Date of Order: 19 April 2018 Date of Publication of Reasons: 8 August 2018
M161/2017
ORDER
1.The appeal be allowed.
2.The order of the Court of Appeal made on 5 April 2017 allowing the respondent's appeal to that Court be set aside and in place of that order the appeal to that Court be dismissed.
On appeal from the Supreme Court of Victoria
Representation
C B Boyce SC with J B B Lewis for the appellant (instructed by Solicitor for Public Prosecutions)
T Kassimatis QC with C T Carr for the respondent (instructed by James Dowsley & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Falzon
Criminal law – Appeal against conviction – Where cannabis and drug paraphernalia found at four properties including respondent's home – Where $120,800 in cash found at respondent's home – Where respondent charged with cultivation and trafficking of cannabis found at three properties not including his home – Where Crown alleged offences of trafficking constituted of possession of cannabis on particular date for purpose of sale – Where evidence of cash led as evidence respondent engaged in business of cultivating cannabis for sale – Whether evidence of cash wrongly admitted at trial.
Words and phrases – "accoutrements of drug trafficking", "business of trafficking", "cash", "drug trafficking", "indicia of trafficking", "intermediate appellate court", "possession", "profit making enterprise", "propensity", "purpose of sale", "tendency".
KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. 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[1], 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[2], 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.
[1]See for example Sultana
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Falzon [2018] HCA 29
Case
[2018] HCA 29
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against an order of the Court of Appeal which had allowed the respondent's appeal against his conviction. The respondent was charged with trafficking and cultivating cannabis found at three properties, and the Crown alleged that the trafficking offences involved possession of cannabis for the purpose of sale. Evidence of $120,800 in cash found at the respondent's home was admitted at trial as evidence that the respondent was engaged in the business of cultivating cannabis for sale.
The central legal issue before the High Court was whether the trial judge had erred in admitting the evidence of the substantial sum of cash found at the respondent's home. The respondent had objected to its admission, arguing it was irrelevant or that its prejudicial effect outweighed its probative value. The trial judge had ruled it admissible as part of the Crown's circumstantial case, akin to other "indicia of trafficking," and found its probative value was not outweighed by prejudice. The Court of Appeal had subsequently found that a substantial miscarriage of justice had occurred due to the admission of this evidence.
The High Court analysed previous intermediate appellate court decisions concerning the admissibility of cash in drug trafficking cases. It noted that in *Lewis* and *McGhee*, courts had held that evidence of cash found in proximity to drugs and drug paraphernalia was admissible as tending to prove the existence of an ongoing drug business and, consequently, the purpose of sale for the drugs found in possession. This reasoning suggested that cash could be considered "working capital" or a "cash float" for expected sales in a profit-making enterprise. The High Court ultimately allowed the Crown's appeal, setting aside the Court of Appeal's order and dismissing the respondent's appeal to that court.
Orders
Orders of the court
1. The appeal be allowed.
2. The order of the Court of Appeal made on 5 April 2017 allowing the respondent's appeal to that Court be set aside and in place of that order the appeal to that Court be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The respondent was arrested on 17 December 2013 and, during the course of interview, made a number of admissions. He said that he smoked cannabis and claimed that the cannabis found at Essendon was his own and was for his personal use. When asked where he had obtained the cannabis, he said that he had grown it. When asked where he had grown the cannabis, he answered: "you know where". He admitted that he was a joint owner of the Sydenham property and had purchased it about a year before, and he said that he had grown 19 cannabis plants there of which nine had been harvested. When asked what his purpose was for the plants found at Sydenham, he answered: "personal use". He said that there had been a harvest at that property some two weeks before 17 December 2013, and, when asked what had become of that material, he said: "smoke most of it, youse got the rest". He admitted that he visited Sydenham and tended the cannabis plants there, and that he had been cultivating cannabis plants there for about six months. When asked what he did with the cannabis that he did not smoke himself, he said: "give it to me mates and that. Mates come around, with the car club".The trial judge's ruling regarding the evidence of the cash Prior to the empanelment of the jury, the respondent objected to admission of the evidence of the $120,800 in cash found at Essendon, on the basis that it was irrelevant or alternatively that its prejudicial effect outweighed its probative value. The trial judge ruled that the evidence was admissible "in the same way as the finding of other indicia of trafficking is admissible", as part of the Crown's circumstantial case, and that the probative value of the evidence was not outweighed by its prejudicial effect:"Such evidence is capable, in my opinion, of having probative value when looked at alongside other evidence, including that of the organised and systematic cultivation of significant quantities of cannabis and the indicia of trafficking that I have previously referred to. I do not consider that the probative value of such evidence is outweighed by the danger of unfair prejudice to [the respondent]."The course of the trial The respondent was indicted on four charges: (1) at Sunshine North, trafficking in a drug of dependence, namely, Cannabis L, in a quantity that was not less than the commercial quantity applicable to that drug contrary to s 71AA of the Drugs Act (Charge 1); (2) alternatively to Charge 1, at Sunshine North, cultivating a drug of dependence, namely, Cannabis L, in a quantity not less than the commercial quantity applicable to that narcotic plant contrary to s 72A of the Drugs Act (Charge 2); (3) at Sydenham, trafficking in a drug of dependence, namely, Cannabis L, contrary to s 71AC of the Drugs Act (Charge 3); (4) alternatively to Charge 3, at Sydenham, cultivating a drug of dependence, namely, Cannabis L, contrary to s 72B of the Drugs Act (Charge 4). The respondent pleaded guilty to Charge 4 but not guilty to the other charges.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ
(dissent)
The Crown appealed from the Court of Appeal's judgment on one ground only, namely, that the majority erred in concluding that a substantial miscarriage of justice had occurred as a result of the trial judge admitting evidence at trial of the $120,800 that was found at Essendon. Intermediate appellate court decisions in respect of the admissibility of cash In Lewis[27], police attended the appellant's flat and found him in possession of 118 grams of cannabis as well as $750 in $50 notes under his mattress and $2,000 in $100 and $50 notes in the pocket of his jacket. They seized the cash, along with an envelope on which there were a number of figures and calculations and the first names of three people. The appellant was charged with possession of cannabis for the purpose of supply. Before the trial, defence counsel objected to the tender of the cash. The trial judge ruled that the cash was relevant to whether the appellant's purpose in having the cannabis was for the purpose of supply[28]. The appellant was subsequently convicted of the charge and appealed on the basis that the cash was wrongly admitted into evidence. That ground of appeal was upheld by a majority of the Court of Criminal Appeal of the Supreme Court of the Northern Territory[29]. But it is the decision of Rice J in dissent which has ultimately prevailed in subsequent authority. Rice J held that the evidence of the cash was admissible as it had probative value as evidence of a business in the sale of drugs and, in turn, evidence of the purpose for which the appellant had the cannabis in his possession in relation to the charge against him[30]. [27](1989) 46 A Crim R 365 at 369 per Martin J.[28](1989) 46 A Crim R 365 at 370-371.[29](1989) 46 A Crim R 365 at 373 per Martin J, 376 per Angel J.[30](1989) 46 A Crim R 365 at 367. The reasoning of Rice J was followed by Cox J in McGhee[31]. In that case, police raided a house occupied by the accused in which they found amphetamine and cannabis, and, amongst other things, two sets of scales, a pistol and holster and ammunition, a wallet containing $900 in cash and a packet of amphetamine, and $110 in cash in a pair of jeans apparently belonging to the accused[32]. The accused was charged with two offences of possessing methylamphetamine for sale and possessing cannabis for sale. Defence counsel objected to the tender of the money in the wallet. Cox J held that it was admissible as tending to prove the existence of an ongoing business, and, therefore, as tending to prove that the accused's possession of illegal drugs on the particular occasion was for the purpose of sale[33]. His Honour added that, if the accused were running a drug business at the time of the offence, it would be reasonable, in the absence of any plausible alternative explanation, to regard the $900 cash, or at least part of it, as "working capital" or a "cash float" for expected sales[34]. [31](1993) 61 SASR 208 at 210-211.[32](1993) 61 SASR 208 at 208-209.[33](1993) 61 SASR 208 at 210-211.[34](1993) 61 SASR 208 at 209-210.