CRIMINAL LAW — Appeal — Conviction — Culpable driving causing death — Appellant pleaded guilty to alternative charge of dangerous driving causing death — Crown led evidence of appellant using heroin prior to offending and history of appellant’s heroin addiction — No evidence led to show causal link between taking heroin and offending — No tendency notice filed or application to dispense with filing of notice to lead evidence of appellant’s history of heroin addiction — Evidence irrelevant and highly prejudicial — Substantial miscarriage of justice — Appeal allowed – Retrial ordered – Patel v The Queen  HCA 29; (2012) 86 ALJR 954 applied
15 It follows from the above that not only was AS’s evidence of the appellant’s taking heroin before the accident irrelevant, but the evidence as to his longstanding drug addition was likewise irrelevant. It was, accordingly, inadmissible. But irrelevance was not the only problem associated with the Crown evidence as to the appellant’s drug addiction. Evidence that a person engages in a particular habit (scil. acts in a particular way), tendered to prove that he pursued that habit (scil. acted in a particular way) on a particular occasion, is tendency evidence, the admissibility of which is governed by s 97(1) of the Evidence Act 2008 . As such it is inadmissible unless the conditions precedent to its admissibility set out in ss 97(1)(a) and (b) and 101(2) are satisfied. It was required to be the subject of a notice to the appellant that the Crown would seek to rely upon it, it must have had significant probative value and that probative value must have substantially outweighed any prejudicial effect it may have had on the appellant.
16 The evidence as to the appellant’s drug habit was never the subject of a tendency evidence notice, nor was it the subject of any application by the Crown under s 100(1) of the Act for dispensation from that requirement. It was, on that score alone, inadmissible. This would have been so even if Dr O’Dell had proffered an opinion, concerning the effect upon the appellant’s driving of heroin use shortly before the accident, which supported the Crown case. In the circumstances the evidence of the appellant’s drug habit should not have been admitted to prove the likelihood of the appellant having taken heroin in the period immediately before the accident.