BNM v The Queen - [2020] SASCFC 10

Supreme Court of South Australia
(Court of Criminal Appeal)
BNM v THE QUEEN
[2020] SASCFC 10
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Doyle and The Honourable Auxiliary Justice David)
21 February 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant was charged with one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The particulars of the charge were that the appellant, on the 13th day of February 2017 at Oakden, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Following a trial before judge and jury, the appellant was found guilty by a majority verdict.
The appellant appeals against her conviction upon the following grounds:
1. The trial judge erred in his application of ss 34P(2)(a) and (b) of the Evidence Act 1929 (SA) in permitting the prosecution to adduce evidence of discreditable conduct of the appellant’s two prior convictions for drug trafficking.
2. The trial judge erred in his directions to the jury as to the use of the evidence of discreditable conduct, contrary to s 34R of the Evidence Act.
3.       The trial judge erred in failing to direct the jury as to the circumstantial nature of the case against the appellant, and the need to exclude a reasonable hypothesis consistent with innocence.
4.       The trial judge erred in directing the jury as to the reasons the appellant may not have been charged with trafficking following the search of her Oakden premises on 30 December 2016.
5.       The verdict was unreasonable in that the evidence before the jury was not capable of establishing beyond reasonable doubt that the appellant was in possession of a controlled substance.
The appellant was granted permission to appeal on grounds 3 and 4. Her application for permission to appeal on grounds 1, 2 and 5 was referred to this Court for consideration.
Held, per Doyle J (Peek J and David AJ agreeing), granting permission to appeal in respect of grounds 1, 2 and 5 but dismissing the appeal:
1. The probative value of the evidence of the earlier searches substantially outweighed any prejudicial effect it may have had, and it had a strong probative value, thus satisfying the criteria for its admissibility under s 34P(2)(a) and (b). Even though the permissible use of the discreditable conduct evidence involved a form of propensity evidence, a properly instructed jury would have understood the distinction between this use and the impermissible general or bare propensity under s 34P(1).
2.       The trial judge’s directions correctly and clearly identified both the impermissible and permissible uses of the discreditable conduct evidence.
3.       There was no miscarriage of justice occasioned by the trial judge’s failure to give the customary Peacock direction as the circumstantial evidence was relatively narrow in compass, and the only hypothesis consistent with innocence was not only central to the defence case but also the subject of directions by the trial judge.
4.       The trial judge’s summing up made clear that it was for the jury to determine whether the appellant had relevant knowledge or involvement with the methylamphetamine and accoutrements of drug trading found during the search of her Oakden premises on 30 December 2016. The impugned directions were intended, and would have been understood by the jury as intended, merely to assist the jury with reconciling the possibility that she had knowledge or involvement with the fact that she was not charged with any offence arising out of that search.
5.       The cumulative effect of the evidence was sufficient to leave it open to the jury to convict the appellant. The verdict was not unreasonable.
Controlled Substances Act 1984 (SA) s 32(3); Evidence Act 1929 (SA) s 34P, s 34R, referred to.
Harriman v The Queen (1989) 167 CLR 590; R v C, CA [2013] SASCFC 137; R v Conley (1982) 30 SASR 226; R v Gebert [2019] SASCFC 37, discussed.
Evans v The Queen [1999] WASCA 252; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Peacock v The King (1911) 13 CLR 619; Phillips v The Queen (2006) 225 CLR 303; Plomp v The Queen (1963) 110 CLR 234; R v Franco (2009) 105 SASR 446; R v Hissey (1973) 6 SASR 280; R v Jones [2018] SASCFC 96; R v Long and McDonnell (2002) 137 A Crim R 263; R v Maiolo (No 2) [2013] SASCFC 36; R v MJJ; R v CJN [2013] SASCFC 51; R v Nieterink (1999) 76 SASR 56; R v Singh [2019] SASCFC 51; R v Soteriou (2013) 118 SASR 119; R v Soteriou [2013] SASCFC 114; R v Sultana (1994) 74 A Crim R 27; Shepherd v The Queen (1990) 170 CLR 573; The Queen v Falzon (2018) 264 CLR 361, considered.

BNM v THE QUEEN
[2020] SASCFC 10
Court of Criminal Appeal: Peek and Doyle JJ, David AJ

PEEK J: I would dismiss the appeal. I agree with the orders proposed by Doyle J and substantially with his reasons.
DOYLE J: The appellant was charged with one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The particulars of the charge were that the appellant, on the 13^th day of February 2017 at Oakden, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Following a trial before judge and jury, the appellant was found guilty by a majority verdict.
The appellant appeals against her conviction upon the following grounds:
1. The trial judge erred in his application of ss 34P(2)(a) and (b) of the Evidence Act 1929 (SA) in permitting the prosecution to adduce evidence of discreditable conduct of the appellant’s two prior convictions for drug trafficking.
2. The trial judge erred in his directions to the jury as to the use of the evidence of discreditable conduct, contrary to s 34R of the Evidence Act.
3.   The trial judge erred in failing to direct the jury as to the circumstantial nature of the case against the appellant, and the need to exclude a reasonable hypothesis consistent with innocence.
4.   The trial judge erred in directing the jury as to the reasons the appellant may not have been charged with trafficking following the search of her Oakden premises on 30 December 2016.
5.   The verdict was unreasonable in that the evidence before the jury was not capable of establishing beyond reasonable doubt that the appellant was in possession of a controlled substance.
The appellant was granted permission to appeal on grounds 3 and 4. Her application for permission to appeal on grounds 1, 2 and 5 was referred to this Court for consideration.
Overview
The charge brought against the appellant arose out of a police search on 13 February 2017 of the unit in Oakden where she was living. During the course of that search the police located three plastic tubs in a hidden compartment above the kitchen pantry. The tubs contained a total of 40 grams of mixed methylamphetamine, or 13.5 grams of pure methylamphetamine.
The central issue at trial was whether or not the appellant was in possession of the methylamphetamine found in her premises.
Prior to the search on 13 February 2017, the appellant’s premises had been searched by the police on three occasions. The first two of these involved searches of the appellant’s premises in Bowden, and occurred on 28 November 2015 and 12 January 2016. Methylamphetamine was located on both of these occasions, and the appellant pleaded guilty to two counts of trafficking in a controlled substance, being one in relation to each search. The evidence of these first two searches was led as evidence of discreditable conduct, over the objection of the appellant.
Evidence was also led, but this time without objection, of a police search of the appellant’s Oakden premises on 30 December 2016. The evidence was that on the occasion of this third earlier search another person (FR) was present at the Oakden premises with the appellant. The police located a quantity of cocaine in FR’s wallet, and some methylamphetamine in a plastic tub under the mattress in the main bedroom. FR was charged with trafficking in cocaine, and was diverted for drug treatment in relation to the methylamphetamine.
The appellant’s case at trial was that the evidence did not establish that the appellant was in possession of the methylamphetamine located on 13 February 2017 in the hidden compartment above the pantry in her house, and that another person could have been responsible for concealing the drugs in that location. The appellant did not give evidence, but in her record of interview she denied any knowledge of the methylamphetamine, and identified FR as the person likely to have been responsible for it. FR had been in a relationship with the appellant and living at the Oakden premises at the time of the third search. However, since his arrest as a result of that search he had been in prison, and then home detention at a different address.
Against this overview of the background, and before addressing the appellant’s grounds of appeal, it is appropriate to commence by summarising in more detail the evidence at trial of the various searches, the appellant’s record of interview, the defence case and the relevant aspects of the trial judge’s summing up.
Evidence of the 13 February 2017 search
The evidence at trial was that the police attended the appellant’s Oakden premises at about 3.45pm on 13 February 2017. The appellant drove a vehicle onto the driveway as the police arrived. The police informed her that they intended to search her house, and asked whether she had anything she wished to declare (including any large sums of cash) prior to the search. She mentioned only the money in her wallet, which was inside a bag in her car. The police found and seized the sum of $260 from this bag.
Upon commencing their search, and on top of a desk in the entry way, the police located a set of scales in a blue container, and a notebook containing a tick list. In the lounge room they located $482 in cash on the couch, and an ice pipe that had been under the couch. In the kitchen, in a compartment hidden above the pantry, the police located a brown paper bag containing three tubs of a crystalline substance, a brown paper bag containing $9,000 in cash, a brown paper bag containing press-sealed bags, and a set of scales. Inside the pantry, they located a set of scales and numerous plastic resealable bags. Also in the kitchen, police located a set of scales on a bench, and a set of scales beneath the sink. In the master bedroom, the police located a set of scales in a plastic nail polish box on the bed, a brown paper bag with the appellant’s handwriting on it, and a quantity of plastic press-seal bags on the floor. An ice pipe was located in a blue shopping bag outside the back door.
Upon analysis by Forensic Science SA, the crystalline substance in the three tubs was found to be a total of 40 grams of mixed methylamphetamine, of which 13.5 grams was pure methylamphetamine. There was evidence to the effect that the total value of the drugs the subject of the charge was between about $8,000 and $20,000.
It was an agreed fact that a fingerprint located on the scales found in the same location as the tubs of methylamphetamine was an identical match to the left thumb of the accused. It was also an agreed fact that both the tick list, and the writing found on the brown paper bag found in the master bedroom, were in the appellant’s handwriting.
The discreditable conduct evidence
As mentioned, evidence of two earlier searches (in November 2015 and January 2016) was led by the prosecution, over the objection of the appellant. Evidence was also led, without objection, of the third earlier search (in December 2016).
The November 2015 search
The evidence was that the police searched a unit in Bowden in the morning of 28 November 2015. The appellant answered the door and was the only person at the unit.
During the course of the search, the police located in the bathroom a list with names and monetary amounts. On the kitchen table there were three plastic bags with a crystalline substance in them, along with a set of digital scales. A further six bags with methylamphetamine were located in a handbag on the kitchen table. There was also a pink notebook on the kitchen table containing names and monetary amounts. Two mobile phones were located in a kitchen drawer. A silver box located under the coffee table in the lounge room contained two tubs of methylamphetamine and a set of digital scales. Another tub of methylamphetamine, and another set of digital scales, were located in the drawer of the coffee table. A diary on the coffee table contained a page that referred to a name and amount. Cash in the amount of $3,180 was found in the handbag on the kitchen table, along with $200 on the fridge. Three of the four sets of digital scales located within the Bowden premises contained traces of methylamphetime.
The total weight of the methylamphetamine located in the press-sealed bags and small plastic tubs was 10.98 grams.
The appellant was arrested, charged and pleaded guilty to trafficking the methylamphetamine found during this search.
The January 2016 search
Police searched the Bowden unit again on 12 January 2016 at about 5pm. The door was answered by a male, and there were two other males present in the lounge room. The appellant was present and in the bathroom when the police arrived.
There was a CCTV system in operation, with the monitor set up in the lounge room. In a cabinet in the lounge room, the police located a box containing five small press-sealed bags containing methylamphetamine, two sets of digital scales, a quantity of unused plastic bags and tubs, some syringes and an ice-pipe. Between the cushions on the couch in the lounge room the police located three more press-sealed plastic bags. One contained methylampetamine, and the other two were empty. More methylamphetamine was found inside a torch attached to a key ring. A notebook with names and monetary amounts was located in a kitchen drawer. An electronic tablet on the coffee table was seized as it contained Facebook Messenger messages in relation to drug trafficking. Some MSM powder, commonly used as a cutting agent for methylamphetamine, was found above the stove in the kitchen. And a plastic bag with methylamphetamine was located in a sunglasses holder in the vehicle registered to the appellant.
The total weight of the methylamphetamine located in the press-sealed bags, near the couch cushion, inside the torch and in the sunglasses holder was 18.9 grams.
All three males and the appellant were charged with trafficking. The appellant pleaded guilty to this charge.
The December 2016 search
The third search took place at the Oakden unit, on 30 December 2016. Both the appellant and FR were present on the occasion of this search.
The police located FR’s wallet on the kitchen bench. It contained 9 grams of cocaine, and $550 in cash. Two blackberry phones were located on the kitchen counter. Three lists of monetary amounts were located; one on a bin in the lounge room, one in the master bedroom, and the third in FR’s wallet. Two sets of digital scales were located in kitchen drawers. A collection of green and white plastic tubs were on a desk. A container of a substance that responded positively to the presumptive test for methylamphetamine was located under the right side of the mattress in the master bedroom. At the time of the third search, FR was the appellant’s partner and had been staying with her at the Oakden apartment, and sleeping with her in the master bedroom.
FR was charged with trafficking the cocaine that was found in his wallet, and was diverted for drug treatment in relation to the methylamphetamine. The appellant was not charged with any offence arising out of the 30 December 2016 search.
The hidden compartment above the pantry that was ultimately located on 13 February 2017 was not detected during the search of 30 December 2016.
The appellant’s record of interview
The prosecution led evidence of the appellant’s interview by the police on 13 February 2017, being the day of the search that led to the subject charge.
During that interview, the appellant admitted that she was renting the Oakden unit and was, at the time of the search, living there alone. She had been on home detention for about 13 months, and had spent the last three or four months of this living in the Oakden unit. She said that during this period, she had regularly left the house for various reasons, and that several people (including tradespeople) had visited the house.
The appellant denied any knowledge of the methylamphetamine and $9,000 in cash located in the hidden compartment above the pantry in the Oakden premises.
The appellant said that she had previously been in a relationship with FR, and that until relatively recently (presumably the date of his arrest following the 30 December 2016 search) he had been living there with her. She said that he had previously been involved in drug trafficking, and nominated him as someone who might have been responsible for putting the methylamphetamine and cash in the hidden compartment above the pantry. She said that FR had briefly visited the Oakden premises upon his release on home detention bail a couple of weeks earlier. She said that he had come there directly from his release and on his way to the address to which he had been released. She said that he had a bag with him, that she had been upstairs getting ready for an appointment with her lawyer, and hence that she was not with FR the whole time that he was in the house.
The appellant said that while she had previously been a user and dealer of methylamphetamine, this was no longer the case. She said that she had not been a user for “a good few months”, and that she had stopped dealing after she “got done for trafficking”.
The appellant said that she had seen tubs of the type found during the search around the house on the occasion of the previous search of the Oakden premises. As for the scales and empty bags, when asked how she might account for the presence of these items on 13 February 2017, she said that she was in the process of moving and that there had been “people here helping me pack up, so those people have used in front of me, so there’s that.”
The defence case
As mentioned, the appellant’s case at trial was that the prosecution had not proven beyond reasonable doubt that she was in possession of the methylamphetamine. In particular, it was the defence case that she did not know of the methylamphetamine and cash in the hidden compartment above the pantry in her Oakden premises; and that it was a reasonable possibility that these items had been put there by FR.
It seems to have been implicit in the defence case that it was a possibility that the methylamphetamine and cash in the hidden compartment were remnants of FR’s drug trading activities revealed by the earlier police search on 30 December 2016, or perhaps that they had been more recently secreted there by FR upon his release on home detention.

While acknowledging her previous offending arising out the first two of the earlier searches, the appellant did not make any acknowledgment of involvement with the drugs found during the third of the earlier searches. To the contrary, she relied upon the evidence of the third of the earlier searches as supportive of the possibility that FR was responsible for the drugs and cash found on the occasion of the 13 February 2017 search.
The defence case at trial also included a contention to the effect that following the first two of the earlier searches the appellant had ceased her involvement in drug trafficking, and indeed had become a police informant. In support of the latter, the appellant relied upon agreed facts to the effect that she had provided information to the police about the drug offending of others on several occasions between 12 January 2016 (being the date of the second of the earlier searches) and early February 2017 (being shortly prior to the search that led to the subject charge).
The trial judge’s rulings
On 7 March 2019, following a voir dire at the commencement of the trial, the trial judge ruled in favour of the admissibility of the evidence of the first two of the earlier searches.
In his reasons, the trial judge identified the main issue at the trial as whether the appellant knew anything about the methylamphetamine located at her premises, and in particular whether it might have been the responsibility of a third person. His Honour explained that the prosecution sought to rely upon the evidence of the two earlier occasions of trafficking by the appellant as showing that she was a trader in methylamphetamine and was therefore more likely to have known about, and possessed, the methylamphetamine that was located at her house on the occasion of the search on 13 February 2017.
The trial judge noted that the prosecution relied upon R v Long and McDonnell,[1] R v Soteriou[2] and Harriman v The Queen[3] as supporting the admissibility of prior drug offending as probative of the offender having been a trafficker over a period of time, and hence more likely to have been a trafficker on the subject occasion. In response to the defence submission that the timing of the earlier conduct was too distant or remote in time to be logically probative of any continuing period of trafficking or trading by the appellant, the trial judge referred to R v Conley.[4] His Honour noted that in that case there had been 16 months between the instances of alleged heroin trading, but that King CJ had held that the evidence was nevertheless cross-admissible as probative of a continuity of conduct which was relevant to whether or not the defendant possessed the heroin on each particular occasion for the purpose of sale.
[1]    R v Long and McDonnell (2002) 137 A Crim R 263.
[2]    R v Soteriou (2013) 118 SASR 119.
[3]    Harriman v The Queen (1989) 167 CLR 590.
[4]    R v Conley (1982) 30 SASR 226.
In upholding the admissibility of the evidence, the trial judge reasoned:
In my view the two earlier occasions are admissible to show that on the occasion charged the applicant was trafficking in methylamphetamine and to make it less likely her explanation that she did not know about the methylamphetamine or was not involved in it on the occasion charged, such claim being less likely in the scheme of things from her previous involvement one year and one month earlier and prior to that.
It might be able to be said that the evidence is propensity evidence on one view. In my view, the evidence sought to be led meets the test of discreditable conduct evidence within the meaning of s 34P of the Evidence Act and is available for the permissible use that I have suggested. I am satisfied that the probative value of the evidence for this permissible use substantially outweighs any prejudicial effect that it may have on the applicant and that the evidence has strong probative value having regard to the particular issues arising at the trial.
Further, I am satisfied that the permissible use can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used in the wrong way. I am satisfied of that because I intend to give an appropriate direction to the jury at the appropriate time advising them not to use the evidence in an impermissible way.
It was only after the trial had commenced that his Honour came to appreciate that the parties intended to adduce evidence of the third earlier search. The defence sought to rely upon this evidence as indicating FR’s involvement on that occasion, and hence in support of the possibility that he might have been responsible for the methylamphetamine located at the same premises on 13 February 2017. The prosecution also sought to rely upon this evidence on the basis that if the jury were satisfied of the appellant’s involvement on that third occasion, then it was relevant on similar grounds to the evidence of the first two searches, and hence as further supporting a continuity of the appellant’s interest in methylamphetamine and involvement in the illegal trafficking of it.
While neither party took objection to this evidence, the trial judge delivered a ruling setting out the basis upon which he considered it admissible. His Honour’s reasons included the following:
As I understand the [defence] argument, it will be suggested that the evidence of the earlier raid of 30 December 2016 shows that [FR] was involved in methylamphetamines in the same premises and may therefore have been the person responsible for secreting the methylamphetamine, money and scales and therefore not the accused.
Upon further inquiry, I learn that the prosecution intend to use this same evidence of the earlier raid of 30 December 2016 to show that the accused was involved with methylamphetamine a short time prior to 13 February 2017 and thus the same argument would apply in relation to the two previous raids that I have allowed to be led in evidence.
It will be said that this shows a continuation of illegal drug trafficking activity and a continuing interest in methamphetamine, and on this occasion, to the extent of using the same premises and the same kind of container for the methylamphetamine as was used on the occasion which is the subject of the charge.
I point out that [FR] has been charged with trafficking in methylamphetamine for the earlier occasion and that trial has not yet been heard. Even if it had been heard it would not provide a resolution of the question of whether the accused was involved in the methylamphetamine on that occasion.
Logically she may be involved whether or not [FR] is convicted himself of trafficking in methylamphetamine. The evidence in relation to this earlier raid may well establish that she was involved.
In my view, although it is discreditable conduct evidence within the meaning of s 34P of the Evidence Act, it meets the test of admissibility in that it has strong probative value having regard to the issues at the trial; namely, the involvement of the accused with methylamphetamines on 13 February 2017.
I am confident that the permissible use can be separated from any impermissible use by means of appropriate directions to the jury.
The trial judge’s summing up
In the course of his summing up, the trial judge gave the jury several directions in relation to the permissible and impermissible uses of the discreditable conduct evidence.
Early in his summing up, the trial judge said the following:[5]
[1] I want to say something to you now about what lawyers call ‘discreditable conduct evidence’.
[2] Discreditable conduct evidence is evidence of bad things that an accused person has done that are not specific to the actual charge against them. Generally in a trial a jury does not get to hear what lawyers call ‘discreditable conduct evidence’ for the reason that I told you earlier on in this trial that the view is that everyone is entitled to have a case against them determined on the merits and not based on some smear that they have done something else bad.
[3] In this case you have only one charge, that of trafficking in methylamphetamine on a particular date when the police raided and found methylamphetamine in a sealed section above the pantry, but there has been evidence of possible involvement by the accused in relation to methylamphetamine trafficking on three previous occasions additional to this charge.
[4] You will recall police raided her premises on 28 November 2015, 12 January 2016 and 30 December 2016 and located methylamphetamines. On the third occasion when they raided the premises, she was living with [FR] and cocaine in [FR]’s wallet was located in addition to methylamphetamines which were located in a tub under the mattress. Those three instances are instances of discreditable conduct because they are occasions other than the occasion which is the subject of the charge.
[5] Also, on 13 February 2017, the day of the raid that you are concerned with, tick lists or what might be regarded as tick lists and money were located which might indicate that the accused had some short time prior to 13 February sold amphetamines and got money for it and that would indicate, if it is true, discreditable conduct on occasions a short time prior to 13 February 2017, again, not the subject of the particular charge. These things are not to be used by you to reason that the accused is a bad person on the basis that she has trafficked in drugs before or been involved in methylamphetamine before and therefore she is guilty of this particular offence. That would be improper and impermissible reasoning. The three prior occasions of trafficking, if you are satisfied that they involve the accused, might show that the accused was a trader or trafficker in methylamphetamines over a period of time and was therefore more likely to have known about and possessed the methylamphetamines that were located in her unit on the police raid on 13 February 2017 as part of a continuing course of drug trafficking.
[6] The prosecution seek to use the evidence, not only from the first two raids, but also from the third raid on 30 December 2016 as further evidence of ongoing trafficking in and interest in methylamphetamines and therefore they say when the police raided on 13 February 2017, she was more likely to know about and possess the drugs that were found as part of an ongoing trafficking in methylamphetamines. You cannot use any of this evidence unless you are satisfied that the accused was involved. Now, this may present no difficulty in relation to the first two raids because it is an agreed fact that the accused admitted her involvement in those first two matters. But as to the raid of 30 December 2016, the defence is not admitting involvement by her, the implication being that it was all to do with [FR], so you could only use that raid or what was found as a result of that raid against the accused if you were satisfied of her knowing involvement in the methylamphetamines that were located on that occasion, otherwise it could not be used in any way against the accused.
[7] The defence case acknowledges that she had trafficked in the past but they say she turned over a new leaf upon her arrest on the second raid of 12 January 2016 and that was a considerable time between then and 13 February, the present charge, and hence what happened earlier is no pointer to what happened on 13 February. In any event you can only use this evidence in relation to the earlier raids to reason that on 13 February the occasion charged, she knew about the methylamphetamines or had an interest in them and trafficked in them or was continuing as a trafficker as in the past, but you cannot use the evidence to reason that ‘Well, she trafficked in the past, she’s a bad person, so therefore she’s guilty of this charge’.
[5] Paragraph numbering added for ease of reference.
Later, in the context of his Honour’s summary of the parties’ respective cases, his Honour returned to the topic of the discreditable conduct evidence. He said:
[8] So the prosecution case. There were three occasions prior to the occasion that resulted in the charge in which the residence occupied by the accused was raided by police and they located the tools of trade of an amphetamine trafficker. The occasion which is the subject of the charge is the fourth time her premises was raided and the tools of trade of an amphetamine trafficker were located. A mere six weeks before the raid on 13 February 2017, police located a man [FR] at the premises of the accused with the accused. Cocaine was found in his wallet and there was a tub of methylamphetamine under the mattress in the master bedroom. There were plastic tubs, there were lists, which could well be tick lists. Can you think what else this could be?
[9] The police also located scales and implements for using drugs. You might think that none of these things were hidden from the view of whoever was living at the unit which was [FR] and the accused.
[10] The police decided to charge [FR]. He actually had cocaine, money and a tick list in his wallet but does that mean that the accused was not involved because they did not charge her? Maybe they did not think they had enough evidence on her. Maybe she had given evidence on other people and they wanted to keep her in the good books.
[11] When the police raided on 13 February they found methylamphetamines hidden above the pantry and they also found the scales with the accused’s thumbprint on them. It is not as if on 13 February everything was hidden. There were press-seal bags about the house, there were scales about the house, there were lists that you might think were lists relating to drug matters, there were ice pipes, there were unused syringes. Similar things had been located on all the raids of the accused suggesting a similarity in the way the trafficking was conducted and perhaps betokening a common involvement on all four occasions by the accused. There were Exhibits P8 and P9, the brown paper bag and the note book with the accused’s writing on them. What more do you want, suggest the prosecution? You have got her writing on the lists which could well be related to drugs. It is difficult to think of any other reason for the lists. There is her fingerprint on the scales where the hidden material was located, the money and the drugs.
[12] In the first search, police located a quantity of methylamphetamine in six plastic press-seal bags and they found three plastic tubs; they found four sets of scales; they found press-seal bags; they found lists which might be regarded by you as lists in relation to drugs and cash in the amount of $3,180 and they also found an ice pipe.
[13] In the next search in January 2016, they found methylamphetamine in plastic bags; they found scales; they found unused press-seal bags; they found plastic tubs; they found lists; they found glass pipes and syringes, and on that occasion they found a cutting agent.
[14] On the third occasion they found – apart from [FR]’s wallet and what it contained – they found methylamphetamine in a tub under the bed; more plastic tubs; they found scales; they found what you might regard as lists and they found an ice pipe.
[15] The evidence of the accused’s involvement in the three previous raids shows a continuing interest in methylamphetamine, a continuation of trafficking. It would be different if the police found methylamphetamine in the raid on the 13^th that was hidden. She claims not to know anything about it and there is no background in methylamphetamine. It would be different in that situation but here we have these things plus a background in trafficking, an interest in methylamphetamine. So the prosecution says you should find the accused guilty of the charge.
[16] Now I want to say something about the defence case. Mr Fowler-Walker commenced by making the point that people can change and that the accused quite possibly has changed her ways from the time she was detected by the police in the two earlier raids to when she was arrested on this charge. He describes this case as a shocking police investigation because they did not seize bags, they did not seize unused syringes, they seemed happy to make arbitrary decisions as to what to seize and what not to seize. They did not test for fingerprints in the area where drugs were hidden above the pantry and for that matter there were a lot of other places they did not test for fingerprints.
[17] It is quite possible, even quite likely that it was [FR] and not the accused who was responsible for the drugs in the earlier raid. He clearly must have been responsible for the drugs, the cocaine that was in his wallet and the money and the lists which you might think are tick lists or lists to do with drug trading.
[18] As to the drugs hidden under the mattress, we do not know how they were hidden or how easily they were detectible by someone lying on the bed. Remember that it is on the prosecution to prove its case beyond reasonable doubt not the defence.
[19] It is true that the accused possibly made a mistake in not making a clean break with the people she had previously been associated with but remember she was not actually caught doing anything. She was not caught making any sales. She was not caught with any unexplained cash. Where is all the cash if she had been dealing in drugs? The only significant cash is in the hidden section which she may well not have known about. Where are the CCTV cameras and the monitors like existed in the earlier cases when the police raided and found them?
[20] In previous matters there were CCTV, a little deal bag in her handbag, $3,000 cash. Here there is really nothing implicatory, if you leave aside what was in the hidden compartment which she may well not have known about. After all, say the defence, if the police did not find a hidden compartment on their search on 30 December 2016, it is a bit rough to expect the accused to find it after them and before the police raid on 13 February.
[21] The Blackberry phone found on the 30 December raid was quite capable of disguising contact by phone but that was found when [FR] was there. It was not found, or no such phone was found on 13 February in the raid which is the subject of this charge. It is quite possible that [FR] stashed the drugs in the hidden compartment without the accused knowing about them. After all, he has a record of doing it, that is, being involved in drugs.
[22] I have told you, ladies and gentlemen, and I repeat, that it is not permissible to reason that an accused person is guilty because he or she has done something bad before. It is permissible, however, to reason that a third person, not an accused, has done something because they have done something similar before. The rule is different in relation to an accused and a third party and in case you wonder why you wonder why that should be so, the answer is that any findings that you make against the third party has no consequence for that person, if you think whatever you think about [FR] has no consequence for him, but whatever you decide about the accused has a consequence for her. So that is the reason why there is a difference in the principle. You cannot reason that because an accused has done something bad before that she is guilty of an offence charged, but you can reason because a non-accused person, in this case [FR], has been mixed up in drugs before that he might have been mixed up in them subsequently.
[23] It is quite possible that [FR] did not have the opportunity to retrieve the drugs. You will remember what was said about him being on home detention and not having the opportunity and also we know that the accused was moving house but there is no suggestion of any drugs in her new house. She informed on 17 January about [FR], she is hardly likely to be involved in drugs on 13 February.
Finally, at the end of the summing up, defence counsel requested that the trial judge explain, or emphasise, the need for the jury to be satisfied of a continuing participation in the drug trade, and the evidence (in support of the defence case that there was no continuing participation in the drug trade) that the appellant had become a police informant after the second search in January 2016 and had said in her police interview that she was no longer using drugs.

In response to this submission, which (on the trial judge’s insistence) was made in the presence of the jury, the trial judge further directed the jury:
[24] Do you understand that, ladies and gentlemen, it might betoken a continuing involvement in trafficking, the prior discreditable conduct, but of course, if she has turned over a new leaf, or if the length of time is so great, you might come to the view that the previous instances do not betoken a continuing or a continuation in trafficking in methylamphetamines but the main thing is that you have to be satisfied beyond reasonable doubt of guilt before you can return a verdict of guilty. So if the discreditable conduct, it does not help you because it does not show a continuation of trafficking, then you cannot use it, you have to ignore that evidence. You cannot use it against her in any way because you cannot use it on the basis that she was a bad person and therefore she is guilty. The only way you can use it is if it shows a continuation of interest in methylampthamine, or a continuation of trafficking in methylamphetamine. You can use it when you consider the particular count, her prior interest and involvement. You can use it in deciding the question of whether, on this occasion, she had an interest or involvement, but you cannot use it if you do not think – you cannot use it if it does not show a continuation in trafficking or a continuation in interest and the defence have said ‘Well, there is no continuation of interest or trafficking because she’s turned over a new leaf because she’s become an informant and is informing on other people and is no longer interested herself in continuing her past activities’ …
Ground 1: admissibility of the discreditable conduct evidence
The admissibility of discreditable conduct evidence is governed by s 34P of the Evidence Act 1929 (SA). That section relevantly provides:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)     …
(5)     …
The appellant contends that the trial judge erred in admitting evidence of the appellant’s convictions for trafficking in a controlled drug arising out of the first two of the earlier searches. The appellant contends that to the extent that these earlier searches and convictions were relevant at all, they were relevant only through propensity reasoning that was either impermissible under s 34P(1), or at the very least was not of the “strong probative value” required by s 34P(2)(b). The appellant further contends that the trial judge both overlooked the propensity character of the use sought to be made of the discreditable conduct evidence by the prosecution, and failed to take account of the evidence of the third earlier search in considering the admissibility of the first two searches.
The starting point in considering the admissibility of the discreditable conduct evidence is, of course, the identification of the matters in issue at trial. There was no dispute at trial that methylamphetamine, and indeed some accoutrements of methylamphetamine trading, were found in the appellant’s Oakden premises. The central issue at trial was whether the appellant was in possession of the methylamphetamine that was found in the hidden compartment above the pantry. The appellant denied any knowledge or possession of the methylamphetamine, and in her record of interview suggested that FR may have been the person responsible for secreting it in that location.
The evidence of the earlier searches and convictions was relevant to the jury’s consideration of these issues. It was probative of an interest and involvement in methylamphetamine trading, which, if continuing, would make it more likely that the appellant knew of and possessed the methylamphetamine located during the search of 13 February 2017.
The relevance, and potential admissibility, in cases involving allegations of drug trafficking, of evidence of an interest or involvement in the business of drug trading has been recognised in numerous authorities.[6] The evidence has been held to be probative of both the fact of possession and the purpose of any possession. While it has been said that the use of such evidence does not necessarily involve propensity reasoning,[7] the prevailing view is that it involves reasoning that is “either a form of propensity reasoning, or is so close to it that the distinction becomes insignificant.”[8]
[6]    Including R v Conley (1982) 30 SASR 226 at 230; Harriman v The Queen (1989) 167 CLR 590 at 595, 597 and 609; R v Sultana (1994) 74 A Crim R 27 at 28-29; Evans v The Queen [1999] WASCA 252 at [31]; R v Long and McDonnell (2002) 137 A Crim R 263 at [37]; R v Franco (2009) 105 SASR 446 at 452; R v Soteriou (2013) 118 SASR 119 at [27], [32]; The Queen v Falzon (2018) 264 CLR 361 at [1], [40]-[44]; R v Jones (2018) 131 SASR 532 at [21] R v Singh [2019] SASCFC 51 at [73].
[7]    R v Conley (1982) 30 SASR 226 at 230 (although, on one view, King CJ’s observations were confined to the relevant use not involving “prohibited” propensity reasoning).
[8]    R v Long and McDonnell (2002) 137 A Crim R 263 at [39]; applied in R v Soteriou (2013) 118 SASR 119 at [26] and R v C, CA [2013] SASCFC 137 at [79]; see R v Jones (2018) 131 SASR 532 at [30].
In my view, particularly in circumstances where the evidence is of past involvement in the business of drug trading (as opposed to evidence merely of present involvement in that business by dint of drug trading accoutrements found at the time of the subject offending), it is appropriate to recognise the element of propensity reasoning in the use sought to be made of the evidence, and to approach its admissibility under s 34P on that basis. It follows that the evidence will only be admissible if it satisfies both limbs of s 34P(2); that is, the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the defendant (s 34P(2)(a)), and the evidence has a “strong probative value” (s 34P(2)(b)).
Of course, in considering the admissibility of the evidence, the Court must also, under s 34P(3), have regard to whether the permissible particular propensity use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible bare or general propensity use identified in s 34P(1) so as to remove any appreciable risk of the evidence being used for that purpose.
As the appellant points out, the prosecutor in this case did not acknowledge any propensity reasoning inherent in the use sought to be made of the discreditable conduct evidence. However, this is ultimately of no moment. The trial judge approached the question of the admissibility of the evidence on the basis that it satisfied both limbs of s 34P(2), and indeed s 34P(3). And in any event, the ultimate issue for this Court is whether the evidence was admissible as a matter of law, and not whether the trial judge correctly identified the basis for that admissibility.[9]
[9] R v Soteriou (2013) 118 SASR 119 at [33], citing R v MJJ; R v CJN [2013] SASCFC 51 at [16], [236].
Relatedly, while the trial judge did not take into account the third search when considering the admissibility of the evidence of the first two searches, this does not of itself establish a basis for allowing the appeal. The task for this Court is to consider the admissibility of the impugned evidence having regard to its probative force in all of the circumstances of the case, including the evidence of the third search. If this Court concludes that the impugned evidence was admissible, then any error or oversight in the trial judge’s reasoning to the same conclusion is of no consequence.
Turning to the admissibility of the first two searches, and resulting convictions of methylamphetamine trafficking, the appellant contends that the evidence was so general in nature, and temporally remote from the subject charge, that the intended use of it was indistinguishable from the impermissible bare or general propensity use under s 34P(1), or at the very least did not have sufficient probative value to satisfy the dual limbs of s 34P(2).
In support of these submissions, the appellant relied upon the following paragraphs from the reasons of Kourakis CJ in R v C,CA:[10]
The mischief to which s 34P(3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence. Put another way, it is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity. I will refer to the impermissible reasoning as “bad person” reasoning.
…
In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a propensity or disposition which is not powerfully established by the evidence of discreditable conduct. Violent conduct, sexual or otherwise, committed over the course of a particular relationship will often be strongly probative of a proclivity to commit that kind of crime whenever the opportunity arises because, as a matter of human experience, there are some such relationships in which conduct of that kind is compulsively repeated. For that reason evidence of that kind has long been held to have a probative force which outweighs its prejudicial effect and therefore to be admissible.[11] However, as the facts and decision in Phillips v The Queen[12] illustrate, when the discreditable conduct is more random, not arising within relationships of a particular kind, it may suggest, at most, no more than that the accused is a bad person, which is of no probative weight at all. Dishonest conduct and prior involvement in the drug trade are other examples of discreditable conduct which, although revealing the accused to be a bad person, are less likely to support an inference that the accused has an innate tendency or disposition which can support a permissible form of reasoning.[13] Of course, even in conduct of that kind the temporal and other circumstantial connections between the discreditable conduct and the offence charged may show that they are both aspects of an ongoing single criminal enterprise.[14] Persons who embark upon a criminal enterprise are generally motivated to maintain it …
[10] R v C, CA [2013] SASCFC 137 at [76], [79].
[11] R v Hissey (1973) 6 SASR 280; R v Nieterink (1999) 76 SASR 56; R v Maiolo (No 2) [2013] SASCFC 36.
[12] (2006) 225 CLR 303.
[13] R v Soteriou [2013] SASCFC 114, [30] (Vanstone J); Cf Harriman v The Queen (1989) 167 CLR 590, 635-636 (McHugh J).
[14] Harriman v The Queen (1989) 167 CLR 590; R v Conley (1982) 30 SASR 226.
In my view, contrary to the appellant’s submissions, these paragraphs assist in understanding and explaining the admissibility of the impugned evidence. The prosecution did not seek to rely upon that evidence in the simplistic manner contemplated by the impermissible use. The prosecution did not seek to rely upon the earlier convictions as establishing merely that the appellant was a ‘bad person’ who was therefore more likely to have engaged in the charged offending, without regard to any probative connection between the earlier convictions and charged offending. Rather, the prosecution sought to rely upon a probative connection arising from the capacity of those earlier convictions, when considered in light of the evidence as a whole, to establish a continuing involvement in methylamphetamine trading, which would in turn be probative of the appellant’s knowledge and possession of the methylamphetamine located on 13 February 2017.
It is true that in the above passage from his reason in R v C,CA, Kourakis CJ cautioned against any assumption that prior involvement in the drug trade would necessarily suffice to support a permissible form of propensity reasoning with sufficient probative force to render it admissible. However, as his Honour acknowledged in the very next sentence, citing R v Harriman and R v Conley, such evidence may be admissible where “the temporal and other circumstantial connections” between the discreditable conduct and the offence charged show that they are both aspects of an ongoing single criminal enterprise; and that, at least in part, this is because persons who embark upon a criminal enterprise are generally motivated to maintain it.
In Harriman v The Queen,[15] Brennan J explained the potential probative force of evidence of participation in the drug trade in the following terms:[16]
The concatenation of these pieces of evidence showed that Harriman, prior to April 1987, had participated repeatedly in one role or another in heroin dealing in Western Australia. He had participated in a trade notorious for its clandestine organization, the creation of distribution networks of dealer-users, the payment of large sums of money enforced (if need be) by vicious measures, and the urgent demand by addicts for sources of supply. A person who is shown to have participated to a substantial degree in that trade - I am not speaking of mere use or of an isolated sale - is likely to have incentives to continue his participation in the trade and, because of the nature of the trade, is more likely to have done so than one who has not been a substantial participant. Evidence of substantial participation in the heroin trade can support an inference of continued participation although, of course, each case depends on its own facts. In determining whether or not evidence of participation can support such an inference, regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case. In this case, the extent of Harriman's participation was such that, in the absence of anything to suggest that the participation by Harriman and Martin in the sale of heroin in Western Australia had been discontinued, the guilty inference might properly have been drawn.
[15] Harriman v The Queen (1989) 167 CLR 590.
[16] Harriman v The Queen (1989) 167 CLR 590 at 595-596.
It must be acknowledged that in both Harriman v The Queen and R v Long and McDonnell there were circumstantial connections between the discreditable conduct and charged conduct of a type that did not exist here. In Harriman v The Queen, each occasion of alleged drug trading involved the defendant acting in concert with a Mr Martin, such that it could be said that they each had a propensity to engage in drug dealing together with one another such as to make it improbable that their joint involvement in the charged conduct was of an innocent character.[17] Similarly, in R v Long and McDonnell it was the commonality of not only the location and method of operation, but also of the people present on both the earlier and subject occasions that meant that it was improbable that those coincidences or repetitions had some innocent explanation.[18]
[17] Harriman v The Queen (1989) 167 CLR 590 at 597 (per Dawson J) and 609-610 (per Toohey J).
[18] R v Long and McDonnell (2002) 137 A Crim R 263 at [37].
On the other hand, there is a strong factual analogy between the circumstances of the present case and those in R v Conley.[19] In that case the defendant was charged with two counts of trading in heroin committed on 8 November and 22 November 1979, each based on traces of heroin found by the police on plastic bags in the defendant’s rubbish bin. The defendant was also charged with two further charges of possessing heroin for sale committed on the day of his arrest, namely 9 March 1981. On that day, the defendant had taken part in a transaction in which a person collaborating with the police (Mr Clark) had handed $25,000 to the defendant for the purchase of heroin. The police then found a bag containing heroin at the defendant’s premises, and a further quantity of heroin in his motor vehicle. The defendant gave an unsworn statement denying he was responsible for the bags in his rubbish bin, denying any intent to supply Mr Clark with heroin, and asserting that the heroin found in his house and car had been planted by the police.
[19] R v Conley (1982) 30 SASR 226.
King CJ (with whom White and Cox JJ agreed) found that the evidence on each count was admissible on all other counts. His Honour said that the evidence was probative of the general allegation that the defendant was trading in heroin, and indeed of a continuity of interest and involvement in that trade throughout the relevant period. If established, this continuity of interest and involvement would be “highly relevant” to each of the counts charged. It would render less credible or likely the innocent explanations given by the defendant for the plastic bags in his bin, his dealings with Mr Clark, and the suggested police plants. It would render it more likely that the heroin and the defendant’s conduct were a result of his involvement in heroin trading.[20]
[20] R v Conley (1982) 30 SASR 226 at 230.
In considering the probative value of the discreditable conduct evidence sought to be relied upon by the prosecution in the present case as establishing a continuity of interest and involvement in methylamphetamine trading, it is necessary to have regard to the nature of the evidence to be led, and all of the circumstances surrounding the other occasions of trading (or alleged trading) including their number and timing, and any commonality of location, method or people.
Here, it is relevant that there were three earlier occasions of previous trading (or, in the case of the third earlier occasion, alleged trading). Focusing for the moment on the first two such occasions it is significant that they were not mere allegations; they were instances of admitted involvement by the appellant in methylamphetamine trading. While they occurred at a different location from the charged conduct (i.e. the Bowden premises rather than the Oakden premises), this is hardly significant given that each involved conduct in the appellant’s then current place of residence. Each involved the presence of the same drug (methylamphetamine). They also involved a similar collection of the accoutrements of drug trading, although the significance of this is tempered somewhat by the relatively ubiquitous nature of these items in methylamphetamine trading. The first two occasions occurred quite some time earlier, with the second being about a month and a half after the first, and about 13 months before the charged occasion. While this remoteness in time is relevant, it is nevertheless less than the approximately 16 months between the occasions in R v Conley.

In my view, and contrary to the appellant’s submissions, the evidence of the third search did not diminish or erode the potential probative value of the evidence of the first two searches. It is true that the third occasion involved merely an allegation of involvement in methylamphetamine trading by the appellant, which allegation was denied by the appellant. It is also true that the evidence suggested the involvement of FR with the cocaine and methylamphetamine located on the third occasion. If the jury were not satisfied that the evidence of the third occasion revealed any involvement by the appellant in methylamphetamine trading, then the evidence of that search would not assist the jury in its consideration of whether the appellant had a continuing interest and involvement in methylamphetamine trading. Indeed, if the jury considered that FR was solely responsible for the methylamphetamine and other items found on that occasion, then they might also have considered that this provided some support for the appellant’s contention that FR was solely responsible for the methylamphetamine found on the subject occasion.
However, even allowing for FR’s involvement on that third occasion, that did not necessarily mean that this was to the exclusion of the appellant also being involved. The issue of whether and to what extent the appellant was involved on the third occasion was a matter for the jury. It is sufficient for present purposes that the evidence of the third occasion was probative of the appellant’s involvement in methylamphetamine trading both on that occasion and more generally; whether it established that involvement was a matter for the jury. And given the relative close proximity in time between this search and the subject search (being only a month and a half), I consider that any involvement in methylamphetamine trading at the time of the third search would be highly probative of a continuing interest and involvement in that trade as at the date of the subject search.
For these reasons, the evidence of the third search was relevant to the jury’s assessment of whether or not the evidence established a continuing interest and involvement in methylamphetamine trading, and did not diminish or erode the probative value of the evidence of the first two searches. It did not, in my view, prevent the conclusion that the probative value of the evidence of these earlier searches substantially outweighed any prejudicial effect it may have had, and that it had a strong probative value, thus satisfying the criteria for its admissibility under s 34P(2)(a) and (b).
Further, even though the permissible use of the discreditable conduct evidence involved a form of propensity evidence, I am satisfied that a properly instructed jury would have understood the distinction between this use and the impermissible general or bare propensity under s 34P(1).
In my view, the discreditable conduct evidence was admissible, and the appeal on ground 1 must fail.
Ground 2: directions as to the use of the discreditable conduct evidence
The second ground of appeal involves a complaint that the trial judge failed to discharge his obligation under s 34R(1) of the Evidence Act to “identify and explain the purpose for which the evidence may, and may not, be used”; that is, to direct the jury as to both the permissible and impermissible uses of the discreditable conduct evidence.
There is no dispute as to the general principles governing the nature and extent of this obligation.[21] The issue under the second ground of appeal concerns their application to the circumstances of this case.
[21] See, for example, R v Singh [2019] SASCFC 51 at [69]-[70].
I have earlier set out the trial judge’s directions in relation to the discreditable conduct evidence. Using the paragraph numbering that I included for the ease of reference, the trial judge introduced the topic of the discreditable conduct evidence by informing the jury in [2] that everyone is entitled to have the case against them determined on the merits, and not based on some smear that they have done something else bad. In the second and third sentences of [5], his Honour then instructed the jury not to reason that the accused is a bad person on the basis that she has trafficked in drugs before, or has been involved with methylamphetamine before, and is therefore guilty of this particular offence; that this would be improper and impermissible reasoning. Importantly, in the very next sentence, the trial judge identified the permissible use of the discreditable conduct evidence, instructing the jury that “the three prior occasions of trafficking, if you are satisfied that they involve the accused, might show that the accused was a trader or trafficker in methylamphetamines over a period of time and was therefore more likely to have known about and possessed the methylamphetamines that were located in her unit on the police raid on 13 February 2017 as part of a continuing course of drug trafficking.”
Later, after addressing some matters relevant to the jury’s use of the evidence of the third search, the trial judge again identified and distinguished between the permissible and impermissible uses in the last sentence of [7]. In [8] to [15] the trial judge addressed the prosecution case in relation to the discreditable conduct evidence, explaining various features of the evidence said to support its probative value and its use as evidence of a continuing interest and involvement in trading methylamphetamine. And then, in [16] to [23], the trial judge addressed the defence case in relation to the same. Finally, in [24], and at the request of defence counsel, the trial judge reminded the jury of the importance to the permissible use of the discreditable conduct evidence of there being a continuing interest or involvement, and the impermissibility of simplistic ‘bad person’ reasoning.
In my view, the trial judge’s directions correctly and clearly identified both the impermissible and permissible uses of the discreditable conduct evidence in the sentences from [2], [5] and [7] to which I have referred. Further, by juxtaposing them in the way he did, the trial judge highlighted the simplistic nature of the former (involving leaping directly to a likelihood or conclusion of guilt) and the probative quality of the latter (involving reasoning via the existence of a continuing interest and involvement in drug trading). His Honour’s directions thus ensured that the jury would have understood the distinction between the two, and hence eliminated any appreciable risk of the jury making any impermissible and prejudicial use of the discreditable conduct evidence. Finally, to the extent that the jury required any further assistance by way of explanation as to how the permissible reasoning might be applied to the facts of the case, this was provided through the prism of the trial judge’s summary of the parties’ respective cases in the passages from [8] to [24] of his summing up.
The appellant’s submissions under the second ground of appeal included a complaint that the trial judge’s directions in relation to the discreditable conduct evidence failed to distinguish between the first two searches (which involved admitted involvement in, and indeed convictions for, drug trafficking by the appellant), and the third search (which revealed involvement by FR, and did not result in any conviction, or indeed any admitted involvement, on the part of the appellant). The complaint was that the trial judge’s directions did not adequately convey the significance of both FR’s involvement, and the appellant’s denial of involvement, with the drugs and other items found on the occasion of the third search, and the potential for these matters to undermine any probative value of the evidence of the third search in establishing a continuity of interest and involvement in methylamphetamine trading on the part of the appellant.
In my view, when his Honour’s directions are considered as a whole, there is no merit in this compliant. When initially identifying the impermissible use of the discreditable conduct evidence in [3] his Honour referred generally to the “three previous occasions”. He did so without distinguishing between the three occasions, other than to mention in [4] the date of each and the involvement of FR in the context of the third occasion. However, when it came to the permissible use of the discreditable conduct evidence, his Honour did deal separately with third search.
The trial judge commenced by referring in [5] to the “three prior occasions of trafficking”, but added “if you are satisfied that they involve the accused”. This qualification was presumably intended to refer to the third occasion, as there was no dispute that the appellant was involved on the first two occasions. To the extent there may have been any doubt about this, it was removed by what his Honour said in [6]. Having identified the permissible use that the prosecution sought to make of the discreditable conduct evidence, his Honour instructed the jury that they could not use any of that evidence unless satisfied the accused was involved. His Honour went on to say that this may present no difficulty in relation to the first two occasions because the appellant had admitted her involvement on those occasions. However, his Honour then made specific reference to the absence of any equivalent admission in respect of the third search, and the implication that what was found on that occasion “was all to do with [FR]”. His Honour added that the evidence of the third search could only be used against the appellant if the jury were satisfied of her knowing involvement in the methylamphetamine found on that occasion. His Honour concluded this section of his summing up by mentioning in [7] the appellant’s claim that she had turned over a new leaf after the second occasion (in January 2016), and hence implicitly had no involvement with the methylamphetamine found on either the third occasion or the charged occasion.
In my view, these directions were adequate to ensure the jury understood the differing considerations that arose in respect of the third search. And while his Honour did not in these passages from his summing up expressly mention the potential for the evidence of FR’s involvement on the third occasion to support the possibility that FR was also responsible for the methylamphetamine found on the charged occasion, this was not only obvious but was also explained at some length (in [17] to [23]) when summarising the defence case.
For these reasons I would reject the second ground of appeal.
Ground 3: directions as to the circumstantial nature of the case
As mentioned, the central issue at trial was the appellant’s knowledge and possession of the methylamphetamine located at her Oakden residence. The prosecution case against the appellant in relation to knowledge and possession was a circumstantial one. In the appellant’s third ground of appeal, she complains that the trial judge erred in failing to direct the jury as to the circumstantial nature of the case, and in particular the need for the jury to exclude any reasonable hypothesis with innoncence.
It is customary in cases that are wholly or substantially based on circumstantial evidence to direct the jury that guilt must be not only a rational inference, but the only rational inference to be drawn from the circumstances; and that it is a corollary of this that a conclusion of guilt requires the exclusion of any reasonable hypothesis consistent with innocence.[22] This is sometimes referred to as a Peacock direction.
[22] Peacock v The King (1911) 13 CLR 619 at 634; Plomp v The Queen (1963) 110 CLR 234 at 252.
The Peacock direction is generally considered helpful in a circumstantial case in reducing the risk of the jury succumbing to the human tendency to leap to conclusions, or to assume that where there is smoke there is fire. It is intended to encourage the jury to avoid resting on their initial or general impression of the evidence, and to undertake a more minute investigation of the evidence and circumstances.[23]
[23] R v Gebert [2019] SASCFC 37 at [53].
However, such a direction is ultimately no more than an amplification of the general principle that the prosecution must prove its case beyond reasonable doubt. There is no invariable rule of practice, let alone rule of law, that a Peacock direction must be given in every case involving circumstantial evidence. Whether the failure to give such a direction in a particular case has occasioned a miscarriage of justice will depend upon the nature and circumstances of the particular case, and the terms of the summing up considered as a whole.[24]
[24] Shepherd v The Queen (1990) 170 CLR 573 at 578.
In R v Gebert[25] Kourakis CJ (with whom Kelly and Hinton JJ agreed) held that the failure to give a Peacock direction did give rise to a miscarriage of justice. His Honour considered that such a direction was necessary to ensure that the jury moved past the initial impression left by the evidence in that case to a closer analysis of it.
[25] R v Gebert [2019] SASCFC 37 at [54].
While that case, like the present case, involved allegations of drug trafficking, it is distinguishable from the present case. Not only did that case involve different and more numerous issues, but also the body of circumstantial evidence was more extensive and disparate than in the present case. Further, and importantly for present purposes, the trial judge in that case not only failed to give a Peacock direction, but also did not otherwise advert to the existence of (let alone the need to exclude as a reasonable possibility) the innocent explanations that had been proffered by the defendant.
The present case was essentially a single issue case, with the only realistic possibilities on the issue of possession being possession by the appellant or possession by FR. There was a relatively confined and readily understandable body of circumstantial evidence relied upon by the prosecution in support of the former. The trial judge gave the usual directions to the jury to the effect that it could only find the appellant guilty if satisfied beyond reasonable doubt of the prosecution case.
While the trial judge did not give the customary Peacock direction, his Honour did identify at length the nature of the defence case, and in particular the defence contention that FR may have been responsible for the methylamphetamine and cash located in the hidden compartment above the pantry in the appellant’s Oakden premises. I have earlier set out some of the trial judge’s summary of the defence case. In both the passages that I have set out, and the balance of the trial judge’s summary of the defence case, his Honour made extensive reference to the defence contention that FR was responsible for the methylamphetamine and cash found by the police, and the evidence said to support that hypothesis.
Further, at the end of his summary of the defence case, the trial judge said:
In the event that you agree that another person could have left the drugs there without the accused’s knowledge, it would not have been proved beyond reasonable doubt that the accused possessed the drugs and it would follow that it would not have been proved beyond reasonable doubt that she had them for the purpose of trafficking and in those circumstances she is entitled to an acquittal.
This passage from his Honour’s reasons is significant because it was tantamount to a Peacock direction expressed in terms specific to the particular case (that is, specific to the particular hypothesis consistent with innocence relied upon by the defence), rather than in the general terms in which it is generally expressed.
The only risk of miscarriage identified by the appellant on appeal was the risk that the jury might have lost sight of the need to exclude as a reasonable possibility that FR was responsible for the methylamphetamine and cash, and the need to move beyond an impressionistic consideration of the evidence to a more minute examination of the evidence relevant to that hypothesis. In my view, in a case where there was only one issue in dispute, the circumstantial evidence was relatively narrow in compass, and the only hypothesis consistent with innocence was not only central to the defence case but also the subject of the directions adverted to above, there was no miscarriage of justice occasioned by the trial judge’s failure to give the customary Peacock direction.
I would reject the third ground of appeal.
Ground 4: directions as to the 30 December 2016 search
The fourth ground of appeal also relates to the trial judge’s directions in relation to the discreditable conduct evidence, and in particular the evidence relating to the third search, being the search that occurred in December 2016 and resulted in FR being charged with trafficking cocaine and diverted for the methylamphetamine that was found by the police.
The appellant was not charged with any offence arising out of what was found during this third search, and the appellant’s complaint under her fourth ground of appeal relates to what the trial judge said to the jury about this. In particular, the complaint relates to what the trial judge said in [10] when summarising the prosecution case in respect of the third search. As set out above, having mentioned that the police decided to charge FR (who had the cocaine, money and tick list in his wallet), his Honour indicated that the failure to charge the appellant did not mean she was not involved, adding: “Maybe they did not think they had enough evidence on her. Maybe she had given evidence on other people and they wanted to keep her in the good books.”
The appellant accepts that it was appropriate for the trial judge to make it plain to the jury that just because the appellant was not charged with any offence arising out of the methylamphetamine and accoutrements of drug trading found during the third search, this did not necessarily mean that the appellant did not have any knowledge of, or involvement with, the items located. It was appropriate that the trial judge mention the prosecution case in this respect, given the defence’s emphasis upon the failure of the police to charge the appellant with any offence arising out of the items located during the third search.
However, the appellant complains that the trial judge went too far in then inviting the jury to speculate as to the reasons why the police may not have charged the appellant, and doing so in a manner that implicitly assumed she had been involved in trafficking methylamphetamine on that occasion.
In my view, it would have been safer and preferable had the trial judge simply mentioned, as the prosecutor had, that the police decision to charge FR, and not charge the appellant, did not necessarily mean that the appellant had no knowledge of, or involvement with, the items suggestive of drug use and trading located during the third search; that the jury needed to form their own view about these matters based on the evidence they had heard; and that there was no need for the jury to speculate about why the police may have made the decision they did.
That said, to the extent that his Honour’s directions encouraged the jury to consider why the police did not charge the appellant, I do not consider that this would have prejudiced the appellant. Both of the possible explanations mentioned by the trial judge were possibilities that had at least some potential foundation in the evidence rather than being in the realm of pure speculation. While it is true that the jury were not required to reach any conclusion as to why the police did not charge the appellant, and indeed that the evidence did not enable any such conclusion to be reached, I see no prejudice arising from the trial judge mentioning two possible explanations.
I accept that the two potential explanations for the appellant not being charged implicitly assumed the appellant’s knowledge of, or involvement with, the accoutrements of drug trading located during the third search. But I do not accept that the judge in any way foreclosed, or assumed away, the alternative that the appellant had no such knowledge or involvement. The trial judge’s summing up made clear that it was for the jury to determine whether the appellant had relevant knowledge or involvement on the third occasion. The impugned directions were intended, and would have been understood by the jury as intended, merely to assist the jury with reconciling the possibility that she had knowledge or involvement with the fact that she was not charged with any offence arising out of the third occasion.

I would reject the fourth ground of appeal.
Ground 5: unreasonable verdict
The appellant contends that the jury’s verdict was unreasonable, and not able to be supported having regard to the evidence. She contends that the evidence, while largely uncontested, was not capable of establishing beyond a reasonable doubt that the appellant was in possession of the methylamphetamine located during the 13 February 2017 search of her Oakden premises. In particular, she contends that it was not capable of excluding as a reasonable hypothesis that it was FR who, without her knowledge, was responsible for putting the methylamphetamine in the hidden compartment above the pantry in that premises.
The principles governing consideration of whether a verdict is unreasonable are not in dispute. The task of this Court is as articulated in authorities such as M v The Queen[26] and Libke v The Queen[27]. In short, the question for this Court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. Put another way, it is whether the jury was bound to, or must have as opposed to might have, entertained a doubt about the appellant’s guilt.
[26] M v The Queen (1994) 181 CLR 487 at 493-494.
[27] Libke v The Queen (2007) 230 CLR 559 at 596-597.
In most cases, a doubt experienced by the appellate court will be a doubt that the jury ought to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence might have resolved a doubt experienced by the appellate court that the Court may nevertheless conclude that no miscarriage of justice occurred.[28]
[28] M v The Queen (1994) 181 CLR 487 at 494.
In circumstances such as the present, where the evidence was largely uncontested and hence the issue is one of the sufficiency rather than the credibility or the reliability of the evidence, the jury is unlikely to have enjoyed any material advantage over the appellate court. I approach the appellate task on that basis.
The appellant contends that the evidence of the third search, and in particular the evidence of the involvement of FR with the items located on that occasion, laid the foundation for the defence hypothesis that FR was responsible for secreting the methylamphetamine and cash located in the hidden compartment during the 13 February 2017 search. The appellant further contends that the evidence relied upon by the prosecution was not capable of disproving, or excluding as a reasonable possibility, this hypothesis.
The starting point in considering this submission is to recognise that the involvement of FR with the drugs and accoutrements found on the occasion of the third search, did not necessarily mean that the appellant did not have any knowledge of, or involvement with, those drugs and accoutrements. To the contrary, I consider that the nature and number of the items located during the third search might reasonably have led the jury to accept that the appellant had a level of knowledge of, if not involvement in, the drug trading that appears to have been occurring at the Oakden premises at that time.
But even putting to one side the potential significance of the evidence of the third search, I consider that there was sufficient evidence to leave it open to the jury to conclude beyond reasonable doubt that the appellant knew of, and was in possession of, the methylamphetamine and cash in the hidden compartment above her pantry, and hence that she was guilty of the offence charged.
I provided a general summary of the evidence at the outset of these reasons, and have mentioned various aspects of it in my consideration of the appellant’s other grounds of appeal. As the respondent contended on appeal, this evidence can be seen as consisting of the following strands:
1.   the methylamphetamine the subject of the charge, which was part of a drug-dealing kit that had been hidden in a deliberate or purposeful manner within the Oakden premises;
2.   the appellant was living alone at the Oakden premises at the time of the search;
3.   the presence of the appellant’s thumb print on the digital scales located with the hidden drug-dealing kit;
4.   the various items associated with the sale of the methylamphetamine located around the Oakden premises that were either in plain view or readily accessible, including a ‘tick list’ in the appellant’s handwriting; and
5.   the discreditable conduct evidence.
In my view, the cumulative effect of this evidence was sufficient to leave it open to the jury to convict the appellant. I would thus reject the fifth ground of appeal.
Conclusion and orders
While I would grant permission to appeal on grounds 1, 2 and 5, for the reasons set out I would dismiss the appeal on all grounds.
DAVID AJ: I would dismiss the appeal. I agree with the reasons of Doyle J and the orders he proposes.