Willingham v The Queen - [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 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.

Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1 pt 2; Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 138; Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) ss 34P & 34R, referred to.
AK v Western Australia (2008) 232 CLR 438; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Cesan v The Queen (2008) 236 CLR 358; De Silva v The Queen (2019) 268 CLR 57; Douglass v The Queen (2012) 86 ALJR 1086; Hofer v The Queen (2021) 95 ALJR 937; Kalbasi v State of Western Australia (2018) 264 CLR 62; Lane v The Queen (2018) 265 CLR 196; Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193; Orreal v The Queen [2021] HCA 44; R v Power (1996) 87 A Crim R 407; R v Burns (2009) 103 SASR 514; R v Falzon (2018) 264 CLR 361; R v Jeisman [2008] SASC 266; R v Schulz (2016) 126 SASR 476; R v Soteriou (2013) 118 SASR 119; R v Sultana (1994) 74 A Crim R 27; Rollond v The Queen (2020) 137 SASR 519; Weiss v The Queen (2005) 224 CLR 300, considered.

WILLINGHAM v THE QUEEN

[2022] SASCA 3

Court of Appeal - Criminal: Livesey P, Doyle and David JJA

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) (the ‘CSA’), and four counts of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act1935 (SA) (the ‘CLCA’). The offences were allegedly committed by the appellant on 11 July 2018 at his home in Burton. 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 grounds of appeal include complaints as to the trial Judge’s failure to give directions about 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.

Facts

On 11 July 2018, police attended at the appellant’s home. When the police arrived, the appellant was in the front yard. After seeing the police, the appellant left his front yard, went inside the house and locked the front door. From a property to the rear of the appellant’s home, police observed the appellant in his backyard biting open at least two plastic bags and emptying their contents into a swimming pool. After the appellant looked in the direction of the police officer that was observing him, he jumped into the swimming pool and out of that police officer’s sight. The appellant was arrested in the swimming pool.
Police seized a total of approximately 6.53 grams of crystals containing an unknown amount of methylamphetamine from in, and near, the pool and from the kitchen bench inside the house (Count 1). Police also located $27,750 in cash in various amounts from the following locations: $8,100 packaged inside a Glad brand sandwich bag in a gap between a tile and the edge of the pool (Count 2); $16,010 inside an overhead cupboard in the kitchen (Count 3); $1,970 inside a black bag on the kitchen bench (Count 4); and $1,670 inside a safe in the shed in the backyard (Count 5). Police also seized an open packet of unused Glad brand sandwich bags and a set of scales from a kitchen drawer; three Glad brand sandwich bags containing crystalline remnants from an overhead kitchen cupboard; and another set of digital scales and three mobile telephones from the kitchen bench. There was a fourth mobile telephone found outside near the swimming pool. Police located several small, empty, plastic resealable bags inside the shed.
It was the prosecution case that the appellant was operating a business selling drugs and that he was in possession of the methylamphetamine as he was intending to sell some, or all, of the drug as part of that business. The prosecution alleged that the parcels of cash were the proceeds of past drug sales, although there was no evidence adduced of any specific sale. The prosecution alleged that the four separate parcels of cash, empty small resealable plastic bags or ‘deal bags’, resealable bags with remnants of methylamphetamine, two sets of digital scales, and four mobile telephones were the accoutrements or indicia of the appellant’s drug selling business.
At trial, the prosecution adduced evidence from the attending police officers, a detective from the Drug and Organised Crime Task Force as to the packaging, sale and value of drugs on the illicit drug market in South Australia in 2018, and a chemist employed by the Forensic Science Centre of South Australia. There were also a series of agreed facts as to the appellant’s ownership of and residence at the premises at Burton.
The appellant gave evidence at trial. He admitted possession of the methylamphetamine but said that it was for his own consumption. He said that in the early hours of the morning on 11 July 2018, he purchased two eight balls (one‑eighth of an ounce or 3.5 grams per ball) of methylamphetamine for his own use for $1,000. He said he expected to consume one eight ball over the course of four days and if he were buying two at a time, it would be consumed over double the time. The appellant said that he and his drug dealer crushed up some other methylamphetamine (brought by the dealer for the appellant to test) and consumed it. The crystals on the kitchen bench were the drugs that were not consumed. He said that some of the methylamphetamine dropped on the floor, so he collected it and placed it into a plastic container on the kitchen bench.
As to the money laundering offences, the appellant gave evidence that the cash was from various legitimate sources. In respect of Count 2, the appellant said the $8,100 located in the cavity near the pool belonged to his father and that he hid it because he was worried his former girlfriend would steal it and he was not able to find the cash again until it was located by the police. As to Counts 3 and 4, and the parcels of $16,010 and $1,970 cash located in the kitchen, the appellant said that the money consisted of cash payments received for his work as a subcontractor for a trucking company. As to Count 5, and the parcel of $1,670 located in the safe, the appellant said that it was the proceeds from the sale of a motorcycle.
The appellant denied that he was in the business of selling drugs. He also denied that any of the cash located at his home was the proceeds from past drug sales.
At trial, the issue in dispute as to the drug trafficking offence (Count 1) was whether the prosecution had proved that the appellant intended to sell all, or some, of the methylamphetamine. The appellant admitted possession of the methylamphetamine. To prove that the appellant was intending to sell all, or some, of the drugs and was guilty of the offence, the prosecution relied on the statutory presumption found in s 32(5) of the CSA, to the effect that should it be proved beyond reasonable doubt that the appellant was in possession of a trafficable quantity, being 2 grams of methylamphetamine, it was to be presumed, in the absence of proof to the contrary, that the appellant had the intention to sell some or all of the drug in his possession.
The prosecution also relied on several items of circumstantial evidence, considered in combination with the expert evidence, to establish that the appellant was in the business of selling drugs and that his intention was to sell all, or some, of the drugs as part of that business. That circumstantial evidence included: the amounts of cash found in different locations at the house; the two sets of digital scales; the appellant’s possession of multiple mobile telephones; new plastic resealable bags commonly used to package drugs for sale; the three used plastic resealable bags with the remnants of methylamphetamine which was suggestive of past sales of drugs; the value of the drugs if sold; and the evidence of the appellant’s flight from the front yard to the pool and his attempts to discard evidence by emptying the bags of methylamphetamine into the swimming pool.
At trial, the appellant submitted that there was in fact an absence of the usual drug trafficking accoutrements at his home which militated against a finding that he was in the business of selling drugs and that he intended to sell the methylamphetamine the subject of the charge. There was an absence of CCTV cameras, ‘cutting agents’, that is, substances used to dilute methylamphetamine to on-sell at a profit, and creditor lists or ‘tick lists’. The appellant submitted that the absence of some of the indicia commonly associated with the sale of drugs undermined the prosecution case that he was in the business of selling drugs and was intending to sell the methylamphetamine.
The appellant also submitted that the purity of the methylamphetamine seized from around the pool (allegedly having come from the bags the appellant was seen emptying into the pool) was 71 per cent, which is less than the 80 per cent purity usually seen in drug seizures. As such, the appellant submitted it was more likely that the drug had been purchased by the appellant for his own use, rather than to on-sell it.
In his evidence, the appellant gave innocent explanations for each of the parcels of cash and the other indicia of drug trafficking. The appellant submitted that the evidence supported a finding, on the balance of probabilities, that he was a user of methylamphetamine and that the drugs were intended for his own consumption and not for sale.
As to the money laundering offences, the issue at trial in respect of each offence was whether the prosecution had proved that the property or cash was tainted. That is, whether the property was obtained from an unlawful activity. On the prosecution case, the cash the subject of each offence was the proceeds from past drug sales from the appellant’s business of selling methylamphetamine. The prosecution alleged that the appellant knew it was tainted property as he had engaged in the unlawful conduct of drug trafficking. On the other hand, the appellant’s case was that each parcel of cash was obtained from a legitimate source. As to Counts 3 and 4, the appellant called evidence from Ms Moffat, his employer’s bookkeeper, who said that she believed the appellant was paid in cash.

Grounds of appeal

Ground 1

The first ground of appeal is set out as follows:
The learned trial Judge erred at law by failing to direct the jury pursuant to s 34R(1) of the Evidence Act 1929 (EA) on the trial of Counts 2 to 5, by identifying and explaining the purpose for which the Count 1 trafficking evidence may and may not be used:
1.1. The learned trial Judge did not direct the jury on the trial of Counts 2 to 5 about any purpose for which it may use the Count 1 trafficking evidence.
1.2. The learned trial Judge did not direct the jury on the trial of Counts 2 to 5 about any purpose for which it may not use the Count 1 trafficking evidence.
1.3. As the prosecution did not apply to adduce the Count 1 trafficking evidence on the trial of the offences charged in Counts 2 to 5 pursuant to s 34P(2)(b) of the EA, the learned trial Judge was required to direct the jury that on the trial of Counts 2 to 5, it must not use the Count 1 evidence as evidence that the appellant had been in the business of selling illicit drugs.
1.4. The learned trial Judge failed to direct the jury that on the trial of Counts 2 to 5, it must not use the Count 1 trafficking evidence for the impermissible purpose (s 34P(1)(a) of the EA) of bad person reasoning.
1A. In the alternative to ground 1, if s 34R(1) of the EA did not apply to the trial of Counts 2 to 5, a miscarriage of justice was occasioned by the learned trial Judge’s failure to direct the jury that the Count 1 trafficking evidence was not admitted as evidence on the trial of Counts 2 to 5 and as a result, that evidence must be entirely disregarded by the jury when it considered whether the prosecution had proven the appellant’s guilt of Counts 2 to 5.
This ground of appeal raises the following issues: Did the drug trafficking evidence led in support of Count 1 constitute discreditable conduct evidence under s 34P of the Evidence Act1929 (SA) (the ‘EA’) on the money laundering offences (Counts 2 to 5) and require directions to be given pursuant to s 34R of the EA? If so, did the prosecution rely on the drug trafficking evidence on the money laundering offences for a propensity purpose? Was the evidence admissible under s 34P(2)(b) of the EA in circumstances where the prosecution did not comply with the mandatory provisions in s 34P(4) of the EA requiring notice that the evidence was intended to be relied upon for a propensity purpose? If the drug trafficking evidence was admissible on the money laundering offences for a propensity purpose, did the trial Judge give directions which adequately met the requirements of s 34R of the EA?
In considering this ground of appeal, it is necessary to say something more about the way in which the matter progressed at trial.
Prior to the trial, the prosecution filed a Notice of Intention by Director to Adduce Discreditable Conduct Evidence (the ‘DCN’). The DCN described the discreditable conduct evidence sought to be led as the ‘possession of large amounts of cash (Counts 2 – 5) on 11 July 2018, being proceeds of past drug sales’. The use of the evidence, said to be permissible under s 34P(2)(b) of the Act was:
… [T]o show the accused was engaged in the business of selling drugs as at the time of his arrest, which makes it more likely that he:
i. Was in possession of the drugs found on 11 July 2018;
ii. Was intending to sell some or all of those drugs; and
iii. Any innocent explanations for the presence of the drugs can be rejected.
On the voir dire, defence counsel did not object to the use of the evidence of the cash (the subject of Counts 2 to 5) for a propensity purpose on the drug trafficking offence (Count 1).
The appellant subsequently filed an Amended Application for Directions dated 26 April 2021. In this application, the appellant sought an order that Count 1 be severed from Counts 2 to 5 and tried separately. The appellant submitted that the hearing of Counts 2 to 5 together with Count 1 would conflate, in an impermissible way, the issues to be determined by the jury with respect to the money laundering charges. The trial Judge dismissed the application. In a written ruling, his Honour said that the mischief identified by the appellant could be remedied by directions on the appropriate use of the evidence. No directions were ultimately given in relation to the use of the evidence led in support of the drug trafficking offence (Count 1) on the money laundering offences (Counts 2 to 5).

In accordance with the DCN, the prosecutor, in her opening address, told the jury that the prosecution case was that the appellant was operating a drug dealing business. In relation to the four counts of money laundering, the prosecutor told the jury that the parcels of cash found at the appellant’s home were the proceeds of the appellant’s business of selling methylamphetamine. The prosecutor did not expressly submit to the jury that the evidence relating to the drug trafficking offence (Count 1) was relied on for a propensity purpose on the appellant’s trial for the money laundering offences (Counts 2 to 5). Nor did the prosecution file a DCN indicating such an intention. The DCN was confined to the propensity use of the evidence in support of the money laundering offences (Counts 2 to 5) on the drug trafficking offence (Count 1).
The prosecutor in her closing address, submitted to the jury:
I suggest you can reject the accused’s explanation for that money and find that the cash was proceeds of prior sales of methylamphetamine, having regard to all of the other prosecution evidence in the matter that would support the inference that the accused was dealing.
(emphasis added)
The appellant submits that in making that submission to the jury, the prosecutor invited the jury to use all the prosecution evidence at trial, including the evidence led in support of the drug trafficking offence (Count 1), to conclude that the appellant was guilty of each money laundering offence. The appellant contends that to invite the jury to reason in that way involved a propensity use of the evidence.
The appellant contends that it was not open for the prosecution to put their case in this way to the jury because the prosecution had not complied with the mandatory provisions in s 34P(4) of the EA. That section provides that a party seeking to adduce discreditable conduct evidence that a defendant has a particular propensity or disposition as circumstantial evidence relevant to a fact in issue must give reasonable notice, in writing, to each other party in the proceedings in accordance with the rules of the court. In this matter, the prosecution did not file a DCN indicating they intended to use the drug trafficking evidence for a propensity purpose on the money laundering offences (Counts 2 to 5).
In summing up to the jury, the trial Judge directed the jury about how it may use the evidence of the money found at the appellant’s premises (Counts 2 to 5) on the trial of the drug trafficking offence (Count 1). His Honour directed the jury that if they accepted this evidence, they were entitled to reason that the cash showed that the appellant had engaged in the business of selling drugs and therefore he was someone who was willing and inclined to sell drugs; making it more likely that the appellant acted on that inclination by having the methylamphetamine at his house on the occasion charged for the purpose of sale, rather than for personal use as the appellant claimed. The trial Judge directed the jury that this was the only use they could make of the cash the subject of the money laundering offences on the drug trafficking offence.
The trial Judge directed the jury that they could not use the evidence of the cash (Counts 2 to 5) on the drug trafficking offence (Count 1) to reason that because the appellant had done bad things in the past, he is a bad person and therefore, more likely to have committed Count 1.
On appeal, the appellant does not complain that those directions failed to comply with s 34R of the EA.
The trial Judge did not give a standalone direction as to the use the jury could make of the drug trafficking evidence (Count 1) on the money laundering offences (Counts 2 to 5). However, the trial Judge said:
The fact that you may have reached a conclusion about the money, or some portion of it, for the purpose of count 1, as I have just discussed above, does not mean that it follows that you automatically find the accused guilty of one or all of the money laundering counts. You must then go on to consider, on all of the evidence, whether it has been proven beyond reasonable doubt that Mr Willingham is guilty of one or some or all or none of the money laundering counts.
(emphasis added)
The appellant contends that the trial Judge, in so directing, invited the jury to use the drug trafficking evidence for a propensity purpose on the money laundering offences.
The appellant contends that the evidence led in support of the drug trafficking offence was evidence of discreditable conduct on the appellant’s trial on the money laundering offences and therefore, ss 34P and 34R of the EA were engaged. Further, the appellant contends that the trial Judge’s directions as to the drug trafficking evidence did not comply with s 34R of the EA because the jury were not provided with any guidance or instruction as to how they may and may not use the drug trafficking evidence on a consideration of the money laundering offences.
For the reasons that follow, we are satisfied that the drug trafficking evidence led in support of Count 1 was discreditable conduct on the trial of the money laundering offences (Counts 2 to 5) and ss 34P and 34R of the EA were engaged. We are satisfied that the drug trafficking evidence in the trial of the money laundering offences was used for a propensity purpose, and accordingly, the prosecution was required to file a discreditable conduct notice pursuant to s 34P(4) of the EA, which they did not do. The prosecution’s failure to comply with the notice provisions meant that the propensity use of the evidence was never ventilated by the parties before the trial Judge. Presumably, as a result, his Honour confined his s 34P directions to the use of the evidence of the cash the subject of the money laundering offences on the trial of the drug trafficking offence. Whilst it is arguable that the prosecution’s failure to file a DCN and comply with the mandatory provision in s 34P(4) of the EA contributed to some confusion at trial as to the permissible and impermissible uses of the drug trafficking evidence on the money laundering offences, we are satisfied it did not result in a miscarriage of justice. However, for the reasons outlined earlier, we are satisfied that the trial Judge’s directions on the use of the drug trafficking evidence in the trial of the money laundering offences failed to comply adequately with s 34R of the EA and that the trial Judge’s failure to give appropriate directions was an error of law. We therefore allow this ground of appeal subject to the operation of the proviso.

Relevant statutory provisions

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.
It is well established that circumstantial evidence which supports a finding that an accused is in the business of selling drugs is admissible on the trial of an offence of drug trafficking, subject to the requirements of s 34P of the EA. The evidence is relevant in proof of an accused’s possession of a drug and intention to sell the drug.
Evidence of an accused’s involvement in a business selling drugs on a drug trafficking offence falls to be admitted as propensity evidence pursuant to
s 34P(2)(b) of the EA.
Similarly, evidence which supports a finding that an accused is currently in the business of selling drugs can be admissible on the trial of an offence of money laundering where the prosecution alleges that the money is ‘tainted’ because it is the proceeds of unlawful activity, that being prior drug sales. The evidence, if accepted, can be strongly probative that cash, the subject of a money laundering offence, is the proceeds of past drug sales.
Where an accused person is in possession of illegal drugs and the accoutrements of drug trafficking, and there is also evidence that a person is engaged in a business of selling drugs and evidence that the business was established or existed prior to a person’s arrest, it may be open for the jury to reason that the accused was more likely, in the past, to have been in the business of selling drugs and have a past propensity to sell drugs. From this finding a jury may more readily infer that the money in the appellant’s possession is tainted because it is the proceeds of unlawful activity, namely past drug sales.
In this matter, the ‘drug trafficking evidence’ adduced at trial in support of Count 1 included approximately 6.53 grams of crystals containing methylamphetamine (which the appellant admitted was in his possession), expert evidence as to the value of the drugs on the illicit drug market, and evidence of the appellant’s attempts to discard the evidence. There was also evidence that the appellant had the accoutrements or indicia of sale which supported a finding that the appellant had an intention to sell the methylamphetamine found in his possession. That evidence included two sets of digital scales, four mobile telephones, and unused plastic resealable bags in which drugs could be packaged for sale.
The drug trafficking evidence also supported a finding that the appellant was in the business of selling drugs and that it was an established business that existed and operated before his arrest on 11 July 2018. The established nature of the business was potentially demonstrated by the multiple mobile telephones and two sets of digital scales, which suggested this was not a new venture. Further, three used plastic resealable bags containing remnants of methylamphetamine suggested that the appellant had in the past been in the business of selling drugs.
Had the admissibility of the ‘drug trafficking evidence’ been challenged on the trial of the money laundering offences, the prosecution would have had to demonstrate that the evidence had strong probative value having regard to the issues arising at trial. The drug trafficking evidence was plainly of strong probative value on the money laundering offences in circumstances where it was alleged that the cash the subject of the offences was the proceeds of unlawful activity, namely past drugs sales.
The way in which the evidence could be permissibly used is as follows: if the jury accepted that the appellant was intending to sell methylamphetamine at the time of his arrest, as part of a business selling drugs and that business existed at a time before his arrest (as demonstrated by the multiple mobile telephones, digital scales, used plastic resealable bags, and cash not directly the subject of the charge under consideration), then the jury could infer that the cash, the subject of the money laundering offence under consideration, was from past drug sales. The drug trafficking evidence was probative of the appellant’s propensity to sell drugs in the past, which was directly relevant to, and strongly probative of, whether cash the subject of each money laundering offence was from past drug sales. For that reason, the drug trafficking evidence satisfied the requirements of s 34P(2)(b) of the EA and was admissible on the money laundering offences (Counts 2 to 5).
The respondent contends that the prosecution did not rely on the drug trafficking evidence or a finding that the appellant was engaged in the business of drug trafficking in proof of the money laundering offences. In support of that contention, the respondent relied on the fact that the prosecution had not filed a DCN to that effect. The respondent also submitted that the prosecutor did not expressly suggest to the jury in her opening or closing addresses that the drug trafficking evidence should be used for a propensity purpose on the trial of the money laundering offences. I note, however, that the prosecutor did submit that the appellant was in the business of dealing in drugs at the time of his arrest and that each parcel of cash, the subject of a money laundering offence, was the proceeds of past drug sales.
The respondent submits that the prosecution did not adduce any evidence of specific past drugs sales and did not allege with any specificity when, and by what transaction, the tainted proceeds or cash were realised. Rather, the respondent contends that the prosecution case on the money laundering charges was based on the appellant’s circumstances at the time of his arrest, from which the jury could reason directly that the money the subject of each money laundering offence was from past drug sales. The prosecution relied on the presence of methylamphetamine at the appellant’s home and other circumstantial evidence, including the quantity of cash itself, the appellant’s failure to bank it, and the expert evidence that cash is commonly used for drug transactions, to prove the money was the proceeds of unlawful activity, namely past drug sales. The prosecution also relied on the evidence that the appellant was otherwise in possession of some indicia associated with a person intending to sell drugs, such as the resealable plastic bags and two sets of digital scales, and the circumstantial evidence, which on the prosecution case excluded an innocent explanation for each parcel of cash.
It is the respondent’s contention that this process of reasoning did not require the jury to find that there were past sales of drugs and then use that finding (through propensity reasoning) to conclude the money the subject of the money laundering counts was the proceeds of drugs sales and therefore ‘tainted’. Put another way, the respondent contends that there was no separation between a finding that the appellant was in the past in the business of selling drugs and a finding that the cash the subject of each money laundering offence was from unlawful activity, namely the past sale of drugs.
The difficulty with the respondent’s submission is that the drug trafficking evidence, that is, the appellant’s possession of methylamphetamine and the indica of sale, in the absence of evidence of any earlier specific drug transaction, did not directly lead to a conclusion that the money the subject of each charge was from past drug sales. There was an intermediate step for the jury to consider, namely, whether the appellant had in the past been involved in the business of selling drugs for which he received cash payments and whether he had a propensity in the past to sell drugs. Or, at least, it was open for the jury to reason via the intermediate step that the appellant has in in the past been in the business of selling drugs, which was in turn relevant to the question of whether the prosecution had proved that some or all of the cash the subject of the money laundering count under consideration was from unlawful activity, namely past drug sales. That use of the evidence is properly characterised as involving propensity reasoning.
For those reasons, we are satisfied that on the trial of the money laundering offences (Counts 2 to 5) the evidence of drug trafficking was evidence of discreditable conduct and was relied on by the prosecution for a propensity use under s 34P(2)(b) of the EA.

Failure to comply with s 34P(4) – The DCN

The prosecution failed to comply with s 34P(4) of the EA by not giving notice that it sought to have the drug trafficking evidence admitted pursuant to s 34P(2)(b) of the EA on the trial of Counts 2 to 5. The prosecution did not apply for, nor did the Court order, that the notice requirement be dispensed with pursuant to
s 34P(5) of the EA.
The appellant was on notice from the outset of the trial, and throughout, that he was alleged at the time of his arrest to have been in the business of selling drugs and that the alleged source of the cash, the subject of the money laundering offences, was from past drug sales. The evidence relied on by the prosecution to support this inference was also clear from the outset. More specifically, in her opening address, the prosecutor told the jury that the prosecution case was that the appellant was operating a drug business. In relation to the four counts of money laundering, the prosecutor told the jury that it was alleged that the cash found at the appellant’s home was the proceeds of the accused’s business of selling methylamphetamine. The prosecutor put to the appellant in cross-examination that all the cash seized from his premises on 11 July 2018 was proceeds from his drug dealing business. No objection was taken by the appellant’s counsel at trial to the prosecutor’s cross-examination. In those circumstances, whilst the failure of the prosecution to comply with the notice provisions under s 34P of the EA meant that the propensity use of the drug trafficking evidence on the trial of the money laundering offences was not properly ventilated before the trial Judge, and the trial Judge was not given any assistance as to the appropriate directions required under s 34R, the failure to file a DCN did not of itself result in a miscarriage of justice.

Adequacy of the trial directions

The trial Judge gave no standalone directions to the jury as to how they may and may not use the drug trafficking evidence (Count 1) led in support of the money laundering offences (Counts 2 to 5).
The respondent submits that there is no obligation on a trial Judge to give a direction as to every conceivable use of evidence, particularly in relation to those uses that are obvious. The respondent submits that from the outset, the prosecution case was clear that the cash the subject of the money laundering offences was tainted because it was unlawfully obtained by the appellant from past drug sales and the evidence from which the jury was asked to make this finding was also obvious. Further, the respondent submits that the jury were given specific directions in relation to the use of the money the subject of the money laundering offences in support of the drug trafficking offence. The respondent contends that the jury would have understood, in light of those directions, that they must only use the evidence that is relevant to a particular count, on that count, unless they were told that the evidence led in proof of one count was relevant to another count. The respondent submits that for those reasons, no further directions were required pursuant to s 34R of the EA.
We do not agree.
The trial Judge was required under s 34R of the EA to give the jury directions as to the permissible and impermissible use of the drug trafficking evidence, that being evidence of discreditable conduct on the trial of the money laundering offences. The jury was given no standalone direction at all about how they may and may not use the evidence led in support of the drug trafficking offence on the money laundering offences.
The trial Judge was required to direct the jury as to the permissible use to which the drug trafficking evidence could be put on the money laundering offences: namely to show that the appellant had the accoutrements of an established drug selling business from which it was open for the jury to reason that he had, prior to his arrest on 11 July 2018, been in the business of selling drugs and had a propensity in the past to sell drugs. That in turn was relevant to the question of whether the money the subject of each money laundering offence was from past drug sales.
The trial Judge was also required to direct the jury as to the impermissible use of the drug trafficking evidence on the money laundering offences.
The appellant contends that the trial Judge was obliged to direct the jury that it must not use the drug trafficking evidence as evidence that the appellant was a bad person, or a person of bad character, and therefore was more likely to have committed Counts 2 to 5.
In R v Soteriou, Vanstone J (with whom Sulan and Stanley JJ agreed) considered the appropriateness of a trial Judge giving a warning against ‘bad person reasoning’ on a drug trafficking trial where evidence was adduced that the accused was involved in the ongoing business of selling drugs. Her Honour said:
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.

Justice Vanstone went on to observe:

As McHugh J said in KRM v The Queen where evidence is admitted as propensity evidence, a propensity warning can be given only in some very limited way. In R v MBJ, I reproduced the very general warning given by Cox J in the trial of Pfennig. In my opinion, if any warning is required at all in cases where evidence is to be used as propensity evidence, the purpose of that warning will be to ensure that the jury does not, as Cox J said in Pfennig “condemn a man simply on his record” or, as Kirby J said in KRM, to ensure that “proof of one count is not taken, as such, as proof of another”.
(citations omitted)

In the present case, had the jury been properly directed as to the permissible use of the evidence, it would have been sufficient for the jury to be directed in the more limited way as described by Vanstone J in R v Soteriou. However, even assuming the jury received appropriate directions as to the permissible use of the discreditable conduct evidence, the jury still needed to be warned not to reason in the following impermissible way: that because the appellant was intending to sell the drugs, and had in the past been in the business of selling drugs, the specific parcel of cash under consideration was necessarily from past drug sales. It was important for the trial Judge to direct the jury that even if they were satisfied that the appellant was intending to sell the drugs, as part of an ongoing established business which had operated at a time prior to his arrest, and he had a past propensity for selling drugs, it did not necessarily follow that the jury should reject as a reasonable possibility the appellant’s explanation for the parcel of cash under consideration. The jury still needed to consider the appellant’s explanation for the money under consideration and reject it as a reasonable possibility before convicting the appellant of the money laundering offence under consideration.
The trial Judge’s direction that should they reach ‘a conclusion about the money, or some portion of it, for the purpose of count 1’ it ‘does not mean that it follows that you automatically find the accused guilty of one or all of the money laundering counts’ only went part of the way in dealing with the impermissible uses of the evidence.
In the absence of the trial Judge giving the jury appropriate directions as to the permissible and impermissible use of the drug trafficking evidence, we are satisfied there was a perceptible risk of the jury misusing the evidence. Section 34R of the EA required the trial Judge to give those directions as a matter of law. We are satisfied that the failure to give the appropriate directions was an error of law. As such, the appeal against conviction on Counts 2 to 4 must be allowed unless we are satisfied in accordance with the proviso that no substantial miscarriage of justice has occurred.
Given the disposition of the first ground of appeal it is not necessary to consider Ground 1A.
Ground 2
The second ground of appeal is as follows:
The learned trial Judge erred at law by failing to direct the jury pursuant to s 34R(1) of the Evidence Act 1929 (EA) by identifying and explaining the purpose for which the evidence of the money the subject of Counts 2, 3, 4 and 5 may and may not be used on the trial of each of those individual counts. For example:
2.1.     The learned trial Judge did not direct the jury of any purpose for which it may use the evidence of the money the subject of Counts 3, 4 and 5 on the trial of Count 2.
2.2.     The learned trial Judge did not direct the jury of any purpose for which it may not use the evidence of the money the subject of Counts 3, 4 and 5 on the trial of Count 2.
2.3. As the prosecution did not apply to adduce the evidence of the money the subject of Counts 3, 4 and 5 on the trial of Count 2 pursuant to s 34P(2)(b) of the EA, the learned trial Judge was required to direct the jury that on the trial of Count 2, it must not use the evidence of the Count 3, 4 and 5 money as evidence that the appellant had been in the business of selling illicit drugs.
2.4.     The learned trial Judge failed to direct the jury that on the trial of Count 2, it must not use the evidence of the Count 3, 4 and 5 money for the impermissible purpose
(s 34P(1)(a) of the EA) of bad person reasoning.
The appellant submits that the evidence of the money laundering counts, other than that count under consideration, was evidence of discreditable conduct and the trial Judge erred in failing to give the jury any directions pursuant to s 34R of the EA as to how to use the evidence on the trial of each individual count.
The appellant accepts that on the individual trial of each of the money laundering counts, the evidence of the cash the subject of the other money laundering counts was admissible pursuant to s 34P(2)(a) of the EA for the non-propensity purpose of improbability reasoning.
The evidence was also potentially admissible pursuant to s 34P(2)(b) of the EA for a propensity purpose. In determining the appellant’s guilt on each count, the jury could consider the drug trafficking evidence and the parcels of money (other than that the subject of the offence under consideration) in determining whether in the past the appellant had engaged in the business of selling drugs and find that the appellant had a propensity in the past to engage in drug trafficking. The jury could then take that finding into account in determining the appellant’s guilt on the money laundering charge under consideration.
The appellant contends that the prosecutor in her closing address invited the jury to use the evidence of the other parcels of cash for a propensity purpose by submitting that in relation to Count 3:
I suggest you can reject the accused’s explanation for that money and find that the cash was proceeds of prior sales of methylamphetamine, having regard to all of the other prosecution evidence in the matter that would support the inference that the accused was dealing.
(emphasis added)
We are satisfied that the evidence relating to the money laundering offences, other than the individual count being considered by the jury, was discreditable conduct which engaged s 34P of the EA. We are also satisfied that the evidence was admissible on the individual trial of each money laundering offence for both a propensity and non-propensity purpose. The prosecutor may not have expressly invited the jury to use the evidence for a propensity purpose but that was the thrust of the case that was put to the jury.

Failure to comply with s 34P(4) – The DCN

The appellant also contends that the evidence was not admissible for a propensity purpose because the prosecution had not complied with the mandatory provisions in s 34P(4) of the EA.
The prosecutor put to the appellant in cross-examination that all the cash seized from his premises on 11 July 2018 was proceeds from his drug dealing business. No objection was taken by the appellant’s counsel at trial to the prosecutor’s cross-examination.
For the same reasons as outlined in respect of Ground 1, we do not consider that the failure of the prosecution to comply with the notice provisions under ss 34P(4) and (5) of the EA resulted in a miscarriage of justice. The appellant was on notice from the opening address that the prosecution alleged that the appellant was in the business of selling drugs and that all the money located at his home on 11 July 2018 was alleged to have been the proceeds from past drugs sales. As such, there was no miscarriage of justice.

Inadequacy of directions

The appellant also contends that the trial Judge gave no directions as to the use the jury could and could not make of the evidence relating to the money laundering counts not under consideration on the individual trial of each money laundering count. The jury were given no directions as to the permissible use of the evidence. The jury were not directed that the evidence was relevant to establish: first, the improbability that any one of the parcels of money had a legitimate source; and second, when looked at in conjunction with the other drug trafficking evidence, to establish the appellant had in the past been in the business of selling drugs and had a propensity in the past to sell drugs from which it could be inferred that the money under consideration was from past drug sales. Nor were the jury given any directions as to the impermissible use. The trial Judge was required to direct the jury as to the impermissible use of the evidence. Again, had the jury been properly directed as to the permissible use of the evidence, it would have been sufficient for the jury to be directed in the more limited way as described by Vanstone J in R v Soteriou.
The jury should have also been directed not to reason that because the appellant had in the past been in the business of selling drugs, and some of the cash the subject of other money laundering offences was from past drug sales, the specific parcel of cash under consideration was necessarily from past drug sales. The jury still needed to consider the appellant’s explanation for the money under consideration and reject it as a reasonable possibility before convicting the appellant of a money laundering offence. The separate consideration direction was of assistance to the jury in this regard. But in the absence of directions as to the permissible use of the evidence, and in the absence of any directions on how to properly use the drug trafficking evidence on the money laundering offences (Ground 1), we are satisfied there is a perceptible risk of misuse of the evidence by the jury and an error of law.
We would also allow the appeal against conviction on Counts 2 to 4 on this ground of appeal unless satisfied in accordance with the proviso that no substantial miscarriage of justice has occurred.

Ground 3

Ground 3 was abandoned prior to the hearing of this appeal.

Ground 4

The fourth ground of appeal is set out as follows:
The learned trial Judge erred in his directions to the jury regarding the evidence of the appellant’s flight and attempt to destroy evidence:
4.1.     By failing to direct the jury that before it could use the evidence in proof of the appellant’s guilt of Count 1, it must be satisfied the appellant engaged in the conduct because he was conscious (or knew) that he was guilty of trafficking.
4.2.     By failing to explain to the jury how the conduct indicated the appellant’s consciousness (or knowledge) of his guilt of the offence of trafficking, as opposed to the offence of simple possession.
4.3.     By failing to direct the jury that it could only use the evidence of the appellant’s conduct in proof of his guilt of Count 1 if it had excluded the possibility that the appellant engaged in that conduct because he knew he was committing an offence by possessing the methylamphetamine for his own use.
4.4.     By failing to direct the jury not to follow a process of reasoning that just because the appellant had engaged in the conduct, he must have intended to sell the methylamphetamine.
4.5.     By failing to direct the jury that having regard to the appellant’s explanation for his conduct, the evidence of it was of little, if any, assistance to them on the issue of whether it had been proved that the appellant intended to sell the methylamphetamine.
4.6.     By prejudicially directing the jury that the appellant had acknowledged in evidence, “Look, I knew that possessing it was illegal, but my explanation is I ran out of there because I knew that and I did not want the police jumping to the conclusion that it was trafficking”, when the appellant did not give evidence he engaged in the conduct because he feared police jumping to the conclusion he was trafficking.
At trial, the prosecution led evidence of the appellant’s ‘flight’ from the front yard through the house and into the rear yard and his efforts to discard the methylamphetamine. In examination-in-chief, the appellant gave evidence that upon realising that the men in his driveway were police he thought, ‘[s]hit, I’ve just bought drugs’, so he grabbed the drugs from inside the house and ran out the back. He said that he tried to rip the bags open and discard the drugs into the pool because he ‘knew that it was illegal to have drugs’. He said that he possessed the methylamphetamine for his own consumption and he did not intend to sell it.
In cross-examination, when asked about his state of mind at the time he collected the drugs from the kitchen and tried to dispense them into the pool, the appellant said:
A ‘I need to –’ – I could hear the police. I knew the police were there. I knew it was illegal to have drugs on me and I grabbed the bags and I ran out the back.
Q Isn’t it the case that you ran out the back because you knew you’d been sprung as a drug dealer.
A No.
Q You knew that you had a lot of methamphetamine, didn’t you.
A I wouldn’t say it was a lot, but I knew I had drugs on me and that was illegal.
The appellant also said that he thought that if the police found him with the methylamphetamine he would be arrested because it was illegal to have those drugs. He said he tried to discard it into the water in the pool because he didn’t want to get caught with it.

Summing up

In his summing up, the trial Judge instructed the jury that the appellant’s conduct when police attended at his home was a piece of circumstantial evidence in support of his intention to sell some or all the drugs. His Honour said:
In respect of this second part of the second element of trafficking, intending to sell it, the prosecution submits that you can infer the accused’s intention to sell some or all of the methylamphetamine from the following piece[s] of evidence in addition to the statutory presumption.
…
Four, the fact that the accused ran from police into his rear yard and attempted to dispose of the drugs in the plastic bags, and you will recall the prosecution’s suggestion in cross-examination and Ms Venn’s closing that you can infer from this that the accused was attempting to dispose of the drugs because he knew that he was trafficking those drugs and was disposing of evidence of that fact or, in other words, that his actions when police arrived were a piece of circumstantial evidence more consistent with him being guilty of trafficking than merely being in possession of the drugs for personal use.
The trial Judge then gave a specific direction to the jury as to the use they could make of the evidence of the appellant’s conduct. His Honour said:
I will remind you again about the evidence relied on by the prosecution of him running into the backyard and attempting to dispose of the drugs. He provided an innocent explanation of sorts, and I will explain what I mean by that, for his running from police, on the basis that he knew possessing methamphetamine was illegal and he was fearful of being caught and he was fearful of the police officers. But, of course, his case is that he possessed it for his own use and so he acknowledged ‘Look, I knew that possessing it was illegal, but my explanation is I ran out there because I knew that and I did not want the police jumping to the conclusion that I was trafficking’.
So that, in the context of his evidence, was an innocent explanation in the context of the trafficking charge. You will need to consider that evidence carefully and consider whether the prosecution has excluded his explanation as a possibility.
The trial Judge also referred to the use the jury could make of the evidence when summarising the closing addresses. The trial Judge said:
[The prosecutor] also pointed out that you might think that his behaviour at the time the police arrive was suggestive of his drug business having been sprung by the police.
…
… [Defence counsel] emphasised that the accused said that he was scared and she pointed out well, think about what happened. Think about the balaclavas. Think about the noise and so forth. She emphasised that that would be confusing, and that it would be frightening. Of course that is a matter for you. She reminded you firstly that AC admitted quite frankly he had a longarm, that is a rifle and said well, look, he sees these people with balaclavas and he sees the gun and he asks you to accept that he saw the gun being pointed at him and that that explains why he jumped into the pool and behaved in the manner he did. [Defence counsel] said it did not really matter if you believe or do not believe that he heard the police say ‘Police with warrant’ out the front of the house because that was before he gathered up the drugs.
She reminded you that Mr Willingham quite frankly admitted attempting to dispose of the drugs but that on his evidence you should conclude that he was panicking because he had bought two 8-balls and he knew, as he told you, that this was criminal behaviour. So that there was another innocent explanation for why he behaved as he did in trying to dispose of the drugs and jumping into the pool. He did not want to be caught with possession of those drugs because, and these were not [defence counsel’s] words, because that was bad enough.

The appellant contends that the trial Judge’s directions were inadequate because he failed to direct the jury that before they could use the appellant’s conduct in proof of his guilt on the drug trafficking offence (Count 1), the jury had to first be satisfied that the only reason he had engaged in the conduct was because he knew he was guilty of the offence of trafficking drugs. Further, the appellant submits that the trial Judge was required to direct the jury that it could only use the evidence of the appellant’s conduct in proof of the drug trafficking offence if it first excluded the possibility that he had engaged in that conduct for a reason other than that he was guilty of the trafficking offence. The appellant submits that the repetition of counsel’s submissions were not legal directions made to the jury with the trial Judge’s authority and were more akin to comments.
The appellant submits that the inference of a consciousness of guilt arising from the appellant’s conduct was weak because of the plausibility of his explanation for it. Accordingly, in those circumstances, the appellant submits the trial Judge was required to direct the jury that the evidence was of little, if any, assistance to them on the issue of whether it had been proven that the appellant intended to sell the methylamphetamine.
Finally, the appellant submits that the trial Judge incorrectly, and prejudicially, directed the jury that the appellant’s conduct was as a result of not wanting the police jumping to a conclusion that he was trafficking in drugs. It is common ground that the appellant did not give evidence that he ran to the backyard and tried to discard the drugs because he feared police jumping to the conclusion that he was trafficking methylamphetamine. Rather, the appellant said that he behaved in that manner because he knew having drugs for his own use was illegal and he feared being arrested. The appellant submits the comment made by the trial Judge was prejudicial because it more closely aligned the appellant’s explanation for his conduct with what the prosecution asked the jury to infer — that he had engaged in the conduct because he was trafficking in drugs.

Consideration

Evidence of an accused person’s flight or attempts to destroy or discard evidence may be admissible as circumstantial evidence to show a consciousness of guilt of a charged offence. At trial, defence counsel did not object to the evidence and it is not submitted on this appeal that the evidence was inadmissible.
As Doyle CJ said in R & Power:
There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected.
(citation omitted)
The evidence of the appellant’s flight and attempts to discard the drugs was plainly relevant as circumstantial evidence to support the prosecution case on the drug trafficking offence. The appellant’s conduct was admitted without objection and there was no dispute at trial that the appellant upon seeing the police ran into the house, collected the drugs, and tried to discard them by dispensing them into the pool. By operation of s 32(5) of the CSA, if the jury were satisfied the appellant was in possession of the drugs (which was admitted) and there was 2 grams or more of a mixed substance containing methylamphetamine (which was not disputed), the appellant was required to satisfy the jury on the balance of probabilities that the drugs were not for sale. The appellant’s conduct in fleeing to the backyard and trying to discard the drugs was only one piece of circumstantial evidence which undermined the appellant’s case and militated against the jury finding on the balance of probabilities that the drugs were for his own consumption in an otherwise strong prosecution case on the drug trafficking offence.
The probity or strength of the evidence of the appellant’s flight and attempt to discard evidence was as postulated by the respondent — the appellant’s conduct potentially revealed a more heightened concern in being located with the drugs than would normally be expected by a habitual drug user. For that reason, the evidence was more consistent with the appellant being a drug trafficker.
We are satisfied that the evidence of the appellant’s conduct was not intractably neutral. Nor do we consider the evidence was impermissibly prejudicial, as it may be in an otherwise weak prosecution case where the evidence might be given disproportionate emphasis by the jury. The circumstances of this case did not call for a direction that the evidence of the appellant’s conduct was of little, if any, assistance to the jury on the issue of whether it had been proven that the appellant intended to sell the methylamphetamine.
When directing the jury, the trial Judge informed the jury as to the use the prosecution sought to make of the evidence and the appellant’s explanation for his conduct. The trial Judge also directed the jury that they needed to exclude the appellant’s explanation for his conduct as a reasonable possibility before they could use the evidence in proof of his intention to sell the drugs.
In relation to the appellant’s complaint that the trial Judge failed to direct the jury that before it could use the evidence it must be satisfied that the appellant engaged in the conduct because he knew he was guilty of drug trafficking, that was the very use the prosecution sought to make of the evidence. The appellant’s evidence that he tried to discard the drugs because he knew they were illegal was the only explanation postulated by defence counsel at trial to innocently explain the appellant’s conduct. In those circumstances, it was sufficient for the jury to simply be directed that they needed to exclude the appellant’s explanation for the conduct as a reasonable possibility before they could use the evidence circumstantially to prove the drug trafficking offence.
An aligned complaint by the appellant was that the trial Judge failed to explain to the jury how the appellant’s conduct indicated his knowledge of his guilt of the offence of drug trafficking, as opposed to the offence of simple possession. It is important to recognise that the use sought to be made by the prosecution of the appellant’s conduct was put in straightforward terms, with the prosecutor asking the jury to:
[C]onsider whether you think his behaviour in quickly grabbing the drugs and making attempts to destroy them are [suggestive] of his drug-dealing business being sprung upon by police. You might think he reacted in that way because he knew it was a wad of drugs he had and he knew he had to get rid of them or else he’d be in trouble.
The appellant’s explanation for his conduct was also relatively straightforward; he behaved in this manner because he knew it was illegal to have drugs for his own consumption.
The issue for the jury in considering this piece of circumstantial evidence was clear. On the prosecution case, the appellant’s somewhat dramatic reaction and conduct was more consistent with the appellant being ‘sprung’ for a drug dealing business, rather than being in simple possession of the drug. The appellant for his part explained that he behaved in this manner because he knew it was illegal to have the drugs for his own consumption. The trial Judge reiterated those arguments to the jury. The trial Judge’s instruction to the jury to ‘consider that evidence carefully and consider whether the prosecution has excluded his explanation as a possibility’, was phrased in sufficiently instructive terms to constitute a direction to the jury, rather than a comment. Again, there was no other explanation postulated for the appellant’s conduct except that which he gave in evidence. We are satisfied that in those circumstances, the trial Judge adequately explained to the jury how the appellant’s conduct indicated his knowledge of his guilt of the offence of drug trafficking, as opposed to the offence of simple possession, and the trial Judge’s directions were sufficiently clear and adequate as to the use of the evidence of the appellant’s flight and disposal of the drugs.
As to the appellant’s submission that the trial Judge incorrectly and prejudicially paraphrased the appellant’s state of mind when he said that the appellant attempted to destroy the drugs because he ‘did not want the police jumping to the conclusion that I was trafficking’, the respondent conceded the trial Judge incorrectly put the appellant’s evidence to the jury. It may also be accepted that the trial Judge’s error was potentially prejudicial to the appellant because it more closely aligned the appellant’s explanation for his conduct with the prosecution submission that the appellant behaved in that manner because he was trafficking drugs. However, later in his summing up, when summarising the defence address, the trial Judge accurately put the appellant’s evidence as to his state of mind when he tried to discard the drugs. Given the comprehensive manner in which the trial Judge later put the appellant’s explanation to the jury, we are satisfied that the initial misstatement by the trial Judge of the appellant’s innocent explanation for his conduct has not resulted in a miscarriage of justice.
We dismiss this ground of appeal.

Ground 5

The fifth ground of appeal is as follows:
The learned trial Judge erred by failing to direct the jury adequately and correctly as to the use it could make of the appellant’s evidence:
5.1.     The learned trial Judge incorrectly directed the jury (at SU10) that in relation to the money laundering offences, the jury had heard evidence from the appellant about the source of the money the subject of the offences, “… and it is up to you whether you accept it or not”, wrongly restricting the use of the appellant’s evidence by requiring the jury to positively accept it before it was used.
5.2.     The learned trial Judge incorrectly directed the jury in relation to Count 2 (at SU37) that, “… if you do not accept the evidence of the accused on the topic of the money in the cavity beside the pool, that does not relieve the prosecution of the duty to disprove all other rational inferences consistent with innocence”, which was a direction to the effect that the jury had to positively accept the appellant’s evidence in order to use it to decide if the prosecution had proven his guilt.
5.3.     The learned trial Judge failed to direct the jury that the force of the appellant’s evidence was not spent if the jury did not positively accept it and that unless they rejected any reasonable possibility that his evidence about the source of money the subject of an offence was correct, they must find him not guilty of that offence.
The appellant contends that the trial Judge failed to adequately and correctly direct the jury about the use it could make of the appellant’s evidence in determining their verdicts on the money laundering offences.
The trial Judge gave the jury the following directions as to how they could use the appellant’s evidence in reaching their verdicts:
1.       Directions on how to assess the evidence of a witness;
2.       Directions as to the onus of proof;
3.       A further direction as to the onus of proof in the context of the appellant having given evidence:
I direct you, however, that because the accused has given evidence in his defence and called a witness as part of his case, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. He does not have to prove his innocence. Subject to that, you will assess Mr Willingham’s evidence like the evidence of any other witness in this trial.
and;
4.       As to the money laundering offences, the trial Judge directed the jury to consider each count separately and referred to the different explanations given by the appellant in respect of each parcel of cash. The trial Judge said:
Because there is one explanation for the origins of the money in the pool cavity, there is another explanation for the origin of the money in the safe and then there is the further explanation for the origin of the money in the overhead cupboard and the black bag, which is said to be from his work subcontracting, you must remember that you must consider each count separately and remember that the explanations provided by the accused are different explanations in relation to the source money.
The trial Judge then said:
You heard the evidence from the accused about that and it is up to you whether you accept it or not.
After the jury had retired and were considering their verdicts, the jury asked two questions in relation to Count 2. The first question was: ‘May we have the transcript relating to the accused’s evidence relating to [the] second count, the location of the $8,100 cash and his relationship to it?’ The second question was: ‘If we do not consider the evidence of the defendant to be true in relation to the money being stolen by the ex-girlfriend, do we need to consider the fact that he may have forgotten the money was hidden? Does this imply possession?’
The trial Judge gave the jury a copy of the relevant parts of the transcript. His Honour then directed the jury:
If you do not accept the evidence of the accused on the topic of the money in the cavity beside the pool, that does not relieve the prosecution of the duty to disprove all other rational inferences consistent with innocence.
The prosecution, as I have said to you a number of times, has to prove possession beyond reasonable doubt. And you will remember his evidence, you are obviously going to read it for yourselves in a moment, that he put forward that he put the money there and he told you that he looked inside and he could not see it, and he drew the conclusion that it had been stolen.
You need to consider all other rational inferences which occur to you as arising on the evidence in light of the evidence as a whole.
Now, as to whether a rejection of the accused’s evidence implies possession, I have got two directions for you.
You will recall what I said to you about possession. It is for you to determine on the evidence, of which you are satisfied, if possession has been proven beyond reasonable doubt.
The second part is, if your question is asking whether if you disbelieve the accused’s evidence does it automatically flow that possession has been proven beyond reasonable doubt, the answer must be no. You must still be satisfied that the prosecution has proven beyond reasonable doubt that he was in knowing possession. Which leads me to the second part of that answer.
If one of the things you were asking was, if he put it there and then forgot about it, and if you did not accept the evidence he did give, but if you concluded that he put it there but simply forgot about it, would he be in possession then, the answer must be no, because the prosecution has to prove beyond reasonable doubt knowing possession.
And finally, and I picked this up from the wording of the question because you referred to the evidence of the defendant in relation to the money being stolen by the ex-girlfriend. Now, if part of what you are asking in that question is if whether the money is stolen is actually an element of the offence, an element of proving possession, and an element of the offence, the answer is no. You will recall that the property has to be tainted, but tainted property is either money which is stolen, or obtained by unlawful activity. So whether or not the girlfriend stole it, the answer to that question of itself will not answer the question as to whether or not he was in knowing possession of that item of money, the question is still whether he was in knowing possession of it on all of the evidence that you find to your satisfaction.

(emphasis added)

The appellant submits that the trial Judge incorrectly directed the jury that in relation to the money laundering offences and the evidence from the appellant about the source of the money the subject of the offences ‘it is up to you whether you accept it or not’. The appellant submits that the direction wrongly restricted the use of the appellant’s evidence by the jury and that the directions were to the effect that the jury must positively accept the appellant’s evidence about the sources of the money before they took it into account in reaching their verdicts.
The appellant further contends that the trial Judge incorrectly directed the jury when answering their questions in relation to Count 2. The appellant submits that the trial Judge directed the jury to the effect that they must positively accept the appellant’s evidence about the source of the money before they could take the appellant’s evidence into account in reaching a verdict.
The appellant also submits that the trial Judge should have directed the jury that the force of the appellant’s evidence was not spent if the jury did not positively accept his evidence and unless the jury rejected the appellant’s evidence as a reasonable possibility, the jury must find him not guilty.

Consideration

This ground of appeal has limited application to the conviction on the drug trafficking offence (Count 1). The appellant carried the onus on the only element of the offence in dispute, namely the appellant’s intention to sell the methylamphetamine. There was no contest at trial that the statutory presumption in s 32(5) of the CSA applied and the jury were to presume, in the absence of proof to the contrary, that the appellant had an intention to sell some or all of the drugs in his possession so as to be guilty of the offence. The appellant bore the onus of satisfying the jury, on the balance of probabilities, that none of the drug was for sale. If the trial Judge was in error in effectively reversing the onus on Counts 2 to 5, that error could only affect the jury’s verdict on Count 1 to the extent that the appellant’s explanations for the money were capable of influencing the jury in respect of whether they were persuaded that the drugs were not for sale.
In support of this ground of appeal, the appellant relied on the principles as encapsulated by Brennan J in Liberato v The Queen:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
The applicable principles were also enunciated in Murray v The Queen. In that case, the appellant was found guilty of murder. The deceased died of gunshot wounds inflicted by the appellant. At trial, the appellant gave evidence and admitted to having pointed the gun at the deceased to frighten him but denied having deliberately pulled the trigger. During the summing up, the trial Judge summarised for the jury the prosecution and defence case and instructed the jury that they had to decide which versions of those events they would accept. The appeal was allowed. The plurality (Gaudron J, Gummow and Hayne JJ, and Callinan J) held that the trial judge erred in instructing the jury on the burden of proof by framing the issue for the jury as involving a choice between the conflicting prosecution and defence evidence. The plurality made clear that the question for the jury was not which body of evidence is to be preferred, rather, whether the prosecution had proved the elements of the offence beyond reasonable doubt.

As Gaudron J said:
Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury’s determination with respect to murder as the question whether it accepted the prosecution’s or the appellant’s version of events. That was the central or critical direction in her Honour’s summing up. And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt.
In their joint judgment, Gummow and Hayne JJ said:
Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused’s evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
(emphasis in original)
In De Silva v The Queen, the High Court considered the circumstances in which it is appropriate to give a ‘Liberato direction’. Following a trial by jury, the appellant was convicted of two counts of digital rape. The prosecution case relied on the acceptance of the complainant’s evidence. The appellant did not give or call evidence. The High Court dismissed the appeal. The majority held that the jury were given repeated and correct directions as to the onus and standard of proof, which made clear the necessity that the jury be satisfied beyond reasonable doubt of the complainant’s credibility and reliability. The majority said:
This is not to say that the occasions calling for a Liberato direction should be few. The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.
(citation omitted)
Those High Court authorities have been discussed and considered in recent decisions of the Court of Criminal Appeal of South Australia in R v Schulz and Rollond v The Queen.
In R v Schulz, the appellant was found guilty of the offence of aggravated causing harm with intent to cause harm after a trial before a jury. The appellant gave evidence in his own defence. The trial Judge directed the jury that if they did not accept the evidence of the appellant, then they would need to be satisfied based on the evidence of the prosecution witnesses that the elements of the offence were proved. The appeal was allowed. Justice Vanstone (with whom Blue and Lovell JJ agreed) referred to the High Court authorities of Murray v The Queen, Douglass v The Queen, and Liberato v The Queen and found that the directions were erroneous. Her Honour said:
[T]he judge left to the jury a dichotomy involving either acceptance or rejection of the appellant’s evidence. Furthermore, the judge instructed the jury that, if they did not accept the appellant’s evidence, then they should put it aside and consider the balance of the evidence — that, is only the prosecution evidence — to determine whether the prosecution had proved its case. … The directions had the effect of obliging the appellant to satisfy the jury that his evidence should be accepted as a prerequisite to using it at all. In other words, the jury were steered away from having any regard to the appellant’s evidence if they did not categorically accept it.
Her Honour also gave the following cautionary advice to trial judges:
As mentioned, this particular passage in Murray was specifically approved in Douglass. It seems to me that this amounts to strong advice to trial judges to avoid discussing an accused person’s evidence in terms of acceptance of it. Much depends on the structure of the summing up and the way in which the judge discusses the defence case. If there is a reference to the possibility of “accepting” the defence evidence, then plainly the full spectrum of other possibilities must be put as well. However, it would appear to be a better course to simply direct the jury to consider the defence evidence, direct them as to proof of which element is put in issue by it, and instruct them that the question for decision is whether, on the whole of the evidence, and notwithstanding the defence evidence and argument, the prosecution case has been proved.
In Rollond v The Queen, the appellant was charged with 14 counts of theft of which he was convicted of seven counts. The appellant, and two former business associates, were found in possession of various items of property the subject of each count. At trial, the appellant gave evidence. The prosecutor addressed the jury on the basis that: first, for the accused to be found not guilty of the charges, it was necessary for the jury to ‘accept’ his explanations for each of the charges; and second, that such acceptance equated to findings that each of the prosecution witnesses had lied and the accused was the only person telling the truth.
The trial Judge then directed the jury using the terminology of asking the jury to consider whether they ‘accepted the evidence of the defendant’. The trial Judge suggested an approach to the jury in which they first determine what evidence they accepted as truthful and reliable and then consider the factual matrix they were prepared to find in determining the guilt of the accused on each count. The trial Judge declined to accede to an application by defence counsel to redirect the jury to the effect that unless it rejected the appellant’s explanation (on a particular count) as a reasonable possibility, the prosecution will not have proved its case on that count.
The Court upheld this ground of appeal on the basis that there was a substantial risk that the jury were not instructed properly as to the use to be made of the appellant’s evidence.
Justice Peek (with whom Hughes J agreed) said:
Applying the precepts to be found in the decisions of the High Court in Liberato, Murray, Douglass and De Silva, I conclude that there is a substantial risk here that the jury may have gleaned from the summing up that they could not make use of the appellant’s evidence unless they accepted it. Having taken the course of directing in terms of “accepting” or “not accepting” the defendant’s evidence, his Honour then failed to explain to the jury that the force of the appellant’s evidence was not spent if the jury did not “accept” it; and that it was only if they rejected any reasonable possibility that his evidence might be correct that they could put it to one side when answering the ultimate question of whether a particular count had been proven beyond reasonable doubt.
The authority of Rollond is distinguishable on its facts. In Rollond, the prosecutor addressed the jury to the effect that for the accused to be found not guilty of any count it was necessary that the jury accept the appellant’s explanation on that count, and to do so meant the jury would need to find that the prosecution witnesses had lied. The trial Judge did not correct the prosecutor’s address and adopted the impugned language used by the prosecutor. The trial Judge also suggested to the jury that they first determine what evidence it accepted as truthful and reliable, ‘in other words the factual matrix that you find proven’, before considering the appellant’s guilt. It was in that context that the Court of Criminal Appeal held there to be a substantial risk that the jury considered that they could not make use of the appellant’s evidence unless they accepted it. It was only if they rejected any reasonable possibility that his evidence might be correct that they could put it to one side when considering the appellant’s guilt.
In the present case, there were no submissions by the prosecutor which could have had the effect of reversing the onus of proof. None of the directions suggested that the appellant’s evidence should be put to one side if not positively accepted. Senior Counsel at trial in this matter did not request any redirection. Whilst not determinative, the absence of an application for redirection tends against a finding that there was any perceptible risk of a miscarriage of justice.
Turning to consider the directions given by the trial Judge the subject of this ground of appeal, it is important to consider the impugned directions in the context of the entire summing up. A reference in the summing up to ‘accepting’ the evidence of the accused is not of itself an error provided ‘it is complemented by directions on the other possible situations which may pertain; so that the directions as a whole put the position properly’.
The trial Judge gave the jury directions as to the onus and standard of proof. The jury were reminded ‘that because the appellant has given evidence in his defence and called a witness as part of his case, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt’.
Further, the trial Judge’s comment that ‘[y]ou heard the evidence from the accused about [his explanations for the money the subject of the money laundering offences] and it is up to you whether you accept it or not’, was made in the context of instructing the jury to consider each count, and the appellant’s explanation for each parcel of money, separately. The trial Judge’s directions did not at any stage leave to the jury a dichotomy involving the acceptance or rejection of the appellant’s evidence. None of the impugned directions had the effect of putting to the jury the prosecution and defence case on each count side by side and asking the jury to choose which version they accept. The trial Judge reiterated towards the end of the summing up that if the jury considered that the accused’s explanations as to the money was a reasonable possibility, then the jury would acquit the accused of the count under consideration.
As to the trial Judge’s directions in answer to the jury’s questions on Count 2, the jury prefaced their question by indicating that they did not consider ‘the evidence of the defendant to be true in relation to the money being stolen by his ex-girlfriend’. The jury’s question sought guidance from the trial Judge as to whether their factual finding relieved them of having to consider the issue of possession and the other part of the appellant’s explanation as to Count 2, that he had forgotten about the cash hidden in the pool cavity.
In answering the question, the trial Judge expressly directed the jury that:
If you do not accept the evidence of the accused on the topic of the money in the cavity beside the pool, that does not relieve the prosecution of the duty to disprove all other rational inferences consistent with innocence.
The trial Judge then instructed the jury that the prosecution must prove beyond reasonable doubt the appellant’s possession of the money; and a rejection of the appellant’s evidence did not equate to the prosecution having proved possession.
In so directing, the trial Judge did not instruct the jury to ignore the appellant’s evidence altogether should they not accept it. The trial Judge was simply reiterating the onus of proof and, in answer to the jury’s questions, clarifying that even if the jury did not accept the appellant’s evidence as a reasonable possibility, that did not mean the prosecution had proved the appellant’s possession of the money. The jury still needed to go on and find the prosecution had proved beyond reasonable doubt the appellant’s possession of the money before finding the appellant guilty of Count 2. The question raised by the jury was premised on a finding that they did not consider the appellant’s explanation as to the money true. It is difficult to see how the trial Judge could have answered the question without referring to the fact the jury did not accept the appellant’s evidence on that topic.
The direction must also be viewed in the context of the trial Judge’s earlier instructions as to the onus of proof and the direction that if the jury considered that any of the accused’s explanations as to the money being from work were a reasonable possibility, then the jury would acquit the accused of the relevant count.
We do not consider there is any risk that the jury would have understood that an acceptance of the appellant’s evidence as to the source of the money, the subject of each count, was essential for a not guilty verdict, or that their verdicts were to be determined by making a choice between the appellant’s evidence and the prosecution case. We do not consider there is any risk that the jury did not appreciate that the ultimate question in respect of each of the money laundering counts was whether the prosecution had proved beyond reasonable doubt the elements of the offence of money laundering and negatived the appellant’s explanation as a reasonable possibility.
We would grant permission to appeal and dismiss this ground of appeal.

Application of the proviso

Grounds 1 and 2 having been made out, and an error of law having been established in respect of Counts 2 to 4, we turn to the application of the proviso. Section 158(2) of the Criminal Procedure Act 1921 (SA) provides that notwithstanding that an error of law has been identified, if the Court of Appeal considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal.
In Weiss v The Queen, the High Court considered the application of the proviso and determined that in cases where an error or irregularity has been identified and the court is of the view that, but for the proviso, the appeal should be allowed, the role of the appellate court is not to determine whether, in the absence of error, the jury hearing the case would have convicted or whether a reasonable jury in the circumstances would have convicted the appellant. Rather, in considering the application of the proviso, the task of the appellate court is to decide whether a substantial miscarriage of justice has occurred. The appellate court must make its own independent assessment of the whole of the record of the trial and reach its own conclusion as to whether the evidence has established an accused’s guilt beyond reasonable doubt.
As the High Court explained Weiss v The Queen:
It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.
There may also be cases where:
[I]t would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
Thus, satisfaction on the part of an appellate court of the appellant’s guilt beyond reasonable doubt is a necessary but not a sufficient condition for the application of the proviso.
Any determination of whether no substantial miscarriage of justice has actually occurred is to be undertaken having regard to the nature of the irregularity that this Court must necessarily have determined occurred, considered in the context of the particular circumstances of the case and the particular issues at trial. There will also be some errors which prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt. As the majority of the High Court said in Kalbasi v State of Western Australia:
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.
(citations omitted)
In Orreal v The Queen, the High Court recently considered the application of the proviso. The appellant had been convicted of the offences of unlawfully and indecently dealing with a child under 16 years and rape. At trial, the prosecution adduced evidence by consent that both the appellant and complainant tested positive for herpes simplex virus type 1. The appellant did not give evidence at trial. The Court of Appeal of the Supreme Court of Queensland found there had been a miscarriage of justice because the trial Judge failed to direct the jury to disregard the evidence in its entirety. The Court of Appeal applied the proviso because it concluded the evidence could not have adversely impacted the jury’s assessment of the reliability or credibility of the complainant. The High Court allowed the appeal and held that the proviso should not have been applied as it was not possible for the Court of Appeal to assess whether guilt was proved beyond reasonable doubt at trial.
Chief Justice Keifel and Keane J said:
This is not a case like Hofer v The Queen where it may be apparent to an appellate court that the evidence of a witness is glaringly improbable. In such a case the court is not usurping the function of a jury in rejecting evidence that is so improbable as to be incapable of belief. This case is one which turns on the jury's acceptance of the evidence of the complainant. In such a case the appellate court should not seek to duplicate the function of the jury, because it does not perform the same function in the same way nor have the same advantages.
… It may be accepted that, logically, the evidence could not assist the jury, but often the nature of prejudicial evidence means that it may not be rationally applied. Uninstructed by the trial judge, the jury may well have reasoned that the test results were no coincidence and pointed to the complainant having contracted the virus from the appellant. Had the jury been directed to disregard the evidence, such prejudice would almost certainly have been overcome, but that did not occur.
(citations omitted)

We turn to consider the application of the proviso in relation to our conclusion on the first and second grounds of appeal that the trial Judge’s failure to give the mandatory directions required by s 34R(1) of the EA was an error of law.
The issue in dispute on the money laundering counts was whether the prosecution had proved beyond reasonable doubt that the parcel of cash, the subject of each individual charge, was the proceeds of past drug sales. The appellant gave an innocent explanation for the source of each parcel of money. The jury’s consideration of the drug trafficking evidence was potentially very important in their assessment of the appellant’s explanations for the source of that money. The failure of the trial Judge to provide any instructions identifying and explaining the purpose for which the drug trafficking evidence may and may not be used on the money laundering offences, and the trial Judge’s lack of directions as to how the evidence relating to the money laundering counts, other than the individual count being considered, could be used on the trial of each money laundering count, meant that the jury may well have reasoned improperly in assessing the appellant’s explanation for each parcel of money. This was not a case where the objective circumstances meant that the appellant’s explanations were ‘glaringly improbable’. Rather, the circumstances of this matter meant the jury was unable to properly perform its function and the appellate court is prevented from being able to assess whether guilt was proved beyond reasonable doubt.
Accordingly, we would not apply the proviso.
As to the question of whether a retrial should be ordered or an acquittal entered on each of the money laundering offences (Counts 2 to 4), the appellant submits that the acquittals should be entered and the appellant should not be retried on those counts. The appellant contends that the drug trafficking evidence was inadmissible for a propensity use on the trial of the money laundering offences because of a failure by the prosecution to comply with s 34P(4) of the EA and in the absence of the drug trafficking evidence there was insufficient evidence to prove the money laundering offences. The appellant contends that the prosecution should not be permitted to retry the case on a different basis, and with different evidence than was adduced at the first trial.
Given our conclusion that the prosecution adduced the drug trafficking evidence on the trial of the money laundering counts for a propensity purpose, and that the drug trafficking evidence was admissible for that purpose, and having allowed the appeal on the basis of the inadequacy of the directions, we are satisfied a retrial should be ordered on Counts 2 to 4.

Conclusion

We grant permission to appeal on Ground 5.
We allow the appeal on Grounds 1 and 2 but otherwise dismiss the appeal.
147 We set aside the convictions on Counts 2 to 4 but dismiss the appeal on Count 1.
We order a retrial on Counts 2 to 4.