De Marchi v The King

[2024] SASCA 49

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DE MARCHI v THE KING

[2024] SASCA 49

Judgment of the Court of Appeal  

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

18 April 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

This was an application for permission to appeal, and an appeal, against conviction entered upon the return of a guilty verdict by a jury.

Following a trial by jury in the District Court, the appellant was found guilty of one count of trafficking in a large commercial quantity of a controlled drug, viz., cannabis, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The case advanced by the prosecution against the appellant was entirely circumstantial, and relied on numerous pieces of evidence connecting the appellant to a warehouse in Adelaide’s western suburbs which housed a commercial cultivation of cannabis. That evidence included, inter alia, pre-offence discreditable conduct evidence establishing that the appellant might have grown cannabis hydroponically in his home; and subsequent evasive and discreditable conduct evidence, consisting of the appellant’s alleged attempts to evade undercover police officers upon leaving the warehouse, the deletion of text messages between the appellant and his co-offender, and the dismantlement and attempted concealment of a cannabis grow room at the appellant’s residence. Insofar as the subsequent evasive and discreditable conduct evidence adduced by the prosecution was concerned, the trial judge directed the jury that, in order for the jury to infer that the appellant had attempted to conceal his involvement in the offending, it had to be satisfied that that was the only reasonable inference to be drawn therefrom.

The appellant instituted an appeal as of right against what he contended to be the erroneous admission of the pre-offence discreditable conduct evidence and the subsequent evasive and discreditable conduct evidence, each on the basis that, as propensity evidence, they lacked strong probative value. The appellant further sought permission to appeal on the ground that the trial judge had misdirected the jury on the use to which the subsequent evasive conduct evidence could properly be put.

Held, by the Court, granting the appellant leave to appeal to the extent required but otherwise dismissing the appeal on all grounds:

1.In circumstances where the pre-offence discreditable conduct evidence was not led for propensity purposes, but rather for establishing that the appellant was familiar with cannabis and would, therefore, have appreciated that the plants found in the warehouse were cannabis plants and made it more probable that the purpose of his attendance thereat was otherwise than for an innocent purpose, the trial judge did not err in admitting the pre-offence discreditable conduct evidence.

2.Viewed together, particularly in light of the evidence that the appellant had deleted text messages between himself and his co-offender from his phone, the subsequent evasive and discreditable conduct evidence adduced by the prosecution was properly admitted into evidence.  Collectively, those pieces of circumstantial evidence rendered it more likely that the appellant was a person who had criminally participated in the harvesting of cannabis at the warehouse rather than a person who had been there coincidentally for an innocent purpose.

3.The net effect of the trial judge’s directions to the jury on the use to which the subsequent evasive conduct evidence could be put was such that there could be no miscarriage of justice because the jury were told that they could only rely on that evidence if they first were satisfied beyond reasonable doubt of the appellant’s guilt.  Though those directions were circular, they were unduly favourable to the appellant.

Controlled Substances Act 1984 (SA) s 32(1), referred to.
Bristow v The Queen (2020) 137 SASR 449, discussed.

DE MARCHI v THE KING
[2024] SASCA 49

Court of Appeal – Criminal:  Kourakis CJ, Bleby and David JJA

THE COURT:

Introduction

1. This is an appeal, and an application for permission to appeal, brought by Mr De Marchi against his conviction, entered upon the return of a guilty verdict by a jury, for trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA).

2. On 3 July 2021, the police searched a warehouse in Adelaide’s western suburbs and discovered a commercial cannabis cultivation, which had recently been harvested and packaged into boxes and bags.  There were some 30 pruned cannabis stumps and about 213 kilograms of (mostly fresh and moist) cannabis in a purpose-built grow room.  In the warehouse they found a man, Michael Knights, whose clothes and gloves were covered in cannabis.  The prosecution case was that, on that same morning, Mr De Marchi had helped Mr Knights to harvest the cannabis. 

3. The prosecution adduced evidence, obtained from Mr Knights’ smartphone, that, in the days before 3 July, Mr De Marchi and Mr Knights had exchanged text messages in which they arranged to meet at 6.00 am on that day at the warehouse.  CCTV footage from neighbouring premises showed a white Nissan Navara belonging to Mr De Marchi arriving at 6.13 am and a second vehicle arriving about a minute later. 

4. At the time, police officers were keeping the warehouse under observation.  At 11.02 am on that day, they saw a man carrying a bag leave the premises in the white Nissan Navara.  The police followed that vehicle until they lost sight of it at the corner of South Road and Port Road, after it drove through a stale yellow light.  They located the vehicle at Mr De Marchi’s home on 5 July 2021.  The inference that Mr De Marchi was the driver on 3 July was not in issue at his trial.

5. The prosecution also adduced evidence of a search of Mr De Marchi’s home on 5 July, during which they discovered cannabis smoking implements; a small quantity of cannabis in a dining room cupboard; a small quantity of cannabis, comprising largely female flowering cannabis, in a vacuum cleaner bag; and the remnants of dry cannabis on crates in his garage.  Police also observed hooks fixed to the ceiling; an exhaust fan installed in the floorboards; and irrigation tubing off‑cuts scattered around the house.  Fresh plaster had been applied to some of the walls.  A police officer gave expert evidence that the room had the appearance of having once been a hydroponic grow room for cannabis.

6. On an examination of Mr De Marchi’s smartphone, the text messages making arrangements with Mr Knights to meet at the warehouse could not be found.  The prosecution contended that it could be inferred that Mr De Marchi had deleted them.

7. Mr De Marchi did not give evidence.

8. Mr De Marchi appeals on three grounds, which may be summarised as follows:

   Ground 1A – The Judge erred in admitting evidence of pre-offence discreditable conduct: namely, Mr De Marchi’s possession of cannabis and modifications to his home, from which it might be inferred that he had grown cannabis hydroponically in his home.

   Ground 1B – The Judge erred in admitting evidence of subsequent evasive and discreditable conduct: namely, that Mr De Marchi had:

   ·driven through a stale yellow light when leaving the warehouse;

   ·subsequently deleted the text messages in which he and Mr Knights had arranged to meet at the warehouse;

   ·vacuumed up cannabis fragments in his home; and

   ·dismantled a cannabis grow room.

   Ground 2 – The Judge erred in the directions given to the jury as to the permissible and impermissible uses of the subsequent evasive conduct referred to in Ground 1B.

9. We would dismiss Mr De Marchi’s appeal in respect of Grounds 1A and 1B, and allow permission to appeal, but dismiss the appeal in respect of Ground 2.  The pre-offence discreditable conduct was admitted to prove that Mr De Marchi had prior experience in harvesting cannabis and was, for that reason, likely to have been invited to the warehouse to harvest cannabis other than for an innocent purpose.  It was more probable that Mr De Marchi engaged in the subsequent evasive conduct because he had helped Mr Knights harvest the cannabis rather than because he feared his innocent presence might have been misunderstood.  The Judge’s direction on that issue suffered from some circularity but, on the whole, were more favourable to Mr De Marchi than the directions that ought to have been given.  We elaborate on our reasons below.

   Consideration

   Ground 1A – Evidence of familiarity with cannabis and its cultivation

10. The evidence of cannabis fragments, implements, and the remains of a grow room found in Mr De Marchi’s house was properly admitted.  That evidence was not led for propensity purposes.  It was evidence that Mr De Marchi was familiar with cannabis and was, therefore, likely to have known that the plants in the warehouse were cannabis plants.  The evidence that Mr De Marchi had maintained a cannabis grow room in his home also showed that he was likely to have the experience and knowhow to harvest cannabis.  That evidence made it more probable that the purpose of the arrangement to meet Mr Knights was to assist him to harvest the many plants found in the warehouse.  It was strongly probative because it made it much more probable that Mr De Marchi was asked to attend because of his knowhow, and not for an unrelated, innocent purpose. 

11. Reasoning in that way is not strictly a propensity use of that evidence.  Assume that an issue at trial is whether X was asked to attend a home for a social visit or to fix a leaking tap which was found to have been repaired after he left.  Evidence that X is a plumber is strongly probative of the latter inference.  It is not probative because plumbers have an inclination to fix faulty plumbing whenever they come across it.  Instead, it is strongly probative because, as a plumber, X is more likely, on that particular occasion, to have been asked around to fix the tap rather than for an unrelated, non-plumbing purpose.

12. However, even if the evidence were properly treated as having, and as having been put to, a propensity use, it would have strong probative value on the issue of the purpose of Mr De Marchi’s presence, which outweighs its prejudicial effect.  Moreover, even on the premise that it has a propensity purpose, its use to determine the reason for Mr De Marchi’s presence at the warehouse is sufficiently separate and distinct from the impermissible use, that Mr De Marchi has a bad habit at cultivating cannabis.  That is because the evidence, and the prosecution case, was that Mr De Marchi did not cultivate the plants himself, but that he was called in to assist Mr Knights. 

13. The trial Judge’s directions explained the permissible uses to the jury and warned them against impermissible propensity or bad person reasoning:

    The first piece of evidence that falls into this category is the evidence of Officer Renko, that he found a small quantity of cannabis in the plastic container, and a glass bong and a brass pipe on a shelf in the dining room at the accused’s home when it was searched on 5 July 2021.  …

    Now, it is an offence of itself for someone to be in possession of cannabis.  The prosecution asks you to infer from this evidence that the accused had an interest in cannabis, and was familiar with the drug, being evidence relevant to the second element of the offence, namely whether the accused knew the substance was a controlled drug. 

    Now you are permitted to use this evidence when considering whether the second element is proved.  However, you cannot use this evidence to reason that because Mr Demarchi (sic) may have been a user of cannabis, or perhaps he might have turned a blind eye to his partner using cannabis, that he is the type of person who is more likely to sell cannabis, and therefore more likely to have committed the offending. 

    You must not reason this way, and make findings simply on the basis of what you think of a person’s character, as that would deny the accused the presumption of innocence. 

    Another piece of evidence which falls into this same category is the evidence of the traces of dry cannabis leaf which were found on the bread crate and on a milk crate located in the accused’s garage. 

    The prosecution does not submit that these crates are in any way connected to the warehouse in Coglin Street.  However, the prosecution case is that from this evidence, together with that of the purported dismantled grow room inside the accused’s house, it can be inferred that at sometime in the past the accused had been involved in the cultivation of cannabis at his home. 

    The prosecution case is that this evidence demonstrates that the accused had knowledge about how to grow cannabis hydroponically indoors, making him an appropriate person to assist Mr Knights in steps relating to the preparation of the harvesting of the cannabis at the warehouse, making it less likely that the accused was at the warehouse for an innocent purpose. 

    It is a matter for you as to what findings of fact you make and what reasonable inferences you are then prepared to draw from those facts.  You are permitted to use the evidence in the way as submitted by the prosecutor should you see fit to do so. 

    However, if you find that the accused had previously been involved in the cultivation of cannabis at his home, you must not reason that it must necessarily follow that he was taking a step in the process of sale of the cannabis found at the warehouse. 

    So you do not automatically jump from growing an unknown quantity of cannabis at home, sometime in the past, to being involved in this large scale commercial drug trafficking.  It is impermissible to reason this way. 

    There is another way in which you must not use this evidence, that is that you simply must not draw conclusions about a person’s character.  To simply conclude that the accused is a person of bad character because of this previous conduct, and that therefore he is more likely to have done what the police said he did at the warehouse, that again is impermissible reasoning. 

14. The premise underpinning Ground 1A does not accord with the use of the evidence in the prosecution’s case, and, even if it were to, was appropriately forewarned to the jury and of significant probative value.

15. We would dismiss Ground 1A.

    Ground 1B – Subsequent evasive conduct

16. The evidence, such as it was, that Mr De Marchi drove through a ‘stale’ yellow light did not establish that he had contravened an Australian road rule.  To the extent that the jury might have believed otherwise, there is no reasonable possibility that they might have reasoned that running a yellow light made Mr De Marchi the sort of person who was more likely to help an acquaintance harvest cannabis. 

17. It is neither unlawful nor discreditable to vacuum up cannabis fragments or make good damage to walls caused by removing a grow room. The unlawful and discreditable conduct is engaging in those activities in the first place. However, that evidence was admissible for the reasons given at [10]-[12] above.

18. In Bristow v The Queen,[1] (Bristow), Kourakis CJ explained the rationale for the admission of evidence of subsequent evasive conduct as follows:

    [230]First, evidence of subsequent evasive conduct is admissible.  Secondly, subsequent evasive conduct is admissible as evidence of consciousness of guilt; it is not a condition of the admissibility of the evidence that it shows that the particular accused on trial fled because he was actually conscious of his guilt.  Rather, the drawing of an inference of guilt from subsequent behaviour is based on an understanding of human behaviour generally.  Thirdly, the availability of an alternative explanation for evasive conduct in any particular case does not preclude the admission of the evidence; it merely affects the strength of the inference which can be drawn from it.

    [1] (2020) 137 SASR 449, 511.

19. The evidence of Mr De Marchi’s subsequent evasive conduct was circumstantial evidence that Mr De Marchi’s presence at the warehouse was for the unlawful purpose of assisting Mr Knights to harvest and package the cannabis found there.  The evidence that Mr De Marchi drove through a yellow light so soon after leaving the warehouse, at a time when he was being followed by undercover police cars, unmarked ones, supports an inference that he suspected that the police were following him from the warehouse.  The ‘clean up’ of his house enhances the strength of that inference, as does the evidence that he deleted Mr Knights’ texts from his smartphone.  It is relatively more likely that a person who had criminally participated in the harvesting at the warehouse would attempt to evade police and to conceal evidence of any connection with cannabis to escape detention, rather than a person who was coincidentally there for an innocent purpose.  Accordingly, the evidence was properly admitted. 

20. We acknowledge that the subsequent evasive conduct was not strong evidence of Mr De Marchi’s criminal participation in the harvesting of cannabis at the warehouse.  Mr De Marchi could not have failed to see the cannabis in the warehouse.  Therefore, even if he were there innocently, on noticing that he was being followed, he would be likely to take steps to evade apprehension and to conceal his involvement in any offending at his home, lest the police locate him and his home. 

21. However, the deletion of the text messages in which he had made arrangements to meet Mr Knights is particularly significant.  The messages strongly suggest an arrangement to get a job done and the arrangements led to him spending some five hours at the warehouse.  The deletion of the messages strengthened the inference, which the messages themselves supported, that he was at the warehouse to help harvest the cannabis.  Viewed together, Mr De Marchi’s conduct in hastening away from police; clearing his house of cannabis; and deleting the messages is more consistent with his criminal participation in the harvest than with a concern that his innocent presence might be misunderstood.

22. We would dismiss Ground 1B.

    Ground 2 – Directions on post-offence conduct

23. In Bristow,[2] Kourakis CJ explained the directions which could properly be given in respect of subsequent evasive conduct as follows:

    [232]Like any other item of circumstantial evidence which is not an indispensable step towards guilt, subsequent evasive conduct is probative even if it cannot, alone, support a conclusion of guilt beyond reasonable doubt.  It is not a condition of the admissibility of any item of evidence that it prove (without more) an intermediate fact, or an element of the offence, or the offence.  It is sufficient that it is relevant to a fact that is in issue in the proceedings, in the sense that it has a tendency or capacity to render that fact more or less probable.

    [233]It follows that a direction that subsequent evasive conduct is only probative if it, of itself, reveals that the accused was actually conscious of his or her guilt is not required by any principle of logic or common human experience.  Indeed, as a logical proposition it is circular.  A jury can only be satisfied that the flight of a particular accused supports an inference of guilt if the evidence in the case, or human experience, does not disclose a satisfactory explanation for it. 

    [234]To say that subsequent evasive conduct which lacks a satisfactory explanation manifests a consciousness of guilt is a usage hallowed by time and legal authority, but it is apt to mislead.  Plainly enough, a jury finding beyond reasonable doubt that the accused engaged in subsequent evasive conduct because, actually conscious of his guilt, he was concealing his commission of it, necessarily entails a finding that the accused committed the offence.  There is no utility in admitting, as relevant evidence, evidence which cannot be used unless and until an accused’s guilt is proved by other evidence.  However, once it is understood that ‘manifesting a consciousness of guilt’ means that, absent a satisfactory innocent explanation, the subsequent evasive conduct is indicative of guilt, there is no circularity.  The use of evidence of subsequent evasive conduct in that way is to treat it as any other item of circumstantial evidence.  If, however, the jury is directed that it must be satisfied that the evidence of subsequent evasive conduct exhibits a consciousness of guilt before it can use it, then the evidence of itself can play no part in reaching that conclusion.  The circularity of a direction along those lines denies the evidence of subsequent evasive conduct its very nature as an item of circumstantial evidence.

    …

    [237]The essential element of inductive or abductive reasoning from subsequent evasive conduct, which is not satisfactorily explained by the evidence, is the assessment of the relative probability, as a matter of human experience, of that conduct being associated with innocence on the one hand, or guilt on the other.  The weight given to subsequent evasive conduct and the degree to which it is indicative of guilt will vary.  If the jury accepts an accused’s innocent explanation of his or her subsequent evasive conduct it will have no weight.  On the other hand, subsequent evasive conduct which appears to have no plausible explanation may strongly support an inference of guilt.  The weight of plausible but improbable explanations is a matter for the jury.  Only in the exceptional case in which it is an indispensable step in reasoning to guilt must the innocent explanation be rejected beyond reasonable doubt.

    (Emphasis added)

    [2] (2020) 137 SASR 449, 512-13.

1. The Judge directed the jury on the use of the evidence of what was found at Mr De Marchi’s house as follows:

   The prosecution submits that the only reasonable inference that you can make from these three items of evidence, having regard to all of the evidence, is that the accused was trying to cover up any evidence that may link him to the offending and that he did so because he had been at the warehouse on 3 July taking part in the process of sale of the cannabis.

   Now, when dealing with this evidence, the first step you must undertake is to determine what findings of fact you make.  That is, do you accept the accused ran the stale yellow light and/or that he recently dismantled a cannabis grow room at his house and/or that he deleted messages on his phone between him and Mr Knights.  If you make any or all of those findings of fact, you must then ask yourself, having regard to all of the evidence, what, if any, reasonable inference or inferences are you prepared to make from this evidence. 

   In order for you to make the inference as sought by the prosecutor, you must determine not only that this is a reasonable inference from all of the evidence but the only reasonable inference from all of the evidence.  That is, you must ask yourself whether there could be another reasonably possible explanation for this conduct which is consistent with the accused’s innocence.  If, having regard to all of the evidence, there is a reasonably possible innocent explanation for the conduct, as you find that conduct to be, then you cannot use that evidence against the accused in the way as submitted by the prosecutor.  If you do make the inference as sought by the prosecutor, you must still consider all of the evidence when deciding whether the prosecution has proved the accused’s guilt beyond reasonable doubt.

   (Emphasis added)

   The first underlined sentence in the directions repeats a prosecution submission inviting the jury to find Mr De Marchi guilty by reason of the post-offence conduct alone.  However, the finding of fact which was available on the evidence of Mr De Marchi’s subsequent evasive conduct is only that the conduct was more likely to have been engaged in if Mr De Marchi had participated in the harvest than if he had been there innocently.  If that were accepted, the subsequent evasive conduct would be an item of circumstantial evidence supporting an inference of guilt.  On the other hand, if the jury took the view that Mr De Marchi was just as likely to have engaged in the subsequent evasive conduct if he had been at the warehouse innocently, no adverse inferences could be drawn as there was an innocent, plausible explanation for the conduct.

2. However, the second underlined sentence is, as explained in the judgment in Bristow,[3] unduly favourable to Mr De Marchi.  In effect, the jury were instructed that, if they thought it reasonably possible that Mr De Marchi was there for an innocent purpose, they could not use the evidence at all.

   [3] (2020) 137 SASR 449, 512-13 [233]-[243].

3. The net effect of the directions is such that there could be no miscarriage of justice because the jury were told that they could only rely on the subsequent evasive conduct if they first were satisfied beyond reasonable doubt of Mr De Marchi’s guilt.

4. The Judge gave extensive directions against impermissibly using the evidence of Mr De Marchi’s subsequent evasive conduct to reason that he was a person who was likely to cultivate cannabis.  The Judge also repeatedly instructed the jury that they could not draw an inference of guilt from the subsequent evasive conduct unless, having regard to all of the other evidence, they were satisfied that there was no other reasonable explanation for Mr De Marchi’s conduct which was consistent with innocence.

5. It follows that insofar as the jury might have found that the subsequent evasive conduct was discreditable conduct, for reasons other than that it appeared to be calculated to distance himself from the offence, they were directed against any impermissible use of that evidence.  While we would grant Mr De Marchi permission to appeal on this ground, we would dismiss Ground 2.

   Conclusion

6. We would dismiss the appeal.