Andrew Ben Fragnito v R No. SCCRM 93/136 Judgment No. 4058 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4058

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - evidence - possession of cannabis for sale - cross-examination of accused as to his assets and income properly admitted to establish purpose of possession - no unfair prejudice - appeal against conviction dismissed.

HRNG ADELAIDE, 21 July 1993 #DATE 21:7:1993
Counsel for appellant:     Mr P A Cutherbertson
Solicitors for appellant:    Zacharoyannis Luppino and
   Eckermann
Counsel for respondent:     Ms A M Vanstone
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a conviction by verdict of a jury in the District Court of the crime of possessing cannabis for sale. The prosecution arose out of a police raid on the appellant's home on 6 May 1992. The police discovered on the premises cannabis in various forms, the total weight of which amounted to 601 grams. That quantity exceeded the prescribed quantity for the purpose of affecting the onus of proof under the Controlled SubstancesAct, and the onus, therefore, passed to the appellant to prove, on the balance of probabilities, that his possession of the cannabis was not for the purpose of sale. 2. The appellant gave evidence in which he admitted possession of the cannabis, but asserted that his purpose in possessing it was entirely for his own use. The question of whether the appellant's purpose in possessing the cannabis was for sale, was, therefore, the issue in the case. 3. Counsel for the prosecution cross-examined the appellant as to his assets and income. That cross-examination was permitted by the trial judge over the objection of counsel for the defence. Among the assets on which the appellant was cross-examined was a Nissan Patrol motor vehicle, which the appellant acquired at the beginning of 1992 for $10,000, and a Mercedes Benz motor car which his wife acquired in October 1991 for $10,000. There was cross-examination concerning other assets, and there was cross-examination concerning the income of the appellant. 4. The purpose of this cross-examination was to establish facts which, by way of circumstantial inference, might lead to the conclusion that the appellant was deriving profit from trading in drugs, and augmenting his assets by the use of those profits. 5. The route which the prosecution sought to take was to show that the assets which the appellant had acquired could not be accounted for by the disclosed sources of income. 6. To my mind that was a relevant line of cross-examination. Whether, in the end, it achieved any probative force was, of course, a matter for the jury to assess. The learned judge, in fact, came to the conclusion that nothing had been elicited which had probative force, and he directed the jury accordingly. He said: "A number of questions were put to him" - that is to say, the accused - "about assets. That won't get you anywhere at all, ladies and gentlemen. That involves a vast amount of speculation. There can be many reasons why he had a vehicle, and his wife had a vehicle - for all we know, they may have been given to them - and his manner of life. To me, that will not assist you in your deliberations." 7. Mr Cuthbertson who appeared for the appellant before us referred us to the case of R v Lewis (1989) 46 A Crim R 365, a decision of the Full Court of the Supreme Court of the Northern Territory in which it was held that the discovery of a sum of money in the home of the accused was not admissible on a charge of possession for sale. It is unnecessary, in my opinion, to consider the reasoning of the judges in that case. The facts elicited in that case were significantly different from what was sought to be elicited by the prosecution's cross-examination in the present case. 8. It seems to me that the cross-examination in the present case was directed towards establishing a continuing commercial activity which, if it existed, would throw considerable light upon the purpose for which the appellant possessed the particular cannabis which is the subject of this charge. Whether the cross-examination achieved what was desired in establishing a continuing commercial activity is another matter. But the admissibility of questions is to be determined not by the final outcome of the questions but by their tendency to establish facts relevant to the issues in the case. 9. Mr Cuthbertson argued that, even if relevant, these questions should have been excluded because the matters which they sought to elicit had not been put forward as part of the case for the prosecution. That, however, is not a ground for disallowing cross-examination. When an accused person gives evidence he subjects himself to cross-examination and counsel for the prosecution is entitled to elicit in that cross-examination any facts which tend to prove the guilt of the accused, whether or not those matters have been made the subject of evidence as part of the case for the prosecution. 10. It was suggested that to elicit facts tending to establish transactions relating to the sale of drugs other than the possession charged would have an unfairly prejudicial effect upon the appellant. I do not see any force in that argument. Either the cross-examination would be successful in establishing that there was a continuing commercial activity with respect to drugs, in which case the only prejudicial effect upon the accused would be the proper probative effect of the evidence, or the cross-examination would fail in its purpose. If that were the case there would simply be no evidence of illicit drug activity and therefore no prejudicial consequence. 11. The ground of appeal also asserts that the evidence should not have been permitted to be elicited because it disclosed a possible breach of social security legislation which was prejudicial to the appellant. It appeared from the cross-examination as to the appellant's source of income that for a time he was in receipt of unemployment benefit when he was in the course, with his wife, of establishing a business. The fact that legitimate cross-examination results in the accidental disclosure of some illegal activity does not, of course, of itself render that cross-examination inadmissible. 12. But that aside, there was nothing to indicate that the receipt of unemployment benefit, in the circumstances disclosed, was contrary to law. There was simply no information before the court which would suggest that the receipt of the unemployment benefit was illegal. The learned judge, in order to remove any possibility of prejudice from that line of cross-examination, directed the jury as follows:
    "You will recall there was some evidence that he and
    his wife were starting a business, working in a business, and
    he was getting some unemployment benefits. Now, if the
    questions had gone any further, I may well have said
    something, and advised the accused about his rights, however,
    they stopped there, and all I can say to you is I am not
    aware of all the rules and regulations concerning
    unemployment benefits, and I don't think you can in any way
    draw any inference against this man in relation to the
    drawing of those benefits. So really you get no assistance
    from that evidence, and really, in your deliberations, I tell
    you to ignore it." 13. If there was any possible prejudicial effect on the appellant from that cross-examination it was effectively removed by the directions given by the learned judge. 14. In my opinion the ground of appeal against this conviction fails, and I would dismiss the appeal.

JUDGE2 DUGGAN J One aspect of the jury's enquiry in this matter was whether the appellant had discharged his onus of proving that the cannabis was not in his possession for the purpose of sale to another person. The jury were therefore entitled to consider a wide ranging set of circumstances in order to determine the issue as to purpose. 2. I agree with the Chief Justice that the evidence as to the acquisition of the assets was properly led as probative on that issue and I have not been persuaded that there was, inherent in the evidence, any undue and improper prejudicial effect. For those reasons and for the reasons advanced by the Chief Justice I agree with the order which is proposed.

JUDGE3 DEBELLE J I agree.