Hammer v The Queen - [2022] SASCA 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HAMMER v THE QUEEN
[2022] SASCA 75
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
4 August 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The appellant, Mr Kym Desmond Hammer, was charged with two counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The appellant pleaded not guilty to both counts.
Count 1 arose from an allegation that the appellant supplied 3.48 g of methylamphetamine to Ms George in exchange for $700 cash. Count 2 related to a pouch containing 43.1 g of methylamphetamine found in the neighbour’s driveway. It was the prosecution case that the methylamphetamine contained within the pouch was in the appellant’s exclusive possession and that he intended to sell all, or some, of the drug. Following a trial by jury, the appellant was found guilty (by majority) of Count 1. He was acquitted of Count 2.
The appellant appeals against his conviction. The appellant complains that the trial Judge erred in admitting discreditable conduct evidence of a prior sale (Ground 1). Alternatively, the appellant contends the trial Judge erred in directing the jury as to the use that could be made of all the discreditable conduct evidence (Ground 2). The appellant further complains that the trial Judge erred in directing the jury as to the elements of Count 1, which alleged the appellant trafficked in a controlled drug by taking part in its sale (Ground 3).
Held, per the Court, granting permission to appeal on Ground 2 but dismissing the appeal:
1.As to Ground 1, the probative value of the prior sale evidence substantially outweighed its prejudicial effect and the impugned evidence had strong probative value in relation to proving the charged offences. The trial Judge was correct in declining to exclude the evidence from the jury’s consideration.
2.As to Ground 2, the trial Judge’s directions as to the permissible use of the discreditable conduct evidence were adequate in the circumstances of the case. We do not consider there is any risk that the jury misused the discreditable conduct evidence.
3.As to Ground 3, at trial the prosecution case and key allegation was whether the appellant sold the methylamphetamine to Ms George. If the jury were so satisfied beyond reasonable doubt, the second element of the offence was established. For that reason, the trial Judge’s failure to refer to the requirement that the appellant must have knowingly taken a step in the sale of the controlled drug was not an error of law. Nor did the trial Judge's misstatement of the prosecution case result in a miscarriage of justice.

Controlled Substances Act 1984 (SA) ss 4, 32, 33S; Evidence Act 1929 (SA) ss 18, 34P, 34P(2), 34R; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) s 17, referred to.
Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894; Harriman v The Queen (1989) 167 CLR 590; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Brownlow (2003) 86 SASR 114; R v C, CA [2013] SASCFC 137; R v Jones (2018) 131 SASR 532; R v Long (2002) 137 A Crim R 263; R v MJJ (2013) 117 SASR 81; R v Pali (2018) 132 SASR 201; R v Pringle [2017] SASCFC 9; R v Soteriou (2013) 118 SASR 119; R v Sultana (1994) 74 A Crim R 27; R v Tassone [2016] SASCFC 146; R v Tran [2017] SASCFC 99; The Queen v Conley (1982) 30 SASR 226; The Queen v Falzon (2018) 264 CLR 361, considered.

HAMMER v THE QUEEN
[2022] SASCA 75
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:

The appellant, Mr Kym Desmond Hammer, was charged with two counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘CSA’). The appellant pleaded not guilty to both counts. Following a trial by jury, the appellant was found guilty (by majority) of Count 1. He was acquitted of Count 2.
The appellant appeals against his conviction. The appellant complains that the trial Judge erred in admitting discreditable conduct evidence of a prior sale (Ground 1). Alternatively, the appellant contends the trial Judge erred in directing the jury as to the use that could be made of the prior sale evidence and other discreditable conduct evidence (Ground 2). The appellant further complains that the trial Judge erred in directing the jury as to the elements of Count 1, which alleged the appellant trafficked in a controlled drug by taking part in its sale (Ground 3).
Permission to appeal was granted on Ground 1. The question of permission to appeal with respect to Ground 2 was referred to this Court for consideration. The appellant was granted leave at the appeal hearing to add Ground 3, which complains of an error of law.
Factual background
On 21 November 2018, members of the South Australian Police Force were conducting a covert operation in Murray Bridge which involved the purchase of drugs from suspected drug dealers. On that day, at approximately 12:40pm, an undercover police officer met with a Ms George and agreed to purchase 3.48 g of methylamphetamine (also known as an ‘eight ball’) for $850. The undercover officer gave Ms George the money (consisting of $50 notes) to purchase the drug. The serial numbers of the $50 notes had been recorded by police officers.
After the exchange with Ms George, police officers covertly followed her to the appellant’s home in Murray Bridge (the ‘Premises’). She entered the Premises at approximately 1:20pm. After a few minutes, Ms George left the Premises. She again met with the undercover officer and supplied him with an eight ball of methylamphetamine.
The observations of the alleged sale, including the involvement of Ms George, were not in dispute. They were the subject of agreed facts which were presented to the jury at the outset of the evidence.
At about 1:55pm on 21 November 2018, police attended the Premises and searched the appellant’s home. At the house they located the appellant, two other males, Mr Scott May and Mr Brandon Bates, and a female named Ms Bettina Bates. There was no dispute that the three other people at the Premises were methylamphetamine users. When police arrived, Ms Bates hid in the roof cavity and ‘everyone was scattered everywhere’.
During their search of the Premises, police located:
i.three lots of cash, namely $1,500 in $50 notes under the battery of a Chrysler Valiant, where the appellant and another man were seen secreting something under the battery; $2,000 bundled with three rubber bands in a pencil case in a dresser in a bedroom occupied by the appellant; and $780 in the appellant’s wallet;
ii.a notebook with tick list entries in a tallboy in a bedroom occupied by the appellant;[1]
iii.a set of digital scales in the kitchen;
iv.plastic resealable bags on the floor of another bedroom, in the kitchen, and in the bathroom;
v.a CCTV camera at the front of the house connected to a monitor in the lounge room of the house showing a ‘live feed’; and
vi.numerous mobile telephones in a dining room cupboard and in the kitchen that were unable to be accessed.
[1] Trial Exhibit P6.
As to the cash, $700 of the $1,500 cash located under the car battery comprised notes with matching serial numbers to the cash provided by the undercover officer to Ms George to purchase methylamphetamine.
Police also located a pouch containing 43.1 g of methylamphetamine in the driveway of the next-door neighbour’s house. A DNA profile was extracted from the packaging of the methylamphetamine in the pouch. The DNA profile obtained had four contributors. There was an extremely strong likelihood that the appellant contributed to the extracted DNA profile. The police did not take a DNA sample from the other two males located at the Premises.
Upon searching the appellant, a small uncharged quantity of methylamphetamine (1.56 g) in a small press seal bag was found in between his buttocks.
Count 1 arose from an allegation that the appellant supplied 3.48 g of methylamphetamine to Ms George in exchange for $700 cash. Count 2 related to the pouch containing 43.1 g of methylamphetamine found in the neighbour’s driveway. The prosecution alleged that the appellant threw the pouch over the fence, or caused it to be thrown over the fence, upon the attendance of police. It was the prosecution case that the methylamphetamine contained within the pouch was in the appellant’s exclusive possession and that he intended to sell all, or some, of the drug. The appellant was acquitted of Count 2.
At trial, the prosecution adduced evidence (without objection) of the appellant’s possession of the three amounts of cash and notebook containing a tick list[2] as evidence of the appellant’s ‘prior sales of illicit drugs’. The evidence of the digital scales, plastic resealable bags, CCTV camera, and mobile telephones was led by the prosecution (without objection) as indicia of sale or the accoutrements ‘commonly associated with the illicit drug trade’. The small amount of methylamphetamine secreted within the appellant’s buttocks was relied upon by the prosecution to show the appellant’s interest in the drug, which on their case, made it more likely that he sold the methylamphetamine to Ms George (Count 1) and was in possession of the methylamphetamine in the pouch found in the neighbour’s driveway (Count 2).
[2] When the prosecution sought to cross-examine the appellant about the evidence of the notebook containing the ‘tick list’, defence counsel objected to it on the ground there was no positive basis establishing which of the handwriting in the notebook was the appellant’s. Defence counsel sought a direction that the jury be instructed to ignore that evidence. The trial Judge declined to give that direction.
In a record of interview conducted with police on 21 November 2018, the appellant denied the alleged offending.[3] He said the methylamphetamine located on his person (uncharged) was for his personal use and the money ‘at the house’ was given to him by his father. He denied any knowledge of the pouch containing methylamphetamine located in the neighbour’s driveway. The allegations in respect of Count 1 were not put to him during the interview.
[3] Trial Exhibit P7 (disc recording of the record of interview).
The appellant’s evidence
The appellant gave evidence at trial. He said he was a long-term user of methylamphetamine. He denied being the owner of the pouch of drugs located on the neighbour’s property. He said it belonged to his housemate, Mr May, who he said was a drug user and seller. The appellant admitted to knowing of the pouch and having taken a small quantity of methylamphetamine from the pouch prior to the arrival of police. On the defence case, this explained his DNA on the packaging of the drug. He denied having thrown the pouch over the fence.
As to the other evidence of past drug sales, the appellant did not dispute possession of the three amounts of cash, but he denied that it was the proceeds of drug trafficking. He said the $2,000 found in a dresser in his bedroom was given to him by his father and the $780 located in his wallet was from a Centrelink payment. In relation to the $700 of the $1,500 cash found under the car battery with the serial numbers earlier recorded by police, the appellant said Ms George gave him $750 as part payment for a concreting job he had completed for her about a month earlier. The appellant denied selling any methylamphetamine to Ms George.
As to the notebook,[4] he denied being the author of the ‘tick list’. On the first page of the notebook, the appellant’s name, date of birth, and an email address containing the appellant’s name is apparent.
[4] Trial Exhibit P6.
As to the other accoutrements or indicia of sale, the appellant said that only one mobile telephone belonged to him and the other mobile telephones might have belonged to his late brother or the other occupants of the Premises. He said that he used the digital scales at the Premises to measure out the amount of Mr May’s methylamphetamine he took for his own use and he used plastic resealable bags to contain the amount of drug he took. He also would place the drugs in the plastic resealable bags to carry on his person when going to work.
In evidence-in-chief, the appellant explained that he and his housemate, Mr May, had an arrangement in which they would, from time to time, either share methylamphetamine or sell small quantities to one another. He gave evidence of having sold ‘a couple of points’ to Mr May ‘just to help him out … when he was short’ during the month of November 2018. He said he had not sold him ‘much at all because he had mostly his own’.
In cross-examination, the appellant clarified that he sold Mr May half a gram earlier in the week. The appellant admitted that his sales to his housemate, Mr May, were not isolated:
QAnd it was from that [Newstart Allowance] money that you would purchase methylamphetamine.
AYes.
QAnd, indeed, you would then sell some of the methylamphetamine you purchased to offset what you were using, wouldn’t you.
AYes.
QAnd that included selling to people who would come and visit such as Mr May.
AMainly Mr May, yeah.
Further:
QSo your other friends would purchase drugs for cash.
AI wasn’t selling to many people at all, mainly, you know, Scott here and there, that’s about it.
QWho else were you selling to.
ABrandon [Bates], we’d all help each other out.
In cross-examination, the prosecutor further explored this topic with the appellant. The prosecutor asked the appellant what the largest quantity of drugs was that he had ever sold. The appellant said it was ‘half a ball’. The appellant was not able to say when or where this sale took place or to whom it was made. The appellant said it occurred prior to his living at the Premises, where he had been living for about 12 months prior to the police search on 21 November 2018. The cross-examination of the appellant was as follows (the ‘prior sale evidence’):
QWhat was the largest quantity you ever sold.
AHalf a ball.
QAn eight ball.
AHalf a ball.
QHow much did you sell that for.
AIt’s going back ages ago, way before then. Don’t know, I can’t really remember.
Q$400.
AI don’t know, probably somewhere around that.
QWho was that to.
AI can’t remember.
QWhen was that in relation to 21 November 2018.
AWay before that.
QDays, weeks, months.
ACouldn’t tell you.
QWas that while you were at [the Premises].
ANo.
QWere you selling drugs at other locations.
ANo.
QWhere was it that you sold that half of a ball.
AI can’t really remember.
After the prior sale evidence was adduced, defence counsel made an application for a mistrial. The grounds for the application was that the prior sale evidence was inadmissible as it did not satisfy the requirements of s 34P(2) of the Evidence Act1929 (SA) (‘Evidence Act’).
The prosecution sought to rely on the impugned evidence to rebut the appellant’s explanation that he only sold to other occupants of the Premises (a non-propensity purpose) and to show the appellant’s particular propensity or disposition to sell drugs. The prosecution argued that the impugned evidence was strongly probative of the two main issues at trial, that is; whether the appellant sold the drugs to Ms George (Count 1), and whether he was in exclusive possession of the methylamphetamine in the pouch (Count 2).
The mistrial application was refused by the trial Judge, who ruled that the prior sale evidence adduced in cross-examination was admissible both for non-propensity and propensity purposes.
In his ruling, the trial Judge reasoned in this way:
The charges relate to alleged drug dealing at the accused's house. He had lived there for over 12 months by November 2018. The nature, extent, volume and circumstances of dealing is admitted by the defendant in terms of the reciprocal agreement during the month of November 2018. The prosecution is entitled to challenge and explore that evidence. The accused is alleged to have sold from his home, and the tick list and cash were led as evidence of past dealings and are proper topics for cross-examination. I consider that the impugned cross-examination goes to that.
…
The evidence of drug dealing before November 2018 is prejudicial, as it is evidence that the accused engaged in discreditable conduct whether or not constituting an offence, see s.34P(1). I consider that the evidence adduced in cross-examination is admissible under both limbs of s.34P(2).
I am satisfied it has probative value for a permissible use, namely, to show, if accepted by the jury, it is more likely in relation to the drugs the subject of counts 1 and 2 that Mr Hammer took part in the sale by supply to Ms George at his home, possessed the 43.1 g found next door to his home and knew the nature of those drugs.
Further, I am satisfied that the evidence has strong probative value, having regard to the issues arising in this trial, including those concerning the rebuttal of the presumption and, the explanation that Mr Hammer did not supply to Ms George at his home because she was not a resident or part of the arrangement, to explain the presence or origin of the cash at the home of Mr Hammer and to explain why the DNA of the accused was on the pouch.
The application is declined.
Summing up
As to the elements of the offence constituting Count 1, the trial Judge summed up to the jury as follows:
The count 1 trafficking charge relates to the drugs sold to the undercover police officer by Ms George.
The formal particulars of count 1 are that at 11.49 on [21] November 2018 at Murray Bridge, the accused trafficked in a controlled drug, namely 3.48 g of methylamphetamine knowing or being reckless as to the fact that the substance was a controlled drug.
…
Turning then to the elements of the offence of trafficking in a controlled drug. That offence contains three elements.
The first element that the prosecution must prove beyond reasonable doubt is that the substance to which the charge relates was a controlled drug. As a matter of law, a number of substances are considered to be a controlled drug. I direct you that methylamphetamine is a controlled drug. It is not in dispute that the crystal substances sold to the undercover officer the subject of count 1 was methylamphetamine. It is not in dispute that the crystal substance in the pouch was methylamphetamine. I am sure that you will have little difficulty in being satisfied as to this first element in respect of both count 1 and count 2.
The second element is that the prosecution must prove the accused trafficked in the methylamphetamine. The word ‘traffic’ has a specific, legal definition. It can mean to sell the drugs, or to have possession of the drug intending to sell it, or to take part in the process of the sale of the drug.
In respect of count 1, the prosecution say that Mr Hammer took part in the process of the sale of 3.48 g of the drug methylamphetamine to the undercover police officer. A person takes part in the sale of a drug if they participate in a step, including storing, guarding or concealing the drug for the purpose of selling the drug.
The prosecution says that the accused took part in the sale of the drug to the undercover officer on 21 November 2018 because he supplied Ms George at his home with an 8-ball or 3.48 g of the drug methylamphetamine in exchange for $700 cash consisting of 14 $50 notes given to Ms George by the undercover officer.
In respect of count 1, I expect that most of your consideration will be directed to whether you are satisfied beyond reasonable doubt that Mr Hammer took part in the process of sale of 3.48 g of the drug methylamphetamine to the undercover officer.
…
The third element which the prosecution must prove beyond reasonable doubt is that at the time the accused trafficked in the controlled drug, he knew that the substance was a controlled drug, that is, the prosecution has to prove beyond reasonable doubt that the accused knew that the crystal substance was methylamphetamine or at least knew the substance was a controlled drug.

As to the discreditable conduct evidence, the trial Judge in his summing up first summarised the expert opinion evidence of Detective Brevet Sergeant Sarah Odell. His Honour said:
1.The prosecution relies on the expertise of Detective Odell specifically to assist you in understanding the discreditable conduct evidence against Mr Hammer upon which it relies. As I have mentioned, the discreditable conduct evidence relied upon by the prosecution includes the admissions of drug dealing of Mr Hammer in the past, both in November 2018 and when he sold Scott May a half ball, the three lots of cash found in his home and what the prosecution says is a notebook owned by the accused in which a tick list has been recorded.
2.As for the half ball evidence, [defence counsel] told you that you can make no use of that evidence. That is not correct. I will direct you as to how you may use that evidence, if you accept it, and you must follow my direction.
3.As for the cash found Detective Odell told you that drug dealers commonly hold large sums of cash, usually in 50 and sometimes $100 notes. In this case, the prosecution relies upon the $800 balance of the $1500 in $50 notes found under the Valiant battery. That is, the sum left after excluding the $50 notes given by the undercover officer to Ms George and then by Ms George to the accused. Next, they rely on the $2,000 in cash comprised of 38 $50 notes and one $100 note, clipped together in the pencil case at the bottom of the dresser in Mr Hammer’s bedroom. Third, there is the $780 in cash, of which $750 was comprised of $50 notes, found in the wallet of the accused.
4.As for the notebook, Detective Odell told you that, in her expert opinion, the list of names and sums of money detailed on one of the pages was a tick list which recorded moneys owed for illicit drugs sold. The prosecution says you can infer that the tick list records Mr Hammer’s drug transactions because it is his notebook, having previously been his brother’s; it was in his bedroom in his house; and it contains his handwriting, containing his name and other personal details, including his date of birth.
(numbering added)
His Honour then dealt with defence counsel’s criticisms of the evidence of the notebook and the allegation that the tick list was written by the appellant. Namely, the absence of the prosecution having compared the writing in the notebook with a handwriting sample taken from the appellant.
The trial Judge then gave the jury directions as to the permissible and impermissible use of the discreditable conduct evidence. His Honour said:
5.If you accept all or some of that evidence, the past drug dealing of Mr Hammer that he admitted, the three lots of cash found and the tick list, they are circumstantial facts which you can use to reason that it makes it more likely that, in relation to the drugs the subject of count 1 and count 2, Mr Hammer took part in the sale of the drugs to the undercover officer by supplying those drugs to Ms George; possessed the 43.1 g of drugs found next-door and intended to sell them; and knew the nature of the drugs he supplied to Ms George and the drugs he possessed and which he intended to sell.
6.Additionally, that discreditable conduct evidence concerning past drug dealing, the cash found and the tick list, if you accept all or some of that evidence, would allow you to reason to reject the innocent explanations given by Mr Hammer in respect of count 1 and count 2.
7.There is other discreditable conduct evidence led by the prosecution. You will recall that Detective Odell also gave expert evidence that other items found in the home of Mr Hammer indicated drug dealing. She said that, in her experience, the presence of digital scales, plastic resealable bags, pipes and CCTV could be indicators of drug dealing. The pipes, bags and scales found at the home of Mr Hammer are relied upon by the prosecution as circumstantial evidence, in this case, of drug use at the house and as indicia of drug dealing.
8.I expect you will, given the evidence, and in particular the evidence of Mr Hammer, have little difficulty in finding that the house was a place of drug use. If you accept the evidence of the pipes, bags, and scales as indicia of drug trafficking, you are entitled to reason that Mr Hammer has engaged in drug trafficking. Therefore, you are entitled to reason that he is someone who was willing and inclined to sell drugs, and this makes it more likely that he acted on that information [sic – inclination] for the purpose of sale rather than for personal use on the occasions charged. As for the presence of CCTV, while that is also part of the circumstantial evidence, I do note that CCTV is commonplace these days in homes and is used for general security.
9.The discreditable conduct evidence which I have detailed is, as I have explained, before you for specific purposes, as I have mentioned. While I have directed you as to how you may use that evidence, if you accept it, you will of course need to consider all the evidence when deciding whether each charge is proved beyond reasonable doubt. But, the way I have directed you can use the discreditable conduct evidence is the only way you may use that evidence. You must not use it for any other purpose. In particular, you must not use that evidence to reason, simplistically, that merely because the accused has done bad things in the past he is a bad person and, therefore, is more likely to have committed these crimes. Reasoning in that way would be wrong and unfair. You must also not allow that evidence to distract you from the need to consider whether, for each charge, the prosecution has proved that charge beyond reasonable doubt. You cannot reason that the accused has done something similar before so that is enough to prove he committed these crimes. Again, that sort of reasoning is wrong and unfair.
(numbering added)
The appellant complains that the trial Judge’s ruling admitting the prior sale evidence was an error of law (Ground 1) and that his directions in relation to the discreditable conduct evidence did not comply with s 34R(1) of the Evidence Act, were inadequate, and resulted in a miscarriage of justice (Ground 2).
Ground 1
The appellant contends that the trial Judge erred by admitting the prior sale evidence. The appellant submits that the evidence is not capable of meeting the test prescribed by s 34P(2) of the Evidence Act and that the erroneous admission of the evidence has resulted in a miscarriage of justice.
The admissibility of discreditable conduct evidence is governed by s 34P of the Evidence Act, which relevantly provides:[5]
[5] Section 34P(2)(a) was amended by the Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) s 17 to remove the word ‘substantially’, commencing 1 June 2022.
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
…
There are two classes of permissible use of discreditable conduct evidence under s 34P(2) of the Evidence Act. The first, s 34P(2)(a), is a permissible use that does not rely on the propensity or disposition of the defendant as circumstantial evidence of a fact in issue. The second, s 34P(2)(b), is a permissible use that relies on the propensity or disposition of the defendant as circumstantial evidence of a fact in issue. The distinction between these two classes of permissible use is found in the common law.
In R v MJJ (‘MJJ’), Vanstone J said the following about s 34P(2):[6]
Section 34P(2) divides discreditable evidence into two categories. Section 34P(2)(a) deals with non propensity uses. Examples of these uses are seen in cases such as Wilson v The Queen (evidence of marital discord prior to wife’s death by firearm); R v Tucker (proof of theft of firearm later used to shoot victim as evidence of premeditation); R v Nieterink (proof of uncharged acts of sexual nature not used to prove sexual interest). This last has often been referred to as relationship evidence. It introduces what I see as a requirement more demanding than the common law, namely that the probative value of the evidence “substantially outweighs any prejudicial effect”. Formerly, such evidence was admissible, but fell to be excluded as a matter of discretion if its prejudicial effect was adjudged to outweigh its probative value.
Propensity or disposition evidence is dealt with in s 34P(2)(b). I would assess the qualitative requirement there provided as being comparable to the common law as it stood prior to Hoch v The Queen. The degree of probative force required at common law has been described as “a really material bearing on the issues to be decided”: Director of Public Prosecutions (UK) v Boardman and such that to exclude the evidence would be “an affront to common sense”: Boardman; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen; Phillips v The Queen.
[6] (2013) 117 SASR 81 at [242]–[243] (with whom Kourakis CJ relevantly agreed) (citations omitted, emphasis added).
In determining the admissibility of the prior sale evidence, it is first necessary to identify the key issues in dispute at trial. They were whether the appellant sold Ms George methylamphetamine (Count 1) and whether he was in exclusive possession of the methylamphetamine contained within the pouch found in the neighbour’s driveway (Count 2). The appellant’s admission that he had in the past sold methylamphetamine to a person other than Mr May and Mr Bates (when considered with other circumstantial evidence) was relevant to prove that he was previously engaged in selling drugs to a broader group of persons than the reciprocal agreement with the other occupants of the Premises described in his evidence-in-chief. The appellant’s interest and involvement in dealing in methylamphetamine, when considered in conjunction with other circumstantial evidence, was probative of his continued involvement and participation in the drug trade at the time of the police search in November 2018. That evidence of his participation was in turn relevant to prove the allegations that he sold methylamphetamine to Ms George and that he was in exclusive possession of the methylamphetamine contained in the pouch and the purpose of his possession was to sell it.
Evidence of an accused person’s interest, participation or involvement in the drug trade or in the business of drug dealing has been recognised in numerous authorities as admissible in cases involving allegations of drug trafficking.[7]
[7]
Evidence tending to prove a person’s interest, participation or involvement in the business of dealing in drugs is properly characterised as discreditable conduct evidence and its admissibility is governed by s 34P of the Evidence Act. The authorities have recognised that the use of evidence of an accused person’s interest, participation or involvement in the business of drug dealing in proof of drug trafficking charges involves a form of propensity reasoning. It relies on a particular propensity or disposition of a person as circumstantial evidence of a fact in issue ‘or is so close to it that the distinction becomes insignificant’.[8] In the present case, the prosecution sought to rely on the prior sale evidence for both non-propensity and propensity purposes. Accordingly, the admissibility of the evidence falls to be considered under both limbs of the test in s 34P(2) of the Evidence Act.
[8] R v Long (2002) 137 A Crim R 263 at [39] per Doyle CJ (with whom Lander and Bleby JJ agreed). See also R v Soteriou (2013) 118 SASR 119 at [26] per Vanstone J (with whom Sulan and Stanley JJ agreed); R v Jones (2018) 131 SASR 532 at [30] per Nicholson J (with whom Kourakis CJ and Hinton J agreed).
The appellant submits that the prior sale evidence is not capable of meeting either limb of the test under s 34P(2) of the Evidence Act. He argues that the probative value of the evidence did not substantially outweigh any prejudicial effect it may have on the appellant and that the evidence was not of strong probative value in relation to the disputed issues at trial.
The appellant submits that the evidence has limited probative force given that he admitted his familiarity with methylamphetamine and his ownership and use of some of the drugs located by police. The appellant submits that the evidence of a prior sale to an unknown person, at an unknown time, with no temporal or geographical connection to the charged offending has limited probative force, was highly prejudicial, and should have been excluded from the jury’s consideration once it was adduced by the prosecutor in cross-examination.
The admissibility of the impugned prior sale evidence needs to be considered in the context of all the circumstantial evidence as to the appellant’s interest, participation and involvement in the business of trading methylamphetamine. It did not stand alone. The appellant made admissions in evidence in chief that he had a reciprocal arrangement with Mr May whereby they would on occasion sell each other methylamphetamine when the other was short of the drug. In cross-examination, the appellant admitted that he had also sold drugs in November 2018 to another occasional occupant of the Premises, Mr Bates. It was in that context that the Prosecutor elicited the impugned evidence from the appellant, namely that his prior sales of drugs were not confined to November 2018, nor to the occupants of the Premises, but extended beyond the reciprocal agreement he had described. It extended to having sold ‘half a ball’ to another person when he was living at a different premises at least a year earlier. The evidence disclosed a broader range of customers and more entrenched involvement in the business of dealing in drugs than the appellant had initially admitted in evidence-in-chief.
The admissibility and probative force of the impugned evidence also needs to be considered in light of the other discreditable conduct evidence relating to the appellant’s past participation in the drug trade and his possession of the accoutrements of sale which give rise to an inference of his ongoing involvement in the business of dealing in drugs. This evidence included the cash found in three separate amounts; in a pencil case secreted in a dresser in his bedroom, in his wallet, and under the battery of his car. Whilst the appellant gave innocent explanations for this money, his possession of the cash (found in denominations associated with the drug trade) tended to prove his prior participation in the drug trade. There was also a notebook (bearing the appellant’s name on the first page) with a ‘tick list’ of monetary amounts consistent with the price of commonly sold amounts of methylamphetamine. The appellant denied making the tick list. There was no relevant handwriting comparison conducted by police despite having obtained a sample of the appellant’s handwriting. However, it remained the case that the notebook was found in his bedroom, with his name on the first page.
There were also other accoutrements or indicia of sale found at the Premises which are commonly associated with a person dealing in drugs. There was CCTV installed at the front of the Premises, with a live feed displayed on a monitor situated in the living room. There were also plastic resealable bags and a set of digital scales located in the kitchen and other plastic resealable bags on the floor of a bedroom and in the bathroom. There were several mobile telephones located at the Premises.
The impugned prior sale evidence needed to be considered in the context of all the circumstantial evidence of the appellant having sold drugs in the past and the presence of the accoutrements of sale which suggested the appellant’s continued participation in the drug trade in November 2018 at the Premises, where he was alleged to have sold drugs to Ms George. In that context, the appellant’s evidence of an admitted past sale was strongly probative of his interest and involvement in the business of trafficking in drugs and relevant to rebut his earlier evidence that his drug sales were confined to other occupants of the Premises. The appellant’s evidence revealed a broader and more entrenched participation in the drug trade.
As to the temporal gap between the charged offending in November 2018 and the impugned prior sale evidence which occurred before the appellant was living at the Premises, and therefore at least 12 months prior to police attendance on 21 November 2018, we do not consider this gap in time rendered the evidence lacking in strong probative value. Given the circumstantial evidence of past drug sales, that is the cash and tick list, and the evidence of the accoutrements of sale present at the Premises, the impugned evidence was capable of being considered as one earlier admitted instance of the appellant’s ongoing criminal enterprise of a business trading in drugs.[9] Furthermore, it was significant that the appellant admitted that he had conducted the previous sale to another person outside of any reciprocal agreement. Thus, there was no dispute as to it having occurred. The prior sale also involved the same drug that he was alleged to have sold to the undercover police officer and which was alleged to have been in his exclusive possession.
[9] R v C, CA [2013] SASCFC 137 at [79] per Kourakis CJ (with whom Anderson J and Nicholson J relevantly agreed).
We are satisfied that the probative value of the prior sale evidence substantially outweighed its prejudicial effect and the impugned evidence had strong probative value in relation to proving the appellant sold the methylamphetamine to Ms George and was in exclusive possession of the methylamphetamine in the pouch located in the neighbour’s driveway. The prior sale evidence satisfied both limbs of s 34P(2). The trial Judge was correct in declining to exclude the evidence from the jury’s consideration.
The appellant also complains that the trial Judge did not address s 34P(3) of the Evidence Act in his ruling as to whether the permissible and impermissible uses of the impugned prior sale evidence could be kept separate from one another. There is recent authority that ‘[a]ll applications for the admission of discreditable conduct evidence must first pass the test in s 34P(2)(a)’ and satisfy the incidental requirement of s 34P(3) that the judge ‘must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose’.[10]
[10] MDM v The Queen (2020) 136 SASR 360 at [107] per Peek J; Cf R v MJJ (2013) 117 SASR 81 at [249] per Vanstone J; R v Jones (2018) 131 SASR 532 at [34]–[35] per Nicholson J (with whom Kourakis CJ and Hinton J agreed).

The trial Judge did not specifically refer to the requirement in s 34P(3) of the Evidence Act. However, that is of no significance on appeal. As Kourakis CJ observed in MJJ:[11]
A decision to admit the evidence of discreditable conduct based on one or more identifiable and permissible purposes does not preclude the judge from leaving the evidence of discreditable conduct to the jury for other additional purposes. The identification of an additional permissible purpose will generally add to the probative weight of the evidence relative to its prejudicial effect. However, before leaving an additional use which relies on a particular propensity, or which is closely linked to a prejudicial effect, the judge should ensure that the “strongly probative value” test in 34P(2)(b) of the Evidence Act has been satisfied and that the “sufficiently separate” consideration in s 34P(3) of the Evidence Act, has been taken into account. Ultimately, on an appeal, it will be the legal conclusion reached by the Court of Appeal on the probative force of the uses left to the jury which will be determinative and if the evidence is admissible any error made by the trial judge in reaching the same conclusion is of no consequence.
[11] R v MJJ (2013) 117 SASR 81 at [16].
We are satisfied that a properly instructed jury would have understood the distinction between the permissible use of the impugned evidence as probative of the appellant’s participation and involvement in the drug trade and his particular propensity to deal in methylamphetamine, which was in turn relevant to prove his having sold the drug to Ms George and his possession of the drug, and the impermissible use of the evidence as a general propensity or ‘bad person’ reasoning.
We are satisfied that the prior sale evidence was admissible.
The appellant at trial, and on appeal, suggested that the prosecutor had contravened s 18(1)(d) of the Evidence Act by questioning him in a manner which would elicit an answer tending to show that he has committed an offence other than that with which he is charged and is of bad character.
Section 18 of the Evidence Act relevantly provides:
18—Accused persons competent to give evidence
(1)Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: Provided as follows:
…
(d)a person charged and called as a witness in pursuance of this Act shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless—
(i)the evidence to be elicited by the question is admissible as tending to show that he is guilty or not guilty of the offence with which he is charged; or
…
…
The prosecutor’s cross-examination which elicited the prior sale evidence invoked s 18(1)(d) of the Evidence Act as the questioning tended to show that he had committed an offence other than that with which he was charged and was of bad character. The prosecutor did not seek leave from the trial Judge before embarking on his cross-examination. A prosecutor is obliged to seek leave before cross-examining an accused person in a manner which invokes

s 18(1)(d), notwithstanding that the requirement for leave is not expressly referred to in the terms of s 18.[12] However, we are satisfied that the prosecutor’s failure to seek leave and his cross-examination which elicited the prior sale evidence did not result in a miscarriage of justice. For the reasons discussed earlier, the prior sale evidence was admissible for both a propensity and non-propensity use to prove the charged offences. Thus, the exception in s 18(1)(d)(i) was invoked because the evidence to be elicited by the questions was admissible ‘as tending to show that he is guilty or not guilty of the offence with which he is charged’.
[12] R v Brownlow (2003) 86 SASR 114 at [37] per Sulan J (with whom Debelle and Gray JJ agreed).
We dismiss this ground of appeal.
Ground 2
The appellant complains that the trial Judge failed to adequately direct the jury as to the permissible and impermissible uses of the discreditable conduct evidence (including, but not limited to, the prior sale evidence).
The appellant refers to the passages of the summing up set out earlier and numbered 5, 6, 8 and 9 as giving rise to error. The appellant submits the trial Judge failed to adequately direct the jury as to the permissible use of the appellant’s prior participation in the trade of drugs, by reference to his admissions, the cash, the notebook, and the accoutrements or indicia of sale, in proof of the charged offences.
The appellant submits that in the absence of adequate directions as to the permissible use of the evidence, there was a risk that the jury would impermissibly reason that because of the appellant’s general propensity to commit offences, he was more likely have committed the charged offences notwithstanding the trial Judge’s directions not to engage in ‘bad person reasoning’. Indeed, the appellant goes so far as to say that the trial Judge’s directions as to the permissible use of the discreditable conduct evidence invited the jury to invoke impermissible general propensity or ‘bad person’ reasoning.
The appellant contends that the directions did not comply with s 34R of the Evidence Act.
Section 34R(1) requires a judge to ‘identify and explain the purpose for which the evidence may, and may not, be used’. The nature of the directions mandated by s 34R(1) will vary from case to case and will be, to some extent, determined by the issues in dispute at trial.[13]
[13] R v Tran [2017] SASCFC 99 at [163] per Doyle J.
Section 34R directions will be inadequate if they do not properly explain how the discreditable conduct evidence is probative of the charged offence.[14] If the evidence is relevant to showing that a person has been engaged in the business of trafficking in drugs, it is important to explain how the evidence proves that the person was involved in that business and how their participation in turn is relevant to the issues in dispute at trial. As Nicholson J explained in R v Jones:[15]
When read in the context of the summing up as a whole, the references to “trafficking” and the prosecution’s “case” could only have been understood by the jury as a reference to the charge under consideration, that is, trafficking of the 3.96 grams found in the appellant’s possession. There is no reference in the summing up to the discreditable conduct evidence being probative of the appellant conducting a business of trafficking. This notion of business is an important link between the use of the discreditable conduct evidence and proof of the charge. It serves to make out the permissible probative use of that evidence. Absent that link, the discreditable conduct evidence would only have been probative of the charge via impermissible bad person reasoning. It was necessary that the jury reasoned in the former way and not in the latter way.
Whilst the directions explained that the discreditable conduct evidence might be used to prove the offence charged, they did not explain how the evidence might be used in this way much less did they distinguish between the permissible use in this respect, available in accordance with s 34P(2)(b) and the impermissible use in this respect proscribed by
s 34P(1).

(emphasis in original)
[14] R v Jones (2018) 131 SASR 532 at [38]–[40] per Nicholson J (with whom Kourakis CJ and Hinton J agreed).
[15] (2018) 131 SASR 532 at [39]–[40] (with whom Kourakis CJ and Hinton J agreed).
In the present case, the trial Judge correctly characterised both the evidence of past sales (the admissions, separate bundles of cash, and tick list) and the accoutrements or indicia of sale as discreditable conduct evidence. Whilst there may be occasions where the indicia of sale, such as unused plastic resealable bags and kitchen scales, may not necessarily amount to discreditable conduct evidence, this was not such a case. In this matter, the prosecution relied on the combined evidence of past sales, including the appellant’s admissions that he had recently sold to other occupants of the Premises, and the presence of the accoutrements of sale as showing the appellant’s continuity of interest and participation in the trade of methylamphetamine.
We are satisfied that the trial Judge’s directions as to the permissible use of the discreditable conduct evidence were adequate in the circumstances of this case. The trial Judge first explained the relevance of the expert evidence as to how the bundles of cash found in various denominations (which the appellant admitted belonged to him) and the tick list were items commonly associated with people dealing in drugs, as set out in paragraphs numbered 3 and 4 in the trial Judge’s summing up.
The trial Judge then explained that if the jury accepted the discreditable conduct evidence of prior sales (the appellant’s admissions, the cash, and the tick list), they could use that evidence as circumstantial facts from which they could reason that it is more likely that the appellant was involved in the charged offending and reject the innocent explanations of the appellant. This is set out in the paragraphs numbered 5 and 6 in the summing up.
Next, the trial Judge went on to direct the jury that other evidence of the accoutrements of sale (the plastic resealable bags and digital scales) could be permissibly used to reason that the appellant ‘has engaged in drug trafficking’. Therefore, they were entitled to reason that the appellant was ‘someone who was willing and inclined to sell drugs, and this makes it more likely that he acted on that information [sic - inclination] for the purpose of sale rather than for personal use on the occasions charged’. This is set out in the paragraphs numbered 7 and 8 of the trial Judge’s summing up.
In this way, the trial Judge outlined the permissible particular propensity use of the discreditable conduct evidence. It is to be accepted that the trial Judge did not expressly refer to the evidence of past sales being relevant to show that the appellant was engaged in the business of dealing in drugs, or indeed relevant to show that he had an inclination and willingness to act upon his inclination to deal in drugs. However, in this case, the permissible use of the evidence of past sales was inextricably linked with the evidence of the accoutrements of sale in showing the appellant’s continued interest, participation and involvement in the trade of methylamphetamine. The jury was expressly directed that if they accepted that the discreditable conduct evidence established that the appellant was engaged in drug trafficking, they could reason that he was someone who was willing and inclined to sell drugs and use this fact to reason that it was more likely that he committed the charged offending.
In those circumstances, the jury were given adequate directions as to the permissible use of the discreditable conduct evidence in satisfaction of the requirements of s 34R(1) of the Evidence Act.
It would have been preferable if the trial Judge had directed the jury in terms that expressly stated that all the discreditable conduct evidence was relevant to show the appellant’s interest and continued participation in the business of trafficking in drugs, and thus, his particular propensity was to possess drugs for that purpose and to sell drugs. Ideally, the jury should then have been expressly directed that if they found that the appellant was in the business of trafficking drugs, that fact was relevant to the issues in dispute at trial, namely whether the appellant sold methylamphetamine to Ms George and whether he was in exclusive possession of the methylamphetamine in the pouch.
The jury were given fulsome directions as to the impermissible use of the discreditable conduct evidence in orthodox terms, as set out in paragraph number 9 of the trial Judge’s summing up. Given those directions as to the impermissible use of the evidence, we do not consider there is any risk that the jury misused the discreditable conduct evidence.
We dismiss this ground of appeal.
Ground 3
The appellant complains that the trial Judge erred in not directing the jury that they had to find that the appellant was knowingly taking a step in the sale of the drug the subject of Count 1. The appellant submits that this was an error of law resulting in a substantial miscarriage of justice.
Section 32 of the CSA provides:
32—Trafficking
…
(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty:
(a)for a basic offence—
(i)if the offender is a serious drug offender—$75 000 or imprisonment for 15 years, or both; or
(ii)in any other case—$50 000 or imprisonment for 10 years, or both;
(b)for an aggravated offence—$75 000 or imprisonment for 15 years, or both.
…
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
…
Section 32 of the CSA must be interpreted in light of s 4, unless contrary intention appears, which defines trafficking in a controlled drug as follows:
traffic in a controlled drug means—
(a)sell the drug; or
(b)have possession of the drug intending to sell it; or
(c)take part in the process of sale of the drug;
The concept of taking part in the process of the sale of a drug is defined in

s 4(5) of the CSA:
(5)For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a)storing the drug;
(b)carrying, transporting, loading or unloading the drug;
(c)packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)guarding or concealing the drug;
(e)providing or arranging finance (including finance for the acquisition of the drug);
(f)providing or allowing the use of premises or jointly occupying premises.
(emphasis added)
The appellant submits that under s 4 of the CSA, in order to take a step in the process of sale, the person must have done so for the purposes of sale. Therefore, the appellant contends that absent knowledge on the part of the person said to be taking part in the process of sale of a controlled drug, it could not be said that the person did so for the purposes of sale.
The offence of trafficking does not allow for accessorial liability.[16] As such, the appellant submits that each person involved in trafficking must possess the requisite state of mind and that such a state of mind cannot be imputed on the basis of participation in a joint enterprise nor through aiding and abetting another person with that intention.
[16] Controlled Substances Act 1984 (SA) s 33S.
The appellant argues that this construction of ss 32 and 4 of the CSA is the orthodox construction regularly employed by the court. The appellant submits that in construing the phrase ‘take part’ as a ‘step’, this Court has regularly approved directions that include proof of knowledge of an accused that they are taking part.[17]
[17] See, eg, R v Tassone [2016] SASCFC 146 at [57] per Nicholson J (with whom Kelly J and Hinton J agreed); R v Pringle [2017] SASCFC 9 at [120] per Nicholson J (with whom Kelly J and Hinton J agreed); R v Pali (2018) 132 SASR 201 at [69] per Peek J (with whom Kelly J and Hinton J agreed).
In this matter, Count 1 alleged that the appellant supplied an eight ball or

3.48 g of methylamphetamine to Ms George in exchange for $700 cash, which consisted of the marked $50 notes that were given to Ms George by the undercover police officer. The appellant submits that for the jury to convict him of Count 1, it was necessary for it to find proved beyond reasonable doubt, not just that the appellant physically took a step in the process of sale by supplying methylamphetamine to Ms George (in exchange for cash), but that he did so knowing it was for the purposes of sale (that is, by Ms George to the undercover officer). The appellant contends that the absence of such directions was an error of law and has resulted in a substantial miscarriage of justice.
We do not accept that contention.
The appellant’s submissions on this ground of appeal do not reflect the way the trial was conducted on Count 1. The key forensic issue in the trial was not whether the appellant was knowingly taking part in the sale by Ms George to the undercover police officer, it was simply whether he sold the drug to Ms George. If so proven, Count 1 would be made out. It was never the prosecution case that the appellant was purporting to transact with the undercover police officer. The prosecution did not allege that the appellant was aware of the arrangement or connection between Ms George and the undercover police officer. Rather, the prosecution simply alleged that as a matter of fact, the police officer had placed an ‘order’ for the drug, which caused Ms George to purchase it from the appellant using the money supplied by the undercover police officer.
The crucial allegation which formed the basis of Count 1 was that the appellant conducted a sale of the drug with Ms George, who happened to be purchasing at the behest of an undercover officer (unbeknownst to the appellant). This was the prosecution case the appellant had to meet at trial and upon which he conducted his defence.
At trial, there was no dispute that the undercover police officer had placed an order for the drug and provided Ms George with $850 to purchase the drug. There was no dispute that within minutes of Ms George having attended the Premises and having met with the appellant, she provided the methylamphetamine to the undercover police officer. There was no dispute that $700 of the cash provided by the undercover officer to Ms George to purchase the drug was a very short time later found in the appellant’s possession. Indeed, the appellant admitted in evidence that on 21 November 2018 Ms George gave him $750 (albeit for a concreting job performed by him).
In the prosecutor’s opening address, after referring to the elements of the offence of trafficking in a controlled drug, the allegation in Count 1 was described in the following terms, with a focus on the transaction between the appellant and Ms George:
On the prosecution case the accused Mr Hammer supplied the illicit drugs to Ms George in exchange for the cash provided by the undercover police officer. This transaction is the subject of count 1 to which you have heard the accused plead not guilty this morning.
…
In this case with respect to count 1, which is the transaction involving Ms George and the undercover police officer, it is alleged that the accused supplied an 8-ball or 3.5 g of methylamphetamine to Ms George in exchange for the $700 cash which consisted of the marked $50 notes that were given to Ms George by the undercover police officer.
Although there is no direct evidence that the accused supplied the drugs to Ms George, police officers observed a silver Hyandai [sic] Accent which Ms George was travelling in around Murray Bridge that day pull into the driveway of … the accused's premises, at around 1.21 p.m. and leave about 10 minutes later, returning to the location of the undercover police officer. The prosecution suggest that during this short visit Ms George obtained the drugs from the accused and gave him the marked $700 cash which was later found concealed under the car battery of the orange Valiant.

In relation to Count 1, the focus of the prosecution case was proving that the appellant supplied the methylamphetamine to Ms George in exchange for $700 (or sold the methylamphetamine to Ms George). In proof of this allegation, the prosecution relied on the agreed facts as to the timing of Ms George’s attendance at the Premises with the cash provided by the undercover police officer, of which the serial numbers had been recorded, and the subsequent provision by Ms George of 3.48 g of methylamphetamine (an eight ball) to the undercover police officer. They also emphasised that the money with the recorded serial numbers was found a short time later secreted under the battery of the appellant’s car. The appellant did not dispute that he had placed the money in that location. Further, the prosecution relied on evidence that the appellant was involved in the business of dealing in drugs and was in possession of many of the accoutrements of sale. By contrast, there was no evidence led in relation to the appellant’s state of mind or knowledge that Ms George was conducting a transaction on behalf of another. This was not an issue at all in the trial.
During the course of the prosecutor’s cross-examination of the appellant, the key allegation that he sold the methylamphetamine to Ms George was made plain:
QAnd the $700 that she gave you on the day that police arrived –
A750.
Q- were in exchange for drugs you sold to her, weren’t they.
ANo, 750 actually.
QWas it 750 or was it more than that.
ANo, it was 750 on that day.
…
QIs it the case that you sold her two eight balls on that day.
AIncorrect.
QAnd only one of those ended up going to the undercover police officer.
ANo.
QBecause, of course, you weren’t to know that the $750 or $700 had serial numbers that were marked by police earlier. You weren’t to know that, were you.
AWell, I didn’t know. No.
…
QIs the truth that you took out an eight ball or perhaps two eight balls from your larger stash and sold that to Ms George –
ANo.
Q- and that’s why she was at your house.
ANo, no.
QAnd that's why she was able to then onsell drugs to an undercover police officer minutes later after [leaving].
ANo. She could have had them on her before she come there.
(emphasis added)
It can be seen from the prosecutor’s cross-examination that it was specifically put to the appellant that he had sold ‘an eight ball or perhaps two eight balls’ of methylamphetamine to Ms George and that he was not to know that the cash for the sale came from an undercover police officer. It was not suggested to the appellant that he knew Ms George would onsell the methylamphetamine to another person, that is the undercover police officer.
In the prosecutor’s closing address, it was made plain that in relation to

Count 1 and the second ‘trafficking’ element, the crucial allegation for the jury to resolve was whether the appellant ‘gave Ms George the drugs in exchange for the marked cash’. The prosecutor said:
It is a matter for you but the prosecution submit that the only rational inference to be drawn from the attendance of Ms George, the sale of the drugs to the undercover officer and the conduct of the accused at the Valiant, along with all the other items at the premises and the admissions from the accused, is that the accused supplied the eight ball of methylamphetamine to Ms George in exchange for the cash.
Similarly, the focus of defence counsel’s closing address was whether the prosecution had proved that the appellant sold the methylamphetamine to

Ms George. It was submitted that there was no direct evidence that he sold methylamphetamine to Ms George (or in the words of defence counsel, that he ‘sells drugs to [Ms George], and [Ms George], as part of that transaction, gives him the money that was being tracked as part of the covert operations’) and that it was a reasonable possibility that someone else at the Premises had sold Ms George the drugs. Defence counsel also commented that there was no direct evidence that Ms George purchased the drugs at the Premises as ‘no-one saw this sale that is the subject of count 1’. The appellant’s case on Count 1 was a blanket denial of his involvement in the sale; that is, he did not sell any drugs to Ms George and someone else (either at the Premises or earlier) might have sold them to her. The issue now raised on appeal of whether the prosecution had proved that the appellant supplied the drugs in exchange for cash to Ms George for the purpose of sale to another was never canvassed.
In his summing up, the trial Judge directed the jury on the second ‘trafficking’ element of Count 1 in the following way:
In respect of count 1, the prosecution say that Mr Hammer took part in the process of the sale of 3.48 g of the drug methylamphetamine to the undercover police officer. A person takes part in the sale of a drug if they participate in a step, including storing, guarding or concealing the drug for the purpose of selling the drug.
The prosecution says that the accused took part in the sale of the drug to the undercover officer on 21 November 2018 because he supplied Ms George at his home with an 8-ball or 3.48 g of the drug methylamphetamine in exchange for $700 cash consisting of 14 $50 notes given to Ms George by the undercover officer.
While the trial Judge directed the jury in terms that the appellant ‘took part in the process of sale’ and referred to the undercover police officer, this was not in fact the prosecution case. Rather, the trafficking allegation in relation to Count 1 was put on the basis that the appellant sold methylamphetamine to Ms George. As discussed earlier, it is clear the prosecution case on the second ‘trafficking’ element was whether the appellant supplied the methylamphetamine in exchange for $700 or sold the methylamphetamine to Ms George. As much was evident by reference to the prosecutor’s opening address, the trial evidence including the appellant’s evidence and the prosecutor’s cross-examination of him, and the closing addresses of counsel. The issue for the jury was in fact whether the prosecution had proved the appellant took part in the transaction at all; that is, sold the methylamphetamine to Ms George. That was the basis upon which Count 1 was put and contested at trial. If the jury were so satisfied beyond reasonable doubt, the second element of the offence was established.
In the circumstances of this case, we do not consider that the trial Judge’s failure to refer to the requirement that the appellant must have ‘knowingly’ taken a step in the process of sale of the controlled drug constitutes an error of law for the following reasons.
The trial Judge’s direction as to the second ‘trafficking’ element whereby the prosecution alleged that the appellant ‘took part in the process of sale’ to the undercover police officer by supplying methylamphetamine to Ms George in exchange for $700, in effect, encapsulated what was in fact the prosecution case. Namely, that the appellant sold methylamphetamine to Ms George for $700.
The trial Judge had also earlier directed the jury, in relation to the second trafficking element of Count 1, that the word traffic ‘can mean to sell the drugs, or to have possession of the drug intending to sell it, or to take part in the process of the sale of the drug’.
In returning a verdict of guilty on Count 1, the jury clearly found proved that the appellant sold Ms George methylamphetamine for $700 and rejected the appellant’s evidence, including his innocent explanation for the cash (with the recorded serial numbers) located under his car battery. If the jury were satisfied that the appellant sold Ms George the methylamphetamine, the second element was proved.
Further, the trial Judge raised the proposed legal directions as to the elements of the offence with counsel before he commenced his summing up. After the trial Judge completed his summing up, defence counsel did not seek any redirection on the point now complained about on appeal. That is a relevant factor to be considered on appeal and an indication that the trial Judge’s directions on the law were sufficient.[18]
[18] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [60] per Kiefel, Bell and Keane JJ; Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894 at [54] per Kiefel CJ, Keane and Steward JJ.
In those circumstances, we do not consider the trial Judge’s failure to refer to the requirement that the appellant must have ‘knowingly’ taken a step in the sale of the controlled drug constitutes an error of law.
Nor do we consider that the trial Judge's misstatement of the prosecution case on Count 1 in his summing up resulted in a miscarriage of justice. As discussed earlier, the prosecution case on the second trafficking element was clear. It was the case the appellant answered at trial. The trial Judge’s directions as to the second ‘trafficking’ element had embedded within it the crucial allegation the prosecution was required to prove, namely that the appellant sold the methylamphetamine to Ms George. For those reasons, there was no miscarriage of justice.
We do not consider the trial Judge’s directions on the elements of Count 1 constitute an error of law or resulted in a miscarriage of justice.
For those reasons, we dismiss this ground of appeal.
Conclusion
We grant permission to appeal on Ground 2 but dismiss the appeal.

See, eg, The Queen v Conley (1982) 30 SASR 226; Harriman v The Queen (1989) 167 CLR 590; R v Sultana (1994) 74 A Crim R 27; R v Long (2002) 137 A Crim R 263; R v Soteriou (2013) 118 SASR 119; The Queen v Falzon (2018) 264 CLR 361; R v Jones (2018) 131 SASR 532 at [21] per

Nicholson J (with whom Kourakis CJ and Hinton J agreed).