Falzon v The Queen [2017] VSCA 74

87 For the reasons that follow, we would refuse leave to appeal on the first ground and would refuse leave to add proposed ground 3. On ground 2, however, we would grant leave to appeal; allow the appeal; set aside the appellant's convictions; and order a new trial.

88 Given our conclusions with respect to conviction, it is unnecessary to consider the application for leave to appeal against sentence.

89 On 17 December 2013, in the course of executing search warrants, police discovered cannabis plants growing at properties at 10A and 10B Mansfield Avenue, Sunshine North, and at 8 Bryson Court, Sydenham.

90 The two properties at Mansfield Avenue - on which two single storey dwellings were situated - were owned by an associate of the applicant's, Max Corbell, and Corbell's wife. Police surveillance from July 2013 disclosed the applicant's occasional attendance at the property.

91 On 17 December 2013, police searched the two dwellings and located and seized the following at 10A Mansfield Avenue:

• 37 cannabis plants of varying maturity and size growing in four rooms, weighing a total of approximately 17.72 kilograms;

• 15 shrouds, 28 globes, 12 electrical transformers, one carbon filter, three power boards, two shrouds with globes in boxes, six shrouds containing built-in electrical transformers, and one box containing a grow tent; and

• a wall chart timetable and copies of a feed program relating to cultivation of cannabis.

92 At 10B Mansfield Avenue, on the same date, police located and seized the following:

• 55 cannabis plants of varying maturity and size growing in three rooms, with a combined weight of 17.039 kilograms;

• a number of shrouds, globes, transformers, electrical timers, a carbon filter and wall charts relating to the growing of cannabis;

• assorted vacuum-sealed bags, a set of scales and a sealer device; and

• a tray containing dried cannabis weighing 28.5 grams, and a vacuum-sealed bag containing dried cannabis weighing 21.1 grams.

93 In total, 92 plants were located at the two Mansfield Avenue properties, with a weight of 34.781 kilograms. There was also an additional 49.6 grams of dried cannabis. A commercial quantity of cannabis is 25 kilograms or 100 plants.[50]

94 On the same date, police searched premises at 8 Bryson Court, Sydenham. This property had been purchased jointly by the applicant and co-offender, Charlie Gusman, in early 2013. The applicant and Gusman there cultivated cannabis. Upon searching the Bryson Court property, police located and seized:

• ten immature cannabis plants weighing 1.76 kilograms;

• eight harvested cannabis plant stumps weighing 657.9 grams;

• a number of light shrouds, light globes, electrical transformers, power boards, charcoal filters, together with feed program charts setting out the timetable for nutrients to be fed to cannabis plants;

• two plastic bags containing a mixture of dried cannabis and unidentified plant material weighing a total of 4.1 grams; and

• a zip lock bag containing dried cannabis weighing 3.3 grams.

95 Also on 17 December 2013, police executed a search warrant at the applicant's home at 5 Kendall Street, Essendon. There were a number of items seized from those premises, including $120,800 cash the subject of ground 2.[51] (For the purpose of sentencing, however, the judge 'ignored those items' and sentenced the applicant only on the basis of what was found at Sunshine North and Sydenham.)

96 The applicant was arrested on 17 December 2013 and took part in a record of interview with police. He made a number of admissions, including that:

• he and Gusman had purchased the property at Sydenham about a year earlier;

• he had grown 19 plants at the Sydenham property, of which nine had been harvested; and

• he visited the property and tended the cannabis plants at Sydenham, where he had been cultivating cannabis for about six months.

97 Notwithstanding the applicant's denials, however, the jury found him guilty of cultivating a commercial quantity of cannabis at the Mansfield Avenue premises in Sunshine North (although the jury also found him not guilty of trafficking cannabis at that address). The jury also found him guilty of trafficking cannabis at the Sydenham property - which the prosecution had put as a case of possession for sale - in a quantity less than a commercial quantity.

98 Before leaving the evidence, we should mention that at a unit belonging to Gusman, situated at 67 Melbourne Road, Williamstown, police found another six cannabis plants weighing 35 grams. Surveillance evidence showed that the applicant once attended that unit. At the close of the prosecution case, however, the trial judge found 'that there is no case for Mr Falzon to answer on Charges 3 and 4 insofar as they concern the Williamstown unit'.

Did the jury deliver verdicts on an indictment other than that for which they had been empanelled to try?

99 Ground 1 with respect to conviction asserts that the filing of a new indictment immediately prior to the prosecution closing its case meant 'that the jury delivered verdicts on a different indictment to that which it had been empanelled to try'. It was contended that there had been a fundamental irregularity and that the jury's verdicts therefore were nullities.

100 For the reasons we will shortly set out, we are of the view that this ground cannot be upheld. As we have indicated, we would refuse leave to appeal on this ground.

101 At different times, four indictments were filed in the County Court charging the applicant with drug offences.

102 Indictment C1309421 ('the first indictment'), filed on 27 August 2015, charged the applicant and his wife, Susan Falzon, with cultivating (charge 1) and trafficking (charge 2) not less than a commercial quantity of cannabis, and theft of electricity (charge 3), at Sunshine North between 24 July and 17 December 2013. 'Charlie' Gusman was charged on the same indictment with cultivation (charge 4) and trafficking (charge 5) simpliciter of cannabis at Sydenham and Williamstown between 15 August and 17 December 2013, and of theft of electricity between the same dates at Sydenham (charge 6). The applicant pleaded not guilty to the charges on this indictment.

103 Following a separate trial application by the applicant's wife, on 2 May 2016 the prosecution filed over indictment C1309421.1 ('the second indictment'). The second indictment charged the applicant with cultivating (charge 1) and trafficking (charge 2) not less than a commercial quantity of cannabis 'at Sunshine North and divers other locations in Victoria' between 24 July and 17 December 2013. There was also a charge of theft of electricity at Sunshine North between 24 July and 17 December 2013 (charge 3), and a charge - jointly with Gusman - of theft of electricity at Sydenham between 15 August and 17 December 2013 (charge 6). (A separate indictment containing four charges was also filed against Susan Falzon.)

104 After pre-trial argument, the prosecution once more filed over a fresh indictment, indictment C1309421.2 ('the third indictment').[52] Apparently, that was done in order to put the prosecution case against the applicant on trafficking and cultivating charges on the basis that he was in possession for the purpose of sale on the day of the police raids (and to remove charges relating to theft of electricity). Charge 1 on the third indictment alleged that on 17 December 2013, at Sunshine North, Sydenham and Williamstown, the applicant 'trafficked in a drug of dependence namely Cannabis L in a quantity that was not less than the commercial quantity applicable to that drug of dependence'; and charge 2 alleged that on the same date and at the same locations, the applicant cultivated not less than a commercial quantity of cannabis. (Charges 3 and 4 alleged respectively trafficking and cultivation simpliciter against the co-accused, Charlie Gusman, on the same date at Sydenham and Williamstown only.) When arraigned in the presence of the jury panel, the applicant pleaded not guilty to both charges, but 'indicated that he was guilty of cultivating cannabis in less than a commercial quantity at Sydenham on 17 December 2013'. A jury was then empanelled to try the charges on the third indictment. The prosecution case, as opened to the jury, was that the first charge encompassed three discrete joint criminal enterprises with discrete participants.

105 Shortly before the prosecution was to close its case, the applicant's counsel submitted that combining three discrete joint criminal enterprises within one charge made that charge duplicitous. After debate, the trial judge ruled that charges 1 and 2 were attended by latent duplicity. The prosecutor then sought, and was granted, leave to file a fresh indictment.

106 Indictment C1309421.3 ('the fourth indictment') was filed immediately before the prosecution closed its case. Charge 1 on the fourth indictment charged the applicant with trafficking not less than a commercial quantity of cannabis at Sunshine North on 17 December 2013, and charge 2 alleged that the applicant cultivated not less than a commercial quantity at Sunshine North on the same date. Charges 3 and 4 jointly charged the applicant and Gusman respectively with trafficking and cultivation simpliciter at Sydenham and Williamstown on 17 December 2013. The applicant was arraigned on the fourth indictment in the presence of the jury, and entered pleas of not guilty, but 'indicated that he was guilty of cultivating cannabis in less than a commercial quantity at Sydenham on 17 December 2013'. The case then continued before the same jury, and the prosecutor closed his case.

107 In the event, on 27 May 2016, the applicant was convicted by the jury on charge 2 - cultivating a commercial quantity of cannabis at Sunshine North on 17 December 2013 - and charge 3 - trafficking in a drug of dependence simpliciter at Sydenham[53] on 17 December 2013 (he, of course, having admitted when arraigned on the fourth indictment that he was guilty of trafficking a non-commercial quantity of cannabis at Sydenham, where cannabis and related paraphernalia were found in the premises he had purchased with Gusman).

108 As was accepted at both ends of the Bar table, the resolution of the first ground boiled down to an exercise in statutory construction.

109 The starting point of that exercise must be s 159(2) of the Criminal Procedure Act 2009 ('CPA'), which provides in effect that the DPP[54] may file an indictment 'at any time', except where otherwise provided by or under the CPA or any other Act. Section 164 complements the power to file an indictment 'at any time', in that it permits the filing of a 'fresh indictment'[55] for a charge for the same offence as an offence charged in an indictment previously filed or a related offence.[56] It provides:[57]

164 Filing of fresh indictment

(1) In this section -

fresh indictment means an indictment which includes a charge for the same offence as an offence charged in an indictment previously filed in court against that accused or a related offence.

(2) Nothing in section 163 prevents the filing of a fresh indictment.

(3) The filing of a fresh indictment does not commence a new criminal proceeding.

(4) On the filing of a fresh indictment against an accused, proceedings in relation to a charge for the same offence or a related offence in an indictment previously filed in court against that accused are discontinued.

110 Section 217 of the CPA provides that if an accused has not pleaded guilty 'to all of the charges' on an indictment, he or she 'must be arraigned in the presence of the jury panel' and 'a jury for the trial must be empanelled from that jury panel'. By virtue of s 210(1), a trial 'commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with section 217'. And s 215(2) provides that an accused 'may be arraigned or re-arraigned at any time'.

111 Part 6 of the Juries Act 2000 provides for the empanelment of juries. In particular, s 36(1) provides the procedure for selecting a jury in a criminal trial; and s 36(2) provides:[58]

36 Procedure for selecting jury in criminal trials

...

(2) The persons selected are the jury to try the issues in the trial.

112 Section 42 of the Act requires that on being empanelled, jurors must be sworn in open court in 'the form of Schedule 3 applicable to the case'. The oath or affirmation provided for in Schedule 3 requires the jurors to swear or affirm that they 'will faithfully and impartially try the issues between the Crown and [the accused] in relation to all charges brought against [the accused] in this trial and give a true verdict according to the evidence'.

113 As we have observed, s 159(2) allows for the filing of an indictment 'at any time'. In our view, the permission granted by s 159(2) is broad enough to include the filing of an indictment after a trial has commenced by virtue of the accused's arraignment in the presence of the jury panel. So much is emphasised by s 215(2), which provides that an accused may be arraigned or re-arraigned 'at any time', and by s 164(3), which makes clear that the filing of that fresh indictment does not commence a new criminal proceeding.

114 Importantly, a jury empanelled from the panel in whose presence the accused is arraigned, are selected to - and swear or affirm to - try the issues between the Crown and the accused in relation to all charges brought against him or her in that trial and give a true verdict according to the evidence. In our view, the issues between the Crown and the accused brought against him (or her) in that trial must include the issues which arise in the trial once a fresh indictment - which may include charges for related offences to those on an earlier indictment - is filed (at any time), and upon which the accused has been arraigned or re-arraigned (at any time).

115 Clearly, in our view, the CPA and the Juries Act in combination contemplate that, after a jury has been empanelled, a fresh indictment (or indictments) may be filed in the trial for which the jury were initially selected, without the need for there to be a new trial.[59] The jury are selected to try the issues between the prosecution and defence in relation to all charges brought against the accused in the trial in which the jury were initially empanelled.

116 It is probable that the statutory scheme was designed to overcome some of the strictures of the common law. At common law, issues to be tried between Crown and accused were to be raised before the jury was sworn and empanelled, not afterwards. Once the accused was arraigned and pleaded not guilty, he or she was put 'in charge' of the jury. Thereafter, the accused remained in charge of the jury, and it was only by the jury's verdict that he or she could be convicted or acquitted. Hence, if an accused person pleaded guilty during a trial - having initially pleaded not guilty - the verdict of the jury nonetheless needed to be taken,[60] and a failure to take the jury's verdict in such circumstances rendered the trial a nullity.[61] Generally, the jury could not try issues which they had not been sworn to try. Therefore, an accused could not be put in charge of the jury to determine whether he or she was guilty or not guilty of an offence to which he or she had not pleaded when the jury was sworn.[62]

117 An example of the strictness of the common law is provided by Paprounas.[63] In that case, the accused was arraigned before a jury and pleaded not guilty. During the course of the trial he was re-arraigned and changed his plea to guilty. The judge purported to accept the plea and discharged the jury without verdict. He then heard a plea and imposed sentence. The Full Court held that the conviction was invalid and said:[64]

... Upon his original arraignment and plea of not guilty, the applicant had been placed in charge of the jury. It thereupon became the tribunal to determine his guilt or innocence[[65]] and so long as the applicant remained in its charge, only by its verdict could he be convicted or acquitted. As the jury were discharged without verdict, that result did not in fact occur. In consequence the trial of the applicant did not conclude according to law. On the contrary, instead of requiring the jury to return a verdict after having heard the applicant's admission of guilt involved in his plea of guilty, which was the course required by law and which is the course universally followed in practice in such circumstances, the learned judge himself purported to convict the applicant by accepting his plea and then discharged the jury and imposed sentence upon him. We agree the course followed involved a grave irregularity, and also involved that no conviction of the applicant valid in law was made, and as in the circumstances the learned trial judge had no power to convict, the conviction recorded by him cannot stand. A like conclusion was reached by the English Court of Criminal Appeal in similar circumstances in R v Hancock (1931) 23 Cr App R 16, and R v Heyes [1951] 1 KB 29; [1950] 2 All ER 587. In the latter decision the court said that the trial was a nullity to such extent that the proceedings could be set aside and a new trial of venire de novo ordered.

(Now, of course, s 241 of the CPA permits a judge to accept a changed plea notwithstanding that the accused is in charge of the jury.[66])

118 In support of the contention that the filing of a new indictment immediately prior to the close of the prosecution case resulted in a fundamental irregularity, counsel for the applicant relied on Maher. In that case, the appellant was tried in Queensland on charges of conspiracy under Commonwealth and State laws. Pleas of not guilty were entered to nineteen counts originally contained in the indictment and to two further counts added to the indictment after the jury had been sworn. The trial judge had the appellant re-arraigned and purported to give him in charge of the jury on the two new counts. Based on the terms of the applicable Queensland legislation, the High Court held that there was no provision authorising an amendment of the indictment by the addition of counts. Since the jury had not initially been sworn to try the issues on the further counts, re-arraigning the appellant did not alter the issues that the jury had been sworn to try. As a result, there was a failure to comply with mandatory provisions governing the constitution and authority of the jury, and any conviction founded on the jury's verdict could not stand.

119 Despite the applicant's reliance upon Maher, it is plain that the decision in that case turned on the interpretation and application of the particular provisions of the Jury Act 1929 (Qld) and Criminal Code (Qld) there under consideration, which are not replicated in the CPA or Juries Act 2000. In the course of its reasons, the High Court observed that at common law an indictment could not be amended, a wide power of amendment first being conferred in the United Kingdom by the Indictments Act 1915.[67] The trial judge in that case had not, however, purported to order an amendment of the indictment by the addition of counts. Had the judge exercised the power of amendment conferred by s 572 of the Code - assuming that its provisions were satisfied - the trial could have proceeded upon the amended indictment. It would not have been necessary to empanel a new jury (unless the court otherwise directed) or to reswear the original jury to try the issues arising on the amendment.[68] In the event, that was not what occurred, so that the trial was a nullity.[69]

120 Counsel for the applicant also relied on Abraham.[70] That was a very different case to the present. The accused in the one trial was arraigned before a jury and tried on two separate indictments. It was held by the Queensland Court of Appeal that the trial was a nullity, since there was no statutory warrant for a single trial being conducted on two separate indictments. Indeed, although the Court did not refer to it, there is ample authority for the proposition that a trial on more than one indictment is a nullity.[71]

121 It is because an accused person cannot be tried on two indictments in the one trial that, prior to the enactment of s 164(4) of the CPA, an earlier indictment needed to be permanently stayed when there was to be a trial on a new indictment which was filed over it.[72] But it was well established at common law that the existence of one indictment was no absolute bar to the filing of a second with respect to the same or similar offences,[73] even where the accused was in charge of the jury on an earlier indictment.[74] And it was the experience of at least one member of this Court that, prior to the introduction of the CPA, it was not at all unusual for a presentment to be filed over in the course of a trial in which the accused was in charge of the jury - with the proviso, of course, that a wholly new prosecution case was not thereby permitted to be erected - and for the accused to be arraigned on the new presentment.

122 We are satisfied that the course adopted in the present case was justified by the provisions of the CPA and Juries Act 2000, and is consistent with the former practice. There was no irregularity in permitting the fourth indictment to be filed, or in permitting the jury to return verdicts on the charges in it.

Was evidence of the finding of $120,800 at the applicant's home wrongly admitted?

123 At the risk of repetition, the jury found the applicant guilty of cultivating not less than a commercial quantity of cannabis at the Mansfield Avenue, Sunshine North, premises (but not guilty of trafficking cannabis at that address), and of trafficking cannabis - by way of possession for sale[75] - at the Sydenham property.

124 On the same day that search warrants were executed in relation to the Sunshine North, Sydenham and Williamstown premises - 17 December 2013 - the applicant and his wife, Susan Falzon, were arrested at their home at 5 Kendall Street, Essendon. During the execution of a search warrant at those premises, police located and seized $120,800 in cash, the admissibility of which is the subject of the second ground of appeal. It is to be noted, however, that no charges on any indictment related to the Kendall Street premises.

125 The Kendall Street premises consist of an easterly facing two storey timber residence, with a drive-way running along the northern border to a garage situated beneath the upper story on the northern side. The following items were located at Kendall Street:

• a total of $120,800 cash from several locations, including the storage area under the stairs inside the house (in a black plastic bag); the upstairs en-suite bathroom (in a 'shortbread' tin inside a side bottom drawer); and the work bench in the garage (in a top drawer);

• a plastic container holding dried cannabis weighing 220 grams;

• a snap lock bag containing cannabis and unidentified plant material weighing 113.8 grams, located inside a locked cabinet in the garage;

• two snap lock bags, and one heat sealed bag, containing cannabis and unidentified plant material weighing 172.3 grams, also located inside a locked cabinet in the garage;

• an ANZ bank envelope containing statements in the name of the applicant and Gusman, located in the garage;

• three sets of keys in a bag with a wallet containing cards and papers in the applicant's name, located in a sports bag inside the garage;

• two black garbage bags containing water pipe tubing, located on a shelf in the garage; and

126 Over objection, the prosecution was permitted to lead evidence of police finding the $120,800 at the applicant's home during their search on 17 December 2013. The prosecutor relied on a line of cases that suggest that possession of cash may be probative of an allegation that possession of a drug is for the purposes of sale.[76]

127 With respect to the admissibility of the finding of cash, the judge ruled:[77]

... Both accused object to the Crown leading evidence of the finding by police of sums of cash at their respective homes at or soon after the times of their arrests. In the case of Mr Falzon, the amount was approximately $128,000. In the case of Mr Gusman, it was approximately $17,000. In both cases, the cash was found in what I would describe as unusual or concealed locations.

The accused submit the evidence of the cash has no probative value, and insofar as it might have such value, it is outweighed by the danger of unfair

prejudiced [sic.] to them. I was referred by counsel to a number of authorities including the decisions of Sultana, McGhee, Rees, Blackwell and Strawhorn.[[78]]

The Crown case against both accused for trafficking is a circumstantial one. In such a case, one piece of evidence may, when looked at in isolation, have little apparent relevance or probative value. But a jury is required to consider all of the evidence. The combined effect of one piece of evidence in conjunction with another, including any explanations given by the accused in records of interview, may be determined to have substantial probative value.

The prosecution case is that the cash amounts are likely to be proceeds or are proceeds of cannabis. I consider that the evidence is admissible in the same way as the finding of other indicia of trafficking is admissible.

Such evidence is capable, in my opinion, of having probative value when looked at alongside other evidence, including that of the organised and systematic cultivation of significant quantities of cannabis and the indicia of trafficking that I have previously referred to. I do not consider that the probative value of such evidence is outweighed by the danger of unfair prejudice to either accused.

128 In considering the admissibility of the finding of the cash, it must be borne in mind that charge 3, trafficking, was not founded on any actual sale. It was not laid as a Giretti[79] count, by which it was alleged that there was a continuing offence, in the nature of a business, being carried on. Rather, the trafficking charge was put on the basis of possession for sale on a single day. Therein lies the essential difficulty with the admission of the evidence of the cash found at the applicant's home.

129 The Evidence Act 2008 provides that relevant evidence 'is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue'.[80] Except as otherwise provided by the Act, relevant evidence is admissible.[81] The Dictionary to the Act defines probative value to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.[82] As was recently observed in Massey:[83]

In Wise, the Court observed that determining whether a piece of evidence has the capacity to 'rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue' involves an exercise in logic.[84] In other words, in order for evidence to be relevant, it must render a fact in issue more probable than it would be without the evidence. As Gleeson CJ, Heydon and Crennan JJ said in Washer:[85]

... Relevance depends upon whether the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[86] That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact of the acquittal could rationally affect the assessment of the probabilities. The word 'rationally' is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial.

In context, s 55(1) of the Evidence Act directs attention to whether the disputed evidence, 'if it were accepted'[87] by the jury, 'could' - not 'would' - 'rationally affect' the assessment of the probability of the existence of a fact in issue. As was pointed out in Washer, the adverb 'rationally' is significant. Thus, there must be a logical connection between the evidence and the fact in issue. If a trial judge is satisfied that a reasonable jury could find such a logical connection, then he or she must determine the evidence to be relevant. Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.[88] Therefore, ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial.[89] Moreover, in judging relevance, the contested evidence must not be looked at in isolation.[90] ...

130 On the charge of trafficking, the relevant fact in issue was whether the possession of cannabis on 17 December 2013 was for the purposes of sale. In our view, the possession of cash at the applicant's home could only have gone towards establishing that the applicant was involved in past sales, or that he had the money as a 'float' for the purposes of an ongoing drug-related business. Given the manner in which the prosecution chose to put its case against the appellant, however, the cash cannot have been relevant on either of those bases.

131 The facts of the present case bear some similarity to those in Lewis,[91] a case in which the appellant was convicted of possession of a prohibited drug, cannabis, for the purposes of supply, contrary to s 66(2)(c) of the Poisons and Dangerous Drugs Act 1983 (NT). When police attended the appellant's flat, he was found with a quantity of cannabis weighing about 118 grams. Since the appellant possessed more than 50 grams, by virtue of the provisions of the relevant legislation he was deemed to have had the cannabis for the purpose of supply (the onus of proving otherwise resting upon him). Given that the appellant admitted that at the relevant time he had in his possession in excess of 50 grams of cannabis, the real and only issue was the purpose for which he had it. Whilst searching the flat, the police also came across $750 in $50 notes under the appellant's mattress, and $2000 in $100 and $50 notes in the pocket of his jacket. That cash was seized by the police (as was an envelope upon which there were a number of figures, calculations and the forenames of three people).

132 On appeal, the principal ground was that the finding of the cash was wrongly admitted into evidence. The appellant contended that the cash was not relevant to any fact in issue, and that if it was admissible, then it should have been excluded in the exercise of discretion on the basis that its prejudicial effect outweighed its probative value. In the result, the Northern Territory Court of Criminal Appeal set aside the conviction (Martin and Angel JJ, Rice J dissenting). Martin J said:[92]

... In this case the only real issue in relation to the offence was the purpose for which the appellant possessed the cannabis, that is, a present intention in relation to the cannabis then in his possession. The cash, if it was to be connected in some way with an intention to supply cannabis, could only be seen as the proceeds of prior sales or as the means of acquiring cannabis in the future. The latter hypothesis clearly has nothing to do with current possession, and the former going only to show criminal propensity, is inadmissible.

There was no legitimate connection between the cash, the notations and the cannabis. No support for its admissibility can be derived from cases dealing with, for example, housebreaking or other implements: [Thompson v The Queen [1968] HCA 21; (1968) 117 CLR 313; Taouk and Hanna v The Queen (1983) 8 A Crim R 349]. Whether taken alone or in conjunction with the other items it did not tend to show that he was guilty of the crime charged for some reason other than that he had committed crimes in the past or had a criminal disposition: [Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590].

The objection taken to the admission of the money into evidence is one of relevancy. Does the money, from its denomination ($50 and $100 notes) and from the circumstances of the appellant's possession of it (concealed in part under a mattress and in part within a leather jacket within the appellant's single room bedsitter) give rise to an inference relevant to the case? I ask myself what legitimate process of reasoning can assist the jury? The money in the circumstances of the appellant's unemployment could assist to a conclusion of guilt with respect to past sales of cannabis. But the appellant was not charged with that offence. How does it assist in ascertaining the appellant's purpose with respect to the cannabis in his possession? The money, if it tended to show the appellant had offended before or was disposed to commit offences of that kind (ie sale of cannabis) could not be admitted into evidence on the offence charged on that score. That is an illegitimate chain of reasoning. Of course, evidence of past offences for which a defendant is not charged may be nevertheless admissible as relevant to a step in the proof of another offence charged. The question in the present case is whether the inference of past dealing which might be drawn from the possession of the money is relevant to the defendant's intention with respect to the remaining cannabis.

There is no assistance to be had from the 'paraphernalia' cases or the oncourse unlawful betting cases. ... [T]he present case is distinguishable from such cases. The only link that can be drawn between the money and the defendant's purpose with respect to the retained cannabis is a link that can be made, as has already been noted, by an illegitimate process of reasoning, or by drawing an inference upon an inference: compare Van Beelen (1972) 4 SASR 353 at 373-376; 128 CLR 687 (note) ...

There has to be a nexus between the possession of the money and the offence charged. The money was not a unit in a collection of things. The money was not in a box with the cannabis. It was not indicative of constituting change for use as such in future drug transactions. The money was not in use for the purpose alleged in the information. The money was unlike the pad in Connelly v Allchurch [1925] SAStRp 2; [1925] SASR 7, which had a use from which could be drawn an inference of the defendant's purpose upon the race track. In my opinion the circumstances in which the money was found do not enable an inference to be legally drawn as to the appellant's purpose with respect to the cannabis in his possession, and the money was inadmissible.

134 At the risk of stating the obvious, each case must, of course, turn on its own facts. In the same way that Lewis fell to be determined according to its own facts, this case must turn on its particular facts, and upon the application of logic and such legitimate inferential reasoning that is open on the available evidence.

135 Thus, by way of example, Lewis was distinguished on its facts by Cox J in McGhee,[94] a case in which the unemployed accused was charged with possessing amphetamines for sale. Police had raided a house occupied exclusively by the accused and there found illegal drugs, scales, plastic packets and a large amount of cash. Importantly, much of the cash was found inside a wallet also containing a packet of amphetamine. Cox J said that he found the dissenting judgment of Rice J in Lewis 'generally persuasive', then went on to observe:[95]

If in a prosecution under s 32 of the South Australian Act the Crown can prove that the accused is running a retail drug business, then this may be the clearest way of discerning the purpose for which he is in possession of illegal drugs on a particular occasion. The possession of appropriate stock and plant and customer lists and so on, including what appears to be working capital, will itself be evidence tending to prove the existence of an ongoing business, and its relevance cannot be called in question merely because it proves that the defendant has committed offences in the past and thus has a criminal disposition. Proof of a criminal disposition - to sell prohibited drugs - is essential to the proof of an offence of possessing drugs for the purpose of sale under s 32 [of the Controlled Substances Act 1984 (SA)].

Of course, this reasoning will not ordinarily be open if the evidence simply proves that the defendant was engaged in the past in an illegal business that is now over and done with. That would bring the propensity rules clearly into play. Furthermore, the court will always have to consider the question of discretionary exclusion, where evidence of this sort is tendered, and be on guard against admitting prejudicial evidence on continuity grounds that are quite fanciful or speculative. However, where the evidence points to an established and ongoing business, it will not usually be unfairly prejudicial to a defendant to admit evidence of it on a prosecution under s 32 even if that does incidentally tend to prove actual past sales. ...

136 Plainly, the cash in McGhee was found in close proximity to illicit drugs, surrounded by the paraphernalia of an 'ongoing' drug supply 'business', in premises used for that business, in circumstances where proof of a criminal disposition to sell prohibited drugs was essential to the proof of an offence under s 32. In those circumstances, it is unsurprising that the finding of the cash was held to be admissible. In the present matter, of course, the prosecution's case was limited to a single day, and to cultivation and trafficking at or from premises other than where the cash was found, in circumstances where the prosecutor eschewed reliance on a Giretti charge.

137 Another case relied upon by the respondent, Sultana,[96] tends, we think, to illustrate that cases such as the present must be regarded as facts-specific. In that case, the appellant was convicted of supplying heroin. When police searched his premises they found various items of a kind commonly used by heroin suppliers, including resealable plastic bags. Police also found firearms and a large amount of cash on the premises. The Crown argued that, when considered with the other evidence, the firearms and cash could reasonably be regarded as supporting an inference that the appellant was a heroin dealer. Holding that the evidence of the finding of the cash was admissible, Gleeson CJ said:[97]

Evidence of this kind is frequently received on the basis that the Crown is entitled, in a case such as the present, to show that the accused was possessed of the implements or accoutrements of trade of a drug dealer. ...

Where the issues are whether a person was found in possession of heroin, and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug-dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit crime, or bad character: cf Harriman [1989] HCA 50; (1989) 167 CLR 590; 43 A Crim R 221; Thompson and Wran [1968] HCA 21; (1968) 117 CLR 313 at 316-317. If, for some reason, in a civil or criminal case there were an issue as to whether a man was found in possession a man was found in possession of clothing material with an intention of cutting it, it would ordinarily be of relevance to show that the man was carrying on the business of a tailor. That might be shown by evidence then, when asked his occupation, he said he was a tailor. It might also be relevant to prove that he owned a tape measure, a pair of tailor's scissors, a quantity of samples of cloth, and some books showing a collection of clothing designs. Evidence that tends to show that a person is in the business of dealing in heroin also tends to show a propensity towards crime, but in a case such as the present it is admissible on the former account, not the latter. Moreover, subject to discretionary considerations to be mentioned below, the fact that it bears the latter character does not detract from its relevance or render it inadmissible.

138 In Sultana, the 'accoutrements' found in close proximity to the cash included a cutting agent; a coffee grinder containing traces of heroin; plastic bags; an open pen knife; and a replica pistol and a pen pistol. Again, it is unsurprising that the finding of the cash - located close to other drug-dealing paraphernalia - was held to be admissible to prove that the appellant was 'currently in the business of a drug-dealer', given the issues in the case.

139 The issue in Blackwell[98] - another case relied upon by the respondent - was whether evidence of the finding of a pen pistol and a can of 'mace' were admissible against the appellant on a charge of possessing heroin for the purpose of sale. No issue of admissibility with respect to the finding of cash arose. The appellant was found on the footpath outside his house to have a ball of heroin, and bags of heroin, in his jeans pocket, together with a can of mace. Inside his house, police found a set of scales, a pen pistol capable of firing .22 calibre ammunition and a quantity of ammunition (capable of being fired in the pen pistol). Duggan J, with whom Prior and Debelle JJ agreed, observed:[99]

It is well known that drug dealers may become involved in situations which place their personal safety at risk. Accordingly it is not unknown for dealers to arm themselves or carry some sort of protective device, particularly when in possession of large quantities of drugs. ...

It is well accepted that if, in addition to being found in possession of drugs, a person is found also to have items commonly associated with drug dealing, then the finding of such items usually will be relevant as part of the circumstantial material to establish the purpose for which the drug was in that person's possession. ...

140 With respect, the logic of the above statement is unimpeachable. On a charge of possessing heroin for sale, if a person is found to have possession of items commonly associated with drug dealing - in that case a pen pistol and a can of mace - in parallel with the possession of heroin, then the possession of that drug trafficking paraphernalia may well be very relevant to the purpose for which the illicit drugs are possessed. The facts of Blackwell are, however, a far cry from those of the present case, which relates to the finding of cash at premises other than those where the relevant offending was alleged to have occurred.

141 So, too, were the facts in Edwards[100] very different to those in the applicant's case. Edwards was a case in which the admissibility of the finding of a pistol on the applicant was in issue. The evidence in that case was that the applicant drove up to a house in which illicit drugs were found. When searched by police he was found to have a fully-loaded pistol - with the serial number drilled out - concealed beneath his clothing. He also had $70 cash in a wallet, and a further $2950 in a pocket. In the vehicle driven by the applicant police found almost a kilogram of methylamphetamine in powder form packaged in six small clear plastic bags, together with a box of .38 ammunition suitable for use in the secreted pistol. Eames AJA observed:[101]

... On the Crown case the accused was in possession of a very large quantity of drugs, and in the same box in which the drugs were found was a box of ammunition which fitted the gun. The trial judge was entitled to conclude that a gun might be properly considered by a jury as being an accoutrement of the crime of drug trafficking: see R v Sultana (1994) 74 A Crim R 27 at 28-9. In that case Gleeson CJ, with whom Handley JA agreed, considered a very similar situation, where a large quantity of money, a replica pistol and pen pistol, a mobile phone, plastic bags and other items were found by police. Gleeson CJ held that none of the items standing alone demonstrated drug trafficking, but that they were admissible because when taken together the items could be regarded by the jury as supporting the inference that the accused person was a dealer in drugs, as alleged. His Honour noted that common sense indicated that supplying drugs was a dangerous trade and that possession of firearms might be thought by a jury to be appropriate to the business of a street dealer in heroin. But as his Honour noted:

That line of reasoning would not depend upon evidence or inference that all, or even most, heroin dealers carry weapons. Nor would it depend upon the premise that possessing weapons tends to indicate that the possessor is a drug dealer as distinct from a person in some other line of dangerous work.

It was the combined effect of the items which mattered, his Honour held. In my opinion the gun would no less be an item which 'might' be used for the purpose of carrying out the crime of drug trafficking than would plastic bags and scales: see R v Edwards (1993) 67 A Crim R. 539, at 542, a decision of the Court of Criminal Appeal dealing not with the present applicant but with a person with the same surname, and which held that such items had been properly admitted.

142 Again, with respect, one could hardly quibble with the finding that the evidence of the possession of a pistol, in close proximity to a large quantity of drugs, was admissible to support the inference that the accused person was a dealer in drugs. Again, however, the facts in Edwards - in which the admissibility of the finding of cash was not in issue - are far removed from those of the present case.

143 Finally, the admissibility of the finding of the sum of $895 in cash on the applicant was in issue in Evans.[102] The appellant was convicted of ecstasy with intent to sell or supply. In a 'bum-bag' beneath the front passenger seat of the applicant's car, police located a snap-lock bag containing 38 ecstasy tablets. Police also found the cash on the appellant, and, in a car at his premises, a note referring to the possession of 20 'caps'. Malcolm CJ, with whom Anderson and White JJ agreed, held that, since the defence was that the appellant was unaware of the existence of the drugs in his car, the evidence of the finding of the cash and the note was admissible 'both to support the Crown case that the appellant was in possession of the drugs and to rebut any defence that the appellant was in possession of the drugs for his own use'.[103] Once more, in the particular circumstances of that case, it is difficult to argue with that finding. But once more, the facts in Evans are very different to the facts of the present case.

144 Cash was an article which, in the not too distant past, most people would have been expected to possess - in greater or lesser quantities - about their person, in their homes or in their businesses. Self-evidently, the mere finding of a quantity of cash in any of those circumstances could not - without more - properly found an inference of illicit activity. In some circumstances, however, the finding of an inordinately large amount of cash on a person, or in premises occupied by him or her, might - particularly if he or she appears to have no apparent means of legitimately generating income - raise a suspicion that the cash was acquired by unlawful means, although no particular crime may be capable of being identified as the source of the illicit cash.[104] So, also, cash being found in unusual places or circumstances, or bundled or packaged in an unconventional way, might raise a suspicion as to its origins; but, without more, would be incapable of proving the commission of a particular crime.

145 Ordinarily, it is the combination of the finding of a sum of cash in proximity to other incriminating articles which will go to support a guilty inference as to the origins of the cash or a person's reasons for its possession. Thus, it has been held that the finding of cash contiguously with other incriminating articles which are themselves the accoutrements of the illicit drug trade - drugs, firearms and other weapons, cutting agents, scales and the like - might be relevant in proof of an accused person's participation in such activity. In the present case, however, there was no attempt by the prosecution to show a relationship between the sum of cash found at the applicant's home and the trafficking - by way of possession for sale - at the Sunshine North or Sydenham premises. The finding of the cash was suspicious, but nothing more.

146 In our view, insofar as the evidence of the possession of the cash was admitted on the basis that it was evidence of past trafficking, it was irrelevant and therefore inadmissible. At the risk of repetition, the cultivation and trafficking of which the applicant was convicted related to Sunshine North and Sydenham respectively on one day. And as we have observed more than once, with respect to the trafficking, the prosecution eschewed reliance on a Giretti charge, or on a case that involved an allegation of an ongoing drug trafficking business. Thus, as a matter of logic, it is impossible to say that the evidence of cash at the applicant's home - from which it was not said that he conducted any ongoing illicit business - could have gone in proof of his having possession of cannabis for sale at Sunshine North (charge 1, of which he was acquitted) or Sydenham (charge 3, of which he was convicted) on a single day in December 2013.

147 Quite apart from its lack of legitimate probative value, in our opinion the evidence of the finding of cash at various places at Kendall Street invited impermissible reasoning. The prosecution case on trafficking was not one of an ongoing business, it being limited to possession for sale on one day. Yet the prosecutor closed, at length, on the basis that the cash demonstrated that the applicant had engaged in extensive past trafficking. We accept the submissions of the applicant's counsel that the relevance of that conclusion was either to invite some improper 'rank propensity' reasoning in the manner discussed in Lewis, or to invite the jury to reason that the applicant was more likely to have acted in accordance with the tendency established by that past conduct, and thus that he was more likely to be in possession of the cannabis for the purposes of selling it. Thus, it seems to us that the reasoning relied upon by the prosecution was either rank propensity reasoning, or tendency reasoning. No matter which, the evidence was inadmissible. Indeed, if the evidence is properly to be characterised as tendency evidence, it was wrongly admitted without any consideration of the relevant statutory criteria.[105]

148 If we are wrong in our primary conclusion, and the evidence might be seen to have some probative value, for the reasons we have already identified, any such probative value must be low, in circumstances where the risk of the misuse of the evidence is undoubtedly high. Thus, in our opinion, the probative value of the evidence is outweighed by the risk of unfair prejudice.[106]

149 Plainly, in these circumstances, the conviction on the trafficking charge cannot be permitted to stand. We have given anxious consideration to whether the wrongly admitted evidence also infects the conviction for cultivating not less than a commercial quantity of cannabis. Ultimately, we have come to the conclusion that it does. In our view, it is likely that the evidence of the finding of the cash would have coloured the jury's consideration of the appellant's case on that charge, if for no other reason than the prosecutor linked the finding of the cash to the cultivation. In his final address he said of the cash:

... The prosecution says, well, you're not going to return income from an illegal activity, black money, income from dealing in drugs and that's why the prosecution says that the possession of that cash money is indicative of a dealing in drugs and indicative of trafficking in drugs.

What is being engaged in is a commercial profit making activity in relation to both the cultivating of cannabis, not for personal use but for the purposes of sale, for making a profit.

150 Finally, we note that, despite repeating the manner in which the prosecutor put his case, the judge gave the jury no directions as to how they might use the evidence of the finding of the money.

151 In light of our conclusions on ground 2, there is no utility in granting leave to add proposed ground 3.

152 For these reasons, the convictions on charges 2 and 3 must be set aside.

[1] Transcript of Proceedings (19 May 2016) 1007.9-1007.13, 1007.28-1007.30.

[3] A CD of the exhibit was handed to the Court. The Court was told that there was no transcript.

[4] Transcript of Proceedings (19 May 2016) 1020.24-1021.21.

[6] [1989] NTCCA 8; (1989) 46 A Crim R 365.

[7] [1993] SASC 4070; (1993) 61 SASR 208.

[8] Giretti v The Queen (1986) 24 A Crim R 112.

[13] (1994) 74 A Crim R 27.

[17] (1996) 87 A Crim R 289.

[19] [1998] 2 VR 354.

[22] [1984] HCA 7; (1984) 153 CLR 521.

[23] [1990] HCA 56; (1990) 170 CLR 573.

[24] Edwards [1998] 2 VR 354, 370.

[25] [1999] WASCA 252.

[30] [2005] ACTSC 91.

[31] Transcript of Proceedings (23 May 2016) 1341.23-1344.5, 1358.12-1358.26, 1360.9-1362.10.

[32] Ibid 1344.8-1344.18, 1367.4-1367.14.

[37] Ibid 1355.18-1356.3, 1357.5-1357.18, 1358.12-1358.26, 1360.11-1362.10.

[41] Transcript of Proceedings (20 May 2016) 1132.24-1138.19.

[42] (2010) 201 A Crim R 505.

[43] [2011] VSCA 107.

[44] [2015] VSCA 237.