting in only a small injury to his leg.  All three offenders then left in the car.
5. [5]
   Cross-examination of the complainants, in particular Mr Pitts, challenged their credit, including on the basis of their own involvement in relation to the possession, use and sale of drugs.  In particular, Mr Pitts was cross-examined as to a previous conviction he had for an offence of trafficking, as well as in relation to his involvement in the sale of drugs more generally.  It was put to each of the complainants that on the night in question, the appellant and Ms Kissier had come over to buy (morphine) pills and cannabis from Mr Pitts and a dispute had arisen resulting in Mr Pitts chasing them out of the house with a knife and attempting to slash a tyre on their car.  It was put to both complainants that they had lied in their description of what occurred, including as to the appellant having a firearm, to deflect attention from their own drug offending when the police were called by a neighbour.
6. [6]
   In addition to the evidence of the complainants, the Court heard evidence from the son of the complainants, who was present at the home on the night of 25 August 2020, various neighbours and police officers.
7. [7]
   At the close of the Crown’s case, Ms Kissier was called on and elected not to give or call evidence.  The appellant elected to give evidence. 
8. [8]
   In his evidence, the appellant said that he went to the complainants’ house to “get some morphine pills”.  When asked why he wanted the pills, the appellant said:

“I had my arm broken about a month beforehand by a couple of bikies.  They used a baseball bat. It was broken really badly. I spent a couple of days in hospital. I had a short script for morphine pills and Oxycontin to keep the pain away. That script had ran out.”

9. [9]
   The appellant was asked if he also used drugs and he said yes.  He admitted he was a drug addict.  He described how he and Ms Kissier came to meet the unnamed third person, and how he came along with them because he wanted to get “weed and morphine pills as well”.  The three of them drove to the complainants’ house.  The appellant said that when he went into the house, he had a “bum bag” with a taser in it.  He said that he had the taser “for protection” because “after I got beaten up and my arm broken, I got beaten up a couple more times after that [a]nd because I had one arm … I couldn’t defend myself”.
10. [10]
    The appellant said that he told Mr Pitts what they wanted – weed and pills – and Mr Pitts said “no worries”.  The appellant said that when he opened his bum bag, to take some money out and count it, an argument started with Mr Pitts, who said they needed to talk about the money the appellant and Ms Kissier owed him.  The appellant disputed that any money was owed, and said Mr Pitts became aggressive and then pulled out a big knife.  In response, the appellant pulled out the taser, and said “don’t come near me with that fucking knife… I’ll zap you…”.  That did not deter Mr Pitts, who advanced towards the appellant.  The appellant said he “brushed him” with the taser, causing Mr Pitts to start to scream “get out of my house!”
11. [11]
    The altercation continued, moving into the kitchen, as the appellant was waiting for Ms Kissier to come out of the bathroom.  They left the house, getting into the car with the unnamed third person.  The appellant said Mr Pitts pursued them outside, still wielding the knife, and proceeded to slash one of the car’s tyres.  The unnamed person got out, and pointed a gun at Mr Pitts, who jumped behind a fence.  After the gun was fired, they drove away.
12. [12]
    At the end of the appellant’s evidence in chief, the prosecutor indicated that she had an application to make in the absence of the jury.  She applied for leave pursuant to s 15 of the Evidence Act 1977 (Qld) to cross-examine the appellant in relation to his criminal history.  This was said to be on the basis that the cross-examination of the (male) complainant, Mr Pitts, had given rise to imputations in relation to the character of Mr Pitts, including “that he was a person in possession of dangerous drugs, being cannabis, that he was a person who was supplying morphine pills to other persons”.  The prosecutor submitted that, as Mr Pitts’ bad character had been raised on the defence case, leave ought to be granted to cross-examine the appellant in relation to his history.  In particular, the prosecutor said that she wished to cross-examine him regarding entries on his history in relation to dangerous drugs and dishonesty offences.
13. [13]
    The application was opposed by trial counsel for the appellant, in part on the basis that it was counsel for Ms Kissier who had cross-examined Mr Pitts about those things, not him, and otherwise on the basis that it was part of the defence case that Mr Pitts was a drug supplier – that is, that the reason the appellant went to the house on the night in question was to obtain drugs – consequently, it was not a “gratuitous attack” on Mr Pitts’ character, but “goes to the heart of” the appellant’s defence.
14. [14]
    In the course of hearing submissions in relation to this application, the learned trial judge commented as follows:

“Now, the other consideration I must carefully weigh up without in any way seeking to be disrespectful to Mr Sielaff, but it would be patently obvious to the jury that he has got a face covered with tattoos. In the course of his evidence he made reference to having been the victim of an assault by some bikies.

…

And some of the terminology he used in the course of his evidence-in-chief, which included he was wanting to get on, would hardly have escaped the attention of the jury, I wouldn’t have thought – I would have thought that that is the terminology that would be used by someone who is very well familiar with the drug scene. In other words, it might be said that the jury would be – it could be said that the jury would be well aware, from the use of terminology such as that and seeking to obtain morphine, that the defendant is someone who has drug related issues, if I can put it as neutrally as that.

So this is not a case, I wouldn’t have thought, where you’ve got a defendant seeking to present himself as being of impeccable character and had innocently gone over to the complainant’s house and then, for whatever reason, becomes the victim of an attack by one of both of the – or one of the complainants who produces a knife. You see the point I’m making. This is – in terms of what was referred to in paragraph 60 of Hyatt, it could be hardly said that in this case the defendant has presented himself as conviction free and thereby of superior character to the witness.” [emphasis added]

15. [15]
    At the end of the prosecutor’s submissions, in relation to the application for leave to cross-examine about aspects of the appellant’s criminal history, she said:

“Your Honour, the only other thing that I wish to raise out of an abundance of caution, prior to cross-examination, is that I do intend to delve into cross-examination of his relationship with bikies. It came out of evidence-in-chief, in my submission.”

16. [16]
    There was no objection to that.  The trial judge simply said “yes”.
17. [17]
    The trial judge was satisfied that s 15(2)(c) of the Evidence Act was invoked, because the nature of the conduct of the defence (of both defendants) had been such as to involve imputations on the character of both complainants.  However, in the exercise of the discretion, his Honour refused to permit the prosecutor to cross-examine the appellant on his criminal history.
18. [18]
    In articulating his Honour’s reasons, the trial judge reiterated:

“For completeness in determining this application, I note a number of other considerations that I must carefully weigh up. The first is, without this being disparaging of Mr Sielaff, he is heavily tattooed on his face. The jury are well aware of that.

Secondly, in the course of cross-examining Mr Pitts, it was, as I’ve noted already, expressly put to Mr Pitts that the defendant was seeking to obtain both morphine as well as cannabis. And the inevitable inference from that insofar as the jury is concerned is that the defendant was obviously a user of drugs. Thirdly, the defendant, in his evidence-in-chief, made reference to having been the victim of a bashing by bikies which left him with an injury which in turn brought about his need to obtain morphine. It’s the reference to the bikies which in my view would no doubt lead the jury to an understanding that the defendant was at least mixing with bad company.” [emphasis added]

19. [19]
    His Honour also said:

“Ultimately in this case here, there has already been evidence adduced which in my view the jury can draw some conclusions as to Mr Sielaff’s general character. It would be evident in my view to the jury that he is a user of drugs. And it would be evident to the jury that even on his case, he was seeking to purchase drugs somewhat illicitly from Mr Pitts. It would be evident to the jury, as I’ve noted already, that he’s had some connection with bikies and it’d be evident to the jury from his facial tattoos that that, in itself, might reflect something of his character. Again, I don’t wish to be disrespectful in that regard.

…

In my view, there is already evidence before the jury upon which the jury can make an assessment of the defendant’s general credit. There is no risk in this trial – at least in my view from having regard to the evidence already adduced – that the jury could, in any way, believe that the defendant, himself, is conviction free and is otherwise of superior character to either of the two complainants, and that is a particularly relevant matter in terms of exercising the discretion under section 15. Ultimately, therefore, I’m not persuaded in the particular circumstances of this case that leave should be granted.” [emphasis added]

20. [20]
    The cross-examination of the appellant proceeded after that ruling.
21. [21]
    Consistent with the indication she had given earlier, which elicited no objection from either counsel or the trial judge, the prosecutor asked the appellant to “tell the court a bit more about your association with bikies”, and the following evidence was given in response:

“MS ALDAS: … And can you tell me a bit more about – well, can you tell the court a bit more about your association with bikies?---I used to be one.

When was that?---A while ago.

Do you recall when you first became a bikie?---When – when I was younger, I made some bad decisions, poor choices with friends. That’s all I can say about that.

All right. And so you said, “when you [were] younger”. How long or how much earlier than the 25^th of August did you have association with bikies?

HIS HONOUR: Well, you mean 2020.

MS ALDAS: Of 2020?---So I stopped being in a club twenty – 2016.

Twenty-sixteen. All right. And so tell me more about this incident in which some bikies broke your arm?---I – I went to take a the car back for a friend that was accused of stealing one. I took the car back to the owner. The owner had a couple of other rival people there. Because I reside in was [indistinct] protection in the Boneyard – which is not mainstream – it was brought up. Couple of guys there that were from the Rebels Biker Bikie Gang. They wanted to fight me. I didn’t want to fight. They proceeded to fight me. I fought back, and I got – I got beaten up.

All right. And so what do you mean by “protection in the Boneyard” - - -

HIS HONOUR: Well, is there any issue with that, Mr Bassett? [trial counsel for the appellant]?

MR BASSETT: No, your Honour.

HIS HONOUR: Yes. Thank you?---Well, because I’m an ex-bikie gang member, I can’t current – I’m considered low class. Like – like, I’m considered an outcast.

MS ALDAS: What do you mean by “protection”? When you say “protection”?---I’m not – I’m not in the mainst – I’m not in mainstream. Like, I’m a protection prisoner. I don’t – I don’t hang with gang members at all. You know what I mean.  Like, I’m an ex-gang member. So I’m considered an outcast.

And what’s “Boneyard” a reference to?---It’s just what they call it. It’s - - -

Being in protection?---Yeah.

Thank you. And so when did this incident occur that you broke your arm?---This happened 2020.

Okay - - -?---This - - -

- - - when in 2020?---It would’ve – see – August. July. July.

All right.

HIS HONOUR: So about a month before - - -?---Yeah.

- - - the incident we’re dealing with - - -?---Yes, sir.

- - - in this trial?---Yeah. July.”^[1]

22. [22]
    After the appellant had given his evidence, and the defence case was closed, the trial judge discussed with counsel the directions to be given.  As part of that discussion, the trial judge said to the appellant’s counsel:

“In your case, Mr Bassett, the jury have obviously heard, both in chief and in cross-examination of Mr Sielaff, of some involvement with bikies. How do you wish me to deal with that? Do I give a propensity direction ie they’ve heard evidence about that but they must not impermissibly reason that if he has in the past been a member of a bikie gang, that that makes him the sort of person who would have committed this type of offending? Or do you just want me to leave it alone?”

23. [23]
    As this discussion occurred at the end of the third day of the trial, Mr Bassett accepted the judge’s offer to “think about that overnight”, saying “I’ve got one foot on either side”.  It is noteworthy that, at this time, the trial judge did not ask about whether Mr Bassett also sought a direction in relation to the appellant’s evidence in cross-examination, where he made reference to the phrase “protection prisoner”.
24. [24]
    Mr Bassett returned to the matter the following morning, to say he would be “referring to that in … part of my closing address”, so it would be appropriate for the judge to give those directions (that is, not to adopt propensity reasoning, that because the appellant was previously part of a bikie gang, that made him more likely to have committed the offences for which he was on trial).  There was then an exchange between the trial judge, the prosecutor and Mr Bassett about how far the direction ought to go – that is, should it be limited to directing the jury not to engage in propensity reasoning, or go further, in terms of a direction that it ought not be taken into account in assessing the appellant’s reliability generally.  It was agreed that the issue would be returned to after the closing addresses.
25. [25]
    Mr Bassett addressed the jury at length on the fourth day of the trial.  Unsurprisingly, he spent considerable time attacking the credibility and reliability of the complainants’ accounts of what occurred.  Whilst emphasising the appellant bore no onus, he submitted to the jury that they would find the appellant had been open and frank with them.
26. [26]
    Before the prosecutor, Ms Aldas, commenced her closing address, there was a further discussion about what the prosecutor proposed to say to the jury, in relation to the appellant’s former association with bikie gangs and how that might affect his credibility.  Ms Aldas had, it seems, initially intended to submit to the jury that the fact of that past association could be used by the jury as a matter unfavourably affecting his credibility.  However, following a short adjournment and an apparent discussion with Mr Bassett, when Ms Aldas ultimately addressed the jury, she submitted that they would reject the appellant’s evidence as it was not reliable, credible or convincing; but in articulating why the jury would reject his evidence, Ms Aldas placed no emphasis on his past connections with bikie gangs – instead, emphasising what she said was the implausibility of his account.
27. [27]
    Just before Ms Aldas commenced her address to jury, the trial judge returned to the question of directions, and the following exchange took place:

“Just a couple of other issues that have come to mind. In the course of cross-examination of the defendant, there was some cross-examination which concerned the defendant being in the motorbike gang and then some cross-examination about as to how he came to injure his hand. Now this is at 3-43. At lines 13 to 15, he was asked this:

What do you mean by protection?---When you say protection, –

he says –

- I’m not in mainstream. Like, I’m a protection prisoner. I don’t hang with gang members at all. Like, I’m an ex-member, so I’m considered an outcast.

Now, the reference there to being a protection prisoner is – might potentially lead to an inference that the defendant is currently in jail. Now the – you – it’s perhaps more a matter for you, Mr Bassett. Do you want me to give any directions about that part of the evidence? Because I, in fact, was concerned when that started to emerge, as you’ll see at the top of page 5 – sorry, 3-43, where I said:

Is there any issue with that, Mr Bassett?

Because he’s talked about protection in the boneyard.

Now, I inferred what he was referring to there was being in protection in jail, which is why I asked if you had any issue with it. You didn’t. And then he was specifically asked:

What do you mean by protection?

Which then led from him that:

I’m a protection prisoner.

So do you wish me to address that in my summing-up or just simply ignore it for fear of raising it again in the minds of the jury?

MR BASSETT: It might be preferable if everybody left it alone.

HIS HONOUR: Yes, well, I’m content to do that. But – which is one of the reasons I raised at the commencement of the trial. I appreciate that the defendant, your client, and the complainant, Mr Pitts, apparently, were on – serving jail sentences together, which is how they first met each other.

MR BASSETT: Yes.

HIS HONOUR: Which is why I raised at the beginning of the trial, was any of that coming out? And it being agreed between the parties that none of that would come out because for obvious reasons it would be highly prejudicial to the defendant.

MR BASSETT: Yes.

HIS HONOUR: Which is why I was surprised that an explanation was sought from the defendant as to what he meant by protection. If, ultimately, it would lead to the answer, “I’m in protection in jail,” what was the point in not leading evidence as to the inner relationship between the defendant and Mr Pitts. That there was agreement, that shouldn’t go in because it was highly prejudicial. You see my concern there, Ms Aldas?

MS ALDAS: Yes, your Honour.

HIS HONOUR: That was the risk of asking that question. Because I know what protection means. The jury may or not. But there was always a risk that by asking that question, it’d lead to an answer which clearly indicated the defendant was in jail, and that causes other problems.

MS ALDAS: Yes, your Honour.

HIS HONOUR: But, in any event, you don’t say I should say anything more to the jury about it?

MS ALDAS: Your Honour, I have no submissions. I’m not proposing to touch it at all.

HIS HONOUR: No. No, well, I didn’t think you would. But Mr Bassett, perhaps it’s more a matter for you. Your position is that one of those – it’s a very short answer in a trial that there’s been quite lengthy evidence that by seeking to give the jury a direction about that part of the evidence, perhaps will only highlight it, which will cause more prejudice. So it’s best just to leave it untouched.

MR BASSETT: Yes, your Honour.” [emphasis added]

28. [28]
    It might be inferred, from the fact that the trial judge did not mention the evidence referring to “protection prisoner” at the end of day three (when discussing a potential propensity direction as a result of the bikie connection), that merely hearing the evidence given by the appellant (which had been on that day) did not make a particular impression.  The fact that it was not raised until the following day, suggests to me that it was only upon reading the transcript that the trial judge considered it was a matter to be raised with counsel.
29. [29]
    When the trial judge summed up to the jury the following day, he gave the usual directions about dismissing feelings of sympathy or prejudice, and approaching their duty dispassionately, deciding the facts upon the whole of the evidence that had been presented in the course of the trial; as well as the direction about only drawing reasonable inferences, based on facts proved by the evidence, and not to indulge in intuition or guessing.  The jury were directed that the credibility of the witnesses, in particular the two complainants, Mr Pitts and Ms Fahrenhorst, was critical in the trial.  In relation to Mr Pitts and Ms Fahrenhorst, the jury were specifically directed, having regard to the cross-examination of them in relation to previous convictions for drug-offending, that this was something that could be taken into account when considering their credibility, and the weight to be given to their evidence, but was not something that necessarily meant that their evidence should be rejected – rather, it was something to be weighed in the balance with other factors.
30. [30]
    In relation to the appellant, the trial judge directed the jury as follows:

“Now, you have heard also in the course of the trial, members of the jury, evidence that the defendant Shaun Sielaff was previously a member of a motorcycle gang.  You must not reason that because Mr Sielaff has previously been a member of a motorcycle gang, that he is more likely to have committed the offences he is charged with. That kind of reasoning is prohibited. Your verdicts must be based only on the evidence given in the trial, not on assumptions about the kinds of people who commit crimes.”

31. [31]
    Consistent with the indication given by trial counsel for the appellant, the trial judge did not say anything about the appellant’s evidence by reference to the phrase “protection prisoner”.
32. [32]
    The jury commenced their deliberations just after 11.30 am on the fifth day of the trial.  At about midday the following day, they returned verdicts of guilty to all three counts in respect of both the appellant and Ms Kissier.

Ground 1

33. [33]
    The appellant submits that the appellant’s evidence, set out at paragraph [21] above, “allowed for only one inference, that the appellant was, at one time, a ‘prisoner’”.  The appellant submits that the evidence was adduced by the Crown prosecutor, without leave, in circumvention of the ruling by the trial judge precluding cross-examination on the appellant’s criminal history.
34. [34]
    That submission is rejected.  The questions asked by the prosecutor did not circumvent the trial judge’s ruling.  The prosecutor had flagged that she intended to cross-examine the appellant about his relationship with bikies.  There was no objection to her doing that.  The appellant volunteered the information about “reside[ing] in protection in the boneyard”, by way of explanation for why he was targeted, and was beaten up.  The prosecutor’s question – “what do you mean by ‘protection in the boneyard’?” – sought clarification of that phrase.  The appellant’s trial counsel was asked if he had an issue with that question, and said that he did not.
35. [35]
    The question did not admit of only one answer; nor did the answer given by the appellant bear only one inference as to its meaning.  On the contrary, the answer is ambiguous.  On one view, the reference to “protection” could be taken to mean that he was in, or had been in, prison.  On the other hand, the appellant may have been using the reference to “like, I’m a protection prisoner” as a kind of analogy, to explain the concept he was trying to convey – that is, that in the context of a bikie gang, he was not in the mainstream, he was considered an outcast – like a protection prisoner.  Upon listening to the audio recording of the appellant’s evidence a number of times, it is the latter meaning that is conveyed to me.  It appears the trial judge may have had a different impression.  What is clear, however, is that the appellant was not saying that he was a prisoner at the time that he was beaten up.  That would have been impossible, because the beating happened when the appellant was taking a car back to its owner.
36. [36]
    To the extent members of the jury might have inferred, from the evidence, that the appellant had at some time been a prisoner, as the trial judge was at pains to politely say, a number of times, the appellant’s evidence-in-chief (about his own drug use, drug addiction and association with bikies, as well as the reason why he went to the home of Ms Pitts and Ms Fahrenhorst) and his physical appearance (having a face covered with tattoos) were such that the jury could hardly have thought he was “conviction free” or of “impeccable character”.  And even if some members did infer that he had at some time been a prisoner, that said nothing about the circumstances in which that might have occurred.
37. [37]
    There was nothing improper about the question asked by the prosecutor – particularly as she had flagged her intention to do so, without objection, in the context of seeking the broader ruling, under s 15(2)(c) of the Evidence Act.  The appellant’s counsel was given the opportunity to object when the particular question was put, seeking clarification of the meaning of “protection in the boneyard”, and saw no need to do so.  No miscarriage of justice resulted from this evidence being elicited in cross-examination of the appellant.

Ground 2

38. [38]
    The next question raised, by ground 2, is whether a miscarriage of justice resulted from the trial judge’s decision to accede to the appellant’s trial counsel’s request for everybody to “leave it alone”.
39. [39]
    In R v Bricola [2017] QCA 51 at [58] Gotterson JA, with the agreement of Morrison JA and Bond J (as his Honour then was), emphasised:

“the need in this context to identify precisely what the disclosure made was and what information it conveyed expressly or impliedly.”

40. [40]
    In the context of this case, the disclosure, and what it may have conveyed, has been discussed above.
41. [41]
    In Bricola, the disclosure was of the location where the appellant and a central prosecution witness had first met, which came out in the appellant’s evidence by reference to “Lotus Glen”.  That is the name of a correctional centre (or prison) in north Queensland.  It was the prosecutor who raised this at the conclusion of the appellant’s evidence, and both the defence counsel and the trial judge indicated that their inclination was to ignore it, which they did.
42. [42]
    The Court of Appeal in Bricola referred, inter alia, to the observations made by Gibbs J (Mansfield CJ agreeing) in R v Hally [1962] Qd R 214.  That case involved the trial of a defendant on a charge of fraudulent conversion of trust fund moneys.  A witness for the Crown was asked if he knew that the defendant was practising as a solicitor at a particular time, and he answered “Yes.  He was struck off”.  Defence counsel did not apparently hear the remark at the time.  But at the conclusion of the evidence, the judge mentioned it, in order to ask whether defence wanted it mentioned in the summing up or whether it would be better “left well alone”.  That prompted an application by defence counsel for the jury to be discharged, which was refused.  Gibbs J expressed the view that, having decided not to discharge the jury (which he considered was the right decision), the trial judge was:

“… fully justified in refraining from mentioning the matter in his summing up, since the result of referring to it might only have been to remind the jury of it and to impress it more strongly on their minds.”^[2]

43. [43]
    In Bricola, Gotterson JA said (at [58]) that:

“Here, there was no express disclosure of a criminal record on the part of the appellant.  The express disclosure was of a location where the appellant and Mr Yoelu had first known each other.  It is reasonable to suppose that some, at least, of the jurors knew that that location is a place where there is a prison.  However, the disclosure did not specify why either of them was at the location.”

44. [44]
    His Honour observed that there were a range of inferences that jurors might have drawn from the reference, one of which was that they were there to serve periods of imprisonment, or at least that was why the appellant was there; but that “[a]ny impression formed as to the nature of any prior offending by the appellant would have been entirely a product of speculation”.  His Honour went on to say (at [60]-[61]):

“It is, I think, fair to conclude that the reference to Lotus Glen raised no more than a possibility of an inference being drawn by some members of the jury that the appellant had been previously convicted.  My reading of the exchanges between the learned trial judge and counsel on the topic is that that is how those present at the trial assessed the situation.  Clearly, both his Honour and defence counsel were conscious that a direction about the reference would have risked highlighting it and generating speculation based upon it.

His Honour’s assessment was that the evidence in question was probably better left alone.  Defence counsel was of a similar view.  It will be recalled that in Crofts v The Queen,^[3] the plurality (Toohey, Gaudron, Gummow and Kirby JJ) reminded that much leeway must be allowed to the trial judge to evaluate considerations relevant to the fairness of the trial.”

45. [45]
    In my view, the same can be said here – the answers given by the appellant in cross-examination raised no more than a possibility of an inference being drawn by some members of the jury that the appellant had been previously convicted, or in prison.  If the trial judge had given a direction about this evidence – over the objection of defence counsel – his Honour would first have had to remind the jury what was said; then to say to them something along the lines that some of them may have inferred X [that he said he had previously been in prison] or some of them may have inferred Y.  And if they inferred X, then the same direction would apply, as had already been given, not to reason from that that he was the sort of person who would commit the offences for which he was on trial.  It would have been a convoluted direction, which would have served only to highlight and draw attention to the evidence.  In the circumstances of this case, it was rational for defence counsel to prefer that everybody “leave it alone”.
46. [46]
    This is not a case, such as R v Knape [1965] VR 469, for example, in which the introduction of the evidence could be said to have “destroyed the underlying basis of the defence”.  In that case, the unrepresented accused had been careful in conducting his case to ensure that his prior convictions would not come out.  A witness called by the accused, when asked how long he had known the accused, said he had known him since “About 1960.  I met him at Bendigo Training Prison”.  It was held by the Full Court, on appeal, that by that answer “the linchpin of his whole defence was knocked away”.  That cannot be said here, having regard to the observations made by the trial judge set out at paragraphs [14], [18] and [19] above.
47. [47]
    The fact that trial counsel for the appellant did not object to the question being put (“what do you mean by ‘protection in the boneyard’?”); that discharge of the jury was not raised, let alone applied for; that no direction was sought to be given to the jury; and that the experienced trial judge considered it appropriate to proceed in the way defence counsel had requested, all tends to show that those centrally engaged in the trial did not perceive that the appellant was prejudiced by this aspect of the evidence that he had given, in the context of his evidence otherwise, and the matters that the judge had already alluded to, in terms of how he might have appeared to the jury.^[4]
48. [48]
    The jury had the benefit of appropriate directions from the trial judge, including a very clear direction against propensity reasoning from the fact of the appellant’s previous association with bikies – which was the real focus of his evidence.  There was no miscarriage of justice, and the appeal against the convictions ought to be dismissed.
49. [49]
    MULLINS P:  I agree with the Chief Justice.
50. [50]
    MORRISON JA:  I agree with Bowskill CJ.