Day v The King

Case [2024] SASCA 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DAY v THE KING

[2024] SASCA 68

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David)

30 May 2024

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

Appeal against conviction.

The appellant was convicted by a jury of the District Court of one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).

Police conducted a search of the appellant’s home. Six people were present during the search, including the appellant. Located at the rear yard of the premises was a detached rumpus room which was locked with a combination lock.

Police requested the code for the lock from the appellant. The appellant provided a code, however it did not open the lock and police subsequently forced open the door.

Inside the detached room, police located a blue zip case which contained a set of electronic scales, $250 in cash, a spoon with a long narrow bowl and raised edges, and multiple unused plastic press seal bags. Also located in the zip case were two plastic seal bags containing a total quantity of 20.07g of methylamphetamine, the contents of which formed the subject of the charge. Within the same room, police located the appellant’s wallet containing $750 in cash in varying denominations.

At trial, the prosecution led circumstantial evidence focusing on the location of the zip bag in the rumpus room, the proximity of the blue zip case to the appellant’s wallet, the appellant’s DNA located on the blue zip case, the drugs found in the detached room and the fact that the appellant had proffered a code to enter the rumpus room.

The primary issue on appeal was whether the evidence of the cash, the spoon and the scales had sufficiently strong probative value to be admissible as discreditable conduct evidence within the meaning under s 34P(2)(b) of the Evidence Act 1929 (SA) (‘Evidence Act’).

The appellant submitted on appeal that absent evidence of previous sales such as ‘tick lists’ or expert evidence addressing the significance of the items in the zip bag, the possession of the cash (in particular) could not be strongly probative of an ongoing drug trading enterprise. He further complained that the judge erred in directing the jury by referring to the discreditable conduct evidence as ‘uncharged acts’, and that the admission of evidence relating to the appellant volunteering the combination code (‘the code conversation’) amounted to a miscarriage of justice.

Held (by the Court) granting…

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AGLC
Day v The King [2024] SASCA 68
Case
[2024] SASCA 68
Decision Date

CaseChat Overview and Summary

The appeal concerned the admission of certain evidence at the trial of the appellant, who was charged with drug trafficking. The defence had argued that another individual, Roman Melis, could have been in possession of the drugs, a possibility the jury ultimately rejected. The central dispute revolved around whether evidence of cash, a spoon, and scales was improperly admitted as discreditable conduct evidence under section 34P(2)(b) of the Evidence Act, which requires such evidence to have "strong probative value" when relied upon for a propensity or disposition.

The legal issues before the court were whether the admission of the evidence of cash, a spoon, and scales constituted a miscarriage of justice. Specifically, the court had to determine if this evidence, when used to establish a propensity or disposition of the appellant towards drug trafficking, possessed the requisite "strong probative value" under section 34P(2)(b) of the Evidence Act, and if its admission prejudiced the appellant unfairly.

The court reasoned that evidence of an individual conducting the business of drug trafficking, as reviewed in *R v Soteriou*, can demonstrate an inclination or propensity to possess drugs for trade. Furthermore, drawing on *R v Falzon*, the court acknowledged that evidence of cash found at a premises, in conjunction with other indicators of drug trafficking, can support an inference that the individual was engaged in the business of trafficking. The High Court in *Falzon* held that cash likely derived from previous sales fortified the probability of regular sales and the ongoing nature of a trafficking business. The court found that the evidence of cash, spoon, and scales was admissible as it had strong probative value in establishing the appellant's involvement in drug trafficking.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The defence was that the jury could not exclude as a reasonable possibility that the drugs were possessed by Roman Melis, rather than by the appellant. The verdict demonstrated the jury’s rejection of this thesis as a reasonable possibility. Whether the evidence of the cash, spoon and scales was admissible The appellant challenged the admission of the evidence of the cash, spoon and scales on the basis that as discreditable conduct evidence, it did not have ‘strong probative value’ within the meaning of s 34P(2)(b) of the Evidence Act. Section 34P(2) provides:(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 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. The appellant accepted that the prosecution may adduce evidence that an individual was in the business of trafficking a drug where that evidence demonstrates a tendency to sell drugs in furtherance of that business. In R v Soteriou,[1] Vanstone J reviewed various authorities and concluded that evidence of the appellant apparently conducting the business of trafficking drugs from the premises where he was found, and near to where the drugs were located, was evidence of an interest in the trade and of the appellant’s inclination or propensity to possess drugs for the purposes of trade.[2][1] (2013) 118 SASR 119.[2] R v Soteriou (2013) 118 SASR 119 at [31]. In R v Falzon[3] the High Court held that evidence of cash found at the respondent’s home was an item of circumstantial evidence that, in conjunction with other indicia of drug trafficking, was capable of founding the inference that the respondent was in the business of trafficking cannabis. The necessary inference that the cash came from past trafficking did not detract from this. The Court said:[4]To the contrary, the fact that the cash was likely to have come from previous sales of cannabis – a conclusion strengthened by the expert evidence of drug traffickers’ inclinations to transact drug deals in cash and the tax return evidence of the respondent's failure to declare the cash as part of his assessable income – fortified the probability of the respondent making regular and recurring sales of cannabis, and thus that, as at 17 December 2013, the respondent had been carrying on a continuing business of trafficking in cannabis. More specifically, the fact that the cash was likely to have come from previous sales of cannabis logically bespoke the probability that the respondent kept the cash on hand on 17 December 2013 as an asset of a continuing business of trafficking in cannabis in the course of which he intended to sell the cannabis that he possessed on 17 December 2013. [3] (2018) 264 CLR 361.[4] R v Falzon (2018) 264 CLR 361 at [41].

Decision

Reasons for decision

We dismiss Ground 4. Conclusion We grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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