Ground 5: the presence of substantial sums of cash

1. Proposed ground 5 contends that 'The trial judge erred by instructing the jury to use evidence of substantial sums of cash in an impermissible way, causing a substantial miscarriage of justice.'
2. In final address, the prosecutor referred to the presence in the storage unit of the bag containing 'hundreds of thousands of dollars, $50 notes all nicely bundled up and put in a bag'. He referred also to the 14,000 MDMA pills found in the storage unit, and to the fact that during the seven week period between the installation of the surveillance device and the arrest of the applicant, he was the only person who ever went into the unit.
3. The prosecutor then submitted:

It is implausible, it is indeed ridiculous to think that anybody who owned those two things [the cash and the pills] and had had the foresight to lock them up in a storage facility would let anyone anywhere near them, let alone give someone a key and the PIN code and say, 'go in there whenever you feel like it'. And that's what the defence say the situation was. ... Everything in that unit belonged to Mr McCabe. If you had several hundred thousand dollars and a very large amount of drugs, you would lock them away and you wouldn't let anyone else near them, and you would make sure no one else had access to them.

1. In his charge, the judge correctly identified the presence of the cash as one of the elements of the Crown's circumstantial case. The only other reference to the cash was in connection with the element of intention to sell. As noted earlier, the judge simply recounted the prosecution argument as to the basis of the inference of intent, as follows:

of course the prosecution point to the fact that there is 14,000 tablets there. They would not be for personal use. Together with hundreds of thousands of dollars in cash in a bag right next to where the drugs are and the prosecution invite you to infer from those facts that that was the accused man's intention in relation to the possession of the MDMA.

either encouraged 'rank propensity' reasoning [that] the applicant was the 'sort of person' who would intend to sell drugs, or else had a tendency to conduct a drug trafficking business ... since possession was in issue, it can't be ruled out the jury might similarly have reason the applicant was the 'type of person' who would possess large amounts of MDMA.

1. Once again, this point is without substance. First, it is well-established that the presence of cash (in a relevant place at a relevant time) is a circumstance from which an intention to traffick may be inferred, and that the evidence is admissible notwithstanding that it may imply the commission of previous acts of trafficking.[26] The applicant sought to make something of the fact that the cash was not in the unit on the day he was arrested but, as counsel for the respondent pointed out, it was the applicant who had taken it there and had later removed it.
2. Secondly, as noted earlier, both the quantity of drug and the quantity of cash were such that, if the jury were satisfied beyond reasonable doubt that the applicant knew what was in the bag, it was inevitable that they would be satisfied that he was in possession to traffick. There was no realistic possibility of a doubt being raised that he was in possession for any other purpose.

Ground 2: 'material misstatements of fundamental evidence'

A substantial miscarriage of justice occurred in the closing address of the Crown and summing up of His Honour, by material misstatement of fundamental evidence and leading of inferences not fairly put to the applicant.

1. Under this ground, the applicant complains about particular statements in the prosecutor's closing address and in the judge's charge, which are said to have misrepresented or mischaracterised the evidence put before the jury. These complaints variously concern:
   • what happened to Mehfeld's driver's licence after the applicant had used it to arrange to lease the storage unit;
   • the fact (shown on the surveillance footage and admitted in evidence by the applicant) that the first thing he had done upon entering the storage unit was to unzip the Faraday bag, tie up the bag of cash within it, and place another bag belonging to him in the Faraday bag;
   • the admitted fact that the applicant parked his car away from Fry's Storage, despite the facility having an available car park; and
   • whether the applicant touched the Fox Racing bag.
2. We have reviewed the relevant parts of the transcript. There was not, in our view, any material misstatement, or any invitation to draw an impermissible inference, of the kind which the applicant alleges.
3. Once again, any judgment required to be made about matters of detail like this was a judgment to be made by the applicant's trial counsel. Subject to his (apparently detailed) instructions, they were in charge of the conduct of the trial on his behalf and they were perfectly placed to assess whether there was any relevant misstatement and, if there were, whether it was of sufficient importance to justify an objection being made.
4. None of the matters now relied on was the subject of any objection from the applicant's counsel. In the circumstances, there is no occasion for this Court to set out the details either of the evidence in question or of what was said about that evidence in the prosecutor's closing address or in the charge.

1. In the alternative, the applicant relies on 'the aggregate of errors' contended for under the other grounds. None of those errors having been made out, this ground necessarily fails.

1. For these reasons, the proposed appeal has no prospects of success and the extension of time in which to seek leave to appeal must therefore be refused.

[1] Saricayir v The Queen [2018] VSCA 319, [83]-[87] ('Saricayir'); Dunn (a pseudonym) v The Queen [2017] VSCA 371, [48]-[54] ('Dunn').

[2] Saricayir [2018] VSCA 319, [87].

[3] A Faraday bag is constructed so as to prevent electronic connection with the contents of the bag.

[4] (1919) 26 CLR 265; [1919] HCA 32.

[5] The transcript indicates that this point was made by defence counsel, but the context would suggest that the exchange took place between the judge and the prosecutor.

[6] (2007) 16 VR 673; [2007] VSCA 164.

[8] JDA, s 44A.

[9] Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66.

[10] Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25.

[12] See [31] above; and see Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 505; [1987] HCA 16.

[13] Dunn [2017] VSCA 371, [82].

[14] Ibid [84] (emphasis in original).

[16] (2007) 16 VR 673; [2007] VSCA 164.

[17] (2005) 12 VR 563; [2005] VSCA 288.

[19] [1974] VicRp 26; [1974] VR 201, 214.

[20] Dunn [2017] VSCA 371, [6].

[21] Affidavit of Joshua Taaffe, junior defence counsel at trial, filed on behalf of the applicant.

[22] [2013] VSCA 55; (2013) 39 VR 149, 152 [4], 155 [13] (Maxwell P, Whelan JA agreeing at 173 [119]); [2013] VSCA 55.

[23] (2007) 16 VR 673; [2007] VSCA 164.

[24] See RJE v Secretary, Department of Justice (2008) 21 VR 526; [2008] VSCA 265, [48] (Maxwell P and Weinberg JA); Commissioner of State Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617; [2011] VSCA 272, [20] (Sifris AJA, Buchanan and Tate JJA agreeing at 619 [1] and [2]).

[25] Emphasis in original, citations omitted.

[26] R v Falzon (2018) 264 CLR 361; [2018] HCA 29.