Willingham v The Queen

Case [2022] SASCA 3

Supreme Court of South Australia

(Court of Appeal: Criminal)

WILLINGHAM v THE QUEEN

[2022] SASCA 3

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

3 February 2022

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES

The appellant was charged with one count of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and four counts of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA). Following a trial by jury, the appellant was found guilty of the offence of trafficking in a controlled drug (Count 1) and three offences of money laundering (Counts 2 to 4). The appellant was acquitted of a further offence of money laundering (Count 5). The appellant appeals against those convictions.

The grounds of appeal include complaints as to the trial Judge’s failure to give directions as to the purpose for which the evidence led on the drug trafficking offence may and may not be used on the money laundering offences (Ground 1), and the failure to give directions as to the purpose for which the evidence of the cash the subjects of Counts 2 to 5 may and may not be used on the trial of each of those individual counts (Ground 2). The appellant also complains that the trial Judge erred in his directions to the jury regarding the appellant’s flight and attempt to discard evidence (Ground 4), and in his directions as to the use the jury could properly make of the appellant’s evidence (Ground 5). Ground 3 was abandoned before the hearing.

The appellant was granted permission to appeal on Grounds 1 to 4. The question of permission to appeal on Ground 5 was referred to the Court of Appeal.

Held, per the Court, dismissing the appeal on Count 1, and allowing the appeal on Counts 2 to 4:

1. As to Ground 1, the drug trafficking evidence led in support of Count 1 was evidence of discreditable conduct on the trial of the money laundering offences (Counts 2 to 5). Sections 34P and 34R of the Evidence Act 1929 (SA) (the ‘EA’) were engaged. The drug trafficking evidence was adduced for a propensity purpose. The trial Judge failed to give adequate directions as to…

Continue reading Willingham v The Queen

Sign in free to access the full text

Details
AGLC
Willingham v The Queen [2022] SASCA 3
Case
[2022] SASCA 3
Decision Date

CaseChat Overview and Summary

The appellant was convicted by a jury of trafficking in methylamphetamine and three counts of money laundering, having been acquitted of a further money laundering charge. The appellant appealed these convictions to the Court of Appeal of South Australia, raising several grounds of appeal concerning the trial judge's directions to the jury. These grounds included alleged failures to adequately direct the jury on the permissible and impermissible uses of evidence relating to the drug trafficking offence in relation to the money laundering charges, and the use of evidence of cash amounts in relation to each individual money laundering count. The appellant also appealed the trial judge's directions regarding his flight and attempts to discard evidence, and the use of his own evidence.

The central legal issues before the Court of Appeal were whether the trial judge had provided adequate directions to the jury regarding the use of evidence admitted under s 34P of the *Evidence Act 1929* (SA). Specifically, the court had to determine if the evidence of drug trafficking constituted "discreditable conduct" evidence in relation to the money laundering charges, and if the evidence of cash amounts related to the money laundering charges was similarly discreditable conduct evidence for the purposes of individual counts. The court also considered whether the trial judge’s directions on the appellant’s flight and attempts to discard evidence, and on the use of the appellant’s own evidence, were erroneous and resulted in a miscarriage of justice.

The Court of Appeal found that the evidence of drug trafficking was indeed discreditable conduct evidence for the purposes of the money laundering charges, and that the trial judge had failed to give adequate directions as required by s 34R of the *Evidence Act 1929* (SA) regarding its permissible and impermissible uses. Similarly, the court held that the evidence of cash amounts, when considered in relation to individual money laundering counts, also constituted discreditable conduct evidence for which proper directions were not given. However, the court determined that the trial judge’s directions concerning the appellant’s flight and attempts to discard evidence, and the use of the appellant’s own evidence, were not erroneous and did not occasion a miscarriage of justice.

Consequently, the Court of Appeal allowed the appeal in relation to the money laundering convictions (Counts 2 to 4), setting them aside and ordering a retrial for those offences. The appeal against the conviction for drug trafficking (Count 1) was dismissed. Permission to appeal was granted on all grounds.

Orders

Orders of the court

The appellant was charged with one count of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and four counts of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA). Following a trial by jury, the appellant was found guilty of the offence of trafficking in a controlled drug (Count 1) and three offences of money laundering (Counts 2 to 4). The appellant was acquitted of a further offence of money laundering (Count 5). The appellant appeals against those convictions.

The grounds of appeal include complaints as to the trial Judge’s failure to give directions as to the purpose for which the evidence led on the drug trafficking offence may and may not be used on the money laundering offences (Ground 1), and the failure to give directions as to the purpose for which the evidence of the cash the subjects of Counts 2 to 5 may and may not be used on the trial of each of those individual counts (Ground 2). The appellant also complains that the trial Judge erred in his directions to the jury regarding the appellant’s flight and attempt to discard evidence (Ground 4), and in his directions as to the use the jury could properly make of the appellant’s evidence (Ground 5). Ground 3 was abandoned before the hearing.

The appellant was granted permission to appeal on Grounds 1 to 4. The question of permission to appeal on Ground 5 was referred to the Court of Appeal.

Held, per the Court, dismissing the appeal on Count 1, and allowing the appeal on Counts 2 to 4:

1. As to Ground 1, the drug trafficking evidence led in support of Count 1 was evidence of discreditable conduct on the trial of the money laundering offences (Counts 2 to 5). Sections 34P and 34R of the Evidence Act 1929 (SA) (the ‘EA’) were engaged. The drug trafficking evidence was adduced for a propensity purpose. The trial Judge failed to give adequate directions as to the permissible and impermissible use of the evidence and did not comply adequately with s 34R of the EA.

2. As to Ground 2, the evidence of the cash the subject of the money laundering offences, other than the individual count being considered by the jury, was evidence of discreditable conduct. Sections 34P and 34R of the EA were engaged. The evidence was adduced for a propensity purpose. The trial Judge failed to give adequate directions as to the permissible and impermissible use of the evidence and did not comply adequately with s 34R of the EA.

3. As to Ground 4, the trial Judge did not err in his directions as to the appellant’s flight and conduct in attempting to dispose of the drugs. The trial Judge’s error in misstating the appellant’s evidence as to his reasons for discarding the drugs was subsequently corrected by the trial Judge and did not result in a miscarriage of justice.

4. As to Ground 5, the trial Judge did not err in his directions as to the proper use the jury could make of the appellant’s evidence.

5. The proviso is not applied.

6. Permission to appeal is granted on Ground 5 (permission to appeal having already been granted on the other grounds). The appeal is allowed on Grounds 1 and 2 but the appeal is otherwise dismissed. The convictions on Counts 2 to 4 are set aside but the appeal on Count 1 is dismissed. A retrial is ordered on Counts 2 to 4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 34P of the EA provides: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). Further, s 34R of the EA provides: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.(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly. The first issue to consider is whether the drug trafficking evidence is discreditable conduct evidence on the trial of the money laundering offences. Put another way, did the evidence tend to suggest that the appellant had engaged in discreditable conduct other than the conduct constituting the offence? An aligned issue is whether the prosecution relied on the drug trafficking evidence for a propensity purpose on the trial of the money laundering charges. The respondent conceded that the evidence of the appellant’s possession of the methylamphetamine and used, plastic, resealable bags containing remnants of methylamphetamine was evidence of discreditable conduct. However, the respondent submits that the other evidence of the indicia of sale was not discreditable conduct evidence because it did not relate to the appellant’s past behaviour and therefore, did not engage s 34P of the EA.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.