KOUVARIS, CIRILLO & GIANNINI v THE KING [2026] SASCA 48

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE FULLER) DCCRM-21-172 Appellant: IOANNIS JOHN KOUVARIS Counsel: MR B LODGE - Solicitor: NOBLET & CO Appellant: ANTONIO JULIAN CIRILLO Counsel: MR A CULSHAW WITH MR S MCDONOUGH - Solicitor: MANGAN EY & ASSOCIATES Appellant: GIUSEPPE GIANNINI Counsel: MS M BARNES WITH MR B ARMSTRONG - Solicitor: MATTHEW MITCHELL SOLICITORS Respondent: THE KING Counsel: MR K LESSES WITH MS E CATTRALL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/08/2025 File No/s: SCCRM-24-037167; SCCRM-24-042415; SCCRM-24-042665 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. KOUVARIS, CIRILLO & GIANNINI v THE KING [2026] SASCA 48 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice David and the Honourable Justice Stanley) 1 May 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - DIRECTIONS TO JURY EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - SIMILAR FACT EVIDENCE - USE AS EVIDENCE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - MANUFACTURE, PRODUCTION OR CULTIVATION This is a conviction appeal. Following a trial by jury, the appellants, Ioannis John Kouvaris, Antonio Cirillo and Guiseppe Giannini were found guilty of two counts of cultivating a large commercial quantity of a controlled plant, contrary to s 33B(1) of the Controlled Substances Act 1984 (SA). The offending related to two large cannabis crops located in Coonalpyn. The two crops were grown outdoors and were located on the one rural property approximately 1.27 kilometres apart from each other. The appellants now appeal their convictions on three common grounds: first, that the guilty verdict on Count 2 (and in the case of Mr Kouvaris on Count 1) was unreasonable and cannot be supported by the evidence; secondly, that the trial judge erred in admitting evidence of Count 1 in proof of -- 1 of 55 -- Count 2 for improbability reasoning; and thirdly, that the trial judge’s directions as to the permissible and impermissible use of the evidence of discreditable conduct were inadequate. Mr Cirillo also challenged the admissibility of the evidence of an earlier cultivation (‘the Karoonda property’) and contended that the directions did not comply with s 34R of the Evidence Act (1929) (SA). Held, per David JA (S Doyle JA and Stanley JA agreeing) granting the appellants permission to appeal against conviction on all grounds, but dismissing the appeals against the convictions on Count 1: 1. It was open to the jury to find that Mr Kouvaris cultivated the cannabis plants the subject of Count 1 by tending, nurturing or growing the plants on an occasion other than on 11 March 2020. Mr Kouvaris’ conviction on Count 1 was not unreasonable. 2. The trial judge did not err by ruling that the evidence of the appellants’ involvement in the first cannabis crop as gardeners (and guilt on Count 1) was admissible under s 34P(2)(a) in proof of Count 2 for improbability reasoning. 3. The trial judge’s directions as to the permissible and impermissible uses of the discreditable conduct evidence of Count 1 in proof of Count 2 adequately complied with s 34R of the Evidence Act. 4. As to Mr Cirillo, the evidence of the Karoonda property was admissible pursuant to s 34P(2)(a) of the Evidence Act (in proof of both Counts 1 and 2). 5. The trial judge’s directions as to the permissible and impermissible uses of the evidence of the Karoonda property were not inadequate and complied with s 34R of the Evidence Act. Held, per S Doyle JA (Stanley JA agreeing, David JA dissenting) allowing the appeals of Mr Kouvaris and Mr Giannini on Count 2: 6. The circumstantial evidence against Mr Kouvaris and Mr Giannini in proof of Count 2 is insufficient to support a finding of guilt beyond reasonable doubt. The verdicts are unreasonable and not supported by the evidence. 7. The convictions on Count 2 (as against Mr Kouvaris and Mr Giannini) are set aside and verdicts of acquittal entered. Held, per David JA (Stanley JA agreeing, Doyle JA dissenting) dismissing Mr Cirillo’s appeal insofar as it challenges his conviction on Count 2: 8. It was open to the jury to find that Mr Cirillo was involved as a ‘gardener’ in the cultivation of the cannabis plants at the second crop site (the subject of Count 2) by deploying improbability reasoning. Mr Cirillo’s conviction on Count 2 was not unreasonable. Controlled Substances Act 1984 (SA) s 33B(1); Evidence Act 1929 (SA) ss 34P, 34R, referred to. Catanzariti v The Queen [2021] SASCA 110; Collins v The Queen [2020] SASCFC 96; Dansie v The Queen (2022) 274 CLR 651; De Marci v The King [2024] SASCA 49; Ivan Lukaj v The King [2022] SASCA 135; Gue v Dental Board of Australia [2026] SASC 11; Heng v The King [2025] SASCA 57; Hirst v Police (2006) 95 SASR 260; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Perara-Cathart v The Queen (2017) 260 CLR 595; Pfennig v The Queen (1995) 182 CLR 461; Rolland v The Queen [2020] SASCFC 106; R v Forest (2016) 125 SASR 319; R v C, CA [2013] SASCFC 137; R v Macfie [2002] VSCA 51; R v Maiolo (No 2) (2013) 117 SASR 1; R v MJJ; R v CJN (2013) 117 SASR 81 ; R v Palaga (2001) 80 SASR 19; R v Tran [2017] SASCFC 99; R v ZT (2025) 281 CLR 137; Sadler v The King (2023) 144 SASR 153; Salgado v The Queen [2022] NSWCCA 58; Sutton v The Queen (1984) 152 CLR 528, considered. -- 2 of 55 -- KOUVARIS, CIRILLO & GIANNINI v THE KING [2026] SASCA 48 1 S DOYLE JA: I gratefully adopt David JA’s summary of the background facts and circumstances relevant to this appeal, including the prosecution and defence cases in respect of each appellant. I will endeavour to keep my repetition of these matters to the minimum necessary to explain my reasons. 2 As David JA has explained, the appellants were each found guilty by a jury of two counts of cultivating a large commercial quantity of cannabis in the period between December 2019 and March 2020. The convictions related to two cannabis crops grown outdoors, located about 1.27 kilometres apart in dense scrubland on a property in Coonalpyn (being Crops 1 and 2, and relating to Counts 1 and 2 respectively). There were some similarities in the cultivation set up for each crop. It was not alleged that any of the appellants were involved in establishing the cannabis cultivations. The only issue at trial as against each appellant was their identity as a gardener; that is, whether the relevant appellant was one of the gardeners for Crops 1 and 2, in the sense that he was involved in nurturing, tending or growing the cannabis plants in those crops. The prosecution case 3 The prosecution case was that Crops 1 and 2 were tended to by the same team of gardeners, comprising the appellants and two other men (Mr Andriano and Mr Ierace, who pleaded guilty to both cultivation offences prior to trial). 4 As set out in detail in David JA’s reasons, the evidence at trial included surveillance evidence of the appellants’ attendance at Crop 1 on 11 March 2020 (‘the surveillance evidence’).1 There was also a significant body of other evidence probative of the appellant’s involvement in cannabis cultivation, such as their acquisition and possession of items or equipment commonly used for this purpose (‘the equipment evidence’). This equipment included shoes with traces of soil linking them to the area where Crops 1 and 2 were located. There was also safe-t-cam and telephone tower evidence in relation to vehicles and mobile phones linked to the appellants (‘the vehicle and phone evidence’) which was probative of each of them making a number of trips to the area where Crops 1 and 2 were located during the charged period. 5 Although the surveillance evidence directly linked the appellants to Crop 1, the equipment, vehicle and phone evidence was more general in nature. It was probative of involvement in a cultivation in the areas of Crops 1 and 2, but was not directly probative of involvement in one of those crops as opposed to the other. Put differently, and having regard to the surveillance evidence directly linking the appellants to Crop 1, if the jury were to accept that the appellants were involved as gardeners for Crop 1, that was capable of explaining all of the equipment, 1 Noting that the surveillance did not show Mr Kouvaris leaving the vehicle in which the appellants drove to the site of Crop 1. -- 3 of 55 -- [2026] SASCA 48 S Doyle JA 2 vehicle and phone evidence.2 That evidence was not directly probative of their involvement in Crop 2 in addition to, or as opposed to, Crop 1. 6 In seeking to prove its case against the appellants in respect of Crop 2, the prosecution sought to rely upon the appellants’ involvement in the cultivation of Crop 1 as probative of their involvement in the cultivation of Crop 2. Approached in this way, the evidence of involvement in the cultivation of Crop 1 was evidence of discreditable conduct (for the purposes of s 34P of the Evidence Act 1929 (SA)) in the prosecution case against the appellants in respect of Crop 2. Although the prosecution had, prior to trial, sought to rely upon this evidence for both a propensity and non-propensity purpose, the judge ruled that it was only admissible for the latter purpose. 7 The non-propensity purpose for which the evidence in relation to Crop 1 was admitted was described in terms of ‘improbability’ reasoning. It was said to invoke reasoning which involved two interrelated steps or stages. 8 The first step in the reasoning process was that the similarities in (i) the location of the two crops (both being located in a remote rural area, but close to each other and on the same property), and (ii) the set up of the two crops (including being randomly planted crops of a similar scale, and using similar fencing, camouflaging and other equipment), were strongly probative of the two crops having been established or organised by the same person or persons. 9 The second step in the reasoning process was that, if the two crops were established or organised by the same person or persons, then it was improbable that they would use different gardeners for both crops. Given the remote yet proximate location of the two crops, and that the gardeners for Crop 1 were apparently regarded by the organiser(s) as appropriately skilled and trustworthy, their involvement in the cultivation of Crop 1 was probative of their involvement in Crop 2. 10 As against Mr Cirillo, the prosecution also relied upon the evidence of his involvement with a further cannabis cultivation in Karoonda, some 75 kilometres from Crops 1 and 2 and on a property owned by Mr Cirillo. The evidence of this Karoonda cultivation was relied upon as probative of Mr Cirillo’s involvement as a gardener for both Crops 1 and 2. It was said to have two non-propensity uses. The first involved similar improbability reasoning as that described above; that is, reasoning to the effect that the similarities between the Karoonda cultivation and Crops 1 and 2 were such as to suggest that they were established by the same organiser(s), making it improbable that there were different gardeners and hence that Mr Cirillo was not a gardener for Crops 1 and 2. The second non-propensity use of this evidence was that it was probative of Mr Cirillo having a familiarity 2 Subject to the potential qualifications to this proposition addressed later in these reasons. -- 4 of 55 -- [2026] SASCA 48 S Doyle JA 3 and experience with, and hence the knowledge and capacity, to grow and tend to an outdoor cannabis crop. 11 As mentioned, the balance of the detail of the prosecution and defence cases at trial has been summarised in the reasons of David JA, and need not be repeated in these reasons. 12 On appeal, the issues for determination may be summarised as follows: • the admissibility of the evidence of the appellants’ involvement in Crop 1 as probative of their involvement in Crop 2; • the admissibility of the evidence of Mr Cirillo’s involvement in the Karoonda cultivation as probative of his involvement in Crops 1 and 2; • the adequacy of the judge’s directions as to the use of this evidence of discreditable conduct for the purposes of s 34R of the Evidence Act;3 • whether Mr Kouvaris’ conviction for Crop 1 was unreasonable; and • whether the appellants’ convictions for Crop 2 were unreasonable. 13 For the reasons which follow, I agree with David JA that the evidence of the appellants’ involvement on Crop 1 was admissible as probative of their involvement in Crop 2, and that the evidence of Mr Cirillo’s involvement in the Karoonda cultivation was admissible as probative of his involvement in Crops 1 and 2. I also agree with her Honour that Mr Kouvaris’ conviction in relation to Crop 1 was not unreasonable. 14 However, for the reasons I shall give, I have accepted the appellants’ submission that the jury’s verdicts of guilty in relation to Crop 2 were unreasonable. Whilst probative of the appellants’ involvement in Crop 2, I do not think the appellants’ involvement in Crop 1 was sufficient to establish that involvement beyond a reasonable doubt. And I do not think the additional evidence (namely, the cultivation equipment, vehicle and phone evidence, and, in the case of Mr Cirillo, the evidence of his involvement in the Karoonda cultivation) added much. Even in combination with the evidence of the appellants’ involvement in Crop 1, I do not think this evidence was sufficient to establish the appellants’ involvement as gardeners of Crop 2 beyond a reasonable doubt. 15 It follows that I would allow the appellants’ appeal against their convictions for the cultivation of Crop 2, and enter acquittals in respect of those charges. 3 Including not only all appellants’ complaints about the directions as to the impermissible use of the evidence of involvement in Crop 1, but also Mr Cirillo’s complaint about the directions relating to the evidence of his involvement with the Kooranda property, and Mr Kouvaris’ complaint about the evidence of his act of driving the appellants to Crop 1 on 11 March 2020. -- 5 of 55 -- [2026] SASCA 48 S Doyle JA 4 16 In these circumstances it is not necessary for me to express a concluded view as to the adequacy of the judge’s directions as to the use of the evidence of the appellants’ involvement as gardeners for Crop 1 in proof of their involvement as gardeners for Crop 2. As I shall nevertheless explain, despite a difficulty with those directions (relating to the narrow terms in which her Honour described the impermissible use of that evidence), I am inclined to think that they were, in all the circumstances, adequate. Although there was a similar difficulty with the judge’s directions as to the use of the evidence of Mr Cirillo’s involvement in the Karoonda cultivation in proof of his involvement in Crops 1 and 2, I am not persuaded that they involved any material contravention of s 34R of the Evidence Act or miscarriage of justice. 17 It follows that I would set aside the appellants’ convictions for the cultivation of Crop 2, and enter acquittals for each appellant on Count 2. However, I would otherwise dismiss their appeals. Admissibility of cultivation of Crop 1 as probative of cultivation of Crop 2 18 The terms of s 34P of the Evidence Act have been set out in David JA’s reasons. 19 When it is sought to be led for a non-propensity use or purpose, the admissibility of evidence of discreditable conduct depends upon a conclusion that its probative value in that use outweighs any prejudicial effect it may have on the defendant (s 34P(2)(a)). 20 As explained above, the evidence of the appellants’ involvement in the cultivation of Crop 1 was led as probative of a species of ‘improbability’ reasoning in relation to the charge relating to Crop 2. 21 Although sometimes a useful label, reference to ‘improbability’ reasoning can be unhelpful.4 Care must be taken to identify with precision the process of reasoning to be invoked and, in particular, what it is that is said to be made improbable by the evidence of discreditable conduct.5 This intended use must then be considered by reference to the issue in the case in relation to which the evidence is said to be probative. Only then can the probative value of the relevant use be assessed, and a determination be made of whether that probative value outweighs any prejudicial effect on the defendant. 22 In one sense, all circumstantial evidence involves some form of improbability reasoning. Circumstantial evidence is only relevant if it rationally affects the probability of a fact in issue; that is, if it makes the existence or occurrence of that fact more probable than it might otherwise be; or it makes the existence of some alternative to that fact less probable, or more improbable. However, there are several well-recognised categories of cases in which the courts have acknowledged 4 Lukaj v The King [2022] SASCA 135 at [58] (Livesey P, Lovell and Bleby JJA). 5 Gue v Dental Board of Australia [2026] SASC 11 at [90] (B Doyle J). -- 6 of 55 -- [2026] SASCA 48 S Doyle JA 5 the probative value of evidence of discreditable conduct for an ‘improbability’ use.6 23 One of those categories which bears some resemblance to the reasoning relied upon in the present case is the category of cases in which evidence of discreditable conduct is relied upon as rendering improbable a coincidence or other innocent explanation for some association or connection between two events or sets of circumstances. In rendering the coincidence or other innocent explanation improbable, the evidence is probative of the accused’s guilt. Depending on the probative force of the evidence in this use, it may, in combination with the rest of the evidence in the case, go as far as establishing the relevant fact in issue beyond a reasonable doubt. It may negate or disprove any innocent explanation, and hence prove the accused’s guilt. 24 Improbability reasoning of this kind does not rely upon a propensity on the part of the accused to engage in the relevant type of behaviour, but it may ultimately establish or reveal a propensity. As McHugh J explained in Pfennig v The Queen:7 Makin is the classic example. It was a case involving objective probability reasoning, not propensity reasoning. The propensity of the accused to kill the babies was only established by the conclusion that it was probable to the point of certainty that so many babies including the baby the subject of the indictment could not have died by accident. Accordingly, they must have been murdered by the Makins. It was the verdict that established the accused’s propensity. 25 Similar reasoning has been deployed in numerous other cases, in quite different and disparate factual circumstances. 26 For example, in R v Forrest,8 the appellant was charged with offences relating to three separate home invasions, in Valley View, Ottoway and Woodville. The appellant pleaded guilty to the Valley View home invasion and, relying upon the similarities between the three home invasions, the prosecution argued that it was improbable that there was any innocent explanation for the evidence connecting the appellant to the other home invasions. In explaining the permissible use of the evidence of the Valley View home invasion as probative of the appellant’s guilt of the other two home invasions, Kourakis CJ said:9 The proper use for which the evidence was admissible was to circumstantially prove the identity of the appellant as one of the offenders in the Ottoway and Woodville Gardens home invasions. The evidence that the appellant committed the offences at Valley View circumstantially proved his involvement in the offences in the Ottoway home invasion because the Valley View address appeared on the licence stolen in the Ottoway home 6 R v C, CA [2013] SASCFC 137 at [77] (Kourakis CJ, Anderson J agreeing); Rollond v The Queen [2020] SASCFC 106 at [42]-[54] (Peek J, Hughes J agreeing); Gue v Dental Board of Australia [2026] SASC 11 at [91] (B Doyle J). 7 Pfennig v The Queen (1995) 182 CLR 461 at 531(McHugh J) (citations omitted). 8 R v Forrest (2016) 125 SASR 319. 9 R v Forrest (2016) 125 SASR 319 at [47] (Kourakis CJ, Kelly and Lovell JJ agreeing). -- 7 of 55 -- [2026] SASCA 48 S Doyle JA 6 invasion and was committed just one hour and 40 minutes later. The same evidence tended to prove the appellant’s involvement in the Woodville Gardens home invasion, because the same gun and a similar four-wheel drive vehicle were used in the Ottoway and Woodville Gardens home invasions. Finally, the appellant was connected in one way or another to items stolen from all three home invasions. 27 By way of further example, in Lukaj v The King,10 the appellant brothers (Emiljan and Ivan Lukaj) were jointly charged with cultivation and trafficking offences arising out of cannabis crops at six grow houses located in suburban properties (Counts 2 to 9). Emiljan Lukaj alone was charged with a cultivation offence in respect of a further grow house (Count 1). The Court of Appeal upheld the general cross-admissibility, in the case against Ivan Lukaj, of the evidence of each grow house in proof of the offences alleged in respect of the other grow houses. The permissible use of the evidence involved a form of improbability reasoning, namely that the evidence made a coincidental or innocent involvement with the other grow houses improbable.11 The Court explained:12 The prosecution case generally was that each grow house featured a number of similarities – not all of which could be dismissed as generic – and that the other categories of evidence linking Ivan to each property, taken as a whole, was such that innocent association with the grow houses or the trafficked cannabis was highly improbable. Other evidence included the fact that each property was rented by the same person, identified as Emiljan by the owners of four of the seven properties, as well as the various pieces of forensic evidence linking Ivan to the properties and the location of the forensic evidence within those properties. … … That evidence was relevant when assessing the likelihood of there being an innocent explanation for the forensic evidence located at the various grow houses. 28 There was a qualification to this general cross-admissibility and use of the evidence of the various grow houses in that way. It arose from the fact that there was no forensic evidence linking Ivan Lukaj to the grow house the subject of Count 9. This posed a difficulty both in using the evidence in relation to this grow house as probative of Ivan Lukaj’s involvement with the other grow houses, and in sustaining the conviction of Ivan Lukaj for Count 9.13 Whilst accepting that the evidence of the other grow houses was admissible as probative of some involvement with the grow house the subject of Count 9, the Court held that it was not sufficient to establish that Ivan Lukaj played a role in the cultivation of the cannabis found in that grow house. 29 In holding that the verdict of guilty in relation to Count 9 was unreasonable, the Court explained:14 10 Lukaj v The King [2022] SASCA 135. 11 Lukaj v The King [2022] SASCA 135 at [50] (Livesey P, Lovell and Bleby JJA). 12 Lukaj v The King [2022] SASCA 135 at [53]-[55] (Livesey P, Lovell and Bleby JJA). 13 Lukaj v The King [2022] SASCA 135 at [69]-[75] (Livesey P, Lovell and Bleby JJA). 14 Lukaj v The King [2022] SASCA 135 at [173] (Livesey P, Lovell and Bleby JJA). -- 8 of 55 -- [2026] SASCA 48 S Doyle JA 7 The evidence relating to Count 9 is different to that relating to Counts 2-8. Ivan was not charged, understandably, with Count 1. In relation to Count 1, while his fingerprint was found on a document located at the premises, there was, like Count 9, no evidence capable of demonstrating what role he played in the cultivation. While the premises the subject of Counts 8 and 9 were next door to each other, the cultivations were not treated as if they were one cultivation but were charged separately. Like Count 1, there was no evidence from which the jury could find what particular role Ivan played in that cultivation. We accept the appellant’s submission that the jury could only arrive at a finding of guilt by propensity reasoning. The conviction on this Count is unreasonable and not capable of being supported by the evidence. We would enter an acquittal on this Count but only in relation to Ivan. 30 Importantly, in the examples where the above style of improbability reasoning has been successfully invoked, there was evidence linking or connecting the defendant to the charged incident or occasion. The issue was whether an innocent explanation for that link or connection was a reasonable possibility. The evidence of discreditable conduct on another occasion was relied upon as probative of, in the sense of tending to make less probable, and hence tending to negate or disprove, that innocent explanation. As it involves receiving evidence as probative of the improbability of an innocent explanation, this style of reasoning is aptly described as improbability reasoning. 31 However, as Peek J emphasised in Rollond v The Queen,15 it is critical to improbability reasoning of this style that there is (other) evidence linking or connecting the defendant to the charged incident or occasion. Improbability reasoning is not available, or does not operate in the same way, where there is no (other) evidence linking or connecting the defendant to the charged incident. That was the difficulty in relation to Count 9 in Lukaj v The King. 32 A similar difficulty with improbability reasoning arises in the present case. As elaborated upon below, whilst there was a significant body of evidence linking or connecting the appellants to involvement in the cultivation of a crop or crops in the area of Crops 1 and 2, there was no evidence which was directly probative of their involvement in the cultivation of Crop 2 in particular, or in the cultivation of Crop 2 in addition to, or as opposed to, Crop 1. Properly understood, the evidence of discreditable conduct in the present case (being evidence of involvement in the cultivation of Crop 1) was not led in order to negate or disprove an innocent explanation for evidence tending to link or connect the appellants to Crop 2. Rather, it was led as probative of that link or connection; that is, as probative, as against each appellant, of their involvement as a gardener in the cultivation of Crop 2. 33 At this point, it is useful to restate the probative reasoning that was sought to be invoked in the present case. As explained, the issue in the present case against each of the appellants in respect of Crop 2 was one of ‘identity’; that is, whether the relevant appellant was one of the gardeners involved in tending to Crop 2. The reasoning process sought to be invoked involved two steps. The first was that the 15 Rollond v The Queen [2020] SASCFC 106 at [51] (Peek J, Hughes J agreeing). -- 9 of 55 -- [2026] SASCA 48 S Doyle JA 8 similarities in (i) the location of the two crops (both being located in a remote rural area, but located close to each other and the same property), and (ii) the set up of the two crops (including being randomly planted crops of a similar scale, and using similar fencing, camouflaging and other equipment), were strongly probative of the two crops having been established or organised by the same person or persons. The second step in the reasoning process was that, if the two crops were established or organised by the same person or persons, then it was improbable that they would use different gardeners for both crops. Given that the two crops were located remotely yet close to each other, and that the gardeners for Crop 1 were regarded by the organiser(s) as trusted and skilled, their involvement in the cultivation of Crop 1 was probative of their involvement in Crop 2. 34 In my view, this was an entirely valid and available reasoning process. And it was capable of being described as a form of improbability reasoning. However, the improbability upon which it depended was not the improbability of an innocent explanation for an established connection; it was the improbability of the organiser(s) of Crop 2 using different gardeners from that crop, and hence the relevant appellant not being a gardener for Crop 2. 35 Understood in this way, the style of reasoning is quite different from the reasoning invoked in the other authorities to which I have referred. Whilst it is not inaccurate to describe it as improbability reasoning, use of this label risks confusion, or risks analysis by reference to false or unhelpful analogies. The reasoning process is, in my view, better expressed in positive terms. It involves using an appellant’s involvement as a gardener for Crop 1 as probative of, or as increasing the probability of, that appellant’s involvement as a gardener for Crop 2. In other words, the reasoning is that the similarities between the two crops are probative of common organisers; and the existence of common organisers is in turn probative of a common team of gardeners. An established involvement of one of the appellants as a gardener for Crop 1 thus makes it more likely, or more probable, that he was involved in a similar way as a gardener for Crop 2. 36 In my view, there is no doubt that the evidence of an appellant’s involvement as a gardener in the cultivation of Crop 1 was probative in this way of his involvement as a gardener in the cultivation of Crop 2. It was rationally capable of increasing the probability of that involvement. It was capable of doing so because both steps in the identified reasoning process had a basis in the evidence. 37 As to the first step, there were sufficient similarities in the location and set up of the two crops to make it highly likely, indeed almost certain, that they were established or organised by the same person or persons. Even accepting that some of the identified similarities were somewhat generic, and potentially common to outdoor cannabis cultivations, they were sufficient to link the two crops at an organisational level. Indeed, their proximate location on a commonly owned remote property was probably sufficient for this purpose. -- 10 of 55 -- [2026] SASCA 48 S Doyle JA 9 38 As to the second step, I accept that there was an inherent likelihood that the organiser(s) of Crop 1, being satisfied that each appellant was appropriately trustworthy and skilled to be a gardener for Crop 1, would also be satisfied that that appellant was appropriately trustworthy and skilled to be a gardener for Crop 2. In addition to this, given that Crop 2 was remote in location but close to Crop 1, and that it is likely that the organiser(s) had some incentive to keep knowledge of their cultivation operations to a limited number of people, it seems to me that the evidence of the relevant appellant’s involvement as a gardener for Crop 1 had a strong probative value in determining whether each appellant was a gardener for Crop 2. 39 That said, there were some considerations that tended to limit the probative value of this evidence. The first is that, even accepting that there was likely to have been some incentive for the organiser(s) to use the same gardeners for Crop 2 as Crop 1, it is difficult to know how strong this incentive would be. It can be said with some force that there might have been a countervailing incentive to confine (or ‘silo’) knowledge of the individual crops so as to reduce the risk of the detection of one crop resulting in the detection of the other crop. In this context, it is important to bear firmly in mind that the prosecution case against each appellant was only that he was a gardener or worker for the two crops. If the prosecution case, and evidence, had suggested some higher level of involvement, then the probability of involvement with both crops would likely have been higher. 40 Further, even accepting some likelihood of a common organiser using the same gardeners, but consistent with there also being some incentive to ‘silo’ knowledge, it may be more accurate to say that it was highly likely that the organiser(s) would use some of the same gardeners, but not necessarily all of them, for both crops. The organiser(s) might use some of the particularly trusted workers for both, but might confine some of their newer or less trusted workers to gardening for only one of the crops. There may be other reasons for confining a particular worker to gardening for one crop rather than both crops. 41 This potential for some quarantining of knowledge, or for some other reason for a difference in the gardening teams for each crop, is consistent with the surveillance evidence in relation to the appellants’ attendance at only Crop 1 on 11 March 2020. It is noteworthy that, despite leaving the area mid-afternoon, and well before they ran out of daylight, it does not seem that any of the appellants attended or worked on Crop 2 on that occasion. 42 It is also relevant in this context to make two further observations. The first is that it is apparent from the evidence (in particular, the evidence that police officers attending Crop 1 did not locate Crop 2) that even though they were relatively close to one another, the intervening dense scrubland was such that Crop 2 was not able to be seen from Crop 1. Nor would it seem that these two crops were physically connected by any obvious track or pathway. -- 11 of 55 -- [2026] SASCA 48 S Doyle JA 10 43 The second observation is that even though there were sufficient similarities between the two crops to establish common organisers, the evidence did not reveal any similarities that tended to establish common gardening teams. The similarities were related to the establishment and infrastructure of the two crops, rather than matters (such as common gardening practices or techniques) which might be more directly probative of common gardeners. Certainly there was nothing about the two crops that was suggestive of identical gardening teams as opposed to some overlap in the gardening teams. 44 In any event, the important point is that, even if there was a very strong probability of at least some overlap in the team of gardeners used for Crops 1 and 2, I am not persuaded that there was a strong probability of the organiser(s) using identical teams. Once allowance is made for the possibility of overlapping gardening teams, without there necessarily being an identity in those teams, it seems to me that this operates as something of a limit, or handbrake, on the probative force of the involvement of any particular appellant as a gardener for Crop 1. 45 In addressing admissibility, the next issue to consider is the risk of prejudice to the appellants from the admission of evidence of their involvement as a gardener for Crop 1 as probative of their involvement as a gardener for Crop 2. Even accepting, as I do, that the evidence was strongly probative in the described use, it is necessary for the purposes of s 34P(2)(a) of the Evidence Act to be satisfied that its probative value for this use ‘outweigh[ed] any prejudicial effect it may have’ on the relevant appellant. 46 As David JA has explained, the risk of prejudice in the present case arose from the potential negativity that multiple allegations may engender towards an accused person, and the related potential for this to distract the jury from a close analysis of any weaknesses or limitations in the prosecution case. Whilst it must be accepted that there was some risk of such prejudice in the present case, I am satisfied that, with appropriate directions, this prejudice was limited. 47 In my view, the probative force of the evidence of each appellant’s involvement as a gardener for Crop 1 outweighed the prejudice to that appellant associated with the admission of that evidence. It follows that I would reject each appellant’s challenge to the admissibility of the evidence of his involvement as a gardener for Crop 1 in the case against that appellant in relation to Crop 2. 48 As for whether the probative force of that evidence was sufficient, in combination with the balance of the evidence against each appellant, to sustain their convictions for the cultivation of Crop 2, that is a separate matter. It is a matter which falls to be considered in the context of the appellants’ challenge to their convictions on the basis that they were unreasonable and unable to be supported by the evidence. -- 12 of 55 -- [2026] SASCA 48 S Doyle JA 11 49 However, before embarking upon consideration of that challenge, it is necessary to mention some additional issues raised on behalf of Mr Cirillo and Mr Kouvaris respectively. Admissibility of Mr Cirillo’s involvement with the Karoonda cultivation 50 As detailed in David JA’s reasons, the prosecution relied upon a body of evidence in relation to an apparently recently removed cannabis cultivation on Mr Cirillo’s Karoonda property. There were some similarities between the set up of this cultivation and the cultivations referred to above as Crops 1 and 2 (being essentially their remote rural location, and their use of similar perimeter fencing, water tanks, irrigation system, tarpaulins and camouflaging). 51 As David JA has explained, the evidence of the Karoonda cultivation was relied upon by the prosecution for two purposes. The first involved equivalent two-staged ‘improbability’ reasoning to the reasoning outlined above. The second involved use of the evidence of the Karoonda cultivation as establishing a familiarity and experience with the cultivation of cannabis, and hence the knowledge and capacity to grow and tend to an outdoor cannabis crop.16 These two purposes were said to be circumstantially probative of Mr Cirillo’s involvement as a gardener for Crops 1 and 2. 52 I accept that the similarities (particularly given their different locations) between the Karoonda cultivations and Crops 1 and 2 were not as significant as the similarities between Crops 1 and 2. However, I agree with David JA’s reasons for concluding that the evidence of Mr Cirillo’s involvement in the Karoonda cultivation had sufficient probative value for these two purposes, at least in combination, for that evidence to be admissible under s 34P(2)(a) as probative of Mr Cirillo’s involvement as a gardener in Crops 1 and 2. 53 I will address Mr Cirillo’s challenge to the adequacy of the judge’s directions in relation to the permissible and impermissible uses of the evidence of the Karoonda cultivation later in these reasons. Mr Kouvaris’ conviction for Crop 1 not unreasonable 54 The surveillance evidence from the appellants’ trip to Coonalpyn on 11 March 2020 suggested that Mr Kouvaris was the driver. However, it did not suggest that Mr Kouvaris left the vehicle he was driving or otherwise attended Crop 1 with the other appellants (and Mr Andriano and Mr Ierace). 55 Mr Kouvaris makes two complaints arising out of his role as the driver on 11 March 2020. 56 The first is that the judge erred in failing to treat this as evidence of discreditable conduct under s 34P, and hence in failing to give directions as to the permissible and impermissible uses of this evidence. I agree with David JA’s 16 De Marchi v The King [2024] SASCA 49 at [10]-[11] (Kourakis CJ, Bleby and David JJA). -- 13 of 55 -- [2026] SASCA 48 S Doyle JA 12 reasons for rejecting this complaint. I am not satisfied that this conduct was discreditable in the relevant sense. This was so either because, when viewed in isolation, it was not conduct of a sufficient quality or seriousness to warrant characterisation as discreditable in the relevant sense;17 or because, when viewed in the context of the case as a whole, it was not evidence of conduct which was sufficiently separate from the charged offending as to attract separate treatment under s 34P.18 Further, and in any event, the fact that no-one suggested at trial that the evidence of Mr Kouvaris’ driving warranted separate attention in the way now contended supports the conclusion that, having regard to the nature of the forensic contest at trial, such directions were not necessary. 57 The second complaint made by Mr Kouvaris arising out of his role as the driver on 11 March 2020 is that, in circumstances where there was no evidence of him acting as a gardener for Crop 1 on that occasion, the jury’s verdict of guilty in relation to the Count 1 allegation of his cultivation of Crop 1 was unreasonable. I agree with David JA’s reasons for rejecting this complaint, and have nothing to add to her Honour’s analysis of that issue. Appellants’ convictions for Crop 2 were unreasonable 58 The principles governing a challenge to a verdict on the basis it is unreasonable are settled and well known. As explained by David JA, they remain as enunciated by the High Court in M v The Queen.19 I adopt her Honour’s summary of those principles. 59 I would, however, emphasise the circumstantial nature of the case against the appellants in relation to their cultivation of Crop 2. There were no significant issues as to the credibility or reliability of any witnesses. The jury had little, if any, advantage in considering the strength of the prosecution case. 60 As the High Court explained in Dansie v The Queen,20 in a case where the evidence is substantially circumstantial, the appellate court’s task of undertaking an independent assessment of the evidence requires that it weigh all of the circumstances in deciding whether it was open to the finder of fact to draw the ultimate inference that guilt has been proved to the criminal standard. And the task requires that the appellate court, in so doing, form its own judgment as to whether the prosecution has failed to exclude an inference consistent with innocence that was open as a reasonable possibility.21 In a case, such as the present, where the jury had no significant advantage, there is little scope for this Court to reason that any doubt which it might experience was capable of being resolved by reference to the jury’s advantage in having seen and heard the witnesses give evidence, or in having considered the evidence in the context of the trial as it unfolded. 17 Sadler v The King (2023) 144 SASR 153 at [27] (Doyle JA, Bleby JA agreeing). 18 Heng v The King [2025] SASCA 57 at [53]-[62] (Livesey P, S Doyle and Stanley JJA). 19 M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ). 20 Dansie v The Queen (2022) 274 CLR 651. 21 Dansie v The Queen (2022) 274 CLR 651 at [12] (the Court). -- 14 of 55 -- [2026] SASCA 48 S Doyle JA 13 61 Turning to the evidence relied upon by the prosecution in support of the Count 2 allegation that each of the appellants was a gardener for Crop 2, a convenient starting point is the cross-admissible evidence of their involvement as gardeners for Crop 1. In earlier addressing the cross-admissibility of this evidence, I described it as strongly probative of each appellant’s involvement as a gardener for Crop 2. Its probative force derived from the two step process of reasoning outlined earlier in these reasons. 62 Whilst accepting the strong probative value of this evidence, I have also explained why I consider that there was a limit to, or handbrake on, its probative value. This arose from the consideration that even if, for the reasons explained, there was a strong probability of some overlap in the gardeners used for the two crops, it was not clear that there was an equivalent probability that there would be an identity between the two teams of gardeners. It seems to me that there was at least a reasonable possibility in respect of each appellant, that he might have been a gardener for Crop 1 but not Crop 2. There was some potential support for this hypothesis in the fact that the surveillance evidence from the appellants’ attendance at Crop 1 on 11 March 2020 did not reveal any attendance by them upon Crop 2, despite the appellants being in the area and finishing their work on Crop 1 during daylight hours. 63 For these reasons, even accepting the jury’s conclusion that each of the appellants was involved as a gardener for Crop 1, I am not satisfied that the ‘improbability’ reasoning relied upon by the prosecution was sufficient to establish beyond reasonable doubt the involvement of any individual appellant as a gardener for Crop 2. 64 It is appropriate then to turn to the balance of the evidence in the prosecution case. Whilst there was a good deal of evidence probative of each of the appellants working as a gardener in a cannabis cultivation in the area of Crops 1 and 2 (which I have referred to compendiously as the equipment, vehicle and phone evidence), the difficulty is that none of this evidence was directly probative of the involvement of any of the appellants as a gardener for Crop 2 as opposed to Crop 1. The evidence was all potentially explicable by the appellants’ involvement as gardeners of Crop 1. 65 Certainly there was no evidence directly and clearly linking any of the appellants to Crop 2. In this sense, the position of the appellants in relation to Crop 2 is analogous to the position of the appellant in Lukaj v The King in relation to the grow house the subject of Count 9. 66 It seems to me that the only prospect of taking the evidence further than I have suggested was to rely upon the detail of the vehicle and phone evidence. The effect of that evidence has been set out in David JA’s reasons. It was probative of each of the appellants having made multiple trips to the relevant area during the charged period of approximately three months. In particular, and whilst there is some room for differing interpretations of the evidence, it suggested that each of -- 15 of 55 -- [2026] SASCA 48 S Doyle JA 14 the appellants travelled to that area between about eight and 14 times. It also suggests that Mr Adriano made a number of trips during the same period, and that Mr Ierace made at least one trip. Although there appear to have been at least a couple of occasions (in addition to 11 March 2020) when all of the appellants travelled together to that area, on most occasions they appear to have travelled in varying smaller combinations of one, two or three. They appear on each occasion to have travelled in vehicles connected with Mr Cirillo or Mr Kouvaris. 67 At first blush, this appears to be a significant body of circumstantial evidence. Certainly it is consistent with each of the appellants making multiple trips to each of Crops 1 and 2, and it is at the very least evidence of each of the appellants having had ample opportunities to works as gardeners for both of those crops. Upon closer examination, however, the probative force of this evidence in support of any individual appellant being involved as a gardener for Crop 2, as opposed to Crop 1, is elusive. 68 The difficulty arises from both the lack of any evidence as to the amount of work that might be involved in maintaining a cultivation of the nature and scale of Crops 1 and 2, and the uncertainty associated with the limitations upon the vehicle and phone evidence. 69 As to the former, whilst approximately weekly trips to the relevant area might appear to be a significant number of trips, there was no evidence as to the extent or frequency of work required to tend to the cultivation of a cannabis crop of the size and nature of Crop 1. Understood in this context, the evidence does not permit any inference that the attendances evidenced by the vehicle and phone evidence were, for example, in excess of what might reasonably have been required for just Crop 1. There was no evidence, for example, that it was not necessary or usual for an outdoor cannabis crop to be tended to on an approximately weekly basis. Further, even if an inference could be drawn that some of the detected trips to the Coonalpyn area must have been to tend to Crop 2, there is of course no way of knowing which one or more of those trips was for that purpose. And given that the appellants appear generally to have travelled in smaller and mixed groups, there remains no firm basis for inferring that any particular individual attended on an occasion when they tended to Crop 2. 70 As to the latter, there is uncertainty associated with the limitations upon the vehicle and phone evidence. On the one hand, this evidence may not be complete even insofar as it relates to the appellants. It is not clear, for example, whether the appellants might have attended on other occasions – either in cars that were not detected in the safe-t-cam information, or on occasions when one or more of the appellants did not carry the phone connected with them, or had his phone turned off. On the other hand, there may also have been other people travelling with one or more of the appellants on some of the trips to the area of Crops 1 and 2 that were detected. There may also have been trips to Crops 1 or 2 by people not including any of the appellants. -- 16 of 55 -- [2026] SASCA 48 S Doyle JA 15 71 It is of course possible that on one or more of the detected trips to the area, the relevant sub-group of the appellants carried out gardening work on both crops. On the occasions when their vehicles were detected travelling in both directions, it would seem that there was generally enough time for them to have done so. However, I do not think that it can safely be inferred that this happened at all, let alone on most or all of the detected occasions. In this respect it is relevant to bear in mind the evidence that, despite being in the location for several hours on 11 March 2020, there was no indication that the appellants attended Crop 2. It was also apparent from the fact that police did not discover the existence of Crop 2 when first attending at Crop 1, that the two were not visible, or obviously accessible, from each other. 72 In summary, the more closely one scrutinises the evidence, and considers the possibilities, the more clear it becomes that it is not possible to say with any confidence who was involved in the cultivation of Crop 2. Starting from the premise that each of the appellants were gardeners for Crop 1, I am not satisfied that it was proven beyond a reasonable doubt that any particular appellant was a gardener for Crop 2. Whilst the fact of their role as a gardener for Crop 1, in combination with the number and frequency of their visits to the area, supports an inference that some or all of the appellants were probably also gardeners for Crop 2, in the absence of any evidence directly linking any of them to Crop 2, I am not satisfied that it was open to conclude beyond a reasonable doubt that any particular appellant was a gardener for that crop. Put another way, I am not satisfied that the evidence went as far as to exclude, as a reasonable possibility as against each appellant, that he was only a gardener for Crop 1 and not a gardener for Crop 2. 73 It may be accepted that the prosecution case in relation to Crop 2 was strongest against Mr Cirillo. Not only did the evidence suggest that he attended the area on the most occasions during the charged period, but also there was the additional probative value associated with the evidence of his involvement with the Koorandra crop. However, whilst that evidence was of some general circumstantial relevance, I do not regard that evidence as having much direct probative value in linking Mr Cirillo to gardening for Crop 2 in particular. It is to be emphasised in this context that even though Mr Cirillo owned the property on which the Karoonda cultivation was located, the prosecution case against him was only that he was a worker or gardener on Crops 1 and 2. It was not alleged (and the evidence did not establish) that he was involved at some higher level, for example, as an organiser. Understood in this way, the evidence of the Karoonda cultivation did not add much to the evidence of Mr Cirillo’s involvement as a gardener for Crop 1. 74 For these reasons, I have concluded that the convictions of each of the appellants for the cultivation of Crop 2 were unreasonable. I would set aside their convictions for Count 2. -- 17 of 55 -- [2026] SASCA 48 S Doyle JA 16 Directions about the use of evidence of the appellants’ cultivation of Crop 1 75 Each of the appellants complain that the judge failed to comply with her obligations under s 34R of the Evidence Act to give directions which identified and explained the permissible and impermissible uses of the evidence of discreditable conduct. In particular, they complain that her Honour failed to properly identify and explain the impermissible use of the evidence of each appellant’s role as a gardener for Crop 1 in considering the case against that appellant in relation to Crop 2. 76 Given my conclusion that the verdicts for the Count 2 allegations of the cultivation of Crop 2 are unreasonable, it is not strictly necessary for me to address the adequacy of her Honour’s directions in relation to this count. However, I consider it appropriate to make some observations in relation to what I regard as a potential difficulty with the directions that were given. 77 To take a step back for a moment, under s 34P(1) of the Evidence Act, the impermissible use of evidence of discreditable conduct is described in terms of the use of that evidence ‘to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct’. I shall return to the significance of the words I have italicised shortly. However, the essence of the proscription in s 34P(1) is that it is impermissible to use the evidence of discreditable conduct as probative of the charged offence without more, or in some simplistic way. 78 At its most basic level, particularly in cases where the discreditable conduct is quite different in nature to the charged conduct, it is impermissible to reason simplistically that just because the defendant has done a discreditable or ‘bad’ thing on another occasion, they are more likely to have engaged in the charged conduct, or they are the sort of person who is likely to have engaged in that conduct. This most simplistic form of reasoning is sometimes referred to as ‘bad person’ reasoning. 79 However, the impermissible use also encompasses what might be described as a ‘bare propensity’ or ‘general propensity’ use of the discreditable conduct. So, for example, in a case where the discreditable conduct bears some resemblance to the charged offence, it is impermissible to reason simplistically that just because the defendant has done something similar on another occasion, they are more likely to have engaged in the charged conduct. 80 In summary, s 34P(1) proscribes the use of evidence of discreditable conduct as probative in either of these simplistic ways; that is, in support of either bad person reasoning, or general propensity reasoning. Depending upon the case, it may or may not be necessary or appropriate to differentiate between these two species of the impermissible use of the evidence of discreditable conduct. 81 These impermissible uses are to be contrasted with the two categories of permissible use identified in the two limbs of s 34P(2); namely, use for a -- 18 of 55 -- [2026] SASCA 48 S Doyle JA 17 non-propensity purpose (s 34P(2)(a)), and use that relies on ‘a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue’ (s 34P(2)(b)). Evidence of discreditable conduct is admissible for the first of these permissible uses (involving ‘non-propensity’ reasoning) if its probative value in that use outweighs any prejudicial effect it may have on the defendant. Evidence of discreditable conduct is admissible for the second of these permissible uses (involving ‘particular propensity’ or ‘specific propensity’ reasoning) if it has strong probative value, and that probative value outweighs any prejudicial effect it may have on the defendant. 82 It is often important to distinguish between, on the one hand, impermissible bad person or general propensity reasoning, and, on the other hand, permissible specific propensity reasoning. The former involves reliance upon simplistic reasoning which has no probative value, or such low probative value that the law requires that it be disregarded. The latter, however, involves recognition that there will be cases where there is a sufficient similarity, connection or relationship between the discreditable conduct and the charged conduct that one can say, as a matter of human experience, it has a strong probative value as circumstantial evidence of a fact in issue. It derives its probative force from this more particular or specific process of reasoning; as opposed to the simplistic nature of the impermissible bad person or general propensity reasoning. 83 Focussing upon the impermissible uses, it is appropriate to address the significance of the words from the description of the impermissible use in s 34P(1) that I italicised in paragraph [77] above. Those words (‘more likely’) make it plain that it is impermissible to use the evidence of the discreditable conduct as probative of the commission of the charged offence; that is, as increasing the likelihood or probability of the commission of that charged offence. Although the section does not say so in terms, the proscription against this ‘more likely’ form of the impermissible use logically includes a proscription against what might be called the more ‘automatic’ form of the impermissible use.22 In other words, accepting that it is impermissible to reason that the discreditable conduct makes it more likely that the defendant committed the charged offence, it is all the more impermissible to reason automatically that the discreditable conduct means that the defendant must have, or therefore, committed the charged offence. On any view, this last form of reasoning would involve impermissibly leaping to a conclusion. 84 In the present case, the appellants complain that, even if the judge adequately directed against this automatic form of the impermissible bad person and general propensity reasoning, her Honour did not adequately direct against the ‘more likely’ form of this impermissible reasoning. 22 This automatic or absolute form of impermissible reasoning was referred to as ‘primitive’ impermissible reasoning in Collins v The Queen [2020] SASCFC 96 at [148] (Blue J, Peek and Stanley JJ agreeing). -- 19 of 55 -- [2026] SASCA 48 S Doyle JA 18 85 This style of argument has found favour in several cases.23 As I endeavoured to explain in R v Sadler,24 the significance of a failure to explicitly warn against the probative form of the impermissible reasoning may depend upon the context provided by the judge’s summing up as a whole, and the nature of the forensic contest between the parties. In some cases, a clear warning against the automatic form of the impermissible use may be sufficient to dispel any realistic prospect that the jury would have entertained any form of impermissible reasoning. That may be so, for example, in a case where has been no suggestion of any propensity reasoning in the addresses of the parties, and it is not realistic to think that the jury would entertain that style of reasoning given the nature of the evidence and issues in the case. In other cases, a warning against the automatic form may leave that prospect realistically open, or perhaps even be tantamount to a tacit endorsement of the impermissible reasoning. That may be so, for example, in a case where the prosecution case has embraced some form of propensity reasoning (that is, a permissible specific propensity form of reasoning), or where it is otherwise realistic to think that the jury would entertain that style of reasoning given the nature of the evidence and issues in the case. 86 Accordingly, while the failure to expressly warn against the ‘more likely’ form of the impermissible reasoning may result in a contravention of s 34R of the Evidence Act or a miscarriage of justice, whether it does so, and whether any contravention or miscarriage is material in the relevant sense, will depend upon the context and circumstances of the particular case. 87 In the present case, the judge warned against the impermissible use of the evidence of the appellants’ involvement as gardeners for Crop 1 when considering the prosecution allegation that they were gardeners for Crop 2. Her Honour did so immediately after describing the permissible use of that evidence, and in the following terms:25 Now having said all of that, I must direct you in very strong terms that if you are satisfied beyond reasonable doubt that any or all of the accused performed an act of cultivation at crop site 1, so effectively you have formed a view that the accused is guilty of crop site 1, you must not say to yourselves ‘Well, that person cultivated cannabis at crop site 1, that person must be the type of person who would be involved in crop site 2’. That is what has been called in closing addresses ‘bad person reasoning’. He is guilty of count 1, therefore, he must be guilty of count 2 because he is the type of person who does this sort of thing. You must not reason that proof of involvement in cultivating the cannabis at crop site 1 means that the accused has a propensity to cultivate cannabis and, therefore, as night follows day, he must be involved in crop site 2. That sort of reasoning in a criminal trial is 23 For example, Collins v The Queen [2020] SASCFC 96 at [148] (Blue J, Peek and Stanley JJ agreeing); R v Forrest (2016) 125 SASR 319 at [44]-[46] (Kourakis CJ, Kelly and Lovell JJ agreeing); R v Maiolo (No 2) (2013) 117 SASR 1 at [84] (Peek J, Kourakis CJ and Stanley J agreeing); R v Sadler [2023] SASCA 63 at [33]-[36] (Doyle JA, Bleby JA agreeing), [108]-[115] (Nicholson AJA). See also Salgado v R [2022] NSWCCA 58 at [1] (Brereton JA), [6] Campbell J), [77] (Hamill J); R v Macfie [2002] VSCA 51 at [2]-[6] (Callaway JA), [19] (Buchanan JA), [24] (Vincent JA). 24 R v Sadler [2023] SASCA 63 at [33]-[36] (Doyle JA, Bleby JA agreeing). 25 Emphasis added. -- 20 of 55 -- [2026] SASCA 48 S Doyle JA 19 completely impermissible. And you must keep that at the forefront of your mind if you reach a conclusion of guilt on count 1. 88 In these two paragraphs, the judge has quite properly and clearly directed the jury against impermissible bad person and general propensity reasoning. However, focussing upon the words which I have italicised, her Honour did so in terms that only addressed the automatic form of the impermissible reasoning and not the ‘more likely’ form of the impermissible reasoning. Her Honour did not explicitly direct the jury not to reason simplistically that an appellant’s involvement as a gardener for Crop 1 was probative of, or made it more likely, that he was a gardener for Crop 2. 89 That said, it is relevant that there was no contemporaneous complaint by counsel for any of the appellants about the directions given. It is also relevant that there was no prosecution submission that invited the jury to engage in propensity reasoning in this context. And it must not be overlooked that the judge gave thorough directions explaining the permissible non-propensity use relied upon by the prosecution. Each of these considerations tells against any realistic prospect that the jury would have slipped into the ‘more likely’ form of the impermissible use. Whilst it would have been preferable had the judge explicitly warned the jury against this form of impermissible reasoning, I am inclined to think that the combination of the thorough nature of the judge’s directions as to the permissible use, and the strong terms of her Honour’s warning against the automatic form of impermissible bad person and general propensity reasoning, was likely to have been sufficient to have steered the jury away from any form of impermissible use. 90 For these reasons, I am not inclined to think that there was any material contravention of s 34R of the Evidence Act, or miscarriage of justice, by reason of the judge’s directions in relation to the impermissible use of the appellants’ involvement as gardeners for Crop 1 when considering the allegation that they were also involved as gardeners for Crop 2. However, for the reasons already explained, it is not necessary for me to reach a concluded view in relation to this issue. Directions in relation to Mr Cirillo’s involvement with the Karoonda cultivation 91 Mr Cirillo challenges the adequacy of the trial judge’s directions in relation to the permissible and impermissible uses of the evidence of his involvement in the Karoonda cultivation in the context of the allegations of his involvement as a gardener for Crops 1 and 2. 92 The judge’s directions on the permissible and impermissible uses of this evidence have been set out in full in David JA’s reasons. 93 I agree with David JA’s reasons for concluding that the judge adequately directed the jury in relation to the two permissible uses of this evidence. -- 21 of 55 -- [2026] SASCA 48 S Doyle JA 20 94 As to the impermissible use of this evidence, the judge directed as follows:26 I am now going to give you important directions and warnings about how you cannot use the Karoonda evidence. If you are satisfied that Mr Cirillo was involved in the prior cultivation of cannabis at the Karoonda property, you must bear in mind that he has not been charged with an offence in relation to that and you cannot reason that that makes him the type of person who would then be involved in cultivating cannabis for someone else at crop sites 1 and 2. In other words, as I explained to you previously, you cannot say to yourselves ‘Well, he has got the propensity to cultivate cannabis. Look, he has done it before, therefore, he has done it again.’ That is impermissible reasoning. You must not say to yourself ‘He is the type of person who would have committed counts 1 and 2 and therefore I am going to find him guilty’. 95 The judge’s directions in relation to the Karoonda cultivation involve a similar difficulty to the one I have described in the context of the judge’s directions addressing the impermissible use of the evidence of involvement in Crop 1 as probative of Crop 2. Focussing upon the words I have italicised, the judge’s directions against the impermissible bad person and general propensity reasoning were in terms which aligned more with the automatic form of this reasoning than the ‘more likely’ form; that is, they were directed to reasoning which moves straight from the premise that Mr Cirillo is a bad person or has a propensity to cultivate cannabis to a conclusion of guilt. 96 That said, I do not think that these directions were as clearly confined to the automatic form of the impermissible use as her earlier directions in relation to the impermissible use of the evidence of Crop 1 as probative of Crop 2. Unlike the directions in that context, the judge did not suggest that it followed from the relevant premise that Mr Cirillo ‘must’ have been involved as a gardener, or that this conclusion followed ‘as night follows day’. Rather, the direction warned against reasoning from the relevant premise that Mr Cirillo ‘would’ have been involved as a gardener. This language is more apt to encompass the ‘more likely’ form of the impermissible use. 97 In addition to the less problematic terms of these directions, it is again relevant that there was no contemporaneous complaint from counsel for Mr Cirillo, that there was no prosecution submission that invited the jury to engage in propensity reasoning in this context, and that the judge gave appropriately clear directions as to the permissible use. 98 In all of the circumstances, I do not consider that there was any realistic prospect that the jury would have slipped into any form of impermissible use of the evidence of Mr Cirillo’s involvement in the Karoonda cultivation. I am thus satisfied that the judge’s directions in relation to this evidence did not involve any 26 Emphasis added. -- 22 of 55 -- [2026] SASCA 48 S Doyle JA 21 material contravention of s 34R of the Evidence Act, or occasion any miscarriage of justice. Conclusion 99 For the reasons set out, I would order that all appellants have permission to appeal. 100 I would allow the appellants’ appeals insofar as they challenge their convictions for Count 2. For each appellant, I would set aside his conviction on Count 2, and enter an acquittal on that count. 101 However, I would otherwise dismiss the appellants’ appeals. -- 23 of 55 -- [2026] SASCA 48 David JA 22 102 DAVID JA: Following a trial by jury, the appellants, Ioannis John Kouvaris, Antonio Cirillo and Guiseppe Giannini were found guilty of two counts of cultivating a large commercial quantity of a controlled plant, contrary to s 33B(1) of the Controlled Substances Act 1984 (SA). The offending related to two large cannabis crops located in Coonalpyn. The two crops were grown outdoors and were located on the same rural property approximately 1.27 kilometres apart from each other. 103 The appellants now appeal their convictions on three common grounds: first, that the guilty verdict on Count 2 (and in the case of Mr Kouvaris on Count 1) was unreasonable and cannot be supported by the evidence; secondly, that the trial judge erred in admitting the evidence of Count 1 in proof of Count 2 for improbability reasoning; and thirdly, that the trial judge’s directions as to the permissible and impermissible use of the evidence of discreditable conduct were inadequate. The appellant Mr Cirillo also challenges the admissibility of the evidence of an earlier cannabis crop on his property (‘the Karoonda property’) and the trial judge’s directions as to the use of this evidence. 104 For the reasons which follow, I grant permission to appeal on all grounds but dismiss the appeal. Background 105 On 22 March 2020, police attended a large property in Coonalpyn (‘the Coonalpyn property’) for the purpose of conducting a search. After walking through dense bushland on the property, police located a crop site with 486 outdoor cannabis plants (‘the first crop site’) the subject of Count 1. Police also found a tub containing various gardening equipment used for the maintenance and irrigation of the plants. Under a green tarpaulin held down by a pickaxe, police located red and green watering cans, several buckets containing fertiliser, measuring equipment, spray packs, a plastic tub containing green buckets, a tub containing plastic shopping bags, ‘Brunswick Green’ paint and spare fittings for the irrigation pipes. The irrigation system consisted of a large water tank, and a smaller black pipe supplying each of the cannabis plants with water through a drip system. An electronic solenoid was used as part of an automated watering system. There was also a knee-high mesh fence line surrounding the first crop site. 106 At the time of the search, police were unaware of the location of a second crop site. 107 That same day, police searched a large property owned by Mr Cirillo in Karoonda located about 75 kilometres from the Coonalpyn property. Police observed an ‘inactive’ cannabis crop site with a water tank and a generator to pump water from the site. There was a single dead cannabis plant and ‘more than 100 to 200 soil depressions’ formed from the pulling of plants with a water dripper system around it. Police also located a large bud stripper and scales. No charges were laid in respect of the Karoonda property. -- 24 of 55 -- [2026] SASCA 48 David JA 23 108 On 26 March 2020, police returned to the Coonalpyn property to conduct a search in a different area of the property and found a crop site with a further 854 outdoor cannabis plants (‘the second crop site’) the subject of Count 2. A green tarpaulin, some barrels, solenoids and black tubing were found at this crop site, as well as another large water tank connected to a tap. There was a knee-high mesh fence line surrounding the entire crop. 109 There was no dispute at trial that cannabis was being cultivated at both crop sites on the Coonalpyn property, and that whoever was responsible for each cultivation was intending to sell the cannabis. The contested issue at trial was identity; more specifically, whether the prosecution had proved beyond reasonable doubt that each of the appellants was involved in the cultivation of the cannabis plants at each crop site and the subject of each charge. The prosecution case against each appellant was not that he was responsible for establishing the cannabis cultivations, or that he stood to profit directly from the sale of cannabis, but rather that he was a ‘gardener’ and his role in cultivating the cannabis plants was by nurturing, tending or growing the cannabis plants at the instigation of others higher up in the drug enterprise. 110 It was the prosecution case at trial that the two crop sites were established by the same persons, who engaged the same ‘gardeners’ to tend to both cannabis crops, and that the appellants and two other males, Rocco Andriano and Pietro Ierace, were engaged as ‘gardeners’ of both crops. The two males, Mr Andriano and Mr Ierace pleaded guilty to both offences. 111 The prosecution case against each appellant was circumstantial. At trial, the prosecution adduced evidence from Detective Brevet Sergeant Cooper, one of the attending police officers, as to the similarities between the first and second crop sites. The similarities were as follows: • the crops sites were of a similar size; • they were both enclosed by a knee-high mesh fence with chicken-wire style fencing; • the cannabis plants were located in a random pattern; • there were plants of varying stages of maturity at both crop sites; • similar equipment was used (including irrigation tubing, tap wear and solenoids); • there was a large, caged tank at both sites; • there was general gardening items left at each crop (including chemicals and watering cans); -- 25 of 55 -- [2026] SASCA 48 David JA 24 • items were camouflaged with the use of tree branches and a green tarpaulin; and • items appeared to be painted in the same colour green. 112 Detective Brevet Sergeant Thomas Guerin, an expert in drug investigations, gave some evidence as to the nature and scale of the cannabis cultivations. He estimated that the cannabis, if harvested from the cannabis plants the subject of Count 1, was worth between 1.072-1.8875 million dollars if sold in pounds, and the cannabis if harvested from the cannabis plants the subject of Count 2 was worth between 2.258-3.765 million dollars if sold in pounds. 113 Before turning to directly consider the appeal grounds, it is necessary to set out the more significant aspects of the circumstantial case against each appellant. The prosecution relied on four main bodies of evidence: the surveillance evidence; the cell tower and safe-t-cam evidence; the items found by police during a search of the appellants’ homes; and the scientific soil evidence. In relation to Mr Cirillo, the prosecution also led evidence of the Karoonda property (which was not the subject of any charges). Surveillance evidence 114 Surveillance of the appellants commenced in September 2019. On three occasions between September 2019 and January 2020, two males alleged to be Mr Cirillo and Mr Andriano attended Bunnings at Woodville and purchased items including fertiliser, potting mix, storage containers, irrigation equipment, a pipe plug and green spray paint. Each purchase was made with cash. 115 On 19 December 2019, two males alleged to be Mr Cirillo and Mr Andriano were observed at Viss Water and Star Drip Irrigation, Virginia, where they purchased an irrigation hose. Mr Cirillo’s red Commodore was later seen outside the home address of Mr Kouvaris in Campbelltown before the vehicle left with two passengers and was observed travelling towards Murray Bridge, Tailem Bend, Sherlock (and towards Coonalpyn). 116 On 11 March 2020, aerial surveillance was undertaken of a white Mitsubishi Triton registered to the appellant, Mr Giannini. The vehicle was observed travelling to Mr Kouvaris’ address and then on the South-Eastern freeway towards Coonalpyn. It was the prosecution case that Mr Kouvaris was driving the vehicle, and the other two appellants (Mr Giannini and Mr Cirillo) as well as Mr Andriano and Mr Ierace were travelling in the vehicle. The vehicle arrived at the Coonalpyn property, and all four passengers exited the vehicle. They were observed to be carrying backpacks and wearing large, oversized footwear. All four males were observed from around 9:30am to 2:30pm on the first crop site, the subject of Count 1. They were observed carrying watering cans and otherwise tending to the cannabis plants. -- 26 of 55 -- [2026] SASCA 48 David JA 25 117 Once the appellants had finished tending to the cannabis plants, they were observed walking back to the location where they had been dropped off earlier that morning. They waited for a short time before they were collected by Mr Kouvaris who was still driving the white Mitsubishi Triton registered to Mr Giannini. 118 After leaving the Coonalpyn property, the vehicle was observed travelling to Mr Kouvaris’ home address in Campbelltown. There, Mr Kouvaris exited the driver’s seat, walked to the rear canopy of the vehicle and opened it. Mr Giannini handed Mr Kouvaris a black backpack from the rear canopy. The two had a brief conversation before Mr Kouvaris placed the backpack on his back while Mr Giannini moved unknown items around in the canopy. Mr Kouvaris then went inside his home and Mr Giannini drove the vehicle to his home in Hope Valley. 119 In addition, the prosecution led a body of surveillance evidence from October 2019 to March 2020 to prove an association between the three appellants, Mr Andriano and Mr Ierace. Safe-t-cam and cell tower evidence 120 Each appellant had a mobile phone number registered in his name, except for Mr Kouvaris. The telephone number allegedly used by Mr Kouvaris during the relevant period was registered to his wife. The telecommunications data of the mobile phones for the period from the beginning of September 2019 to the end of March 2020 showed that the mobile telephones associated with the appellants were in the vicinity of the Coonalpyn property on several occasions. The appellants’ vehicles or in the case of Mr Kouvaris, his wife’s vehicle, were also recorded by the safe-t-cams travelling towards the Coonalpyn property. The white Mitsubishi Triton registered to Mr Giannini made several return trips on the South-Eastern freeway in the direction of Coonalpyn and Karoonda at the relevant time. In addition, vehicles registered to Mr Cirillo, Mr Kouvaris’ wife, and Mr Giannini were observed making return trips near Globe Derby North travelling northbound. 121 As to Mr Cirillo, the evidence suggested that his phone was in the Coonalpyn area 14 times between 22 November 2019 and 20 March 2020. In relation to Mr Giannini, the evidence suggested that his phone was in the Coonalpyn area 10 times between 22 November 2019 and 20 March 2020. As to Mr Kouvaris, the evidence suggested that the phone registered to his wife was in the Coonalpyn area 13 times between 22 November 2019 and 20 March 2020. 122 Dr Matthew Sorell, an expert in digital forensic science, gave evidence as to the location data of each appellant’s mobile phone on 11 March 2020. He said that the data was consistent with the mobile telephones associated with the appellants Mr Giannini and Mr Kouvaris (as well as Mr Andriano) travelling together at the same time and in the vicinity of the Coonalpyn property. Mr Ierace’s mobile telephone was turned off and while Mr Cirillo’s mobile telephone had less connections with the relevant telephone towers, it was also located in the general area of the crop sites. -- 27 of 55 -- [2026] SASCA 48 David JA 26 123 Dr Sorell said that the same cell phone tower covers the whole of the Coonalpyn property and both crop sites. Accordingly, the evidence could not establish, more specifically, whether the appellants’ mobile phones were in the vicinity of the first crop site or the second crop site at any given time. Searches of the appellants’ homes 124 After the police located the first crop site on 22 March 2020, they conducted searches of the appellants’ homes on 24 March 2020. 125 At Mr Cirillo’s home address in Athol Park, police located and seized two backpacks. One backpack contained a pair of shoes with lambswool soles, a camouflage long-sleeved shirt and pants, a belt, a camouflage hat, a packet of adjustable flow tricklers, a face mask and cotton gloves. There was fencing wire located inside the pants. The second backpack contained camouflage pants, two pairs of cotton gloves, a black balaclava, two camouflage hats, and other irrigation parts. 126 In addition, at Mr Cirillo’s home, police located documents in Mr Andriano’s name, a vacuum seal bag, a pump product guide, several bags of fertiliser, a can of Brunswick green spray paint, a product often used to grow cannabis in medium, and a receipt for fertiliser purchased from PP Hortico EE Muir. 127 At Mr Giannini’s home address at Hope Valley, police located a camouflage backpack which contained five gloves, three cutlery items, one fly net, Polident (used for cleaning dentures) and a Coles plastic bag with a pair of shoes inside. The shoes were size 44 with lambswool soles. Next to the bag was a Woolworths plastic bag containing a further pair of lace up shoes with lambswool soles in a smaller size. It was agreed, on the defence case, that Mr Giannini wore a size 39 shoe. 128 The lambswool shoes and the gloves were later swabbed, and Tetrahydrocannabinol (‘THC’), the primary psychoactive cannabinoid found in cannabis was detected in swabs of both shoes and on one of the gloves. 129 From Mr Giannini’s home, police also seized two notebooks containing receipts from his business as a shoe repairer. The books recorded takings on days when Mr Giannini’s mobile telephone or vehicle were in the vicinity of the Coonalpyn property including on 11 March 2020. 130 There was evidence that there was ‘extremely strong support’ for the hypothesis that Mr Giannini was a contributor to the DNA profile on the smaller pair of shoes. There was also ‘extremely strong support’ for the hypothesis that Mr Giannini was a contributor to a mixed DNA profile extracted from two of the gloves seized from inside the backpack. 131 The police also searched Mr Kouvaris’ home address in Campbelltown. There, police located a Macpac backpack in the garage which contained a pair of -- 28 of 55 -- [2026] SASCA 48 David JA 27 Nike Air Jordan shoes with altered lambswool soles, a camouflage hat, a camouflage top, a hi-visibility top, fly net, a gardening glove, a lighter, a pair of gloves, three empty cigarette packets, a water bottle, a diet cordial bottle and Aerogard. 132 Mr Andriano resided at a property in Seaton which was owned by Mr Cirillo’s wife. Documents in Mr Cirillo’s name were located at the house. A backpack, sneakers with lambswool soles and gloves were seized from this address. THC was detected on a glove with a DNA profile of 100 billion in favour of Mr Andriano being a contributor. 133 Mr Ierace lived at an address at Golden Grove. A backpack and sneakers with lambswool soles were seized from this address. The sneakers had a DNA profile with extremely strong support in favour of Mr Ierace being a contributor. The other appellants were excluded from contributing to the sample. Scientific soil evidence 134 Professor Robert William Fitzpatrick, a certified soil scientist and pedologist, analysed soil which had been extracted from the six pairs of lambswool shoes (seized from the appellants’ homes as well as the homes of Mr Andriano and Mr Ierace) and compared them to soil taken from both crop sites. Professor Fitzpatrick gave evidence that the soil samples taken from the crop sites had a similar composition to the soil found on the shoes. He concluded that it was ‘extremely likely’ that the soil on the lambswool shoes originated from either or both crop sites but was unable to say which of the two crop sites the soil emanated from as both areas had extremely similar soil types. The Karoonda Property 135 In relation to the case against Mr Cirillo, the prosecution relied on evidence that he owned the Karoonda property. Police covertly searched the property on 26 September 2019 and there observed scales, a large bud stripper, and a bread tray lined with approximately one pound of dried cannabis. Police did not seize the cannabis at that time so as to not compromise the investigation. They did, however, instal camera equipment to capture traffic entering and exiting the property. 136 Between September 2019 and 7 March 2020, a vehicle registered to Mr Cirillo, and the white Mitsubishi Triton vehicle registered to Mr Giannini were observed on several occasions in the proximity of the Karoonda property. 137 Police searched the Karoonda property on 22 March 2020. The property was described as a large property that was almost totally covered by Mallee scrub. On the north-western side there was a house under construction, and north of that house was an ‘inactive cannabis crop site’. There was a 20,000-litre water tank connected to a bore, and an electronic generator to pump water from the water tank to the inactive crop site. A high-pressure hose connected the 20,000-litre water tank to a 1,000-litre water tank (which was covered by a green tarpaulin) closer to -- 29 of 55 -- [2026] SASCA 48 David JA 28 the dripper system of the inactive crop. The inactive crop was surrounded by a three-foot high chicken wire fence. There were tools and other equipment present. There was a single dead cannabis plant and well over 100-200 depressions in the ground formed from pulling out previously grown plants. The large bud stripper and scales observed in September 2019 were still present. 138 A cigarette butt seized from inside the house at the Karoonda property had a single DNA profile with a statistical weighting of 100 billion in support of Mr Kouvaris being a contributor. 139 The admissibility of the evidence of the Karoonda property and the directions given by the trial judge as to the use of this evidence were challenged on this appeal by Mr Cirillo. The parties’ cases 140 As mentioned earlier, the prosecution case against each appellant was circumstantial in nature. 141 As to Mr Cirillo, the prosecution alleged that he was one of the four men who travelled to and tended to the first crop site on 11 March 2020. The prosecution relied on the surveillance evidence to show that he matched the description of one of those four men. Reliance was also placed on the evidence of the association between the five men, including that Mr Cirillo’s mobile telephone could be placed in the vicinity of both crop sites at the same time as the mobile telephones of Mr Giannini and the wife of Mr Kouvaris during the relevant period. 142 Further, the prosecution alleged that the surveillance evidence established that Mr Cirillo purchased green paint, irrigation equipment and fertiliser during the relevant period. 143 The prosecution relied on the evidence of items seized from Mr Cirillo’s home including the shoes which contained soil likely to have emanated from the crop sites. The shoes on which the soil was located also had THC on them. Other items contained within the backpack seized from his home were also associated with an outdoor cannabis cultivation. 144 The prosecution also relied on the evidence of the Karoonda property and the similarities between the set up of the inactive cannabis crop on that property with the two cannabis crops the subject of the charges for improbability reasoning. The evidence was also adduced to show that Mr Cirillo had a knowledge of the processes involved in cultivating cannabis. 145 As to Count 2, the prosecution relied on improbability reasoning in respect of Mr Cirillo (and all appellants). The prosecution submitted that if the jury found Count 1 proved, they could reason that it was improbable that different persons established each of the first and second crop sites given the similarities between the two cultivations and if they were so satisfied it was improbable that different -- 30 of 55 -- [2026] SASCA 48 David JA 29 ‘gardeners’ were engaged for each crop site given they were located on the same isolated property in close proximity to each other. 146 Mr Cirillo did not give or adduce any evidence at trial. 147 For Mr Cirillo, defence counsel submitted that the prosecution had not proved beyond reasonable doubt that he was one of the men who had attended the first crop site on 11 March 2020 or any other occasion (Count 1). As to Count 2, defence counsel submitted that there was no direct evidence connecting Mr Cirillo to the second crop site and even accepting (contrary to the defence case) that the prosecution had proved Count 1, it was reasonably possible that each of the two crop sites was established by a different person or persons. Further, defence counsel submitted that even accepting that both cannabis cultivations were established by the same person or persons, the prosecution had not excluded as a reasonable possibility that there were different ‘gardeners’ engaged for tending, nurturing or growing each crop. 148 In relation to Mr Giannini, the prosecution case on Count 1 relied upon the fact that his vehicle (the white Mitsubishi Triton) was used for the trip on 11 March 2020 and the surveillance footage of the activities of the four men at the first crop site on 11 March 2020. There was also the cell tower evidence placing his mobile telephone in the area of both crop sites, and the safe-t-cam evidence placing his vehicle in the general area on numerous occasions during the relevant period. 149 The prosecution also relied on the fact that Mr Giannini’s DNA was extracted from the smaller pair of the lambswool shoes found at his home which also contained soil from the first crop site. There was also evidence that there was ‘strong support’ Mr Giannini was a contributor to a mixed DNA profile extracted from two of the gloves located in his backpack which also had THC detected on them. The other contents of the Macpac backpack were items associated with cannabis cultivation. 150 In relation to Count 2, the prosecution relied on the improbability reasoning outlined above. 151 Mr Giannini did not give evidence or adduce any evidence at trial. 152 For Mr Giannini, defence counsel submitted that the prosecution had not proved beyond reasonable doubt that he was one of the men who was observed attending the first crop site on 11 March 2020 (Count 1). It was also submitted that a receipt located during the police search showed that the Walkerville Shoe Repair business owned by Mr Giannini in fact operated on 11 March 2020 as a receipt of the day’s takings was printed at 5:24 pm. There was also evidence that Mr Giannini was a sole trader and there was no evidence that he employed any staff. 153 Defence counsel also submitted that DNA found on the gloves to which Mr Giannini was a contributor could have been deposited by a secondary transfer. -- 31 of 55 -- [2026] SASCA 48 David JA 30 154 Further, while there was Polident located in the backpack, there was no other evidence that Mr Giannini had dentures or a use for Polident. 155 As to the smaller shoes seized, defence counsel emphasised that they were nonetheless too big for him. 156 Defence counsel also submitted that the evidence was to the effect that another vehicle registered to Mr Giannini was not at his home address when the white Mitsubishi Triton vehicle returned on 11 March 2020 suggesting Mr Giannini was in fact driving the other vehicle and not travelling in the white Mitsubishi Triton. 157 As to Count 2, defence counsel submitted that there was no direct evidence connecting Mr Giannini to the second crop site and even accepting (contrary to the defence case) that the prosecution had proved that he was guilty of Count 1, it was reasonably possible that the crops were established by a different person or persons or there was a different team of gardeners engaged for each cannabis crop. 158 As to the case against Mr Kouvaris, the prosecution accepted that he was the driver of the white Mitsubishi Triton and did not leave the vehicle on 11 March 2020. There were no observations of Mr Kouvaris tending to the cannabis plants the subject of Count 1 on this day. Rather, the prosecution alleged that he cultivated the first crop as a gardener on at least one other earlier occasion. 159 In support of the case against Mr Kouvaris, the prosecution relied on the black Macpac backpack found at his home which contained a camouflage hat, insect repellent, gloves, netting and the Nike Air Jordan shoes. In addition, he was a contributor to a DNA sample extracted from the Nike shoes which also had soil on them likely to have come from either the first or second crop site or both crop sites. 160 As to Count 2, the prosecution relied on the same form of improbability reasoning as outlined earlier in respect of the other appellants. 161 Mr Kouvaris did not give evidence or adduce any evidence at trial. 162 For Mr Kouvaris, defence counsel emphasised that there was no evidence he left the vehicle on 11 March 2020 or any other direct evidence that placed him on the first or second crop site. This distinguished his case from the other appellants’ cases. There was no evidence that Mr Kouvaris was in possession of fertiliser or irrigation equipment. Nor was there any evidence of him purchasing any items associated with the cultivation of cannabis. 163 As to Count 2, defence counsel submitted that there was no direct evidence connecting Mr Kouvaris to the second crop site, and even accepting (contrary to the defence case) that the prosecution had proved he was guilty of Count 1, there was a reasonable possibility that the crops were established by a different person or persons or those persons engaged different ‘gardeners’ for each crop. -- 32 of 55 -- [2026] SASCA 48 David JA 31 164 Against that summary of the evidence adduced at trial, and the respective parties’ cases, I turn to consider the appellants’ grounds of appeal. There is some overlap between each of the appellant’s complaints so I will deal with them by reference to the nature of the challenges: first, the admissibility of the evidence of discreditable conduct; secondly, the adequacy of the directions given pursuant to s 34R of the Evidence Act 1929 (SA) (‘Evidence Act’); and thirdly, whether the verdicts were unreasonable or cannot be supported by the evidence. Ground 2 – Improbability reasoning (Kouvaris – Ground 3, Cirillo – Ground 1, Giannini – Ground 2) 165 These grounds of appeal complain that the evidence of Count 1 was not admissible in proof of Count 2. In addition, the appellant Mr Cirillo contends that the evidence of the Karoonda property was not admissible in proof of either count. 166 Prior to the commencement of the trial, the prosecution sought to lead the evidence of Count 1 as admissible on Count 2 for two purposes: first, to establish the appellants’ propensity to commit the offence; and secondly, for improbability reasoning. In respect of the appellant Mr Cirillo, the prosecution also sought to lead the evidence of the Karoonda property for those same purposes. 167 The appellants challenged the admissibility of the evidence and sought separate trials in respect of Counts 1 and 2. Mr Cirillo also challenged the admissibility of the evidence of the Karoonda property. 168 As to all appellants, the trial judge held that the evidence with respect to Count 1 was admissible on Count 2 pursuant to s 34P(2)(a) of the Evidence Act for improbability reasoning. Her Honour found that the evidence of Count 1 was admissible on Count 2 as more probative than prejudicial on the basis that the similarities between the two crop sites supported a finding that the same person or persons established the two crops. If the jury reached that conclusion, they could then reason that it was improbable that the person or persons who established both crops would engage a different set of gardeners to tend to, nurture and grow each crop of cannabis plants given their location on the same geographically remote property and the proximity of each crop to the other. Her Honour, however, considered that the evidence did not meet the threshold for admission for a propensity purpose pursuant to s 34P(2)(b) of the Evidence Act because it did not have ‘strong probative value’. 169 As to the appellant Mr Cirillo, the trial judge ruled that the evidence of the Karoonda crop was admissible under s 34P(2)(a) for improbability reasoning. In addition, her Honour found that the evidence was admissible to establish that Mr Cirillo had the knowledge to cultivate cannabis as a ‘gardener’. The presence of the bud stripper at the property was also held to be admissible to show that he had the means to harvest cannabis. However, her Honour considered that the evidence of the Karoonda property did not meet the threshold for admission for a propensity purpose pursuant to s 34P(2)(b) because it did not have ‘strong probative value’. -- 33 of 55 -- [2026] SASCA 48 David JA 32 170 Under these grounds of appeal, the appellants now challenge the correctness of those rulings. 171 The question of admissibility of the evidence is governed by s 34P of the Evidence Act, which relevantly 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 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. … 172 Where a person is tried on more than one count in the same trial, each count will amount to discreditable conduct in respect of each other count so long as the evidence in respect of each count can be meaningfully separated from one another. 173 In considering the admissibility of evidence of discreditable conduct under s 34P(2)(a) of the Evidence Act, a trial judge is required to make a separate assessment of both the probative value of the evidence as well as its prejudicial effect. In R v MJJ; R v CJN,27 Kourakis CJ said:28 At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second 27 R v MJJ; R v CJN (2013) 117 SASR 81. 28 R v MJJ; R v CJN (2013) 117 SASR 81 at [19] (Kourakis CJ). -- 34 of 55 -- [2026] SASCA 48 David JA 33 is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact… 174 As to all appellants, the relevant fact in issue on Count 2 was whether each appellant was involved as a ‘gardener’ in the cultivation of the cannabis plants at the second crop site. In this way, the contested issue was identity or more precisely whether the prosecution had proved beyond reasonable doubt that the appellant under consideration tendered, nurtured, or grew the second cannabis crop. The probative value of the evidence is to be assessed by determining the extent to which the evidence could rationally affect the likelihood of that fact in issue. 175 Section 34P(2) does not refer to simple prejudice to an accused person but rather the risk of an unfair trial and wrongful conviction. Thus, there is an important relationship between the directions to be given under s 34R of the Evidence Act and the assessment of any suggested prejudice when considering admissibility under s 34P(2). Any assessment of possible prejudice must take into account whether appropriate and effective directions can be given under s 34R. The relevant directions in this case are the subject of other grounds of appeal. 176 The admissibility of the evidence of Count 1 in proof of Count 2 was based on the high level of similarities between the two cannabis crops. The trial judge also directed the jury that the permissible use of the evidence of discreditable conduct was contingent on a finding of guilt on Count 1. This mode of reasoning is analogous (but no identical) to similar fact reasoning considered in Sutton v The Queen.29 In that case, the Court of Criminal Appeal and the High Court upheld the reasoning of the trial judge who found that important aspects of a series of rape charges exhibited such ‘striking similarity’ they entitled the jury to conclude that the same person committed all three sets of offences and if they were satisfied beyond reasonable doubt that the accused was correctly identified in any one instance the jury were entitled to convict the accused of all the offences with which he was charged.30 As Deane J explained:31 …Once the conclusion is reached that the similarity between the three occurrences was so striking as to warrant a conclusion by the jury that the assailant on each occasion was the same person, it is apparent that evidence that the applicant was the assailant in the case of any one of the assaults was relevant and possessed probative force in relation to the question whether the applicant was the assailant in relation to the other occurrences. That is not to say that the evidence was admissible on the basis of an assumption that the applicant was guilty of the offence which was the subject of a particular charge or of the offence or offences which related to other occurrences. It is simply to recognize that, once the similarity between the three occurrences is accepted as being such as to warrant a conclusion by the jury that the assailant on each occasion was the same, evidence that the applicant was the assailant on one of the other occasions is material and has probative force on the question whether he was the assailant on the occasion to which the charge relates 29 Sutton v The Queen (1984) 152 CLR 528. 30 Sutton v The Queen (1984) 152 CLR 528 at 560 (Deane J). See also Hirst v Police (2006) 95 SASR 260 at [67]-[79] (Duggan J, Doyle CJ and White J agreeing). 31 Sutton v The Queen (1984) 152 CLR 528 at 560-561 (Deane J). -- 35 of 55 -- [2026] SASCA 48 David JA 34 and evidence that he was the assailant on the occasion to which the charge relates is material and has probative force on the question whether he was the assailant on the other occasions. 177 In the present case, as outlined earlier, the reasoning relied upon by the prosecution involved two stages of analysis. First, it was contended that there were sufficient similarities between the geographical location, nature, size and set up of the two cannabis crops that the jury could find the same person or persons established both crops. Secondly, if the jury so found, the prosecution contended that it was improbable that the person or persons who established the two cannabis crops engaged different ‘gardeners’ to nurture, tend and grow each crop of cannabis plants given the remote and isolated geographical location of the crop sites on the same property and the proximity of each crop site to the other. This type of reasoning does not engage propensity reasoning. Nor does it necessarily require ‘striking similarities’ between the two cannabis crop sites or indeed some ‘unusual features’ attributable to both crop sites when compared with other outdoor cannabis crops. Of course that being said, such striking similarities or unusual features will increase the force of the evidence at the first stage of the analysis. 178 The probative value of the evidence of Count 1, in proof of Count 2, lies in its capacity to strongly affect the improbability of a fact in issue.32 As mentioned earlier, the relevant fact in issue in this case was whether the prosecution had proved each appellant tended to, nurtured or grew the cannabis plants at the second crop site. 179 The admissibility of the evidence is an evaluative question of law which admits only one answer. Therefore, the task of this Court is to determine whether the evidence was correctly admitted rather than whether it was open to the trial judge to admit the evidence for improbability reasoning. The dispositive question is whether the probative value of the evidence of discreditable conduct for improbability reasoning outweighed the prejudicial effect and risk of misuse by the jury. 180 As to the first stage of the analysis, the appellants submit that none of the similarities between the two cannabis crop sites were truly distinctive and it was not open to the jury to conclude that the same person or persons were responsible for both crops. Rather, the similarities were generic to all outdoor cannabis cultivations or of little moment. 181 As to the second stage of the analysis, the appellants submit that even if the jury found that the same person or persons were responsible for establishing both cannabis crops, this had little probative value given each appellant’s alleged roles was as a ‘gardener’. That is, the evidence does not reveal anything distinctive about how the two cannabis crops were tendered to, nurtured or grown such as to establish that the same person or persons were responsible for having cultivated 32 Catanzariti v The Queen [2021] SASCA 110 at [142] (Kourakis CJ, Kelly P and Doyle JA agreeing). -- 36 of 55 -- [2026] SASCA 48 David JA 35 both cannabis crops. The appellant submits there was nothing distinctive about the method of gardening common to both crop sites which was capable of properly engaging improbability reasoning and this line of ‘reasoning’ amounted to nothing more than speculation. 182 The appellants also emphasise that there is a ‘known phenomenon’ that offenders who establish multiple cannabis crops may use different ‘gardeners’ for different crops to reduce the risk of detection should one cannabis crop or one set of ‘gardeners’ be detected by the authorities. 183 The appellants also submit that it is of some significance that they were not observed attending the second crop site on 11 March 2020. This it is said arguably undermines the prosecution case that the remote location of the Coonalpyn property renders it improbable that different gardeners were engaged to tend to each of the two cannabis crops. 184 As to the relevant prejudice of the evidence of discreditable conduct, the appellants contend such prejudice lies in the negativity that multiple allegations will engender which may distract a jury from the weaknesses in the prosecution case particularly in relation to the force of improbability reasoning in proof of Count 2. 185 I am satisfied that the trial judge did not err by ruling that the evidence of the appellants’ cultivation of the first cannabis crop as gardeners (and guilt on Count 1) was admissible under s 34P(2)(a) in proof of Count 2 for improbability reasoning. 186 As to the first stage of the analysis, and the question of whether there were sufficient similarities between the two cannabis crops to engage improbability reasoning, I am satisfied that the evidence transcended generic similarities common to all outdoor cannabis cultivations and was capable of establishing that it was improbable that a different person or persons established the two cannabis crops. The relevant similarities including the following matters. • The two cannabis crops involved a substantial number of cannabis plants in a dense rural setting amongst native vegetation. • Both cannabis crops were situated on the same property and about 1.27 kilometres distance away from each other. • Each crop used a similar irrigation system and was fenced off in the same way by knee-high chicken-mesh fencing. • The cannabis plants on each crop site were planted in a haphazard manner and were at varying stages of development. • Both crops were camouflaged by green tarpaulins and there was green paint used to camouflage items at both crop sites. -- 37 of 55 -- [2026] SASCA 48 David JA 36 • Each crop site contained the same kind of gardening equipment. 187 It is also to be noted that Detective Guerin referred to the fact that outdoor cannabis cultivations are now a rarity. 188 I am satisfied that these similarities considered as a whole transcended the generic features of an outdoor cannabis cultivation. 189 In relation to the second stage of the analysis, I am also satisfied that if the jury found that the same person or persons established both cannabis crop sites, the jury could also find that it was improbable that they would engage different ‘gardeners’ to cultivate the cannabis plants on each crop site. The use of improbability reasoning in this regard did not require proof of a particular method or modus operandi of gardening having been used in relation to both crops. Rather, it drew support from the fact that both cannabis crops were situated on the same property within 1.27 kilometres of each other and at a geographically isolated rural location. As a matter of logic, it was arguably improbable that the persons responsible for both cannabis crops would use different gardeners for each crop site when both were located remotely from Adelaide in dense scrub and situated on the same property in such close proximity to each other. It was also arguable that using the same set of gardeners for both crops would reduce the risk of detection by limiting the number of persons who had knowledge of the unlawful enterprise and reduce the cost to those persons who had established the crops and stood to benefit directly from the sale of the cannabis. Contrary to the appellants’ contention, this mode of reasoning did not invite speculation. 190 That being said, there were certainly features of the evidence which may have resulted in a jury, ultimately, not reasoning to guilt on Count 2. It was open to the jury to consider that those responsible for both crops may have wished to employ more than one set of gardeners to ‘silo’ each cannabis crop and thereby reduce their exposure should one set of gardeners be placed under surveillance or be arrested by the authorities. Detective Guerin did not rule out this possibility, conceding that it was possible but unlikely, that different persons might have been employed to tend to each cannabis crop. 191 There was also the fact that on 11 March 2020, the appellants were not observed travelling to, or tending to the second crop site, and there was no direct evidence which placed the appellants at the second crop site. In addition, the two cannabis crops were surrounded by dense scrub with no obvious pathway between them. 192 Notwithstanding those legitimate challenges to the second stage of the analysis, I consider that the evidence of the first crop site was still probative on Count 2. The strength of the evidence lay in its capacity to affect the improbability of the appellants being the gardeners on the first cannabis crop but not the second cannabis crop given the evidence supporting a conclusion that both crop sites were -- 38 of 55 -- [2026] SASCA 48 David JA 37 established by the same person and their proximity to each other on the same geographically isolated property. 193 I am also satisfied that the probative force of the evidence outweighed the prejudice of multiple allegations overwhelming a jury and distracting from weaknesses in the evidence. With appropriate directions, any prejudice could be effectively ameliorated and the permissible and impermissible uses of the evidence could 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. There was no risk of misuse by the jury. 194 For those reasons, the trial judge did not err in admitting the evidence of Count 1 in proof of Count 2 under s 34P(2)(a) of the Evidence Act. 195 As to the admissibility of the evidence of the Karoonda property, I am satisfied the evidence was relevant in proof of Counts 1 and 2 against Mr Cirillo for improbability reasoning. There were sufficient similarities in the crop sites to render it improbable that they were established by different persons notwithstanding that the Karoonda property was on Mr Cirillo’s own property and obviously some distance from the Coonalpyn property. These similarities included that all three crop sites had mesh perimeter fencing, similar water tanks and a similar irrigation system. There were also either green tarpaulins or green paint used on all three crop sites to camouflage various items. 196 In relation to the second stage of the analysis, if the jury were satisfied that the appellant, Mr Cirillo, had at some stage cultivated cannabis plants on his property as a gardener by tending, nurturing or growing the plants, the jury could reason that it was improbable that he was not involved in cultivating the cannabis crops on the Coonalpyn property given the similarities between the set up at each crop site and the improbability that the same person or persons who established all cannabis cultivations would engage different gardeners. The force of the evidence of the Karoonda property was its capacity to affect the improbability of Mr Cirillo not being involved as a gardener of the cannabis plants on the two cannabis crops sites on the Coonalpyn property given their similarities with the set up of the cannabis cultivation at his own property. 197 The evidence of the Karoonda property was also relevant against Mr Cirillo in proof of the charged offences on a separate basis. It was relevant to show his knowledge of how to cultivate cannabis and that he had the equipment to do so given his possession of items associated with the process of gardening and harvesting cannabis plants.33 The fact that the Karoonda property was owned by Mr Cirillo and he was observed on the property in the months leading up to the charged period for Counts 1 and 2 strengthened the probative force of the evidence of the Karoonda property. The evidence was highly relevant as a piece of 33 De Marchi v The King [2024] SASCA 49 at [10]-[11] (Kourakis CJ, Bleby and David JJA). See also, R v Palaga (2001) 80 SASR 19 at [51]. -- 39 of 55 -- [2026] SASCA 48 David JA 38 circumstantial evidence to prove Mr Cirillo cultivated the cannabis plants the subject of Counts 1 and 2 as a gardener. The probative value of the evidence outweighed its prejudicial effect and was admissible under s 34P(2)(a). 198 With appropriate directions, any prejudice was outweighed by the probative nature of the evidence and could be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for an impermissible purpose. 199 For those reasons, I dismiss these grounds. Ground 3 – Directions as to the impermissible use of the discreditable conduct evidence: (Kouvaris - Grounds 4 and 5, Cirillo - Ground 2, Giannini - Ground 3) 200 These grounds of appeal complain that the trial judge’s directions as to the impermissible use of the evidence of discreditable conduct of Count 1 in proof of Count 2 were inadequate and failed to comply with s 34R of the Evidence Act. 201 Section 34R(1) of the Evidence Act 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. 202 The impermissible use in s 34P(1)(a) is the suggestion that ‘the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct.’ 203 As to the impermissible use of the evidence of Count 1 in proof of Count 2, the trial judge instructed the jury in the following terms: [1] I direct you that it would be wrong for you to reason that if you were satisfied that any of the accused was guilty of one charge, he must be guilty of the other. If you found an accused guilty of one charge, it would be impermissible for you to say ‘Well, he must be guilty of the other charge because he is the sort of person who cultivates cannabis’. … [2] …So if you have a reasonable doubt in respect of one count, that is relevant and can be used by you in your evaluation of the other count. But if you find an accused guilty of one count, that is not a basis for you to say he must be guilty of the other count. … -- 40 of 55 -- [2026] SASCA 48 David JA 39 [3] Now having said all of that, I must direct you in very strong terms that if you are satisfied beyond reasonable doubt that any or all of the accused performed an act of cultivation at crop site 1, so effectively you have formed a view that the accused is guilty of crop site 1, you must not say to yourselves ‘Well, that person cultivated cannabis at crop site 1, that person must be the type of person who would be involved in crop site 2’. That is what has been called in closing addresses ‘bad person reasoning’. He is guilty of count 1, therefore, he must be guilty of count 2 because he is the type of person who does this sort of thing. [4] You must not reason that proof of involvement in cultivating the cannabis at crop site 1 means the accused has a propensity to cultivate cannabis and, therefore, as night follows day, he must be involved in crop site 2… (emphasis and numbering added) 204 The appellants contend that the trial judge erred by failing to direct the jury that they could not use the evidence of Count 1 to reason that if they were satisfied the defendant under consideration committed Count 1 he is the sort of person who was more likely to have committed Count 2. Rather, her Honour directed the jury that they must not reason that if they were satisfied that the defendant under consideration committed Count 1, it necessarily followed that he must be guilty of Count 2 because he is the ‘type of person who does this sort of thing’. 205 As to the trial judge’s reference to propensity reasoning in paragraph [4], the appellants contend that her Honour did not explain to the jury the meaning of ‘the accused having a propensity’ to cultivate cannabis and how this may differ to ‘bad person reasoning.’ The appellants submit that there was a real risk that without further explanation the jury would mistakenly proceed on the basis that they were the same thing. 206 It is true that the trial judge in paragraphs [1]-[3] did not direct the jury they must not reason that the defendant under consideration is more likely to have committed the offence because he engaged in the discreditable conduct (that being the impermissible reasoning proscribed by s 34P(1), and commonly referred to as ‘bad person reasoning’). Rather, her Honour warned the jury not to reason that the defendant necessarily committed Count 2. This is the more ‘primitive’ reasoning discussed in Collins v The Queen (‘Collins’).34 A direction in the terms used by her Honour and discussed in Collins has the capacity to undermine the purpose of s 34R by allowing the jury to use the discreditable conduct evidence for propensity reasoning (that is, to use the evidence to reason that the defendant is more likely to have committed the offence) provided the jury does not reason that the defendant was necessarily guilty because they have committed a similar type of offence on 34 Collins v The Queen [2020] SASCFC 96 at [148] (Blue J, Peek and Stanley JJ agreeing). -- 41 of 55 -- [2026] SASCA 48 David JA 40 another occasion.35 Similarly cast directions have been held to be errors of law in R v Forrest,36 Sadler v The King37 and Salgado v The Queen.38 207 In the present case, however, the trial judge in paragraph numbered [4] instructed the jury that they ‘must not reason that proof of involvement in cultivating the cannabis at crop site 1 means the accused has a propensity to cultivate cannabis and, therefore, as night follows day, he must be involved in crop site 2.’ This was in effect a propensity direction. 208 In Lukaj v The King,39 this Court explained the difference between ‘bad person reasoning’ and ‘propensity reasoning’ as follows:40 …there is a difference between ‘bad person’ reasoning and ‘propensity’ reasoning. A direction on bad person reasoning warns the jury not to consider that a person is guilty simply because they have committed previous offences. A direction on propensity reasoning warns the jury, when considering the evidence relevant to the charge, not to use the fact that a person has a propensity (or tendency) to commit crimes of the type under consideration. 209 In the present case, the prosecution relied on the similarities between the two cannabis crops (the subject of each charge) to contend that it was improbable that different persons established each crop, and accepting that was so, urged the jury to reason that it was improbable those persons responsible for establishing the two crops employed different gardeners for each crop. Accordingly, it was necessary for the trial judge to warn the jury against propensity reasoning. Indeed, in the absence of appropriate directions, the risk of misuse of the evidence of discreditable conduct was impermissible propensity reasoning rather than rank ‘bad person reasoning’. 210 While a direction that reflects the wording of the impermissible use identified in s 34P(1) will often be required, that will not always be so.41 The directions required will be case and fact dependent.42 211 In the circumstances of this case, I am satisfied that the last part of the direction (at paragraph [4]) effectively, albeit economically, instructed the jury against impermissible propensity reasoning. While it would have been preferable had the trial judge elaborated upon the meaning of ‘propensity’, for example, as including a person’s disposition or tendency, I am satisfied its meaning was tolerably clear. In addition, her Honour’s warning against propensity reasoning 35 Salgado v The Queen [2022] NSWCCA 58. 36 R v Forrest (2016) 125 SASR 319 at [44]-[47] (Kourakis CJ, Kelly and Lovell JJ agreeing). 37 Sadler v The King (2023) 144 SASR 153 at [36] (Doyle JA, Bleby JA and Nicholson AJA agreeing). 38 Salgado v The Queen [2022] NSWCCA 58. 39 Lukaj v The King [2022] SASCA 135. 40 Lukaj v The King [2022] SASCA 135 at [105] (Livesey P, Lovell and Bleby JJA). 41 Perara-Cathcart v The Queen (2017) 260 CLR 595, 617 at [52] (Kiefel, Bell and Keane JJ). See also, R v Tran [2017] SASCFC 99 at [164]. 42 Collins v The Queen [2020] SASCFC 96 at [143] (Blue J, Peek and Stanley JJ agreeing). -- 42 of 55 -- [2026] SASCA 48 David JA 41 explicitly referred to the offences under consideration, namely, the cultivation of cannabis and addressed the real risk of misuse of the evidence. 212 It is also noteworthy that the trial judge made clear at the commencement of her directions for improbability reasoning that the permissible use of the evidence was the only way in which the jury could use the evidence of discreditable conduct. Moreover, there was no complaint that her Honour failed to adequately explain the permissible use of the evidence of Count 1 on Count 2. 213 Prior to the close of the prosecution case, the trial judge provided the parties with a copy of her draft directions on cross-admissibility. There were no submissions made about the appropriateness or otherwise of the impugned directions as to the impermissible use of the evidence. While this did not relieve her Honour of her requirement to give a direction in conformity with s 34R, it does provide an indication of the real issues in the case at trial and the adequacy of the directions that were given. At the close of the summing up, counsel did not seek a re-direction nor raise any issues with the trial judge’s directions on improbability reasoning. 214 For those reasons, I am satisfied that the trial judge’s directions adequately complied with s 34R of the Evidence Act. I dismiss these grounds of appeal. The evidence of the Karoonda property 215 The appellant Mr Cirillo complains that the trial judge’s directions in relation to the Karoonda property were inadequate and failed to comply with s 34R. There were two parts to the complaint. First, Mr Cirillo contends that the directions did not adequately relate the law to the facts as they did not identify, beyond the generic, the similarities between the Karoonda property and the first and second cannabis crops the subject of the charged offences. Mr Cirillo also contends the directions erroneously treated the dissimilarities between the Karoonda property and the two charged cannabis crops as being identical to the dissimilarities between each of the charged cannabis crops on the Coonalpyn property. Secondly, Mr Cirillo contends that the directions did not adequately isolate the correct approach to improbability reasoning from the risk of bad person reasoning or specific propensity reasoning. 216 The trial judge instructed the jury in the following terms: If you are satisfied that the evidence about what was found at Karoonda establishes that there was a previous cannabis crop at that location, and that, indeed, there was some drying cannabis in September 2019, a single cannabis plant and a bud stripper, and that Mr Cirillo was at some previous time involved in the cultivation of cannabis in an outdoor setting, and you are satisfied that there is sufficient similarities between the crop site at Karoonda and the crop site at either crop site 1 and/or crop site 2, then this is the way that you can use this evidence. So I will just repeat all of that. If you are satisfied that the Karoonda property establishes Mr Cirillo grew cannabis in an outdoor setting, on a reasonably large scale previously, and his set-up is similar to the set-up -- 43 of 55 -- [2026] SASCA 48 David JA 42 at crop site 1 or 2, that evidence can be used by you in evaluating the improbability of Mr Cirillo not having a connection with cultivating at crop sites 1 or 2 and not knowing that cannabis was growing there. So the same form of improbability reasoning can be used by you, only in relation to Mr Cirillo, and only if you are satisfied that his set-up at Karoonda was a cannabis set-up and it is sufficiently similar to the set-up at crop site 1 or 2. So if you find that the sites are similar in their set-up and infrastructure because, for example, they are both in a rural location, each has a chicken wire fence boundary, each has an irrigation system, each has items concealed by foliage or green tarpaulins, you may take that into account in determining the likelihood of Mr Cirillo just by chance happening to have his own cannabis cultivation site similar to the ones at crop site 1 or 2. I remind you of the matters to which I referred a little while ago in your assessment of whether crops sites 1 and 2 are sufficiently similar for you to reason that it is improbable that different people were gardening each. Many of those matters apply with equal, if not greater, force to the evidence about the Karoonda property. Particularly because there is no active crop there at the time police attend, and it is a property owned by Mr Cirillo. So to flesh that out. If you conclude that all outdoor crops are likely to have these similar features and that, in effect, there are generic features, the fact that Mr Cirillo has a crop site on his own property may not in fact make it more probable that he is a gardener for somebody else’s crop. But if you are satisfied that Mr Cirillo was connected and involved in a previous crop site at Karoonda, the evidence may also be used in another way to show that during the periods of the charges in counts 1 and 2, he knew how to grow cannabis. That is, he had the knowledge and capacity to grow cannabis. In other words, he knows how to nurture, tend to and grow cannabis. And that might make it more likely for him to have been asked to perform a gardening role on crop site 1 and/or 2. I am now going to give you some important directions and warnings about how you cannot use the Karoonda evidence. If you are satisfied that Mr Cirillo was involved in the prior cultivation of cannabis at the Karoonda property, you must bear in mind that he has not been charged with an offence in relation to that and you cannot reason that that makes him the type of person who would then be involved in cultivating cannabis for someone else at crop sites 1 and 2. In other words, as I explained to you previously, you cannot say to yourselves ‘Well he's got the propensity to cultivate cannabis. Look, he has done it before, therefore, he has done it again’. That is impermissible reasoning. You must not say to yourself ‘He is the type person who would have committed counts 1 and 2 and therefore I am going to find him guilty’. 217 As to the first part of the complaint, I am satisfied that the trial judge adequately explained how the evidence of the Karoonda property could be permissibly used to assess the improbability of Mr Cirillo’s involvement as a gardener of the cannabis plants at the first and second crop sites. Her Honour referred to the potential similarities between the set up of the (inactive) Karoonda property cannabis crop and the first and second cannabis crop sites. Her Honour outlined the arguments for and against a finding as to the similarities and the -- 44 of 55 -- [2026] SASCA 48 David JA 43 alleged dissimilarities between the Karoonda property and the two charged cannabis cultivations. Her Honour then referred to her earlier directions instructing the jury that if they were satisfied there were sufficient similarities between the Karoonda property crop and the first and second crop sites, they could reason it was improbable that different persons were engaged as gardeners of each crop site. Her Honour also specifically mentioned defence counsel’s argument that a similar inactive crop site on Mr Cirillo’s own property may not, in fact, render it improbable that the persons who established the crops sites on the Coonalpyn property engaged gardeners other than Mr Cirillo. 218 The trial judge also instructed the jury as to the other permissible use of the Karoonda property evidence, namely, that it was capable of proving that Mr Cirillo had the knowledge and capacity which may ‘make it more likely for him to have been asked to perform a gardening role on crop site 1 and/or 2’. 219 The directions to the jury on the permissible use of the Karoonda property evidence were not inadequate. 220 As to the second part of the complaint, I am satisfied that the trial judge, in effect, gave the jury a propensity direction. Her Honour adequately warned the jury against reasoning that if they were satisfied that Mr Cirillo was involved in the prior cultivation of cannabis at the Karoonda property, ‘that makes him the type of person who would then be involved in cultivating cannabis for someone else at crop sites 1 and 2.’ Her Honour went on to explain to the jury they could not reason that by virtue of the evidence of the Karoonda property, Mr Cirillo is ‘the type of person who would have committed counts 1 and 2 and therefore I am going to find him guilty.’ These directions adequately guarded against the real risk of misuse of the evidence. 221 I dismiss this ground of appeal in relation to Mr Cirillo. Act of Driving on 11 March 2020 – Mr Kouvaris 222 The appellant Mr Kouvaris contends that the evidence that he drove the other appellants as well as Mr Ierace and Mr Andriano to the first crop site on 11 March 2020 constituted evidence of discreditable conduct. Mr Kouvaris submits that while the trial judge instructed the jury that they could not convict the appellant solely on the basis of his conduct in driving the others to the first crop site, the jury were not directed as to the use which they could and could not make of the evidence. There was, for example, no direction that the jury could not use the fact he had driven the other appellants to the first crop site to reach a finding that it was more likely he was guilty of the offences he was charged with (‘bad person reasoning’). Mr Kouvaris submits that her Honour’s failure to provide the jury with any guidance at all as to the permissible and impermissible uses of this evidence was an error of law or resulted in a substantial miscarriage of justice. 223 I am not satisfied that evidence of Mr Kouvaris’ driving on 11 March 2020, of itself, constituted evidence discreditable conduct. As to the question of what -- 45 of 55 -- [2026] SASCA 48 David JA 44 conduct will amount to evidence of discreditable conduct, Doyle JA explained in Sadler v The King43: …Speaking generally, and without intending to be definitive, discreditable conduct connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant. However, bearing in mind the context in which the term is used in section 34P, it connotes conduct of a level of seriousness or consequence that it might cause a jury (in the absence of instruction from the trial judge) to engage in some form of impermissible “bad person” reasoning. 224 During the trial, it was never suggested that this evidence was discreditable conduct nor were any directions in conformity with s 34R sought by defence counsel. Rather, the prosecution relied on the evidence as relevant to proving Mr Kouvaris’ association with the other appellants and with Mr Andriano and Mr Ierace. This was in turn relevant to establishing that he was using the mobile phone registered to his wife on 11 March 2020 (and inferentially on other occasions) when the mobile phone could be placed in the vicinity of the Coonalpyn property (and the first and second crop sites). The evidence was also relevant to the question of whether the Macpac backpack containing the cannabis related items which was handed to him at his premises on 11 March 2020 and located in his garage belonged to him. The jury were instructed on the relevance of the evidence to these issues. For example, the trial judge instructed the jury: So, the prosecution points to the black Macpac found in Mr Kouvaris’ garage and says in that Macpac are all the sorts of things you would need if you were doing what those four men were doing on 11 March 2020 - camouflage hat, insect repellent, gloves, netting. But, more significantly, in that Macpac are the Nike Air Jordans with Mr Kouvaris’ DNA on them and soil that Professor Fitzpatrick said is likely to have come from crop site 1 and/or 2. So the prosecution case is that Mr Kouvaris might have been the driver some of the time and, of course, on 11 March 2020. But if the backpack with the shoes in it was not his, why is it handed to him on 11 March 2020 and why is it still at the house when police raid it on the 24th? 225 In addition, the trial judge instructed the jury on three occasions that if they were satisfied Mr Kouvaris drove the vehicle on 11 March 2020 or any other occasion, and nothing more, they were obliged to acquit him of both counts. This direction underscored to the jury that he was not guilty of any criminal offence by driving the other appellants to the vicinity of the first crop site on 11 March 2020. 226 It is to be accepted that conduct falling short of a criminal offence can still amount to evidence of discreditable conduct. However, in the circumstances of this case, I do not consider the alleged conduct was of a level of seriousness that a jury would engage in some form of bad person impermissible reasoning. In reaching that conclusion, I have borne in mind that the limited use of the evidence was clearly explained to the jury, Accordingly, directions in conformity with s 34R were not required. The directions given by the trial judge were adequate to guard 43 Sadler v The King (2023) 144 SASR 153 at [27] (Doyle JA, Bleby JA and Nicholson AJA agreeing). -- 46 of 55 -- [2026] SASCA 48 David JA 45 against the jury impermissibly reasoning to guilt based on Mr Kouvaris’ discrete act of driving on 11 March 2020. 227 I dismiss this ground of appeal in relation to Mr Kouvaris. Ground 1 – Unreasonable verdicts (Mr Kouvaris - Grounds 1 and 2, Mr Cirillo - Ground 3, Mr Giannini - Ground 1) 228 The test to be applied in determining whether a jury verdict is unreasonable or cannot be supported by the evidence was enunciated by the High Court in M v The Queen.44 In that case, the plurality said:45 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (citations omitted) 229 A verdict will be ‘unreasonable’ or not ‘supported having regard to the evidence’ when the appellate court concludes that, on the whole of the evidence, it was not open to the jury to be satisfied of guilt beyond reasonable doubt. In determining whether it was open to the jury to be so satisfied, the Court asks itself whether the jury must, as distinct from might, have entertained a reasonable doubt.46 The authorities recognise that ordinarily, ‘a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’.47 As such, it has been said that where the appellate court has a doubt, the appeal must be allowed unless the jury had an advantage capable of resolving the doubt experienced.48 230 In determining an unreasonable verdict ground, an appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.49 The jury’s advantages are not confined to witness testimony but may 44 M v The Queen (1994) 181 CLR 487. 45 M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ). 46 Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J). 47 M v The Queen (1994) 181 CLR 487 at 494, cited with approval in Dansie v The Queen (2022) 274 CLR 651 at [9] (Gageler, Keane, Gordon, Steward and Gleeson JJ). 48 M v The Queen (1994) 181 CLR 487 at 494. 49 M v The Queen (1994) 181 CLR 487 at 494. -- 47 of 55 -- [2026] SASCA 48 David JA 46 extend to all the evidence adduced at trial. As the High Court recently explained in R v ZT:50 …The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial… (citations omitted) 231 The prosecution case against each appellant was wholly circumstantial. During the trial there was little dispute as to the evidence adduced by the prosecution. Rather, defence counsel challenged the inferences the prosecution invited the jury to draw from the evidence. In those circumstances, the jury’s advantage in having seen and heard the evidence was limited. 232 The task for this Court is not to determine whether there is evidence to support the verdict, but rather, the task involves the Court determining ‘for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence’.51 233 Under this ground of appeal, the appellant Mr Kouvaris complains that the verdicts on Counts 1 and 2 are unreasonable or cannot be supported by the evidence, while the appellants Mr Cirillo and Mr Giannini complain that the verdict on Count 2 is unreasonable or cannot be supported by the evidence. Count 1: Crop Site 1 – Mr Kouvaris only 234 I have already summarised the prosecution and defence cases in respect of Mr Kouvaris and Count 1. As outlined earlier, there was no dispute that on 11 March 2020, Mr Kouvaris was the driver of Mr Giannini’s white Mitsubishi Triton vehicle which travelled to the Coonalpyn property near the first crop site. Nor was there any dispute that Mr Kouvaris remained in the vehicle and did not enter the crop site on this occasion. 235 Upon my own independent review of the whole of the evidence adduced at trial and the record, I am satisfied that it was open to the jury to find that Mr Kouvaris cultivated the cannabis plants the subject of Count 1 by tending, nurturing or growing the plants on an occasion during the charged period other than on 11 March 2020. The following pieces of circumstantial evidence were capable together of supporting that inference beyond reasonable doubt. 50 R v ZT (2025) 281 CLR 137 at [9] (Gaegler CJ, Gleeson, Jagot and Beech-Jones JJ). 51 Dansie v The Queen (2022) 274 CLR 651 at [7] (Gageler, Keane, Gordon, Steward and Gleeson JJ). -- 48 of 55 -- [2026] SASCA 48 David JA 47 236 First, Mr Kouvaris’ association with the other appellants (and Mr Andriano and Mr Ierace) throughout the charged period as proved by the surveillance evidence, cell tower evidence and safe-t-cam evidence. 237 Secondly, the Macpac backpack seized from Mr Kouvaris’ home containing items consistent with cultivating an outdoor cannabis crop including shoes with altered lambswool soles, camouflage hat, camouflage top, hi-visibility top, fly net, gardening glove, lighter, a pair of gloves, three empty cigarette packets, water bottle, diet cordial bottle and Aerogard. While it was suggested during the trial, and on appeal, that the Macpac backpack was of an appearance consistent with a backpack worn by Mr Giannini on 11 March 2020, there was evidence which militated against this submission. The Macpac backpack contained a cigarette lighter and an empty packet of cigarettes, and there was evidence that Mr Kouvaris was a smoker. Further, similar backpacks containing items associated with cannabis cultivation were located on 24 March 2020 at the homes of all five alleged offenders, suggesting that each male was in possession of at least one backpack. 238 Thirdly, and in relation to the lambswool sole shoes found in the backpack, there was evidence of a very strong degree of comparability between the samples taken from each shoe and the soil taken from the Coonalpyn property at both crop sites. There was also extremely strong support for the hypothesis that Mr Kouvaris and Mr Andriano were contributors to the DNA profile extracted from the shoes. 239 As to the submission that the prosecution could not exclude that the shoes were worn by another person at the cannabis crop (such as Mr Andriano), the police seized a total of six pairs of shoes with lambswool soles on 24 March 2020: two from Mr Giannini’s home, and one each from the homes of Mr Kouvaris, Mr Cirillo, Mr Andriano and Mr Ierace suggesting that they had each worn their own pair of shoes on 11 March 2020. Further, the lambswool shoes seized from Mr Kouvaris’ home address were a pair of Nike Air Jordans, size 12. Also on the shelf in the same garage were four separate pairs of size 12 Nike basketball shoes. 240 Fourthly, the cell tower evidence placed the mobile telephone registered to Mr Kouvaris’s wife in the vicinity of the Coonalpyn property on numerous occasions during the relevant period. 241 Having regard to those bodies of circumstantial evidence and upon my own independent review of the whole of the evidence adduced at trial, I am satisfied that it was open to the jury to find that the appellant Mr Kouvaris cultivated the cannabis plants (the subject of Count 1) by nurturing, tending or growing the cannabis plants on an occasion other than 11 March 2020. There was no dispute as to the other elements of the offence. The evidence was capable of excluding a hypothesis consistent with his innocence, namely that Mr Kouvaris only drove the other offenders to the Coonalpyn property on this one occasion or other occasions and was not otherwise involved in the cultivation of the first cannabis crop as a gardener. -- 49 of 55 -- [2026] SASCA 48 David JA 48 Count 2: Crop site 2 – all appellants 242 The appellants challenge the guilty verdicts on Count 2 as unreasonable and as not supported by the evidence. The appellants contend that there was a hypothesis consistent with innocence which has not been excluded by the prosecution; namely, that the first and second cannabis crops were established and operated by different persons, or even accepting the same persons established the two cannabis crops, the prosecution had not excluded that ‘gardeners’ other than the appellants were engaged in respect of the second cannabis crop. The appellants emphasise that there was no forensic evidence or other direct evidence which placed the appellants at the second cannabis crop site (the subject of Count 2). 243 This ground of appeal proceeds on the basis that it was open to the jury to find that the appellants were guilty on Count 1, and the evidence of Count 1 was admissible for improbability reasoning on Count 2. For the reasons already outlined, it was open to the jury to convict the appellant Mr Kouvaris of Count 1, noting that there was no unreasonable verdict complaint by Mr Cirillo or Mr Giannini in respect of Count 1. 244 As outlined earlier, and in respect of all the appellants, the evidence of Count 1 was admissible for improbability reasoning in proof of Count 2. Upon my own independent review of the evidence, I am satisfied that it was open to the jury to find that the two cannabis crops were established by the same person or persons. Indeed, I consider that this was an irresistible inference having regard to the similarities between the two cannabis crop sites as described by the police witnesses and captured in the photographs (and as outlined earlier). 245 The more difficult issue is whether the evidence of Count 1, and the jury’s acceptance that the defendant under consideration was involved as a ‘gardener’ in the first cannabis crop rendered it improbable that he cultivated the second cannabis crop as a ‘gardener’ by tending, nurturing or growing the cannabis plants (the subject of Count 2). The appellants contend that the evidence does not support a finding beyond reasonable doubt that the persons who established both cannabis crops engaged the same persons as gardeners (the appellants) for both crops. 246 It is the appellants’ contention that without any direct evidence to specifically link the appellants to the second crop site, the guilty verdicts on Count 2 are unreasonable and cannot be sustained on the evidence. More particularly, the appellants submit that it was a reasonable possibility and indeed, more likely, that the persons who established the two cannabis cultivations would engage different gardeners for each crop to ‘silo’ each illegal operation and minimise the risk of detection should one ‘gardener’ or cannabis crop be placed under surveillance or detected by the authorities. The appellants emphasise Detective Guerin’s evidence that he could not exclude this possibility. 247 It is to be accepted that there was no direct evidence of the appellants having attended at the second cannabis crop site, the subject of Count 2. There was no forensic evidence or surveillance evidence which directly placed any of the -- 50 of 55 -- [2026] SASCA 48 David JA 49 appellants at the second crop site. However, the evidence of their involvement in respect of the cannabis cultivation the subject of Count 1 (outlined earlier) was strong. Again, all the appellants were in possession of shoes consistent with those observed on the persons at the crop site on 11 March 2020. In the cases of Mr Kouvaris and Mr Giannini, their DNA profile was extracted from those shoes. All the appellants’ shoes contained traces of THC and soil remnants consistent with having come from either, or both, crop sites. The cell tower evidence showed that mobile telephones associated with the appellants (or in the case of Mr Kouvaris, his wife) had been in the vicinity of the Coonalpyn property (and thus, either or both crop sites) on numerous occasions during the charged period. 248 In addition to the above, in relation to Mr Cirillo, there was evidence of the Karoonda property which showed his knowledge of cannabis cultivation and that he was in possession of a bud stripper used to harvest cannabis plants. There was also surveillance evidence which showed Mr Cirillo purchasing fertiliser and gardening items during the relevant period as well as green paint (used on both crop sites). Green spray paint was also located during the search of Mr Cirillo’s home. 249 The strength of the evidence of each appellant’s involvement in the cannabis crop, the subject of Count 1, while not directly relevant to place any of the appellants at the second crop site was still relevant when considering improbability reasoning and the case against each appellant on Count 2. For example, the number of times each appellant had travelled in the vicinity of the Coonalpyn property and both crop sites provided each appellant with other opportunities to attend at the second cannabis crop site. Further, in respect of Mr Cirillo, his knowledge of cannabis cultivation as demonstrated by the evidence of the Karoonda property and his possession of the bud stripper was also relevant when considering the strength of the prosecution case on Count 2. 250 It is to be accepted that the appellants were not observed attending the second crop site on 11 March 2020. However, the absence of this evidence does not in fact detract from the prosecution case. On 11 March 2020, the appellants were observed travelling from Adelaide to the first crop site arriving at about 9:30am. They do not leave the site until about 2:35pm. While there are still daylight hours within which to attend the second crop site, it must be remembered that earlier that day it took the police two and a half hours to travel from Adelaide to the first crop site. In addition, there were five persons in the white Mitsubishi Triton on 11 March 2020 who needed to be taken from the Coonalpyn property to various homes throughout Adelaide. There was in fact little daylight hours left that day for the appellants to tend to the second crop site should they have been so minded. 251 Further, as mentioned earlier, there was phone evidence and safe-t-cam evidence that each of the appellants had travelled (in various combinations) to the Coonalpyn area between 10 and 14 times over the previous three months. The -- 51 of 55 -- [2026] SASCA 48 David JA 50 number of times each appellant travelled to the area where both crop sites were situated made it more likely that they were gardening both cannabis crops. 252 As to the prosecution case against Mr Cirillo, there was evidence which linked him to both cannabis crops. There was evidence that Mr Cirillo was observed buying green paint in January 2020 and was in possession of green spray paint at his home on 22 March 2020. Green paint was used to camouflage the cannabis cultivation at both crop site 1 and 2. 253 That being said, the prosecution case against all appellants effectively rested on the force and cogency of improbability reasoning. I consider that once the jury were satisfied that the same persons established the two cannabis crops and that the appellants were engaged as gardeners for the first cannabis crop, it was open to the jury to also find that it was inherently improbable in the circumstances of this case, that they were not engaged as gardeners of the second crop. The crop sites were situated on the one property at a rural and geographically isolated location, two and a half hours from Adelaide, and in very close proximity to each other. It is highly improbable that persons would use different gardeners to tend to the two crops in those circumstances. To engage different gardeners for each crop would also increase the risk of detection by engaging more persons into the unlawful enterprise than was necessary and reduce the profit to those involved. It is also to be observed that given the similarities in the set up of both cannabis cultivations, the same knowledge was required to tend to both crops which again added to the improbability of engaging different gardeners. 254 While there was no forensic or surveillance evidence which directly placed any of the appellants on the second crop site, and the other pieces of circumstantial evidence were equally consistent with each of the appellants cultivating only the first cannabis crop, it was nonetheless open to the jury to be satisfied beyond reasonable doubt of Count 2 by deploying improbability reasoning. 255 I dismiss these grounds of appeal. Proposed Orders: 256 I grant permission to appeal on all grounds but dismiss the appeal. -- 52 of 55 -- [2026] SASCA 48 Stanley JA 51 257 STANLEY JA: I gratefully adopt David JA’s summary of the surrounding facts and circumstances relevant to these appeals. 258 For the reasons given by S Doyle JA and David JA, I agree that the appeals in relation to Count 1 should be dismissed against all appellants. 259 For the reasons given by David JA and S Doyle JA, I also agree that the evidence of the appellants’ involvement on Crop 1 was admissible as probative of their involvement on Crop 2, and that the evidence of Mr Cirillo’s involvement in the Karoonda cultivation was admissible as probative of his involvement on Crops 1 and 2. 260 I gratefully adopt and agree with the reasons of David JA in relation to the complaints that the trial judge’s directions as to the permissible and impermissible use of the evidence of discreditable conduct were inadequate. I am satisfied, for the reasons given by David JA, that the trial judge’s directions adequately complied with s 34R of the Evidence Act and I would reject these grounds of appeal. 261 The appellants each challenge the guilty verdicts on Count 2, submitting that the jury’s verdicts of guilty in relation to Crop 2 were unreasonable and not supported by the evidence. I gratefully adopt David JA’s analysis of the principles governing a challenge to a verdict on this ground. 262 The case against each appellant on Count 2 was circumstantial. There was no forensic, surveillance or other direct evidence which placed the appellants at Crop 2, being the subject of Count 2. 263 As the High Court explained in Dansie v The Queen52, in a case where the evidence is substantially circumstantial the appellate court’s task is to undertake an independent assessment of the evidence. This requires it weigh all of the circumstances in deciding whether it was open to the finder of fact to draw the ultimate inference that guilt has been proved beyond reasonable doubt. This requires the appellate court to form its own judgment as to whether the prosecution has failed to exclude an inference consistent with innocence that was open as a reasonable possibility.53 264 In this case, the jury had no significant advantage so there is little scope for this Court to reason that any doubt which it might experience was capable of being resolved by reference to the jury’s advantage in having seen and heard the witnesses give evidence. 265 The case against the appellants on ground 2 relies heavily on improbability reasoning. S Doyle JA reasoned that on the evidence before the jury this Court could not exclude as a reasonable possibility that the appellants worked on the 52 Dansie v The Queen (2022) 274 CLR 651. 53 Dansie v The Queen (2022) 274 CLR 651 at [12]. -- 53 of 55 -- [2026] SASCA 48 Stanley JA 52 cultivation of Crop 1 but not Crop 2. His Honour concluded that the improbability reasoning relied upon by the prosecution was insufficient to establish beyond reasonable doubt the involvement of any of the appellants in the cultivation of Crop 2. Rather, it could not be excluded as a reasonable possibility that the evidence the jury heard was equally consistent with the appellants working only on Crop 1, as opposed to Crop 2. 266 I regret that I am unable to agree entirely with S Doyle JA or David JA. However, I am persuaded beyond reasonable doubt by the evidence that David JA found persuasive, that Mr Cirillo was involved in the cultivation of Crop 1 and Crop 2. On the other hand, for the reasons given by S Doyle JA, I am not satisfied that it was open to conclude beyond a reasonable doubt that Mr Kouvaris or Mr Giannini were involved in the cultivation of Crop 2. 267 It is convenient to deal first with the appeals of Mr Kouvaris and Mr Giannini. The circumstantial evidence against Mr Kouvaris and Mr Giannini is equivocal. That evidence is insufficient to support a finding of guilt beyond reasonable doubt in respect of either or both of them. That evidence included: (i) the traces of THC on their shoes which is consistent with having come from either, or both, crop sites; (ii) the traces of soil remnants on their shoes which is consistent with having come from either, or both, crop sites; (iii) the appellants including Mr Kouvaris and Mr Giannini making multiple and frequent trips to the relatively confined area where crops 1 and 2 were located; and (iv) the vehicle and phone evidence of them travelling to that area. 268 The evidence against each of them is equally consistent with them working only on Crop 1 as each of them working on both Crop 1 and Crop 2. There is a reasonable possibility they are innocent of the charges on Count 2. 269 I would allow Mr Kouvaris and Mr Giannini appeals on Count 2. 270 Turning to Mr Cirillo, the evidence I find persuasive against him, notwithstanding the absence of any forensic, surveillance or other evidence which directly placed him at the second crop site is: (v) the evidence on count 1 for the purpose of improbability reasoning on count 2 as explained by David JA; (vi) the evidence of his possession of a bud stripper used to harvest cannabis plants, there being no corresponding evidence of the possession of a bud stripper by anyone else associated with the Crop sites; -- 54 of 55 -- [2026] SASCA 48 Stanley JA 53 (vii) the evidence he purchased fertiliser and gardening items as well as green paint, which, while used at both crop sites, as was established by the surveillance evidence, were found during a search of Mr Cirillo’s residence, there was no evidence of Mr Kouvaris or Mr Giannini being in possession of fertiliser and gardening items as well as green paint; (viii) the evidence of his knowledge of cannabis cultivation is demonstrated by the evidence of the Karoonda property, making it more likely he was involved in the cultivation of Crop 2; (ix) the force of the improbability reasoning. Once the jury were satisfied that the same persons established the two crops and that Mr Cirillo was engaged to cultivate the first crop, it was open to the jury also to find that it was inherently improbable in the circumstances of the case that he was not engaged in relation to the second crop. The crops sites were situated on the same rural property, geographically isolated 2.5 hours from Adelaide and in close proximity to each other; and (x) also, it is improbable that the persons who planted the crops would use different gardeners to tend to them given, as David JA has identified, the resulting increase in the risk of detection along with the increased cost of the enterprise. 271 This evidence is sufficient to establish beyond reasonable doubt the involvement of Mr Cirillo as a gardener for Crop 2. I would allow, but dismiss his appeal against conviction on Count 2. Conclusion 272 I would grant permission to appeal on all grounds. 273 In relation to Mr Kouvaris and Mr Giannini appeals on Count 2, I agree with the reasons and orders of S Doyle JA. For each appellant, I would allow the appeal insofar as it challenges his conviction for Count 2, I would set aside his conviction on Count 2, and enter an acquittal on that count. 274 However, in relation to Mr Cirillo’s appeal on Count 2, I agree with the orders of David JA. I would dismiss his appeal insofar as it challenges his conviction for Count 2. 275 I would otherwise dismiss the appellants’ appeals. -- 55 of 55 --