TAMARA GIBBETT v THE KING [2025] SASCA 134

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE MUSCAT) DCCRM-21-312 Appellant: TAMARA GIBBETT Counsel: MR ANDREW GRAHAM - Solicitor: MANGAN EY & ASSOCIATES Respondent: THE KING Counsel: MS SUE AGNEW WITH MS SOPHIE CRANWELL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/11/2025 File No/s: SCCRM-24-047196 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. GIBBETT v THE KING [2025] SASCA 134 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David) 27 November 2025 CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE Appeal against conviction. Following a trial by judge alone, the applicant was convicted of two counts of trafficking a controlled drug arising out of a police search of the applicant’s residence during which a commercial quantity of 607 grams of Fantasy, and 10.85 grams of MDMA, were located. The prosecution case was that the bedroom in which the drugs were located was the applicant’s bedroom and that she was in possession of the drugs for the purpose of sale. The applicant appeals on the sole ground that a miscarriage of justice occurred by reason of the prosecutor failing to lead evidence of the applicant’s ‘mixed statements’ to police. Held, per the Court, granting permission to appeal, but dismissing the appeal: 1. The statements made by the appellant in her conversation and interview with police, even if relevant, were of limited weight or significance to the issues at trial (at [25]). 2. Even if potentially admissible as mixed statements, the prosecutor's failure to adduce evidence of these statements did not involve any breach of the prosecutor's duty; the prosecutor was entitled to take the view they were unnecessary and unreasonable (at [26]). -- 1 of 10 -- 3. In any event, in circumstances where defence counsel made a considered forensic decision not to press for their tender, or to tender the mixed statements in the defence case, there was no miscarriage of justice (at [32]-[34]). Bell v The King [2025] SASCA 97; Brawn v The King (2025) 99 ALJR 872; Nguyen v The Queen (2020) 269 CLR 299; R v Gibbett [2024] SADC 135; R v Helps (2016) 126 SASR 486; Yappo v Western Australia [2021] WASCA 133, considered. -- 2 of 10 -- GIBBETT v THE KING [2025] SASCA 134 Court of Appeal – Criminal: Livesey P, S Doyle and David JJA 1 THE COURT: Following a trial by judge alone, the appellant was convicted of two counts of trafficking a controlled drug, the first involving a commercial quantity (607 grams) of Fantasy, and the second involving some crystals and crystalline powder containing 10.85 grams of MDMA. These drugs were located in a bedroom of a house in Seaford Rise, during a police search at about 8.00 am on 19 June 2020. 2 The appellant seeks permission to appeal on the ground that the failure of the prosecution to lead evidence of the ‘mixed statements’ made by the appellant to police resulted in a miscarriage of justice. 3 For the reasons which follow, we grant permission to appeal but dismiss the appeal. Background 4 The prosecution case was circumstantial in nature. The trial proceeded largely on the basis of agreed facts and a number of exhibits. It is not necessary to set out the detail of the evidence led by the prosecution. It is set out in the reasons of the trial judge.1 5 By way of summary, at the time the police attended the Seaford Rise property, the appellant was in custody, having been arrested earlier that morning on other drug charges whilst driving in the Dover Gardens area. The male passenger in the vehicle at the time it was pulled over identified himself to police as Bradley Leaford. 6 When police entered the Seaford Rise property, a man who identified himself as Kevin Lomax was in the room which was identified as bedroom 2 on a floorplan tendered at trial. Bedroom 3 was being used as a storeroom. Bedroom 4 was a detached room at the rear of the house, and appeared to be occupied by a male. A wallet with a driver’s licence in the name of Martin Hay was found in that room. Nothing of any evidential value was located in bedrooms 2, 3 or 4. 7 Bedroom 1 was locked, but was able to opened using keys that had been obtained from the appellant following her arrest earlier that morning. No one was in the room when police entered, but it appeared that it was being used as a bedroom. The drugs the subject of the charges against the appellant were found in this room. The MDMA was in a pouch in the top drawer of a set of bedside drawers, and the Fantasy was in a pump water bottle on a shelf near the television. Other items consistent with drug use and trafficking were located in the room (including a glass ‘ice’ pipe, empty plastic snap-lock bags, a CCTV monitor 1 R v Gibbett [2024] SADC 135 at [6]-[37]. -- 3 of 10 -- [2025] SASCA 134 The Court 2 connected to various cameras outside of the house, and a taser). Also located in the room where the drugs were found were: a mothers’ day card from a child with the same name as one of the appellant’s two children; identification in the name of Sashauna Mourish; and a debit card in the name of Juliann Lock. 8 The evidence at trial included a ‘walk-through’ video recording of the property made by the police at the time of their search. No DNA samples were taken from the items located in Bedroom 1, and no investigations were undertaken in relation Mr Leaford, Mr Lomax, Mr Hay, Ms Mourish or Mr Lock. 9 The prosecution relied upon evidence connecting the appellant to the property. This included evidence that the property had been leased to the appellant by the SA Housing Trust from March 2019 to May 2021. The appellant’s two children were the only other registered tenants of the property. Although the appellant was refused bail on 19 June 2020, she had sought home detention bail at the Seaford Rise property, and she signed an acknowledgment of the refusal of bail which gave that property as her address. A little over two weeks earlier she had been granted bail on other charges to reside at that address. 10 The prosecution case was that it could be inferred that bedrooms 2 and 4 were occupied by Mr Lomax and Mr Hay, and that bedroom 1 was occupied by the appellant. There was nothing in bedroom 1 to indicate it was occupied by a male, and several items indicating it was occupied by a female (including jewellery, skin care products and female clothing). 11 The appellant did not give evidence in her defence. The defence case was that the circumstantial evidence relied upon by the prosecution did not provide a sufficient basis to conclude beyond reasonable doubt that the appellant occupied bedroom 1 at the relevant time. 12 The judge was satisfied that Mr Lomax and Mr Hay were occupying other bedrooms, and saw no reason to suspect that Mr Leaford was residing at the Seaford Rise property, let alone occupying bedroom 1. After reviewing the evidence and the competing submissions, the judge said that he was satisfied beyond a reasonable doubt that the only reasonable inference was that the appellant resided at the property at the relevant time, and was the sole occupant of bedroom 1. He was satisfied that there was no reasonable possibility that someone other than the appellant occupied bedroom 1. His Honour was therefore satisfied beyond reasonable doubt that the appellant was in possession of the drugs. 13 Noting the presumption that possession was for the purposes of sale (given the trafficable quantities possessed), and the absence of any evidence or submissions to rebut this presumption, the judge was satisfied that both counts of trafficking had been proved. -- 4 of 10 -- [2025] SASCA 134 The Court 3 The alleged ‘mixed statement’ 14 As mentioned, the appellant was pulled over by police during the night of 18 June 2020, while driving in the Dover Gardens area. A police officer (Brevet Sergeant Hogg) searched the vehicle she was driving, and located a bag containing cash and drugs. 15 Shortly after midnight, and so early in the morning of 19 June 2020, the appellant had a conversation with BS Hogg. She was then arrested and charged with trafficking the drugs in the bag apparently in her possession. These charges were later discontinued after the evidence found in the vehicle the appellant was driving was ruled inadmissible. 16 Relevantly to the present appeal, however, the conversation the appellant had with BS Hogg was recorded using his body worn camera. The conversation was somewhat disjointed, and difficult to understand in places. However, it may be accepted that it included statements by the appellant to the effect that she lived in ‘Seaford’; that she had driven from a location ‘around the corner’; that she had put the cash in her bag at about 5.00 pm the previous afternoon; that this occurred in the context of a fight she was having with her boyfriend; that he had grabbed all his stuff and was also taking her stuff; that she had run out of ‘the house’ five times and had grabbed her keys and took off; that her brother had picked her up; and that she had then called Bradley because she was at his friend’s house. The appellant concluded by saying that her children were not at home, and by asking Bradley to tell her uncle ‘what’s going on and I swear if he comes back to my house don’t let him the fuck in’. 17 In a police interview later that morning, after the search of the Seaford Rise property, the appellant made another reference to her boyfriend, whom she referred to as her ‘ex’. She said that ‘last night he was fucken raving, raving me around the house and stuff so I left and then (inaudible) my brother’s friend house (inaudible) mate to pick me up because he (inaudible) and started taking my stuff’. 18 At trial, the prosecution did not tender the recordings of the conversation or interview with police. On appeal, the appellant contends that these recordings contained both inculpatory and exculpatory statements by the appellant, and hence were ‘mixed statements’ that ought to have been tendered by the prosecution;2 and that the failure to do so gave rise to a miscarriage of justice. 19 In support of her contention that the recordings contained material which was inculpatory, the appellant relies upon her acknowledgment that she had been living in Seaford, and that she had been there as recently as 5.00 pm the previous day. As to the material which was exculpatory, the appellant relies upon her references to her having a boyfriend, and to her boyfriend having been at her home as recently as 5.00 pm the previous evening, and perhaps even remaining there after she had left. The appellant argues that this exculpatory material was capable of supporting 2 Nguyen v The Queen (2020) 269 CLR 299. -- 5 of 10 -- [2025] SASCA 134 The Court 4 an inference that her boyfriend had access to (or had been staying with the appellant in) bedroom 1 at the Seaford Rise property, and hence was probative of a reasonable possibility that the drugs were in his sole possession. 20 The respondent contests the relevance of, and weight to be attached to, the aspects of the conversation and interview relied upon by the appellant. The respondent argues that the admissions made by the appellant were immaterial in circumstances where there was other evidence which clearly linked the appellant to the Seaford Rise property. The respondent also argues that the appellant’s references to her boyfriend did not provide anything more than a basis to speculate about whether he might have had access to bedroom 1, let alone sole possession of the drugs located in that room. The respondent argues that, in circumstances where the appellant was not entirely clear about the location of the fight she had with her boyfriend, and bedroom 1 was locked and did not contain any sign of it being occupied by a male, the exculpatory statements were of limited, if any, significance or weight. No breach of duty productive of miscarriage 21 We are not persuaded that there was any breach of duty by the prosecution in not leading evidence of the appellant’s conversation and interview with police, let alone a breach which was productive of a miscarriage of justice. 22 As the decision of the High Court in Nguyen v The Queen confirmed, the prosecution’s obligation to present its case fully and fairly will ordinarily require the tender of any mixed statements made by an accused to police, unless there is good reason not to do so.3 However, as both Nettle and Edelman JJ observed in their separate reasons, the extent of this obligation in a particular case will depend upon the nature of the evidence and the circumstances of the trial.4 And, as Edelman J also observed, a statement by an accused person may not be relevantly inculpatory, or constitute a relevant admission, if it could not have had an effect upon the outcome of the relevant proceedings.5 23 These observations as to the limits upon a prosecutor’s obligation are consistent with earlier authorities, summarised by Lovell J in R v Helps,6 to the effect that the obligation to tender a mixed statement is predicated upon it containing admissions which are ‘significant’ to an issue in the case, or would add ‘some degree of weight’ to the prosecution case. The significance or weight of the statements made by the accused will, at the very least, inform whether any failure to adduce a mixed statement occasioned a miscarriage of justice. 3 Nguyen v The Queen (2020) 269 CLR 299 at [41] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ), [48] (Nettle J). 4 Nguyen v The Queen (2020) 269 CLR 299 at [49] (Nettle J), [54]-[55] (Edelman J). 5 Nguyen v The Queen (2020) 269 CLR 299 at [57] (Edelman J). 6 R v Helps (2016) 126 SASR 486 at [391]-[400] (Lovell J). -- 6 of 10 -- [2025] SASCA 134 The Court 5 24 More recently, the Western Australian Court of Appeal made some observations to similar effect in Yappo v Western Australia.7 Their Honours acknowledged that evidence does not cease to be relevant and admissible merely because there is other evidence which might be sufficient to prove the matter in issue. However, their Honours nevertheless accepted that the prosecution may be justified in not seeking to lead evidence of a mixed statement in circumstances where it is unnecessary or immaterial given the real issues in dispute and other evidence before the Court, and does not involve any attempt by the prosecution to gain some tactical advantage. 25 In the present case, the statements made by the appellant in her conversation and interview with police, even if relevant, were of limited weight or significance to the issues at trial. The admissions that the appellant lived at an address in ‘Seaford’ would not have added anything to the other evidence clearly connecting her to the relevant property in Seaford Rise, and indeed to the locked bedroom where the drugs were located. To the extent that the appellant admitted having been at that property the previous evening, this did not add much in circumstances where the appellant had recently been bailed to that address, and had just that morning given it as her address when seeking bail. Similarly, to the extent that the appellant’s references to her boyfriend were relevant at all, they were difficult to understand. They were a problematic basis for any inference as to his involvement with the drugs, particularly in circumstances where at one point in the conversation with police the appellant made it clear she was not suggesting he was dealing in drugs. The appellant’s references to her boyfriend provided little more than a speculative basis for suggesting that he might not only have had access to the locked bedroom, but also have been in possession of the drugs found in that room to the exclusion of the appellant. 26 Even if potentially admissible as mixed statements, we are not persuaded that the prosecutor’s failure to adduce evidence of the appellant’s conversation and interview with police involved any breach of duty. The prosecutor was entitled to take the view that the evidence was unnecessary and immaterial given the issues in dispute at trial. Certainly, there is no suggestion that the prosecutor’s approach was in any way motivated by an attempt to gain some tactical advantage. 27 Further, and in any event, we are not persuaded that any failure or breach in this respect gave rise to any miscarriage of justice, let alone one which was material (in the sense that it was realistically capable of influencing the trial judge’s reasoning to guilt8). In reaching this conclusion, we have relied upon the limited significance or weight of the mixed statements to the issues at trial. However, we have also relied upon my conclusion, explained below, that defence counsel made a considered forensic decision not to press for the prosecution to tender the mixed statements, or to seek to tender that evidence in the defence case. 7 Yappo v Western Australia [2021] WASCA 133 at [36]-[38] (Mazza, Mitchell and Beech JJA). 8 Brawn v The King (2025) 99 ALJR 872 at [10] (the Court). -- 7 of 10 -- [2025] SASCA 134 The Court 6 A forensic decision by defence counsel 28 This Court was provided with an affidavit from defence counsel. His evidence was that, in preparing for trial, he became aware of the recording of the conversation between the appellant and BS Hogg. He initially asked the prosecutor to lead portions of that recording on the basis that it contained both inculpatory and exculpatory statements by the appellant. The prosecutor indicated that he could not identify any statements that would rise to the level of inculpatory. Defence counsel responded by email, indicating that he maintained that the portions of the conversation that linked the appellant to the house, and to her being present there the previous evening, were relevantly inculpatory. The prosecutor replied, stating that he was ‘happy’ for defence counsel to raise the issue with the judge ‘to see if his Honour wants to invite us to lead those comments in our case’. 29 However, defence counsel did not take up this invitation to raise the matter with the judge. In his commendably frank affidavit, defence counsel explained: … at some stage either during or prior to the trial starting, I reviewed the BWV [body worn video footage] to identify and particularise the inculpatory statements with respect to the charges to be tried in the trial. I could not identify any statements which rose to the level of inculpatory statement with respect to the charges, nor could I articulate a basis by which the BWV was admissible. Hence I accepted the prosecution did not owe a duty of fairness to lead the BWV, albeit I don’t recall if I communicated that to the prosecutor at the time. However, it is also true to say that when I assessed the potential uses of the BWV at the trial, I also recall being concerned about introducing all the contents of the BWV. The BWV depicted the search and seizure of drugs and cash. Although the evidence of the seizure of drugs had been previously excluded, I was concerned about what prejudicial inferences the trial Judge could draw from viewing sums of drugs and cash being seized from the applicant. So I took the view that even if the BWV contained mixed statements and was admissible, what could be observed by the trial Judge could also be used to link the applicant with controlled substances. In short, given the lack of inculpatory comments that I could detect on the BWV and the potential risks in introducing the prejudicial evidence that arose on the footage, I did not pursue the issue further. 30 As this passage from defence counsel’s affidavit makes plain, he made a considered decision not to press for the tender of the mixed statements, or to otherwise seek to tender this evidence himself.9 He based his decision on two considerations, namely a difficulty in identifying any inculpatory statements sufficient to justify their admission, and a strategic concern about the risk of prejudice from other aspects of the evidence of the mixed statements. 9 Whilst only referring to the mixed statements in the BWV of the conversation with police, the statements in the subsequent interview did not take the matter any further. -- 8 of 10 -- [2025] SASCA 134 The Court 7 31 The principles governing the significance of defence counsel’s conduct when considering whether here has been a miscarriage, as developed in several High Court authorities, were recently summarised by this Court in Bell v The King:10 Ordinarily, a defendant will be bound by the decisions and conduct of their counsel, including their attitude and submissions in relation to the directions given, or to be given, by the trial judge. That is particularly so where it may be inferred that this reflected a forensic choice, or an attempt to secure a forensic or tactical advantage for the defendant. As a corollary of this, the conduct of defence counsel may be significant in determining whether a ground of appeal has been made out. It may inform a determination of the real issues at trial, and hence the scope of the trial judge’s obligation to give directions. Related to this, it may inform consideration of whether there has been a miscarriage of justice. It may do so in the direct sense that the Court will less readily accept that there was a miscarriage when the impugned direction (or failure to direct) was supported, or acquiesced in, by the defendant through his or her counsel. It may also do so in a less direct sense by reason that defence counsel’s attitude to the directions given, or to be given, may be seen to reflect the contemporaneous view of an informed participant in the trial, with insight into the conduct and atmosphere of the trial, and a focus on the defendant’s interests. Defence counsel’s attitude may thus assist the appellate court’s consideration of whether the impugned direction, or failure to direct, was material (that is, gave rise to a risk of impermissible reasoning that could realistically have affected the jury’s reasoning towards their verdicts). However, as is inherent in the above articulation of the principle and its operation, the idea that a defendant is bound by the conduct of his or her counsel is not an inflexible principle. The attitude of defence counsel to the impugned direction (or failure to direct) is not necessarily determinative of whether there has been a miscarriage of justice. The principle needs to be applied in the context of the judge retaining an overarching responsibility to ensure that the defendant receives a fair trial according to law, and to give such directions as may be required to ensure that outcome. The principle may be difficult to apply, or carry less weight, in circumstances where there was no discernible forensic choice or purpose (for example, where counsel’s conduct may be explained by a mistake, oversight or inexperience), or where there appears to have been confusion about the evidence, its use or the directions to be given. It may not apply at all where counsel’s conduct was the product of incompetence or a flagrant breach of duty. 32 Applying these principles in the present case, we consider that the failure to adduce evidence of the mixed statements at trial, whilst reflecting a decision made by the prosecutor, also reflected a decision made by defence counsel. Unlike the defence counsel in Nguyen v The Queen (who pressed for the prosecutor to tender the mixed statements), the defence counsel in the present case neither pressed for the prosecutor to tender the mixed statements, nor sought to tender them himself. This was a considered decision, based upon both reservations as to the admissibility of the evidence, and strategic concerns about the risk of prejudice. 33 In our view, defence counsel’s approach to the mixed statements reflected a forensic decision. The fact that the strategic concerns about a risk of prejudice 10 Bell v The King [2025] SASCA 97 at [305]-[307] (S Doyle and David JJA, Kourakis CJ agreeing) (omitting citations). -- 9 of 10 -- [2025] SASCA 134 The Court 8 were coupled with a (logically anterior) reservation as to the admissibility of the evidence does not gainsay this characterisation of defence counsel’s approach. 34 The appellant does not suggest any incompetence on the part of her then defence counsel. Nor could she reasonably do so. Even accepting that the mixed statements were admissible, it cannot be said that defence counsel’s views were unreasonable, let alone reflective of incompetence. Even if it could be said that his view about the admissibility of the evidence was mistaken, we are nevertheless satisfied that the approach taken by defence counsel supports a conclusion that there was no miscarriage of justice as a result of the failure to adduce evidence of the appellant’s mixed statements to police. Conclusion 35 For these reasons, we do not consider that the appellant has established a miscarriage of justice. 36 We grant permission to appeal, but dismiss the appeal. -- 10 of 10 --