Magro v The King - [2022] SASCA 100

Supreme Court of South Australia
(Court of Appeal: Criminal)
MAGRO v THE KING
[2022] SASCA 100
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
29 September 2022
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES
Following a trial by judge alone, the appellant was convicted of the following offences: trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Count 1); aggravated possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA) (‘Firearms Act’) (Count 2); possessing an unregistered firearm, contrary to s 27(1) of the Firearms Act (Count 3); and money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) (Count 4).
The appellant appeals against his convictions.
In relation to Count 1, the appellant complains that the trial Judge erred in his directions as to his finding that the appellant had sold methylamphetamine in the past. Aligned with this complaint, the appellant also contends that the evidence of past sales or ‘tick lists’ was inadmissible under s 34P(2) of the Evidence Act 1929 (SA) (‘Evidence Act’) (Ground 3).
In relation to Counts 2 and 3, the appellant complains that the trial Judge erred in his directions as to the permissible and impermissible use of prior conversations about a firearm that were not referable to the firearm the subject of the charges (the intercept evidence). The appellant also contends the trial Judge erroneously found that the intercept evidence was admissible under both limbs of s 34P(2) of the Evidence Act (Ground 1).
The appellant further complains the verdict on each count is unreasonable (Grounds 5, 6 and 7).
Held, per the Court, granting permission to appeal on Grounds 5 and 6 but dismissing the appeal:
1.As to Count 1 (and Ground 3), the impugned evidence satisfied both limbs of s 34P(2) of the Evidence Act. The trial Judge’s directions correctly identified the permissible and impermissible uses of the evidence. The discreditable conduct evidence was not used for an impermissible purpose.
2.As to Counts 2 and 3 (and Ground 1), the intercept evidence was admissible under both limbs of s 34P(2) of the Evidence Act. There was no error by the trial Judge in relying on the intercept evidence when considering the issue of possession. The trial Judge’s directions complied with s 34R of the Evidence Act.
3.As to Grounds 5, 6 and 7, the verdicts were not unreasonable. Upon an independent review of the evidence, it was open to the trial Judge to find the appellant guilty of each count.

Controlled Substances Act 1984 (SA) ss 4, 32(3); Criminal Law Consolidation Act 1935 (SA) ss 130, 138; Evidence Act 1929 (SA) ss 34P, 34P(2), 34R; Firearms Act 2015 (SA) ss 6, 9, 27; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) s 17, referred to.
Dansie v The Queen (2022) 96 ALJR 728; Filippou v The Queen (2015) 256 CLR 47; Harriman v The Queen (1989) 167 CLR 590; Hughes v The Queen (2017) 263 CLR 388; JGS v The Queen [2020] SASCFC 48; M v The Queen (1994) 181 CLR 487; R v C, CA [2013] SASCFC 137; R v C, G (2013) 117 SASR 162; R v Magro [2021] SADC 93; R v MJJ (2013) 117 SASR 81; R v Franco (2009) 105 SASR 446; R v Jones (2018) 131 SASR 532; R v Long (2002) 137 A Crim R 263; R v Singh [2019] SASCFC 51; R v Soteriou (2013) 118 SASR 119; R v Sultana (1994) 74 A Crim R 27; R v Tran [2017] SASCFC 99; The Queen v Conley (1982) 30 SASR 226; The Queen v Falzon (2018) 264 CLR 361; Willingham v The Queen [2022] SASCA 3, considered.

MAGRO v THE KING
[2022] SASCA 100
Court of Appeal – Criminal: Lovell, Bleby and David JJA
THE COURT:

Following a trial by judge alone, the appellant, Mr Daniel Robert Magro, was convicted of the following offences: trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘CSA’) (Count 1); aggravated possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA) (‘Firearms Act’) (Count 2); possessing an unregistered firearm, contrary to s 27(1) of the Firearms Act (Count 3); and money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 4).
The appellant appeals against his convictions.
In relation to Count 1, the appellant complains that the trial Judge erred in his directions as to his finding that the appellant had sold methylamphetamine in the past. Aligned with this complaint, the appellant also contends that the evidence of past sales or ‘tick lists’ was inadmissible under s 34P(2) of the Evidence Act 1929 (SA) (‘Evidence Act’) (Ground 3).
In relation to Counts 2 and 3, the appellant complains that the trial Judge erred in his directions as to the permissible and impermissible use of prior conversations about a firearm (a handgun) that were not referable to the firearm (a rifle) the subject of the charges. The appellant also contends the trial Judge erroneously found that the intercept evidence was admissible under both limbs of s 34P(2) of the Evidence Act (Ground 3).
The appellant further complains the verdict on each count is unreasonable (Grounds 5, 6 and 7).
Prior to the hearing of this appeal, Grounds 2, 2A, 3A and 4 were abandoned.
Permission to appeal was granted on Ground 7. The question of permission to appeal with respect to Grounds 5 and 6 were referred to this Court for consideration. Grounds 1 and 3 raise questions of law.
Background
On 20 September 2018, at about 2:20pm, police attended a property in Modbury Heights owned by the appellant (the ‘Premises’). The Premises constituted a house, a carport, and a front and backyard and was fenced on all sides. When police arrived, the front gate was locked, and they forced entry to the Premises. There was an intercom at the front gate and a security camera which showed the area outside of the gate. That security camera was capable of transmitting both notifications and images to the appellant’s mobile telephone and images to a television in the lounge room of the house. At the time police attended the Premises, the television was showing CCTV images from at least one security camera.
At the Premises, police located five persons: the appellant, Mr Joseph Daly, Mr Daniel Dobrucki, Mr Dominic Wojniak, and Ms Tracey Halling. The appellant was the only person who lived at the Premises. A police officer (PH1) observed the appellant standing about 1 m away from the kitchen sink. The tap was running. He observed a crystal-like substance in the bottom of the sink. Another officer observed the appellant standing ‘in the kitchen area’ and hot water coming out of the tap very fast and splashing off the sink. A third police officer (LS) said he observed the appellant sitting on a lounge chair after other officers had entered the Premises, which was about 4 m from the kitchen sink.
On the prosecution case, shortly before the police entered the front door of the Premises, the appellant and others were involved in a drug transaction. After the arrival of police, Mr Daly, Mr Dobrucki, and Mr Wojniak exited the house from the kitchen or dining area towards the rear yard, where they were located by police.
While Mr Wojniak was in the front yard, police saw a plastic resealable bag on the ground next to him containing a white crystalline substance. This was not the subject of forensic analysis. Mr Wojniak had recent prior convictions relating to drugs and trafficking drugs.
Outside of the house was a Holden sedan. Within the console of the vehicle was a wallet containing identification in the name of Mr Dobrucki. Also within the console were two resealable bags containing cannabis, two pipes suitable for smoking methylamphetamine, and a small amount of liquid which might have been gamma hydroxybutyrate (‘GHB’).
Mr Daly has prior convictions for drug and firearm offences. In particular, in 2015, Mr Daly was convicted of two offences of possessing a firearm without a licence, two offences of possessing an unregistered firearm, two offences of failing to properly secure a firearm, possession of a prohibited weapon, and other offences.
At trial, the appellant asserted that as of 20 September 2018, other persons present at the Premises had an interest in methylamphetamine and Mr Daly also had an interest in and propensity for possessing unlicenced firearms.
Returning to the police attendance at the Premises, the appellant was removed from the house and seated in the front yard. A photograph of the left leg of his tracksuit pants showed wet marks on his left calf and a larger wet mark just above the knee.[1] On the prosecution case, this was consistent with the appellant having poured methylamphetamine into the sink because police interrupted a drug transaction which he was involved in.
[1] Trial Exhibit P20.
Police searched the house and the backyard of the Premises. In the rear yard was a raised garden bed which contained soil but no plants. Buried about 10 cm below the surface was the firearm the subject of Counts 2 and 3. It was a 223 calibre centre-fire Ruger Model Mini-14 self-loading rifle, which is a category D firearm under the Firearms Act.[2] As at 20 September 2018, it was unregistered and the appellant did not hold a firearms licence.[3]
[2] Trial Exhibit P1 at [4]–[5].
[3] Trial Exhibit P1 at [6]–[7].
The police swabbed the firearm for the presence of DNA. It was found to contain very low amounts of, or no, DNA. A police ballistics expert gave evidence that the firearm was 667 mm long and in poor condition with moderate to heavy corrosion in a lot of the external areas. The slide on the firearm could not be used to safely discharge a bullet. No magazine or ammunition suitable for use in the firearm was found at the Premises.
The firearm was wrapped in packaging. The outermost layer was a white ‘Glad’ bin liner. Within that layer, the firearm was wrapped in Glad Wrap and underneath that was an ‘Aldi’ shopping bag. In a drawer in the kitchen of the Premises was a roll of Glad Wrap and a box of Glad brand bin liners consistent with the packaging used to wrap the firearm. The kitchen bin was also lined with a white Glad bin liner.
The appellant’s mobile telephone service was lawfully intercepted by police. A disc containing relevant calls from that telephone service were admitted into evidence at trial by the prosecution.[4] They included the following calls and text messages (the ‘intercept evidence’):[5]
·An incoming call received at 3:03am on 20 September 2018 from a male person. It was alleged that during this call, that person offered to sell the appellant a firearm.
·On the same day at 3:08am an incoming call from a male person. It was alleged that person told the appellant that the firearm that he offered in the call at 3:03am was a ‘Young American Double Shot’ and he invited the appellant to look it up.
·At about 3:10am the appellant received a received a text message from a person reading, ‘we are going to come see you in 1 hr roughly’.[6] At 3:21am, the appellant sent a text message which said, ‘[w]ait till tmmrw pls mate’.[7]
[4]     Trial Exhibit P7.
[5]     Trial Exhibit P7; Trial Exhibit P8.
[6]     Trial Exhibit P8.
[7]     Trial Exhibit P8.
At trial, the prosecution adduced expert evidence that a ‘Young American Double Shot’ is a type of handgun that was manufactured by Harrington & Richardson in the United States until around 1941. They are available in a 22 calibre seven round revolver or 32 centre-fire Smith & Wesson with a five round revolver.
As to the methylamphetamine (Count 1), police seized a total of 10.51 g of crystals containing methylamphetamine in the kitchen. This consisted of the following amounts:
·7.51 g of crystals containing 5.12 g of methylamphetamine in a small plastic tub on the kitchen bench;
·0.05 g and 0.06 g in two small plastic tubs on the kitchen bench;
·0.03 g in a larger plastic tub on the kitchen bench. On the tub, there was a fingerprint matching a Ms Kate Nykiel (the appellant’s partner) and a fingerprint with insufficient detail for a comparison to be made;
·0.92 g in the kitchen sink;
·1.15 g on a plastic lid on top of the microwave; and
·Two plastic resealable bags containing separate amounts of 0.71 g and 0.08 g within a National Pharmacies bag adjacent to the bin in the kitchen.
On the kitchen bench, was a set of digital scales with crystals on their surface. There was also another set of scales found in the ‘games room or office’. Police also observed three approximately 2 m lengths of glass tubing in the kitchen near the sink, consistent with that used in the making of ice pipes.
In the ‘games room or office’ there was a locked safe. The safe was opened by a key belonging to the appellant found on the kitchen bench. Within the safe, police located $17,060 cash (Count 4). It was separated into three separate bundles:
·$5,000 consisting of 100 $50 notes;
·$10,500 consisting of 210 $50 notes; and
·$1,560 consisting of nine $100 notes, five $50 notes, 20 $20 notes, and one $10 note.
In a filing cabinet, either in the same room or in the lounge room, a spiral bound notebook was located.[8] That notebook allegedly contained handwritten entries of lists of names and monetary amounts or ‘tick lists’. The notebook was examined for fingerprints; six were unidentified, one matched Ms Nykiel, one matched a Mr Travis Lynton Bewick, and one matched a Mr Jarred Brenton Clarke. None of the identified fingerprints matched the appellant.
[8] Trial Exhibit P13.
After his arrest, the appellant gave a handwriting sample to police.[9] That sample was compared with writing within the notebook. Handwriting samples were not obtained from any of the other persons located at the Premises, nor from the other persons whose fingerprints were found on the notebook.
[9] Trial Exhibit P21.
The prosecution relied on three handwritten lists with names and monetary amounts within the notebook which were labelled 10.01(a), 10.01(c) and 10.01(d). A handwriting expert, Ms Elizabeth Ockleshaw, gave evidence that there was strong support for the appellant having written the lists labelled 10.01(a) and 10.01(d). There was moderate support for the appellant having written the list labelled 10.01(c). A drug expert, Detective Brevet Sergeant Belinda Anderson, gave evidence that the notes on each of those three pages were consistent with being ‘tick lists’ or lists of past sales.
The appellant was interviewed by police on 20 September 2018. During that interview, he denied being in possession of any of the methylamphetamine located at the Premises. The appellant said he did not know that a firearm was buried in his backyard. He denied the allegations in relation to the drug charge and the firearm charges. The appellant was not questioned in relation to the cash located at the Premises or the money laundering charge.
At trial the appellant gave evidence.
He said that he smoked methylamphetamine and did so using glass pipes. As of September 2018, he was unemployed. Prior to that he earned about $700 to $1,500 per week.
The appellant said that on 20 September 2018, his daughter and partner left his home at about 10:30am that morning. He said that Ms Halling arrived at the Premises between 9:00am and 10:30am to assist him with housework. He said Mr Dobrucki arrived at his home between 1:00pm and 2:00pm. He was unclear about the time Mr Wojniak and Mr Daly arrived, but he said all four persons arrived separately. The appellant said that before police arrived, he smoked methylamphetamine with Mr Daly and Mr Wojniak.
The appellant said he was unaware police were outside his house until they forced entry through the front gate. He said he was seated in the lounge room, not in the kitchen, and Mr Dobrucki and Mr Daly were seated at the kitchen bench. The appellant said the police directed him to lie on the floor. The appellant denied that he was engaged in a drug transaction. He denied any involvement in discarding methylamphetamine down the kitchen sink prior to the arrival of police. The appellant did not dispute his tracksuit pants may have had some areas of dampness. He said that once he had been taken outside by police, he had been asked to kneel on the ground for a time before a chair was brought for him to sit on in the front yard. The appellant suggested that any dampness was from having knelt on the grass.
He denied that he was the author of any of the handwritten lists in the notebook. He could not recall having previously seen that notebook.
The appellant admitted that the two sets of digital scales belonged to him. He said he had been a cook in the past and that they were for weighing food items. However, the appellant said he had used one set of scales to weigh methylamphetamine in the past as he was a user of that drug.
The appellant denied being in possession of any of the methylamphetamine the subject of Count 1. He denied having any knowledge of the firearm the subject of Counts 2 and 3. He said that the Glad Wrap and bin liners found in the kitchen drawer belonged to him. The appellant admitted that the $17,060 cash found within the locked safe, the subject of Count 4, belonged to him. He said that $15,000 had been received as cash payment for a gearbox, steering wheel, and mirrors, which he had sold to a Mr Steven Cowie in 2018. He said the balance of the money in the safe was his savings.
As part of the defence case, Mr Cowie gave evidence. Mr Cowie said he was a mechanic and had a long-standing interest in cars. He said that before September 2018, he was introduced to the appellant by a friend. He heard through that friend that the appellant might have car parts in which he might be interested. He said he spoke with the appellant on the telephone and subsequently attended his home on more than one occasion to inspect the items. Having seen the items, Mr Cowie said he purchased a gearbox, a steering wheel, two mirrors, some car badges, and some paperwork from the appellant for a little less than $15,000 in cash. He said he paid in denominations of $100 notes, $50 notes, and $20 notes. Mr Cowie said the money was from a Torana which he had sold.
Appeal Grounds
We will first consider Appeal Ground 3, which relates to Count 1 and the offence of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the CSA. We will then turn to Appeal Ground 1, which concerns Counts 2 and 3 involving the firearm.
Ground 3
The appellant complains that the trial Judge erred in his directions in relation to the evidence of the ‘tick lists’. The appellant contends that the permissible use of the evidence was not properly identified and the directions did not comply with s 34R(1) of the Evidence Act. The appellant also submits that the evidence was inadmissible under s 34P(2).

In support of Count 1, the charge of trafficking in a controlled drug, the prosecution relied upon evidence that the appellant was involved in the business of trafficking methylamphetamine. As discussed earlier, a notebook was located in a filing cabinet containing three handwritten ‘tick lists’ or lists of past sales of drugs. Expert evidence was called to establish that the notations within the notebook were consistent with ‘tick lists’. As outlined earlier, the prosecution adduced expert evidence that some of the handwriting in the ‘tick lists’ was consistent with a sample provided by the appellant. On various pages within the notebook were fingerprints. None matched the appellant. One fingerprint matched the appellant’s partner, who did not live at the Premises, six were unidentified, and the rest were matched to other persons.
The prosecution filed a Notice of Intention by Director to Adduce Discreditable Conduct Evidence in relation to the notebook containing the ‘tick lists’. The appellant did not challenge its admissibility. The prosecutor opened on the basis that the appellant was in the business of trafficking in drugs, as evinced by the notebook (and bundles of cash in his safe and the other accoutrements of sale located at the Premises). In evidence, the appellant denied any knowledge of the ‘tick list’. He said that he did not make the notations in it.
The trial Judge’s reasons
In his reasons for verdict, the trial Judge identified that the issues at trial were whether the appellant was in possession of any of the methylamphetamine located in the kitchen, and if he was, whether he intended to sell at least part of that drug. Although there was evidence to support a finding that the appellant was trafficking by taking part in the sale of drugs, his Honour considered that the prosecution had put its case on the basis that the appellant was in possession of the drugs for sale. His Honour clarified:[10]
[G]iven the way the prosecution put its case, Mr Magro being in possession is essential. The prosecution must prove beyond a reasonable doubt that Mr Magro was in possession when the police entered and intended to sell at least some of what he possessed, or that he had been in possession before police entered, but had sold before they entered (i.e - in possession earlier on 20 September 2018, intending to sell).
[10] R v Magro [2021] SADC 93 at [83] per Kimber DCJ.
As to the notebook, the trial Judge rejected the appellant’s evidence that he did not know of the notebook. He was satisfied that two pages and part of a third page contained lists of past sales of drugs. In relation to the handwriting, his Honour accepted the expert evidence that there was strong support for the appellant having written two of the entries and moderate support for him having written a third entry.
His Honour referred to the fact that other persons had access to the notebook, that the notebook contained entries written by others, and that there had been no comparison of the handwriting of the ‘tick lists’ with any other person who might have written in the notebook.
The trial Judge concluded:[11]
Given the notebook was found in Mr Magro’s home in a filing cabinet, he was the only person who lived there permanently, he had scales suitable for weighing methylamphetamine on his kitchen bench, there was methylamphetamine in the same kitchen, including on those scales, that his house was visited on 20 September 2018 by a number of people who had an interest in methylamphetamine and the evidence of Ms Ockleshaw, I am satisfied Mr Magro wrote the entries identified above on 10.01.A and all entries on 10.01.C and 10.01.D. There was cannabis at the house. Given the scales on the bench with methylamphetamine on the surface and the presence inside the house of a number of visitors who had an interest in methylamphetamine, I am nonetheless satisfied the entries in the notebook set out above were, at least in part, records of past sales of methylamphetamine. I am satisfied Mr Magro had sold methylamphetamine in the past. I am satisfied that use of that evidence has probative value which substantially outweighs any prejudicial effect it may have on Mr Magro and has strong probative value having regard to the issues in the trial. Those issues being whether Mr Magro was in possession of any of the methylamphetamine the subject of count 1 on 20 September 2018, and whether he was in possession intending to sell. The uses of the evidence just identified can be kept separate from any impermissible use, namely that he is a bad person and for that reason more likely to be guilty. I will not reason that solely because Mr Magro has sold in the past, he is in possession of any of the methylamphetamine in his home, nor that, if he is in possession, he must have intended to sell.
(citations omitted)
[11] R v Magro [2021] SADC 93 at [106] per Kimber DCJ.
In relation to the methylamphetamine, his Honour was satisfied beyond reasonable doubt that the appellant was in possession of the 1.15 g of methylamphetamine on the lid in the kitchen and the two amounts of 0.71 g and 0.08 g of methylamphetamine in the National Pharmacies bag, and that the appellant had an intention to sell all, or some, of that drug. His Honour also found that the appellant was in possession of 0.03 g of crystals containing methylamphetamine found in the large container in the kitchen, but because of its small quantity, he could not be satisfied that it was for sale.
His Honour said:[12]
As for the 1.15 grams on the lid in the kitchen, Mr Magro admitted the lid was his, but denied the methylamphetamine was his. I accept Mr Magro’s evidence the lid was his. Given its presence in Mr Magro’s kitchen; the transaction taking place in which Mr Magro was involved and Mr Magro’s interest in selling methylamphetamine, an inference is the 1.15 grams was part of the transaction. The other possibility is that, as Mr Magro suggested in evidence might have been the case, it was ‘wet’ and therefore drying. I am unable to determine whether it was part of the transaction, was ‘wet’ and drying, or both. However, I am satisfied beyond a reasonable doubt it was at least one of those, if not both. If it was ‘wet’ and drying, I would be satisfied beyond a reasonable doubt Mr Magro was responsible and was in possession. I would reject his evidence to the effect that someone else might have been drying that methylamphetamine given where the item was (on the microwave away from the bench and the scales and other amounts of methylamphetamine on that bench); that the lid belonged to him and Mr Magro’s interest in selling. If it was part of the transaction, given it was laid out on an item which belonged to Mr Magro and Mr Magro’s involvement in the transaction, I would be satisfied beyond a reasonable doubt Mr Magro was in possession. It follows that I am satisfied beyond reasonable doubt Mr Magro was in possession of the 1.15 grams.
The next issue is whether Mr Magro was in possession of the 1.15 grams intending to sell. Despite Mr Magro being a user of methylamphetamine, I am satisfied beyond a reasonable doubt Mr Magro intended to sell at least some of the 1.15 grams. I am satisfied of that given his interest in selling that drug and the amount.
…
In another area of the kitchen, within a National Pharmacies bag, were two press seal bags containing 0.71 grams and 0.08 grams of crystals containing methylamphetamine. Whether those drugs might have been in the possession of another, or others, to the exclusion of Mr Magro falls to be evaluated bearing in mind the possibility of any handling of that bag by Mr Magro being limited to an effort to hide the bag, the possibility that someone other than Mr Magro might have been in possession of some of the other methylamphetamine in the kitchen and the interest others present had in that drug. Also relevant are Mr Magro’s possession of the 0.03 grams and the 1.15 grams; his interest in selling methylamphetamine before 20 September 2018; that he was involved in the transaction taking place; the effort he made to dispose of methylamphetamine into the sink; the position of the National Pharmacies bag (i.e. within the kitchen Mr Magro was in, adjacent to his bin) and that Mr Magro had small press seal bags in a drawer in that same kitchen. Such bags are suitable for the packaging and sale of methylamphetamine. However, they are not uncommon and are items which might be used by any of the other persons in the house.
I am satisfied beyond a reasonable doubt that Mr Magro was in possession of the two amounts of 0.71 grams and 0.08 grams within the National Pharmacies bag. I reject that either amount might amount might have been in possession of another. Given where the items were (next to the bin, away from the other items); the way these amounts were packaged; Mr Magro having access to similar packaging; Mr Magro having an interest in selling methylamphetamine before 20 September 2018 and his participation in the transaction taking place (either as a seller or as a buyer), I am satisfied beyond reasonable doubt Mr Magro was in possession of both amounts and intended to sell at least some that [sic] methylamphetamine.
(citations omitted)
[12] R v Magro [2021] SADC 93 at [114]–[119] per Kimber DCJ.
It was on that basis that the appellant was convicted of Count 1. It can be seen that the evidence that the appellant was in the business of trading in methylamphetamine, as established in part by the ‘tick lists’, was a factor in the trial Judge’s finding that the appellant was in possession of the respective amounts of methylamphetamine and that he intended to sell some, or all, of the drugs in his possession.
The appellant’s submissions
The appellant submits that the evidence of the ‘tick lists’ was inadmissible and the trial Judge’s directions were inadequate in the context of the narrow manner in which the prosecution case was ultimately put. That is, the appellant was in possession of the drugs at the time police entered the Premises (whilst others were present and some or all of those persons were engaged in a drug transaction) with an intention to sell any or all of those drugs in his possession. The appellant also submits that the trial Judge erroneously used the evidence of the ‘tick lists’ or past sales to reason impermissibly as to the appellant’s general propensity and to reject his evidence.
Consideration
It is common ground that the main issues at trial were whether the appellant was in possession of any or all of the methylamphetamine the subject of the charge and the purpose of that possession.
It is well-established that evidence which supports a finding that an accused person was in the business of selling drugs is potentially admissible on a charge of trafficking in a controlled drug, even though such evidence might reveal other criminal conduct not the subject of the charge.[13] Numerous authorities have recognised that evidence of an accused person’s involvement in the business of drug trafficking is probative of the issues of possession and the purpose of possession of a drug.[14] The admissibility of such evidence is governed by s 34P(2) of the Evidence Act. The use of the impugned evidence involved propensity reasoning or ‘a form of propensity reasoning, [that] is so close to it that the distinction becomes insignificant’.[15] It follows that such evidence will only be admissible if it satisfies both limbs of s 34(P)(2).
[13] R v Jones (2018) 131 SASR 532 at [21] per Nicholson J (with whom Kourakis CJ and Hinton J agreed).
[14] See The Queen v Conley (1982) 30 SASR 226 at 230 per King CJ (with whom White J and Cox J relevantly agreed); Harrimanv The Queen (1989) 167 CLR 590 at 595 per Brennan J, at 597 per Dawson J, at 609 per Toohey J; R v Long (2002) 137 A Crim R 263 at [37] per Doyle CJ (with whom Lander and Bleby JJ agreed); R v Franco (2009) 105 SASR 446 at [22] per Vanstone J (with whom Anderson and Kourakis JJ agreed); R v Soteriou (2013) 118 SASR 119 at [27], [32] per Vanstone J (with whom Sulan and Stanley JJ agreed); The Queen v Falzon (2018) 264 CLR 361 at [40]–[44]; R v Sultana (1994) 74 A Crim R 27 at 28–9 per Gleeson CJ (with whom Handley JA agreed); R v Jones (2018) 131 SASR 532 at [21]–[23] per Nicholson J (with whom Kourakis CJ and Hinton J agreed); R v Singh [2019] SASCFC 51 at [73] per Doyle J (with whom Peek and Parker JJ agreed); Willingham v The Queen [2022] SASCA 3 at [38] per Livesey P, Doyle and David JJA.
[15] R v Long (2002) 137 A Crim R 263 at [39] per Doyle CJ (with whom Lander and Bleby JJ agreed) cited in R v Soteriou (2013) 118 SASR 119 at [26] per Vanstone J (with whom Sulan and Stanley JJ agreed).
In the present case, the handwritten lists containing names and monetary amounts was capable of being considered ‘tick lists’ referrable to past sales of drugs. There was expert evidence to that effect. On the basis of the handwriting evidence, and the fact the notebook contained other matters referable to the appellant and was located in a filing cabinet at the Premises, the trial Judge found that the appellant was the author of the ‘tick lists’. That finding was not the subject of complaint on appeal.
Whilst the notebook and ‘tick lists’ could not be dated, they were located in the search at the appellant’s home on 20 September 2018. The evidence also needs to be considered in the context of the presence of the drug trafficking accoutrements (namely, digital scales, press seal bags and CCTV) at the Premises. Seen in that light, the evidence was capable of proving the appellant’s ongoing interest and involvement in the business of drug trafficking, which in turn was strongly probative of the main issues at trial on Count 1. That is, whether the appellant had possession of the methylamphetamine the subject of the charge and whether the appellant’s purpose for possessing the drug was one of sale.
Contrary to the appellant’s submissions, the probative force of the evidence was heightened in the context of the narrow compass of the case. On the prosecution case, at the time police entered the Premises, the appellant was engaged in a drug transaction with other persons with an interest in methylamphetamine, or, in the case of Mr Wojniak, a person with a propensity for trafficking was present and engaged with the appellant in a drug transaction. Evidence of the appellant’s interest or involvement in the business of trafficking drugs was capable of reinforcing the prosecution case that the drugs were in the appellant’s possession to the exclusion of others (because the appellant had either purchased the drugs from one of the other persons present intending to onsell it, or, he was in possession of the drug intending to sell it to another person present). The evidence was strongly probative of possession and the purpose of that possession. The narrow compass of the prosecution case in proving the element of trafficking by eschewing any reliance on the appellant ‘taking part in the process of sale of the drugs’[16] and putting its case on the basis that the appellant was in possession of the drug (to the exclusion of all others), in fact, enhanced the probative value of the impugned evidence, rather than detracted from it. It also remained highly probative to prove the appellant’s intention to sell the drug.
[16] Controlled Substances Act 1984 (SA) s 4 (definition of ‘traffic’).
The prosecution did not seek to rely on the ‘tick lists’ to establish a general propensity on the part of the appellant to commit offences without regard to any probative connection between the impugned evidence and the charged offending. Rather, the prosecution sought to rely on the impugned evidence, in combination with other circumstantial evidence, to establish the appellant’s ongoing involvement in the business of drug trafficking, which was in turn probative of the appellant’s possession of the drug and purpose of that possession.
For those reasons, the probative value of the evidence of the ‘tick lists’ and past sales substantially outweighed any prejudicial effect it may have had.[17] The evidence had strong probative value in relation to the particular issues arising at trial. We are also satisfied that the permissible use of the evidence could be kept sufficiently separate and distinct from the impermissible or general propensity use, so as to remove any appreciable risk of the evidence being used for that purpose.
[17] Section 34P(2)(a) was amended by Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) s 17 to remove the word ‘substantially’, commencing 1 June 2022.
Accordingly, we are satisfied that the impugned evidence satisfied both limbs of s 34P(2) of the Evidence Act.
The trial Judge’s directions
The appellant also contends that the trial Judge failed to properly identify the permissible use of the impugned evidence and for that reason, he did not discharge his obligation under s 34R(1) of the Evidence Act to identify and explain the purpose for which the discreditable conduct may, and may not, be used. The appellant submits that the trial Judge erred by failing to state the permissible use of the evidence ‘in the context of the critical moment when the police arrived on the narrow crown case’.[18]
[18] Appellant’s Written Submissions at [68].
We have earlier set out the trial Judge’s discreditable conduct directions as to the evidence of the ‘tick lists’ and past sales. The trial Judge, having already made findings that the entries in the notebook were made by the appellant and were at least, in part, records of past sales of methylamphetamine, proceeded to consider the admissibility of the evidence under s 34P(2) of the Evidence Act (notwithstanding there was no challenge to the evidence). In doing so, the trial Judge identified the permissible use of the evidence as being ‘whether Mr Magro was in possession of any of the methylamphetamine the subject of count 1 on 20 September 2018, and whether he was in possession intending to sell’.[19] His Honour then identified the impermissible use of the evidence as reasoning that the appellant is a bad person and therefore more likely to be guilty of the charged offence. In accordance with s 34P(3), he was satisfied the permissible use could be kept separate from any impermissible use. His Honour also gave a direction that he would not reason solely that because the appellant has sold drugs in the past, he was in possession of the methylamphetamine or, if he was in possession, that he must have intended to sell it.
[19] R v Magro [2021] SADC 93 at ]106] per Kimber DCJ.
For the reasons outlined earlier, the trial Judge’s directions correctly identified the permissible and impermissible uses of the evidence. The directions were orthodox and clear. Whilst the trial Judge’s discreditable conduct directions did not expressly refer to the narrow compass of the prosecution case, he had earlier outlined in considerable detail how the prosecution put its case. That is, in proof of the offence of trafficking, the prosecution alleged that the appellant was in possession of the drugs at the time police entered the Premises and whilst he was conducting a drug transaction with others by either; having purchased methylamphetamine from another person at the Premises intending to onsell it, or, by having possession of methylamphetamine intending to sell some or all of the drug to another at the Premises. Having already identified the prosecution case on the offence of trafficking, it was not necessary for the trial Judge to reiterate those matters when giving his directions as to the permissible use of the evidence.
Further, the trial Judge clearly and correctly identified the impermissible uses of the impugned evidence and gave himself a direction not to use general propensity or bad person reasoning to a conclusion of guilt.
A review of the trial Judge’s reasons for verdict shows that he did use the impugned evidence in accordance with his directions. His Honour first stated that he was satisfied that the appellant was involved in a drug transaction at the Premises, involving the methylamphetamine the subject of the charge, and the reasons for so finding. He then noted:[20]
Had the prosecution not made possession an essential aspect of count 1, this finding, coupled with my satisfaction beyond a reasonable doubt Mr Magro knew the transaction involved methylamphetamine that was to be sold (i.e. either during the very transaction taking place, or at some later time), would be enough. Mr Magro would be guilty of count 1 on the basis he knowingly ‘took part in sale’.
[20] R v Magro [2021] SADC 93 at [107] per Kimber DCJ.

His Honour then went on to consider the relevant fact in issue; that is, whether the prosecution had proved the appellant was in possession of each amount of methylamphetamine found at the Premises and whether the purpose of possession was one of sale. It was at this point that the trial Judge took into account that the appellant was in the business of trafficking drugs.
When the trial Judge’s directions are considered as a whole, there is no merit in the appellant’s complaint. The directions were sufficient to ensure that his Honour understood the permissible use of the evidence. There is no basis to consider that the discreditable conduct evidence was used for an impermissible purpose.
We dismiss this ground of appeal.
Ground 1
In relation to Counts 2 and 3, the appellant complains that the trial Judge erroneously found that the intercept evidence was admissible under both limbs of s 34P(2) of the Evidence Act. The appellant submits that the impugned evidence was only capable of establishing an inadmissible general propensity. Further, the appellant contends that the trial Judge erred in his directions as to the permissible and impermissible use of the intercept evidence and failed to comply with s 34R(1) of the Evidence Act.
On the prosecution case, the intercept evidence established that the appellant communicated with another person about a firearm known as a ‘Young American Double Shot’ handgun. The conversations were as follows:[21]
[21] Trial Exhibit P7; Trial Exhibit P8.
CALL NO. 14161
Conversation commenced at 030.03am [sic] on 20/09/2018
(Phone rings)
APPELLANT     Yowl.
MALE PERSON   Hey buddy still up Hey, you um.
APPELLANT     Yes.
MALE PERSON   Do you want to do that thing this morning, or I don’t know or now yeah.
APPELLANT     What thing?
MALE PERSON Ah that thing I said I was going to get you.
APPELLANT     Yeah, now?
MALE PERSON Yeah.
APPELLANT     As long as its decent.
MALE PERSON Well.
APPELLANT     Can you get a photo of it or something or can you bring it to show me? Just don’t want you to drive down there for me [to] refuse it sort of thing.
MALE PERSON Um alright. Leave it with me, as long as you’re awake I’ll get ahh, see, yeah alright, listen what happened was my mate, my mate he had lined it up with someone else right.
APPELLANT     Yeah.
MALE PERSON And um he fucked them around over two days so
APPELLANT     Yep.
MALE PERSON Talking to the guy, the other guys were like well I want to see your fucking, I want to see the fucking you know the money before I fucking bring it out again.
APPELLANT     Yep well I’m keen on that. Let’s get a photo at least of
MALE PERSON Yep alright, leave it with me, I’ll work it out … alright?
APPELLANT     Yep.
MALE PERSON Alright buddy, see ya, I’ll get back to you shortly. Bye.
CALL NO. 14163
Conversation commenced at 03.08am on 20/09/2018
(Phone rings)
MALE PERSON Hey buddy.
APPELLANT     …
MALE PERSON Yeah fucking, yeah it’s killer and um
APPELLANT     Yeah.
MALE PERSON Yeah, it, it, it, fucking they, it worked today, killer.
APPELLANT     Yep.
MALE PERSON And um, if you want [to] look it up it’s Young American
APPELLANT     Yep.
MALE PERSON Double shot.
APPELLANT     Okay alright, I’ll look it up.
MALE PERSON See ya buddy.
APPELLANT     Okay.
The prosecution adduced expert evidence from a firearms expert, Mr Christopher Sanders, that a ‘Young American Double Shot’ is a firearm, namely a double action revolver, which has in previous years been imported into Australia.
On the prosecution case, the appellant’s interest in obtaining a firearm (a handgun) on the same day police attended the Premises and seized the firearm the subject of Counts 2 and 3 (a rifle), was a piece of circumstantial evidence demonstrating the appellant’s interest in firearms which was in turn relevant to prove the appellant’s possession of the firearm. To the extent that the intercept evidence revealed the appellant’s propensity to acquire firearms, the prosecution contends that it was of strong probative value. Thus, the prosecution submitted at trial (and on appeal) that the intercept evidence satisfied both limbs of s 34P(2) of the Evidence Act.
Prior to trial, a Notice of Intention By Director to Adduce Discreditable Conduct Evidence was filed by the prosecution to that effect. The appellant did not then challenge the admissibility of the intercept evidence.
To prove the appellant’s possession of the firearm, the prosecution primarily relied on the deeming provision in s 6(2)(d) of the Firearms Act. Section 6 of the Firearms Act relevantly provides:
6—Possession of firearms etc
…
(2)For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
(a)     the person has physical possession or control of the item or has the item in the physical possession or control of another; or
(b)     the person has and exercises access to the item; or
(c)     the person controls access to the item; or
(d)     the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.
(3)However, subsection (2)(d) does not apply if the person proves that—
(a)     he or she did not know, and could not reasonably be expected to have known, that the item was on or in the premises, vehicle, vessel or aircraft;
(b)     the item was in the lawful possession of another or he or she believed on reasonable grounds that the item was in the lawful possession of another.
…
The prosecution alleged that the appellant was the occupier of the Premises, and therefore, deemed to be in possession of the firearm unless he could establish the matters contained within s 6(3)(a). The prosecution also submitted that irrespective of the deeming provision, the evidence established that the appellant either: had physical possession or control of the firearm; had and exercised access to the firearm; or, controlled access to the firearm while it was located at the Premises.
In his record of interview with police, the appellant said that he was the only person who lived at the Premises, apart from his young daughter who stayed on weekends. There was also evidence, by way of an agreed fact, that the appellant was the sole registered proprietor of the Premises.[22] The prosecution relied on those matters to establish that the appellant was the occupier of the Premises.
[22] Trial Exhibit P1 at [13].
There was no dispute that the appellant occupied the Premises, thus s 6(2)(d) of the Firearms Act was engaged. However, in accordance with s 6(3)(a), the defence case was that he did not know, and could not reasonably be expected to have known, that the firearm was on the Premises. In his evidence at trial, the appellant said that the intercept evidence did not relate to a firearm. Rather, the reference to ‘young American’ meant a drag race. The appellant also relied on the evidence of Mr Cowie, that in the context of drag racing, the term ‘double shot’ refers to a nitrous gas that is injected into a vehicle’s motor and results in two-staged acceleration. However, Mr Cowie said that he had not heard of the term ‘young American’.
The appellant denied possession or knowledge of the firearm.
Defence counsel at trial submitted that the appellant had established on the balance of probabilities that the appellant did not know, and could not reasonably be expected to have known, the firearm was on the Premises. It was submitted that it was likely that another person had buried the firearm on the Premises shortly before police arrived on 20 September 2018. In support of this contention, defence counsel emphasised the appellant’s denials in his evidence; the shallow burial of the firearm; that there was another person (Mr Daly) present with a proven interest in, and propensity to possess, firearms; that there were four other persons present with an interest in methylamphetamine; and the expert evidence that firearms are sometimes associated with that drug.
Defence counsel submitted that for the same reasons, the prosecution had not established the appellant was in possession of the firearm.
The trial Judge’s reasons
In his reasons for verdict, the trial Judge made the following findings in relation to the intercept evidence:[23]
An aspect of the prosecution case with respect to possession of the firearm was that I was asked to conclude that in the early hours of the morning on 20 September 2018, Mr Magro communicated with another person about a different firearm. On the prosecution case, Mr Magro expressed an interest in coming into possession of a ‘Young American Double Shot’ (i.e. ‑ a handgun of the type described by Mr Sanders). The prosecution says that if, on the same day the police attended, Mr Magro was interested in a different firearm to the one the subject of counts 2 and 3, that interest is a piece of circumstantial evidence which can, along with other evidence, show that Mr Magro had possession of the firearm the subject of count those [sic] two counts.
I am satisfied that during the two calls within P7 in the early hours of 20 September 2018, Mr Magro expressed an interest in coming into possession of a firearm and that it was an interest in a different firearm to that the subject of counts 2 and 3. I reject Mr Magro’s evidence he was expressing interest in an item associated with drag racing. I do not reject that a ‘double shot’ might be a term used in drag racing. Nonetheless, it is of some relevance that Mr Cowie, who had some experience of car racing and of what a ‘double shot’ was in that context, did not claim any knowledge of that term being used in conjunction with the words ‘Young American’.
However, I am satisfied Mr Magro was not offered just a ‘double shot’, but a ‘Young American Double Shot’. The words ‘double shot’ are not to be considered isolated from the words ‘Young American’ used by the person to whom Mr Magro was speaking in the phone call at 3.08 am on 20 September 2018. I am satisfied the person to whom Mr Magro spoke in the call at 3:03 am offered him a firearm. It is not the state of mind of the person to whom Mr Magro spoke which is important. It is the state of mind of Mr Magro. I am satisfied that during the call at 3:03 am, Mr Magro knew he was being offered a firearm of some sort, presumably as a result of some earlier communication/s. In the call at 3:03 am, Mr Magro then expressed an interest in coming into possession of that firearm, subject to seeing it (either in a photo, or in person). I am satisfied that in the call at 3:08 am on that day, Mr Magro was told the firearm was a ‘Young American Double Shot’.
That Mr Magro had an interest in possessing a different firearm to the one the subject of counts 2 and 3 on the same day the firearm the subject of those counts was found in his backyard, has a probative value which substantially outweighs any prejudicial effect it may have upon Mr Magro. It also has strong probative value having regard to the particular issue arising with respect to both counts 2 and 3 (i.e. ‑ as a piece of circumstantial evidence bearing upon whether Mr Magro was in possession of the firearm the subject of those counts). That permissible use can be kept sufficiently separate and distinct from the impermissible use of reasoning that Mr Magro was a bad person because he expressed an interest in possessing a firearm early on 20 September 2018.
For the above reasons, I am satisfied beyond a reasonable doubt that Mr Magro was in possession of the firearm.
(citations omitted)
[23] R v Magro [2021] SADC 93 at [66]–[70] per Kimber DCJ.
As can be seen, the trial Judge was satisfied that the appellant expressed an interest in acquiring a (different) firearm during the two phone calls in the early hours of 20 September 2018. Despite there being no objection to the evidence, his Honour nonetheless considered both limbs of s 34P(2) of the Evidence Act. He found that the intercept evidence had a probative value which substantially outweighed any prejudicial effect it may have had upon the appellant, and was of strong probative value as a piece of circumstantial evidence bearing upon the issue of possession. He also determined that the permissible use of the intercept evidence could be kept sufficiently separate and distinct from its impermissible use, that is ‘bad person’ reasoning.
The trial Judge found that the appellant was the occupier of the Premises (a matter about which there was no dispute) and that the Premises included the backyard where the firearm was located. Having found that the appellant occupied the Premises on 20 September 2018, his Honour then considered whether the appellant had established on the balance of probabilities that he did not know, and could not reasonably be expected to have known, that the firearm was on the Premises. His Honour considered the appellant’s innocent explanation and said the appellant had not satisfied him ‘on the balance of probabilities he did not know the firearm was on his premises. I reject his evidence about that’.[24]
[24] R v Magro [2021] SADC 93 at [60] per Kimber DCJ.
Although unnecessary given that finding, the trial Judge went on to conclude that on the whole of the evidence, irrespective of the deeming provision, he was satisfied beyond reasonable doubt the prosecution had proved the appellant’s possession of the firearm by establishing that he had the power and intention to exercise control over it to the exclusion of any other person. His Honour said:[25]
Although I do not have to go this far, on the whole of the evidence, including Mr Magro’s evidence, I am satisfied beyond a reasonable doubt both that he knew the firearm was there and he had the power and intention to exercise control over it to the exclusion of any other person. My reasons follow.
The firearm was buried in the backyard of Mr Magro’s home. I reject that if Mr Magro was in possession of the firearm, he was unlikely to bury it in his backyard. Such a location limited the risk of it being found by anyone who might visit, or stay at, the house. The possibility that another might have placed it there earlier on 20 September 2018, or at some earlier time, must be evaluated in light of the following matters.
Mr Magro was the only adult who lived at the house permanently.
I am satisfied the item was valuable. Not only had it been hidden, it had been carefully wrapped to protect it against the elements.
It is unlikely another person would have hidden it there without telling Mr Magro. I reject that might have happened. It was Mr Magro’s backyard. Hiding it there without telling Mr Magro gave rise to a risk of it being found and then lost by the person who left it there. If another person did that, they must have chosen to bury it at a depth of only about 10 cm in a garden bed which common sense would have told them might have been accessed by Mr Magro at any time. I am satisfied Mr Magro knew of the presence of the firearm. That knowledge does not prove possession, but it is relevant to whether possession has been proven beyond a reasonable doubt.
The firearm was wrapped in Glad Wrap and a “Glad” bin liner. Mr Magro had both items in his kitchen. Both are common items, easily available to anyone. However, not just one of those items was used, but both. Further, as with all items of circumstantial evidence, the significance of the wrapping must be considered in light of all of the circumstantial evidence.
(citations omitted)
[25] R v Magro [2021] SADC 93 at [60]–[65] per Kimber DCJ.
The trial Judge then considered the admissibility of the intercept evidence and gave directions as to its permissible and impermissible use. His Honour concluded that on the whole of the evidence, he was satisfied the appellant was in possession of the firearm.
The appellant’s submissions
The appellant submits that the primary issue in dispute at trial was the appellant’s knowledge of the firearm at the Premises at the time of the search. The appellant contends that this was the criterion by which the probative value and the prejudicial effect of the intercept evidence ought to have been evaluated,[26] in light of the other evidence on the prosecution case.[27] The appellant submits that the trial Judge did not properly articulate the probative value of the evidence, the prejudicial effect it may have had on the appellant, or the ‘particular issue arising’.[28] The appellant submits the process the trial Judge was required to engage in necessitated a more nuanced analysis than a ‘vague’ reference to possession;[29] that is, what did the intercept evidence say about the appellant’s knowledge of the firearm buried in his garden?
[26] Hughes v The Queen (2017) 263 CLR 388 at [88] per Gageler J.
[27] Hughes v The Queen (2017) 263 CLR 388 at [61] per Kiefel CJ, Bell, Keane and Edelman JJ.
[28] Appellant’s Written Submissions at [21].
[29] Appellant’s Written Submissions at [17].
The appellant submits that there was not a strong probative connection between the intercept evidence and the question of whether the appellant had established that he did not know there was a different firearm concealed at the Premises which he occupied. In other words, the permissible use of the evidence was not probative of the appellant’s knowledge of the seized firearm; there was no correlation between the alleged particular propensity to acquire firearms and his knowledge of the firearm located at the Premises he occupied.
The appellant also submits that the trial Judge’s directions were erroneous in that they did not properly articulate the probative value of the evidence or its prejudicial effect, and in relation to s 34P(2)(b), did not identify, with sufficient clarity, the particular issue or issues arising at trial of which the evidence was arguably strongly probative.
The appellant contends that a further difficulty arose in the trial Judge describing the impermissible use of the evidence by reference only to the appellant being a ‘bad person’. This did not capture the true nature of the impermissible use; that is, to reason that because the appellant had in the past engaged in discreditable conduct (attempting to unlawfully acquire or possess a firearm), he is likely to have committed the charged offence. As observed by Kourakis CJ in R v C, CA:[30]
[I]t is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity.
Consideration
[30] [2013] SASCFC 137 at [76] (with whom Anderson J and Nicholson J relevantly agreed).
The trial Judge was only required to consider the question of the admissibility of the intercept evidence in the event that an objection was taken.[31] The appellant did not challenge the admissibility of the intercept evidence at trial. Notwithstanding that no objection was taken, the trial Judge considered its admissibility under s 34P(2) of the Evidence Act.
[31] R v Jones (2018) 131 SASR 532 at [28] per Nicholson J (with whom Kourakis CJ and Hinton J agreed); R v C, G (2013) 117 SASR 162 at [48]–[50] per Gray, Sulan and Blue JJ.
In proof of possession, the prosecution did not only rely on the deeming provision in s 6(2)(d). It also presented its case on the basis that the appellant had: physical possession or control of the firearm; had and exercised access to the firearm; or, controlled access to the firearm. Thus, proof of possession was in dispute separately from the question of whether the deeming provision in s 6(2)(d) operated and whether the matters contained in s 6(3) had been established. For that reason, though unnecessary, the trial Judge went on to find that he was satisfied that the appellant ‘had the power and intention to exercise control over [the firearm] to the exclusion of any other person’.[32]
[32] R v Magro [2021] SADC 93 at [60] per Kimber DCJ.

In any event, on appeal, it is the conclusion of this Court as to the admissibility and permissible use of the impugned evidence which is determinative. As Kourakis CJ said in R v MJJ:[33]
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 s 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.
[33] (2013) 117 SASR 81 at [16].
We are satisfied the intercept evidence was admissible under both limbs of s 34P(2) of the Evidence Act. The probative value of the intercept evidence substantially outweighed any prejudicial effect it may have had and the evidence had a strong probative value in proof of the appellant’s possession of the subject firearm. Although not used for this purpose, we are satisfied that it was also admissible to rebut the appellant’s purported lack of knowledge of the firearm.
There was no challenge on appeal to the trial Judge’s factual findings as to the intercept evidence, namely, that during the intercepted telephone conversations in the early hours of the morning of 20 September 2018, the appellant expressed an interest in acquiring a handgun, that being a different firearm to the one located at the Premises. The appellant’s interest in acquiring a firearm was a significant piece of circumstantial evidence relevant to prove the appellant’s possession of the subject firearm and to rebut his evidence that he did not know the firearm was on the Premises. The timing of the intercept evidence was important given the conversation took place less than 24 hours before the subject firearm was located at the Premises. The intercept evidence also revealed that there had been earlier discussions between the appellant and the caller about acquiring this firearm, which underscored his interest in acquiring firearms. This was not the first time the issue had been raised between the men.
The intercept evidence (considered along with other evidence) made it more likely that the subject firearm was in the possession of the appellant, that is: he had physical possession or control of the item; he had and exercised access to the item; or, he controlled access to the item. It also undermined the appellant’s evidence that he did not know of the presence of the firearm on the Premises.
To the extent the intercept evidence showed the appellant’s propensity to acquire firearms, the trial Judge was not in error in finding that it had strong probative value on the question of possession. The prosecution did not seek to rely on the evidence to show that the appellant was a bad person who had engaged in other criminal conduct, which had no probative value in relation to the firearms offences. The intercept evidence did not simply amount to evidence of a general propensity to commit crime. It was relevant to establish the appellant’s particular propensity to acquire firearms, which in turn had strong probative value in relation to the central issues of his possession and knowledge of the firearm.
The impermissible use of the evidence was obvious and correctly articulated by the trial Judge as ‘bad person reasoning’.[34] The impermissible use of discreditable conduct evidence prohibited by s 34P of the Evidence Act is ‘the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable’.[35] That impermissible general propensity use is quite distinct from the use made of the intercept evidence by the trial Judge. As outlined earlier, the appellant’s particular propensity to acquire firearms had a direct bearing on the question of whether he was in possession of the firearm located at the Premises. It also rebutted the appellant’s purported lack of knowledge of the firearm buried in his backyard. In those circumstances, we are satisfied that the permissible use of the evidence could be kept separate and distinct from the impermissible use (that is, bad person reasoning), so as to remove any perceptible risk of the evidence being used for that purpose.
[34] R v Magro [2021] SADC 93 at [136] per Kimber DCJ.
[35] R v MJJ (2013) 117 SASR 81 at [18] per Kourakis CJ.
The intercept evidence was admissible under both limbs of s 34P(2). There was no error by the trial Judge in relying on the intercept evidence when considering the issue of possession. Although the evidence was not used by the trial Judge to rebut the appellant’s asserted lack of knowledge of the firearm, it was also admissible under s 34P(2) of the Evidence Act for that purpose.
The trial Judge’s directions
The appellant also contends that trial Judge’s directions as to the permissible and impermissible uses of the intercept evidence failed to comply with s 34R(1) of the Evidence Act. We will deal first with the submission that the directions did not properly articulate the probative value of the evidence, and in relation to s 34P(2)(b), did not identify with sufficient clarity the particular issue or issues arising at trial about which the evidence was arguably strongly probative.
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.[36] As Lovell J said in JGS v The Queen:[37]
[T]he nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial. What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence. Ultimately, when considering the adequacy of the directions given, the issue is whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use.
(citation omitted)
[36] R v Tran [2017] SASCFC 99 at [163] per Doyle J.
[37] [2020] SASCFC 48 at [97] per Lovell J (with whom Peek and Bampton JJ agreed).
The trial Judge gave correct and orthodox directions as to the permissible use of the intercept evidence. In his reasons for verdict, he made clear that the evidence was capable of showing that the appellant had an interest in acquiring firearms; his interest being a piece of circumstantial evidence which had a bearing on the issue of possession. His Honour made factual findings that he was satisfied that the appellant had expressed such an interest in acquiring a firearm during the telephone conversations on the morning of the police search.
As discussed earlier, the trial Judge considered the admissibility of the intercept evidence, and in doing so, determined that the evidence had the requisite probative value to satisfy both limbs of the test in s 34P(2). The trial Judge went on to say that the intercept evidence had strong probative value ‘as a piece of circumstantial evidence bearing upon whether Mr Magro was in possession of the firearm’.[38] As outlined earlier, the trial Judge only considered the intercept evidence in proof of the appellant’s possession of the firearm. The directions given by the trial Judge made it clear that he well understood the permissible use of the intercept evidence. It is difficult to envisage how his directions could have been articulated more clearly or comprehensively.
[38] R v Magro [2021] SADC 93 at [69] per Kimber DCJ.
In relation to the submission that the trial Judge erred by failing to give a direction against impermissibly using the intercept evidence to reason that because the appellant had a propensity to unlawfully obtain access and control of firearms, he was a bad person and thus more likely to have committed the charged offence, we are satisfied there was no risk of misuse of the intercept evidence. We do not accept that there is any risk that the trial Judge, having referred to the impermissible use of the evidence as ‘bad person’ reasoning, would then proceed to reason that the appellant was more likely to have committed the offence because he was in fact a bad person. That submission is untenable.
In the circumstances of this case, we are satisfied that the trial Judge’s directions complied with s 34R(1) of the Evidence Act.
We dismiss this ground of appeal.
Grounds 5 – 7: Unreasonable verdicts
The principles that apply where a complaint is made that a verdict is unreasonable are well settled. The majority of the High Court in M v The Queen (‘M’) stated:[39]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(citations omitted)
[39] (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ.
Recently in Dansie v The Queen, the High Court citing Filippou v The Queen,[40] confirmed that the determination of an appeal on the ground of an unreasonable verdict is to be performed under the guidance of M in exactly the same way where the trial has been by judge alone as where the trial has been by jury.[41] The majority said:[42]
In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court “will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal’s advantage in seeing and hearing the evidence is capable of resolving that doubt”.
Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.
(citation omitted)
[40] (2015) 256 CLR 47 at [12] per French CJ, Bell, Keane and Nettle JJ, at [82] per Gageler J.
[41] (2022) 96 ALJR 728 at [15].
[42] Dansie v The Queen (2022) 96 ALJR 728 at [15]–[16].
The appellant contends that the verdict of guilty in relation to each count was unreasonable or could not be supported by the evidence.
Ground 5
As to Count 1, the drug trafficking offence, the appellant contends that the verdict was unreasonable on the basis that the evidence was incapable of excluding the reasonable possibility that another person (such as Mr Daly, Mr Dobrucki, or Mr Wojniak) was in possession of the methylamphetamine to the exclusion of the appellant. Further, the appellant submits that the basis upon which the trial Judge found that the prosecution had not proved his possession of some amounts of the methylamphetamine applied equally to those amounts which were found to be in his possession.
As to the amounts on the kitchen bench of 7.51 g, 0.06 g, and 0.05 g, the trial Judge found that he could not exclude as a reasonable possibility that at the time of police attendance, one or more of the other persons present might have been in possession of the drugs having brought them to the Premises or having recently purchased them from the appellant. As to the 0.92 g of methylamphetamine located in the sink, the trial Judge found he could not exclude that the appellant was in the process of purchasing that amount and that he had not yet taken possession of it.
In relation to the 1.15 g of methylamphetamine found on the lid in the kitchen, in finding that the appellant was in possession of the drug, the trial Judge relied on the fact the appellant admitted the lid belonged to him and its location, which was apart from the other drugs. His Honour also relied on other matters common to all amounts, namely, the fact it was in the appellant’s kitchen, that he was involved in a drug transaction, and his interest in trafficking methylamphetamine, in finding that the appellant was in possession of the methylamphetamine on top of the lid. The appellant submits that the fact the lid belonged to him and its location in the kitchen were insufficient distinguishing features to justify the different conclusion reached by the trial Judge in relation to this amount of methylamphetamine. Nor did it justify the trial Judge’s conclusion that the methylamphetamine was in the appellant’s possession.
As to the two amounts of methylamphetamine found in the National Pharmacies bag, the trial Judge found that they were in the appellant’s possession because of the location of the bag away from the other items, in addition to the packaging of the amounts and other matters common to the other amounts of methylamphetamine located at the Premises. The appellant submits this was not a sufficient basis to distinguish these amounts of methylamphetamine from the other amounts of the drug found not to be in the appellant’s possession.
The appellant contends that the prosecution could not prove that the 1.15 g of methylamphetamine on the lid and the two amounts of 0.071 g and 0.08 g of methylamphetamine located in the National Pharmacies bag were in the possession of the appellant to the exclusion of all others present at the Premises. Accordingly, the verdict was unreasonable or could not be supported having regard to the evidence.
We do not accept that submission.
After an independent assessment of the whole of the evidence, we are satisfied that it was open for the trial Judge to find that the appellant was in possession of the 1.15 g of methylamphetamine on the plastic lid on the microwave (to the exclusion of all others) with an intention to sell all, or some, of the drug. We have reached this conclusion having regard to:
1.The fact the drugs were in the appellant’s kitchen and he was the sole occupier of the Premises;
2.The appellant’s admission that the lid belonged to him;
3.The evidence that a drug transaction had been occurring immediately prior to police entering the Premises and the appellant’s involvement in that transaction;
4.Its location on the microwave, away from the kitchen bench and the scales and the other amounts of methylamphetamine, which suggests that it belonged to the occupier of the Premises; and
5.The evidence that the appellant was the author of the ‘tick lists’ within the notebook, which along with the accoutrements of sale present at the Premises (the digital scales, resealable bags, cash and CCTV), suggests that the appellant was in the business of trading in drugs.
As to the two amounts of methylamphetamine in the small press sealed bags within the National Pharmacies bag, we are satisfied that it was open for the trial Judge to find that the appellant was in possession of the drugs for the purpose of sale, having regard to:
1.The fact the drugs were in the appellant’s kitchen and he was the sole occupier of the Premises;
2.The location in the kitchen cupboard and adjacent from the bin, which suggests that it belonged to the occupier of the Premises;
3.The evidence that a drug transaction had been occurring immediately prior to police entering the Premises and the appellant’s involvement in that transaction;
4.The appellant’s possession of small press sealed bags, similar to those in which the amounts of methylamphetamine were packaged; and
5.The evidence that the appellant was the author of the ‘tick lists’ within the notebook, which along with the accoutrements of sale present at the Premises (the digital scales, resealable plastic bags, cash and CCTV), suggests the appellant was in the business of trading in drugs.
Upon an independent review of the evidence, we are satisfied that the matters raised by the appellant do not support a conclusion that the trial Judge must have had a reasonable doubt as to the offence. The location of each amount of drug (removed and separate from those drugs involved in the alleged interrupted drug transaction) was a significant matter in proof of the appellant’s possession to the exclusion of others present at the Premises. We are satisfied that it was open to the trial Judge to find the appellant in possession of the amounts of methylamphetamine located on the container lid and in the National Pharmacies bag for the purpose of sale. Thus, we are satisfied it was open to find the appellant guilty of Count 1.
We dismiss this ground of appeal.
Ground 6
In relation to Counts 2 and 3, the firearms offences, the appellant contends that it was not open for the trial Judge to find that the appellant had not established that he did not know that the firearm was on the Premises, nor was it open for him to find that the appellant was in possession of the firearm by exercising control over it. The appellant relied on the presence of Mr Daly at the Premises and his propensity to unlawfully possess firearms, as well as the presence of other persons (including Mr Daly) with an interest in methylamphetamine, the trading of which is sometimes associated with firearms.
The appellant also emphasised that the firearm was wrapped in common household packaging and that the other persons present had access to that packaging located in the kitchen at the Premises. The appellant also noted the shallow nature of the hole in which the firearm was secreted, which he submits is suggestive of a recent burial of the item.
In effect, the appellant contends that the prosecution could not exclude as a reasonable possibility that another person (such as Mr Daly) was in possession of the firearm, nor could they rebut the appellant’s evidence that he did not know, and could not reasonably be expected to have known, that the firearm was on the Premises.

We do not accept the appellant’s submissions. Upon an independent review of the evidence, we are satisfied that the appellant occupied the Premises. Indeed, this was not in dispute. Pursuant to s 6(2)(d) of the Firearms Act, the onus then fell on the appellant to establish those matters contained in s 6(3), that is he did not know, or could not reasonably have known, that the firearm was buried at the Premises. Upon a review of the evidence, we are also satisfied that it was open for the trial Judge to find that the appellant had not satisfied him on the balance of probabilities that he did not know the firearm was on his Premises, notwithstanding the presence of others with an interest in firearms or methylamphetamine, or both. We have reached this conclusion on the basis of the following evidence:
1.The appellant was the only permanent occupier of the Premises;
2.The firearm was valuable, and it was unlikely that another person would bury it at the Premises without first advising the appellant, who could access it anytime. It is also unlikely that another person would be able to do so without the appellant becoming aware of it;
3.The firearm was wrapped in two types of packaging (Glad wrap and a Glad brand bin liner), both of which were located in the appellant’s kitchen; and
4.The intercept evidence, which established the appellant’s interest in acquiring another firearm shortly before the firearm was located by police at the Premises.
As to the alternate basis upon which the prosecution alleged the appellant was in possession of the firearm, we are also satisfied upon an independent review of the evidence that it was open to the trial Judge to find that the appellant was exercising control of it. We have reached that conclusion on the basis of the same evidentiary matters outlined above. Having regard to those matters, we are satisfied that it was open to the trial Judge to exclude as a reasonable possibility that the firearm was in the possession of another person at the Premises. The matters raised by the appellant do not support a conclusion that the trial Judge must have entertained a reasonable doubt as to the appellant’s possession of the subject firearm.
Accordingly, it was open to the trial Judge to convict the appellant of Counts 2 and 3.
We dismiss this ground of appeal.
Ground 7
As to Count 4, the money laundering offence, the prosecution was required to establish the following elements in proof of the offence. First, that the appellant engaged directly or in directly in a transaction involving money. Second, that the money was tainted. Third, the appellant knew the money was tainted at the time he engaged in the transaction. A ‘transaction’ includes being in possession of money.[43] ‘Tainted property’ means stolen property or property obtained from any other unlawful act or activity (within or outside the State), or the proceeds of such property.[44] The money the subject of the charge was the $17,060, located in the safe at the Premises. The prosecution alleged that the money was tainted as it was the proceeds of past sales of methylamphetamine. The prosecution was not required to prove that all the money in the appellant’s possession was tainted, only that some of it was.
[43] Criminal Law Consolidation Act 1935 (SA) s 138(3)(c).
[44] Criminal Law Consolidation Act 1935 (SA) s 130 (definition of ‘tainted property’).
At trial, the appellant admitted being in possession of the money located in the safe.
In his reasons for verdict, the trial Judge concluded that he was not able to exclude as a reasonable possibility the appellant’s explanation in relation to $15,000 of the money, as supported by the evidence of Mr Cowie. However, his Honour found that at least some of the remaining $2,060 cash was tainted on the basis that it had come from past sales of methylamphetamine. The trial Judge relied on the following matters in reaching that conclusion: the appellant was involved in a drug transaction that was interrupted by police on 20 September 2018; he had engaged in the business of trafficking in drugs prior to that date, as demonstrated by the ‘tick lists’; and he was possession of methylamphetamine with an intention to sell it.
The appellant contends it was not open for the trial Judge to accept the appellant’s evidence that $15,000 of the cash had been acquired legitimately and find that the remaining $2,060 cash in the safe was tainted or the proceeds of past drug sales. The appellant contends that the trial Judge’s reasoning in this regard was incongruous.
It is to be immediately noted that the appellant’s evidence as to the legitimacy of the $15,000 cash was supported by the evidence of Mr Cowie. Further, the trial Judge made it clear that he was ‘suspicious about the honesty of the evidence of both Mr Magro and Mr Cowie about the exchange of about $15,000’ but despite his suspicions, he was ‘unable to reject the evidence of Mr Cowie and Mr Magro about the transaction over car parts beyond a reasonable doubt’.[45] It was open for the trial Judge to reject aspects of the appellant’s evidence whilst finding that he could not reject other parts of the appellant’s evidence (which were supported by another witness) beyond reasonable doubt.
[45] R v Magro [2021] SADC 93 at [133]–[134] per Kimber DCJ.
In any event, upon an independent review of the evidence, including the appellant’s evidence, we are satisfied that it was open for the trial Judge to conclude beyond reasonable doubt that some of the money in the safe was tainted and to find the appellant guilty of the money laundering offence. We have reached this conclusion having regard to the following matters:
1.The evidence that the appellant was in the business of trafficking methylamphetamine, namely the ‘tick lists’ and the accoutrements of sale present at the Premises;
2.The evidence that the ‘tick lists’ included large monetary amounts of many thousands of dollars; and
3.The evidence that the appellant was engaged in a drug transaction at the time police arrived at the Premises.
Upon an independent review of the evidence, it was open to the trial Judge to find the appellant guilty of Count 4. We dismiss this ground of appeal.
Conclusion
We grant permission to appeal on Grounds 5 and 6 but dismiss the appeal.