R v Jones - [2018] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JONES
[2018] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
14 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
Application for permission to appeal against conviction and appeal against sentence.
The appellant was convicted following a trial by jury of the offence of trafficking in a controlled drug. He was sentenced to a term of imprisonment for four years, with a non-parole period of two years and nine months.
During a police search of premises, the appellant produced from the pocket of his pants a metal tin, in which police found a substance containing a quantity of methylamphetamine. Police also located items at the premises including large sums of cash, digital scales, a ‘tick list’, multiple mobile phones and a number of ice pipes. The prosecution adduced expert evidence from a police officer as to items commonly associated with or indicative of drug dealing.
At trial, the appellant conceded possession of the substance and that the substance contained methylamphetamine. The prosecution relied on the statutory presumption in section 32(5) of the Controlled Substances Act 1984 (SA) that, should it be proved beyond reasonable doubt that the appellant had possession of a trafficable quantity of methylamphetamine, it was to be presumed in the absence of proof to the contrary that the appellant had an intention to sell some or all of the methylamphetamine in his possession. The prosecution also relied on some of the items located by police at the premises as being circumstantial evidence, and discreditable conduct evidence, as tending to prove that the appellant was engaged in trafficking.
The central issue was whether the appellant could satisfy the jury on the balance of probabilities that he did not intend to sell any of the methylamphetamine in his possession. The appellant adduced evidence from witnesses to the effect that the methylamphetamine had been acquired jointly by the appellant and other persons for personal consumption. The appellant conceded that the cash located at the premises was his and proffered an innocent explanation for it.
The appellant relies on two grounds of appeal with respect to his conviction: first, that the Judge erred in his directions concerning certain discreditable conduct evidence by failing to comply with section 34R of the Evidence Act 1929 (SA) and second, that the summing up was imbalanced, causing a miscarriage of justice. The appellant appeals against his sentence on the ground that the non-parole period is manifestly excessive.
Held per Nicholson J (Kourakis CJ and Hinton J agreeing), granting permission to appeal and allowing the appeal against conviction:
1. The directions given with respect to the discreditable conduct evidence failed to comply with either of the requirements of section 34R(1) and constituted an error of law.
2. The distinction between the permissible and impermissible uses of discreditable conduct evidence must be the subject of an express direction to the jury as required by section 34R(1).
3.       The Judge’s directions did not explain how the discreditable evidence might be used to prove the offence charged, nor did the directions distinguish between the permissible and impermissible uses of the evidence.
4.       The propensity warning given by the Judge was given at a point that was far removed from the directions concerning the circumstantial evidence, including the discreditable conduct evidence, and was tied specifically to other evidence.
5.       The proviso cannot be applied.
6.       The conviction is set aside and the matter is remitted to the District Court for retrial before a different Judge.
Controlled Substances Act 1984 (SA) s 32; Evidence Act 1929 (SA) s 34R, s 34P, referred to.
The Queen v Falzon [2018] HCA 29, applied.
R v Soteriou [2013] SASCFC 114; R v Sultana (1994) 74 A Crim R 27, discussed.
R v C, CA [2013] SASCFC 137; R v Jones [2018] SASCFC 80; R v Kalbasi [2018] HCA 7; R v Lane [2018] HCA 28; R v Pringle [2017] SASCFC 9, considered.

R v JONES
[2018] SASCFC 96
Court of Criminal Appeal: Kourakis CJ, Nicholson and Hinton JJ

KOURAKIS CJ: I agree that the appeal should be allowed for the reasons given by Nicholson J and for the following supplementary reasons.
Section 32(5) of the Controlled Substances Act 1984 (SA) (the CSA) provides:
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i) was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; …
It follows from the terms of s 32(5) and the appellant’s admission that he possessed methylamphetamine of the prescribed quantity that the prosecution was relieved of the obligation to prove that the appellant’s intention was to sell it. It was not necessary therefore, for the purposes of the prosecution case, to direct the jury on the circumstantial use of the evidence tending to show that the appellant was, at the time, in the business of trafficking in methylampthetamine. By reason of the appellant’s testimonial admission, the defence carried the onus of establishing the positive proposition that the appellant was not acting for the purpose of the sale of the methylamphetamine in his possession. The primary forensic issue therefore became whether the testimony of the appellant and his witnesses established that positive proposition. It would have been better to tailor the summing up to address the forensic contest which was shaped by the appellant’s admission.
Be that as it may s 34R of the Evidence Act 1929 (SA) (the Evidence Act) is expressed in absolute terms. The obligation to give the prescribed directions arises on the admission of the evidence irrespective of any later admission in the defence case. I agree that the Judge did not comply with s 34R of the Evidence Act in summing up to the jury for the reasons given by Nicholson J.
I am satisfied that that error of law has occasioned a substantial miscarriage of justice. Even though the appellant’s admission of possession relieved the prosecution of the obligation to prove that he was acting for the purposes of sale it is likely that the jury evaluated his testimony, and that of his witnesses, against the circumstantial prosecution evidence that the appellant was engaged in the business of trafficking in methylamphetamine. If the jury accepted that evidence, and drew the inferences urged by the prosecution, then it was much less likely to accept the evidence of the appellant and his witnesses. Instruction on the permissible and impermissible use of the prosecution evidence was therefore still necessary in order to ensure that it was properly used.
In addition there was a real risk that the jury would take an unfavourable view of the appellant’s testimony because he was the kind of person who traded in illicit drugs, whether at about the time that he was found in the possession of the methylamphetamine or at some earlier time. It is arguable that, prior to the enactment of s 34P of the Evidence Act, evidence of discreditable conduct admitted to show a specific propensity might properly be used to impeach the credit of a defendant. However, s 34P(1)(c) now prohibits any use other than those expressly permitted. The appellant’s credibility was critical to the outcome of the charge because he carried the persuasive onus to rebut the statutory presumption. The failure to warn against the impermissible use of the evidence to undermine the appellant’s credibility has also occasioned a substantial miscarriage of justice
NICHOLSON J.
Introduction
On 13 November 2017, Wayne Trevor Jones (the appellant[1]) was convicted following a trial by jury in the District Court of the offence of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA). He was sentenced to a term of imprisonment for four years with a non-parole period of two years and nine months, commencing 14 December 2017.
[1] Mr Jones has raised two grounds of appeal against his conviction, for both of which permission to appeal is required, and one ground of appeal against his sentence. He was granted permission to appeal against the non-parole period only by a Judge of this Court, and did not press any complaint on appeal as to the head sentence. I would grant permission with respect to each of the two grounds of appeal against conviction and for the sake of convenience will use the descriptor "appellant" throughout these reasons.
The appellant’s two grounds of appeal with respect to the conviction are: first, that the trial Judge erred in his directions concerning certain discreditable conduct evidence by failing to comply with section 34R of the Evidence Act 1929 (SA) and second, that the summing up was imbalanced, causing a miscarriage of justice. A number of particulars are relied on with respect to the latter ground. As far as the sentence is concerned, the appellant relies on just the one ground, that the non-parole period is manifestly excessive.
For the reasons that follow, I would allow the appeal against conviction on the basis of the first appeal ground and order a retrial.
The prosecution case, the defence case and general background
On 24 November 2014, police attended at residential premises in Salisbury. The appellant, a co-accused, Charmaine Meller, and her brother, Dwayne Workman were present. The latter two lived at the premises and the appellant, who had been involved in a long term but casual relationship with Ms Meller, had stayed over from the night before. The police searched the appellant who produced from the front pocket of his jeans a metal tin. Inside the metal tin was a plastic bag containing 3.96 grams of substance which included 3.17 grams of methylamphetamine.
Other items located by the police included:
(i)cash in the amount of $1,700 on the appellant’s person;
(ii)a set of digital scales on a bedside dresser in the main bedroom and another set of digital scales on the table in the lounge room;
(iii)a single page “tick list” amongst mail in the name of the appellant inside a blue backpack in the wardrobe of the main bedroom;
(iv)a notebook and, within the notebook, mail in Ms Meller’s name, found on a shelf inside a wardrobe in the main bedroom;
(v)cash in the amount of $20,650 in a multi-coloured bag found in a shelf inside the wardrobe in the main bedroom;
(vi)five mobile phones, one located on the appellant’s person, one located in the main bedroom, two located in the bathroom and one located in Ms Meller’s bag;
(vii)numerous plastic resealable bags in a grey pouch inside a black backpack found in a cupboard in another bedroom; and
(viii)a number of ice pipes.
The prosecution adduced expert evidence from a detective, a member of the drug and organised crime taskforce, as to the prices for which and quantities in which methylamphetamine typically is sold and as to items commonly associated with or regarded as indicative of drug dealing such as scales, unused plastic bags, cash and tick lists. The evidence included an opinion to the effect that the figures and writing seen in the notebook and on the single page tick list were consistent with drug dealing credit lists typically found when searching premises associated with drug dealing. Forensic Science SA undertook a handwriting comparison exercise. No evidence of this analysis was adduced but the following agreed fact was put before the jury:
Police sent the notebook and mail located in the wardrobe in bedroom one to [Forensic Science SA] for handwriting analysis. The analysis was able to identify that some of the handwriting showed very strong support that it belonged to Charmaine Meller. [Forensic Science SA] were unable to identify the remainder of the handwriting.
Possession of the 3.96 grams of substance containing methylamphetamine referrable to the charge was conceded by the appellant. Whilst the jury were properly directed that they had to be satisfied beyond reasonable doubt of all elements of the offence including the fact of possession, the trial was conducted on the basis, accepted by both parties, that proof of this element was not in dispute.
The prosecution relied on the statutory presumption provided for by section 32(5) of the Controlled Substances Act to the effect that, should it be proved beyond reasonable doubt that the appellant had possession of a trafficable quantity, being at least 2 grams, of methylamphetamine, it was to be presumed “in the absence of proof to the contrary” that the appellant had an intention to sell some or all of the drug in his possession so as to be guilty of the offence of trafficking.
The central issue in the case was whether or not the appellant could satisfy the jury on a balance of probabilities that he did not intend to sell any of the methylamphetamine found in his possession. In addition to the presumption, the prosecution relied on other circumstantial evidence identified by the Judge in his summing up as tending to prove that the appellant was engaged in trafficking. The circumstantial evidence relied on by the prosecution of particular importance included the $1,700 cash found on the appellant’s person, the $20,650 cash found in the wardrobe, the two sets of scales each containing traces of methylamphetamine and the asserted tick lists. I will refer to this collection of evidence, for reasons that will become apparent, as the “discreditable conduct evidence”.
The appellant conceded in his evidence that the two amounts of cash were his and proffered innocent explanations. However, the very substantial amounts concerned meant that this item alone was, arguably, very powerful evidence in favour of the prosecution case.
In order to rebut the presumption of sale, the defence adduced evidence from the appellant, Ms Meller, Mr Workman and appellant’s uncle, Mr Colin Bird. The appellant’s case was that the methylamphetamine had very recently been acquired jointly by himself, Ms Meller and Mr Workman, solely for their personal consumption. In order to fully understand the appellant’s case, it is necessary to summarise at some length the evidence of the defence witnesses. The summary provided in the appellant’s written outline of argument is sufficient for this purpose.
The [appellant] gave evidence in his defence and admitted possession of the methylamphetamine for personal use but denied he had any intention to sell the drug.
He said the night before police arrived the three of them (Meller, Workman and the [appellant]) arranged to purchase 3.5 grams of methylamphetamine for $1,000. The understanding being that each would take their cut out of the 3.5 grams. The [appellant] said someone came to Meller’s house and they all contributed separately to the purchase of the drugs. The person that sold them the drugs gave them some extra bags so they could divide the methylamphetamine. The [appellant] had a small amount methylamphetamine already, the 3.5 grams was mixed with what he had already and hence the weight of 3.96 grams.
The [appellant] had used methylamphetamine for some time and as at the time of the offence he said that he would use 5 to 10 points in a day. The quantities he would purchase varied from 1 point up to 3.5 grams. A point would cost $100. He explained if you bought 5 points it may cost $250 or $300. The [appellant] explained that his use of methylamphetamine varied, he did not take methylamphetamine every day, and would stop and start.
The [appellant] gave evidence that the $1,700 found on him was partly made up from money his uncle had given him ($15,000 cash), from a pokie win that he had, as well as from gambling at the casino. The [appellant] produced a poker machine payment voucher dated 14 October 2014 for $8,741 bearing the [appellant’s] signature (D1). The [appellant] said that he took either $1,000, $1,300 or $1,500 to the Adelaide Casino where he gambled. When he returned he had $1,700.
The [appellant] admitted the $20,650 found in the wardrobe was his. The [appellant] said he put it there as he did not want to leave it in the caravan that he lived in at the back of sister’s house. When he went to stay at Ms Meller’s house he took his money with him.
The $20,650 was made up of $15,000 that he received from an uncle who was repaying a debt owed to the [appellant] and the remaining $5,650 came from the pokie win.
In relation to the $15,000 the [appellant] explained that he received $100,000 from the sale of his house in 2010 and from that amount he lent his uncle $15,000. The [appellant’s] Uncle, Colin Bird, had repaid the debt in cash about two days before police arrived.
In relation to the numerous unused plastic bags located by police, the [appellant] said he was unaware they were in the house. The [appellant] said the scales found on the bedside table were his, which he used to weigh drugs that he purchased to ensure he was getting what he paid for. The [appellant] admitted two of the five phones in the house belonged to him (iPhone and Samsung).
The [appellant] denied any knowledge of the notebook, nor was he aware that he had any mail belonged to him addressed to ...
The [appellant] called three witnesses in support of the defence case, namely Charmaine Meller, Dwayne Workman and Colin Bird.
Meller’s Evidence
Ms Meller said that there was an arrangement between the group to purchase the methylamphetamine. Ms Meller said they gave the dealer the money for the drugs in the morning of 23 November 2014 at Casson Court and then later that night the dealer returned and delivered the drugs.
Ms Meller gave evidence that the notebook was a combination of her handwriting and her brother Dwayne Workman’s handwriting. She gave various explanations for the notes and maintained that the notes did not relate to drug dealing. Ultimately it was put to Ms Meller that she was trafficking methylamphetamine with the [appellant] and that she knew of the $20,650 cash in the wardrobe, all of which she denied.
Dwayne Workman
Mr Workman confirmed that there was an arrangement between Meller, the [appellant] and himself to purchase the methylamphetamine the subject of the charge.
Mr Workman’s recollection as to the circumstances in which the methylamphetamine was purchased and delivered to them differed from Meller and the [appellant]. Mr Workman said that the money was given to the dealer the night before the police arrived. Mr Workman explained that they met the dealer in a carpark, at which time the money was handed to the dealer for the methylamphetamine. The drugs were later delivered to Casson Court on the morning of 24 November 2014. It is apparent from the transcript that Workman did not in fact see the money handed over in the carpark and although he said the methylamphetamine was dropped off the next morning, he did not see the drugs get dropped off.
The prosecutor came to rely heavily on the inconsistency between Meller and Workman as to the circumstances in which the drugs were purchased as a means to attack the credibility of both Workman, Meller and the [appellant]. This inconsistency was emphasised in great detail by the trial judge during the course of the summing-up.
Mr Workman said he was not aware of a drug dealer coming to the house and selling them drugs the day before. He explained, as far as he knew, whenever he agreed with Meller and the [appellant] to purchase drugs, they would go out to buy the drugs.
Colin Bird
Colin Bird was the [appellant’s] uncle who gave evidence confirming that the applicant had lent him $15,000 a number of years before and at around the time the [appellant] sold his house. Mr Bird said that about two days before the [appellant] was arrested he gave the [appellant] back the $15,000 cash he had borrowed from him.

It can be seen that the evidence of the three protagonists varied as to how and the circumstances in which the methylamphetamine had been acquired. This inconsistency in their evidence (amongst other matters) was much relied on by the prosecution as undermining the credit and reliability of the appellant generally. The Judge reinforced this use of the inconsistencies, available to the jury, during the summing up. Defence counsel submitted to the effect that, given the events occurred three years before the giving of evidence, such confusion in the accounts of how and where this transaction occurred should not be unexpected and that there was consistency with respect to the essential issue that the methylamphetamine had been acquired for their personal use only. Plainly, the credibility and reliability of the appellant’s account in this respect was central to the jury’s deliberations.
Appeal ground 1
This ground is in these terms:
The trial Judge erred in not identifying and explaining the purpose for which discreditable conduct evidence, namely evidence of scales, tick lists and cash, may and may not be used as required by section 34R Evidence Act 1929 (SA).
Subsection 34R(1) provides as follows.[2]
[2] The type of direction called for by subsection 34R(2) has no application in this matter, see R v Soteriou [2013] SASCFC 114 at [34].
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
The appellant contends that the directions given by the Judge on the topic of the jury’s use of the discreditable conduct evidence were inadequate and, in particular, failed to “identify and explain the purpose for which the evidence may and may not be used” by the jury as mandated by section 34R. The respondent contends that the Judge’s directions, albeit given in general terms, were adequate in this respect because, in the circumstances of this case, there was no appreciable risk that the jury would misuse the evidence to reason improperly.
Before turning to the requirements of subsection 34R(1) and its application to the discreditable conduct evidence, it will be of assistance to consider in a little detail the requirements of section 34P insofar as they bear on this case.
It is well established that circumstantial evidence which supports a finding that an accused was in the business of selling drugs is admissible on a charge of trafficking in a controlled drug and notwithstanding that such evidence might disclose other criminal behaviour not the subject of a charge before the Court.[3]   A concise statement of the principles involved was given by Gleeson CJ (with whose reasons Handley JA agreed) in R v Sultana.[4] This case concerned an appeal against a conviction for the offence of suppling a prohibited drug, heroin. Various items of circumstantial evidence were relied on by the prosecution as tending to prove that the appellant was in the business of dealing in drugs. The issue before the Court of Appeal was whether the Judge had been correct to admit the evidence. Gleeson CJ commenced his explanation of the relevant principles as follows.[5]
The basis upon which the learned trial judge received this evidence appears from the explanation he gave to the jury as to the use they could make of it. It was, his Honour said, circumstantial evidence from which, in combination with other evidence in the case they were entitled to draw inferences adverse to the appellant on the two issues in the case, ie whether he was (as the police alleged) found in possession of a quantity of heroin, and whether he had it in his possession for the purpose of supply. This was put on the basis that the jury were entitled to regard the items as tending to show that the appellant was in the business of dealing in drugs.
[3]    For the most recent discussion on the topic by the High Court, see The Queen v Falzon [2018] HCA 29 and the various intermediate appellate authorities discussed therein.
[4] (1994) 74 A Crim R 27 at 28-29.
[5]    R v Sultana (1994) 74 A Crim R 27 at 28.
After observing that the fact that each of the items of evidence in question was perfectly capable of being used for an innocent purpose did not determine the issue of admissibility, his Honour continued as follows.[6]
Evidence of this kind is frequently received on the basis that the Crown is entitled, in a case such as the present, to show that the accused was possessed of the implements or accoutrements of trade of a drug dealer. This, no doubt, is why there was no objection to most of the items, including the large sum of cash. Sully J has referred to two cases in which similar evidence has been said in this Court to be admissible.
Where the issues are whether a person was found in possession of heroin, and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug-dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit crime, or bad character.
. . . .
Evidence that tends to show that a person is in the business of dealing in heroin also tends to show a propensity towards crime, but in a case such as the present it is admissible on the former account, not the latter. Moreover, subject to discretionary considerations to be mentioned below, the fact that it bears the latter character does not detract from its relevance or render it inadmissible.
[6] R v Sultana (1994) 74 A Crim R 27 at 28-29.
In Sultana, the circumstantial evidence in issue was probative of two issues; that of possession and that of intention to sell. The High Court has recently reasserted the law in this area in the context of a consideration of the second issue, intention to sell. In The Queen v Falzon,[7] the High Court expressed the position in this way.
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, 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, 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.
[citations omitted]
A number of earlier authorities in this State, to the same effect, were discussed with approval by the Court of Criminal Appeal in R v Soteriou.[8]
[7] [2018] HCA 29 at [1] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
[8] [2013] SASCFC 114 (Vanstone J with whose reasons Sulan and Stanley JJ agreed).
The fact that such circumstantial evidence discloses other uncharged criminal behaviour is not of itself a reason for the evidence to be excluded, although, as Gleeson CJ noted and as the High Court in Falzon explained, discretionary considerations at common law[9] or in accordance with statute might lead to such admissible evidence nevertheless being excluded.
[9] For example, the so called Christie discretion. See R v Christie [1914] AC 545.
Circumstantial evidence tending to establish that an accused has been or is in the business of trading in controlled drugs (not being the drug or drugs the subject of the offence) is characterised in this State as discreditable conduct evidence and its admissibility is governed by section 34P of the Evidence Act.[10] Section 34P is in these terms:
[10] R v Soteriou [2013] SASCFC 114. Such evidence, ordinarily, is not to be characterised as part of the res gestae or the transaction the subject of the charge, in the sense described by McHugh J in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 633, so as to be admissible independently of section 34P. See the discussion of and application of this principle by Peek J in Police v Rosales [2017] SASC 118 at [22]-[30].
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
There was no consideration given prior to the commencement of the trial as to the admissibility of the discreditable conduct evidence or as to any permissible purpose to which the evidence might be put by the jury. It appears to have been common ground that the evidence was admissible, as probative of the fact of possession and that the accused’s purpose for possessing the drugs the subject of the charge was one of sale.
The following discussion took place between the prosecutor and the Judge at the end of the prosecution case but before the defence case.
HIS HONOUR:    I am just thinking about directions I might give the jury; I would, I think, be likely to give a circumstantial evidence direction Mr Jolly. I see your case is a circumstantial case. As I understand it it's got two thrusts, one is proof of possession, reversing the onus, but as I understand it from all the other evidence you've called, you are also presenting a general circumstantial case as to guilt of trafficking and I perceive that limb, circumstantial limbs are to be things of multiple use, plastic bags, large amounts of cash, the scales with methylamphetamine on them and the tick lists.
[PROSECUTOR]: That is correct, of course that goes into the potential propensity use of those items.
HIS HONOUR:    It is not so much propensity use, is it, isn't there circumstantial evidence as to trafficking?
[PROSECUTOR]: It is, yes, your Honour.
HIS HONOUR:    Although counsel could both give me any thoughts they might have tomorrow morning about whether there is any propensity reasoning available that they, the jury, should either be warned of or directed about, I'll take it on board, but as I understand it, as I perceive it you're just calling those things as evidence, circumstantial evidence that he was trafficking on that day.
[PROSECUTOR]: Correct, and that's the primary use, on the Crown case, of that evidence. The issue of any propensity reasoning probably would need to be revisited after the defence case because evidence that falls from that may require your Honour to give a warning or it may not arise at all.
Counsel for the appellant at the trial (who was not counsel on appeal) did not seek to be heard on this issue.
The Judge would only have been required to consider the question of admissibility in the event that an objection was taken.[11] However, even where such evidence is unobjected to, its proper use and the directions required by section 34R still must be attended to.
[11] R v C, G [2013] SASCFC 83; (2013) 117 SASR 162 at [43]-[53].
By virtue of subsections 34P(1)(a) and (b), the discreditable conduct evidence in this case could not be used by way of rank propensity reasoning or as the statute expresses it, “to suggest that the [appellant] is more likely to have committed the offence because he … has engaged in discreditable conduct”. It was inadmissible for that purpose being the statutorily proscribed “impermissible use”. Further, subject to subsection (2), such evidence was inadmissible for any other purpose. The effect of subsection 34P(1) is two-fold. First, it renders discreditable conduct evidence inadmissible for the impermissible use as defined in paragraph (a) and second, in the event that such evidence were to be admitted for a different “permissible use” in accordance with the requirements of subsection (2), it must not be used by the trier of fact for the impermissible use.
As can be seen from the exchange quoted above, no express consideration was given by the parties or the Judge as to the permissible use which rendered the discreditable conduct evidence in this case admissible in accordance with the requirements of section 34P. However, had the matter been adverted to, it is likely that the basis relied upon would have been that provided for in subsection 34P(2)(b) that is, as evidence that relies on a particular propensity or disposition of the appellant as circumstantial evidence of a fact in issue.[12] The evidence, if accepted, tended to demonstrate that the appellant was engaged in a business of selling drugs which is tantamount to asserting a particular propensity or disposition to commit a certain type of crime on an ongoing basis.
[12] This was the approach adopted by the court in R v Soteriou [2013] SASCFC 114 at [16]-[32].
As such, had the admissibility of the evidence been challenged, the prosecution would have had to demonstrate that it had strong probative value having regard to the particular issue or issues arising at trial. Had this enquiry been undertaken, there is no reason to think that the answer would not have been in the affirmative. In Falzon,[13] the High Court described the probative value of the finding of cash in that case as “high” and that, combined with other circumstantial evidence pointing to a business of drug trafficking, the evidence of the cash found “constituted a powerful circumstantial case that [Falzon] was engaged in the business of cultivating and selling cannabis and, therefore, that his purpose for being in possession of the cannabis found [on the day in question] was the purpose of sale”.
[13] The Queen v Falzon [2018] HCA 29 at [45].
The difficulty in distinguishing between the impermissible use of discreditable conduct evidence proscribed by subsection 34P(1) (“bad person reasoning”) and certain permissible uses, especially one that relies on a particular propensity or disposition of the accused in accordance with subsection 34P(2)(b), is well acknowledged.[14] The Chief Justice (with whose reasons Anderson J and in this respect Nicholson J agreed) in R v C, CA,[15] in a context removed from the present (child sexual offending) analysed the reach of section 34P at some length. By way of illustration drawn from the drug offending environment, his Honour said this.[16]
The mischief to which s 34P(3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence. Put another way, it 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. I will refer to the impermissible reasoning as “bad person” reasoning.
. . . .
In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a propensity or disposition which is not powerfully established by the evidence of discreditable conduct. ... Dishonest conduct and prior involvement in the drug trade are other examples of discreditable conduct which, although revealing the accused to be a bad person, are less likely to support an inference that the accused has an innate tendency or disposition which can support a permissible form of reasoning.[17] Of course, even in conduct of that kind the temporal and other circumstantial connections between the discreditable conduct and the offence charged may show that they are both aspects of an ongoing single criminal enterprise.[18] Persons who embark upon a criminal enterprise are generally motivated to maintain it. As Doyle CJ observed in R v Long and McDonnell,[19] the reasoning is “either a form of propensity reasoning or is so close to it that the distinction becomes insignificant”.[20]
[emphasis supplied]
[14] See the discussion generally in R v Soteriou [2013] SASCFC 114.
[15] [2013] SASCFC 137 at [76]-[82].
[16] At [76], [79].
[17] R v Soteriou [2013] SASCFC 114, [30] (Vanstone J); Cf Harriman v The Queen (1989) 167 CLR 590, 635-636 (McHugh J).
[18] Harriman v The Queen (1989) 167 CLR 590; R v Conley (1982) 30 SASR 226.
[19] (2002) 137 A Crim R 263.
[20] (2002) 137 A Crim R 263, [39].
The distinction between mere bad person reasoning and the reasoning to be employed when discreditable conduct evidence is admitted for a use that relies on a particular propensity or disposition is a particularly difficult one to draw in a case such as the present. Nevertheless, section 34P demands that it be drawn if the evidence is to be admitted and it is a distinction that was recognised as having utility by the High Court in Falzon.[21]
For the same reason, the majority were wrong in holding that the only relevance of the evidence of the respondent’s possession of the cash was “rank propensity reasoning, or tendency reasoning”; by which their Honours are taken to have meant reasoning to the effect that, because the respondent was shown to have committed past acts of trafficking in cannabis, he could be perceived as the sort of person who was likely or more likely to commit the acts of trafficking with which he was charged. Granted, the evidence of the respondent’s possession of the cash implied that the respondent had committed previous acts of trafficking, but the purpose of its admission was not to establish that the respondent was the sort of person who was disposed to commit acts of trafficking. Rather, as the trial judge made clear in his ruling, and Whelan JA correctly recognised in his judgment, the purpose for which the evidence was admitted, and the way in which the Crown relied upon it, was to establish that the respondent was in fact carrying on a business of trafficking and, therefore, that the respondent’s purpose in possessing the cannabis of which he was found to be in possession on 17 December 2013 was the purpose of sale.
In this passage, the High Court drew the distinction and acknowledged that there is a proper purpose and an improper purpose with respect to which the circumstantial evidence in that case and, I would add, in a case such as the present, might be put.
[21] The Queen v Falzon [2018] HCA 29 at [42].

It is important to recognise that the distinction between permissible use and impermissible use, insofar as admissibility pursuant to section 34P is concerned, is dealt with differently by the section according to whether the evidence is to be admitted pursuant to paragraph (a) or paragraph (b) of subsection 34P(2). Where paragraph (a) is relied on a comparison of probative value with prejudicial effect is to be undertaken. However, and importantly for present purposes, subsection 34P(3) requires the Judge to have regard to “whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose”. This consideration must inform the Judge’s evaluative judgment whether or not to admit the evidence.
The task is different where the evidence is to be admitted pursuant to paragraph (b) of subsection 34P(2). In such a case there is no requirement to observe subsection 34P(3). The only requirement is that “the evidence has strong probative value having regard to the particular issue or issues arising at trial”. The absence of the subsection 34P(3) requirement is a recognition by the legislature, sub silentio, of the difficulty inherent in the drawing of such a distinction where “a particular propensity or disposition” is involved. It is also a recognition that any such difficulty should not influence admissibility where the evidence has strong probative value.
In the present case, there was no challenge to the admissibility of the discreditable conduct evidence and it is to be accepted for the purpose of this appeal that it had strong probative value. However, whilst the capacity to keep the permissible use separate and distinct from the impermissible use was not relevant to admissibility, the distinction itself is a matter about which there must be an express direction to the jury as required by subsection 34R(1), to which I now return.
The Judge directed with respect to the discreditable conduct evidence on more than one occasion but each time in essentially the same terms. For example, his Honour said this in the context of directions on the elements of the offence and as part of a circumstantial evidence direction.
Given the quantity, the law presumes that he possessed it for sale unless it is proven otherwise on the balance of probabilities. Therefore, so long as the prosecution prove beyond reasonable doubt that the accused knowingly possessed the methamphetamine and that it was above 2 g, the only remaining issue is whether the accused has proven on the balance of probabilities that so far as his intention was concerned, none of it was to be for sale by anyone to anyone at any time.
The prosecution case does not just rely on that presumption, it also relies on a number of further items of what is known as circumstantial evidence to positively show that the accused was trafficking.
In the case of circumstantial evidence, members of the jury, you must carefully consider all of the circumstances that you find proven beyond reasonable doubt, such as those things that were listed by Mr Jolly, and then you take the cumulative effect of all of those matters together into account when assessing the case. There were, for example, the tick lists, the large amounts of cash located, the multiple mobile phones, three of which the police could not access and analyse, the scales, each with traces of methamphetamine and particularly the multiple unused plastic bags[22] located on the accused in the tin together with the drugs.
[22] The presence of unused plastic bags may comprise an item of circumstantial evidence tending to the existence of a business. However, it is not an item of discreditable conduct evidence with respect to which any special direction need be given. Unused plastic bags, by their nature, cannot be referable to past discreditable conduct which is the subject of section 34P but only to future intention, see R v Soteriou [2013] SASCFC 114 at [14].
You put them altogether and you consider what the combined weight of that evidence is in assessing whether the prosecution has proved its case.
. . . .
On the prosecution case as the prosecution presents it, they might say ‘Well, the defence could explain one or two of those things innocently in isolation’ but the prosecution says when you have all of those things the inference of trafficking is so overwhelming that it is plain he was trafficking. In the light of all of that, the prosecution argues ‘Look, there is no way, on the balance of probabilities, that the defence could satisfy you that none of that drug was for sale’.
[emphasis supplied]
Later in the summing up, in the context of a summary of the prosecution case, the Judge again directed to similar effect.
That was the prosecution case. That case was that the accused was caught in admitted possession of nearly double the trafficable quantity of ice, methamphetamine whereby he is presumed unless proven on the balance of probabilities to the contrary, to be possessing that drug for sale. The case is also based on numerous items of circumstantial evidence that can on the prosecution case be indicative the accused was trafficking, in the defined sense that he intended that at least some of the ice he was in possession of would be sold either by himself or someone else at some stage.
[emphasis supplied]
At no time did his Honour’s directions, referrable to the discreditable conduct evidence, rise above generalities such as that, on the prosecution case, it might “positively show that the accused was trafficking” or assist in “assessing whether the prosecution has proved its case” or “be indicative [that] the accused was trafficking … in that he intended … some of the ice … in [his] possession … would be sold”.
When read in the context of the summing up as a whole, the references to “trafficking” and the prosecution’s “case” could only have been understood by the jury as a reference to the charge under consideration, that is, trafficking of the 3.96 grams found in the appellant’s possession. There is no reference in the summing up to the discreditable conduct evidence being probative of the appellant conducting a business of trafficking. This notion of business is an important link between the use of the discreditable conduct evidence and proof of the charge. It serves to make out the permissible probative use of that evidence. Absent that link, the discreditable conduct evidence would only have been probative of the charge via impermissible bad person reasoning. It was necessary that the jury reasoned in the former way and not in the latter way.
Whilst the directions explained that the discreditable conduct evidence might be used to prove the offence charged, they did not explain how the evidence might be used in this way much less did they distinguish between the permissible use in this respect, available in accordance with subsection 34P(2)(b) and the impermissible use in this respect proscribed by subsection 34P(1).
I repeat what I said (with the concurrence of Kelly and Hinton JJ) in R v Pringle.[23]
Section 34R imposes an important obligation on a trial Judge to identify both the permissible and impermissible uses of any discreditable conduct evidence that has been admitted. The primary purpose of this is to ensure that the jury does not reason in a manner prohibited by section 34P(1). It is important (and required by section 34R) that a Judge direct not just as to impermissible uses but also as to the permissible uses of such evidence. Any failure to do so may well increase the risk of its improper use by a jury.[24] The failure to properly direct as to permissible uses will be an error of law just as will be a failure to properly direct as to impermissible uses.[25] It is another question as to whether or not, in particular circumstances, any such error of law will necessarily warrant the setting aside of a conviction.[26]
The footnote at the end of the extract from Pringle will need to be considered in light of the High Court’s reasons in Perara-Cathcart v The Queen.[27]
[23] [2017] SASCFC 9 at [74]. See also Blue J in R v Quist [2017] SASCFC 37 at [162].
[24] See R v Forrest [2016] SASCFC 76; (2016) 125 SASR 319 at [47] (Kourakis CJ, with whose reasons Kelly and Lovell JJ agreed).
[25] See generally R v Perara-Cathcart [2015] SASCFC 103 at [12]-[18] (Kourakis CJ) and [56]-[58] (Stanley J).
[26] See the different approaches adopted by Kourakis CJ and Stanley J, respectively, in R v Perara-Cathcart [2015] SASCFC 103 at [12]-[18] and [56]-[58] respectively.
[27] [2017] HCA 9; (2017) 260 CLR 595.
The Judge in this case identified for the jury the prosecution’s purpose in adducing the discreditable conduct evidence but did not explain either the permissible manner or the impermissible manner by which the evidence might and might not, respectively, be used to effect this purpose. There was a failure to comply with either of the requirements of subsection 34R(1). This constitutes an error of law.[28] As such, the appeal must be allowed unless the Court is satisfied, in accordance with the proviso that no substantial miscarriage of justice has actually occurred.[29]
[28] R v Taheri [2017] SASCFC 92 at [46].
[29] Section 353 of the Criminal Law Consolidation Act 1935 (SA). Section 11 of the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA), which commenced on 5 March 2018, repealed section 353 of the Criminal Law Consolidation Act 1935 (SA). Section 158 of the Criminal Procedure Act 1921 (SA) was enacted in materially the same terms as section 353. These legislative changes have no impact on the subject appeal, which was commenced prior to the commencement of the Act: see section 41 (Transitional provision) of the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA).
Before turning to the issue of the proviso I should make some observations concerning R v Soteriou.[30] The appellant in Soteriou had been found guilty of two counts of trafficking in a controlled drug. The issues on appeal were whether the admission of certain items of circumstantial evidence and their use was regulated by section 34P and whether the evidence had been properly admitted and directed upon.
[30] [2013] SASCFC 114.
Vanstone J (with whose reasons Sulan and Stanley JJ agreed) held that notebooks and text messages relied on by the prosecution as “indicia of sales” had been properly admitted as evidence of “discreditable conduct”.[31] Her Honour also found that the discreditable conduct evidence fell to be admitted as particular propensity evidence pursuant to subsection 34P(2)(b).[32]
[31] [2013] SASCFC 114 at [15].
[32] R v Soteriou [2013] SASCFC 114 at [16]-[32].
Vanstone J went on to consider the appellant’s challenge to the Judge’s directions relating to the discreditable conduct evidence. The direction concerning the notebooks was in these terms.[33]
Ladies and gentlemen, I now give you some particular directions about the notebooks and the text messages which were found in Mr Soteriou’s telephone and on his SIM card. As you know, the prosecution argues that the notebooks are “tick lists” or lists of amounts owed to the accused for drugs sold by him to people named in those books. You will remember the evidence of Detective Senior Sergeant Stanley that as a drug investigator he looks for such tick lists as an indicator of drug dealing. In the case of the text messages it is the prosecution case of course that those messages are about the sales of drugs. It is important for you to know how you may and may not use of evidence of the notebooks and the text messages. You must not use the evidence of the tick lists, if you find them to be such, to reason that because the accused has sold drugs in the past, if you are satisfied that he had done so, that he is the sort of person who would traffic in controlled drugs and is, therefore, guilty of one or both of the charges before the court today. You must not use the evidence in that way but you may use it in this way if you see fit. You may use the notebooks as evidence that the accused was involved in an ongoing business of selling drugs and if you find that he was engaged in such a business you may, if you see fit, use that fact as evidence of his possession of the drugs in the camera bag and of his intention to sell.
Her Honour held that the directions going to the proper use were appropriate and complied with subsection 34R(1).[34] As to the propensity warning in the direction her Honour said this.[35]
In relation to the propensity warning given by the trial judge, that is, not to reason that the appellant was the “sort of person” who would traffic in drugs, I consider that it tends to contradict the direction going to proper use. As I have stated, I consider that the evidence was propensity evidence. It was the inference that the appellant had a propensity to engage in the drug trade – from those very premises and in that very period – that gave the evidence its power. The distinction between conducting a business and having a propensity to engage in that business, and being the sort of person to engage in that business are in my mind all but illusory. This was not a case like Harriman where the previous conduct was removed from the charged conduct. The use of the evidence was obvious and was as the judge outlined. I consider that no propensity warning was required.
Her Honour further observed.[36]
In my opinion, in the circumstances of this case, there was no need for any propensity warning because there was, in a real sense, no misuse available.
[33] A parallel direction was given with respect to the text messages.
[34] R v Soteriou [2013] SASCFC 114 at [37].
[35] R v Soteriou [2013] SASCFC 114 at [38].
[36] R v Soteriou [2013] SASCFC 114 at [41].
The distinction adverted to by Vanstone J is certainly subtle. I agree that the distinction between “conducting a business and having a propensity to engage in that business, and being the sort of person to engage in that business” might be characterised “as all but illusory”. However, and at the risk of further splitting hairs in this area, that is not quite the distinction that section 34P requires and that the High Court in Falzon continued to recognise. The impermissible use proscribed by section 34P(1)(a) is not that of using the discreditable conduct evidence as probative of being the sort of person to engage in that business but, rather, as probative of being more likely to have committed the charged offence, or as the High Court in Falzon described it, as “rank propensity reasoning”.[37]
[37] The Queen v Falzon [2018] HCA 29 at [42].
In any event, in Soteriou the Judge gave a clear direction as to the permissible use of the discreditable conduct evidence. The jury was given appropriate guidance as to how they were entitled to use the evidence. It was in this context, and on the facts before her, that Vanstone J found no potential for misuse such that a correlative propensity warning was not required.
In the present case, the jury were not instructed as to the available permissible use and were left to work out for themselves how to use the discreditable conduct evidence. In these circumstances, there is no reason to discount the possibility, perhaps likelihood, that members of the jury took the simpler and in a sense more obvious route home of rank propensity reasoning. As such, the reasoning adopted by the Full Court in Soteriou on this issue is not available on the present appeal.
Before concluding this part of my reasons, brief mention needs to be made of a propensity warning the Judge did give. As part of his summary of the appellant’s evidence, the Judge interpolated the following.
I should mention, members of the jury, there has been reference to the accused saying he lied and also that he was stealing property to sell and there has also been some reference to marijuana. It is important, members of the jury, to understand that evidence is only led as the background and circumstances as they relate to the various issues in this case. The accused is not charged with any offences relating to any of that. You cannot convict him of any offences relating to that, and you should not convict him of this offence just because you think he might have committed some other offence. Further, you must not reason because there is evidence of those things he is a bad person and therefore committed this offence, or even that he [is] the type of person who would have committed this offence. You have got to put that type of prejudice completely out of your mind and assess this case on its facts, and that peripheral or other information, yes, you take into account but you do not reason that because of it, he is a bad person and therefore committed this offence, or anything like that.
The respondent relies on this reference to bad person reasoning as, at least in part, an antidote to any failure to comply with subsection 34R(1).
However, it was presented at a point during the summing up that was far removed from the directions concerning the circumstantial evidence including the discreditable conduct evidence. In addition, the above direction was tied specifically to evidence that the appellant may have lied, used marijuana and stolen property to sell, characterised by the Judge as matters of “background” and “peripheral”.
I am not persuaded that the jury necessarily would have adopted and adapted this proscription when giving consideration to the discreditable conduct evidence. The position might be different had the jury been instructed as to the permissible use of the discreditable conduct evidence. Knowing how they were entitled to use it together with the later propensity direction might permit the conclusion that how not to use the discreditable conduct evidence was also apparent to the jury, on a reading of the summing up as a whole.
I return to the possible application of the proviso. In R v Jones[38] (no relationship with the present matter) this Court[39] reviewed the role of the proviso following the very recent decisions of the High Court in Lane v The Queen[40] and Kalbasi v Western Australia.[41] The Court made the following observations.[42]
[38] [2018] SASCFC 80.
[39] Kelly, Blue and Lovell JJ.
[40] [2018] HCA 28.
[41] [2018] HCA 7.
[42] R v Jones [2018] SASCFC 80 at [140]-[144].
In R v Ricciardi Lovell J (with whom Parker J agreed) observed:[43]
[43] [2017] SASCFC 128 at [118].
The application of s 353(1) CLCA is two staged. The first stage requires the Court to allow the appeal if it thinks any one of the grounds stated are established. The second stage allows the Court, notwithstanding it being of the opinion that the point raised may be decided in favour of the appellant, to dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The task is an objective one to be undertaken on the whole of the record of the trial (including the verdict, paying proper regard to the issues that the jury were directed to determine in order to arrive at a conclusion of guilt). It is to be performed bearing in mind the “natural limitations” that exist in any appellate court proceeding wholly or substantially on the record and applying the criminal standard of proof. [footnotes omitted]
The High Court in Kalbasi v Western Australia recently stated:[44]
[44] [2018] HCA 7 at [13]-[15].
The influence of an error on the deliberations of a jury can never be known. The stipulation of the negative proposition as a condition of the engagement of the proviso recognises that the conviction of a person whose guilt has not been proved, beyond reasonable doubt, on admissible evidence, will always be a substantial miscarriage of justice. On the other hand, the appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding a wrong decision on a question of law (under the second limb, here s 30(3)(b)) or a miscarriage of justice (under the third limb, here s 30(3)(c)). This is to recognise and give effect to the evident purpose of the enactment of the proviso to do away with the formalism of the Exchequer rule.
In the course of argument in Weiss, Gleeson CJ put the case in which inadmissible evidence is wrongly admitted to prove a fact against an accused who later gives evidence admitting the fact. His Honour identified that case as one where the proviso would be rightly applied even though it could not be said that a conviction was inevitable. Gleeson CJ's example is of a case in which the appellate court may readily conclude for itself from the record – including the admission and the jury's verdict of guilty – that guilt was proved beyond reasonable doubt. As Gleeson CJ said, in concluding his intervention in argument in Weiss: "I suggest that the appropriate test is the statutory test."
Contrary to the appellant's submission, Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of "process" and "outcome" may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter. [footnotes omitted]
In dismissing the appeal the Court observed:[45]
[45] At [57].
A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. … The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred.
As Gageler J observed in R v Lane:[46]
For the appellate court to conclude that no substantial miscarriage of justice "has actually occurred" is for the appellate court to conclude that, notwithstanding the error or other irregularity, no substantial miscarriage of justice "in fact" occurred. And for the appellate court to conclude that "no substantial miscarriage of justice" in fact occurred is for the appellate court to conclude that the error or irregularity affected neither: (1) the outcome of the trial, such as to have denied the appellant "a chance of acquittal which was fairly open to him or her"; nor (2) the process of the trial, to an extent sufficient to warrant the conclusion that a substantial miscarriage of justice occurred without need of inquiry into its effect on the outcome of the trial.
(footnotes omitted)
In the circumstances of this case, it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offences on which the jury returned its verdict of guilty.[47] A finding of that nature may support the use of the proviso but an appellate court must consider the nature and effect of the error in the case before it.
[46] [2018] HCA 28 at [53].
[47] Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300 at [44].

The reference by the High Court in the above extract from Kalbasi to the “negative proposition” is a reference to a conclusion by the appellate court that the evidence properly admitted at trial proved the accused’s guilt beyond reasonable doubt, as being a necessary but not sufficient condition of the engagement of the proviso.
To the above extracts from recent High Court authority, I would add the following from the plurality judgment in Lane.[48]
A misdirection that is apt to prevent the performance by the jury of its function, without more, will result in a substantial miscarriage of justice. The proviso is cast in terms which permit the appellate court to dismiss an appeal from a judgment of the court which gives effect to the verdict of the jury: the proviso does not permit the appellate court to exercise the function of the jury. The language of the proviso cannot be understood as if it were to the effect that an appeal in which the possibility that the jury has not performed its function of reaching a unanimous verdict may be dismissed on the basis that the appellate court is satisfied of the guilt of the accused.
[48] [2018] HCA 28 at [48] (Kiefel CJ, Bell, Keane and Edelman JJ).
In the present case, possession was effectively conceded. The issue before the jury was whether at the time of possession (the seizure by the police of the 3.96 grams) the appellant had an intention to sell some or all of the drug. The appellant gave evidence asserting the contrary and adduced corroborative evidence all of which was rejected by the jury. The discreditable conduct evidence was, potentially, very influential in the jury’s decision to reject the explanation consistent with innocence given by the appellant. The failure by the Judge to direct correctly as to the use of this evidence left open as a real possibility that the jury or some members of the jury would use this evidence to reason in the impermissible way. For the reasons I have given, this was more than a theoretical possibility.
Once this impermissible use of the discreditable conduct evidence is taken away from the jury, it cannot be said that the jury’s rejection of the appellant’s evidence denying the relevant intention and explaining his intended personal use of the drug was inevitable.
In my view, the error of law was, in the circumstances of this matter and in the words of the plurality in Lane, one which was apt to prevent the performance by the jury of its function. Without more, this has resulted in a substantial miscarriage of justice. In any event, given that the credibility and reliability of the evidence of the appellant and his witnesses was central to the defence, this Court is not in a position to assess whether guilt has been proved to the criminal standard. I would not apply the proviso.
Conclusion
I would allow the appeal against conviction, set aside the conviction and remit the matter to the District Court for retrial. In the circumstances, it is not necessary to consider ground 2 of the conviction appeal nor the appeal against sentence. However, given the nature of the matters complained of under appeal ground 2 (about which I make no findings) it would be appropriate for any retrial to come before a different Judge
HINTON J.
I agree with Nicholson J that the appeal should be allowed for the reasons that he gives.