Falzon v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0166

ROMANO FALZON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2017
DATE OF JUDGMENT:	5 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 74
JUDGMENT APPEALED FROM:	DPP v Falzon (Unreported, County Court of Victoria, Judge Smith, 27 May 2016 (Conviction); [2016] VCC 1039 (21 July 2016) (Sentence))

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CRIMINAL LAW – Application for leave to appeal – Conviction – Cultivation of commercial quantity of cannabis – Trafficking in drug of dependence – Filing over new indictment during trial – Whether fundamental irregularity – Leave to appeal refused – Criminal Procedure Act 2009 ss 159(2), 164 – Juries Act 2000 s 36.

CRIMINAL LAW – Appeal – Conviction – Cultivation of commercial quantity of cannabis and trafficking cannabis by way of possession for sale – Large sum of cash located at appellant’s residence – Whether evidence of finding of cash relevant to trafficking by possession for sale – Whether probative value of evidence outweighed by risk of unfair prejudice – Appeal allowed – Evidence Act 2008 ss 55(1), 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with Mr C Carr	James Dowsley & Associates
For the Crown	Mr D Trapnell QC with Mr J Lewis	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

I have read in draft the judgment of Priest and Beach JJA in this matter. In relation to proposed ground 1, I agree with them that leave to appeal should be refused for the reasons which they give.

I am unable to agree with Priest and Beach JJA in relation to proposed ground 2. In my view leave to appeal should be granted on that proposed ground but the appeal should be dismissed. I set out my reasons below.

In the course of argument, application was made for leave to add a further proposed ground. I would dismiss that application.

The applicant also seeks leave to appeal his sentence. I would also dismiss that application.

Proposed ground 2 — admission of evidence concerning secreted cash

The charges

There were four indictments filed containing charges against the applicant in relation to sophisticated hydroponic facilities for the growing of cannabis in two houses on one property in Mansfield Avenue, Sunshine North and in a house in Sydenham. The houses were raided by police on 17 December 2013 after a period of surveillance. The facilities in the two houses at Sunshine North were more extensive than those at Sydenham. For the purposes of the consideration of this proposed ground the only relevant matter to be noted in relation to the charges made by the repeated filing over of fresh indictments is that charges originally expressed to be offences committed over a period were replaced by charges alleging offending on a single day.

The charges which went to the jury were:

·Charge 1 — trafficking in cannabis in a quantity not less than a commercial quantity at Sunshine North on 17 December 2013. The applicant was acquitted on this charge.
·Charge 2 — cultivation of cannabis in a quantity not less than a commercial quantity at Sunshine North on 17 December 2013. The applicant was convicted on this charge.
·Charge 3 — trafficking in cannabis at Sydenham on 17 December 2013. The applicant was convicted on this charge.
·Charge 4 — cultivation of cannabis on 17 December 2013 at Sydenham. No verdict was taken on this charge as it was an alternative to charge 3.

Relevant facts

When police raided the two houses in Mansfield Avenue, Sunshine North, they found 92 cannabis plants and a quantity of dried cannabis. There was an electrical bypass in the roof spaces of each of the houses, equipment normally associated with hydroponic cannabis cultivation, and documents relating to cannabis cultivation. When the police raided the house at Sydenham on the same day they found a similar sophisticated hydroponic facility in two rooms of that house. There were ten immature cannabis plants growing and there were eight plant stumps from which cannabis had already been harvested. On the same day, 17 December 2013, police raided the applicant’s home at Kendall Street, Essendon. Police found $120,800 in cash secreted at various locations throughout the house, a plastic container holding dried cannabis, snap lock bags containing dried cannabis and a sealed bag (variously referred to as either heat sealed or vacuum sealed) containing dried cannabis, a number of sets of keys, documents relating to cannabis cultivation, and two black garbage bags containing water pipe tubing.

At the trial evidence was given as to the value of the cannabis which had been grown or was growing at Sydenham.[1] The estimated value of the cannabis already harvested from the cannabis plant stumps found there was between $16,000 and $32,000. The estimated value of the growing cannabis plants found there, if grown to maturity, was between $20,000 and $40,000.
[1]Transcript of Proceedings (19 May 2016) 1007.9–1007.13, 1007.28–1007.30.

Evidence was given in relation to the value of the cannabis located and seized at Kendall Street in the plastic container, the snap lock bags and the heat or vacuum sealed bag. The estimated value was between $4500 and $8100, although a much higher value was suggested if the assumption was made that the cannabis was to be sold in ‘gram quantities’.[2]
[2]Ibid 1008.18–1009.3.

A videotape of the applicant’s record of interview was played to the jury and tendered in his trial.[3] He did not give evidence.
[3]A CD of the exhibit was handed to the Court. The Court was told that there was no transcript.

In his record of interview the applicant maintained that the cannabis found at Kendall Street was his own and, when asked what it was for, he said ‘personal use’. When asked where he had obtained the cannabis from, he said that he had grown it himself. When asked where, he responded ‘You know where’.

When asked about the plants at Sydenham, the applicant agreed that there were ‘probably nine, ten’. When asked what his purpose was for those plants, he responded ‘personal use’.

The applicant was asked about the cannabis that had been harvested from Sydenham. He agreed with a suggestion put to him that the harvest had been about two weeks before. When asked what had become of that material, he responded ‘smoke most of it, youse got the rest’.

Towards the end of the interview the applicant was asked what he did with cannabis that he did not smoke himself and he responded: ‘Give it to me mates and that. Mates come around, with the car club’.

The reference to the ‘car club’ was addressed with investigating police during the course of cross-examination. The car club referred to was the ‘Smokin’ Aces Club’. It was put to investigating police that they ought to have conducted inquiries with members of the club in order to determine whether what the applicant had said in his record of interview about giving cannabis away was correct. Investigating police did not accept that proposition.[4]
[4]Transcript of Proceedings (19 May 2016) 1020.24–1021.21.

The judge’s ruling

Objection was taken to admission of the evidence of the cash found at Kendall Street. The trial judge ruled the evidence to be admissible. He said:

The prosecution case is that the cash amounts are likely to be proceeds or are proceeds of cannabis. I consider that the evidence is admissible in the same way as the finding of other indicia of trafficking is admissible.
Such evidence is capable, in my opinion, of having probative value when looked at alongside other evidence, including that of the organised and systematic cultivation of significant quantities of cannabis and the indicia of trafficking that I have previously referred to.[5]

[5]Ibid (9 May 2016) 294.12–294.22.

Proposed ground of appeal

The proposed ground of appeal is as follows:

A substantial miscarriage of justice occurred as a result of the learned trial judge wrongly admitting evidence that $128,000 cash was found secreted at the applicant’s home.

In fact the amount of cash found at the applicant’s home was a total of $120,800. There was a persistent error, both in the trial and in the application before us, in referring to the total as $128,000 rather than $120,800.

The relevant issue and the applicant’s submissions

The principal issue is whether the evidence of the cash was relevant, as required by s 55(1) of the Evidence Act 2008.

In oral submissions the applicant contended that the cash could only be evidence of prior drug dealing and that, as the relevant charges alleged trafficking constituted by possession of cannabis for sale on one specific day (17 December 2013), the evidence could only be relevant to establish a tendency in circumstances where the requirements of ss 97 and 101 of the Evidence Act had not been complied with, or to support an impermissible line of reasoning based upon propensity. In this respect it was submitted on behalf of the applicant that the position here is relevantly the same as that which was before the Court of Criminal Appeal of the Northern Territory in Lewis v The Queen (‘Lewis’).[6]
[6](1989) 46 A Crim R 365.

In Lewis the appellant had been convicted of possession of cannabis with intent to supply. The cannabis was handed to police by the appellant when they attended at his flat. Police then searched the flat and found $750 under a mattress and $2000 in the pocket of a jacket. The relevant issue in the trial had been whether the appellant could discharge the onus which was cast upon him by the applicable legislation to prove the cannabis handed over was not for the purpose of supply. The evidence of the cash was admitted at the trial. Martin and Angel JJ held that the evidence had been wrongly admitted. They held the evidence could not establish anything other than the appellant’s involvement in past sales of drugs and that this could only prove propensity. They considered that no relevant nexus between the cannabis the subject of the charge and the cash had been established. Rice J dissented. He considered that the cash was relevant to the issue of why the appellant had possession of the cannabis he had handed over to police. He explained that in his view the cash had probative value as evidence of a business in the sale of drugs and, in turn, evidence of the purpose for which the appellant possessed the cannabis which was the subject of the charge.

In oral submissions the applicant adopted the analysis of the majority in Lewis.

The applicant’s submissions made orally, as described, were different to the way this proposed ground had been addressed on behalf of the applicant in the written case. There, reliance had been placed on a decision of Cox J in R v McGhee (‘McGhee’),[7] the contention being that that decision stood for the proposition that cash would only be relevant where it was capable of constituting working capital or a cash float for a drug trafficking business. I will address McGhee in detail below. The submission in the written case was based on a mischaracterisation of the judgment in McGhee and it was not the way the argument was put orally.
[7](1993) 61 SASR 208.

In oral submissions the applicant contended that it was relevant that the prosecution had abandoned the between dates charges originally formulated on what is usually called the Giretti[8] basis, and had elected to proceed on charges of trafficking constituted by the possession of cannabis for sale on a single day, 17 December 2013.
[8]Giretti v The Queen (1986) 24 A Crim R 112.

Before turning to the way in which the evidence was relied upon in the applicant’s trial, it is necessary to review the relevant authorities since Lewis.

Relevant authorities since Lewis

The first relevant authority is the judgment of Cox J in the Supreme Court of South Australia in McGhee.

The accused there was charged with possession of drugs for the purpose of sale, an offence under s 32 of the Controlled Substances Act 1984 (SA), consequent upon a police raid on his house where drugs were found. Because of the quantities of the drugs found the accused had the burden of satisfying the jury that his purpose was not to sell it. The drugs were found in small plastic bags and in one larger bag in different parts of the house. On a table in the lounge room a wallet was found containing $900 in cash and one of the small plastic bags containing drugs was inside that wallet. In a bedroom a pair of jeans were found which contained $110 in cash. Counsel for the accused objected to evidence of the cash being led relying upon the majority judgment in Lewis.

Cox J rejected that submission. He said:

The police … found amphetamine here in commercial quantities. There was also the sort of gear that is commonly associated with drug dealing — scales, a supply of unused small plastic bags and so on. The discovery of a large amount of cash on the premises as well will generally be legitimate evidence to go to the jury to assist a Crown case that the person concerned was running a business. Often there will be supporting evidence that the accused did not appear to have any other business and here, I am told, the accused admitted that he was unemployed. …
If the accused was running a drug business at the time of the raid then it would be reasonable in the circumstances, in the absence of any plausible alternative explanation, to regard the $900 cash, or at least a substantial part of it, as his working capital, with some of it available as a cash float for expected sales. Moreover, the cash itself in all the circumstances is evidence tending to prove the existence of an ongoing business. … it is no doubt likely on that hypothesis that the money was also the proceeds of past dealings. In my opinion, that does not make the evidence any the less relevant and admissible in this case.[9]

[9]Ibid 209–10.

Cox J referred at some length to the majority decision in Lewis and then referred to Rice J’s dissent in that case. Rice J’s reasoning had been essentially the same as that of Cox J, and Cox J indicated that he found Rice J’s dissent to be ‘persuasive’. Cox J continued:

If in a prosecution [for possession of drugs for the purpose of sale] the Crown can prove that the accused is running a retail drug business then this may be the clearest way of discerning the purpose for which he is in possession of illegal drugs on a particular occasion. … its relevance cannot be called in question merely because it proves that the defendant has committed offences in the past and thus has a criminal disposition.[10]

[10]Ibid 210–11.

Cox J said that the position might be different if there was evidence indicating that there had been an illegal business which was then ‘over and done with’, and he referred to the need to consider discretionary exclusion. Having made those observations he also said that he did not consider that ‘physical conjunction or proximity is crucial to the admission of the disputed evidence’.[11]
[11]Ibid 211.

Cox J indicated that he considered Lewis to be distinguishable on the facts but if it was not he declined to follow it.[12]
[12]Ibid 212.

In Sultana v The Queen (‘Sultana’)[13] the Court of Criminal Appeal of New South Wales considered an appeal against conviction on three charges, a forfeiture order, and sentence. One of the charges was supply of heroin.
[13](1994) 74 A Crim R 27.

All the charges arose out of surveillance of the appellant and a search of his home which occurred on a single day. The observations made in the course of the surveillance were open to be interpreted as a drug transaction. When the appellant was arrested he was found to be in possession of heroin. He was returned to his home which was searched and a number of items said to be typically associated with drug trafficking were found. There were resealable plastic bags, a grinder and other equipment, firearms, and cash. There was a petty cash tin containing $14,990, a Tupperware container containing $14,095, and one small plastic bag containing $500. One of the grounds of appeal was that the trial judge erred in admitting evidence of the items found at the appellant’s home.

Sully J rejected this ground of appeal and found that the items, including the cash, had been properly admitted. He said:

The Crown was, in my opinion, plainly entitled to lead the challenged evidence for two purposes: first, in order to strengthen positively its case that the appellant, contrary to his flat denials, had been caught red-handed in possession of the heroin; and secondly, in order to rebut, without risking the hazards of a split Crown case, a defence that the appellant, if in possession, had been in possession for the purpose only of his own use or for some other purpose other than that of supply.[14]

[14]Ibid 36–7.

Gleeson CJ (as he then was in New South Wales) agreed with Sully J on this ground and added reasons of his own. He firstly described the way in which the evidence had been used. He said that the evidence was put to the jury on the basis that it tended to show that ‘the appellant was in the business of dealing in drugs’. Gleeson CJ said:

Where the issues are whether a person was found in possession of heroin, and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug-dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit a crime, or bad character.[15]

He went on:
Evidence that tends to show that a person is in the business of dealing in heroin also tends to show a propensity towards crime, but in a case such as the present it is admissible on the former account, not the latter. Moreover, subject to discretionary considerations to be mentioned below, the fact that it bears the later character does not detract from its relevance or render it inadmissible.[16]

[15]Ibid 29 (citations omitted).

[16]Ibid.

The third member of the Court, Handley JA, agreed with Gleeson CJ.

The relevant issue was then raised before the Court of Criminal Appeal in South Australia in Blackwell v The Queen (‘Blackwell’).[17]
[17](1996) 87 A Crim R 289.

In Blackwell the appellant was charged with possession of drugs for sale. He had been apprehended by police on the footpath outside his house on a particular day. When searched he was found to be in possession of drugs and a can of mace. A search was then conducted of his home where a set of scales, a pen pistol and ammunition were found. The evidence of the mace and what was found at his home was admitted at the trial. On the appeal it was argued that the trial judge had been wrong to admit the evidence of the mace and the firearm.

After observing that it is well known that drug dealers face risks to their personal safety, Duggan J (with whom Prior and Debelle JJ agreed), said:

It is well accepted that if, in addition to being found in possession of drugs, a person is found also to have items commonly associated with drug dealing, then the finding of such items usually will be relevant as part of the circumstantial material to establish the purpose for which the drug was in that person’s possession. In my view the mace and the pen pistol were relevant for this purpose … the fact that the evidence might have suggested an involvement in ongoing drug dealing is an inevitable consequence of the requirement to prove that the drug was in the appellant’s possession for the purpose of sale.[18]

[18]Ibid 290.

Duggan J then quoted a passage from Cox J’s judgment in McGhee.

This Court considered the relevant issue in Edwards v The Queen (‘Edwards’).[19]
[19][1998] 2 VR 354.

The appellant in Edwards had been convicted of one count of trafficking in a drug of dependence. The case against him was entirely based upon the events on a single day when he had arrived at a property where police were conducting a drug raid. A search of his person and of a car in which it was alleged that he had arrived had revealed plastic bags containing drugs, a firearm, a sum of $2950 in cash in one of his pockets and a further sum of $70 in a wallet. One of the grounds of appeal concerned the admission of the evidence of finding the firearm and another ground concerned the admission of the evidence of finding the cash.

In relation to the firearm, Eames AJA (with whom Hayne and Batt JJA agreed) held that the evidence of the finding of the firearm had been properly admitted on the basis that it was open to be seen by the jury as ‘being an accoutrement of the crime of drug trafficking’. In that respect Eames AJA cited Sultana and adopted the analysis of Gleeson CJ in that case.[20]
[20]Ibid 368–9.

Eames AJA (with whom Hayne and Batt JJA again agreed) also rejected the ground of appeal concerning the admission of the evidence of the finding of the cash.

Eames AJA referred to an unreported decision of the New South Wales Court of Criminal Appeal (R v McMahon) concerning a case where there had been two separate raids a month apart, at the first of which drugs had been found and at the second of which cash had been found. He observed that the facts of that case were very different, as in that case there had been no evidence linking the cash to the drugs at all.[21]
[21]Ibid 370.

After referring to the High Court decisions in Chamberlain v The Queen(No 2)[22] and in Shepherd v The Queen,[23] Eames AJA said:

It is plain, however, that the evidence of the finding of the money, in this case, was an item of circumstantial evidence which the Crown was entitled to have the jury consider, along with all other relevant circumstantial evidence. When coupled with other evidence it ceased to be merely speculative in its effect, and was capable of being considered by the jury to be incriminatory as to the offence. The evidence of the location of cash, in the present case, fell into the same category as the finding of a gun and cash in Sultana, which I discussed under ground 2. As the New South Wales Court of Criminal Appeal held in that case, such evidence gained its force, and was admissible, by virtue of each item not being taken in isolation, but being combined with other incriminating items, so as to overcome the apparently speculative value of each item if taken alone.[24]

[22](1984) 153 CLR 521.

[23](1990) 170 CLR 573.

[24]Edwards [1998] 2 VR 354, 370.

The issue was considered by the Court of Criminal Appeal of the Supreme Court of Western Australia in Evans v The Queen (‘Evans’).[25]
[25][1999] WASCA 252.

In Evans the appellant had been convicted of possession of drugs with intent to sell or supply to another. The charge was founded upon surveillance, and a search of the appellant’s car and his person, all on one particular day. Drugs were found in a bum bag in his car, which he denied was his, and three white tablets (also drugs) were found in his pocket. The appellant denied all knowledge of the bum bag and said he had believed the three tablets to be Rohypnol. Thus, he denied possession of the drugs in the bum bag and he maintained an innocent explanation for his possession of the drugs in his pocket. He was also found to be in possession of $895 cash and he gave police an explanation unrelated to drug trafficking for that cash.

The evidence of the cash was admitted at the trial. It was contended on appeal that that evidence had been irrelevant.

Malcolm CJ (with whom Anderson and White JJ agreed) said:

At the trial, the purpose of possession was not a fact in issue. The appellant’s defence was that he was unaware of the existence of the bumbag in his car and the contents of it, with the consequence that he was not in possession. However, the case against the appellant was that the appellant was in possession and that such possession was with intent to sell or supply. Hence, although purpose or intention was not a relevant fact in issue on the defence case, because of the denial of knowledge of the presence of the drug in the car, it was relevant and, in my view, admissible as part of the Crown case. It follows that the Crown was entitled to lead evidence of the cash both to support the Crown case that the appellant was in possession of the drugs and to rebut any defence that the appellant was in possession of the drugs for his own use.[26]

The New South Wales decision in Sultana was relied upon, with references cited to passages in the judgments of Gleeson CJ and Sully J.

[26]Ibid [31] (citation omitted).

Malcolm CJ referred to the decision in Lewis, both to the majority analysis and to Rice J’s dissent. He then went on:

A similar approach to that of Rice J was taken by the Court of Criminal Appeal of New South Wales in Sultana in which the appellant was charged with supplying heroin. When police searched the appellant’s premises they found various items of a kind commonly used by heroin suppliers, including resealable plastic bags, firearms and a large amount of cash on the premises.[27]

Malcolm CJ quoted from Gleeson CJ’s analysis of the issue.

[27]Ibid [33] (citations omitted).

Malcolm CJ then turned to McGhee, quoting the judgment of Cox J at some length, and also quoting Cox J’s endorsement of Rice J’s dissent in Lewis.[28]
[28]Ibid [34].

Malcolm CJ then concluded that in the circumstances of the case before the Court, the evidence of the cash was relevant and admissible.[29]
[29]Ibid [38].

Finally, brief reference should be made to the decision in R v Rees,[30] a pre-trial ruling of Gray J in the Supreme Court of the ACT. On a relevantly similar issue, Gray J adopted the analysis of Cox J in McGhee and the dissenting judgment of Rice J in Lewis.
[30][2005] ACTSC 91.

Recognising that each case will potentially turn on its own facts, the conclusions which I draw from this review of the authorities since Lewis are as follows:

1.Where a relevant issue is whether an accused’s purpose in possessing drugs on a particular day was to sell, evidence that the accused was conducting a drug business at the time is relevant.
2.Evidence of the accused’s possession of items typically possessed by persons who are conducting a drug business is relevant to prove that such a business was being conducted by the accused at the time.
3.Cash may be such an item.
4.The possession of items indicative of a drug business, including cash, may be directly probative of the accused’s purpose in being in possession (ie sale), and may also be relevant to rebut the proposition that the possession was for the accused’s own use.
5.Possession of cash may be relevant and admissible notwithstanding the fact that it is necessarily referable to transactions in the past, and is premised upon the existence of past offending.
6.The majority analysis in Lewis has not since been adopted, and Rice J’s dissent has been endorsed.

Manner in which the evidence was relied upon

In relation to the alternative charges of trafficking or cultivation at Sunshine North there were contested issues as to whether the applicant was part of any joint criminal enterprise in relation to those premises, and, if he was, whether there was the requisite intent necessary for conviction on either charge in relation to a commercial quantity, and, in relation to the trafficking (the charge on which he was acquitted) whether his possession (if he was found to have been in possession) was for the purpose of sale.

In relation to the Sunshine North charges, the prosecution relied upon evidence of what was found at the property, surveillance evidence of who attended at the property, and the evidence of what was found at Kendall Street. Amongst the keys found at Kendall Street were keys which opened the doors of the two houses at Sunshine North. Documentation found at Kendall Street was the same as documentation found at the premises at Sunshine North, both in hard copy and on a computer. The black tubing found at Kendall Street was of the same type as tubing used at the two houses at Sunshine North. The heat or vacuum sealed bag containing cannabis found at Kendall Street was connected by the prosecution to the presence of a sealing machine at Sunshine North. There was no sealing machine at either Sydenham or Kendall Street.

In relation to intention the prosecution relied upon the number and quantity of plants at each of the respective locations,[31] and the value of the crops at each location.[32] The cannabis found at Kendall Street was relied upon in relation to both locations. The prosecutor relied upon the fact that the cannabis found there was ‘packaged in a way which was common for cannabis to be packaged for sale’.[33] He referred to the plastic clip sealed bags and to the vacuum sealed bag.[34]
[31]Transcript of Proceedings (23 May 2016) 1341.23–1344.5, 1358.12–1358.26, 1360.9–1362.10.
[32]Ibid 1344.8–1344.18, 1367.4–1367.14.
[33]Ibid 1348.1–1348.2.
[34]Ibid 1348.2–1348.18.

The prosecutor then went on:

The other piece of evidence that the prosecution relies on to show an intent to traffic, is the money that was found, the cash money that was found at Kendall Street, $100,800 in the cupboard underneath the stairs and then amounts found in a drawer in a workbench in the garage, and items found at various locations in the en suite of the main bedroom … I mean that’s a lot of cash money, and I’ll come to the tax returns in a moment, and you may recall Detective Norris’ evidence to the effect that this is how drugs are transacted or sold, usually by cash. Sometimes drugs are exchanged for stolen goods, but it’s usually cash. This is an illegal business, and illegal activity, and you wouldn’t expect the purchasers of drugs to pay for drugs using a credit card or any other method that would leave a record of the transaction so it’s done in cash, and here we have over $120,000 found in the Falzon home, and the prosecution says it’s drug related.[35]

[35]Ibid 1348.19–1349.10.

The prosecutor then went to the applicant’s tax records for the purpose of establishing that the cash had not been declared as income.[36] In his record of interview the applicant had asserted that the cash had been earned in the course of his legitimate business activities.
[36]Ibid 1349.11–1351.21.

The applicant admitted he had cultivated cannabis at Sydenham but maintained in his record of interview that he had done so for his own use, by personal consumption and by giving it away to friends. The prosecutor relied upon surveillance evidence, upon the number and value of the plants that were found at the Sydenham property, and the sophistication of the facilities which had been established at Sydenham.[37] He submitted that the extent of the effort and expense required to establish the facilities at Sydenham was inconsistent with a person growing cannabis for his own use.[38] Before leaving the Sydenham property he reminded the jury that the prosecution also relied upon ‘the 5 Kendall Street evidence and all the things that are indicia of trafficking’, being ‘the 120,000 odd cash’, ‘the quantities of dried cannabis, one in a vacuum sealed bag’, and ‘the other plastic sealed bags, typical of drugs packaged for sale’.[39]
[37]Ibid 1355.18–1356.3, 1357.5–1357.18, 1358.12–1358.26, 1360.11–1362.10.
[38]Ibid 1361.5–1361.9.
[39]Ibid 1363.5–1363.10.

The prosecutor dealt specifically with the applicant’s explanations in his record of interview, being personal use and the suggestion that cannabis was given away to members of the Smokin’ Aces Car Club. In that connection he referred to the value of the cannabis which had been grown at Sydenham, estimated in the evidence at between $36,000 and $72,000 in total.[40]
[40]Ibid 1366.30–1366.14.

Analysis

There was a legitimate basis upon which the jury could connect the things found at Kendall Street to the crop houses at both Sunshine North and Sydenham.

As to Sunshine North, keys found at Kendall Street opened the houses at Sunshine North. Identical documents relating to cannabis cultivation were found at both locations. The same type of black tubing was at both Sunshine North and at Kendall Street. A heat or vacuum sealed bag containing cannabis was found at Kendall Street and the only sealing machine found was at Sunshine North.

As to Sydenham, the significant quantity of cannabis in plastic bags and the sealed bag found at Kendall Street had, according to the applicant, been grown by him at Sydenham. The applicant maintained this was for personal use.

In my opinion, the cash found at Kendall Street was one fact, properly to be considered by the jury together with the other evidence (the nature of the facilities, the quantities, the surveillance evidence, the other items found at Kendall Street, and what the applicant had said in his record of interview), in determining whether the applicant was, as at 17 December 2013, conducting a drug business. If they concluded he was, that rendered it more probable that his purpose in being in possession on 17 December was to sell, and it rebutted his assertion that his possession was for his own use.

In my view, the authorities since Lewis, to which I have referred, support this conclusion.

The fact that under an earlier indictment the prosecution had charged the applicant with trafficking over a period of time on the so-called Giretti basis, and had then abandoned charges on that basis alleging possession for the purpose of sale on one particular day, is not significant, in my view. None of the authorities to which I have referred concerned Giretti counts. They all concerned alleged possession for the purpose of sale on a particular day. The prosecution did eschew reliance on the Giretti counts. But the prosecutor did not eschew reliance on the contention that the items found at Kendall Street, including the secreted cash, were indicia of a drug trafficking business then being conducted by the applicant. In my view the prosecutor relied upon the cash, in combination with the other matters relied upon, in the same way as the cash in McGhee, Sultana, Edwards, and Evans had been relied upon.

The extent of physical conjunction or proximity between the cash, the drugs and any other indicia of drug trafficking may be relevant, depending upon the particular facts. But, as Cox J pointed out in McGhee, it is not crucial, and none of the authorities to which I have referred suggest that it is. Here, there was evidence connecting the items found at all three properties. On the applicant’s account, the packaged up cannabis found at Kendall Street, where the secreted cash was also found, had been harvested from the plants he admitted cultivating at Sydenham.

In my view, the judge’s ruling as to relevance was correct.

Exclusion under s 137 of the Evidence Act 2008

The trial judge, having found the evidence relevant, concluded that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The applicant’s written case did not contend that that conclusion, assuming relevance, was incorrect, but the contention that the evidence ought to have been excluded under s 137 of the Evidence Act was advanced orally.

Once the basis upon which the evidence was relevant is properly understood, the argument for exclusion under s 137 becomes difficult to maintain, and such an argument has not been accepted since Lewis. In the course of the applicant’s oral submissions there was no basis articulated as to why exclusion under s 137 was required, once it was accepted that the evidence was relevant on the basis set out in the authorities since Lewis. I do not consider that the judge was wrong not to exclude the evidence under s 137.

Conclusion as to proposed ground 2

In my view proposed ground 2, insofar as it contested the relevance of the evidence of the secreted cash, was arguable and I would grant leave to appeal. In my view the appeal should be dismissed.

Other applications

As Priest and Beach JJA have concluded that an appeal on ground 2 should be allowed, I will deal with the other applications very briefly.

Application to add a further ground

During the course of the hearing the applicant applied to add the following additional ground of appeal:

The learned trial judge erred in failing to give the jury an anti-propensity direction in relation to the cash found at the applicant’s home.

Counsel for the applicant at the trial addressed the judge, as required by Part 3 of the Jury Directions Act 2015, as to the directions which should be given in relation to the matters in issue and the evidence in the trial. Issues concerning propensity were addressed in that context in relation to the applicant’s taxation affairs and also in relation to a concern of the applicant that evidence of cultivation at one house might be used as a basis for conviction of cultivation at another house.[41] Counsel for the applicant did not request a direction, as required by s 12 of the Jury Directions Act, in relation to issues of propensity concerning the cash. Given the way in which that evidence had been held to be relevant and had been relied upon by the prosecution, that was an understandable forensic decision. Any warning in relation to misuse of that evidence would have also emphasised the way in which it could properly be used, namely as part of a circumstantial case establishing that the applicant was conducting a drug trafficking business on 17 December 2013. No relevant exception was taken by counsel to the charge that was given.
[41]Transcript of Proceedings (20 May 2016) 1132.24–1138.19.

I would not give leave to introduce this proposed further ground.

Application for leave to appeal sentence

The applicant was sentenced to a term of imprisonment of 2 years 6 months on the charge of cultivation of cannabis in a commercial quantity and 2 years 6 months’ imprisonment on the trafficking charge. The sentence on the cultivation charge was the base sentence and a period of 15 months was cumulated. The total effective sentence was 3 years 9 months’ imprisonment. A non-parole period of 2 years 6 months was fixed.

The proposed grounds each concern the sentence imposed on the trafficking count. One proposed ground contends that that sentence is ‘impermissibly incongruent’ with the sentence on the cultivation charge. The other ground is that the sentence is manifestly excessive.

In relation to the proposed ground of manifest excess, the sentence imposed on the trafficking charge, after a trial, was in my view entirely unexceptional. I consider it to have been clearly within the range of sentencing options open to the sentencing judge, and I refer in that respect to Bala v The Queen[42] and to the table of sentences for trafficking in a non-commercial quantity annexed to that judgment, Beckerton v The Queen[43] and Milk v The Queen.[44] I do not consider this proposed ground to be arguable.
[42](2010) 201 A Crim R 505.
[43][2011] VSCA 107.
[44][2015] VSCA 237.

The proposed ground concerning ‘incongruity’ is in my view not a ground of appeal at all. Perceived ‘incongruity’ between two sentences may indicate, or support a contention that there is some other error in one or other of the sentences, but it is not a ground of appeal in itself. To the extent that there is ‘incongruity’ between the two sentences imposed here, in my view the incongruity is a product of

the sentence on the cultivation count being low rather than the sentence on the trafficking count being high.

I would refuse leave to appeal on the application for leave to appeal sentence.

PRIEST JA

BEACH JA:

Introduction

On 27 May 2016, a jury in the County Court convicted the applicant of cultivating a commercial quantity of cannabis and trafficking in a drug of dependence.

It is convenient to set out the convictions, and the sentences imposed by the trial judge on 21 July 2016, in tabular form:

Charge Offence Sentence Cumulation

1 Trafficking in commercial quantity of cannabis[45] [at Sunshine North] [Not guilty] —

2 Cultivation of narcotic plants — commercial quantity[46] [at Sunshine North] 2 years and 6 months Base

3 Trafficking in a drug of dependence[47] [at Sydenham] 2 years and 6 months 15 months

4 Cultivation of narcotic plants[48] [No verdict taken]

Total Effective Sentence: 3 years and 9 months’ imprisonment

Non-Parole Period: 2 years and 6 months

[45]Drugs, Poisons and Controlled Substances Act1981, s 71AA. The maximum sentence is 25 years’ imprisonment.
[46]Drugs, Poisons and Controlled Substances Act1981, s 72A. The maximum sentence is 25 years’ imprisonment.
[47]Drugs, Poisons and Controlled Substances Act1981, s 71AC(1). The maximum sentence is 15 years’ imprisonment.
[48]Drugs, Poisons and Controlled Substances Act1981, s 72B. The maximum sentence is 15 years’ imprisonment.

Initially, the applicant sought leave to appeal against conviction on two grounds:

1. The applicant’s convictions are a nullity, or there was a fundamental irregularity in the trial process, as a result of the filing over [of] a fresh indictment immediately prior to the prosecution closing its case, so that the jury delivered verdicts on a different indictment to that which it had been empanelled to try.
2. A substantial miscarriage of justice occurred as a result of the learned trial judge wrongly admitting evidence that $128,000 cash^[[49]] was found secreted at the applicant’s home.

[49]In fact, the sum seized by police was $120,800.

In the course of oral argument, however, counsel for the applicant applied to add a third ground as follows:

3. The trial judge erred in failing to give an anti-propensity direction once he ruled that the evidence of cash found in the applicant’s premises was admissible.

For the reasons that follow, we would refuse leave to appeal on the first ground and would refuse leave to add proposed ground 3. On ground 2, however, we would grant leave to appeal; allow the appeal; set aside the appellant’s convictions; and order a new trial.

Given our conclusions with respect to conviction, it is unnecessary to consider the application for leave to appeal against sentence.

The alleged offending

On 17 December 2013, in the course of executing search warrants, police discovered cannabis plants growing at properties at 10A and 10B Mansfield Avenue, Sunshine North, and at 8 Bryson Court, Sydenham.

The two properties at Mansfield Avenue — on which two single storey dwellings were situated — were owned by an associate of the applicant’s, Max Corbell, and Corbell’s wife. Police surveillance from July 2013 disclosed the applicant’s occasional attendance at the property.

On 17 December 2013, police searched the two dwellings and located and seized the following at 10A Mansfield Avenue:

· 37 cannabis plants of varying maturity and size growing in four rooms, weighing a total of approximately 17.72 kilograms;

· an electricity bypass in the roof space;

· 15 shrouds, 28 globes, 12 electrical transformers, one carbon filter, three power boards, two shrouds with globes in boxes, six shrouds containing built-in electrical transformers, and one box containing a grow tent; and

· a wall chart timetable and copies of a feed program relating to cultivation of cannabis.

At 10B Mansfield Avenue, on the same date, police located and seized the following:

· 55 cannabis plants of varying maturity and size growing in three rooms, with a combined weight of 17.039 kilograms;

· an electricity bypass in the roof space;

· a number of shrouds, globes, transformers, electrical timers, a carbon filter and wall charts relating to the growing of cannabis;

· assorted vacuum-sealed bags, a set of scales and a sealer device; and

· a tray containing dried cannabis weighing 28.5 grams, and a vacuum-sealed bag containing dried cannabis weighing 21.1 grams.

In total, 92 plants were located at the two Mansfield Avenue properties, with a weight of 34.781 kilograms. There was also an additional 49.6 grams of dried cannabis. A commercial quantity of cannabis is 25 kilograms or 100 plants.[50]
[50]See s 70(1) and Column 2, Part 2, Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.

On the same date, police searched premises at 8 Bryson Court, Sydenham. This property had been purchased jointly by the applicant and co-offender, Charlie Gusman, in early 2013. The applicant and Gusman there cultivated cannabis. Upon searching the Bryson Court property, police located and seized:

· ten immature cannabis plants weighing 1.76 kilograms;

· eight harvested cannabis plant stumps weighing 657.9 grams;

· an electricity bypass;

· a number of light shrouds, light globes, electrical transformers, power boards, charcoal filters, together with feed program charts setting out the timetable for nutrients to be fed to cannabis plants;

· two plastic bags containing a mixture of dried cannabis and unidentified plant material weighing a total of 4.1 grams; and

· a zip lock bag containing dried cannabis weighing 3.3 grams.

Also on 17 December 2013, police executed a search warrant at the applicant’s home at 5 Kendall Street, Essendon. There were a number of items seized from those premises, including $120,800 cash the subject of ground 2.[51] (For the purpose of sentencing, however, the judge ‘ignored those items’ and sentenced the applicant only on the basis of what was found at Sunshine North and Sydenham.)
[51]See [125] below.

The applicant was arrested on 17 December 2013 and took part in a record of interview with police. He made a number of admissions, including that:

· he smoked cannabis which he grew for himself;

· he and Gusman had purchased the property at Sydenham about a year earlier;

· he had grown 19 plants at the Sydenham property, of which nine had been harvested; and

· he visited the property and tended the cannabis plants at Sydenham, where he had been cultivating cannabis for about six months.

Notwithstanding the applicant’s denials, however, the jury found him guilty of cultivating a commercial quantity of cannabis at the Mansfield Avenue premises in Sunshine North (although the jury also found him not guilty of trafficking cannabis at that address). The jury also found him guilty of trafficking cannabis at the Sydenham property — which the prosecution had put as a case of possession for sale — in a quantity less than a commercial quantity.

Before leaving the evidence, we should mention that at a unit belonging to Gusman, situated at 67 Melbourne Road, Williamstown, police found another six cannabis plants weighing 35 grams. Surveillance evidence showed that the applicant once attended that unit. At the close of the prosecution case, however, the trial judge found ‘that there is no case for Mr Falzon to answer on Charges 3 and 4 insofar as they concern the Williamstown unit’.

Did the jury deliver verdicts on an indictment other than that for which they had been empanelled to try?

Ground 1 with respect to conviction asserts that the filing of a new indictment immediately prior to the prosecution closing its case meant ‘that the jury delivered verdicts on a different indictment to that which it had been empanelled to try’. It was contended that there had been a fundamental irregularity and that the jury’s verdicts therefore were nullities.

For the reasons we will shortly set out, we are of the view that this ground cannot be upheld. As we have indicated, we would refuse leave to appeal on this ground.

The four indictments

At different times, four indictments were filed in the County Court charging the applicant with drug offences.

Indictment C1309421 (‘the first indictment’), filed on 27 August 2015, charged the applicant and his wife, Susan Falzon, with cultivating (charge 1) and trafficking (charge 2) not less than a commercial quantity of cannabis, and theft of electricity (charge 3), at Sunshine North between 24 July and 17 December 2013. ‘Charlie’ Gusman was charged on the same indictment with cultivation (charge 4) and trafficking (charge 5) simpliciter of cannabis at Sydenham and Williamstown between 15 August and 17 December 2013, and of theft of electricity between the same dates at Sydenham (charge 6). The applicant pleaded not guilty to the charges on this indictment.

Following a separate trial application by the applicant’s wife, on 2 May 2016 the prosecution filed over indictment C1309421.1 (‘the second indictment’). The second indictment charged the applicant with cultivating (charge 1) and trafficking (charge 2) not less than a commercial quantity of cannabis ‘at Sunshine North and divers other locations in Victoria’ between 24 July and 17 December 2013. There was also a charge of theft of electricity at Sunshine North between 24 July and 17 December 2013 (charge 3), and a charge — jointly with Gusman — of theft of electricity at Sydenham between 15 August and 17 December 2013 (charge 6). (A separate indictment containing four charges was also filed against Susan Falzon.)

After pre-trial argument, the prosecution once more filed over a fresh indictment, indictment C1309421.2 (‘the third indictment’).[52] Apparently, that was done in order to put the prosecution case against the applicant on trafficking and cultivating charges on the basis that he was in possession for the purpose of sale on the day of the police raids (and to remove charges relating to theft of electricity). Charge 1 on the third indictment alleged that on 17 December 2013, at Sunshine North, Sydenham and Williamstown, the applicant ‘trafficked in a drug of dependence namely Cannabis L in a quantity that was not less than the commercial quantity applicable to that drug of dependence’; and charge 2 alleged that on the same date and at the same locations, the applicant cultivated not less than a commercial quantity of cannabis. (Charges 3 and 4 alleged respectively trafficking and cultivation simpliciter against the co-accused, Charlie Gusman, on the same date at Sydenham and Williamstown only.) When arraigned in the presence of the jury panel, the applicant pleaded not guilty to both charges, but ‘indicated that he was guilty of cultivating cannabis in less than a commercial quantity at Sydenham on 17 December 2013’. A jury was then empanelled to try the charges on the third indictment. The prosecution case, as opened to the jury, was that the first charge encompassed three discrete joint criminal enterprises with discrete participants.
[52]Curiously, the indictment filed against Susan Falzon on 2 May 2016 was also numbered C1309421.2.

Shortly before the prosecution was to close its case, the applicant’s counsel submitted that combining three discrete joint criminal enterprises within one charge made that charge duplicitous. After debate, the trial judge ruled that charges 1 and 2 were attended by latent duplicity. The prosecutor then sought, and was granted, leave to file a fresh indictment.

Indictment C1309421.3 (‘the fourth indictment’) was filed immediately before the prosecution closed its case. Charge 1 on the fourth indictment charged the applicant with trafficking not less than a commercial quantity of cannabis at Sunshine North on 17 December 2013, and charge 2 alleged that the applicant cultivated not less than a commercial quantity at Sunshine North on the same date. Charges 3 and 4 jointly charged the applicant and Gusman respectively with trafficking and cultivation simpliciter at Sydenham and Williamstown on 17 December 2013. The applicant was arraigned on the fourth indictment in the presence of the jury, and entered pleas of not guilty, but ‘indicated that he was guilty of cultivating cannabis in less than a commercial quantity at Sydenham on 17 December 2013’. The case then continued before the same jury, and the prosecutor closed his case.

In the event, on 27 May 2016, the applicant was convicted by the jury on charge 2 — cultivating a commercial quantity of cannabis at Sunshine North on 17 December 2013 — and charge 3 — trafficking in a drug of dependence simpliciter at Sydenham[53] on 17 December 2013 (he, of course, having admitted when arraigned on the fourth indictment that he was guilty of trafficking a non-commercial quantity of cannabis at Sydenham, where cannabis and related paraphernalia were found in the premises he had purchased with Gusman).
[53]See [97] above.

Discussion

As was accepted at both ends of the Bar table, the resolution of the first ground boiled down to an exercise in statutory construction.

The starting point of that exercise must be s 159(2) of the Criminal Procedure Act 2009 (‘CPA’), which provides in effect that the DPP[54] may file an indictment ‘at any time’, except where otherwise provided by or under the CPA or any other Act. Section 164 complements the power to file an indictment ‘at any time’, in that it permits the filing of a ‘fresh indictment’[55] for a charge for the same offence as an offence charged in an indictment previously filed or a related offence.[56] It provides:[57]
[54]Or a Crown Prosecutor in the name of the DPP: see s 159(1).
[55]As pleaded, the first ground speaks of a new indictment.
[56]By s 3(1) of the CPA, related offences means ‘offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character’.
[57]Emphasis added to subs (3).

164 Filing of fresh indictment
(1) In this section—
fresh indictment means an indictment which includes a charge for the same offence as an offence charged in an indictment previously filed in court against that accused or a related offence.
(2) Nothing in section 163 prevents the filing of a fresh indictment.
(3) The filing of a fresh indictment does not commence a new criminal proceeding.
(4) On the filing of a fresh indictment against an accused, proceedings in relation to a charge for the same offence or a related offence in an indictment previously filed in court against that accused are discontinued.

Section 217 of the CPA provides that if an accused has not pleaded guilty ‘to all of the charges’ on an indictment, he or she ‘must be arraigned in the presence of the jury panel’ and ‘a jury for the trial must be empanelled from that jury panel’. By virtue of s 210(1), a trial ‘commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with section 217’. And s 215(2) provides that an accused ‘may be arraigned or re-arraigned at any time’.

Part 6 of the Juries Act 2000 provides for the empanelment of juries. In particular, s 36(1) provides the procedure for selecting a jury in a criminal trial; and s 36(2) provides:[58]
[58]Emphasis added.

36 Procedure for selecting jury in criminal trials
…
(2) The persons selected are the jury to try the issues in the trial.

Section 42 of the Act requires that on being empanelled, jurors must be sworn in open court in ‘the form of Schedule 3 applicable to the case’. The oath or affirmation provided for in Schedule 3 requires the jurors to swear or affirm that they ‘will faithfully and impartially try the issues between the Crown and [the accused] in relation to all charges brought against [the accused] in this trial and give a true verdict according to the evidence’.

As we have observed, s 159(2) allows for the filing of an indictment ‘at any time’. In our view, the permission granted by s 159(2) is broad enough to include the filing of an indictment after a trial has commenced by virtue of the accused’s arraignment in the presence of the jury panel. So much is emphasised by s 215(2), which provides that an accused may be arraigned or re-arraigned ‘at any time’, and by s 164(3), which makes clear that the filing of that fresh indictment does not commence a new criminal proceeding.

Importantly, a jury empanelled from the panel in whose presence the accused is arraigned, are selected to — and swear or affirm to — try the issues between the Crown and the accused in relation to all charges brought against him or her in that trial and give a true verdict according to the evidence. In our view, the issues between the Crown and the accused brought against him (or her) in that trial must include the issues which arise in the trial once a fresh indictment — which may include charges for related offences to those on an earlier indictment — is filed (at any time), and upon which the accused has been arraigned or re-arraigned (at any time).

Clearly, in our view, the CPA and the Juries Act in combination contemplate that, after a jury has been empanelled, a fresh indictment (or indictments) may be filed in the trial for which the jury were initially selected, without the need for there to be a new trial.[59] The jury are selected to try the issues between the prosecution and defence in relation to all charges brought against the accused in the trial in which the jury were initially empanelled.
[59]That presupposes, of course, that the filing of the fresh indictment does not effect such a fundamental change to the prosecution case that it would be unfair to the accused to permit the trial to continue.

It is probable that the statutory scheme was designed to overcome some of the strictures of the common law. At common law, issues to be tried between Crown and accused were to be raised before the jury was sworn and empanelled, not afterwards. Once the accused was arraigned and pleaded not guilty, he or she was put ‘in charge’ of the jury. Thereafter, the accused remained in charge of the jury, and it was only by the jury’s verdict that he or she could be convicted or acquitted. Hence, if an accused person pleaded guilty during a trial — having initially pleaded not guilty — the verdict of the jury nonetheless needed to be taken,[60] and a failure to take the jury’s verdict in such circumstances rendered the trial a nullity.[61] Generally, the jury could not try issues which they had not been sworn to try. Therefore, an accused could not be put in charge of the jury to determine whether he or she was guilty or not guilty of an offence to which he or she had not pleaded when the jury was sworn.[62]
[60]R v Hancock (1931) 23 Cr App R 16.
[61]R v Heyes [1951] 1 KB 29.
[62]Maher v The Queen (1987) 163 CLR 221, 229 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ) (‘Maher’).

An example of the strictness of the common law is provided by Paprounas.[63] In that case, the accused was arraigned before a jury and pleaded not guilty. During the course of the trial he was re-arraigned and changed his plea to guilty. The judge purported to accept the plea and discharged the jury without verdict. He then heard a plea and imposed sentence. The Full Court held that the conviction was invalid and said:[64]

… Upon his original arraignment and plea of not guilty, the applicant had been placed in charge of the jury. It thereupon became the tribunal to determine his guilt or innocence^[[65]] and so long as the applicant remained in its charge, only by its verdict could he be convicted or acquitted. As the jury were discharged without verdict, that result did not in fact occur. In consequence the trial of the applicant did not conclude according to law. On the contrary, instead of requiring the jury to return a verdict after having heard the applicant's admission of guilt involved in his plea of guilty, which was the course required by law and which is the course universally followed in practice in such circumstances, the learned judge himself purported to convict the applicant by accepting his plea and then discharged the jury and imposed sentence upon him. We agree the course followed involved a grave irregularity, and also involved that no conviction of the applicant valid in law was made, and as in the circumstances the learned trial judge had no power to convict, the conviction recorded by him cannot stand. A like conclusion was reached by the English Court of Criminal Appeal in similar circumstances in R v Hancock (1931) 23 Cr App R 16, and R v Heyes [1951] 1 KB 29; [1950] 2 All ER 587. In the latter decision the court said that the trial was a nullity to such extent that the proceedings could be set aside and a new trial of venire de novo ordered.

(Now, of course, s 241 of the CPA permits a judge to accept a changed plea notwithstanding that the accused is in charge of the jury.[66])

[63]R v Paprounas [1970] VR 865 (Winneke CJ, Smith and McInerney JJ).

[64]Ibid 866. See also Wilson v The Queen [2015] VSCA 211 (‘Wilson’).

[65]With respect, rather than ‘innocence’, we would prefer ‘non-guilt’.

[66]See Wilson, [74]. See also the now repealed s 391 of the Crimes Act 1958.

In support of the contention that the filing of a new indictment immediately prior to the close of the prosecution case resulted in a fundamental irregularity, counsel for the applicant relied on Maher. In that case, the appellant was tried in Queensland on charges of conspiracy under Commonwealth and State laws. Pleas of not guilty were entered to nineteen counts originally contained in the indictment and to two further counts added to the indictment after the jury had been sworn. The trial judge had the appellant re-arraigned and purported to give him in charge of the jury on the two new counts. Based on the terms of the applicable Queensland legislation, the High Court held that there was no provision authorising an amendment of the indictment by the addition of counts. Since the jury had not initially been sworn to try the issues on the further counts, re-arraigning the appellant did not alter the issues that the jury had been sworn to try. As a result, there was a failure to comply with mandatory provisions governing the constitution and authority of the jury, and any conviction founded on the jury’s verdict could not stand.

Despite the applicant’s reliance upon Maher, it is plain that the decision in that case turned on the interpretation and application of the particular provisions of the Jury Act 1929 (Qld) and Criminal Code (Qld) there under consideration, which are not replicated in the CPA or Juries Act 2000. In the course of its reasons, the High Court observed that at common law an indictment could not be amended, a wide power of amendment first being conferred in the United Kingdom by the Indictments Act 1915.[67] The trial judge in that case had not, however, purported to order an amendment of the indictment by the addition of counts. Had the judge exercised the power of amendment conferred by s 572 of the Code — assuming that its provisions were satisfied — the trial could have proceeded upon the amended indictment. It would not have been necessary to empanel a new jury (unless the court otherwise directed) or to reswear the original jury to try the issues arising on the amendment.[68] In the event, that was not what occurred, so that the trial was a nullity.[69]
[67]Maher, 230.
[68]Ibid 232.
[69]Ibid 233.

Counsel for the applicant also relied on Abraham.[70] That was a very different case to the present. The accused in the one trial was arraigned before a jury and tried on two separate indictments. It was held by the Queensland Court of Appeal that the trial was a nullity, since there was no statutory warrant for a single trial being conducted on two separate indictments. Indeed, although the Court did not refer to it, there is ample authority for the proposition that a trial on more than one indictment is a nullity.[71]
[70]R v Abraham [2010] QCA 225.
[71]R v Landy [1943] VLR 73; R v McDonnell (1928) 20 Cr App R 163; R v Olivo (1942) 28 Cr App R 173; R v Swansson (2007) 69 NSWLR 406. See also R v Morgan (No 2) (2013) 228 A Crim R 483.

It is because an accused person cannot be tried on two indictments in the one trial that, prior to the enactment of s 164(4) of the CPA, an earlier indictment needed to be permanently stayed when there was to be a trial on a new indictment which was filed over it.[72] But it was well established at common law that the existence of one indictment was no absolute bar to the filing of a second with respect to the same or similar offences,[73] even where the accused was in charge of the jury on an earlier indictment.[74] And it was the experience of at least one member of this Court that, prior to the introduction of the CPA, it was not at all unusual for a presentment to be filed over in the course of a trial in which the accused was in charge of the jury — with the proviso, of course, that a wholly new prosecution case was not thereby permitted to be erected — and for the accused to be arraigned on the new presentment.
[72]R v Harris (No 2) [1990] VR 305 (Ormiston J).
[73]Poole v The Queen [1961] AC 233; R v Callaghan and Grant (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Phillips JA and Hedigan AJA, 12 December 1996); R v Harris (No 2) [1990] VR 305. See also R v McNamara (No 2) [1997] 1 VR 257.
[74]DPP v Ferguson (2004) 148 A Crim R 244 (Smith J).

We are satisfied that the course adopted in the present case was justified by the provisions of the CPA and Juries Act 2000, and is consistent with the former practice. There was no irregularity in permitting the fourth indictment to be filed, or in permitting the jury to return verdicts on the charges in it.

Was evidence of the finding of $120,800 at the applicant’s home wrongly admitted?

At the risk of repetition, the jury found the applicant guilty of cultivating not less than a commercial quantity of cannabis at the Mansfield Avenue, Sunshine North, premises (but not guilty of trafficking cannabis at that address), and of trafficking cannabis — by way of possession for sale[75] — at the Sydenham property.
[75]Section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981 defines traffick as follows:
traffick in relation to a drug of dependence includes—
(a)prepare a drug of dependence for trafficking;
(b)manufacture a drug of dependence; or
(c)sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence; …

On the same day that search warrants were executed in relation to the Sunshine North, Sydenham and Williamstown premises — 17 December 2013 — the applicant and his wife, Susan Falzon, were arrested at their home at 5 Kendall Street, Essendon. During the execution of a search warrant at those premises, police located and seized $120,800 in cash, the admissibility of which is the subject of the second ground of appeal. It is to be noted, however, that no charges on any indictment related to the Kendall Street premises.

The Kendall Street premises consist of an easterly facing two storey timber residence, with a drive-way running along the northern border to a garage situated beneath the upper story on the northern side. The following items were located at Kendall Street:

· a total of $120,800 cash from several locations, including the storage area under the stairs inside the house (in a black plastic bag); the upstairs en-suite bathroom (in a ‘shortbread’ tin inside a side bottom drawer); and the work bench in the garage (in a top drawer);

· a plastic container holding dried cannabis weighing 220 grams;

· a snap lock bag containing cannabis and unidentified plant material weighing 113.8 grams, located inside a locked cabinet in the garage;

· two snap lock bags, and one heat sealed bag, containing cannabis and unidentified plant material weighing 172.3 grams, also located inside a locked cabinet in the garage;

· an ANZ bank envelope containing statements in the name of the applicant and Gusman, located in the garage;

· three sets of keys in a bag with a wallet containing cards and papers in the applicant’s name, located in a sports bag inside the garage;

· two sets of keys on a dining room table;

· two black garbage bags containing water pipe tubing, located on a shelf in the garage; and

· a Chevrolet and a Mazda motor vehicle.

Over objection, the prosecution was permitted to lead evidence of police finding the $120,800 at the applicant’s home during their search on 17 December 2013. The prosecutor relied on a line of cases that suggest that possession of cash may be probative of an allegation that possession of a drug is for the purposes of sale.[76]
[76]For example, R v McGhee (1993) 61 SASR 208; R vBlackwell (1996) 87 A Crim R 289; R v Rees [2005] ACTSC 91.

With respect to the admissibility of the finding of cash, the judge ruled:[77]
[77]Emphasis added.

… Both accused object to the Crown leading evidence of the finding by police of sums of cash at their respective homes at or soon after the times of their arrests. In the case of Mr Falzon, the amount was approximately $128,000. In the case of Mr Gusman, it was approximately $17,000. In both cases, the cash was found in what I would describe as unusual or concealed locations.
The accused submit the evidence of the cash has no probative value, and insofar as it might have such value, it is outweighed by the danger of unfair

prejudiced [sic.] to them. I was referred by counsel to a number of authorities including the decisions of Sultana, McGhee, Rees, Blackwell and Strawhorn.^[[78]]
The Crown case against both accused for trafficking is a circumstantial one. In such a case, one piece of evidence may, when looked at in isolation, have little apparent relevance or probative value. But a jury is required to consider all of the evidence. The combined effect of one piece of evidence in conjunction with another, including any explanations given by the accused in records of interview, may be determined to have substantial probative value.
The prosecution case is that the cash amounts are likely to be proceeds or are proceeds of cannabis. I consider that the evidence is admissible in the same way as the finding of other indicia of trafficking is admissible.
Such evidence is capable, in my opinion, of having probative value when looked at alongside other evidence, including that of the organised and systematic cultivation of significant quantities of cannabis and the indicia of trafficking that I have previously referred to. I do not consider that the probative value of such evidence is outweighed by the danger of unfair prejudice to either accused.

[78]R v Sultana (1994) 74 A Crim R 27; R v McGhee (1993) 61 SASR 208; R v Rees [2005] ACTSC 91; R vBlackwell (1996) 87 A Crim R 289; R v Strawhorn (2008) 19 VR 101.

In considering the admissibility of the finding of the cash, it must be borne in mind that charge 3, trafficking, was not founded on any actual sale. It was not laid as a Giretti[79] count, by which it was alleged that there was a continuing offence, in the nature of a business, being carried on. Rather, the trafficking charge was put on the basis of possession for sale on a single day. Therein lies the essential difficulty with the admission of the evidence of the cash found at the applicant’s home.
[79]R v Giretti (1986) 24 A Crim R 112.

The Evidence Act 2008 provides that relevant evidence ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’.[80] Except as otherwise provided by the Act, relevant evidence is admissible.[81] The Dictionary to the Act defines probative value to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue‘.[82] As was recently observed in Massey:[83]

In Wise, the Court observed that determining whether a piece of evidence has the capacity to ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ involves an exercise in logic.[84] In other words, in order for evidence to be relevant, it must render a fact in issue more probable than it would be without the evidence. As Gleeson CJ, Heydon and Crennan JJ said in Washer:[85]
… Relevance depends upon whether the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[86] That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact of the acquittal could rationally affect the assessment of the probabilities. The word ‘rationally’ is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial.
In context, s 55(1) of the Evidence Act directs attention to whether the disputed evidence, ‘if it were accepted’[87] by the jury, ‘could’ — not ‘would’ — ‘rationally affect’ the assessment of the probability of the existence of a fact in issue. As was pointed out in Washer, the adverb ‘rationally’ is significant. Thus, there must be a logical connection between the evidence and the fact in issue. If a trial judge is satisfied that a reasonable jury could find such a logical connection, then he or she must determine the evidence to be relevant. Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.[88] Therefore, ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial.[89] Moreover, in judging relevance, the contested evidence must not be looked at in isolation.[90] …

[80]Section 55(1).

[81]Section 56(1).

[82]In R v Chee [1980] VR 303, the Court (McInerney, Anderson and Brooking JJ) described the position at common law (at 308):

Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: i.e. whether it increases or diminishes the probability of the existence of a fact in issue: Director of Public Prosecutions v Kilbourne, [1973] AC 729, at p. 757; [1973] 1 All ER 440. If evidence offered has this tendency, it may be said to have probative force.

[83]DPP v Massey (a pseudonym) [2017] VSCA 38 [67]–[68] (Priest JA) (citations in original).

[84][DPP v Wise [2016] VSCA 173] [68].

[85]Washer v Western Australia (2007) 234 CLR 492, 498 [5].

[86]Goldsmith v Sandilands (2002) 76 ALJR 1024 at 1025 [2]; 190 ALR 370 at 371. The definition of relevance is taken from the Evidence Act 1995 (Cth), s 55. That legislation does not govern the present case, but the definition reflects the common law.

[87]See Adam v The Queen (2001) 207 CLR 96, 105 [22] (Gleeson CJ, McHugh, Kirby and Hayne JJ).

[88]Smith v The Queen (2001) 206 CLR 650, 653 [6] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[89]R v XY (2010) 79 NSWLR 629, 646 [90] (Whealy J); Louizos v The Queen (2009) 194 A Crim R 223, 230 [31] (Howie J).

[90][Bayley v The Queen [2016] VSCA 160] [130]–[131].

On the charge of trafficking, the relevant fact in issue was whether the possession of cannabis on 17 December 2013 was for the purposes of sale. In our view, the possession of cash at the applicant’s home could only have gone towards establishing that the applicant was involved in past sales, or that he had the money as a ‘float’ for the purposes of an ongoing drug-related business. Given the manner in which the prosecution chose to put its case against the appellant, however, the cash cannot have been relevant on either of those bases.

The facts of the present case bear some similarity to those in Lewis,[91] a case in which the appellant was convicted of possession of a prohibited drug, cannabis, for the purposes of supply, contrary to s 66(2)(c) of the Poisons and Dangerous Drugs Act 1983 (NT). When police attended the appellant’s flat, he was found with a quantity of cannabis weighing about 118 grams. Since the appellant possessed more than 50 grams, by virtue of the provisions of the relevant legislation he was deemed to have had the cannabis for the purpose of supply (the onus of proving otherwise resting upon him). Given that the appellant admitted that at the relevant time he had in his possession in excess of 50 grams of cannabis, the real and only issue was the purpose for which he had it. Whilst searching the flat, the police also came across $750 in $50 notes under the appellant’s mattress, and $2000 in $100 and $50 notes in the pocket of his jacket. That cash was seized by the police (as was an envelope upon which there were a number of figures, calculations and the forenames of three people).
[91]R v Lewis (1989) 46 A Crim R 365 (‘Lewis’).

On appeal, the principal ground was that the finding of the cash was wrongly admitted into evidence. The appellant contended that the cash was not relevant to any fact in issue, and that if it was admissible, then it should have been excluded in the exercise of discretion on the basis that its prejudicial effect outweighed its probative value. In the result, the Northern Territory Court of Criminal Appeal set aside the conviction (Martin and Angel JJ, Rice J dissenting). Martin J said:[92]

… In this case the only real issue in relation to the offence was the purpose for which the appellant possessed the cannabis, that is, a present intention in relation to the cannabis then in his possession. The cash, if it was to be connected in some way with an intention to supply cannabis, could only be seen as the proceeds of prior sales or as the means of acquiring cannabis in the future. The latter hypothesis clearly has nothing to do with current possession, and the former going only to show criminal propensity, is inadmissible.
There was no legitimate connection between the cash, the notations and the cannabis. No support for its admissibility can be derived from cases dealing with, for example, housebreaking or other implements: [Thompson v The Queen (1968) 117 CLR 313; Taouk and Hanna v The Queen (1983) 8 A Crim R 349]. Whether taken alone or in conjunction with the other items it did not tend to show that he was guilty of the crime charged for some reason other than that he had committed crimes in the past or had a criminal disposition: [Harriman v The Queen (1989) 167 CLR 590].

[92]Ibid 373 (emphasis added).

Furthermore, Angel J observed:[93]

The objection taken to the admission of the money into evidence is one of relevancy. Does the money, from its denomination ($50 and $100 notes) and from the circumstances of the appellant’s possession of it (concealed in part under a mattress and in part within a leather jacket within the appellant’s single room bedsitter) give rise to an inference relevant to the case? I ask myself what legitimate process of reasoning can assist the jury? The money in the circumstances of the appellant’s unemployment could assist to a conclusion of guilt with respect to past sales of cannabis. But the appellant was not charged with that offence. How does it assist in ascertaining the appellant’s purpose with respect to the cannabis in his possession? The money, if it tended to show the appellant had offended before or was disposed to commit offences of that kind (ie sale of cannabis) could not be admitted into evidence on the offence charged on that score. That is an illegitimate chain of reasoning. Of course, evidence of past offences for which a defendant is not charged may be nevertheless admissible as relevant to a step in the proof of another offence charged. The question in the present case is whether the inference of past dealing which might be drawn from the possession of the money is relevant to the defendant’s intention with respect to the remaining cannabis.
There is no assistance to be had from the ‘paraphernalia’ cases or the oncourse unlawful betting cases. … [T]he present case is distinguishable from such cases. The only link that can be drawn between the money and the defendant’s purpose with respect to the retained cannabis is a link that can be made, as has already been noted, by an illegitimate process of reasoning, or by drawing an inference upon an inference: compare Van Beelen (1972) 4 SASR 353 at 373–376; 128 CLR 687 (note) ...

There has to be a nexus between the possession of the money and the offence charged. The money was not a unit in a collection of things. The money was not in a box with the cannabis. It was not indicative of constituting change for use as such in future drug transactions. The money was not in use for the purpose alleged in the information. The money was unlike the pad in Connelly v Allchurch [1925] SASR 7, which had a use from which could be drawn an inference of the defendant’s purpose upon the race track. In my opinion the circumstances in which the money was found do not enable an inference to be legally drawn as to the appellant’s purpose with respect to the cannabis in his possession, and the money was inadmissible.

[93]Ibid 375–6 (emphasis added).

At the risk of stating the obvious, each case must, of course, turn on its own facts. In the same way that Lewis fell to be determined according to its own facts, this case must turn on its particular facts, and upon the application of logic and such legitimate inferential reasoning that is open on the available evidence.

Thus, by way of example, Lewis was distinguished on its facts by Cox J in McGhee,[94] a case in which the unemployed accused was charged with possessing amphetamines for sale. Police had raided a house occupied exclusively by the accused and there found illegal drugs, scales, plastic packets and a large amount of cash. Importantly, much of the cash was found inside a wallet also containing a packet of amphetamine. Cox J said that he found the dissenting judgment of Rice J in Lewis ‘generally persuasive’, then went on to observe:[95]

If in a prosecution under s 32 of the South Australian Act the Crown can prove that the accused is running a retail drug business, then this may be the clearest way of discerning the purpose for which he is in possession of illegal drugs on a particular occasion. The possession of appropriate stock and plant and customer lists and so on, including what appears to be working capital, will itself be evidence tending to prove the existence of an ongoing business, and its relevance cannot be called in question merely because it proves that the defendant has committed offences in the past and thus has a criminal disposition. Proof of a criminal disposition — to sell prohibited drugs — is essential to the proof of an offence of possessing drugs for the purpose of sale under s 32 [of the Controlled Substances Act 1984 (SA)].
Of course, this reasoning will not ordinarily be open if the evidence simply proves that the defendant was engaged in the past in an illegal business that is now over and done with. That would bring the propensity rules clearly into play. Furthermore, the court will always have to consider the question of discretionary exclusion, where evidence of this sort is tendered, and be on guard against admitting prejudicial evidence on continuity grounds that are quite fanciful or speculative. However, where the evidence points to an established and ongoing business, it will not usually be unfairly prejudicial to a defendant to admit evidence of it on a prosecution under s 32 even if that does incidentally tend to prove actual past sales. …

[94]R v McGhee (1993) 61 SASR 208.

[95]Ibid 210–11 (emphasis added).

Plainly, the cash in McGhee was found in close proximity to illicit drugs, surrounded by the paraphernalia of an ‘ongoing’ drug supply ‘business’, in premises used for that business, in circumstances where proof of a criminal disposition to sell prohibited drugs was essential to the proof of an offence under s 32. In those circumstances, it is unsurprising that the finding of the cash was held to be admissible. In the present matter, of course, the prosecution’s case was limited to a single day, and to cultivation and trafficking at or from premises other than where the cash was found, in circumstances where the prosecutor eschewed reliance on a Giretti charge.

Another case relied upon by the respondent, Sultana,[96] tends, we think, to illustrate that cases such as the present must be regarded as facts-specific. In that case, the appellant was convicted of supplying heroin. When police searched his premises they found various items of a kind commonly used by heroin suppliers, including resealable plastic bags. Police also found firearms and a large amount of cash on the premises. The Crown argued that, when considered with the other evidence, the firearms and cash could reasonably be regarded as supporting an inference that the appellant was a heroin dealer. Holding that the evidence of the finding of the cash was admissible, Gleeson CJ said:[97]

Evidence of this kind is frequently received on the basis that the Crown is entitled, in a case such as the present, to show that the accused was possessed of the implements or accoutrements of trade of a drug dealer. …
Where the issues are whether a person was found in possession of heroin, and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug-dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit crime, or bad character: cf Harriman (1989) 167 CLR 590; 43 A Crim R 221; Thompson and Wran (1968) 117 CLR 313 at 316–317. If, for some reason, in a civil or criminal case there were an issue as to whether a man was found in possession a man was found in possession of clothing material with an intention of cutting it, it would ordinarily be of relevance to show that the man was carrying on the business of a tailor. That might be shown by evidence then, when asked his occupation, he said he was a tailor. It might also be relevant to prove that he owned a tape measure, a pair of tailor’s scissors, a quantity of samples of cloth, and some books showing a collection of clothing designs. Evidence that tends to show that a person is in the business of dealing in heroin also tends to show a propensity towards crime, but in a case such as the present it is admissible on the former account, not the latter. Moreover, subject to discretionary considerations to be mentioned below, the fact that it bears the latter character does not detract from its relevance or render it inadmissible.

[96]R v Sultana (1994) 74 A Crim R 27.

[97]Ibid 28–9 (emphasis added).

In Sultana, the ‘accoutrements’ found in close proximity to the cash included a cutting agent; a coffee grinder containing traces of heroin; plastic bags; an open pen knife; and a replica pistol and a pen pistol. Again, it is unsurprising that the finding of the cash — located close to other drug-dealing paraphernalia — was held to be admissible to prove that the appellant was ‘currently in the business of a drug-dealer’, given the issues in the case.

The issue in Blackwell[98] — another case relied upon by the respondent — was whether evidence of the finding of a pen pistol and a can of ‘mace’ were admissible against the appellant on a charge of possessing heroin for the purpose of sale. No issue of admissibility with respect to the finding of cash arose. The appellant was found on the footpath outside his house to have a ball of heroin, and bags of heroin, in his jeans pocket, together with a can of mace. Inside his house, police found a set of scales, a pen pistol capable of firing .22 calibre ammunition and a quantity of ammunition (capable of being fired in the pen pistol). Duggan J, with whom Prior and Debelle JJ agreed, observed:[99]

It is well known that drug dealers may become involved in situations which place their personal safety at risk. Accordingly it is not unknown for dealers to arm themselves or carry some sort of protective device, particularly when in possession of large quantities of drugs. …
It is well accepted that if, in addition to being found in possession of drugs, a person is found also to have items commonly associated with drug dealing, then the finding of such items usually will be relevant as part of the circumstantial material to establish the purpose for which the drug was in that person’s possession. …

[98]R v Blackwell (1996) 87 A Crim R 289.

[99]Ibid 290 (emphasis added).

With respect, the logic of the above statement is unimpeachable. On a charge of possessing heroin for sale, if a person is found to have possession of items commonly associated with drug dealing — in that case a pen pistol and a can of mace — in parallel with the possession of heroin, then the possession of that drug trafficking paraphernalia may well be very relevant to the purpose for which the illicit drugs are possessed. The facts of Blackwell are, however, a far cry from those of the present case, which relates to the finding of cash at premises other than those where the relevant offending was alleged to have occurred.

So, too, were the facts in Edwards[100] very different to those in the applicant’s case. Edwards was a case in which the admissibility of the finding of a pistol on the applicant was in issue. The evidence in that case was that the applicant drove up to a house in which illicit drugs were found. When searched by police he was found to have a fully-loaded pistol — with the serial number drilled out — concealed beneath his clothing. He also had $70 cash in a wallet, and a further $2950 in a pocket. In the vehicle driven by the applicant police found almost a kilogram of methylamphetamine in powder form packaged in six small clear plastic bags, together with a box of .38 ammunition suitable for use in the secreted pistol. Eames AJA observed:[101]

… On the Crown case the accused was in possession of a very large quantity of drugs, and in the same box in which the drugs were found was a box of ammunition which fitted the gun. The trial judge was entitled to conclude that a gun might be properly considered by a jury as being an accoutrement of the crime of drug trafficking: see R v Sultana (1994) 74 A Crim R 27 at 28–9. In that case Gleeson CJ, with whom Handley JA agreed, considered a very similar situation, where a large quantity of money, a replica pistol and pen pistol, a mobile phone, plastic bags and other items were found by police. Gleeson CJ held that none of the items standing alone demonstrated drug trafficking, but that they were admissible because when taken together the items could be regarded by the jury as supporting the inference that the accused person was a dealer in drugs, as alleged. His Honour noted that common sense indicated that supplying drugs was a dangerous trade and that possession of firearms might be thought by a jury to be appropriate to the business of a street dealer in heroin. But as his Honour noted:
That line of reasoning would not depend upon evidence or inference that all, or even most, heroin dealers carry weapons. Nor would it depend upon the premise that possessing weapons tends to indicate that the possessor is a drug dealer as distinct from a person in some other line of dangerous work.
It was the combined effect of the items which mattered, his Honour held. In my opinion the gun would no less be an item which ‘might’ be used for the purpose of carrying out the crime of drug trafficking than would plastic bags and scales: see R v Edwards (1993) 67 A Crim R. 539, at 542, a decision of the Court of Criminal Appeal dealing not with the present applicant but with a person with the same surname, and which held that such items had been properly admitted.

[100]R v Edwards [1998] 2 VR 354.

[101]Ibid 368–9 (emphasis added).

Again, with respect, one could hardly quibble with the finding that the evidence of the possession of a pistol, in close proximity to a large quantity of drugs, was admissible to support the inference that the accused person was a dealer in drugs. Again, however, the facts in Edwards — in which the admissibility of the finding of cash was not in issue — are far removed from those of the present case.

Finally, the admissibility of the finding of the sum of $895 in cash on the applicant was in issue in Evans.[102] The appellant was convicted of ecstasy with intent to sell or supply. In a ‘bum-bag’ beneath the front passenger seat of the applicant’s car, police located a snap-lock bag containing 38 ecstasy tablets. Police also found the cash on the appellant, and, in a car at his premises, a note referring to the possession of 20 ‘caps’. Malcolm CJ, with whom Anderson and White JJ agreed, held that, since the defence was that the appellant was unaware of the existence of the drugs in his car, the evidence of the finding of the cash and the note was admissible ‘both to support the Crown case that the appellant was in possession of the drugs and to rebut any defence that the appellant was in possession of the drugs for his own use’.[103] Once more, in the particular circumstances of that case, it is difficult to argue with that finding. But once more, the facts in Evans are very different to the facts of the present case.
[102]Evans v The Queen [1999] WASCA 252.
[103]Ibid [31].

Cash was an article which, in the not too distant past, most people would have been expected to possess — in greater or lesser quantities — about their person, in their homes or in their businesses. Self-evidently, the mere finding of a quantity of cash in any of those circumstances could not — without more — properly found an inference of illicit activity. In some circumstances, however, the finding of an inordinately large amount of cash on a person, or in premises occupied by him or her, might — particularly if he or she appears to have no apparent means of legitimately generating income — raise a suspicion that the cash was acquired by unlawful means, although no particular crime may be capable of being identified as the source of the illicit cash.[104] So, also, cash being found in unusual places or circumstances, or bundled or packaged in an unconventional way, might raise a suspicion as to its origins; but, without more, would be incapable of proving the commission of a particular crime.
[104]Hence, offences such as under s 26 of the Summary Offences Act 1966 (possession of property reasonably suspected of being stolen or unlawfully obtained) and s 195 of the Crimes Act 1958 (dealing with property suspected to be the proceeds of crime).

Ordinarily, it is the combination of the finding of a sum of cash in proximity to other incriminating articles which will go to support a guilty inference as to the origins of the cash or a person’s reasons for its possession. Thus, it has been held that the finding of cash contiguously with other incriminating articles which are themselves the accoutrements of the illicit drug trade — drugs, firearms and other weapons, cutting agents, scales and the like — might be relevant in proof of an accused person’s participation in such activity. In the present case, however, there was no attempt by the prosecution to show a relationship between the sum of cash found at the applicant’s home and the trafficking — by way of possession for sale — at the Sunshine North or Sydenham premises. The finding of the cash was suspicious, but nothing more.

In our view, insofar as the evidence of the possession of the cash was admitted on the basis that it was evidence of past trafficking, it was irrelevant and therefore inadmissible. At the risk of repetition, the cultivation and trafficking of which the applicant was convicted related to Sunshine North and Sydenham respectively on one day. And as we have observed more than once, with respect to the trafficking, the prosecution eschewed reliance on a Giretti charge, or on a case that involved an allegation of an ongoing drug trafficking business. Thus, as a matter of logic, it is impossible to say that the evidence of cash at the applicant’s home — from which it was not said that he conducted any ongoing illicit business — could have gone in proof of his having possession of cannabis for sale at Sunshine North (charge 1, of which he was acquitted) or Sydenham (charge 3, of which he was convicted) on a single day in December 2013.

Quite apart from its lack of legitimate probative value, in our opinion the evidence of the finding of cash at various places at Kendall Street invited impermissible reasoning. The prosecution case on trafficking was not one of an ongoing business, it being limited to possession for sale on one day. Yet the prosecutor closed, at length, on the basis that the cash demonstrated that the applicant had engaged in extensive past trafficking. We accept the submissions of the applicant’s counsel that the relevance of that conclusion was either to invite some improper ‘rank propensity’ reasoning in the manner discussed in Lewis, or to invite the jury to reason that the applicant was more likely to have acted in accordance with the tendency established by that past conduct, and thus that he was more likely to be in possession of the cannabis for the purposes of selling it. Thus, it seems to us that the reasoning relied upon by the prosecution was either rank propensity reasoning, or tendency reasoning. No matter which, the evidence was inadmissible. Indeed, if the evidence is properly to be characterised as tendency evidence, it was wrongly admitted without any consideration of the relevant statutory criteria.[105]
[105]Evidence Act 2008, ss 97 and 101.

If we are wrong in our primary conclusion, and the evidence might be seen to have some probative value, for the reasons we have already identified, any such probative value must be low, in circumstances where the risk of the misuse of the evidence is undoubtedly high. Thus, in our opinion, the probative value of the evidence is outweighed by the risk of unfair prejudice.[106]
[106]Evidence Act 2008, s 137.

Plainly, in these circumstances, the conviction on the trafficking charge cannot be permitted to stand. We have given anxious consideration to whether the wrongly admitted evidence also infects the conviction for cultivating not less than a commercial quantity of cannabis. Ultimately, we have come to the conclusion that it does. In our view, it is likely that the evidence of the finding of the cash would have coloured the jury’s consideration of the appellant’s case on that charge, if for no other reason than the prosecutor linked the finding of the cash to the cultivation. In his final address he said of the cash:

… The prosecution says, well, you’re not going to return income from an illegal activity, black money, income from dealing in drugs and that’s why the prosecution says that the possession of that cash money is indicative of a dealing in drugs and indicative of trafficking in drugs.
What is being engaged in is a commercial profit making activity in relation to both the cultivating of cannabis, not for personal use but for the purposes of sale, for making a profit.

Finally, we note that, despite repeating the manner in which the prosecutor put his case, the judge gave the jury no directions as to how they might use the evidence of the finding of the money.

In light of our conclusions on ground 2, there is no utility in granting leave to add proposed ground 3.

Conclusion

For these reasons, the convictions on charges 2 and 3 must be set aside.

We would order that there be a new trial.

Charge	Offence		Sentence	Cumulation
1	Trafficking in commercial quantity of cannabis[45] [at Sunshine North]		[Not guilty]	—
2	Cultivation of narcotic plants — commercial quantity[46] [at Sunshine North]		2 years and 6 months	Base
3	Trafficking in a drug of dependence[47] [at Sydenham]		2 years and 6 months	15 months
4	Cultivation of narcotic plants[48]		[No verdict taken]
Total Effective Sentence:		3 years and 9 months’ imprisonment
Non-Parole Period:		2 years and 6 months

[2017] VSCA 74

5 April 2017