Kroni v The Queen - [2021] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
KRONI v THE QUEEN
[2021] SASCFC 15
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice Livesey)
2 March 2021

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
The appellant is an Albanian national who has held a protection visa entitling him to permanent residency in Australia since 2010. The visa was subject to the appellant remaining of good character pursuant to s 501 of the Migration Act 1958 (Cth).
In August 2017, the appellant was arrested after a search revealed he had one ounce of cocaine in his possession. The appellant was charged with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The appellant did not dispute that he was in possession of the cocaine, but denied that he intended to sell any of it. As the presumption in s 32(5) of the Controlled Substances Act 1984 (SA) was enlivened, the appellant bore the onus of establishing that his possession of the cocaine was not for the purpose of sale. After a trial by judge alone, the appellant was found guilty of trafficking a controlled drug and sentenced to four years' imprisonment with a non-parole period of 20 months. The trial Judge declined to suspend the sentence or order that it be served on home detention.
The appellant appealed against conviction on the basis that the trial Judge failed to adequately direct herself as to the permissible and impermissible use of evidence as to discreditable conduct, gave inadequate reasons for finding that the appellant failed to displace the statutory presumption of sale, and erred regarding a range of other matters. The appellant sought permission to appeal against sentence on the bases that the trial Judge failed to have regard to the risk that the appellant would be deported, or subjected to indefinite immigration detention, and in failing to order home detention.
Held, dismissing the appeal against conviction:
1. Per Kourakis CJ and Doyle J, the evidence of the cash, the mobile phones found on the appellant and at his home, the heat sealing machine and the plastic was admitted and treated at trial as discreditable conduct evidence pursuant to s 34P of the Evidence Act 1929 (SA).
2. Per Kourakis CJ and Doyle J, as such, the trial judge erred in not extending her s 34R direction to the items of discreditable conduct evidence other than the cash. However, in the circumstances, this error did not occasion any substantial miscarriage of justice.
3. Per Livesey J, the Judge gave a s 34R direction in respect of the appellant’s possession of cocaine and cash. The evidence of the appellant’s possession of cocaine, cash, multiple mobile phones, a heat sealing machine and rolls of plastic was not tendered pursuant to s 34P. That evidence was, in the particular circumstances of this case, not evidence tending to suggest that the appellant had engaged in discreditable conduct within the meaning of s 34P of the Evidence Act 1929 (SA). Accordingly, no s 34R direction was required. Observations made about the conduct of this trial and the circumstances in which a s 34R direction will be prudent, even if not strictly required by s 34P. Observations made about the need for a s 34R direction even if the evidence is only used as to credit.
4. Per Livesey J, the possession of “tools of the trade” by a defendant will not necessarily demonstrate that the defendant has engaged in discreditable conduct within the meaning of s 34P of the Evidence Act 1929 (SA). Evidence of the appellant’s possession of items such as multiple mobile phones is some evidence of the capacity, and therefore some circumstantial evidence of the intention, to engage in the charged offence.
5. Per Livesey J, if, contrary to these reasons, a s 34R direction was required in respect of the appellant’s possession of multiple mobile phones, a heat sealing machine and plastic, this is a proper case for the application of the proviso because there has been no substantial miscarriage of justice.
6.      Per Livesey J (Kourakis CJ and Doyle J agreeing), while the trial Judge’s reasons were, in some respects, less than explicit, a reading of the whole of the reasons discloses that her reasoning and reasons were not inadequate.
7.      Per Livesey J (Kourakis CJ and Doyle J agreeing), there is nothing in the reasons of the trial Judge to suggest that she conflated the rejection of the appellant’s evidence with the overall determination of the second element of the offence. The trial Judge did not err in rejecting the evidence of the appellant's domestic partner or in rejecting the appellant's evidence.
Held, granting permission to appeal on ground 5, but dismissing the appeal against sentence:
1. Per Livesey J (Doyle J agreeing), the trial Judge specifically averted to the risk of deportation and detention and correctly recognised that it was mandatory for the Minister to cancel the appellant’s visa. However, as it is not “known to the court” what the outcome of the Minister’s exercise of discretion will be once the appellant seeks the revocation of that cancellation, the Judge did not err in declining to take the risk of deportation or permanent detention into account. Observations made about the conflict in the authorities regarding the risk of deportation, Guden v The Queen (2010) 28 VR 288 followed.
2.      Per Kourakis CJ, the prospect of spending a substantial period of time in migration detention may be a relevant consideration and may moderate a sentence, but a reduced sentence on account of that possibility in this case would render the sentence manifestly inadequate.
3. Per Livesey J (Kourakis CJ and Doyle J agreeing), while there are differences between the former and current Sentencing Act 2017 (SA), there is no relevant difference on the question of the availability of home detention for a trafficking offence and the trial Judge made no error in rejecting that sentencing option.
Migration Act 1958 (Cth) s 501, s 36; Controlled Substances Act 1984 (SA) s 32(3), s 32(5), s 52E; Criminal Procedure Act 1921 (SA) s 158(2); Evidence Act 1929 (SA) s 34R, s 34P, s 34Q; Sentencing Act 2017 (SA) s 17, s 71, s 11(1), referred to.
R v Arrowsmith (2018) 333 FLR 415; R v Berlinsky [2005] SASC 316; Douglass v The Queen (2012) 86 ALJR 1086; Filippou v The Queen (2015) 256 CLR 47; R v Kroni [2019] SADC 46; Liberato v The Queen (1985) 159 CLR 507; R v Shresthra (1991) 173 CLR 48; R v Taheri [2017] SASCFC 115; R v Zhang (2017) 265 A Crim R 113, discussed.
ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407; Ali v The Queen [2014] NSWCCA 45; Amaca Pty Ltd v Werfel [2020] SASCFC 125; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Browne v Dunn (1894) 6 The Reports 67; Cohen v Western Australia (No 2) (2007) 180 A Crim R 348; Dansie v The Queen [2020] SASCFC 103 ; Dauphin v The Queen [2002] WASCA 104; Devries v Australian National Railways Commission (1992) 177 CLR 472; DL v The Queen (2018) 226 CLR 1; Edwards v The Queen (1993) 178 CLR 193; Fleming v The Queen (1998) 197 CLR 250; Guden v The Queen (2010) 28 VR 288; Hicking v Western Australia (2016) 260 A Crim R 33; Harriman v The Queen (1989) 167 CLR 590; Houghton v Western Australia (2006) 32 WAR 260; Ibrahim v Police [2013] SASCFC 70; Lane v The Queen (2018) 265 CLR 196; Lindsay v The Queen (2015) 255 CLR 272; Murray v The Queen (2002) 211 CLR 193; Perara-Cathcart v The Queen (2017) 260 CLR; Ponniah v The Queen [2011] WASCA 105; R v Blackwell (1996) 87 A Crim R 289; R v BNM [2020] SASCFC 10, [52]; R v Camarinha [2018] SASCFC 118; R v Chi Sun Tsui (1985) 1 NSWLR 308; R v Dansie [2019] SASC 215; R v Dell (2016) 126 SASR 571; R v Falzon (2018) 264 CLR 361; R v Filipponi (2016) 126 SASR 464; R v Forrest (2016) 125 SASR 319; R v Jones (2018) 131 SASR; R v Kamleh [2003] SASC 269; R v Keyte (2000) 78 SASR 68; R v Latumetan [2003] NSWCCA 70; R v Leka (2017) 267 A Crim R 432; R v McGhee (1993) 61 SASR 208; R v Mirzaree [2004] NSWCCA 315; R v MJJ (2013) 117 SASR 81; R v Olbrich (1999) 199 CLR 270; R v Pham [2005] NSWCCA 94; R v Pringle [2017] SASCFC 9; R v Riche [1977] 2 NSWLR 876; R v Schelvis (2016) 263 A Crim R 1; R v Simard [2003] 1 Qd R 76; R v Singh [2019] SASCFC 51; R v Soteriou (2013) 118 SASR 119; R v UE [2016] QCA 58; Reid v Kerr (1974) 9 SASR 367; Selig v Hayes (1989) 52 SASR 169; Smith v NSW Bar Association (1992) 176 CLR 256; Stead v SGIC (1986) 161 CLR 141; Thompson and Wran v The Queen (1968) 117 CLR 313; Weiss v The Queen (2005) 224 CLR 300; Zoneff v The Queen (2000) 200 CLR 234, considered.

KRONI v THE QUEEN
[2021] SASCFC 15
Court of Criminal Appeal: Kourakis CJ, Doyle and Livesey JJ

KOURAKIS CJ: I gratefully adopt the summary of the evidence, the Judge’s directions and the contentions on the appeal set out in the reasons for judgment of Livesey J.
Notwithstanding the absence of a ruling, it is plain from the course of the trial that the evidence of the appellant’s possession of $1,330 in cash, five mobile phones and the heat sealing paraphernalia, was received without objection for the purpose of establishing the appellant’s involvement in the trafficking of cocaine before his possession of the 27.1 grams of cocaine in August 2017. On appeal it is accepted that the evidence is discreditable conduct evidence and that it was properly admitted for that purpose. By ground 1 the appellant complains only that the Judge’s directions on that discreditable conduct evidence were inadequate.
Evidence of the possession of the telephones, cash and heat sealing paraphernalia is discreditable conduct evidence because it does tend to suggest that the appellant had engaged in drug trafficking other than by his possession of the 27.1 grams of cocaine found by the police. It does so, in the sense of raising a suspicion of his prior engagement in discreditable conduct, because those items are often used in connection with drug trafficking. Of course, a person may have cash and a number of mobile phones for an innocent reason or as a relic of historic activity. However, the phrase ‘tending to suggest’ casts a wide net for the purposes of applying Part 3 Division 3 of the Evidence Act 1929 (SA) (the Evidence Act) for good reason. Division 3 is intended to safeguard against the prejudicial effect of discreditable conduct evidence. Evidence may, therefore, ‘tend to suggest’ engagement in discreditable conduct even if it would not support an inference to that effect. The Director and the appellant were correct to proceed on the basis that the evidence is discreditable conduct for the purpose of s 34P of the Evidence Act. It was therefore necessary for the evidence of the appellant’s possession of the mobile phones and the cash to meet the high probative standard demanded by s 34P. As I earlier observed that was not put in issue at trial or on appeal. It is not necessary, therefore, to more closely examine that question.
It was also necessary that the Judge comply with s 34R of the Evidence Act by identifying the permissible use or uses for which the discreditable conduct evidence was received, and warning against its impermissible uses. By ground 1 the appellant contends that the Judge failed to do so. The Judge did warn herself that it was impermissible to reason from the appellant’s possession of a substantial amount of cash that his character was such that he was more likely to commit the offences.[1] The Judge also recorded in her reasons the prosecution contention that an inference could be drawn that the cash was either the proceeds of earlier sales or a float to purchase more drugs, or both, which the appellant held on him because he was a engaged in the drug trade.[2] However, the Judge accepted that the money may have been the proceeds of a substantial win at the casino,[3] and therefore had no basis from which to draw that inference. There is no risk of miscarriage in the Judge’s failure to observe that, if she had found otherwise, she could properly have used the possession of cash as evidence of the appellant’s prior participation in the drug trade. It would have been mere surplusage to do so.
[1]     R v Kroni [2019] SADC 46, [19].
[2]     R v Kroni [2019] SADC 46, [17].
[3]     R v Kroni [2019] SADC 46, [131].
On the other hand, the Judge found that the quantity and value of the cocaine, the way it was packed, the bus trip to Melbourne and his possession of the mobile telephones ‘all tell against’ the appellant’s evidence that the cocaine was for his personal use only.[4] A police officer had given evidence that each of those circumstances was indicative of participation in the illicit drug trade. Moreover, the prosecutor, in his address, relied on those circumstances as supporting an inference that the appellant was at the time a drug trafficker, and that he therefore intended to traffick the cocaine found in his possession. Even though the Judge did not expressly step through the use of the evidence in that way, when viewed against the prosecution evidence and submissions, it is plain enough that the Judge adopted that reasoning with respect to the mobile telephones. It follows that the Judge identified, and indeed acted on, a use of the evidence which the appellant accepts was permissible.
[4] R v Kroni [2019] SADC 46, [164].
The Judge did not expressly warn herself against reasoning, from the appellant’s possession of the mobile telephones, that he was the kind of person who was inclined to engage in crime generally, as she had with respect to the appellant’s possession of the cash. Despite this, there is no reason to think that the Judge considered that the ‘bad person’ reasoning, which she expressly disavowed with respect to the cash, was a permissible use of the mobile telephone evidence.
The Judge did not expressly have regard to the possession of the heat sealing paraphernalia in her reasoning other than on the question of credit arising, not from possession of the equipment in itself, but from the answers to questions put to the appellant and Ms Schultz, about why it was kept where it was. The heat sealing equipment had no realistic use in the trafficking of cocaine even though it might have been used for trafficking in cannabis. It is not surprising therefore that the Judge did not use it as probative of any fact in issue. There is no rational way in which the evidence of the heat sealing equipment could be used to prove the offence charged and no reason to apprehend that the Judge had any regard to it. Again, there is no reason to think that the Judge may have thought it permissible to apply ‘bad person’ reasoning to it.
There is, therefore, no reason to apprehend any miscarriage of justice in the failure of the Judge to fully comply with s 34R of the Evidence Act.
I would dismiss the appeal on ground 1.
By way of post‑script to that ground, I observe that the evidence of possession of the mobile telephones and the cash was circumstantial evidence that the appellant had possession of the 27.1 grams of cocaine for the purposes of sale other than by reasoning from an anterior involvement in the drug trade. The appellant’s continuing possession of the telephones, wherever they came from, showed that the appellant had the capacity to traffick the cocaine and arrange sales in a way which reduced the risk of detection by the police. The appellant’s possession of the cash made it unlikely that the cocaine was only for his personal use, because putting to one side an evaluation of his claimed success at the casino, it is improbable that he would have had that amount of cash after purchasing the cocaine from a supplier if the cocaine which he procured was for his personal use only. Moreover, if the charge had been more widely framed as one of taking part in the process of sale, leading up to and including his possession of the cocaine, an inference could be drawn that the cash was the proceeds of recent sales of a part of the cocaine which was found in his possession. The admission of the evidence for those more limited purposes stands on a much stronger foundation than the anterior drug trafficking use on which the prosecution relied. However, no miscarriage of justice could possibly have been caused by a failure to refer to those uses at trial.
I would also dismiss the appeal on ground 2. The central forensic issue at trial was the question of fact, whether the appellant’s testimony that he intended to personally use all of the cocaine found in his possession should be accepted, supported as it was in some small respects by his partner, Ms Schulz. The Judge explained why she did not believe the appellant. The particulars of the ground that the Judge’s reasons were inadequate expose that the appellant’s real complaint is that the Judge placed too much weight on some incongruities and inconsistencies in the appellant’s evidence and did not ‘adequately expose’ or ‘identify how’ her Honour came to give so much weight to those inconsistencies. The Judge set out in considerable detail the aspects of the appellant’s testimony which she could not accept and which led her to reject his account of personal use. I do not find some of the detail of the appellant’s account of his reasons for going to, and movements in, Melbourne as improbable as the Judge found them to be. However, the primary reason for the Judge doubting the appellant’s evidence was that the general circumstances of his life, including his cash reserves and the evidence of Ms Schulz that she had rarely seen him use cocaine, were inconsistent with the appellant’s testimony that he was a substantial user of cocaine. The Judge’s reasons adequately explain why her Honour was just not satisfied on the balance of probability that the cocaine was for the appellant’s own use.
I agree that grounds 3 and 4 should be dismissed for the reasons given by Livesey J.
I would refuse permission to appeal against sentence. I accept that the consequences of a conviction on a defendant’s migration status is, in a general sense, a relevant aspect of his or her personal circumstances. However, it will generally not make a material difference to the sentence which should be imposed.
No sentence other than a term of imprisonment could properly be imposed in the circumstances of this case. A material reduction of that sentence for the mere possibility that the appellant may be kept in migration detention for an extended period of time, would have rendered the sentence manifestly inadequate. If the sentence were reduced and the appellant is not detained in migration detention for very long, the punitive and deterrent purposes of sentencing would needlessly have been compromised. Moreover, the primary reason for migration detention, if it transpires, will have been his migration status. Indeed, the length of the detention may well be increased by his own efforts to persuade the Minister not to cancel his visa and/or by challenging a decision to do so judicially. The appellant is, of course, entitled to take those steps, but again, the primary cause of any extended migration detention will be his desire to stay in Australia. I accept that the prospect of a substantial period of migration detention may, in some cases, moderate a very long, close to crushing, sentence which the circumstances of the offending would otherwise call for. However, that is not this case.

The cancellation of the appellant’s visa and his return to Europe, and his anxiety about that prospect, may, in itself, cause some hardship, but not of a degree that would warrant a reduction below the sentence imposed by the Judge. Different considerations may apply if a threatened repatriation would seriously imperil a defendant. However, no evidence was adduced, or submission made, about the risk of harm to the defendant if he were to be returned to Albania now, a decade after he fled that country.
Having regard to all the circumstances of the offence, and all of the appellant’s personal circumstances, including his migration status, I would not impose any lesser sentence.
I would dismiss the appeal.
DOYLE J: I have had the advantage of reading in draft the reasons of Livesey J. I gratefully adopt his summary of the issues arising in the appeal, and the circumstances in which they fall to be decided.
In relation to the appeal against conviction I agree with Livesey J’s reasons for rejecting grounds of appeal 2, 3 and 4. In relation to the first ground of appeal, which contends that the trial judge failed to adequately direct herself as to the permissible and impermissible use of the discreditable conduct evidence as required by s 34R of the Evidence Act 1929 (SA), I prefer to express my own reasons.
For the reasons set out below, I consider that the trial judge failed to comply with her obligations under s 34R. However, I would apply the proviso in respect of this ground of appeal, with the result that I would ultimately dismiss the appeal against conviction.
In relation to the application for permission to appeal against sentence, I agree with the reasons of Livesey J and the orders he has proposed.
Ground 1: evidence of discreditable conduct
As detailed by Livesey J, the evidence adduced by the prosecutor on the issue of whether the appellant intended to sell any of the cocaine in his possession included evidence that:
·at the time of his arrest, the appellant had $1,330 in cash in his possession;
·the appellant had two mobile phones with him, and three more were found at his home;
·a heat sealing machine was located at the appellant’s home; and
·two rolls of plastic, and a plastic wrap, suitable for use with the heat sealing machine, were also located at the appellant’s home.
In addition to these items of evidence, the prosecution also led evidence from a relevantly qualified police officer (Detective Pedder) to the effect that items often found at the scene of drug-related crimes included large amounts of cash and multiple mobile phones. Detective Pedder also gave evidence that he had found heat sealing machines similar to the type found at the appellant’s home at such crime scenes, and that they were used to package illicit drugs, using plastic wrapping.
The above evidence was relied upon by the prosecution as evidence probative of the appellant’s involvement in a drug trading enterprise; or as it is sometimes referred to in the authorities, evidence of the indicia, accoutrements or paraphernalia of a drug trading enterprise.
The relevance and admissibility of such evidence is well recognised. As the High Court recently summarised in R v Falzon:[5]
Where an accused is found in possession of a prohibited drug and is charged with its possession with intent to sell, proof that the accused was, at the time of possession, engaged in a business of selling drugs or drug trafficking is evidence logically probative of the fact that the accused's purpose in possessing the drug on that occasion was the purpose of sale. Accordingly, as has been established by a succession of Australian intermediate appellate court decisions[6], evidence that an accused who is found in possession of a prohibited drug is also found in possession of the accoutrements of a drug trafficking business, such as scales, re‑sealable plastic bags, firearms, a multiplicity of mobile telephones or significant quantities of cash, is admissible in proof of the charge. As Gleeson CJ explained in Sultana[7], it is circumstantial evidence which, in conjunction with the fact of possession and, possibly, other evidence, may found an inference that the accused was engaged in the business of selling drugs. And that is so notwithstanding that such evidence may also be indicative of a tendency towards crime.
[5] R v Falzon (2018) 264 CLR 361 at [1] (the Court).
[6] See, eg, R vSultana (1994) 74 A Crim R 27 at 28-29 per Gleeson CJ (Handley JA agreeing at 32), 36-37 per Sully J; Blackwell (1996) 87 A Crim R 289 at 290 per Duggan J (Prior J and Debelle J agreeing at 294); R v Edwards [1998] 2 VR 354 at 367-370 per Eames A-JA (Hayne JA and Batt JA agreeing at 356); Evans v The Queen [1999] WASCA 252 at [31], [38] per Malcolm CJ (White J agreeing at [66]); at [65] per Anderson J; Radi v The Queen [2010] NSWCCA 265 at [39] per Hoeben J (Simpson J and R A Hulme J agreeing at [1], [58]); Tasmania v Roland (2015) 252 A Crim R 399 at 401-402 [4]; cf R v Lewis (1989) 46 A Crim R 365. See also R v McGhee (1993) 61 SASR 208 at 210-211; R v O'Driscoll (2003) 57 NSWLR 416 at 432 [77] per Spigelman CJ (Carruthers A-J agreeing at 443 [149]).
[7] (1994) 74 A Crim R 27 at 28-29.
The Court later elaborated as follows:[8]
Whelan JA was plainly correct that the evidence of the cash found at the respondent's home at Essendon was admissible[9] as an item of circumstantial evidence that, in conjunction with evidence of other indicia of drug trafficking, was capable of founding the inference that, as at 17 December 2013, the respondent was carrying on a business of trafficking in cannabis, and thus that the respondent's purpose in possessing the quantities of cannabis found at the Sunshine North and Sydenham properties was the purpose of sale.
Contrary to the majority's apparent process of reasoning, the fact that, if the cash came from trafficking, it must have come from trafficking in cannabis other than the cannabis found on 17 December 2013, does not detract from the strength of the inference that the cash was part and parcel of the business of drug trafficking which the respondent was carrying on as at 17 December 2013. To the contrary, the fact that the cash was likely to have come from previous sales of cannabis – a conclusion strengthened by the expert evidence of drug traffickers' inclinations to transact drug deals in cash and the tax return evidence of the respondent's failure to declare the cash as part of his assessable income – fortified the probability of the respondent making regular and recurring sales of cannabis, and thus that, as at 17 December 2013, the respondent had been carrying on a continuing business of trafficking in cannabis. More specifically, the fact that the cash was likely to have come from previous sales of cannabis logically bespoke the probability that the respondent kept the cash on hand on 17 December 2013 as an asset of a continuing business of trafficking in cannabis in the course of which he intended to sell the cannabis that he possessed on 17 December 2013. The significance which the majority attributed to the fact that the prosecution had eschewed reliance on a Giretti count was, as Whelan JA observed, misplaced.
For the same reason, the majority were wrong in holding that the only relevance of the evidence of the respondent's possession of the cash was "rank propensity reasoning, or tendency reasoning"; by which their Honours are taken to have meant reasoning to the effect that, because the respondent was shown to have committed past acts of trafficking in cannabis, he could be perceived as the sort of person who was likely or more likely to commit the acts of trafficking with which he was charged[10]. Granted, the evidence of the respondent's possession of the cash implied that the respondent had committed previous acts of trafficking, but the purpose of its admission was not to establish that the respondent was the sort of person who was disposed to commit acts of trafficking. Rather, as the trial judge made clear in his ruling, and Whelan JA correctly recognised in his judgment, the purpose for which the evidence was admitted, and the way in which the Crown relied upon it, was to establish that the respondent was in fact carrying on a business of trafficking and, therefore, that the respondent's purpose in possessing the cannabis of which he was found to be in possession on 17 December 2013 was the purpose of sale.
[8] R v Falzon (2018) 264 CLR 361 at [40]-[42] (the Court).
[9] Evidence Act, ss 55, 56.
[10] BBH v The Queen (2012) 245 CLR 499 at 525 [70]-[71] per Hayne J.
In support of its reasoning, the High Court referred with approval to several decisions confirming the admissibility and relevance of evidence of a person accused of drug trafficking being in possession of cash, including the decisions of this Court in R v McGhee[11] and R v Blackwell.[12]While the amount of the cash found at the defendant’s home in R v Falzon was very substantial ($120,800), the amounts involved in several of the cases mentioned in the Court’s reasoning were relatively quite modest.[13]
[11] R v McGhee (1993) 61 SASR 208.
[12] R v Blackwell (1996) 87 A Crim R 289.
[13] See, eg, Evans v The Queen [1999] WASCA 252; Radi v The Queen [2010] NSWCCA 265; R v Edwards [1998] 2 VR 354.
I would refer also in this context to the recent decisions of this Court in relation to the admissibility and relevance of evidence of the indicia of a drug trading enterprise such as R v Soteriou,[14] R v Jones,[15] R v Singh[16] and BNM v The Queen.[17]
[14] R v Soteriou (2013) 118 SASR 119 at [27], [32].
[15] R v Jones (2018) 131 SASR 532 at [21].
[16] R v Singh [2019] SASCFC 51 at [73].
[17] BNM v The Queen [2020] SASCFC 10 at [54]-[55].
In each of these cases, the evidence was treated as discreditable conduct evidence for the purposes of s 34P(1) of the Evidence Act; that is, “evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence”.
I acknowledge that s 34P(1) refers to evidence that a defendant “has engaged” in discreditable conduct, and hence that is probative of some past conduct on the part of the defendant. However, the evidence need not be probative of any particular identifiable transaction or transactions for it to qualify as discreditable conduct evidence for the purposes of that section. While evidence of past transactions (for example, a tick list, or drug-related messages on a mobile phone) will ordinarily enhance the probative force of the evidence, it is not necessary for such evidence to qualify as discreditable conduct evidence. It is enough for that purpose that the evidence is probative of the defendant’s current involvement in a drug trading enterprise, with the implication that this involvement has existed for some (albeit undefined) period in the past.
I would caution in this context against looking at the items said to be indicia of a drug trading enterprise individually. When looked at individually, the items may be readily capable of innocent explanation, or may not be probative of any past drug trading activity. But when viewed collectively, and in the context of the evidence as a whole, they may have that probative quality. By way of example, I note that in R v Soteriou,[18] Vanstone J doubted whether the resealable plastic bags found in the possession of the appellant in that case could be regarded as evidence of discreditable conduct given that they had not been used. When the particular resealable bags that were found in that case are considered in isolation, the point is undoubtedly well made. Indeed, when considered in isolation, the resealable bags might also be so readily capable of innocent explanation as to lack any probative force at all. However, when that evidence is viewed in conjunction with the other evidence in that case (namely, the notebooks containing ticklists, and the mobile phone containing drug-related messages) it might be said to be evidence of a stockpile of bags that is probative of present involvement in a pre-existing drug trading enterprise, and hence discreditable conduct evidence for the purposes of s 34P(1).
[18] R v Soteriou (2013) 118 SASR 119 at [14].
I accept that there may be some cases where the evidence of drug trading paraphernalia is of such a nature (for example, a newly purchased set of scales and unopened box of resealable bags) that the prosecution may decide to rely upon the evidence as circumstantially probative only of the defendant’s capacity and intention with respect to the drugs the subject of the trafficking charge, without the interposition of any reasoning depending upon involvement in a pre-existing drug trading enterprise. In such a case, the evidence may not qualify as discreditable conduct evidence, and hence not engage s 34P of the Evidence Act. However, in the ordinary course, evidence of the indicia of drug trading will be discreditable conduct evidence for the purposes of s 34P, and thus attract the obligation under s 34R(1) on the part of the trial judge to “identify and explain the purpose for which the evidence may, and may not, be used.”
Of course, and as is the nature of circumstantial evidence, the probative force of the evidence of the indicia of drug trading will, in a particular case, depend upon the evidence as a whole. In the present case, the matters which were said to diminish the probative force of the evidence of the indicia of drug trading included the innocent explanations for the items offered by the appellant (and to some extent supported by the evidence of Ms Schultz),[19] the fact that the messages on the mobile phones that were able to be accessed by the police did not indicate past dealing, and the absence of other items that are often also found at the scene of drug crimes (such as tick lists, cutting agent, scales or unexplained wealth (beyond the cash found in the appellant’s possession)).
[19] Namely, that the cash was gambling proceeds; that one of the phones had been found by the appellant, and another belonged to a former housemate; that the heat sealing machine had been left at the house by the former housemate; and that the plastic had also been left by that person and was to be given by Ms Schultz to her father to store fish.
However, assuming the evidence of indicia of drug trading was admitted under s 34P (that is, was admitted as evidence probative of discreditable conduct), then it does not matter whether the probative force is ultimately sufficient to sustain an inference of involvement in drug trading. By reason of the introductory words of s 34R, the obligation to give directions as to the permissible and impermissible uses of the evidence under that section is triggered by reason of that evidence having been “admitted under section 34P”, regardless of the use ultimately made of that evidence by the finder of fact. In other words, the obligation to give directions depends upon what the evidence is probative of, not what (if anything) it is ultimately found to establish.
In a case of trial by jury, because it cannot be known what findings the jury might make, it makes sense to require that these directions be given in every case in which evidence is adduced as probative of the accused’s involvement in a drug trading enterprise. In a case where the prosecution seeks only to rely upon the evidence as probative of the accused’s capacity and intention with respect to the drugs found in his or her possession, then the jury will need to be directed in clear terms not to rely upon that evidence as probative of any past involvement in drug trading.
Where, as here, the defendant elects to be tried by judge alone, the judge may not ultimately make any finding that the defendant engaged in any discreditable conduct, and hence not deploy any reasoning that assumes that the defendant has engaged in any such conduct. While it might be said that directions under s 34R serve no useful purpose in that situation, the terms of the legislation nevertheless require that they be given. The approach that the legislation requires is that when evidence that is probative of discreditable conduct is admitted under s 34P, the directions must be given, regardless of how the evidence is ultimately used, or what (if anything) it ultimately establishes. In other words, s 34R requires that the directions will be given, even if the findings and reasoning of the trial judge do not ultimately engage any of the lines of reasoning the subject of those directions. To fail to give the directions will involve a contravention of s 34R, and amount to an error of law; albeit that in a case where the judge does not make any impermissible use of the evidence of discreditable conduct, it may nevertheless be appropriate to invoke the proviso in s 158(2) of the Criminal Procedure Act 1921 (SA) and dismiss the appeal.
Returning to the present case, the prosecution relied upon the evidence of the cash, the multiple phones, the heat sealing machine and the plastic as evidence that the appellant was in possession of items regularly used “in the course of a drug enterprise” and found at “scenes of drug-related crimes”. It relied upon this evidence as circumstantial evidence in support of the prosecution case on the issue of the appellant’s intention in respect of the cocaine found in his possession. While the prosecutor did not, in his relatively brief opening and closing addresses, elaborate at any length upon the reasoning sought to be invoked in this respect, it is apparent that the prosecution sought to rely upon orthodox reasoning of the type applied by the courts to such evidence in the authorities referred to above.
For completeness, I observe that the ambit of the prosecution’s pre-trial notice of its intention to adduce discreditable conduct evidence was confined to the evidence of the cash found in the appellant’s possession. However, it seems to me from the manner in which Detective Pedder’s evidence was led, and the trial was conducted more generally, that the parties acquiesced in an approach that also treated the evidence as to the mobile phones, heat sealing machine and plastic as evidence of discreditable conduct.
In my view, it is arguable that the discreditable conduct evidence, even when considered in its totality, did not have the strong probative value that ought to have conditioned its admissibility under s 34P(2)(b). However, the defence did not challenge the admissibility of the evidence either at trial or on appeal, and so I see no need to reach a concluded view on this topic. Rather than contest its admissibility under s 34P, the defence sought to meet this aspect of the prosecution case by relying both upon the evidence adduced from the appellant and Ms Schultz by way of innocent explanations for those items, as well as other limitations upon the probative value of that evidence (as mentioned earlier).
At the outset of her reasons for verdict, the trial judge referred to the evidence of Detective Pedder as to what investigators regularly saw at scenes of drug crimes. Her Honour then directed herself as follows:
There was discreditable conduct evidence admitted in this trial.
The accused gave evidence that he was a user of cocaine and admitted he was in possession of cocaine. That evidence was admitted by way of the accused’s explanation as to why he came to be in possession of the cocaine and what his intention was with respect to that cocaine. I can use the evidence for this purpose.
A sum of $1330 in cash was seized by police following a personal search of the accused on 26 August 2017. The prosecution contends that it can be inferred from this evidence that the cash was a tool of the accused’s trade as a drug trafficker, as cash is frequently used in drug transactions. The accused gave evidence to explain why he had the cash in his possession.
If I am satisfied the accused had possession of cash from the proceeds of previous drug dealing or to serve as a ‘float’ for ongoing drug dealing, then I may regard it as relevant as to why he had possession of the cocaine on 26 August 2017. The prosecution relies upon the evidence as a piece of circumstantial evidence from which it submits I should make inferences such that I reject the accused’s explanation as to why he had the cocaine in his possession. The evidence can be used for this purpose.
However, I must not use the discreditable conduct evidence to reason that the accused is more likely to have committed the offence because he has engaged in discreditable conduct.

In my view, the trial judge’s directions in relation to the evidence of the cash found in the appellant’s possession were adequate for the purposes of s 34R. As to the permissible use to be made of that evidence, her Honour adequately identified and explained the relevance and use of the evidence; namely, that it was, if accepted, probative of the appellant’s involvement in a drug trading enterprise, and hence of him having a contemporaneous interest in trading, and willingness and inclination to trade, in illicit drugs. As such, the evidence was circumstantial evidence that was probative of his intention with respect to the cocaine found in his possession, and in particular that made it more likely that he intended to sell some of that cocaine.
The trial judge also adequately identified and explained the impermissible use of the evidence of the appellant’s possession of $1,330 in cash; namely, that it could not be used by the trial judge, even if satisfied that the appellant was involved in a drug trading enterprise, to reason simplistically to the effect that just because he had engaged in discreditable conduct, and was to that extent a ‘bad’ person, he was therefore more likely to have committed the offence with which he was charged. This simplistic and impermissible reasoning is sometimes called ‘bad person’ reasoning.
However, presumably as a result of the narrow terms of the prosecution’s pre-trial notice of its intention to adduced discreditable conduct evidence, her Honour confined her directions in this respect to the evidence of the cash found in the appellant’s possession. Her Honour did not at that point in her reasons direct herself in relation to the evidence of the mobile phones, the heat sealing machine or the plastic, despite the prosecution’s reliance upon this evidence as evidence of the appellant’s involvement in a drug trading enterprise, and hence as discreditable conduct evidence for the purposes of s 34P of the Evidence Act.
While the appellant (and Ms Schultz) gave evidence that sought to ascribe innocent explanations to each of these items, and hence to deprive them of any probative value, the trial judge did not ultimately accept those explanations. And while the evidence as to the appellant’s possession of these items was not itself probative of any particular or identifiable past transactions, for the reasons I have explained, it was nevertheless probative, in the context of the prosecution case as a whole, of the appellant’s involvement in a drug trading enterprise.
The respondent contended that the trial judge did not ultimately rely upon any of this evidence. While it is true that the judge did not make any express finding that the appellant was involved in a drug trading enterprise, it may be going too far to suggest that her Honour did not use the evidence at all (other than in making findings of credit). Her Honour set out in some detail in her reasons each of the items of evidence relied upon by the prosecution as evidence of discreditable conduct, and Detective Pedder’s evidence in relation to their connection with drug trading enterprises. Her Honour then set out her reasons for rejecting, or at the very least doubting, the appellant’s and Ms Schultz’s various innocent explanations for those items. Then, in the concluding paragraphs of the trial judge’s reasons, her Honour referred to the quantity, purity, value and packaging of the cocaine, and the accused’s brief visit to Melbourne, before adding that these matters “and his possession of mobile phones all tell against the accused”. After then acknowledging that the police did not find any drug-related messages on those phones, and noting the absence of various other indicia of drug trading, her Honour said that the absence of these matters “does not overcome the significant concerns I have as to the credibility and reliability of both the accused and Ms Schultz.” In the very next paragraph of the trial judge’s reasons, and bearing in mind that the prosecution had the benefit of a (rebuttable) presumption of an intention to sell, her Honour concluded that she was not satisfied on the balance of probabilities that the accused did not intend to sell any of the cocaine found in his possession.
Whilst the trial judge did not ever make any express finding that the appellant was involved in a drug trading enterprise, it appears from the passage referred to above that her Honour attached some significance to at least the mobile phones that went beyond the credibility of the appellant and Ms Schultz. It may well be that the trial judge’s use of this evidence went no further than as circumstantial evidence of the appellant’s capacity and intention with respect to the cocaine in his possession, without any intermediate finding of involvement in a pre-existing drug trading enterprise. However, for the reasons I have explained, it does not matter for present purposes whether, and to what extent, the trial judge ultimately engaged in reasoning involving a finding of discreditable conduct. The evidence having been admitted, and treated in the prosecution case, as evidence that was probative of discreditable conduct, the trial judge’s obligation to give herself directions under s 34R was triggered.
It follows, in my view, that the trial judge erred in not extending the directions that she earlier gave herself in relation to the cash to the balance of the discreditable conduct evidence (namely, the evidence of the mobile phones, heat sealing machine and plastic).
However, in the circumstances of this case, I am not satisfied that this error on the part of the trial judge occasioned any substantial miscarriage of justice. Bearing in mind the presumption of an intention to sell, the case against the appellant was a strong case. Further, there is no reason to think that the trial judge made any impermissible use of the discreditable conduct evidence, or that her Honour’s error otherwise affected her assessment of the evidence, or her reasoning towards a finding of guilt. Not only is there no suggestion of any impermissible reasoning on the face of her Honour’s reasons, but it is also apparent from her Honour’s directions in relation to the cash found in the appellant’s possession that her Honour was alive to the need to ensure she did not slip into any impermissible, or ‘bad person’, reasoning in connection with the discreditable conduct evidence.
I am satisfied that the trial judge’s failure to extend the directions she gave pursuant to s 34R in relation to the cash to the balance of the evidence of discreditable conduct did not affect the trial judge’s assessment of the evidence, or reasoning towards her Honour’s conclusion of guilt. I consider the trial judge’s reasoning to have been sound, and to have established the appellant’s guilt. I am satisfied that the appellant did not lose any chance of an acquittal that was fairly open. I would therefore apply the proviso in respect of this ground of appeal.
Conclusion
For the reasons set out, I agree with the orders proposed by Livesey J.
LIVESEY J:
Introduction
The appellant is an Albanian national who, since 2010, has held a protection visa entitling him to permanent residency in Australia. The appellant fled Albania because of a threat to his life. The visa was subject to the appellant remaining of good character pursuant to s 501 of the Migration Act 1958 (Cth) (Migration Act).
In August 2017, he travelled back to Adelaide from Melbourne by a commercial bus liner. Upon exiting the bus, the appellant was searched by police and one ounce of cocaine was found. The appellant was charged on Information with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Controlled Substances Act).
The appellant did not dispute his possession of 27.1 grams of cocaine, but denied that he intended to sell any of it. Because the presumption in s 32(5) of the Controlled Substances Act was engaged, the appellant bore the onus of establishing, on the balance of probabilities, that his possession of the cocaine was not for the purposes of sale. The “sole issue in dispute” at the trial was therefore whether the appellant intended to sell any of the cocaine in his possession.[20]
[20] R v Kroni [2019] SADC 46, [5].
The appellant’s trial proceeded before a Judge sitting without a jury and, on 9 May 2019, she delivered reasons for her verdict that the appellant was guilty.
The appellant appeals against his conviction.
On 18 October 2019, the appellant was sentenced to four years’ imprisonment with a non‑parole period of 20 months. The trial Judge declined to suspend the sentence or order that it be served on home detention. The applicant seeks permission to appeal against the sentence.
In my opinion, for the following reasons, the appeal should be dismissed.
The grounds of appeal against conviction
The amended grounds of appeal against conviction comprise four grounds and seventeen sub‑grounds.
In overview, the four grounds are:
1.The trial Judge failed adequately to direct herself as to the permissible and impermissible use of evidence of discreditable conduct as required by s 34R of the Evidence Act 1929 (SA) (Evidence Act).
2.The trial Judge gave inadequate reasons for finding that the appellant failed to displace the statutory presumption of sale created by s 32(5) of the Controlled Substances Act.
3.The trial Judge misdirected herself, or erred in the directions she gave herself, regarding the evaluation of the credibility of Ms Schulz (the appellant’s domestic partner) in that she misapprehended or failed to have proper regard to the evidence in exhibits P7 and P8 which gave rise to a miscarriage of justice.
4.The trial Judge erred in the directions she gave herself regarding the credibility of the appellant.
The role of the Appeal Court: the proviso
The role of the appeal court when dealing with an appeal from a verdict entered following a trial by a judge alone is addressed in three stages:[21]
The first is to determine whether the judge has erred in fact or law. If there is such error, the second stage is to decide whether the error, either alone or in conjunction with any other error or circumstance, is productive of a miscarriage of justice. If so, the third stage is to ascertain whether, notwithstanding that the error is productive of a miscarriage of justice, the Crown has established that the error was not productive of a substantial miscarriage of justice.
[21] See generally Filippou v The Queen (2015) 256 CLR 47, [4] (French CJ, Bell, Keane and Nettle JJ); Dansie v The Queen [2020] SASCFC 103, [421]-[442] (Livesey J, with whom Parker J agreed).
The appeal grounds in this case were principally directed to errors of law which come within the second limb of the common form criminal appeal provision applicable in this State.[22]
[22] Criminal Procedure Act 1921 (SA), s 158(1)(b): “the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law”. See Fleming v The Queen (1998) 197 CLR 250, 261 [24] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Filippou v The Queen (2015) 256 CLR 47, [9]-[12] (French CJ, Bell, Keane and Nettle JJ), [78]-[79] (Gageler J).
If there has been a “wrong decision of any question of law”, which includes a misdirection on matters of substantive or adjectival law, the question is whether the error comprises a miscarriage of justice in the sense of a departure from a trial according to law.[23] If so, that then raises the potential for operation of the proviso: assuming that there has been error, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice.[24]
[23] Weiss v The Queen (2005) 224 CLR 300, [17]-[18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Filippou v The Queen (2015) 256 CLR 47, [13] (French CJ, Bell, Keane and Nettle JJ).
[24] Criminal Procedure Act 1921 (SA), s 158(2), as at the time this appeal was heard: “The Full Court may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred”.
That is to say, the appeal may be dismissed unless there arises the possibility which cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open, or there has been some other departure from a trial according to law.[25] Accordingly, the circumstances may warrant the conclusion that, despite “any wrong decision of any question of law”, the appellant has not been deprived of “a chance of acquittal that was fairly open”.[26]
[25] Filippou v The Queen (2015) 256 CLR 47, [15] (French CJ, Bell, Keane and Nettle JJ).
[26] Filippou v The Queen (2015) 256 CLR 47, [15] (French CJ, Bell, Keane and Nettle JJ); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [25]; Lindsay v The Queen (2015) 255 CLR 272, [43] (French CJ, Kiefel, Bell and Keane JJ): although the proviso is expressed in permissive terms, “if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied” the proviso must be applied.
Ground 1: discreditable conduct
Ground 1, together with its sub-grounds is as follows:
1.The learned trial Judge failed to adequately direct herself as to the permissible and impermissible use of evidence of discreditable conduct, in accordance with s 34R of the Evidence Act 1929 (SA). In particular:
1.1    The learned trial Judge’s directions (Reasons [18]) did not adequately identify the permissible use of evidence of cash found on the applicant at the time of his arrest and that was said to be “a tool of the accused’s trade as a drug trafficker” and “proceeds of previous drug dealing” or a “float for ongoing drug dealing”.
1.2    The learned trial Judge did not direct herself with respect to the permissible use of evidence of multiple mobile phones, said to be indicative of involvement in the drug trade, or a heat sealing machine found at the applicant’s residence (Reasons [155]-[164]).
1.3    The learned trial Judge failed to adequately direct herself as to the impermissible use of the above evidence (Reasons [19]).
The following matters were relied upon by the prosecution to prove that the appellant intended to sell some of the cocaine in his possession:
1.The appellant had 27.1 grams of cocaine which comprised 17.4 grams of pure cocaine (64 per cent purity). The potential value of that cocaine ranged between $7,000 and $9,000 if sold as an ounce (there being 28.35 grams to the ounce), or $300 to $400 per gram (totalling between $8,100 and $10,840) if sold per gram.
2.The appellant had two mobile phones with him and three more were found at his home. No incriminating messages or communications were detected on these phones. The prosecution contended that the mere possession of numerous mobile phones was consistent with involvement in the “drug trade”.
3.When arrested, the appellant had $1,330 in cash which, it was contended, also comprised “tools of the trade” of a drug dealer.
4.During a search of the appellant’s home, police also located a heat sealing machine and rolls of plastic. The evidence from an experienced officer of the Drug Investigation Branch was that the packaging of cocaine using a heat sealing machine was uncommon.
The appellant’s statement to police immediately following arrest was that he had won $7,000 at the Crown Casino in Melbourne the night before his arrest and that a portion of this was used to purchase the cocaine, with $1,330 representing the balance.
The appellant emphasises that he gave evidence, called evidence and, through the cross-examination of prosecution witnesses, elicited evidence to suggest that there was not only an explanation for his possession of cocaine inconsistent with sale, but that many of the usual “indicia” of sale were absent. For example, the appellant emphasised that no “tick lists” were found, and, apart from the sum of $1,330, there was no other evidence of unexplained wealth. As well, the appellant emphasised that it was never put to him in cross-examination that his possession of numerous mobile phones, cash or a heat sealing machine evidenced involvement in the drug trade. It was contended that the cross-examination showed that the prosecution was “willing to wound and yet afraid to strike”.[27]
[27] Reid v Kerr (1974) 9 SASR 367, 373-374 (Wells J): “... a judge (or a jury) is entitled to have presented to him (or them) issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains in the night”.
The appellant gave evidence that he had travelled to Melbourne on 24 August 2017 to see his immigration lawyer and, after a 30-minute meeting, he went to the Croatian Club for lunch before going back to his hotel. In the late afternoon, he went to the casino and described, in some detail, his winnings there. The appellant claimed that it was at the bar of the casino that he sourced cocaine.
The appellant also gave explanations for the phones found in his possession on arrest, as well as at his home. One of these phones and the heat sealing machine, the appellant said, belonged to friends. The appellant claimed one of the other phones belonged to someone unknown to him, and the other was an old phone he had since replaced with a newer model. The trial Judge noted that the people mentioned by the appellant were not called to give evidence.[28]
[28] R v Kroni [2019] SADC 46, [14].
The appellant’s principal defence was that the cocaine was for his personal use. He said that he had been using cocaine for two years and his frequency varied. He told the trial Judge that the cocaine purchased in Melbourne would be consumed by him during a period of between one and three months.
Under cross-examination, the appellant said that he had been earning just over $900 each week from a restaurant but that he also did painting work. It was not put to the appellant that he could not fund his cocaine use from legitimate earnings.
In relation to what the trial Judge described as “the discreditable conduct evidence”, she referred to the following matters:
1.The appellant gave evidence that he used cocaine so as to explain why he came to be in possession of the cocaine with which he was charged. The trial Judge found that she could use the evidence of possession for that purpose.[29]
2.The evidence regarding the cash in the possession of the appellant was subject to the direction that the trial Judge needed to be satisfied that the cash was the proceeds of previous drug dealing, or was to serve as a “float” for ongoing drug dealing, whereupon she could then regard it as relevant as to why the appellant was in possession of the cocaine on 26 August 2017. In particular, the trial Judge noted that the prosecution submitted that this was “a piece of circumstantial evidence from which … I should make inferences such that I reject the accused’s explanation as to why he had the cocaine in his possession”.[30] The trial Judge accepted that she could use the evidence of possession of the cash for that purpose.
3.Nonetheless, the trial Judge directed herself that she “must not use the discreditable conduct evidence to reason that the accused is more likely to have committed the offence because he has engaged in discreditable conduct”.[31]
[29] R v Kroni [2019] SADC 46, [16].
[30] R v Kroni [2019] SADC 46, [18].
[31] R v Kroni [2019] SADC 46, [19].

On the material available in this case, the issue on which the appellant relies has not been shown to be other than speculative, in the sense that the outcome and timing of the Minister’s exercise of discretion under the Migration Act is not “known to the court” as the Sentencing Act requires.[151] Whether deportation would result in hardship is likewise not known. The burden always lies with the prisoner who seeks to establish a matter going to mitigation.
[151] See, s 11(1) of the Sentencing Act 2017 (SA) and, for example, R v Olbrich (1999) 199 CLR 270, [17].
The Judge did not err in finding that she was unable to take into account the outcome of any future exercise of Ministerial discretion. Accordingly, permission to appeal ground 5 is granted, but appeal ground 5 should be dismissed.
As for ground 6, the thrust of the appellant’s case was that the sentencing discretion miscarried because the Judge applied “pre-Sentencing Act 2017 jurisprudence concerning the now repealed home detention provisions to her assessment of the appellant’s eligibility for home detention”. The appellant relied on the fact that home detention is now treated as a custodial sentence rather than as a form of suspended sentence.[152]
[152] See s 69 of the Sentencing Act 2017 (SA) and R v Camarinha [2018] SASCFC 118, [70], cf R v Neal
(2017) 128 SASR 20, [62], R v Godfreys [2018] SASCFC 93, [85] (Rice AJ, with whom Kelly and
Bampton JJ agreed).
Recognising that the Judge rejected home detention because of the seriousness of the drug offending and the importance of deterrence, as well as the fact that the appellant had previously had the benefit of a suspended sentence, the appellant emphasised that the earlier sentence was for drug offending of a different kind, involving a somewhat diminished level of relative culpability. The appellant highlighted that he had generally led a law-abiding and productive life following that earlier offending and the subject offending formed no part of an ongoing course of conduct. The subject offending occurred, the appellant submitted, in the course of an addiction, notwithstanding that his drug use had been exaggerated and his offending was profit-driven. The appellant contended that he was sentenced for the least serious iteration of drug trafficking and that the length of the non-parole period “lent itself to a home detention sentence”, relying upon R v Dell.[153]
[153] R v Dell (2016) 126 SASR 571.
In my view, it cannot be said that the exercise of the sentencing discretion miscarried. Whilst the Judge had regard to decisions made under earlier iterations of the Sentencing Act, she expressly had regard to the terms of the current Sentencing Act. And, as under the earlier Act, it remains appropriate to observe that home detention orders will not generally be appropriate for certain types of offending. As was emphasised by Doyle J in R v Dell:[154]
It is notable that the legislature has not chosen to circumscribe the Courts’ discretion by proscribing a home detention order in respect of any particular category of offence, or in respect of sentences of imprisonment beyond a particular period of length. However, this does not mean that home detention orders will not generally be inappropriate in respect of many types of offences, and in respect of defendants the subject of lengthy terms of imprisonment. To the contrary, there will be many cases in which the nature of the offending is such that the need to ensure achievement of the broader objectives of sentencing will for practical purposes foreclose any exercise of the discretion in favour of home detention. The length of the head sentence that has been imposed will often provide some indication of the weight that it is necessary to attach to the objectives I have mentioned.[155]
(footnote in original)
[154] R v Dell (2016) 126 SASR 571, [58] (Doyle J, with whom Kelly and Parker JJ agreed).
[155] R v Filipponi (2016) 126 SASR 464, [32]-[34].
These observations apply equally to the current Sentencing Act. The Judge had appropriate regard to the nature and seriousness of the subject offending. There was plainly less scope for leniency given the earlier offending, particularly in the absence of apparent contrition or remorse. Correctly, the Judge regarded home detention as ordinarily inappropriate in a case of drug trafficking. Indeed, the appellant’s submissions recognised that a home detention order was an “atypical approach to sentencing”.
Whilst there are undoubtedly differences between the former and current Sentencing Act, they do not affect this question and it is not apparent that the Judge made any specific error. The outcome cannot be regarded as manifestly excessive or necessarily erroneous. Permission to appeal ground 6 is refused.
Conclusion
In all of these circumstances, the orders of the Court should be:
1.Permission to appeal ground 5 is granted.
2.Permission to appeal ground 6 is refused.
3.The appeal is dismissed.