Tran v The King - [2024] SASCA 27

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
TRAN v THE KING
[2024] SASCA 27
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice McDonald)
21 March 2024
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
The appellant seeks permission to appeal against convictions for eight drug and firearm offences. The offences related to the possession of methylamphetamine, and various firearms and related items, located in a subwoofer box in the boot of the vehicle the appellant was driving when stopped by police.
The appellant seeks leave to appeal his convictions on four grounds. Grounds 1 and 2 involve complaints that the trial judge erred in admitting various items of discreditable conduct evidence. Ground 3 complains that the verdict of the jury in relation to count 1 (trafficking in a commercial quantity of a controlled drug) was unreasonable or cannot be supported having regard to the evidence. Ground 4 complains of a miscarriage of justice said to have been occasioned by the cross-examination of the appellant, and submission of the prosecutor in her closing address, which the appellant contends invited the jury to engage in consciousness of guilt reasoning.
Held per the Court, granting permission to appeal but dismissing the appeal:
1.The trial judge did not err in admitting discreditable conduct evidence in accordance with s 34P of the Evidence Act 1929 (SA);
2.The jury verdict on count 1 should not be set aside on the ground that it is unreasonable or cannot be supported. When considered as a whole, the prosecution evidence established beyond reasonable doubt the appellant’s possession of the methylamphetamine in the subwoofer box; and
3.In light of the Zoneff direction given by the trial judge, there was no risk of the jury engaging in reasoning involving a consciousness of guilt.

Controlled Substances Act 1984 (SA) s 32(2); Evidence Act 1929 (SA) s 34P; Firearms Act 2015 (SA) ss 9(1), 27(1), 31(1), 39(1), referred to.
Adelaide Marble Specialists Pty Ltd v Ragunath [2023] SASC 139; Dansie v The Queen (2022) 274 CLR 651; Edwards v The Queen (1993) 178 CLR 193; Elrick v The Queen [2021] SASCA 13; Hammer v The Queen [2022] SASCA 75; Hinrichsen v The Queen [2023] SASCA 111; Johnson v The Queen (2018) 266 CLR 106; Kroni v The Queen [2021] SASCFC 15; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; R v Falzon (2018) 264 CLR 361; R v Garner [2021] SASCA 68; R v Lowe [2016] SASCFC 118; R v Roberts (2019) 134 SASR 483; Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18; Zoneff v The Queen (2000) 200 CLR 234, considered.

TRAN v THE KING
[2024] SASCA 27
Court of Appeal – Criminal: Doyle, Bleby JJA and McDonald AJA

THE COURT: Following a trial before a jury, the appellant was convicted of eight offences:
·trafficking in a commercial quantity of a controlled drug (Count 1);[1]
·aggravated possessing a firearm without a licence (Counts 2, 3 and 5);[2]
·possessing an unregistered firearm (Count 4);[3]
·possessing a sound moderator (Count 6);[4] and
·possessing ammunition (Counts 7 and 8).[5]
[1] Contrary to s 32(2) of the Controlled Substances Act 1984 (SA).
[2] Contrary to s 9(1) of the Firearms Act 2015 (SA).
[3] Contrary to s 27(1) of the Firearms Act.
[4] Contrary to s 39(1) of the Firearms Act.
[5] Contrary to s 31(1) of the Firearms Act.
The offences related to some methylamphetamine, and various firearms and related items, located in the boot of the vehicle the appellant was driving on the afternoon of 31 July 2019. The items were concealed within a purpose-built subwoofer box that could only be opened by simultaneously activating the boot opening mechanism on the vehicle’s key and a button concealed under the lining of the boot lid.
The central issue at trial was whether, as the prosecution alleged, the appellant was in possession (sole or joint) of the methylamphetamine, firearms and other items the subject of the charges. In the circumstances of the case, this issue turned largely on whether the appellant was aware of the items in the subwoofer box.
The prosecution case on possession was a circumstantial one. There were two overarching themes to the prosecution evidence at trial. The first was that the appellant was a regular user of the vehicle in which the drugs were concealed, contrary to his assertion that he was not. The second was that the appellant was in the business of selling methylamphetamine, either solely or jointly with another.
In support of these two themes, the prosecution relied upon evidence of, amongst other things, items related to the use and sale of drugs found in the vehicle, in the physical possession of the appellant and his partner (who was travelling in the vehicle with the appellant when it was stopped by police), and at the appellant’s home. The trial judge had overruled the appellant’s objection to the receipt of several of these items of discreditable conduct evidence.
The appellant seeks leave to appeal his convictions on four grounds. Grounds 1 and 2 involve complaints that the trial judge erred in admitting various items of discreditable conduct evidence. Ground 3 complains that the verdict of the jury in relation to Count 1 (trafficking in a commercial quantity of a controlled drug) was unreasonable or cannot be supported having regard to the evidence. Ground 4 complains of a miscarriage of justice said to have been occasioned by the cross-examination of the appellant, and submission of the prosecutor in her closing address, which the appellant contends invited the jury to engage in consciousness of guilt reasoning in circumstances where that reasoning was not open, or in the alternative, was not the subject of directions from the trial judge.
A judge of this Court referred the application for permission to appeal for hearing as on appeal.
For the reasons which follow, we grant permission to appeal but dismiss the appeal.
The evidence at trial
It is appropriate to commence by summarising the evidence at trial. As mentioned, the prosecution case at trial consisted largely of evidence in relation to items found in the vehicle the appellant was driving when stopped by police, in the physical possession of the appellant and his partner at the time, and during the subsequent search of the appellant’s premises.
The initial stop and search of the vehicle, the appellant and his partner
In the early afternoon of 31 July 2019, the appellant was driving a Toyota motor vehicle on Salisbury Highway, Greenfields. His long-term partner, Ms Pakkawan, was in the front passenger seat. One of their two young children was in an infant car seat in the rear of the vehicle.
At about 1.00 pm, Detective Brevet Sergeant Tieman and Senior Constable Matheson stopped the vehicle to conduct a licence check.
The appellant told DBS Tieman that he did not hold a licence, and that the vehicle was registered to a friend of his named David. Checks conducted by police revealed that the vehicle was registered to a David Prideaux.[6]
[6] Registration papers in his name were also found in the vehicle.
Police searched the vehicle. In the driver’s side door, they located some cut-down drinking straws. In the centre console they located two pieces of alfoil with a burnt residue on them; a small plastic bag containing traces of a white substance; a wallet containing various cards naming the appellant and another piece of alfoil, and a mobile phone (black iPhone). In the glovebox, they located various items of correspondence addressed to the appellant and Ms Pakkawan.[7] A second mobile phone (gold Samsung) was located in a bag in the front passenger footwell.
[7] Two letters were addressed to the appellant, and one to Ms Pakkawan, all at their Underdale premises. The letters were unopened, and there was no evidence as to their date (although in the photographs which are Exhibit P1 it appears that one of the letters bore a date stamp from late July 2019).
When informed by police of what they had found in the vehicle, the appellant said that he “use[d] a little bit”. The appellant was asked whether he had anything concealed on his person, and he said that he did not.
A search of Ms Pakkawan revealed $2,250 in cash (comprised of 45 x $50 notes) and an ice pipe concealed in her bra. The appellant told police the ice pipe was his.[8] Ms Pakkawan also had an iPhone in a pink case.
[8] Later, in his oral evidence, he said the cash was theirs jointly, and gave an explanation for it.
A drug detection dog was brought to the scene by Senior Constable Struthers. The dog provided indications to the plastic trim around the gearstick and a subwoofer box in the boot of the vehicle.
SC Struthers located a number of resealable plastic bags concealed underneath the gearstick. The evidence did not reveal what was required to remove the gear housing in order to locate the bags. Nor did it reveal whether the bags were in a position which suggested they had been deliberately concealed, or might simply have fallen into the location they were found.
DBS Tieman and SC Mathieson examined the subwoofer box. It had a seam around it, and appeared as though it may be capable of being opened. But they were unable to open it. During cross-examination, DBS Tieman accepted that they spent over 20 minutes trying unsuccessfully to open it, including with the use of a screwdriver. At some later point, whilst SC Mathieson was in possession of the key to the vehicle and the two remote control fobs which were on the same key ring, the box popped or clicked open. DBS Tieman was not able to say what caused it to open.
In the subwoofer box, DBS Tieman located a cryovac bag containing a quantity of a white crystalline substance, together with a number of resealable plastic bags, a set of digital scales and a black spoon. The substance in the cryovac bag was spread across three smaller bags, and subsequent examination revealed that in combination it weighed 1.065 kilograms, and contained 293 grams of methylamphetamine (Count 1). The firearms and related items (Counts 2 to 8) were also located in the subwoofer, with at least one of the firearms within a black ‘Tactix’ branded strongbox.
The appellant was arrested and then searched at the Elizabeth police station. Two resealable plastic bags containing a white powder were located in his underpants. Subsequent examination revealed that the substance in those bags weighed a total of 1.41 grams, containing 0.75 grams of methylamphetamine.
A subsequent examination of the vehicle and subwoofer box revealed that the box had a hinged lid and an electronically operated latch. The lid of the box was held closed unless a voltage was applied to the electromagnet on the latch, which would then release the latch and allow the lid to open. It was discovered that the box could be opened by simultaneously pressing the boot button on the vehicle’s key and a button which was concealed under the lining of the boot. In particular, it became apparent that there was wiring coming from the subwoofer box that was wrapped in insulation tape and disappeared under the lining of the boot. The lining of the boot was able to be pulled away by removing the approximately 10 scrivets holding it in place. It took about five minutes to remove all of the scrivets using a screwdriver. This revealed a button which was connected by the wires to the subwoofer box. The evidence did not reveal whether the button might be pressed through the lining.[9] There was other wiring which connected the subwoofer box to the wiring within the car that was connected to the boot opening mechanism.
[9] Other than some general evidence from SC Mathieson to the effect that the lining “wasn’t completely rigid” and that if pressure were applied, it would “probably bend”.
Several items in the boot of the vehicle were swabbed or tested for DNA and fingerprints. There was low or no suitable DNA obtained from the items that were swabbed (including the firearms, silencers and hand grip), and so the swabs were not analysed. Two fingerprints located on the black strongbox were matched to a Cameron Adams. No suitable impressions for fingerprint analysis were able to be obtained from the various other items in the subwoofer box. None of the boot opening mechanism, button under the boot lining, the insulation tape on the wiring, or the scrivets holding the boot lining in place, were tested for fingerprints or swabbed for DNA.
Search of the appellant’s premises
Later in the afternoon of 31 July 2019, police also searched a residential premises in Underdale occupied by the appellant and Ms Pakkawan. Access was gained to the premises by opening a roller door to the garage, using a remote control fob attached to the key ring which had been seized from the appellant and which contained the key to the Toyota. From the garage, police were able to walk through to a courtyard and then enter the house through an unlocked glass sliding door. There was no CCTV set up.
Police seized a number of items from the Underdale premises, including four ice pipes (located on a coffee table in the loungeroom, in a case next to the coffee table, in a storage area under the stairs, and in the basin area of the upstairs ensuite bathroom); a set of digital scales (located under the coffee table in the loungeroom); a measuring spoon and old-style mobile phone (both located in a safe in the ensuite bathroom); some handwritten notes on a bundle of stapled pages taken from a 2019 diary (located in a bedside drawer in the upstairs master bedroom, next to a box with ‘Elevit’ written on it); and four apparently old or broken mobile phones (also located in a bedside drawer). It was an agreed fact that Elevit is a prenatal vitamin commonly taken during pregnancy. The handwritten notes consisted of several names and a number of figures, a few of which were accompanied by a dollar sign. On the prosecution case, the handwritten notes were consistent with a drug debt list, or ‘tick list’, commonly used by drug dealers.
Expert evidence of drug investigations
The prosecution case included expert evidence from Detective O’Malley, who had significant experience in drug investigations. He gave evidence that alfoil can be used to consume heroin, with the user placing the drug on a small square or tab of alfoil, and lighting it to produce vapours which are then inhaled. He gave evidence about the use and sale of methylamphetamine. This included evidence that, at the relevant time, a kilogram of methylamphetamine was worth about $100,000 if sold in that quantity. Such a quantity would be common for “higher end dealers”; street dealers did not usually have possession of such a large quantity.
Detective O’Malley explained that items commonly associated with trafficking in drugs included electronic scales, large quantities of resealable plastic bags, multiple mobile phones or SIM cards (often subscribed in different names), tick lists, large sums of cash and obvious unexplained wealth. Weapons were also commonly possessed, either for self-defence or for use in recovering debts or in threatening others.
He explained that, at the lower end of drug trafficking, a tick list might be kept by a dealer who sells drugs on credit. It would usually consist of handwritten notes with information such as the names of customers, the amount the customers owe, and perhaps also information such as the quantity of the drug supplied to various customers. When a customer made payment for the drug, the recorded amount owing would be “ticked off” to reflect that the debt had been settled.
Detective O’Malley was shown the handwritten notes found in the bedside drawer of the appellant’s premises. In particular, he was taken to an entry on page 3 of those notes, which included reference to several names and figures ranging from 1,400 to 22,000. He said that several references to the figure of 3,200 were consistent with the price of an ounce of methylamphetamine in July 2019. Similarly, on page 5, there were figures listed – but he said that the range of them was too wide for him to be able to express any opinion as to whether they related to a particular quantity of drug (other than some entries which were again consistent with the price of an ounce of methylamphetamine). In relation to the names and amounts written on a few of the other pages, he said that at least one of the figures referenced (3,000) was consistent with the price for an ounce of methylamphetamine. During cross-examination, Detective O’Malley agreed that the alleged offending in this matter appeared quite sophisticated in nature, and that the handwritten notes did not reflect the way in which he would expect sales or debts to be recorded for a sophisticated operation.
During cross-examination, Detective O’Malley explained that larger scale drug operations often involved the use of heat sealed bags, and indeed that the packaging of the methylamphetamine found in the subwoofer box appeared to be heat sealed. No heat sealing machine was located at the appellant’s premises. He also described the various steps which police might take in order to investigate unexplained wealth, none of which were undertaken in the present case. He accepted that chemical analysis could be conducted in an attempt to determine whether two quantities of methylamphetamine came from the same batch, but that no such tests were conducted in the present case in relation to the quantities of methylamphetamine found on the appellant’s person and in the subwoofer box. He accepted that documents could be tested for fingerprints, but that none were taken from the handwritten notes found in the drawer next to the bed in which the appellant and Ms Pakkawan slept. He accepted that weapons used by drug dealers for their personal protection were generally kept on their person, or within relatively close reach.
Other matters
The only key to the Toyota located by police was the one being used by the appellant when the vehicle was stopped by police. No inquiries were conducted of the appellant’s neighbours with a view to ascertaining whether they could shed any light on whether the Toyota had been around the premises.
It was an agreed fact that the Toyota had been stopped in Peterhead on 25 April 2019 – that is, about three months earlier – with the appellant being the driver and sole occupant of the vehicle on that occasion.
As mentioned, the appellant told police that the vehicle was registered to a friend of his named David. Indeed, the appellant offered to ring him, but the police did not take up this offer, or otherwise request his mobile number. Checks on the vehicle confirmed that it was registered to a David Prideaux of Birkenhead, consistently with the registration papers found in the vehicle. DBS Tieman and SC Mathieson did not carry out or request any search of Mr Prideaux’s address, and were not aware of any search being carried out.
It was an agreed fact that on 15 July 2020 police stopped a different Toyota which was being driven by Mr Prideaux. The vehicle was registered to his father. Mr Prideaux was required to submit to a drug oral fluid test which returned a positive result for methylamphetamine. This result was later confirmed by testing at the Forensic Science Centre.

As has also been mentioned, the two fingerprints from the Tactix strongbox within the subwoofer box were matched to a Cameron Adams. The following matters were agreed in relation to Mr Adams:
·on 12 March 2013, police searched a black Daihatsu vehicle belonging to Mr Adams and located a white metal pole, approximately 45 cm in length, next to the right hand side of the driver’s seat;
·on 24 June 2015, and again on 14 November 2015, police were performing mobile driver testing duties and stopped a vehicle being driven by Mr Adams. On each occasion he was required to submit to a drug oral fluid test, which returned a positive result for methylamphetamine (later confirmed by testing at the Forensic Science Centre);
·on 8 June 2018, police attended Mr Adams’ premises at Biggs Flat where they found four large cannabis plants being grown hydroponically in a converted bedroom, nine small cannabis plants being grown in a nursery in the lounge room with automatic watering and an extraction fan, and a large plastic container in the laundry containing chemicals consistent with those used in the manufacture of amphetamine (including a brown liquid identified as a pre-cursor used in the manufacture of methylamphetamine and amphetamine); and
·on 20 June 2020, police searched a vehicle being driven by Mr Adams and located various items including a large amount of cash (in a box behind the front passenger seat ($9,800) and in Mr Adams’ pocket ($5,500)), an ice pipe and small quantity of methylamphetamine, and three weapons that were easily accessible to the driver (a large serrated knife, a trolley handle adapted for use as a club or baton, and a crowbar).
Handwriting samples were obtained from the appellant and Ms Pakkawan, but there was no evidence of any analysis of these samples or comparison against the handwritten notes found at the Underdale premises.
As to the mobile phones located in the Toyota and at the Underdale premises, there was no evidence of e-crime analysis or messages probative of involvement in a drug trafficking business. Indeed, the evidence did not reveal whether the mobile phones located at the Underdale premises even had SIM cards in them.
The appellant’s evidence
The appellant gave evidence at trial.
At the date he was stopped while driving the Toyota vehicle, the appellant was in a long-term relationship with Ms Pakkawan, and they had two young children, being a three year old boy and an infant girl. He had been renting the Underdale premises for about 18 months and was living there with Ms Pakkawan and the children. He and Ms Pakkawan shared the upstairs master bedroom.
The appellant gave evidence that the purpose of the safe in the ensuite to the master bedroom was to store some gold they had been given following the birth of their children, as was customary in their community. They ended up needing to sell the gold, but had kept the safe.
The appellant was employed on farms pruning vineyards. The work was seasonal, and typically available from about May to August. He was usually paid about $150 in cash per day.
The appellant said that he met Mr Prideaux in 2016 through a mutual friend, whose partner was Mr Prideaux’s sister. The appellant, Mr Prideaux and the mutual friend used to socialise at Mr Prideaux’s house, playing darts and smoking methylamphetamine.
In relation to being stopped by police in the Toyota registered to Mr Prideaux on 25 April 2019, the appellant said that he had been socialising at Mr Prideaux’s house. His partner, Ms Pakkawan, was pregnant with C at the time and telephoned him saying that she was feeling sick and that he needed to come home straightaway. Mr Prideaux told him he could use the Toyota to drive home.
The appellant explained that both of the fobs on the key ring in his possession when he was stopped by police on 31 July 2019 were intended to operate his garage roller door, although he had only been able to get one of them to work.
When stopped by police on 31 July 2019, the appellant was driving to a Laos and Thai Buddhist Temple on the Salisbury Highway because, in his culture, they would go and give thanks to the gods for the birth of their daughter. He explained that he would usually go to the Vietnamese and Chinese Buddhist temple at Sellicks, but because Ms Pakkawan was Thai, she wanted to go to the temple on Salisbury Highway.
As to how he came to be driving the Toyota, which he said belonged to Mr Prideaux, the appellant explained that in July 2019 he had a black 2006 Holden VE Commodore at his disposal. He had purchased it six months earlier for around $2,500 from a friend (in whose name it remained registered). However, there had been a noise coming from one of the wheels, which led him to take it to a mechanic on Eighth Avenue in Woodville Gardens, on 30 July 2019. After he dropped the car at the mechanics he was told that it was too dangerous for him to drive it. So he caught a taxi home.
The appellant and Ms Pakkawan had plans for the following day which involved Ms Pakkawan getting her eyelashes or eyebrows done at Prospect, and then the two of them travelling to the temple on Salisbury Highway. The appellant rang Mr Prideaux to ask whether he could borrow the Toyota the following day. Mr Prideaux agreed to lend the applicant the car, and the pair agreed to meet at the mechanics the following morning.
The following morning, on 31 July 2019, the appellant caught a taxi to the mechanics with Ms Pakkawan and their two children. Mr Prideaux drove the Toyota and met them there. Mr Prideaux gave the appellant the key to the Toyota, which he put straight onto the key ring with his garage fobs so that he would not lose it. Mr Prideaux left in a taxi, with the plan being that the appellant would ring him when he was finished with the Toyota.
The appellant took the car seats for both of his children out of his Commodore and installed them in the Toyota.[10] The anchor points were behind the head rests in the main cabin of the vehicle. He did not open the boot of the Toyota at the mechanics, or indeed at any other point between borrowing the car and being stopped by police.
[10] While the appellant’s evidence was that he put two car seats into the rear of the Toyota, the police evidence only mentioned one, being the infant seat that C was seated in.
The appellant drove from the mechanics to drop the older of their two children at child care, and then took Ms Pakkawan to her beauty appointment in Prospect. Their younger child was in a car seat in the rear of the vehicle. The appellant waited about two hours for Ms Pakkawan’s appointment to conclude. Whilst waiting he used heroin by putting some on a piece of foil, heating the foil with a cigarette lighter and smoking the vapour through one of the cut-down straws the police later located. Both foils with residue located by police in the centre console were foils he used to smoke heroin while waiting for his partner to finish her appointment.
The appellant said that he had been a passenger in the Toyota on a handful of prior occasions, perhaps three or four times. He denied that the letters addressed to him and Ms Pakkawan might have been placed in the glovebox at some earlier time; he surmised that Ms Pakkawan must have taken them out of their letterbox on their way out that morning and then placed them in the Toyota, although he did not see her do so.
The appellant said that the plastic bags found in the centre console were his, and that the residue in the bags was heroin. He had used the digital scales and spoon found at his premises to weigh the amounts of heroin. The alfoil square in his wallet had not been used. When he was asked why he did not have the heroin residue down his underpants with the methylamphetamine, he said that as far as he was concerned the heroin was “gone … finished”.
The appellant acknowledged that the methylamphetamine in his underpants was his. He had obtained it the day before, having purchased 1.75 grams of methylamphetamine (half an eight ball) for around $250 in cash, with the drug being in a resealable plastic bag. He had used the digital scales and spoon at his house to split it across two bags to assist him to keep track of how much he was using.
The appellant admitted having been a user of heroin and methylamphetamine for a number of years. He admitted that he would use an ice pipe to smoke methylamphetamine, and that the pipes found in Ms Pakkawan’s bra and in their house were his. He said that he had consumed the difference between 1.75 grams and 1.41 grams of methylamphetamine between purchasing it the day earlier and when he was stopped by the police.
The appellant said that he had purchased both the heroin and methylamphetamine in his possession taken that day from a person named Teabag on Hanson Road. He said that he usually carried all of his drugs with him wherever he went.
The appellant said that, as at July 2019, he was spending about $250 a fortnight on methylamphetamine, and about $150 a fortnight on heroin. He had not seen Ms Pakkawan using drugs, although she knew about his drug use.
The appellant denied being a part of a drug syndicate, or otherwise selling any drugs during 2019 to support his heroin or methylamphetamine habits.
The appellant said that the money found by police in Ms Pakkawan’s clothing belonged to the two of them. However, he denied that the unused resealable plastic bags found under the gear shifter in the Toyota were his. He also denied any knowledge of the handwritten notes found in the bedside drawer. He said they were located in a drawer on Ms Pakkawan’s side of the bed. He did not recognise the notes or the handwriting. The only name he recognised in the notes was Dave or David.
When asked why he had two mobile phones with him in the Toyota, he said that the gold Samsung was his new phone and the older one was just for playing games, as there were some games that he could only play on his iPhone. In relation to the phones located at the Underdale premises, he said they were old or broken phones that he or Ms Pakkawan used to use. He could not recall why one of them was in the safe.
As to why he lied to police when he denied having any drugs down his pants, the appellant said that he did so because he was scared. He denied that the reason he was scared about police finding the methylamphetamine in his pants was because he knew there was methylamphetamine in the boot of the Toyota.
The appellant said that he did not own any real estate in South Australia, or have any shares or other assets.
In relation to the Toyota, the appellant said that he did not know there was a subwoofer box in the boot, and did not know that there were drugs, firearms or other related items in the boot or subwoofer box. He did not know anyone by the name of Cameron Adams. He denied that he had used the Toyota frequently in the months leading up to July 2019.
Issues at trial
As mentioned at the outset of these reasons, the central issue at trial was whether, as the prosecution alleged, the appellant was in possession (sole or joint) of the methylamphetamine, firearms and other items the subject of the charges. In the circumstances of the case, this issue turned largely on whether the appellant was aware of the items in the subwoofer box.
Strictly speaking, the issue of possession arose in a different forensic context in the trafficking charge as opposed to the possession charges.
In the case of the charge of trafficking in a commercial quantity of a controlled drug, the prosecution was required to prove the following elements beyond reasonable doubt:
(i)that the substance found by the police in the subwoofer box was a controlled drug;
(ii)that the substance (i.e. the mixed methylamphetamine) weighed in excess of 500 grams;
(iii)that the appellant knowingly trafficked in the substance; and
(iv)that the appellant possessed the substance knowing it was a controlled drug or being reckless as to that fact.
Focussing upon the third element, this required that the prosecutor prove beyond reasonable doubt that the appellant was (a) in sole or joint possession of the substance, and (b) was either intending to sell at least 500 grams of the drug himself, or was in possession of it for the purpose of someone else selling at least that amount. However, as the judge instructed the jury, if they found it proved that the appellant was in possession of the drugs in the subwoofer box (that is, (a)), then the law presumed that the appellant had the intention or purpose required by (b) unless the appellant satisfied them on the balance of probabilities that he had it in his possession for a purpose which did not involve the drug being sold.
In the case of the possession charges, as well as some formal matters, the prosecution was required to establish that the appellant was in possession of the relevant item (being firearms, a sound moderator and ammunition). However, the law presumes that a person is in possession of a firearm, sound moderator or ammunition if that person is in charge of a vehicle where it is found. As there was no dispute in the present case that the prosecution had proved beyond reasonable doubt that the appellant was in charge of the vehicle in which the items in question were found, the appellant was presumed to be in possession of the items unless he proved on the balance of probabilities that (a) he did not know, and could not reasonably have been expected to have known, that the items were in the vehicle; or (b) the items were in the lawful possession of another, or he believed on reasonable grounds that they were in the lawful possession of another. As the trial judge directed the jury, there was no evidence that the appellant believed the items were in the lawful possession of another, so it was appropriate that they concentrate on whether the appellant had satisfied them on the balance of probabilities that he did not know, and could not reasonably be expected to have known, that the items were in the vehicle.
As also mentioned earlier in these reasons, the prosecution case on possession was a circumstantial one. There were two overarching themes to the prosecution evidence at trial. The first was that the appellant was a regular user of the vehicle in which the drugs were concealed, contrary to his assertion that he was not. In support of this aspect of its case, the prosecution relied upon the following matters:
·the appellant was driving the vehicle at the time it was stopped;
·the appellant had been observed driving the same vehicle by police on a previous occasion three months earlier (on 25 April 2019);
·the vehicle’s key (which was used to open the subwoofer box) was affixed to the same keyring as his garage door remote controls;
·the vehicle was fitted with a child’s seat in the rear when it was stopped, with the appellant’s infant in that seat;
·letters addressed to the appellant and Ms Pakkawan were located in the glovebox;
·the items associated with drug use by the appellant in the vehicle (that is, the alfoil tabs and the plastic bags with a white residue, both of which were in the centre console); and
·the inherent implausibility or unlikelihood that another person would entrust the appellant with a vehicle that contained within it a large quantity of methylamphetamine (valued at more than $100,000), and the firearms and other items.
The second theme was that the appellant was in the business of selling methylamphetamine, either solely or jointly with another. In support of this aspect of its case, the prosecution relied upon the following matters:
·the appellant’s possession of two bags containing methylamphetamine in his underpants (showing an interest in, and access to, methylamphetamine);
·the drug trafficking paraphernalia at his home, being the digital scales and measuring spoon;
·the handwritten notes found in a drawer alongside his bed;
·the resealable bags in the gear housing of the Toyota;
·the cash ($2,250 in $50 notes) concealed in Ms Pakkawan’s clothing; and
·the multiple mobile phones (in the Toyota and the appellant’s home).
Of course, the significance of these items of evidence, and the issue of possession of the methylamphetamine, firearms and related items, fell to be considered in the context of the evidence as a whole, including the explanations proffered by the appellant in his evidence.
Grounds 1 & 2: discreditable conduct evidence
The prosecution case relied upon various items of discreditable conduct evidence. The discreditable conduct evidence can be divided into two categories of evidence.
The first category involved evidence of the appellant’s personal use of illicit drugs, namely heroin and methylamphetamine. This consisted of the evidence of cut-down straws in the Toyota, the pipe concealed in Ms Pakkawan’s clothing, the two plastic bags of methylamphetamine in the appellant’s underpants, the items (pipes, a spoon, and scales) at the appellant’s premises, and the appellant’s admission to police that he “use[d] a little bit”. Importantly, it also included evidence of the alfoil tabs with a burnt residue found in the centre console of the Toyota, the similar alfoil tab found in the appellant’s wallet, and the two plastic resealable bags with a white residue also found in the centre console of the Toyota.
This first category of discreditable conduct evidence was received for three non-propensity uses under s 34P(2)(a) of the Evidence Act 1929 (SA). As the trial judge instructed the jury, the prosecution relied upon this evidence as probative of the appellant having a motive to sell drugs so as to fund his addiction, and as probative of his association with people who had access to methylamphetamine. Thirdly, the prosecution relied upon the evidence of the alfoil tabs and the two plastic resealable bags found in the centre console of the Toyota as probative of the extent of the appellant’s connection to, and use of, that vehicle; in particular, that it was probative of the appellant having a longer term, or more regular, use of the Toyota than the two occasions otherwise revealed by the evidence.
The second category of discreditable conduct evidence was evidence of the appellant’s involvement in an ongoing business of selling methylamphetamine, either alone or with Ms Pakkawan. This consisted of evidence of the plastic resealable bags found in the gear housing of the Toyota, the two bags of methylamphetamine in the appellant’s underwear, the cash concealed in Ms Pakkawan’s clothing, the items (the spoon, scales, plastic resealable bags and handwritten list) at the appellant’s premises, and the multiple mobile phones.
This second category of evidence was received for a use involving propensity reasoning under s 34P(2)(b).[11] As the judge instructed the jury, the prosecution relied upon this evidence as probative of the appellant’s involvement in an ongoing business of selling methylamphetamine which was in turn circumstantially probative of the appellant’s knowledge and possession of the drugs in the boot of the Toyota, and an intention or purpose that they be sold.
[11] See Elrick v The Queen [2021] SASCA 13 at [38] (Doyle JA, Kelly P and Bleby JA agreeing).
The judge gave directions as to the permissible and impermissible uses of these two categories of discreditable conduct evidence, as well as the parties’ submissions in relation to the weight that might be attached to the various aspects of that evidence. No complaint is made about these directions. Rather, the complaint made in Grounds 1 and 2 relates to the admissibility of aspects of this evidence.
In particular, Ground 1 involves a complaint that the trial judge erred in admitting the evidence of the alfoil tabs and plastic bags with a white residue found in the centre console of the Toyota under s 34P(2)(a). The appellant submits that the trial judge erred in holding that the probative value of this evidence outweighed its prejudicial effect.

Ground 2 involves a complaint that the trial judge erred in admitting the evidence of the handwritten notes found in the bedside drawer in the master bedroom of the appellant’s Underdale residence, and the unused plastic resealable bags found in the gear housing of the Toyota. The appellant submits that the trial judge erred in holding that this evidence had the requisite “strong probative value”.
Before addressing the appellant’s submissions in relation to the probative value of the impugned evidence more directly, it is appropriate to make some general observations about the principles to be applied.
First, the expression “probative value” is to be understood as requiring an assessment of the extent to which the evidence could rationally affect, directly or indirectly, the assessment of the probability of a fact in issue.[12] Here, the fact in issue was the appellant’s knowledge, and hence possession, of the methylamphetamine and other items in the boot of the Toyota.
[12] Johnson v The Queen (2018) 266 CLR 106 at [18] (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ); R v Roberts (2019) 134 SASR 483 at [78] (Peek J, Hughes J agreeing); Elrick v The Queen [2021] SASCA 13 at [41] (Doyle JA, Kelly P and Bleby JA agreeing); R v Garner [2021] SASCA 68 at [24] (Kelly P, Lovell and Bleby JJA).
Next, in assessing the probative value of an item of evidence, it is important to bear in mind that, while the task may permit some consideration of matters such as the likely or inherent credibility or reliability of the evidence, and the competing inferences that may be available, the focus of the task is upon the probative capacity of the evidence.[13] As explained in Elrick v The Queen:[14]
The task is not one of attempting to predict the ultimate weight of the evidence in light of the evidence that is in fact adduced during the course of the trial. Indeed, the trial judge will often not know, and have no way of reliably predicting, what challenges may be made to the prosecution evidence, and what evidence may be led in the defence case. The prospect that such challenges and evidence may ultimately neutralise certain items of prosecution evidence does not necessarily render that evidence inadmissible as lacking the requisite probative force.
[13] Elrick v The Queen [2021] SASCA 13 at [42] (Doyle JA, Kelly P and Bleby JA agreeing); R v Garner [2021] SASCA 68 at [27] (Kelly P, Lovell and Bleby JJA).
[14] Elrick v The Queen [2021] SASCA 13 at [42] (Doyle JA, Kelly P and Bleby JA agreeing).
Finally, it is also important to bear in mind that the probative value of an item of evidence, particularly where it forms part of a body of circumstantial evidence relied upon by the prosecution, must be assessed in the context of the prosecution case as a whole.[15] As has been observed in a similar context, particular items said to be indicia of involvement in a drug trading enterprise, when considered individually, may be readily capable of innocent explanation, or otherwise lack any significant probative value. However, when viewed collectively, and in the context of the evidence as a whole, those items may well have the requisite strong probative force.[16]
[15] Hammer v The Queen [2022] SASCA 75 at [41]-[42] (Livesey P, Bleby and David JJA); Elrick v The Queen [2021] SASCA 13 at [43] (Doyle JA, Kelly P and Bleby JA agreeing).
[16] Kroni v The Queen [2021] SASCFC 15 at [31] (Doyle J); Elrick v The Queen [2021] SASCA 13 at [43] (Doyle JA, Kelly P and Bleby JA agreeing).
In challenging the admissibility under s 34P(2)(a) of the evidence of the two alfoil tabs with a burnt residue, and the two resealable plastic bags with a white residue,[17] found in the centre console of the Toyota, the appellant emphasises both the limited probative capacity of the evidence, and the prejudice associated with its admission.
[17] In his written submissions, the appellant also complained of the admission of the bags with the white residue as evidence of involvement in a drug trading enterprise under s 34P(2)(b). However, as this evidence was not ultimately left to the jury on this basis (because the appellant said the residue was heroin not methylamphetamine), this aspect of the appellant’s argument was not ultimately pressed.
As to the probative capacity of this evidence, the appellant accepts that the alfoil tabs were probative of the use of heroin,[18] and could be linked to the appellant via the existence of a similar alfoil tab in his wallet and his admission that he “use[d] a little bit”. The appellant also accepts that, in light of his evidence about the white residue being remnants of the heroin he had consumed, the two plastic bags could also be linked to him and his use of heroin.[19]
[18] Particularly in light of the evidence of Detective O’Malley that was ultimately led by the prosecution.
[19] Even in the absence of the appellant’s evidence identifying the white residue as heroin, it could be readily inferred that the unknown substance was an illicit drug, having a similar relevance and probative force.
However, the appellant contends that in the absence of any other evidence as to the nature and extent of the appellant’s use of heroin, the three alfoil tabs and two plastic bags said little about his connection to the Toyota, or indeed the fact or extent of any addiction to heroin, and hence motive to possess or sell another controlled drug (such as methylamphetamine).
There is some force in the submission that the alfoil tabs and plastic bags have limited probative value in establishing any significant connection with the Toyota beyond the occasion upon which the appellant was stopped by police. That said, the existence of the alfoil tabs and plastic bags, considered in combination with the other items in the Toyota associated with the appellant (such as the letters and the car seat), and with his drug use, provided at least some support for a connection with the Toyota beyond the occasions he was observed driving it by police. The fact that the appellant gave evidence that both alfoil tabs and both plastic bags related to drug use only on the day he was stopped is not determinative of that issue.
Further, and in any event, the alfoil tabs and plastic bags, in combination with the other evidence of personal use of both heroin and methylamphetamine, also had at least some probative value in support of a potential motive for involvement in selling methylamphetamine so as to fund that use. The absence of any evidence as to the extent, and likely cost, of the appellant’s use,[20] whilst relevant to the weight that might properly be ascribed to the evidence, did not deprive it of probative value.
[20] Other than the appellant’s own evidence, mentioned earlier.
Of course, whatever probative value might be assigned to the evidence of the alfoil tabs and plastic bags needs to be weighed against the potential prejudicial effect of that evidence. Whilst the evidence of his use of heroin was prejudicial to the appellant, it is to be borne in mind that there was a significant amount of other evidence of the appellant’s use and involvement with illicit drugs (that is, methylamphetamine). In the circumstances, the incremental prejudice associated with the evidence of the alfoil tabs and plastic bags was limited, even having regard to the appellant’s explanation for those items involving him stating that he drove with his child in the car after using the heroin. Further, any potential prejudice associated with this evidence was able to be confined through appropriate directions to the jury.
All things considered, we are not persuaded that the trial judge erred in admitting the evidence of the alfoil tabs or plastic bags with a white residue under s 34P(2)(a).
The appellant’s challenge to the admission of evidence of the appellant’s involvement in an ongoing business of selling methylamphetamine under s 34P(2)(b) was confined to the evidence of the handwritten notes found in the bedside drawer in the master bedroom of the appellant’s Underdale residence, and the unused plastic resealable bags found in the gear housing of the Toyota. Whilst not challenging the other evidence of the appellant’s involvement in an ongoing business of selling methylamphetamine (such as the scales, spoon, cash, mobile phones and methylamphetamine) the appellant contends that the handwritten notes and plastic bags lacked the requisite “strong probative value” required for admission under s 34P(2)(b).
The admissibility of evidence of a person’s involvement in a drug trading enterprise – as probative of that person’s possession of, and intention to sell, that drug – is well accepted in the authorities,[21] and was not contested by the appellant. The issue in the present case was confined to whether the evidence of the handwritten notes and plastic bags was properly admitted on that basis.
[21] R v Falzon (2018) 264 CLR 361 at [1] (the Court); Kroni v The Queen (2021) 138 SASR 37 at [24]-[28] (Doyle J); Hammer v The Queen [2022] SASCA 75 at [37]-[38] (Livesey P, Bleby and David JJA); and the authorities referred to therein.
In challenging the probative value of the handwritten notes, the appellant points out that they were located in a drawer next to a box with ‘Elevit’ written on it, suggesting that the notes may have been in the drawer on Ms Pakkawan’s side of the bed rather than the appellant’s side of the bed. There are two difficulties with this observation. The first is that the box was empty, and the photographs taken of the contents of the drawers on either side of the bed reveal little if anything about who might have slept on which side of the bed. As such, the notes could not be definitely linked to Ms Pakkawan, and hence remained circumstantially relevant to the appellant’s involvement in the sale of methylamphetamine. The second, and more fundamental, difficulty is that the prosecution case encompassed the appellant’s joint involvement with Ms Pakkawan in an ongoing business selling methylamphetamine. It followed that even if the notes could be linked to Ms Pakkawan rather than the appellant, this did not undermine their probative value on the prosecution case.
The appellant also challenged the weight that might be attached to the notes, even accepting a possible connection with the appellant. The appellant emphasised the difficulty in determining whether the notes related to illicit drug sales or debts at all, let alone the timing and detail of any such sales or debts. Whilst written on extracts from a 2019 diary, the entries were difficult to interpret and seemed to be written on an apparently random collection of pages. The appellant also contended that, to the extent the notes did relate to methylamphetamine sales, they appeared to relate to ‘street level’ type transactions rather than the more sophisticated and higher level operation suggested by the items found in the subwoofer box.
Whilst these are all considerations relevant to the weight that might be attached to the notes, the notes remained probative of involvement in an ongoing business of selling methylamphetamine. As explored through the expert evidence of Detective O’Malley, the notes consisted primarily of names and numbers, with some of the numbers being consistent with the price of an ounce of methylamphetamine (being about $3,000). Further, whilst the numbers were all significantly less than the value of the methylamphetamine in the subwoofer box (approximately $100,000), they were generally round amounts in the thousands, suggesting a reasonably high level operation. Bearing in mind that the probative value of the notes fell to be assessed in the context of the circumstantial case as a whole, we are satisfied that the notes had the strong probative value required for admission under s 34P(2)(b).
In relation to the plastic resealable bags[22] found in the gear housing in the Toyota, the appellant argued that they had limited weight (and indeed risked circular reasoning) given that they were found in a location which left it unclear whether they could be linked to the appellant. Whilst it is true that the bags were not as readily linked to the appellant (either alone or in conjunction with Ms Pakkawan) as the other items relied upon by the prosecution in support of his involvement in selling methylamphetamine, this did not deprive them of their circumstantial relevance. Viewed in combination with the balance of the prosecution evidence as to the appellant’s involvement in an ongoing business selling methylamphetamine, the unused plastic resealable bags found in the gear housing of the Toyota had the requisite strong probative force.
[22] As to the admissibility of plastic resealable bags as evidence of involvement in a drug trading operation, see Kroni v The Queen (2021) 138 SASR 37 at [31] (Doyle J).
The appellant raised the possibility of a jury reasoning, from a conclusion that these bags were concealed in the gear housing, that the appellant had a propensity to conceal items relating to illicit drugs, and submitted that the difficulty of separating this (impermissible) use from the permissible use of the bags was a barrier to admissibility under s 34P(3). We do not agree. We do not think there was any realistic prospect of a jury reasoning in this impermissible way, just as we do not think the jury would have reasoned from the fact that the appellant had concealed methylamphetamine in his underpants to a propensity to conceal illicit drugs that was somehow probative of his knowledge of the methylamphetamine or other items concealed in the subwoofer box in the boot of the Toyota.
As originally drafted, the appellant’s notice of appeal also challenged the admissibility under s 34P(2)(b) of various other items of evidence, but these aspects of Grounds 1 and 2 were not ultimately pressed and so need not be addressed.
For the reasons set out, Grounds 1 and 2 have not been made out.
Ground 3: unreasonable verdict
In Ground 3 the appellant contends that the verdict of the jury on Count 1 (trafficking in a commercial quantity of a controlled drug) should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. The appellant argues that the evidence was incapable of proving beyond reasonable doubt that the methylamphetamine in the subwoofer box in the boot of the Toyota was in his sole or joint possession; that it was incapable of excluding as a reasonable possibility that it was in the sole or joint possession of a person or persons other than the appellant.
The principles governing consideration of this ground are not in dispute. As confirmed by the High Court in Pell v The Queen[23] and Dansie v The Queen,[24] the principles remain as set out in the Court’s earlier decision in M v The Queen.[25]
[23] Pell v The Queen (2020) 268 CLR 123.
[24] Dansie v The Queen (2022) 274 CLR 651.
[25] M v The Queen (1994) 181 CLR 487.
The question is one of fact which this Court must decide by making its own independent assessment of the evidence, and determining whether, notwithstanding that there was evidence upon which the jury might convict, it would be dangerous to allow the verdict of guilty to stand; that is, whether there is a significant possibility that an innocent person has been convicted.[26]
[26] Pell v The Queen (2020) 268 CLR 123 at [119] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In accordance with the reasons of the plurality in M v The Queen,[27] the Court must ask itself whether it thinks that, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[28] Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.[29]
[27] M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[28] Dansie v The Queen (2022) 274 CLR 651 at [8] (Gageler, Keane, Gordon, Steward and Gleeson JJ; Pell v The Queen (2020) 268 CLR 123 at [43], [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[29] Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J); Pell v The Queen (2020) 268 CLR 123 at [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In M v The Queen, the plurality said the following by way of elaboration upon the Court’s task:[30]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.
[30] M v The Queen (1994) 181 CLR 487 at 494-495 (Mason CJ, Deane, Dawson and Toohey JJ).
In Dansie v The Queen, the High Court emphasised the need for the appellate court to undertake an independent assessment of the evidence, both as to its quality and its sufficiency. Their Honours explained that in a case where the evidence at trial was substantially circumstantial, this requires that the appellate court weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard, and in so doing to form its own judgment as to whether the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.[31]
[31] Dansie v The Queen (2022) 274 CLR 651 at [12] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
We have earlier summarised the prosecution case, in particular by reference to its two overarching themes: (i) that the appellant was a regular user of the vehicle in which the methylamphetamine was concealed; and (ii) that the appellant was in the business of selling methylamphetamine, either solely or jointly with another. We have summarised in bullet point form the evidence relied upon in support of each of these themes, adding that the significance of these items, and the key issue of the appellant’s possession of the methylamphetamine, fell to be considered in the context of the evidence as a whole, including the explanations proffered by the appellant in his evidence.
In challenging the quality and sufficiency of this evidence, the appellant relied upon a number of matters:
·the Toyota vehicle in which the drugs were located was not registered to the appellant;
·the limited probative value of the evidence establishing a connection between the appellant and the Toyota beyond the two occasions in which police observed him driving it (bearing in mind not only the appellant’s evidence as to how he came to be driving the Toyota, but also the ease with which the key could have been affixed to his keyring, the absence of any evidence suggesting that the letters found in the glovebox were old, and the transportable nature and limited significance of the items associated with the appellant’s drug use);
·the sophisticated nature of the locking mechanism on the subwoofer box, which the appellant contended reduced the unlikelihood that another person would have entrusted him with the vehicle when it contained a large quantity of methylamphetamine (valued at more than $100,000) and the firearms and related items;
·the absence of any forensic evidence connecting the appellant to the methylamphetamine in the subwoofer box, or indeed any of the items found in that box or the box itself;
·the evidence that the registered owner of the Toyota (Mr Prideaux) tested positive for methylamphetamine, suggesting he had an interest in that drug;
·the fingerprint evidence linking Mr Adams to the subwoofer box, and the evidence suggesting that he had an interest in methylamphetamine, and an involvement in a drug trading enterprise;
·the absence of any search of the residences of Mr Prideaux or Mr Adams;
·the absence of any evidence connecting the appellant to Mr Adams, or excluding a connection between Mr Prideaux and Mr Adams;
·the absence of any evidence comparing the chemical composition of the methylamphetamine found on the appellant with the methylamphetamine found in the subwoofer box and the subject of Count 1;
·the absence of any items located at the appellant’s residence which were capable of being used to weigh or package the methylamphetamine found in the subwoofer box (given that it was such a large quantity[32] and packaged in a cryovac bag that appeared to have been heat sealed);
·the apparent incongruity between the modest scale of the drug trading operation suggested by the items found at the appellant’s premises and with him in the Toyota, relative to the larger scale operation suggested by the quantity and value of the methylamphetamine, and the nature of the other items, located in the subwoofer box; and
·the apparent incongruity between, on the one hand, the sophistication of the concealment of the methylamphetamine and other items in the subwoofer box, and the appellant’s behaviour on the day of his arrest.
[32] The inference being that the digital scales found at the appellant’s residence were only suitable for weighing smaller quantities.

In summary, the appellant contended that there was only limited evidence to support the prosecution case that the appellant was in any way involved with packaging or concealing the methylamphetamine, firearms or other items in the subwoofer box, or was otherwise aware of their presence in the Toyota. Against this, there was evidence linking both Mr Prideaux and Mr Adams to the Toyota, and suggesting that they had an interest in methylamphetamine. In the case of Mr Adams, there was evidence of his involvement in trading methylamphetamine. The appellant contended that, given the limits of the police investigation, and regardless of whether the appellant’s evidence was accepted, the prosecution evidence was incapable of proving that the appellant’s possession of the methylamphetamine the subject of Count 1 was the only rational inference from all of the circumstances.
Even accepting that it was open to the jury to reject the appellant’s evidence, there is some force in a number of the appellant’s contentions in relation to the weight to be ascribed to various aspects of the evidence relied upon by the prosecution. The only observation we make in response to the matters summarised above is that whilst it was appropriate to mention the limits of the police investigation, it is of course not appropriate to speculate about what the further investigative steps suggested might have revealed had they been undertaken. The strength of the prosecution case fell to be assessed on the evidence as it was, not as it might have been had further investigative steps been undertaken.
In undertaking the requisite independent assessment of the evidence, we have focused on the probative force of the evidence when considered as a whole. Having done so, there is little that can be said by way of analysis or reasoning that adds to the summary of the relevant strands of evidence set out earlier in these reasons. While some strands of the evidence were of limited weight when considered in a piecemeal fashion, we are nevertheless satisfied that, when considered as a whole, the prosecution evidence established beyond reasonable doubt the appellant’s possession, whether sole or joint, of the methylamphetamine in the subwoofer box. It excluded as a reasonable possibility the exclusive possession of that methylamphetamine by a person or persons other than the appellant. It was open to the jury, acting reasonably, to convict the appellant of Count 1.
Ground 4 – consciousness of guilt
In Ground 4 the appellant complains that aspects of the prosecutor’s cross-examination of the appellant and closing address invited the jury to treat the concealment of two bags of methylamphetamine in his underpants, and an ice pipe in Ms Pakkawan’s bra, as demonstrating a consciousness of guilt on the part of the appellant. The appellant complains that this was productive of a miscarriage in circumstances where the jury were not instructed either that they not use the evidence in that way (a Zoneff direction[33]), or that before using it in that way they needed to consider various matters, including the range of reasons why a person might behave in a particular way (an Edwards direction[34]).
[33] Zoneff v The Queen (2000) 200 CLR 234.
[34] Edwards v The Queen (1993) 178 CLR 193.
The relevant passage of cross-examination commenced with reference to the appellant having accepted that he lied to police about the methylamphetamine in his underpants because he was scared. The prosecutor asked whether there was a reason why he was “scared” about the police finding the methylamphetamine in his underpants but not the remnants of heroin in the centre console. This question was objected to on the basis that it assumed the appellant was not scared about the heroin, a matter that was not in evidence. The prosecutor then reframed the question, asking whether he had “concerns” about the police finding the alfoil tabs and heroin remnants in the plastic bags in the centre console. He answered that he was concerned about the alfoil tabs and heroin remnants; that he was concerned about both the methylamphetamine in his underpants and the items associated with his heroin use. Having earlier given evidence to the effect that he regarded the heroin as “gone … finished”, he said that he simply forgot about the alfoil tabs. The prosecutor then asked the appellant whether the reason he was “worried” about police finding the methylamphetamine in his underpants was because it was the same drug as the methylamphetamine in the boot of the Toyota. The appellant answered “no”. When asked whether he had asked Ms Pakkawan to hide the ice pipe (which had been in the centre console), he said he did not.
During her closing address, the prosecutor mentioned the methylamphetamine concealed in the appellant’s underpants, suggesting that the jury might regard it as probative of not merely the appellant’s use of that drug but also his involvement in a business trading in it. She added:
You also might think why didn’t he go to that effort of hiding the foil and the residue bags and why were they just in the centre console of the vehicle? Those items show he was a user of heroin. However, the ice pipe that was found in Ms Pakkawan’s bra and the methamphetamine in his jocks show that he was a user of the drug methamphetamine.
It may be accepted that these aspects of the prosecutor’s cross-examination and closing address went beyond merely identifying the fact that the appellant concealed the methylamphetamine in his underpants and then lied about it to police. The cross-examination and closing address potentially invited an inference that he may have done so because he was concerned or worried that it may connect him to the methylamphetamine in the boot, including by contrasting his conduct in respect of the items associated with his heroin use in the centre console (which he did not conceal or deny (acknowledging that he “use[d] a little bit”)) with his conduct in concealing and lying about the two bags of methylamphetamine found in his underpants.
The trial judge was alive to the potential for the prosecutor’s cross-examination to invite reasoning involving a consciousness of guilt; and to the potential for it to have been seen as an invitation to reason that the appellant lied about the methylamphetamine concealed in his underpants because he knew about the methylamphetamine in the boot. Having raised this with counsel during a break in the summing up, it was agreed that the judge should direct the jury that the evidence of the appellant’s lie to the police could not be used in that way; that it could only be used in assessing the appellant’s credibility. Consistently with this, the trial judge gave an orthodox Zoneff direction. He told the jury:
The next topic relates to the prosecution's submission that the accused told a lie when speaking to police, when he said that he had no drugs on his person. The accused obviously accepted that he did lie about that. He said he did so because he was scared at the time.
If you find he did lie when speaking to police that lie is only relevant to his credit and to your assessment of the credibility of anything else he said in the conversations with police, and also his evidence. Much may depend on how significant you think the lie is and your assessment of his explanation for that lie.
You cannot, however, use the fact the accused told a lie as evidence of guilt. You cannot reason that just because someone has told a lie that is evidence of their guilt. Finding that the accused lied may affect your assessment of the truth of what the accused said, but it does not of itself add to the prosecution's evidence. Lying about something does not make him guilty of any of these offences.
There is one more aspect I want to say about this lie. You also cannot reason that he told that lie because he knew about the drugs in the boot. If you thought that there was some suggestion to that effect in the cross-examination of Mr Tran, I direct you that the evidence of the lie was not led for that purpose, and it cannot be used in that way. It can only be used when you are assessing the credibility of Mr Tran's evidence in court that he did not know about the drugs.
The appellant acknowledges that the trial judge appropriately directed the jury in relation to his lie to police (denying that he had any drugs on his person when in fact he had some methylamphetamine concealed in his underpants). However, the appellant contends that the trial judge did not adequately direct in relation to the aspect of the prosecutor’s cross-examination and closing address that related to the appellant’s conduct in concealing the methylamphetamine in his underpants. On the appellant’s argument, the prosecutor’s cross-examination and closing address had invited the jury to infer that he concealed the methylamphetamine because he knew there was methylamphetamine in the boot (that is, because of a consciousness of guilt of Count 1), including by contrasting his concealment of the methylamphetamine with his failure to conceal the evidence of his heroin use.
We are not persuaded by the appellant’s argument. In our view, the jury would likely have considered the appellant’s reason for concealing his methylamphetamine (and not the items associated with his heroin use[35]) was bound up in, or at least related to, his reason for lying about having the methylamphetamine in his underpants. As such, the judge’s strong Zoneff direction in relation to his lie to police sufficed to ensure that there was no realistic prospect of the jury engaging in any reasoning involving a consciousness of guilt. In the face of the judge’s Zoneff direction in relation to the appellant’s lie about the concealed methylamphetamine, we consider it unrealistic to suggest that the jury would have separately reflected on the appellant’s reasons for concealing the methylamphetamine, whether by way of contrast with his conduct in respect of the items associated with his heroin use, or otherwise.
[35] Which, on his evidence, he forgot about, presumably because, as he had earlier said, he regarded the heroin as “finished”.
We are reinforced in our view that there was no risk of the jury engaging in reasoning invoking a consciousness of guilt by the absence of any suggestion by counsel below that this risk arose or needed to be addressed by any direction to the jury (beyond the Zoneff direction that was given). Whilst this is not determinative, it is relevant to an assessment of the way in which the trial was conducted, and hence the risk of a miscarriage.[36]
[36] R v Lowe [2016] SASCFC 118 at [13]-[14] (Peek and Doyle JJ, Nicholson J agreeing), and the authorities referred to therein.
The present case is readily distinguishable from Hinrichsen v The Queen,[37] where the prosecutor’s submission that invited reasoning involving a consciousness of guilt was more direct and prominent, and in relation to a central issue in the prosecution case. Further, while the trial judge in that case gave a Zoneff direction, it was in general terms. The Zoneff direction in the present case was in relation to a specific topic and would, in our view, have been sufficient to prevent or divert the jury from reasoning in the impugned manner.
[37] Hinrichsen v The Queen [2023] SASCA 111 at [448]-[483] (Lovell and Doyle JJA).
Finally, the appellant noted the prosecutor’s reference to the ice pipe concealed in Ms Pakkawan’s bra in the passage from her closing address extracted above. Whilst it is true that the concealment of the ice pipe in Ms Pakkawan’s bra could not be attributed to the appellant in the same way that the concealment of the methylamphetamine in his underpants could be attributed to him, we do not accept that this reference gave rise to any risk of the jury engaging in misconceived reasoning, or using the evidence in a way that involved a consciousness of guilt on the part of the appellant. Having been steered away from any such reasoning in connection with the appellant’s own concealment of the methylamphetamine in his underpants by the judge’s Zoneff direction, there was no appreciable risk that the jury would have engaged in a similar – but more tenuous, if not misconceived – process of reasoning in respect of the ice pipe concealed in Ms Pakkawan’s bra.
Ground 4 has not been made out.
Conclusion
For the reasons given, we grant permission to appeal on each ground, but dismiss the appeal.