BRANDON JOHN VERBAN v THE KING [2026] SASCA 21

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TELFER) DCCRM-22-336 Appellant: BRANDON JOHN VERBAN Counsel: MR S HENCHLIFFE KC - Solicitor: MR T CLARKE Respondent: THE KING Counsel: MR M HINTON KC WITH MS M ROCCA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 14/08/2025 File No/s: SCCRM-23-029456 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. VERBAN v THE KING (No 2) [2026] SASCA 21 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby) 12 March 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION This is an appeal against conviction. The appellant was tried before a District Court judge and a jury. The jury returned a unanimous verdict of guilty on Counts 1 (trafficking in a controlled drug) and 2 (money laundering), together with a majority verdict of guilty on Count 3 (trafficking in a controlled drug). The prosecution case at trial mainly relied on evidence seized from the appellant’s house and car following searches made a few weeks apart, including $73,620 in cash, 28.2 grams of methylamphetamine (in the house) and 102 grams of methylamphetamine (in the car). Additionally, the prosecution made use of an expert forensic accountant regarding the appellant’s income sources. -- 1 of 40 -- The trial judge gave a ruling under s 34P of the Evidence Act 1929 (SA) (the Evidence Act), permitting the prosecution to lead discreditable conduct evidence concerning the results of each search in proof of each charge. The appellant gave evidence at trial. The appellant’s case at trial was that: (1) the methylamphetamine the subject of Count 1 (found in the house) was for his own use and he did not intend to sell any of it; (2) the cash which was the subject of Count 2 was from gambling; and (3) the methylamphetamine the subject of Count 3 (found in the car) did not belong to him and he was not in possession of it. The appellant was cross-examined by the prosecution, and it was suggested that the appellant had a tendency to lie and that he may have sold drugs eight years before the alleged offending. The prosecutor did not seek leave under s 18 of the Evidence Act before asking these questions. The trial judge gave directions to the jury regarding the “tainted property” (Count 2) and about the concept of possession (Count 3). On appeal, the appellant contended that the cross-examination caused a miscarriage of justice (Ground 1) and the trial judge misdirected the jury about “tainted property” (Ground 3) and possession (Ground 4). Appeal ground 2 was abandoned. Held (the Court) that permission to appeal should be granted, but the appeal dismissed: 1. The six questions asked of the appellant in cross-examination impermissibly suggested prior offending and “bad character”, contrary to s 18(1)(d) of the Evidence Act. Notwithstanding the discreditable conduct ruling made pursuant to s 34P of the Evidence Act, leave should have been sought but would not have been obtained to ask those questions. However, in the circumstances of this case, the cross-examination occasioned no material miscarriage of justice (Ground 1). [102]-[107] 2. Observations made regarding the need for the prosecution to seek leave to cross-examine under s 18 notwithstanding a discreditable conduct ruling made under s 34P of the Evidence Act. [93]-[100] 3. The trial judge did not err in directing the jury on the issue of money laundering that the prosecution needed to prove that “the money in the drawer or at least part of it was, in fact, the proceeds of drug sale or sales, or that it was obtained as a result of money from selling drugs being gambled” (Ground 3). [123]-[129] 4. The trial judge’s directions were sufficiently clear to adequately convey the matters which the jury needed to find before they could determine the question of possession beyond reasonable doubt (Ground 4). [148]-[151] Controlled Substances Act 1984 (SA) ss 4, 32(3); Criminal Assets Confiscation Act 2005 (SA) ss 3(1), 7, 7(1)(a); Criminal Evidence Act 1898 (UK) 61 & 62 Vict c 36; Criminal Law Consolidation Act 1935 (SA) ss 130, 138(1); Criminal Procedure Act 1921 (SA) s 158(1)(c); Evidence Act 1929 (SA) ss 18, 18(1), 18(1)(a), 18(1)(b), 18(1)(c), 18(1)(d), 18(1)(d)(i), 18(1)(d)(ii), 18(1)(d)(iii), 18(1)(d)(iv), 18(2), 34P, 34P(2), 34P(2)(a), 34P(2)(b), 34P(4), 34P(5), 34R; Evidence Amendment Act 1925 (SA) s 12; Proceeds of Crime Act 2002 (Cth) s 330, referred to. Attwood v The Queen (1960) 102 CLR 353; BNM v The Queen [2020] SASCFC 10; Donnini v The Queen (1972) 128 CLR 114; Hammer v The Queen [2022] SASCA 75; Lordianto v Commissioner for the Australian Federal Police (2019) 266 CLR 273; Phillips v The Queen (1985) 159 CLR 45; R v Conley (1982) 30 SASR 226; R v Kostaras (2002) 133 A Crim R 399; R v Scott-Combe [2023] SASCA 37; The Queen v Mustafa (2005) 91 SASR 62; The Queen v Vuckov and Romeo (1986) 40 SASR 498, discussed. Alford v Magee (1952) 85 CLR 437; Brawn v The King (2025) 99 ALJR 872; De Silva v The Queen (2019) 268 CLR 57; Evans v The Queen [1999] WASCA 252; Harriman v The Queen (1989) 167 CLR 590; Hinrichsen v The King (2023) 144 SASR 44; Jones v Director of Public Prosecutions [1962] AC 635; Kroni v The Queen (2021) 138 SASR 37; Magro v The King [2022] SASCA 100; Matusevich v The Queen (1977) 137 CLR 633; MDP v The King (2025) 99 ALJR 969; Nudd v The Queen (2006) 80 ALJR 614; Perara-Cathcart v The Queen (2017) 260 CLR 595; Police v Smith [2025] SASCA 37; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; -- 2 of 40 -- R v Baftiroski [2018] SASCFC 83; R v Brownlow (2003) 86 SASR 114; R v C, CA [2013] SASCFC 137; R v Dib (1991) 52 A Crim R 64; R v Franco (2009) 105 SASR 446; R v Frangos (1979) 21 SASR 331; R v GNN (2000) 78 SASR 293; R v Jones (2018) 131 SASR 532; R v Lambert [1957] SASR 341; R v Long & McDonnell (2002) 137 A Crim R 263; R v Marshall (2023) 144 SASR 1; R v MJJ (2013) 117 SASR 81; R v Nguyen [2010] SASCFC 23; R v Nikolic [2019] SASCFC 32; R v Saleh [2017] SASCFC 75; R v Singh [2019] SASCFC 51; R v Soteriou (2013) 118 SASR 119; R v Sultana (1994) 74 A Crim R 27; R v Turner [1947] SASR 74; R v Wood (2017) 131 SASR 291; The Queen v A2 (2019) 269 CLR 507; The Queen v Falzon (2018) 264 CLR 361; Verban v The King [2025] SASCA 14; Zenuni v The King (2022) 303 A Crim R 311, considered. -- 3 of 40 -- -- 4 of 40 -- VERBAN v THE KING (No 2) [2026] SASCA 21 Court of Appeal – Criminal: Livesey P, S Doyle and Bleby JJA THE COURT: Introduction 1 Mr Verban, the appellant, was tried before a District Court judge and a jury between 17 and 25 July 2023. The jury returned unanimous verdicts of guilty on Counts 1 and 2, together with a majority verdict of guilty on Count 3, concerning the following drug trafficking and money laundering offences: Count 1 Trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). This count concerned the appellant’s alleged possession of 35.2 grams of a crystalline substance containing 28.2 grams of methylamphetamine, located by police during a search of the appellant’s home at Campbelltown on 24 March 2021. Count 2 Money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). This count concerned Mr Verban’s possession of $73,620 in cash located by police during the same search of the appellant’s home at Campbelltown on 24 March 2021. At issue was whether the appellant had engaged in a transaction involving tainted property comprising cash. Count 3 Trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the CSA. This count concerned the appellant’s alleged possession of about 132 grams of a crystalline substance containing 102 grams of methylamphetamine located by police during a search of the appellant’s car at West Lakes around two months later, on 20 May 2021. 2 A notice of appeal was initially filed on 10 August but then discontinued on 13 September 2023. An application to set aside the discontinuance was filed on -- 5 of 40 -- [2026] SASCA 21 The Court 2 31 January, and leave was granted to withdraw the discontinuance and amend the grounds of appeal on 13 February 2025.1 3 At the same hearing this appeal was set down and any question of permission to appeal was referred to the Court of Appeal for argument as on appeal. The appellant filed an amended notice with amended appeal grounds on 10 July 2025. There was no opposition by the Director of Public Prosecutions (SA) (the Director) to the grant of leave to amend. The appellant now relies on three appeal grounds which raise the following issues:2 1. The cross-examination of the appellant by the prosecutor at the trial breached the prohibition in s 18(1)(d) of the Evidence Act 1929 (SA) (the Evidence Act) because he was asked questions which tended to show that he was of bad character, resulting in a miscarriage of justice. 3. The directions given to the jury by the trial judge about “tainted property” were wrong in law or, alternatively, were inadequate and resulted in a miscarriage of justice. 4. The directions given by the trial judge to the jury on possession were wrong in law or, alternatively, they resulted in a miscarriage of justice. 4 For the following reasons, permission to appeal should be granted insofar as it is required, but the appeal dismissed. These reasons are set out as follows: An overview of the prosecution case at trial .................................................................................. 2 An overview of the defence case at trial ........................................................................................ 5 Appeal ground 1 – cross-examination in breach of s 18 of the Evidence Act................................ 8 The cross-examination in this case .......................................................................................... 15 The determination of appeal ground 1..................................................................................... 19 Appeal ground 3 – the directions concerning tainted property .................................................... 27 The determination of appeal ground 3..................................................................................... 30 Appeal ground 4 – the directions about possession ..................................................................... 32 The determination of appeal ground 4..................................................................................... 34 Conclusion ................................................................................................................................... 36 An overview of the prosecution case at trial 5 On 20 January 2021, the appellant leased a home at Campbelltown, providing his landlord with $6,500 in cash and payslips in the name of the appellant, but issued by a company for which the appellant had never worked. The appellant later transferred $10,000 to his landlord for further rent in advance. 1 Verban v The King [2025] SASCA 14 (Livesey ACJ). 2 Appeal ground 2 was abandoned. -- 6 of 40 -- [2026] SASCA 21 The Court 3 6 The following month, the appellant bought a Toyota motor vehicle for which he paid $85,000 in cash produced from a shopping bag. In late April, early May 2021, the appellant bought a silver BMW motor vehicle for his domestic partner for between $2,500 and $3,000. Again, the appellant paid in cash. 7 The evidence on which the prosecution invited the jury to find the appellant guilty beyond reasonable doubt concerning Counts 1 and 2 included that, a little earlier, on 24 March 2021, police searched the appellant’s home at Campbelltown and found: 1. Within bedside table drawers in the master bedroom, a vacuum sealed bag containing $73,620 in cash, together with a number of papers and press sealed bags. 2. On the top shelf of the wardrobe in the master bedroom, a copy of the receipt for the rental bond, a press sealed bag containing 35.2 grams of a crystalline substance containing 28.2 grams of methylamphetamine, together with a plastic bag containing more vacuum sealed bags. 3. On the floor of the wardrobe in the master bedroom, another plastic bag containing a number of press sealed bags. 4. Under the bed frame of the master bed, a heat-sealing machine. 5. In the kitchen, electronic scales and a cash counting machine. 6. In the hallway, a smaller set of electronic scales. 8 The appellant was interviewed by police that day. The appellant admitted that he lived at Campbelltown and that there was cash in his home in the amount of $75,000, which he said comprised winnings from gambling and proceeds from trading in motor vehicles in previous years. The substance in the plastic bag was slightly less than two ounces of methylamphetamine or ‘ice’. The appellant told police he purchased ice every few weeks for his personal use although he also shared it with friends. 9 Police also seized a mobile telephone used by the appellant. The encrypted applications ‘Wickr’ and ‘Signal’ were installed. Police found the following exchange involving the appellant and a person described as “Spin doctor” on 22 March 2021: Spin doctor: hi mate are you able to help me out I am after some credit till later on in the week if can’t that’s okay. Appellant: I’m not doing any more to (sic) much heat atm. Spin doctor: yea no worries mate. -- 7 of 40 -- [2026] SASCA 21 The Court 4 10 A forensic accountant, Mr Brenton Warren, gave evidence regarding a “sources and use” analysis he had undertaken concerning the appellant’s financial records for the period 1 July 2019 to 25 March 2021. He reviewed bank statements, bank vouchers, Adelaide Casino reports and other financial material. He concluded that the appellant had during that period a total of $1,042,785.56 available to him, comprising: 1. Just over $151,000 in funds dispensed from an electronic gaming machine at the Casino. 2. Nearly $126,000 in funds taken from a gaming table at the Casino. 3. Just over $27,500 in funds withdrawn in cash using the appellant’s membership card issued by the Casino. 4. Nearly $189,500 in funds deposited into the appellant’s bank accounts by various individuals. 5. $50,000 in funds received as compensation on the sale of a motor vehicle in 2021. 6. Just over $31,800 in funds deposited into the appellant’s bank accounts by various entities. 7. Nearly $7,900 in funds paid to the appellant as salary and wages. 8. $400 deposited into the appellant’s bank account at an automated teller machine. 9. Nearly $459,000 in funds comprising “cash and non-bank funds”. 11 This analysis required that Mr Warren make a number of assumptions, including that the appellant had no funds or assets as at 1 July 2019. Other limitations in the analysis included that there was no information available regarding any winnings the appellant may have made from non-Casino electronic gambling and, similarly, that there was no information available as to what the appellant may have spent in cash, such as the cash paid to the appellant’s landlord. 12 The evidence on which the prosecution invited the jury to find the appellant guilty beyond reasonable doubt concerning Count 3, included observations made of the appellant and the results of a search of his silver BMW motor vehicle on 20 May 2021. Around 5.30 pm that day, a witness observed the appellant slumped over in the driver’s seat in a silver BMW vehicle parked on a roadway in Semaphore Park. The witness looked inside the vehicle and saw a brown paper bag in the passenger seat footwell. She turned off the car’s engine and roused the driver. The appellant woke in a dazed and panicked state and said that he had to go to the Bartley Tavern. She later followed and saw the appellant and the silver -- 8 of 40 -- [2026] SASCA 21 The Court 5 BMW vehicle there. The appellant was talking to a woman and two children, who were his former domestic partner and their children. The witness called police. 13 A little later, at around 6.40 pm, police located the appellant and the silver BMW at a McDonald’s carpark in West Lakes. Police searched the appellant, the vehicle and his home in Campbelltown. Police found: 1. In the vehicle, partially obscured under the passenger seat, a Gucci branded bag containing a mobile phone, keys and a brown paper bag which, in turn, contained a plastic press-sealed bag holding a crystalline substance weighing 132 grams containing 102 grams of methylamphetamine. 2. In the loungeroom at Campbelltown, a money counting machine. 14 DNA analysis of a swab taken from the outer surface of the press sealed bag inside the Gucci bag disclosed a mixed DNA profile with three contributors. The hypothesis that the appellant was one of those contributors rather than an unknown, unrelated person was 100 billion in favour. A similar result was obtained from a swab taken from the steering wheel of the vehicle. Nonetheless, because police wore the same set of gloves during their search of the silver BMW and the Gucci bag, there may have been a secondary transfer of DNA. 15 A blood analysis of the appellant’s blood disclosed gamma-hydroxybutyrate (GHB), methylamphetamine, amphetamine and MDMA. 16 The prosecution also relied on evidence from Detective Brevet Sergeant Rebecca Vincent, from the Serious and Organised Crime Branch, explaining that methylamphetamine is an amphetamine stimulant drug which appears as a clear/white glass. She gave evidence that it is consumed by smoking it in a glass pipe, through intravenous injection or when dissolved in a liquid and swallowed. Methylamphetamine is sold on the street in plastic resealable bags in quantities between 0.1 and 1 grams, but it is also sold as ‘an eight ball’, which is 3.5 grams. 17 The jury was given an explanation for the use of certain terms associated with drug dealing, including the potential meaning of the words “reload” (an attempt to acquire more drugs) together with “credit” (delayed payment). The jury was presented with evidence about the typical indicia of drug dealing in methylamphetamine, including the use of scales, plastic resealable bags, large quantities of cash, cash counting machines, vacuum sealing machines, multiple mobile telephones, as well as the use of older model mobile telephones and encrypted applications. An overview of the defence case at trial 18 In overview, the appellant’s case before the jury was that: 1. The methylamphetamine the subject of Count 1 (found in the home) was for the appellant’s own use, and he did not intend to sell any of it. -- 9 of 40 -- [2026] SASCA 21 The Court 6 2. The cash the subject of Count 2 was obtained by the appellant from gambling. 3. The methylamphetamine the subject of Count 3 (found in the vehicle) did not belong to the appellant, and he was not in possession of it. 19 The appellant gave evidence. He told the court that he first used cannabis from the age of 16 following a motor accident. At the age of 19, he started smoking methylamphetamine. He said he purchased drugs using money received as compensation from the motor accident, being an amount of $100,000. Some of the money was used for gambling. 20 The appellant had fallen from a roof whilst working in 2017. Again, he received compensation. Again, he spent the money on drugs and gambling. 21 The appellant told the jury that in 2020, he had been involved in a motor-cycle accident and, by 2021, he had a very heavy methylamphetamine addiction. 22 The appellant told the jury that he had been gambling since he was 16 years. He was introduced to the VIP room at the Adelaide Casino and, by 2020, he was gambling daily, mainly on poker machines. The appellant said that whilst he was gambling, he was a heavy user of ice, a strong form of methylamphetamine, using around 28 grams each week. 23 By late 2020, the appellant had begun buying ice in larger quantities, two ounces at a time (that is, 56 grams at a time) because this was cheaper and avoided fluctuations in prices and quality. The appellant said that two ounces (56 grams) cost between $12,000 and $15,000, which was a large saving on the cost of a quarter of an ounce of between $3,000 and $4,000. 24 By 2020, the appellant said that he was gambling successfully. The appellant told the jury that the cash police found in his home was partly winnings from gambling at the Casino, mainly on blackjack tables. The appellant said that he did not always use his membership card when he gambled at the Casino and so some of his gambling, including his cash winnings, was not accounted for on the forensic accounting analysis. 25 The appellant estimated that around 10 percent of his gambling was captured on his Casino membership card. When shown Exhibit P24, the appellant estimated that the $500,000 paid to the Casino represented around half of his activity at the Casino. 26 The appellant told the jury that he had always had an interest in cars and had been buying and selling cars for some time before the search by police in March 2021. Some of the cash in his home came from trading in cars. -- 10 of 40 -- [2026] SASCA 21 The Court 7 27 The appellant said that two days before purchasing the Toyota for $85,000 in March 2021, he had two or three wins worth around $105,000 and he had also won $20,000 on 14 February 2021. The appellant said that he won more than he lost at the Casino. 28 The appellant said that by March 2021, he had a new domestic partner who was the mother of his third child and she often stayed at his home. 29 The appellant told the jury that between September 2020 and March 2021, he had received over $51,000 in electronic transfers from a friend because he did not have a bankcard with which to deposit cash at an ATM and she lived near a bank. He said that he gave his friend cash to deposit into her account which she would then electronically transfer to him. 30 Otherwise, the appellant said that he would give cash to another friend who lived nearby to deposit cash and transfer him money. The appellant said that he did not deposit cash at the bank himself because he was lazy. 31 The appellant gave evidence that none of the bank transfers concerned the sale of drugs. The appellant said that he gave cash to his sister, her partner and his friends for the purpose of having it transferred back to him into his account. He said that the larger payments came from another friend for work he performed or for the use of his online gambling account. He said that some of the payments concerned sporadic repayments of rent from a person who sub-let a room from him. Other deposits concerned the repayment of money he had loaned. 32 As for Counts 1 and 2, the appellant said that he was living at Campbelltown with his partner and he had purchased the drugs found by police only a week before the search. The various plastic bags comprised used bags in which the appellant had previously purchased methylamphetamine for his own consumption. 33 As for the other items, the appellant gave evidence that he regularly vacuumed sealed his cash to prevent others picking through it. He said that he used the small plastic bags to mix up a dose of methylamphetamine for his own consumption. He used the digital scales to weigh the drugs he had been supplied to ensure that the quantity was accurate. 34 However, the appellant said that the plastic bag police found in his wardrobe was not stored there and must have been moved, possibly by police, as were the brown paper bags and press sealed bags. They had been in the kitchen. The appellant assumed that they had been moved by police. 35 As for the messaging with “Spin doctor” on 22 March 2021, the appellant said that this was a conversation concerning a money loan for gambling. The appellant said that he had loaned “Spin doctor” a few thousand dollars each week for a few months and that being under “heat” referred to the appellant burning through his money despite having the vacuum sealed cash. -- 11 of 40 -- [2026] SASCA 21 The Court 8 36 As for Count 3, the appellant gave evidence that on 20 May 2021 he had worked for a friend and, after that, they had gone to his friend’s home in Greenacres. The appellant had planned to attend a wake at the Bartley Tavern following the funeral of a friend’s father. His partner picked him up and dropped him back to his friend’s home in Greenacres so that he could refresh himself. The appellant said he left in the car to go to the wake, but he did not get to it because he had consumed GHB and was in a bad way. 37 The appellant recalled his arrest at the McDonald’s carpark. The appellant recognised the vehicle and the keys to his garage and Toyota Supra in the Gucci bag. He said that he did not recognise the brown or plastic bag containing methylamphetamine or the mobile telephone. He said that he could not be sure if the Gucci bag was his and he did not own one. 38 Later, the appellant said that the Gucci bag was not his and he would have known if it was in his vehicle. Appeal ground 1 – cross-examination in breach of s 18 of the Evidence Act 39 By appeal ground 1, the appellant contended that questions asked of him in cross-examination breached the prohibition in s 18(1)(d) of the Evidence Act and, whether individually or in combination, these irregularities could realistically have affected the reasoning of the jury to a verdict of guilt.3 40 Appeal ground 1 is in the following terms: 1. The cross-examination of the appellant by the prosecutor breached the prohibition in s 18(1)(d) of the Evidence Act, 1929, because the appellant was asked questions tending to show he was of bad character, resulting in a miscarriage of justice. Particulars 1.1 The prosecutor asked the appellant, “Do you lie frequently about things?” (T313) 1.2 When the appellant answered, “No”, the prosecutor asked him, “Is that [a lie admitted by the appellant] just one of the rare exceptions where you have lied?” (T313) 1.3 The prosecutor asked the appellant, “What about this: have you ever sold even a tinsy bit of your drugs?” (T321) 1.4 When the appellant answered, “No”, the prosecutor asked him, “Not once?” The appellant answered “No” and said he had previously shared his drugs with friends. (T321) This evidence of the appellant’s commission of uncharged offences of supplying a controlled drug would not have been given without the impermissible cross-examination. 3 Criminal Procedure Act 1921 (SA) (the CPA), s 158(1)(c); Brawn v The King (2025) 99 ALJR 872, [10] (The Court). -- 12 of 40 -- [2026] SASCA 21 The Court 9 1.5 The prosecutor asked the appellant, “Never ever in that period [the period of 8 years over which the appellant had been using methylamphetamine] not once sold a tinsy bit?” 41 Section 18(1) of the Evidence Act provides: 18—Accused persons competent to give evidence (1) Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: Provided as follows: (a) a person so charged shall not be called as a witness in pursuance of this Act except upon his own application; (b) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution; (c) a person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged; (d) a person charged and called as a witness in pursuance of this Act shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless— (i) the evidence to be elicited by the question is admissible as tending to show that he is guilty or not guilty of the offence with which he is charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character; or (iii) he forfeits the protection of this paragraph by virtue of subsection (2); or (iv) he has given evidence against any other person charged with the same offence; (e) every person called as a witness in pursuance of this Act shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence; (f) nothing herein contained shall affect the provisions of section 110 of the Justices Act 1921. (2) A defendant forfeits the protection of subsection (1)(d) if— (a) the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or a witness for the prosecution; and -- 13 of 40 -- [2026] SASCA 21 The Court 10 (b) the imputations are not such as would necessarily arise from a proper presentation of the defence. (3) Notwithstanding the provisions of subsection (2), a defendant does not forfeit the protection of subsection (1)(d) by reason of imputations on the character of the prosecutor or a witness for the prosecution arising from evidence of the conduct of the prosecutor or witness— (a) in the events or circumstances on which the charge is based; or (b) in the investigation of those events or circumstances, or in assembling evidence in support of the charge; or (c) in the course of the trial, or proceedings preliminary to the trial. 42 Section 18 of the Evidence Act was initially introduced as s 12 of the Evidence Amendment Act 1925 (SA), modelled on the Criminal Evidence Act 1898 (UK).4 It followed the abolition of the prohibition against an accused giving evidence in his or her own defence, rendering an accused a competent witness for the defence.5 Whilst that prohibition had been removed in South Australia over 30 years before by the Accused Person’s Evidence Act 1882 (SA), six years before the UK legislation, an accused who gave evidence in South Australia did not enjoy the same level of protection as applied under the UK legislation and the 1925 Act was intended to remedy that.6 43 Section 18 of the Evidence Act has been regarded as creating a rule of both evidence and procedure applicable to criminal proceedings. The rule is that a person charged with an offence is a competent witness for the defence at every stage of the proceedings, whether or not the accused is charged jointly with another. The procedure is that where the accused gives evidence and the prosecution wishes to cross-examine about any of the matters proscribed, leave must first be sought from the trial judge. Whether leave is granted depends on the matters in issue and an exercise of discretion by the trial judge,7 which will reflect considerations such as whether the prejudicial effect of the cross-examination will outweigh its probative value and the duty of the court to ensure a fair trial.8 44 In Phillips v The Queen, the High Court regarded a counter-part provision as operating as “a rule of practice which should always be observed in all jurisdictions” in Australia, regardless whether the statute explicitly required that 4 61 & 62 Vict, c 36. See the Parliament of South Australia, Parliamentary Debates, House of Assembly, 18 August 1925, 485 (William Denney, Attorney-General), and R v Turner [1947] SASR 74, 76 (Napier CJ, Reed and Ligertwood JJ). 5 J Stone and WAN Wells QC, “Evidence, its History and Policies”, 1991, Butterworths, p 658. 6 Parliament of South Australia, Parliamentary Debates, House of Assembly, 18 August 1925, 485 (William Denney, Attorney-General). 7 Matusevich v The Queen (1977) 137 CLR 633, 640 (Stephen J); Phillips v The Queen (1985) 159 CLR 45, 51-52 (Mason, Wilson, Brennan and Dawson JJ); R v Kostaras (2002) 133 A Crim R 399, [72] (Doyle CJ). 8 Matusevich v The Queen (1977) 137 CLR 633, 640 (Stephen J); The Queen v Vuckov and Romeo (1986) 40 SASR 498, 526 (Cox J). -- 14 of 40 -- [2026] SASCA 21 The Court 11 leave be sought.9 The High Court regarded the provision as giving “recognition to the basic discretion inherent in all criminal trial judges to exclude evidence otherwise admissible if it would unfairly prejudice the accused”.10 45 In R v Kostaras, Doyle CJ explained the “sound practical reasons” for the requirement that the prosecution must seek leave to cross-examine:11 There are sound practical reasons for this. The making of an application to the judge for leave to cross-examine will focus the attention of all concerned on the question of whether the evidence given by the accused does warrant the exercise of the discretion (it is clear that the discretion is not to be exercised in favour of the prosecution as a matter of course) and will also naturally call for consideration of the scope of the proposed cross- examination. When the discretion arises, the issue for the court is “what fairness requires in the circumstances of the particular case”. (Citations omitted.) 46 The permissive effect of the chapeau to s 18(1) is supported by the protections contained in a number of the sub-sections that follow. For example, under s 18(1)(a), it is a corollary of the proposition that an accused is a competent witness for the defence, rather than the prosecution, that an accused cannot be called as a witness except on the application of that accused. The prosecution cannot compel an accused to give evidence as part of the prosecution case. Under s 18(1)(b), the “failure” of an accused to give evidence cannot be made the subject of comment by the prosecution. 47 The “crimination” provision, s 18(1)(c), is not a protection but in the nature of a clarification. When an accused gives evidence on the accused’s own application, that will necessarily expose the accused to cross-examination, where the purpose of the cross-examination will usually be to secure incriminating admissions or other statements. Indeed, the risk that an accused may give incriminating evidence under cross-examination had been one of the reasons why it had been thought inappropriate to permit an accused to give evidence.12 48 This case concerns the protection or proviso contained in sub-section 18(1)(d). Broadly, whilst an accused may give evidence, that is provided the accused is not cross-examined about four matters. Unless leave is first obtained from the trial judge, s 18(1)(d) prohibits questions tending to show that: 1. the accused has committed any offence other than an offence before the court; 9 Phillips v The Queen (1985) 159 CLR 45, 51 (Mason, Wilson, Brennan and Dawson JJ). 10 Phillips v The Queen (1985) 159 CLR 45, 51 (Mason, Wilson, Brennan and Dawson JJ). 11 R v Kostaras (2002) 133 A Crim R 399, [73] (Doyle CJ), regarding the predecessor provision, s 18(1)(VI)(b). 12 D J Bentley, “English Criminal Justice in the Nineteenth Century” (Hambledon Press, 1998); S Smith QC, “Marshall Hall: A Law unto Himself” (Wildy, Simmonds & Hill Publishing, 2016), p 120-121, where it was observed that there had been a “collective resistance to the idea in capital cases of cross-examining a man to his death”. -- 15 of 40 -- [2026] SASCA 21 The Court 12 2. the accused has been charged with any offence other than an offence before the court; 3. the accused has been convicted of any offence other than an offence before the court; and 4. the accused is otherwise of bad character.13 49 This prohibition is made subject to the four exceptions that follow. This case concerns the potential operation of the first of those exceptions, s 18(1)(d)(i), concerning questions directed to whether the accused was guilty of an offence with which he was charged. By contrast, the accused did not put his good character into issue, s 18(1)(d)(ii), no imputations were made against the character of the prosecutor or a prosecution witness, ss 18(1)(d)(iii) and 18(2), and no evidence was given against a co-accused, s 18(1)(d)(iv).14 50 The words “shall not be asked” and “shall not be required to answer” exclude from the ambit of the provision any evidence voluntarily given by an accused as part of the accused’s evidence-in-chief.15 51 The prohibition concerns questions “tending to show”, meaning to expose, reveal or make known. Accordingly, where the trier of fact is otherwise aware that the accused has committed, been charged with, or been convicted of any offence other than an offence for which the accused is before the court, or is otherwise of bad character, leave may be granted to ask questions about those matters.16 52 In addition, the prohibition does not apply where the questioning comes within the first of the four exceptions, s 18(1)(d)(i), because it goes to “a fact, matter or circumstance which is in itself directly relevant to the proof of the issues” before the court, even if their effect is that they “might also tend to show that the accused was of bad character”: 17 The exclusory words in [this provision] do not naturally relate to a fact, matter or circumstance which is in itself directly relevant to the proof of the issues although its occurrence or existence incidentally tells against the possession by the accused of a good 13 Whilst this fourth limb was only added in 1983, it had previously been regarded as implicit, see The Queen v Vuckov and Romeo (1986) 40 SASR 498, 526 (Cox J). 14 In Matusevich v The Queen (1977) 137 CLR 633, 639 (Stephen J), 646-647 (Murphy J) and 654 (Aickin J, with whom Gibbs and Mason JJ agreed), the Court favoured the view that this exception conferred a right in a co-accused, and not the prosecution, to cross-examine. 15 Jones v Director of Public Prosecutions (1962) AC 635, 663 (Lord Reid). 16 Jones v Director of Public Prosecutions [1962] AC 635, 659 (Viscount Simonds): “the challenged questions must be regarded not in isolation but in relation to the evidence that has already been given … they do not appear … to show to the jury anything they had not been shown before”. See also Lord Reid, 663-664. It is important to observe that, in that case, the House of Lords was addressing the propriety of questions concerning the accused’s alibi which were only asked after the trial judge had heard from both counsel in the absence of the jury and given leave to the prosecution to proceed on “the suggested line of cross-examination”, see 637, 671 (Lord Denning) and 675-676 (Lord Morris of Borth-y-Gest). 17 Attwood v The Queen (1960) 102 CLR 353, 361 (The Court). -- 16 of 40 -- [2026] SASCA 21 The Court 13 character or may be the ground of attributing to him a bad character. This view was expressed by Angas Parsons J in the Supreme Court of South Australia speaking for the Full Court. His Honour said of the cross-examination there objected to: ‘Such questions are not directed as to the accused's bad character, but to prove his guilty knowledge, which was one of the issues in the case, and, that being the position, they were not rendered inadmissible by reason of the fact that they might also tend to show that he was of bad character’: R v Baxter [1927] SASR 321. In R v Lambert [1957] SASR 341 Piper AJ speaking for the Full Court adopted this statement and also said, ‘notwithstanding that it appears that the provisoes’ (to the provision) ‘were enacted in order to protect accused persons from such prejudicial effects as might arise from the consequences of enacting that accused persons may give evidence in their own defence, questions which tend to show that he is of bad character may be asked of an accused person if they are relevant to the question whether he did or did not commit the offence charged’. His Honour added: ‘or to test the veracity of his evidence in chief’, but it is safer to omit this alternative as capable of a construction or application which would carry it beyond relevance into cross-examination to credit. Otherwise the passage expresses the interpretation of the provision which seems best to accord with the probable legislative intention. 53 Though the High Court in Attwood v The Queen generally endorsed the views expressed in the three South Australian decisions mentioned in this passage, the Court appeared to doubt whether “cross-examination to credit” came within the exception.18 54 In The Queen v Vuckov & Romeo, Cox J explained the effect of the ruling in Attwood v The Queen and the breadth of this exception to the prohibition in s 18(1)(d) of the Evidence Act. His Honour endorsed the distinction that Menzies J drew in Donnini v The Queen between questions that came within the scope of the prohibition and questions directed to showing that the accused should be disbelieved on vital issues relevant to the defence:19 In Attwood v The Queen the High Court, in discussing the Victorian analogue to proviso VI, quoted these passages from Baxter and Lambert and Hill and, as it seems to me, with a qualification with respect to testing the veracity of the evidence in chief, put their seal of approval upon them. It interpreted the proviso in a way that made the omission of any express reference to the bad character of the defendant in sub-par (a), as it read until 1983, unimportant, although the Court did suggest a reason for that omission. See also Donnini v. The Queen in which Menzies J. (at p. 130) appears to have said that questions relevant to the defence, designed to show that the accused should be disbelieved on vital issues, are not questions referable either to bad character or to past offences within the meaning of the prohibition. That seems to me, with respect, to be good sense. It does not mean that the proviso has no operation except in the case of questions relating purely to the credit of the defendant. Questions will not be outside the proviso unless they are “directly relevant” to the proof of the issues at the trial. “There must be a real and substantial relevance between the questions asked and the offence charged, and not a merely tenuous connection”: 18 In the passage set out above from Attwood v The Queen (1960) 102 CLR 353, 361, the Court referred to R v Lambert [1957] SASR 341 where Piper AJ had referred to testing “the veracity of … evidence in chief” and added, “but it is safer to omit this alternative as capable of a construction or application which would carry it beyond relevance into cross-examination to credit”. Cf Donnini v The Queen (1972) 128 CLR 114, 130 (Menzies J), where his Honour would have permitted questioning “directed to the very important matter of whether the accused should be disbelieved on vital issues, i.e. that the questioning went merely to credit”. 19 The Queen v Vuckov and Romeo (1986) 40 SASR 498, 526-527 (Cox J). -- 17 of 40 -- [2026] SASCA 21 The Court 14 Reg. v. May. And the general judicial discretion, to forbid a line of cross-examination by the prosecutor where it appears that its prejudicial effect would outweigh its probative value, remained. … If entrapment were a defence, strictly so-called, under our law, I should be willing to hold that the impugned cross-examination of Romeo in this case was admissible under the sub-paragraph. It would have gone to the issue of predisposition and other factors relevant to the postulated defence. In other words, it would have been evidence “tending to show that he is guilty or not guilty of the offence with which he is charged.” However, the ruling I have given about entrapment as a defence precludes the Crown from relying upon that line of reasoning. The evidence is still relevant to the question of entrapment that is raised in the alternative defence arguments, including a possible discretionary decision upon Bunning v. Cross principles, but does it go to the question whether Romeo is “guilty or not guilty of the offence with which he is charged?” The answer must be—not as those words are commonly understood. Romeo does not deny that he is guilty of the offence with which he is charged. He says that, despite his guilt, the prosecution should by one means or another be stopped. The issues raised in the present hearing are directed to that question. (Citations omitted.) 55 In The Queen v Mustafa,20 the appellant was convicted of rape and, on appeal, challenged the decision to permit cross-examination about what were alleged to be assaults of the complainant, including assaults committed before the charged offending. The Court of Criminal Appeal held that the evidence concerning the prior assaults was both important and relevant. As for the cross-examination of the appellant, and the challenge based on s 18(1)(d) of the Evidence Act, the Court explained why it was not infringed, at least where “the cross-examination … does not extend beyond what is appropriate having regard to the permissible purposes for which the evidence … is led”:21 The prior incidents were relevant and admissible for the purposes previously stated. In those circumstances, questions of the appellant about them did not infringe the prohibition in s 18(1)(d) because the evidence to be elicited by the questions was admissible as tending to show that the appellant was guilty of the offence with which he had been charged. The connection between the questions and the offence charged was more than a tenuous connection. It is difficult to see how the conclusion could be otherwise once the conclusion is reached that the prosecution is able to lead evidence of the prior incidents providing of course that the cross-examination of the appellant does not extend beyond what is appropriate having regard to the permissible purposes for which the evidence of the prior incidents is led. 56 It will be necessary to return to some recent decisions on ss 18 and 34P of the Evidence Act after considering the impugned questions in this case. 20 The Queen v Mustafa (2005) 91 SASR 62. 21 The Queen v Mustafa (2005) 91 SASR 62, [42]-[43] (Besanko J, with whom Debelle and White JJ agreed). -- 18 of 40 -- [2026] SASCA 21 The Court 15 The cross-examination in this case 57 The appellant relies on two passages in his cross-examination. 58 The first passage concerned the evidence which the appellant had given in chief in response to the tender of the payslips which were in his name and which he had given to his landlord. At the time, the appellant was unemployed. The appellant admitted that the payslips were false and that he had given them to his landlord because his landlord had wanted payslips as evidence of employment before he would rent the home. 59 In cross-examination, the prosecutor asked the appellant about the payslips. He asked the appellant how he had got them. The appellant answered that a friend had given him a payslip template, and he had put his name into that template. The prosecutor then asked the appellant whether this was “an easy lie for you to do”.22 The cross-examination continued:23 Q. Do you lie frequently about things? A. No. Q. Is that just one of the rare exceptions where you have lied? A. I wasn’t going to get a house if not so that meant didn’t see my kids, didn’t do really anything with them. Q. If there is something on the line like needing to get a property you might lie. A. I wouldn’t exactly call that a lie, it’s just a document. Q. Did you work at SA Cyber Solutions. A. No. Q. That document purports that you did work at Cyber Solutions. A. Yes. Q. It’s a lie. A. Yeah. 60 It is the questions which are emboldened which were challenged as being prohibited by s 18(1)(d) of the Evidence Act. The appellant contended that the imputations were that he frequently lied and had a general propensity to do so. This was, accordingly, an accusation that the appellant was of bad character, contrary to s 18(1)(d). The appellant contended that none of the exceptions to the prohibition applied. 22 Transcript 313.26. 23 Transcript 313.29-314.7. -- 19 of 40 -- [2026] SASCA 21 The Court 16 61 The appellant also contended that had the prosecutor sought permission to ask those questions, it “would undoubtedly have been refused”. Accordingly, it was unlawful to ask the questions and, notwithstanding the absence of any objection from counsel for the defence, there was a miscarriage of justice. 62 The second passage of cross-examination concerned the appellant’s explanation for the paper bags found in the drawer of the bedside table in the master bedroom, underneath the large amount of cash which had been found. When asked why he had those bags, the appellant answered that they were for his children and were normal sandwich bags. The appellant was then asked questions about how often he saw his children and his activities with them, before the questioning returned to the uses for the brown paper bags. It was put to the appellant that he was lying and that he had been using the bags to traffic methylamphetamine. That was denied. The appellant was then asked:24 Q. What about this: have you ever sold even a tinsy bit of your drugs? A. No. Q. Not once? A. No. I’ve shared drugs with friends but if I’m correct, I don’t even think I have given a friend drugs to leave the premises with, no. Q. But you have given friends drugs before. A. As in like with the bong because that’s how I was smoking, that’s why I’d go through so much. If they were with me at the workshop for example, they would be able to smoke it but I don’t think I have ever given someone drugs to leave in a bag. Q. How long have you been smoking methylamphetamine again? A. At that point, eight years. Q. Eight years. A. Yep. Q. Never ever in that period not once sold a tinsy bit? A. I couldn’t say when I first started, no, but yeah. 63 The appellant challenged the emboldened questions. Taken as a whole, it was contended that the questions were intended to demonstrate that the appellant had previously sold drugs. That is, that he had, in the eight years since he had been smoking methylamphetamine, committed criminal offending other than that with which he was charged, albeit of the same nature as the charged offending. The 24 Transcript 321.18-321.36. -- 20 of 40 -- [2026] SASCA 21 The Court 17 appellant contended that the questioning also tended to show that he was of bad character. 64 Again, the appellant contended that none of the exceptions to s 18(1)(d) of the Evidence Act applied and, in particular, the evidence sought to be elicited was not admissible as it tended to show that the appellant was guilty of the offending with which he was charged. The appellant contended that if the prosecutor had sought permission to ask questions about other drug trafficking, permission would have been refused. 65 Notwithstanding the absence of objection from defence counsel at trial, the appellant contended that the questioning was undertaken without leave from the trial judge and was contrary to law, with the result that there had been a miscarriage of justice. 66 The appellant contrasted what may have been permitted under s 34P(2)(b) of the Evidence Act. The appellant accepted that evidence of similar drug trafficking could be admitted as discreditable conduct evidence where the prosecution had given written notice of its intention to lead that evidence. That was not done in this case. 67 The appellant also pointed to the answer to the last question which, it was submitted, was ambiguous. Whilst the answer may have meant that the appellant could not say when he first started smoking methylamphetamine, and that he agreed that he was saying that he had never sold even a small amount of methylamphetamine, that was not the only interpretation open. The appellant contended that the answer was equally capable of conveying that the appellant could not say when he first started selling methylamphetamine and that he was agreeing with the cross-examiner that he had previously done so. 68 After the appellant’s answer, the trial judge took an afternoon break. In the absence of the jury, the trial judge told the prosecutor that she was concerned about the “current line of questioning” and thought that the prosecutor was getting into dangerous territory asking about matters going to bad character. The prosecutor said that he would “pull back”. The appellant contended that the trial judge was correct, but that it was too late and the breach of the prohibition in s 18(1)(d) of the Evidence Act “could not be undone”. 69 The appellant contended that though the trial judge gave no directions to the jury about these questions and answers, no directions could have cured the miscarriage of justice or displaced the advantage the prosecution gained. The appellant relied on the observations of Murphy J in Matusevich v The Queen to the effect that “judicial directions do not satisfy the legislative command that the questions should not be asked”.25 25 Matusevich v The Queen (1977) 137 CLR 633, 648 (Murphy J). -- 21 of 40 -- [2026] SASCA 21 The Court 18 70 In response to these submissions, the Director conceded that the first set of questions should not have been asked and certainly should not have been asked without leave from the trial judge. However, he contended that it was important to put the questioning into context when determining whether there had been a miscarriage of justice. The questions followed the appellant’s evidence about his admitted falsification of documents, as well as his admitted understatement of the sale price of cars that he had sold. Whilst the questions were intended to highlight that the appellant was of bad character, they did not reveal that he was of “any greater bad character” than he had himself already revealed. 71 In addition, in his final address to the jury, the prosecutor did not invite the jury to reason from the fact of the appellant’s admitted lies to guilt. The use of the lies was confined. The prosecutor submitted to the jury that the lies could only be taken into account when evaluating the appellant’s credibility.26 72 In addition, the trial judge addressed the appellant’s admitted lies in her directions to the jury on discreditable conduct. Those directions are not the subject of any challenge. Included in those directions was a standard direction, warning against any impermissible use of evidence of discreditable conduct. 73 In circumstances where this Court must assume that the jury acted in conformity with the directions given by the trial judge, and where no other lies were revealed by the evidence, the Director submitted that there was no reason to think that the jury reasoned from the questions and answers about the appellant’s bad character to guilt. Whilst there was an irregularity, it could not realistically have affected the reasoning of the jury to a verdict of guilt and, in those circumstances, there was no miscarriage of justice. 74 As for the second set of questions, the Director said that a discreditable conduct notice had been filed, and discreditable conduct evidence was adduced in conformity with it. The discreditable conduct notice had been the subject of argument. The trial judge ruled that the proposed discreditable conduct evidence was admissible.27 75 The Director contended that it was necessarily implicit in any ruling admitting discreditable conduct evidence under s 34P(2) of the Evidence Act that there was a grant of permission under s 18(1)(d)(i) should the accused give evidence. In this way, the Director suggested that the rule of practice should be understood as having been impliedly modified. 76 The Director contended that once discreditable conduct evidence has been admitted and shows that the accused has committed, been convicted of or been charged with any offence other than the offence with which the accused is charged, 26 Transcript 386.36-387.3. 27 Ruling of Judge Telfer, delivered on 17 July 2023, AB 66-69. -- 22 of 40 -- [2026] SASCA 21 The Court 19 it followed that the accused may be cross-examined about that evidence because it necessarily came within s 18(1)(d)(i) of the Evidence Act. The determination of appeal ground 1 77 Given the way in which it was argued, it is helpful to commence the determination of this ground with the admissibility of the discreditable conduct evidence. Commencing in this way exposes what was necessarily put into issue, and the conduct of the parties at the trial for the purposes of addressing the requirements of s 18 of the Evidence Act. 78 The day before the trial was to start, the prosecution served a notice pursuant to s 34P(4) of the Evidence Act. The notice was well out of time. Broadly, the prosecution proposed the cross-admissibility of evidence across the charges, on the basis that what had been located at the appellant’s home and was alleged to be in his possession in March 2021 (Count 1) was admissible in proof of the money laundering charge (Count 2) and the alleged trafficking in May 2021 (Count 3), and vice versa. 79 The prosecution case was that, for the purposes of s 34P(2)(b), the evidence demonstrated that the appellant was in the business of trafficking drugs and had a tendency or propensity to sell drugs as a part of that business. The prosecution contended that this made it more likely that the appellant was in possession of the drugs the subject of each charge, had intended to sell those drugs and that any innocent explanation could be rejected. 80 Section 34P provides:28 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 28 This case does not concern a challenge to any directions given under s 34R. -- 23 of 40 -- [2026] SASCA 21 The Court 20 in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. (4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court. (5) The court may, if it thinks fit, dispense with the requirement in subsection (4). 81 The s 34P(4) notice was the subject of argument and a ruling, which included granting an application made under s 34P(5) to dispense with the notice requirement. The trial judge observed that the relevant ongoing business involved trading in methylamphetamine and, in the course of her ruling, she explained that the evidence was relied on as disclosing a particular propensity or disposition under s 34P(2)(b):29 Evidence of more than one occasion on which an accused is alleged to be trading in an illicit drug can be admissible to prove that an accused is in the business of selling drugs, which bears on the probability that that is what was occurring on each charged occasion. Section 34P of the Evidence Act requires that evidence which relies this kind of reasoning must have a strong probative value with respect to the issues for determination and that its permissible use can properly be kept separate from its impermissible use. I am satisfied that the evidence relevant to count 1, possession of methylamphetamine and the accoutrements of dealing, is admissible on counts 2 and 3. The evidence on count 1 is relevant to count 2 as the basis on which the prosecution allege the money was unlawfully obtained. That is the basis in a broad sense of the accused being in the business of drug trafficking and the cash handling been unlawfully obtained through that endeavour. It is relevant to count 3 on the basis that it has the capacity to establish that the accused was in the business of trading in methylamphetamine. There is, in my view, a sufficient connection between the two occasions charged in counts 1 and 3, noting they were approximately seven weeks apart. 82 There was no criticism of this ruling on appeal. Clearly, the possession of illicit drugs and drug dealing equipment, if established, was evidence of discreditable conduct within the meaning of s 34P. The ruling by the trial judge otherwise reflected long-standing authority that, amongst other considerations, “the extent and duration of past participation” with illicit drugs or drug dealing and 29 Ruling of Judge Telfer, delivered on 17 July 2023, AB 67. The ruling took into account the relaxed admissibility requirement under s 34P(2)(a) following the removal of the word “substantially” in the phrase “the permissible use substantially outweighs any prejudicial effect”, R v Marshall (2023) 144 SASR 1, [169]-[171] (Livesey P, David JA and Kimber AJA). -- 24 of 40 -- [2026] SASCA 21 The Court 21 “the proximity in time between the past participation and the offence charged” were relevant.30 And, where the evidence suggested that “the conduct which was the subject of each specific charge was an incident of the unlawful trade” in illicit drugs, that tended to render any “innocent explanations … less credible”.31 83 In BNM v The Queen,32 the Court explained the relevance and potential admissibility of an interest or involvement in past drug trading, which extended to “a form of propensity reasoning or [was] so close to it that the distinction becomes insignificant”:33 The relevance, and potential admissibility, in cases involving allegations of drug trafficking, of evidence of an interest or involvement in the business of drug trading has been recognised in numerous authorities.34 The evidence has been held to be probative of both the fact of possession and the purpose of any possession. While it has been said that the use of such evidence does not necessarily involve propensity reasoning,35 the prevailing view is that it involves reasoning that is “either a form of propensity reasoning, or is so close to it that the distinction becomes insignificant.”36 … where the evidence is of past involvement in the business of drug trading (as opposed to evidence merely of present involvement in that business by dint of drug trading accoutrements found at the time of the subject offending), it is appropriate to recognise the element of propensity reasoning in the use sought to be made of the evidence, and to approach its admissibility under s 34P on that basis. It follows that the evidence will only be admissible if it satisfies both limbs of s 34P(2); that is, the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the defendant (s 34P(2)(a)), and the evidence has a “strong probative value” (s 34P(2)(b)).37 84 In that case, the charges arose out of a search undertaken on 13 February 2017, whereas the evidence the subject of the s 34P ruling comprised the results of three searches conducted up to 18 months before. That may be compared with the 30 Harriman v The Queen (1989) 167 CLR 590, 596 (Brennan J). 31 R v Conley (1982) 30 SASR 226, 230 (King CJ, with whom White and Cox JJ agreed); Hammer v The Queen [2022] SASCA 75, [42]-[50] (Livesey P, Bleby and David JJA), and the cases there cited. 32 BNM v The Queen [2020] SASCFC 10. 33 BNM v The Queen [2020] SASCFC 10, [54]-[55] (Doyle J, with whom Peek J and David AuxJ agreed), citing R v Long & McDonnell (2002) 137 A Crim R 263, [39] (Doyle CJ, with whom Lander and Bleby JJ agreed). See also Kroni v The Queen (2021) 138 SASR 37, [24]-[31] (Doyle J), [104]-[105] (Livesey J). 34 Including R v Conley (1982) 30 SASR 226, 230; Harriman v The Queen (1989) 167 CLR 590, 595, 597 and 609; R v Sultana (1994) 74 A Crim R 27, 28-29; Evans v The Queen [1999] WASCA 252, [31]; R v Long & McDonnell (2002) 137 A Crim R 263, [37]; R v Franco (2009) 105 SASR 446, 452; R v Soteriou (2013) 118 SASR 119, [27], [32]; The Queen v Falzon (2018) 264 CLR 361, [1], [40]-[44]; R v Jones (2018) 131 SASR 532, [21]; R v Singh [2019] SASCFC 51, [73]. 35 R v Conley (1982) 30 SASR 226, 230 (King CJ) (although, on one view, King CJ’s observations were confined to the relevant use not involving “prohibited” propensity reasoning). 36 R v Long & McDonnell (2002) 137 A Crim R 263, [39] (Doyle CJ, with whom Lander and Bleby JJ agreed); applied in R v Soteriou (2013) 118 SASR 119, [26] (Vanstone J, with whom Sulan and Stanley JJ agreed), and R v C, CA [2013] SASCFC 137, [79] (Kourakis CJ, with whom Anderson and Nicholson JJ agreed). See R v Jones (2018) 131 SASR 532, [30] (Nicholson J, with whom Kourakis CJ and Hinton J agreed). 37 This decision was made at a time before s 34P(2)(b) was amended to remove the word “substantially” from the phrase “the permissible use substantially outweighs any prejudicial effect”, R v Marshall (2023) 144 SASR 1, [169]-[171] (Livesey P, David JA and Kimber AJA). -- 25 of 40 -- [2026] SASCA 21 The Court 22 impugned evidence in R v Conley, which concerned evidence gathered 16 months before the charged offending.38 In each case the evidence was held to be relevant and admissible. 85 Recently, in Hammer v The Queen, this Court addressed similar issues concerning the disputed possession of methylamphetamine for the purposes of trafficking charges.39 The charges in that case concerned a sale allegedly made to an identified person, as well as a quantity of methylamphetamine found on a neighbour’s driveway, which it was said had been thrown there by the appellant when police arrived. A search of the appellant’s home revealed items commonly associated with drug trafficking. In evidence-in-chief, the appellant explained that he and his housemate would, from time to time, either share methylamphetamine or sell small quantities to one another. In cross-examination, the appellant was asked about these prior drug sales, as well as sales to other people, canvassing a period extending back a year or so before the charged offending.40 86 Defence counsel unsuccessfully applied for a mistrial on the bases that the requirements for the admission of discreditable conduct evidence under s 34P(2) had not been satisfied, and s 18 of the Evidence Act had been infringed. On appeal, these complaints were repeated. The Court rejected both, albeit pointing out that leave to cross-examine should have been sought under s 18 because the allegation of prior drug trading tended to show both prior offending and bad character:41 The prosecutor’s cross-examination which elicited the prior sale evidence invoked s 18(1)(d) of the Evidence Act as the questioning tended to show that he had committed an offence other than that with which he was charged and was of bad character. The prosecutor did not seek leave from the trial Judge before embarking on his cross-examination. A prosecutor is obliged to seek leave before cross-examining an accused person in a manner which invokes s 18(1)(d), notwithstanding that the requirement for leave is not expressly referred to in the terms of s 18.42 However, we are satisfied that the prosecutor’s failure to seek leave and his cross-examination which elicited the prior sale evidence did not result in a miscarriage of justice. For the reasons discussed earlier, the prior sale evidence was admissible for both a propensity and non-propensity use to prove the charged offences. Thus, the exception in s 18(1)(d)(i) was invoked because the evidence to be elicited by the questions was admissible “as tending to show that he is guilty or not guilty of the offence with which he is charged”. 87 In this case, in the course of his evidence-in-chief, the appellant admitted the use of false payslips so as to give the impression that he was regularly employed and not dependent on gambling (or, it may be surmised, drug dealing). Otherwise, he admitted his use of methylamphetamine over a number of years, and he also admitted sharing it. He denied that he ever traded in it. 38 BNM v The Queen [2020] SASCFC 10, [68] (Doyle J, with whom Peek J and David AuxJ agreed). 39 Hammer v The Queen [2022] SASCA 75. 40 Hammer v The Queen [2022] SASCA 75, [22] (Livesey P, Bleby and David JJA). 41 Hammer v The Queen [2022] SASCA 75, [53] (Livesey P, Bleby and David JJA). 42 R v Brownlow (2003) 86 SASR 114, [37] (Sulan J, with whom Debelle and Gray JJ agreed). -- 26 of 40 -- [2026] SASCA 21 The Court 23 88 The first set of questions asked in cross-examination challenged the appellant about his lies associated with fabricated payslips. Whilst this was a legitimate topic, bound up in the suggested opacity of the appellant’s income sources, three questions drifted beyond that. The second set of questions concerned the appellant’s admitted discreditable conduct, as well as the period in the order of eight years after he commenced smoking methylamphetamine, questioning whether he had ever been involved in the sale of drugs. Whilst the appellant’s denials were clear enough, the clear imputation was that these were not to be believed. Again, whilst the topic of the appellant’s attitude to the sale of drugs was legitimate, the final question, in particular, drifted beyond any real connection with the charged offending. 89 The suggested ambiguity associated with the appellant’s final answer to the last question in the second set of questions must be rejected. There is a danger in reading isolated words on a page of transcript disengaged from the way in which they were spoken and understood at the time. All of the appellant’s answers firmly denied any earlier sales. That was his defence. Had any of his answers been understood any differently that would, no doubt, have been the subject of considerable comment. It was never contended at the trial that the appellant had made any admission of the kind now suggested. 90 This ground of appeal raises a broader issue about the interaction between ss 18 and 34P of the Evidence Act. In particular, how the cross-examination of an accused should be addressed following a ruling about the admissibility of evidence of discreditable conduct under s 34P, where the topics – lies and uncharged offending long before the charged offending – are cross-examined on without the prosecutor seeking leave under s 18 of the Evidence Act. 91 Where the cross-examination of an accused tends to allege criminal offending other than in connection with the charges before the court, or that the accused is otherwise of bad character, that will necessarily raise discreditable conduct by the accused, and both ss 18 and 34P of the Evidence Act will be relevant. Contrary to the Director’s submission, any ruling concerning the admissibility of evidence of discreditable conduct under s 34P(2) does not implicitly carry with it permission to ask questions under s 18(1)(d)(i) of the Evidence Act. Whether that reflects an assumption made within the profession is a different matter. 92 The effect of a s 34P ruling, and any anticipated directions mandated by s 34R, will clarify what is in issue at the trial and what evidence is admissible, together with the permissible and impermissible uses of that evidence. By the time of cross-examination, it should be clear whether the prosecution has adduced evidence in its own case of other offending or bad character in accordance with any s 34P ruling. The same may be said about the extent of any evidence of other offending or bad character that first emerges from the accused’s evidence-in-chief. -- 27 of 40 -- [2026] SASCA 21 The Court 24 93 Strictly, even where the cross-examination of an accused is directed to the evidence of discreditable conduct which has been ruled admissible pursuant to s 34P, the prosecutor must seek leave to cross-examine about it. That is a consequence of the rule of practice that there is no right to cross-examine and, where the discretion is enlivened, the trial judge must consider whether and to what extent leave should be granted.43 Indeed, this is an example of an issue that may warrant seeking leave as a matter of prudence.44 In most cases, there should be no difficulty obtaining leave to cross-examine about conduct which has been made the subject of a s 34P(4) notice and ruling because the ruling will have clarified what is admissible as tending to show that the accused is “guilty or not guilty of the offence … charged” within s 18(1)(d)(i) of the Evidence Act. 94 As for any suggestion that it is unnecessary to seek leave under s 18 following a s 34P ruling, three points may be made. First, there is nothing in the text or context of s 34P which evinces any intention to abrogate or modify the settled approach to s 18 of the Evidence Act, which has a much broader area of potential operation.45 95 Secondly, the requirement to seek leave is a rule of practice required by law for the protection of an accused and in order to ensure a fair trial. It is no empty formality. Seeking leave will help focus the attention of the parties and the court, guarding against any unwitting breach of the protections contained in s 18(1) of the Evidence Act.46 As well, seeking leave will require that the parties and the court take account of the course of the trial, and the need to consider the prejudicial effect of the cross-examination against its anticipated probative value as an adjunct of the court’s duty to ensure a fair trial. And, even where the evidence the subject of cross-examination is ruled relevant, s 18(1) of the Evidence Act requires an appropriate degree of correspondence between what is relevant and what is to be made the subject of cross-examination, so that “the cross-examination … does not extend beyond what is appropriate having regard to the permissible purposes for which the evidence … is led”.47 96 Thirdly, the requirement to seek leave carries with it a number of other advantages in a case involving discreditable conduct under s 34P. Seeking leave under s 18 will expose whether there is any difference of opinion amongst the 43 Matusevich v The Queen (1977) 137 CLR 633, 640 (Stephen J); Phillips v The Queen (1985) 159 CLR 45, 51-52 (Mason, Wilson, Brennan and Dawson JJ); R v Kostaras (2002) 133 A Crim R 399, [72] (Doyle CJ); R v Brownlow (2003) 86 SASR 114, [37]-[42] (Sulan J, with whom Debelle and Gray JJ agreed); Hammer v The Queen [2022] SASCA 75, [53] (Livesey P, Bleby and David JJA). 44 Cf cases where it may be prudent to give a s 34R direction, Kroni v The Queen (2021) 138 SASR 37, [109]-[113] (Livesey J). 45 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ); The Queen v A2 (2019) 269 CLR 507, [33] (Kiefel CJ and Keane J, with whom Nettle, Gordon and Edelman JJ agreed). No submission was made about the significance and effect of s 34O(2)(a), that the discreditable conduct Division does not apply to “evidence adduced pursuant to section 18”. 46 R v Kostaras (2002) 133 A Crim R 399, [73] (Doyle CJ), set out earlier. 47 The Queen v Mustafa (2005) 91 SASR 62, [43] (Besanko J, with whom Debelle and White JJ agreed). -- 28 of 40 -- [2026] SASCA 21 The Court 25 parties or the court about the scope and reach of any s 34P ruling, any evidence led in reliance on it, and about any directions required under s 34R of the Evidence Act. It will ensure that issues such as these, and the proper parameters of cross-examination, are addressed before any questioning of the accused moves into contentious territory. 97 Of course, seeking leave to cross-examine under s 18 will also serve to expose the extent to which a s 34P ruling has not been sought or made, and whether that should be remedied. That will, of necessity, address whether both limbs of s 34P(2) are relevant,48 because the proposed use of any answers obtained will need to be identified and explained. 98 In this case, whilst the fabricated payslips issue seems to have been introduced in the prosecution case, it is unclear whether it was the subject of any ruling made under s 34P. The appellant’s use of illicit drugs was always likely to be in issue, was at least implicit in the discreditable conduct ruling made under s 34P of the Evidence Act, and was made clear in the appellant’s cross-examination of police as well as in his evidence-in-chief. 99 In the course of final addresses, neither the appellant’s lying over falsified payslips, nor the one or two questions regarding methylamphetamine sales extending back eight years (to a time when the appellant had started smoking the drug) assumed any particular prominence. The prosecutor explicitly limited the use of any suggested lies by the appellant to an assessment of his credibility. 100 In her summing up, the trial judge addressed the evidence of the fabricated payslips.49 The trial judge explained that the evidence had two uses. The first use was to negate any suggestion that the appellant had a regular income from working in cyber security. The second use was that it was relevant to the jury’s assessment of the appellant’s credibility. The trial judge also gave a number of directions about the prosecution case that the appellant was in the business of selling drugs, and “the prospect that the accused may have dealt in drugs on occasions apart from the occasions which are charged”, but her Honour warned against “bad person” reasoning, disengaged from the need to consider each specific charge, and whether there was proof of each charge beyond reasonable doubt.50 101 The questions concerning the appellant’s lies associated with his use of fabricated payslips were relevant to issues concerning drug trafficking, money laundering and the appellant’s defences. The Director conceded that the three impugned questions should not have been asked, no doubt because they strayed beyond the appellant’s admitted dishonesty associated with the fabricated payslips. The prosecutor’s accusation, without seeking leave, that the appellant had frequently or previously lied whenever he needed something, effectively when it 48 R v MJJ (2013) 117 SASR 81, [242]-[243] (Vanstone J, with whom Kourakis CJ relevantly agreed). 49 Summing up, AB 107-108. 50 Summing up, AB 112-113. -- 29 of 40 -- [2026] SASCA 21 The Court 26 suited him, amounted to an imputation that the appellant was of bad character, with a tendency to lie. 102 Two of the questions asked about the possibility of previous drug sales were not fixed as to time but effectively addressed the appellant’s attitude to drug dealing. However, one question ultimately addressed a period long before it was suggested that there was any evidence or basis to suggest an interest and an involvement in drug dealing, again without seeking leave. Certainly, it was not suggested that drug dealing eight years earlier was of any relevance to the charges before the court. At no stage did the prosecution suggest that the appellant had been engaged in drug trafficking for some years before 2021. 103 Permission should have been sought and, if sought, refused to ask questions of this kind. 104 However, the questioning was, in both respects, fleeting and yielded no damaging answers or evidence. The defence made no objection to these parts of the cross-examination, and no request was made for a mistrial, even after the issue was raised by the trial judge. 105 In a case where the examination and cross-examination spanned just over 140 pages of transcript,51 the six impugned questions and answers spanned less than one page. A reading of the record, including the transcript, and a comparison of the impugned questions against the wide-ranging challenge otherwise made to the appellant’s evidence, does not suggest that they assumed any real prominence in the trial. Whilst in the absence of the jury the trial judge intervened with a warning at the end of the second set of questions, the prosecutor moved on and the absence of objection or complaint from defence counsel tends to reinforce the impression that, in the context and atmosphere of this trial, these questions did not assume the importance that is now suggested.52 106 The use of the evidence concerning the appellant’s fabricated payslips, and any business he had selling drugs, was accurately identified by the trial judge and the jury was appropriately directed to confine its use of the evidence to the real issues in a case involving admitted discreditable conduct associated with fabricated documents and the long-term use of illicit drugs. There is no prospect that the impugned questions during a lengthy cross-examination were realistically capable of affecting the jury’s reasoning concerning the appellant’s credibility or guilt. 107 In the particular circumstances of this case, where counsel for the defence made no objection, did not seek a mistrial and sought no further directions, there was no material miscarriage of justice occasioned by these six questions. 51 Transcript 233.5-377.25. 52 De Silva v The Queen (2019) 268 CLR 57, [35] (Kiefel CJ, Bell, Gageler and Gordon JJ); Perara-Cathcart v The Queen (2017) 260 CLR 595, [60] (Kiefel, Bell and Keane JJ); Nudd v The Queen (2006) 80 ALJR 614, [20] (Gleeson CJ). -- 30 of 40 -- [2026] SASCA 21 The Court 27 Appeal ground 3 – the directions concerning tainted property 108 This ground concerns the appellant’s conviction for the offence of money laundering, contrary to s 138(1) of the CLCA, particularly the directions given by the trial judge to the jury about the extent to which the cash found in the appellant’s home could be regarded as “tainted property” within the meaning of s 130 of the CLCA. Appeal ground 3 is in the following terms: 3. The learned trial Judge’s directions (at SU34-35) about the circumstances in which the cash found at the appellant’s home was tainted property were wrong at law, or alternatively, were inadequate and resulted in a miscarriage of justice. Particulars 3.1 The Judge wrongly directed the jury that the cash was tainted property if, “… it was obtained as a result of the use of money from selling drugs being gambled.” 3.2 However, to be “tainted property”, the cash had to be obtained by the appellant cashing in gambling chips he had previously purchased using cash obtained from selling drugs. The cash was not “tainted property” if it had been obtained by the appellant cashing in gambling chips he had won while gambling (even if he had used cash from drug sales to buy the gambling chips used to place the winning bets), because his winning bets were not “proceeds” of cash he obtained from selling drugs. 109 Relevantly, s 130 defined “property” to include cash,53 and a “transaction” as including possession. In addition, s 130 of the CLCA contained the following definitions: proceeds of property means money or property into which property has been converted by a transaction or series of transactions (involving sale, exchange, or any other form of dealing); tainted property means stolen property or property obtained from any other unlawful act or activity (within or outside the State), or the proceeds of such property (but property ceases to be tainted when it passes into the hands of a person who acquires it in good faith, without knowledge of the illegality, and for value). 110 The term “converted” in the definition of proceeds, and therefore of tainted property, is not defined. Nonetheless, by s 3(1) of the Criminal Assets Confiscation Act 2005 (SA) (the Confiscation Act) the word “derived” is defined in the following way: derived—a person derives proceeds, a benefit or literary proceeds if — (a) the person; or (b) another person at the request or direction of the first person, 53 Because the cash notes were “money”, they were therefore “property”, Police v Smith [2025] SASCA 37, [66] (S Doyle, David JJA and Stein AJA). -- 31 of 40 -- [2026] SASCA 21 The Court 28 derives the proceeds, benefit or literary proceeds, whether directly or indirectly … 111 By means of her directions, together with the use of an aide-memoire given to the jury, the trial judge directed that there were three elements which must be proved beyond reasonable doubt: 1. That the accused engaged in a transaction involving property (the cash) (about which there was no dispute). 2. That the property (the cash) was tainted property. 3. That the accused knew the property (the cash) was tainted property. 112 As has been seen, the appellant’s case at trial was that the cash found in his home had been obtained by lawful means including from gambling at the Casino and selling cars. The appellant’s then counsel argued that if “tainted property” was received by a third party, such as the Casino, but then returned to the appellant, it ceased to be tainted. The trial judge disagreed. She directed the jury as follows:54 I want to tell you something about those words in brackets first. Property ceases to be tainted when it ceases to pass into the hands of a person and so on. That exception applies (I will give you an example of it), if a person acquires $200 because they sell some drugs. They sell a small amount of drugs and they get $200 into their pocket. That $200 is tainted. It has been acquired from the sale of drugs. If that person goes down to the supermarket and pays for their groceries with it and the checkout operator takes the $200 in good faith, having no idea that the money is from the sale of drugs, then the supermarket takes the money and it ceases to be tainted. It has been acquired by someone, acquiring it in good faith, not knowing about the illegality. So put that to one side really for these purposes. Here, what is alleged is that the money was obtained as a result of trafficking in controlled drugs or that it was the proceeds of money obtained from the sale of drugs that had been laundered through gambling. So I direct you that in order to find it proved that the money that was located in that drawer, or at least part of it, was tainted, you will need to be satisfied beyond a reasonable doubt of one of two things. Either that that money was obtained from selling drugs or secondly, that it was obtained as a result of the use of money from selling drugs being gambled. So let me give you an example of that. Take the example I talked about before. If a person takes that $200 that they have obtained from the sale of a small amount of drugs, and rather than taking it to the supermarket, they take it to the casino and they put that $200 through a pokie machine and they win $400, that $400 would be the proceeds of the $200 which is tainted and the $400 proceeds remains tainted. So one of those two situations would need to be proved beyond a reasonable doubt, that the money in the drawer or at least part of it was, in fact, the proceeds of drug sale or sales, or that it was obtained as a result of money from selling drugs being gambled. 113 The effect of these directions was that where tainted property, being cash derived from the sale of drugs, is paid to a supermarket in return for groceries, the 54 Summing up, AB 117-118. -- 32 of 40 -- [2026] SASCA 21 The Court 29 supermarket acquired the cash in good faith because it did not know about the illegality and the money ceased to be tainted. The trial judge told the jury that they could “put that to one side … for these purposes” and she directed the jury that they had to be satisfied beyond reasonable doubt that: 1. the cash found in the home was obtained from selling drugs; or 2. the cash found in the home was obtained as a result of the use of money from selling drugs being gambled. 114 The appellant criticised these directions as involving errors of law, material to the verdict, contending that they “could realistically have affected the reasoning of the jury” in the trial that was had.55 115 The appellant conceded that if the cash in the possession of the appellant had been obtained by selling drugs, the cash was tainted property for the purposes of the offence of money laundering. Likewise, if the same cash had been taken to the Casino and exchanged for casino chips, those chips were also tainted property because they were the proceeds of the conversion of the tainted cash into chips. 116 The appellant contended, however, that if the tainted casino chips were then used for placing bets at a blackjack table and, as the result of a winning bet the appellant received additional casino chips – in the sense that they were not the same tainted chips exchanged for the tainted cash – those additional chips were not tainted property. The appellant contended that the additional chips were not the “proceeds” of tainted property because they were not property into which the tainted cash or the tainted chips had been converted. 117 As the appellant put it, just because a tainted chip was used to make a bet, the definition of “proceeds” does not go so far as to capture the chips won fairly from playing at the blackjack table. 118 On this approach, the appellant contended that the cash found in the drawer of the appellant’s bedside table was not “tainted property” if it was cash obtained by cashing in chips won whilst gambling at the blackjack table, even if the appellant had commenced gambling using cash from drug sales to buy the chips used to place the winning bets. 119 In support of this argument, the appellant drew on what he suggested was the “narrower width of the definition” of the word “proceeds” in s 130 of the CLCA, against the “more expanded definition” of the same word in s 7 of the Confiscation Act. Under the latter Act, “property” is defined to be the proceeds of an offence if the property is wholly or partly derived or realised, whether directly or indirectly, from the commission of an offence.56 55 MDP v The King (2025) 99 ALJR 969, [3] (Gageler CJ). 56 Confiscation Act, s 7(1)(a). -- 33 of 40 -- [2026] SASCA 21 The Court 30 The determination of appeal ground 3 120 The appellant’s contentions must be rejected. 121 The resolution of this appeal ground turns on the proper meaning to be given to the term “tainted property”, together with the proper meaning to be given to the term “proceeds” which is also used in that definition. It is necessary to attribute legal meaning to the statutory text, read in context, giving the words the meaning that the legislature may be taken to have intended those words to have.57 As this Court recently explained in R v Scott-Combe:58 In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular, the mischief it is seeking to remedy. Context, in its widest sense, and the purpose of the statute, inform the interpretative task throughout … (Citations omitted.) 122 It may be accepted that the mischief to which s 138 and the definition provisions are directed is to facilitate the prosecution of offenders who seek to disguise the illegal source of their property, often but not always money. 123 In its broadest sense, money laundering is undertaken in order to reduce the prospect of prosecution for offending because the possession of tainted property tends to demonstrate the commission of an offence. In addition, and of more immediate importance, an offender will often strive to convert tainted property using various processes which may or may not involve elaborate steps, in order to make it appear that the property has a legitimate source. This means that an offender may seek to safeguard tainted property and benefit from it, avoiding its forfeiture. 124 The fallacy in the appellant’s approach is to adopt a construction of the word “proceeds” which is too narrow. 125 The definition of the word “proceeds” demonstrates that it applies to money, or any other property into which that property has been “converted by a transaction or series of transactions (involving sale, exchange, or any other form of dealing)”. Whatever may be said about the intention of the croupier at the blackjack table in the Casino, when an offender places a bet using “tainted property” and receives winnings from a successful bet, the offender has received “the proceeds of such property”. 57 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78] (McHugh, Gummow, Kirby and Hayne JJ). 58 R v Scott-Combe [2023] SASCA 37, [13] (Lovell, Bleby JJA and Mazza AJA). -- 34 of 40 -- [2026] SASCA 21 The Court 31 126 The offender’s receipt of those proceeds cannot be equated to the receipt of tainted property by a supermarket or Casino. Unlike the offender, each exchanged something of value in good faith and without knowledge of the illegality. 127 For these purposes, it is immaterial whether the offender walked away from the blackjack table with more than the offender took to the table. It is sufficient that, from first to last, the offender was dealing with the property, or the property into which tainted property was converted, well-knowing that it was illegally sourced. It does not matter whether the analysis is undertaken broadly by reference to the cash and the chips passing between the offender and the Casino, or incrementally, at each step by which cash and then chips are exchanged for the bundle of rights reflected in the placement of a bet. The outcome remains the same. 128 Although dealing with different legislation, the High Court considered a similar issue in Lordianto v Commissioner for the Australian Federal Police, in the context of a Commonwealth restraining order obtained pursuant to the Proceeds of Crime Act 2002 (Cth) concerning the definition contained in s 330 of that Act:59 The paragraph must be read as a whole and in the context provided by the whole of the statutory framework. As seen earlier, that framework commences with a restraining order (or an application for a restraining order) to prevent identified property being disposed of or otherwise dealt with by any person if there are reasonable grounds to suspect that the property is, relevantly, the proceeds of, or an instrument of, an offence. And then, of course, the circumstances in which property becomes and when it remains proceeds, or an instrument, of an offence are defined broadly in ss 329 and 330 of the POCA. Those sections are intended to, and do, have multiple applications. Against that background, the exclusion provided by s 330(4)(a), by which property ceases to be proceeds, or an instrument, of an offence, is limited. It is limited to a person who acquired specific property (necessarily, the subject of an existing or proposed restraining order) for sufficient consideration without that person knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds, or an instrument, of an offence. In many cases, perhaps most, that will be an inquiry very similar to the inquiry under the general law about whether a person is a bona fide purchaser for value without notice. (Citations omitted.) 129 In circumstances where the appellant’s case was that none of the cash came from drugs but, rather, from a combination of gambling and motor vehicle sales, there was no error in directing the jury that the prosecution needed to prove “beyond a reasonable doubt, that the money in the drawer or at least part of it was, in fact, the proceeds of drug sale or sales, or that it was obtained as a result of money from selling drugs being gambled”. It was only necessary for the prosecution to prove that some of the cash found was tainted, not all of it.60 59 Lordianto v Commissioner for the Australian Federal Police (2019) 266 CLR 273, [62]-[63] (Kiefel CJ, Bell, Keane and Gordon JJ). The relevant provision is similar to the Confiscation Act. 60 Magro v The King [2022] SASCA 100, [121] (Lovell, Bleby and David JJA). -- 35 of 40 -- [2026] SASCA 21 The Court 32 130 Appeal ground 3 should be dismissed. Appeal ground 4 – the directions about possession 131 The fourth ground of appeal concerned the directions given by the trial judge to the jury concerning possession in connection with Count 3 and the drugs found in the silver BMW driven by the appellant on 20 May 2021. 132 Appeal ground 4 is in the following terms: 4. The learned trial Judge’s directions on possession (at SU32) involved a wrong decision on a question of law, or alternatively, resulted in a miscarriage of justice. Particulars 4.1 The direction that possession, “is merely a right to exercise control over something” was incorrect. 4.2 The direction that, “The prosecution must prove beyond a reasonable doubt that he was in possession of them or intended to exercise control over them” was incorrect and/or was confusing. 4.3 The totality of the directions on possession failed to adequately direct the jury about the relevant concepts and how they applied to the case for Count 3. 133 In order for the appellant to be convicted of Count 3, the jury had to find beyond reasonable doubt that the appellant was in possession of the methylamphetamine found inside the Gucci bag, which police located partially underneath the front passenger seat of the silver BMW. 134 Whilst the directions given by the trial judge were in a reasonably standard form, and in some respects reflected the former bench book, the appellant made a number of criticisms of them. The trial judge commenced her directions in the following way:61 For trafficking of this kind there are two concepts for you to consider and they are set out. I have referred to them as sub-elements. The first part is possession and the second part is the intent to sell at least some of it. So I am going to deal first with the issue of possession. Possession is a different concept to ownership. Ownership lets you sell, use or destroy something if you choose to. Possession is something less than ownership. It is merely a right to exercise control over something. So you will not be looking at whether the accused owned the drugs but whether he possessed the drugs. You can have possession of something even if you do not own it and even if you do not have physical custody of it. I will give you an example of that. 61 Summing up, AB 114-115. -- 36 of 40 -- [2026] SASCA 21 The Court 33 135 The trial judge then gave the example of borrowing a library book. She explained that when a library book is borrowed the borrower does not own the book, because the library owns it, but the borrower is in possession of the book:62 You continue to be in possession of the book even when you come into the courtroom and you leave the book in your bag in the jury room or even if you leave it safely locked up at home. You decide where to take the book and where to put it, rather than making it available for anyone else to simply take. 136 The trial judge then addressed the prosecution case and, concerning Count 3, reminded the jury that the prosecution relied on the fact that the drugs were located in the passenger footwell, that there was no-one else in the car, and that keys and the garage opener belonging to the accused were located underneath the drugs in the same Gucci bag. 137 The trial judge then gave another example. She commenced by pointing out that a person is not in possession of something simply because the person knows that it has been left in a place “but they do not intend to exercise any control over it.” The example given by the trial judge concerned the owner of an umbrella getting off a bus and leaving the umbrella behind. The person on the bus watching this occur is not in possession of the umbrella and knows it is there, but does not intend to exercise any control over it. When that second person gets off the bus, the umbrella will be left where the owner left it. After this example the trial judge explained to the jury: So to talk then about the drugs found in the bag in the passenger footwell, if the accused did not know they were there, he cannot be said to be in possession of them. If it is a reasonable possibility that the accused did not know the drugs were there, then he cannot be said to be in possession of them. The prosecution must prove beyond a reasonable doubt that he was in possession of them or intended to exercise control over them. 138 The appellant contended that these directions, when considered overall, were “partly incorrect, were confusing and were inadequate”. 139 At common law a person has possession of an item if the person has physical custody or control of the item, or the place in which the item is located, together with knowledge that the item is in the person’s custody or control and an intention to control the item.63 140 For the purposes of drug trafficking contrary to the Controlled Substances Act 1984 (SA), the term “possession” is defined by s 4 as including having control 62 Summing up, AB 115. 63 Zenuni v The King (2022) 303 A Crim R 311, [50] (Livesey P, Bleby and David JJA); R v Nguyen [2010] SASCFC 23, [96] (White J, in dissent); R v Wood (2017) 131 SASR 291, [18] (Vanstone J, with whom Kourakis CJ and Nicholson J agreed). -- 37 of 40 -- [2026] SASCA 21 The Court 34 over the disposition of a substance or thing, including jointly. The statutory definition neither adds to nor confines the common law meaning of “possession”.64 141 On the argument of the appellant, the direction by the trial judge that possession “is merely a right to exercise control over something” was incorrect. The appellant contended that possession at law comprised more than that and does not turn on whether a person has “a right”, presumably meaning a legal right, to exercise control. The appellant emphasised that possession also required knowledge that the item was in the person’s custody or control, together with an intention to control the item.65 As well, the direction that “the prosecution must prove beyond a reasonable doubt that he was in possession of them or intended to exercise control over them” was said to be both incorrect and confusing. 142 The appellant also contended that the trial judge had failed to adequately relate her legal directions to the facts of the case because the fact that the drugs and the Gucci bag were found in the silver BMW of the appellant was not sufficient to prove his possession of the drugs. Even if the appellant knew about the drugs in the Gucci bag and had acquiesced in them being put in his car, this, without more, would not comprise possession of them.66 143 In addition, the appellant contended that because the prosecution case was that the appellant had sole possession of the drugs in the Gucci bag, it was necessary for the trial judge to direct the jury that it had to be proved that the appellant had exclusive possession of the drugs and that he had both the intention and power to exercise control over the drugs to the exclusion of all others. The failure to direct in this way was, it was said, an error of law.67 The determination of appeal ground 4 144 In this case the question for this Court is whether the summing up as a whole made clear to the jury what was required in law in the circumstances of the case before the court.68 As with all directions, the precise direction to be given to a jury will invariably depend upon the particular facts of the case.69 145 The legal concept of possession has often been described as difficult and elusive to explain to a jury.70 Nonetheless, possession is a question of fact, and it 64 Zenuni v The King (2022) 303 A Crim R 311, [49] (Livesey P, Bleby and David JJA); R v Nguyen [2010] SASCFC 23, [95] (White J, in dissent); R v Wood (2017 131 SASR 291, [18] (Vanstone J, with whom Kourakis CJ and Nicholson J agreed). 65 Zenuni v The King (2022) 303 A Crim R 311, [50] (Livesey P, Bleby and David JJA). 66 Zenuni v The King (2022) 303 A Crim R 311, [60]-[63] (Livesey P, Bleby and David JJA). 67 R v Frangos (1979) 21 SASR 331, 339 (Walters J, agreeing with King CJ and with whom Wells J agreed); R v Dib (1991) 52 A Crim R 64, 66 (Hunt J, with whom Newman J and Abadee J agreed). 68 R v Wood (2017) 131 SASR 291, [18] (Vanstone J, with whom Kourakis CJ and Nicholson J agreed); R v Saleh [2017] SASCFC 75, [16]-[17] (Stanley J, with whom Nicholson and Hinton JJ agreed). 69 R v Saleh [2017] SASCFC 75, [17] (Stanley J, with whom Nicholson and Hinton JJ agreed). 70 R v Nguyen [2010] SASCFC 23, [30] (Vanstone and Kelly JJ). -- 38 of 40 -- [2026] SASCA 21 The Court 35 is necessary to evaluate the whole of the circumstances when assessing the matter in a practical way.71 146 The summing up must be evaluated having regard to what was in issue in this case and considered in that light.72 Moreover, it is necessary to consider the directions as a whole in order to determine their likely effect. An error of law is not demonstrated by selecting a particular sentence or phrase used by the trial judge without reference to the whole of the directions given on the topic, and without reference to the circumstances of the particular case before the court. 147 It is not necessary to repeat what has already been said about the prosecution and defence cases before the jury at the trial. The prosecution case was largely circumstantial, and the evidence given by the appellant put his knowledge of the drugs into issue. This was not a case where it was seriously being suggested that if the appellant knew about the drugs, he nonetheless did not intend to exercise control over them. 148 In this case, when one has regard to the whole of the directions given by the trial judge on the topic of possession, the jury could have been in no doubt that, before they could find the appellant guilty of possession beyond reasonable doubt, they needed first to determine whether the appellant had physical custody or control of the drugs, together with knowledge that they were in his custody or control, as well as an intention to exercise control over them. 149 The selection of the phrase “is merely a right to exercise control over something” does not adequately reflect nor address the balance of the directions that were given by the trial judge. Likewise, highlighting the phrase “that he was in possession of them or intended to exercise control over them” ignores the directions that preceded this phrase as well as the examples given.73 Each example demonstrated the necessity for the jury to be satisfied about the appellant’s control, coupled with his intention to exercise that control. 150 The effect of the directions given by the trial judge must be considered by reference to their likely effect as a whole, in circumstances where there was an inference open that the Gucci bag had been moved between the time the appellant was first seen in the silver BMW and when police later searched the vehicle. This was not a case of mere acquiescence, nor of joint possession but,74 in any event, the illustrations given regarding the library book and the umbrella on the bus brought home for the jury the necessity to focus on the appellant’s knowledge and intention before returning a verdict of guilty. To address in any detail directions 71 R v Nikolic [2019] SASCFC 32, [17] (Lovell J, with whom Kourakis CJ and Stanley J agreed). 72 R v Baftiroski [2018] SASCFC 83, [44] (Nicholson J, with whom Kourakis CJ and Parker J agreed). 73 The infelicitous use of the word “or” in this passage, whilst technically incorrect, is unlikely to have distracted the jury from the necessity to prove the combination of elements that make up the concept of possession. 74 Cf R v GNN (2000) 78 SASR 293. -- 39 of 40 -- [2026] SASCA 21 The Court 36 about joint control would have been to risk distracting and confusing the jury about issues that were not the real issues in the case.75 151 None of the suggested errors could realistically have affected the reasoning of the jury on the verdict of guilty returned in the trial that was had.76 Taken as a whole, the directions given were sufficiently clear to adequately convey the matters which the jury needed to find before they could determine the question of proof of possession beyond reasonable doubt. 152 In the circumstances, appeal ground 4 should be dismissed. Conclusion 153 Permission to appeal should be granted but the appeal dismissed. 75 Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ); Hinrichsen v The King (2023) 144 SASR 44, [56]-[60] (Livesey P, in dissent), [368] (Lovell and Doyle JJA). 76 MDP v The King (2025) 99 ALJR 969, [3] (Gageler CJ). -- 40 of 40 --