MARK ALLAN MUSOLINO v THE KING [2026] SASCA 92

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TELFER) DCCRM-21-719 Appellant: MARK ALLAN MUSOLINO Counsel: MR O GREEVES - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MR M HINTON KC WITH MS N PEAT - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/02/2026 File No/s: SCCRM-25-016421 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. MUSOLINO v THE KING [2026] SASCA 92 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 6 August 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON- DIRECTION - JUDGE'S SUMMING UP CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - NOTICE AND DISCLOSURE TO ACCUSED APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCONDUCT OF COUNSEL CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY This is a conviction appeal. On 12 December 2024, following a trial by jury, the appellant was convicted of one count of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). The prosecution case at trial was that the appellant had taken part in the trafficking of cannabis at a property at 51 Military Road, Tennyson (‘the Military Road address’) on 26 May 2020. The property -- 1 of 44 -- was leased by the appellant’s co-accused, Mr Nicholas Hallion. There was no dispute that the Military Road address was being used for the packaging and distribution of cannabis by a drug syndicate, and that on 26 May 2020, the appellant was present at that property when police arrived. Mr Hallion was not present at the Military Road address on 26 May 2020. The appellant challenges his conviction on seven grounds which raise the following issues: - Whether, upon an independent assessment of the whole of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt as to the appellant’s guilt (Ground 1). - Whether the trial judge erred in her directions to the jury regarding the evidence of the appellant’s flight from the Military Road address, such as to amount to a wrong decision on a question of law (Ground 2). - Whether a miscarriage of justice was caused by Constable Calicchio giving evidence that she made notes on 26 May 2020 in circumstances where the prosecution had previously advised there were no notes; and whether the trial judge’s directions on this topic were adequate (Ground 3). - Whether the failure by the prosecution to disclose a South Australia police (‘SAPOL’) investigation into Constable Calicchio for alleged abuse of public office gave rise to a miscarriage of justice (Ground 4). - In the alternative to Ground 4, whether the fresh evidence regarding Constable Calicchio’s alleged abuse of public office gave rise to a significant possibility that the appellant would have been acquitted had the evidence been available to the appellant at trial (Ground 5). - Whether the trial judge misstated the evidence of Detective Burton such as to occasion a miscarriage of justice (Ground 6). - Whether a miscarriage of justice arose as a result of the conduct of the appellant’s trial counsel (Ground 7). Held, per the Court, granting permission to appeal, upholding Ground 4, but applying the proviso and dismissing the appeal: 1. The prosecution case when considered as a whole was capable of establishing beyond reasonable doubt that the appellant had been taking a step in the process of sale of the cannabis at the Military Road address. It was open to the jury to exclude the appellant’s account as a reasonable possibility, as well as any other hypothesis consistent with innocence. 2. The trial judge was not required to direct the jury that it must be satisfied beyond reasonable doubt that the only rational explanation for the defendant's flight was a consciousness of guilt. The trial judge’s directions effectively protected against any risk that the jury would fail to consider other innocent explanations for the appellant’s flight, place undue weight on the evidence of flight or reason that just because the appellant fled the premises he must be guilty of the charged offence. 3. There was no risk that Constable Calicchio’s evidence that she had made contemporaneous notes impermissibly bolstered her credibility and reliability on the contested issue of the words spoken to her by the appellant. 4. As to Ground 4, the prosecution’s failure to disclose SAPOL’s investigation into Constable Calicchio deprived the appellant of the opportunity of fully challenging Constable Calicchio’s account as to the words spoken by the appellant and undermined his ability to challenge the evidence of flight. The prosecutorial breach of the duty of disclosure could realistically have affected the reasoning of the jury to a verdict of guilty and was productive of a miscarriage of justice. It is unnecessary to consider the question of fresh evidence and Ground 5. -- 2 of 44 -- 5. The trial judge’s misstatement of the evidence of Detective Burton could not realistically have affected the reasoning of the jury to its verdict. 6. Counsel's conduct of the trial could not realistically have affected the jury’s reasoning to a guilty verdict and did not give rise to a miscarriage of justice. 7. The prosecution's failure to disclose the material relating to Constable Calicchio did not constitute a fundamental irregularity. The prosecution proved the appellant's guilt beyond reasonable doubt. There was no substantial miscarriage of justice, and the proviso is applied. Criminal Law Consolidation Act 1935 (SA) s 32(1); Criminal Procedure Act 1921 (SA) ss 123(2), 125, 158(2), referred to. Brawn v The King (2025) 99 ALJR 872; Castle v The Queen (2016) 259 CLR 449; Colson v The King [2024] SASCA 38; Coughlan v The Queen (2020) 267 CLR 654; Dansie v The Queen (2022) 274 CLR 651; Eastman v Director of Public Prosecutions (ACT) (No 13) [2016] ACTCA 65; Edwards v The Queen (1993) 178 CLR 193; Grey v The Queen (2001) 75 ALJR 1708; Hofer v The Queen (2021) 274 CLR 351; Kalbasi v Western Australia (2018) 264 CLR 62; Liberato v The Queen (1985) 159 CLR 507; Libke v The Queen (2007) 230 CLR 559; Mallard v The Queen (2005) 224 CLR 125; M v The Queen (1994) 181 CLR 487; NBM v The Queen [2021] SASCA 105; Nudd v The Queen (2006) 80 ALJR 614; Perara-Cathcart v The Queen (2017) 260 CLR 595; Ratten v The Queen (1974) 131 CLR 510; R v Adam (1999) 106 A Crim R 510; R v Burns (2009) 103 SASR 514; R v Camilleri (2001) 119 A Crim R 106; R v Ciantar (2006) 16 VR 26; R v Dickinson [2007] VSCA 111; R v Forrest (2016) 125 SASR 319; R v Hillier (2007) 228 CLR 618; R v K (1991) 161 LSJS 135; R v Melrose [1989] 1 Qd R 572; R v Nguyen (2001) 118 A Crim R 479; R v Power (1996) 87 A Crim R 407; R v Wildy (2011) 111 SASR 189; R v ZT (2025) 281 CLR 137; Singh v The King [2025] SASCA 98; TKWJ v The Queen (2002) 212 CLR 124; Weiss v The Queen (2005) 224 CLR 300, considered. -- 3 of 44 -- -- 4 of 44 -- MUSOLINO v THE KING [2026] SASCA 92 Court of Appeal—Criminal: Livesey P, Bleby and David JJA 1 THE COURT: On 12 December 2024, following a trial by jury, the appellant was convicted of one count of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA). 2 The prosecution case at trial was that the appellant had been taking steps in the trafficking of cannabis at a property at 51 Military Road, Tennyson (‘the Military Road address’) on 26 May 2020. The property was leased by the appellant’s co-accused, Mr Nicholas Hallion. There was no dispute that the Military Road address was being used for the packaging and distribution of cannabis by a drug syndicate, and that on 26 May 2020, the appellant was present at that property when police arrived. Mr Hallion was not present at the Military Road address on 26 May 2020. 3 The appellant challenges his conviction on seven grounds which raise the following issues: • Whether, upon an independent assessment of the whole of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt as to the appellant’s guilt (Ground 1). • Whether the trial judge erred in her directions to the jury regarding the evidence of the appellant’s flight from the Military Road address, such as to amount to a wrong decision on a question of law (Ground 2). • Whether a miscarriage of justice was caused by Constable Calicchio giving evidence that she made notes on 26 May 2020 in circumstances where the prosecution had previously advised there were no notes; and whether the trial judge’s directions on this topic were adequate (Ground 3). • Whether the failure by the prosecution to disclose a South Australia police (‘SAPOL’) investigation into Constable Calicchio for alleged abuse of public office gave rise to a miscarriage of justice (Ground 4). • In the alternative to Ground 4, whether the fresh evidence regarding Constable Calicchio’s alleged abuse of public office gave rise to a significant possibility that the appellant would have been acquitted had the evidence been available to the appellant at trial (Ground 5). • Whether the trial judge misstated the evidence of Detective Burton such as to occasion a miscarriage of justice (Ground 6). -- 5 of 44 -- [2026] SASCA 92 The Court 2 • Whether a miscarriage of justice arose as a result of the conduct of the appellant’s trial counsel (Ground 7). 4 For the reasons which follow, we grant permission to appeal on Ground 4, find there was a miscarriage of justice but apply the proviso and dismiss the appeal. The evidence at trial 5 The prosecution case against the appellant was largely a circumstantial one. It was comprised of the following bodies of evidence: the appellant’s presence at the Military Road address; the items associated with cannabis distribution located on the appellant’s person; DNA evidence; telecommunication evidence; expert evidence from the Drug Investigation Branch and evidence of flight adduced as an implied admission of guilt. The appellant’s presence at the Military Road address 6 At approximately 11:40am on 26 May 2020, police attended the Military Road address. The police entered the premises through the front gate. They did so by force. Upon entering the property, police announced their arrival and identified themselves as police. A number of police officers entered the house through a front sliding door which was unlocked. 7 Detective Burton (in plain clothes) ran along the southern side of the house and was followed by a number of uniformed police officers. Detective Burton saw the appellant climbing over a small fence that led to the rear garden of the property and yelled at the appellant to stop. She explained in her evidence that she could not recall the precise words she used on this occasion, but that her ‘usual practice’ was to yell “Stop. Police” particularly in circumstances when she was not in uniform. 8 The appellant was at the Military Road address when police arrived. He climbed over the back fence of the premises into the backyard of 92 Seaview Road, Tennyson (‘the Seaview Road address’). The appellant then ran along the northern side of that property and into its front yard. Ms Unaiki Esther, a domestic cleaner who was working on the top floor of the Seaview Road address, heard a female voice yelling “stop” and then saw the appellant climb over the back fence and into the property. 9 When the appellant entered the front yard of the Seaview Road address, he was stopped by Constable Calicchio, a uniformed police officer who had been maintaining a rear cordon at that location. Constable Calicchio told him to stop. The appellant complied with Constable Calicchio’s direction and stopped running. He was subsequently arrested. The appellant spoke to Constable Calicchio when he first approached her. 10 Constable Calicchio gave evidence that the appellant said to her, “Okay, you got me, you got me”. However, the appellant gave evidence that he in fact said, -- 6 of 44 -- [2026] SASCA 92 The Court 3 “It’s okay, it’s okay”. Constable Calicchio’s evidence on this topic was challenged at trial and is the subject of appeal grounds 3-5. The search of the Military Road address 11 The property was subsequently searched and found to contain over 192 kg of cannabis valued between $800,000 and $1 million if sold in pounds. Police also found equipment commonly used for the packaging of cannabis for sale. 12 There was evidence adduced as to the layout of the premises. It is situated on a hill, and the upper floor of the property is level with the rear garden. 13 In the ‘family room’ upstairs, police located 62.3 kg of loose cannabis. The cannabis was found in several large plastic bags, each containing a number of small plastic shopping bags with cannabis loosely packaged inside. Those bags were located on the floor, next to an open trapdoor. The large plastic bags had writing on them in black permanent marker, including numbers and suburb names. In the trapdoor, police located two heat seal vacuum machines. 14 In the upstairs ‘main bedroom’, police located a further 61 kg of loose cannabis, as well as a shovel, scales, a box of blue disposable gloves, and empty plastic bags similar to those located in the family room with suburb names and numbers written on them in black permanent marker. Police also located a piece of paper containing a list of letters and numbers, referrable to the writing and numbers on the large plastic bags of cannabis in the family room and main bedroom. 15 In the downstairs ‘dining room’, in a large yellow toolbox, police located 150 vacuum sealed packages of cannabis, each weighing approximately one pound. Two empty yellow toolboxes were located in the garage. An examination of the two heat seal machines located in the family room, and 10 of the vacuum sealed bags located in the large yellow toolbox, revealed that the machines were capable of creating the heat seal on three of the 10 bags. The remaining seven bags were not sealed by either machine. 16 In the dining room, police located a number of cardboard boxes containing empty plastic resealable bags. On the side of one box, a postage sticker listed the delivery address as Master Butchers MBL at Hanson Road, Athol Park. 17 When police entered the Military Road address, they observed live CCTV footage of the property being displayed on a television in the downstairs lounge room. The hard drive was not seized by police. 18 On the prosecution case, it could be inferred from the state of the premises that it was being used to package cannabis for distribution and sale. In this regard, bags of loose cannabis had been removed from the trapdoor in the family room, and there was a large pile of cannabis and empty plastic bags on the floor of the main bedroom. -- 7 of 44 -- [2026] SASCA 92 The Court 4 19 In the vicinity of the path that the appellant took as he ran towards the Seaview Road address, and near the back fence of the Military Road address, police located a set of four keys, and a roller door remote. The keys and remote opened the front sliding door of the Military Road address and the roller door to the house. When the police arrived, the front door was open. In his evidence, the appellant agreed that he had this set of keys in his possession when he attended the Military Road address. The search of the appellant’s person, backpack and sports bag 20 When the appellant was stopped by Constable Calicchio at the front of the Seaview Road address, he had in his possession a black backpack and a black sports bag. He was not wearing a shoe on his left foot. Police located a single Asics shoe for a left foot near the back fence of the Military Road address. 21 In the appellant’s backpack, police located a notepad, a black permanent marker, six pairs of gardening gloves, two blue disposable gloves and 15 white disposable gloves, two mobile phones, six cable ties, an empty resealable plastic bag and a right Asics shoe of the same design as that found in the rear yard of the property. The notepad contained a list of numbers and letters that were identical to the list found in the main bedroom of the Military Road address. The contents of the lists were referrable to suburb names and numbers written on bags of cannabis in the family room and the main bedroom with a black marker. For example, the lists both refer to “Sal 62”. Two large plastic bags of cannabis were located in the family room: the first was marked “26/62 SALISBURY”; the second was marked “36/62 SALISBURY”. The expert evidence (discussed further below) was to the effect that the lists were consistent with notes of cannabis grow houses (identified by the suburb in which they are located) that had supplied cannabis to the Military Road address, with the numbers on the lists representing the total pounds of cannabis provided by each grow house. 22 In the appellant’s black sports bag, police located six gardening gloves, a box of 100 white disposable gloves, and a plastic bag containing clothes and a bar of soap. 23 Police also seized an iPhone, wallet, keys and three white disposable gloves from the appellant. The appellant’s wallet contained two NAB receipts for cash deposits of $4,000 and $2,000 on 8 May 2020. 24 The clothing worn by the appellant was seized and analysed. A fragment of cannabis leaf was located in the pocket of the appellant’s tracksuit pants. The size of the fragment was 0.5 mm by 0.045 mm. The age of the fragment could not be identified. Otherwise, there was no evidence of cannabis detected on the appellant’s clothing. It was agreed that a qualified forensic scientist would give evidence that if cannabis comes into contact with an object, it would be unlikely that no plant fragments or Tetrahydrocannabinol (‘THC’), the primary psychoactive cannabinoid found in cannabis, would be transferred to the object; -- 8 of 44 -- [2026] SASCA 92 The Court 5 but it is possible for the THC or plant fragment to be too small to be detected through the general testing procedures. The appellant’s vehicle 25 The appellant’s vehicle, a white Ford sedan, was parked in a parking bay on Hallam Terrace, Tennyson, about 200-300 metres from the Military Road address. Handwriting analysis 26 There was strong support for the hypothesis that the same person wrote both the list located in the main bedroom and the list recorded in the notepad located in the appellant’s backpack. 27 There was equal support for the hypothesis that the list located in the main bedroom and the appellant’s handwriting sample were written by the same person as for the hypothesis that they were not written by the same writer. 28 The list found in the notebook in the appellant’s backpack was not compared with the appellant’s handwriting sample. DNA and fingerprint evidence 29 DNA testing was conducted on four items seized from the Military Road address: a used tissue, and three blue disposable gloves located in the lounge room. Testing on one of the blue disposable gloves found that there was slight support (a statistical weighting of four) for the hypothesis that the appellant was a contributor to the DNA profile. 30 The appellant’s fingerprints were not located on any items seized from the Military Road address. Telecommunication evidence 31 The iPhone seized from the appellant showed the following internet searches or usage: • On 6 May 2020, viewing a page on the Yellow Pages website titled, “MBL Food Service - Butcher Supplies 215 Hanson Road, Athol Park SA 5012 - Athol Park”. • On 12 May 2020 and 15 May 2020, accessing the Master Butchers Co-op Adelaide website. • On 12 May 2020, accessing a page on the Master Butchers Co-Op Adelaide website titled, “Food Packaging - Product List - MBL Food Service”. • On 21 May 2020, a search of “glen lossie street woodville south” on Google. -- 9 of 44 -- [2026] SASCA 92 The Court 6 32 As mentioned earlier, there were plastic resealable bags found within the Military Road address that were labelled as having been purchased from Master Butchers. A search was conducted on the appellant’s phone of MBL Food Service or Master Butchers on three occasions between 6 May 2020 and 12 May 2020. Expert evidence from the Drug Investigation Branch 33 Detective Heighway gave evidence regarding methods of packaging, pricing and distribution of cannabis in South Australia. He said that in large commercial cannabis operations, it is not uncommon for cannabis to be cultivated in grow houses and then conveyed to a separate house to be packaged for sale. He explained that cannabis may be loosely packaged in plastic shopping bags at the grow house and then transported to a packaging house, where it may then be repackaged into vacuum sealed bags for sale. 34 As mentioned earlier, Detective Heighway explained that in this case, the lists appeared to record quantities of cannabis in pound amounts, and the grow house from which the cannabis had been supplied by reference to the suburb in which the grow house was located. 35 Detective Heighway also gave evidence that in his experience, persons involved in drug syndicates may install CCTV cameras at grow houses but do not always record activity as the CCTV footage may prove incriminatory. Instead, they view the CCTV live from inside the premises to monitor whether anyone is approaching the premises. 36 Detective Heighway also explained that indicia of sale include the possession of multiple mobile phones, large amounts of money and lists of money owing (‘tick lists’) often in coded form. Evidence of flight 37 On the prosecution case, when police officers arrived at the Military Road address, they announced their presence loudly and repeatedly. Several of the police officers were in uniform. The appellant took all his possessions and left the premises over the back fence. He was told to “stop” by Detective Burton, but the appellant did not stop. Detective Burton could be heard by Ms Esther saying “stop” from the upstairs balcony of the Seaview Road address such that the prosecution alleged it was unlikely the appellant also did not hear Detective Burton tell him to “stop”. 38 There was also evidence of CCTV being displayed within the Military Road address, which may have enabled the appellant to see the police arriving prior to the moment that police forced their way in through the front gate and announced their presence at the property. 39 Constable Calicchio gave evidence that she saw the appellant run into the front yard of 92 Seaview Road and told him to stop. She said that the appellant stopped, and said to her “Okay, you got me, you got me”. In cross-examination, -- 10 of 44 -- [2026] SASCA 92 The Court 7 defence counsel put to Constable Calicchio that the appellant said, “It’s okay, it’s okay”. Constable Calicchio maintained that the appellant said “Okay, you got me, you got me”. The evidence of flight was adduced as an implied admission. The appellant’s association with Mr Hallion 40 The appellant was jointly tried with Mr Hallion. The evidence against Mr Hallion is relevant to the case against the appellant because there was evidence at trial that the appellant had conducted a Google search for Mr Hallion’s residential address, Glen Lossie Street, Woodville South (‘the Glen Lossie address’) five days prior to his arrest. The appellant also gave evidence that he had met Mr Hallion at the Glen Lossie address and had been employed by him to undertake ‘yard clearing’ work at the Military Road address. 41 There was also objective evidence at trial linking Mr Hallion to the Military Road address. Mr Hallion was the sole lessee of the Military Road address and had keys to the property. At the Glen Lossie address, police seized three large, empty vacuum resealable bags which had black marker writing on them, similar to the writing on the plastic bags located in the family room and the main bedroom at the Military Road address. 42 DNA testing on the used tissue and two of the blue disposable gloves in the lounge room of the Military Road address found that there was extremely strong support for the hypothesis that Mr Hallion was a contributor to the DNA profile rather than some unknown person. 43 A fingerprint located on a ‘Maximus’ bottle at the Military Road address was identified to be an impression from the left middle finger of Mr Hallion. 44 At the Glen Lossie address, police located a Kennards moving box containing a number of used heat-sealed bags that smelt of cannabis, and letters that were addressed to 51 Military Road, Tennyson. 45 A notebook was seized from the Glen Lossie address. It contained a list of letters and numbers that was referrable to the writing made on the large plastic bags containing loosely packaged cannabis in the family room of the Military Road address. The list also resembled the lists located in the main bedroom of the Military Road address, and in the appellant’s backpack. 46 There was also moderate support for the hypothesis that the same person wrote both the entries in the Glen Lossie notebook and Mr Hallion’s handwriting sample. The defence case 47 The appellant gave evidence in his own defence. 48 The appellant said that in 2020, he was self-employed and would undertake work in home improvements. He explained that he was present at the Military -- 11 of 44 -- [2026] SASCA 92 The Court 8 Road address on 26 May 2020 as he had been asked by Mr Hallion to clear rubbish from the backyard. He had met Mr Hallion a week prior at the Glen Lossie Street address to discuss the job. 49 The appellant gave evidence that on 26 May 2020, he had arrived at the Military Road address at around 11:00am and entered through the front roller door. He obtained the roller door remote and a set of keys from under a rock near the front gate to the property. He gave evidence that he did not go inside the house. The appellant said that he had parked his car on Hallam Terrace (200 to 300 metres away) because when he had pulled up in front of the Military Road address, there were signs for a clearway for bicyclists during designated periods. He decided to park on Hallam Terrace as there were no restrictions on parking. He did not park in the driveway, as it was not his usual practice to do so, and he thought there was a skip arriving at the property that day. 50 After arriving at the property, the appellant began inspecting the rear of the property to categorise various items into different groups, such as recyclable items, restorable items, green waste and rubbish. He explained that, for this type of work, he would generally use gardening gloves to handle heavier items, and disposable gloves to handle rubbish. He explained that he had spare clothes and soap because the type of work he was asked to do was often dirty, and he would wipe himself down at the end of the day to “feel fresher”. He also said that he would often use a drink bottle or a garden tap to clean himself after finishing a job. 51 The appellant gave evidence that he located the notepad and two mobile phones under the back verandah. He took the notepad and one of the mobile phones and put them in his backpack because they looked to be in good condition. 52 The appellant said that he often undertook work in return for cash, hence the receipts found in his wallet. 53 The appellant gave evidence that he searched the Master Bucher’s Co-op website in May 2020 because he wanted to buy meat trays so he could store meat in his freezer for his two German Shepherd dogs. He said he was having issues finding food for the dogs at that time due to COVID-19. 54 As to the evidence of flight, the appellant said that he heard a loud bang, and “angry yelling”. He said he “panicked” and “had to get out of there”. He said he could not hear what the voices were saying, they just sounded “muffled but loud”, “angry” and “ominous”. He said he believed the voices “were getting closer towards [him]”. 55 The appellant said he ran and jumped the fence into 92 Seaview Road because “it felt dangerous to [him] at that moment”. He saw Constable Calicchio and “gestured that it was okay to her and sat down”. In cross-examination, the appellant denied saying, “Okay, you got me, you got me” to Constable Calicchio. He also denied knowing that it was police who had arrived at the property and -- 12 of 44 -- [2026] SASCA 92 The Court 9 denied running from the police because he knew he was involved in the trafficking of cannabis. 56 In addition, the appellant denied packaging any of the cannabis at the Military Road premises for distribution. Ultimately, he denied the offence. Ground 1: Unreasonable verdict 57 This ground complains that the guilty verdict is unreasonable or cannot be supported by the evidence as there is a rational inference consistent with innocence. The appellant contends that it was not open for the jury to reject his account beyond reasonable doubt. Nor was it open for the jury to reject as a reasonable possibility that he remained outside the house at the Military Road address on 26 May 2020, or that some other individual was responsible for packaging cannabis at that address. 58 The appellant provided an innocent explanation for each of the individual strands of the prosecution evidence at trial and contends that the combination and totality of the facts proved are consistent with the appellant’s innocence of the charged offence. 59 The test to be applied in determining whether a jury verdict is unreasonable or cannot be supported by the evidence is well settled. The High Court in M v The Queen said:1 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Citations omitted.) 60 A verdict will be ‘unreasonable’ or not ‘supported having regard to the evidence’ when the appellate court concludes that, on the whole of the evidence, it was not open to the jury to be satisfied of guilt beyond reasonable doubt. In determining whether it was open to the jury to be so satisfied, this Court asks itself whether the jury must, as distinct from might, have entertained a reasonable doubt.2 61 The authorities recognise that ordinarily, “a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced”.3 It 1 M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ). 2 Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J). 3 M v The Queen (1994) 181 CLR 487 at 494, cited with approval in Dansie v The Queen (2022) 274 CLR 651 at [9] (Gageler, Keane, Gordon, Steward and Gleeson JJ). -- 13 of 44 -- [2026] SASCA 92 The Court 10 has been said that where the appellate court has a doubt, the appeal must be allowed unless the jury had an advantage capable of resolving that doubt.4 62 In determining an unreasonable verdict ground, an appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses.5 The jury’s advantages are not confined to witness testimony but may extend to all the evidence adduced at trial. As the High Court recently explained in R v ZT:6 …The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial… (Citations omitted.) 63 As mentioned earlier, the prosecution case against the appellant was largely a circumstantial one. During the trial, there was little dispute as to the evidence adduced by the prosecution. Rather, the appellant challenged the inferences the prosecution invited the jury to draw from the evidence. While the jury had an advantage in seeing the evidence of the appellant and, to some extent, the evidence of Constable Calicchio, with respect to the other uncontested circumstantial evidence, and the inferences sought to be drawn from that evidence, the jury’s advantage was limited. 64 Ultimately, the task for this Court is not to determine whether there is evidence to support the verdict but rather to make an assessment “for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence”.7 65 An unreasonable verdict ground of appeal in a circumstantial case requires this Court to engage in an independent assessment of the combined force of all the evidence rather than approaching the various pieces of evidence in a piecemeal fashion.8 There may be an innocent explanation for various aspects of the case when considered in isolation. However, a circumstantial case is not to be approached in this way. Rather, an appellate court must assess the quality and sufficiency of the united force of all the circumstances looked at as a whole and then determine whether the prosecution has excluded all rational inferences consistent with innocence. 4 M v The Queen (1994) 181 CLR 487 at 494. 5 M v The Queen (1994) 181 CLR 487 at 494. 6 R v ZT (2025) 281 CLR 137 at [9] (Gaegler CJ, Gleeson, Jagot and Beech-Jones JJ). 7 Dansie v The Queen (2022) 274 CLR 651 at [7] (Gageler, Keane, Gordon, Steward and Gleeson JJ). 8 R v Hillier (2007) 228 CLR 618 at [46]-[48] (Gummow, Hayne and Crennan JJ). -- 14 of 44 -- [2026] SASCA 92 The Court 11 66 As this Court recently explained in Colson v The King:9 It is critically important in considering a circumstantial case that all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. Often enough in a circumstantial case, there will be evidence of matters which, when looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial nor on appeal is a circumstantial case to be considered piecemeal. By way of example, the quality of evidence of identification may be poor, but other evidence may support its correctness. In such a case, whether a verdict of guilty can be entered or not depends upon an assessment of the evidence as a whole rather than considering each piece of evidence in isolation. In a case depending on circumstantial evidence, one circumstance should not be rejected because, when considered alone, no inference of guilt can be drawn from it. It is well established that consideration must be given to the weight of the united force of all the circumstances put together. (Citations omitted.) 67 Upon our own independent assessment of the whole of the evidence, we are satisfied this was a strong circumstantial case against the appellant; and thus, it was certainly open to the jury to find the offence proved beyond reasonable doubt and exclude all rational inferences consistent with the innocence of the appellant. The strength of the prosecution case lay in the combined force of the following circumstances. 68 First, the appellant was present at the Military Road address on 26 May 2020 when police arrived. He was in possession of the remote control of the roller door and keys to the front door of the property. The front door was open. There was over 192 kgs of cannabis valued at over $800,000 located at the property and it is unlikely that a person who was not involved in the drug syndicate responsible for the cannabis would have such unfettered access to the premises. 69 Secondly, the appellant had a notepad in his backpack containing a list that resembled the list found in the main bedroom of the premises next to bags of cannabis. The content of both lists is referrable to suburb names and numbers written on bags of cannabis in other rooms of the premises. The lists were written in black marker, and the appellant had a black marker in his backpack. There was also strong support for the hypothesis that the lists were written by the same person. 70 In addition, there was expert evidence that lists of this nature which appear to record quantities of cannabis, and the grow house from which the cannabis had been supplied by reference to the suburb in which the grow house was located, are often associated with drug trafficking in cannabis. 71 Thirdly, when police arrived at the Military Road address, there were bags of cannabis near the trapdoor in the family room, and a large amount of cannabis and empty plastic bags on the floor of the main bedroom. It could be inferred from the state of the house that a person or persons were in the process of packaging 9 Colson v The King [2024] SASCA 38 at [36] (Livesey P, Doyle JA and Stanley AJA). -- 15 of 44 -- [2026] SASCA 92 The Court 12 cannabis. The appellant was in possession of items used in the packaging of cannabis, namely nine pairs of gardening gloves, a box of 100 white disposable gloves, 15 loose white disposable gloves and two loose blue disposable gloves. The appellant also had a bar of soap, a change of clothes and a spare pair of shoes in his possession consistent with changing his clothing and washing his hands after packaging cannabis to avoid detection. The appellant also had a cannabis leaf in his tracksuit pocket. DNA testing of one of the blue disposable gloves revealed that there was slight support (a statistical weighting of four) for the hypothesis that the appellant was a contributor to the DNA profile. 72 Fourthly, there was a connection between items associated with the packaging of cannabis located at the premises and the appellant. Plastic resealable bags found at the Military Road address were purchased from Master Butchers (MBL Food Services). The appellant had searched Master Butchers or MBL Food Service on three occasions between 6 May 2020 and 12 May 2020. That is, at a time proximate to his presence at the premises. 73 Fifthly, the appellant had in his possession receipts for $2,000 and $4,000 in cash, deposited on 8 May 2020, two mobile phones in his backpack and a mobile phone in his pocket; accoutrements associated with trafficking in illicit drugs. 74 Sixthly, there was significant evidence at trial linking the appellant’s co-accused Mr Hallion to the Military Road address, and evidence that the appellant was associated with Mr Hallion. The appellant used the internet to ascertain Mr Hallion’s residential address on 21 May 2020. 75 Seventhly, when police arrived at the property, the appellant took all his possessions and fled over the back fence. He was told to stop by Detective Burton but did not stop. Burton could be heard by Ms Esther from the upstairs balcony of 92 Seaview Road saying, “stop”. There was also evidence of CCTV being displayed within the Military Road address which may have enabled the appellant to see that police had arrived prior to the moment that police announced their presence at the property. The appellant gave evidence that he left the premises as he was frightened by a very loud bang and angry shouting and that he did not see police officers, hear them tell him to stop, or realise there were police officers at the premises until his interaction with Constable Calicchio. On the prosecution case, the appellant allegedly told Constable Calicchio, “Okay you got me, you got me” which undermined his explanation for leaving the premises. Because of the prosecution’s lack of disclosure relevant to Constable Calicchio’s evidence (the subject of Ground 4), we have put the evidence of flight to one side in considering whether the verdict is unreasonable. 76 Further, when considering whether the verdict was unreasonable, we have not overlooked the appellant’s submissions as to the absence of his fingerprints within the premises (although this may well be explained by the use of gloves) and his explanation for each of these bodies of circumstantial evidence, as follows. -- 16 of 44 -- [2026] SASCA 92 The Court 13 77 As to the state of the house, the appellant gave evidence that he had been hired by Mr Hallion to clear waste from the yard. It is of course unlikely that persons involved in a valuable drug syndicate would give a person uninvolved in the illegal drug enterprise unfettered access to a premises storing 192 kgs of cannabis for fear of it being stolen or the person informing the police. 78 In relation to his internet search of MBL Food Service, the appellant’s evidence was that he had been searching for plastic meat trays to help store meat for his two dogs during the COVID-19 pandemic. 79 As to his possession of various gloves, the appellant gave evidence that he was self-employed in relation to home improvements, painting and decorating, and was at the premises to clear waste from the yard. 80 Further, the appellant emphasised that apart from the fragment of cannabis leaf found in his pocket, there was no evidence of any THC or cannabis found on any clothing or items belonging to the appellant, despite the large quantity of cannabis on the floor and the evidence (by way of agreed facts) that if cannabis came into contact with an object, it would be unlikely that no THC or plant fragments would be transferred, although it is possible for the THC or plant fragment to be too small to be detected. While that may be so, the appellant was found with a fragment of cannabis in his pocket, and it is not entirely clear the extent to which packaging of cannabis had been undertaken by the time the police arrived. In addition, the forensic evidence left open the possibility that the appellant may have come into contact with cannabis and no remnants were transferred, or the remnants were too small to detect. 81 In relation to the appellant’s DNA and the blue glove, the appellant submitted that the statistical weighting was so small as to render the evidence equivocal. It was also emphasised that the second of the pair of gloves also contained a mixed DNA profile of three contributors, and the hypothesis that the appellant was not a contributor had a statistical weighting of seven. Both gloves had DNA where the statistical weighting of Mr Hallion being a contributor was greater than 100 billion. 82 Notwithstanding those innocent explanations for each piece of circumstantial evidence, when the evidence is considered as a whole, we are satisfied that it was open to the jury to reject the appellant’s account as inherently implausible, and find his guilt proven beyond reasonable doubt. 83 The prosecution case considered as a whole was capable of establishing beyond reasonable doubt that the appellant had been taking a step in the process of sale of the cannabis at the Military Road address, and it was open to the jury to exclude the appellant’s account as a reasonable possibility, as well as any other hypothesis consistent with innocence. 84 We dismiss this ground of appeal. -- 17 of 44 -- [2026] SASCA 92 The Court 14 Ground 2: Directions regarding the appellant’s flight and consciousness of guilt 85 The appellant contends that the trial judge erred by failing to instruct the jury that they could not use the evidence of the appellant’s flight as evidence of his consciousness of guilt or an implied admission unless they were satisfied beyond reasonable doubt that the reason for his flight was that he knew that he had committed the charged offence. The appellant contends that the trial judge’s directions “were not in accordance with binding authority”. The evidence of flight 86 Detective Burton gave evidence that she entered the Military Road address through a locked fence with other police officers and walked up the left or southern side of the house. Detective Burton said that she heard a “banging, clanging” noise coming from the back of the house and started running. She could see a person going over the back fence consisting of some chicken wire. She was wearing plain clothes but other police officers who followed her were in police uniform. 87 Detective Burton said that she was unsure whether she announced her presence by saying anything other than “stop”. However, she also explained that it was her usual practice to announce her presence as “police”, particularly if she was in plain clothes (as she was here). 88 Detective Burton gave evidence that she tried to use her radio, but the battery was flat, so she called out to other police officers to use their radio to let others know there was a “runner”. 89 Ms Unaiki Esther, a cleaner at the adjacent property gave evidence that while she was mopping the balcony, she heard a female voice say, “Hey, stop”. She saw a tree moving and a man (the appellant) climb over the adjacent fence. When she looked out the front window, she saw a police officer (Constable Calicchio) with the appellant on the pavement. Ms Esther later found a left shoe in the bushes near the location where the appellant had climbed over the fence. 90 Constable Calicchio gave evidence that she became aware there was a “runner” from the Military Road address who was climbing over the back fence. Constable Calicchio saw someone run onto the grassed area and told the person to stop. She said the male stopped and said, “Okay, you got me, you got me”. The male person remained in her custody until other police officers came to assist. 91 The prosecution relied on the appellant’s flight as evidence of a consciousness of guilt or an implied admission. In his final address to the jury, the prosecutor submitted that the appellant heard Detective Burton yelling, “Stop. Police” and then fled. The prosecutor said: [The appellant] heard this, on the prosecution case, he knew he was involved in trafficking cannabis by bagging it up into discrete amounts, packaging it for sale and because of that, he ran. That’s why he ran and that’s why when Constable Calicchio directed him to stop, -- 18 of 44 -- [2026] SASCA 92 The Court 15 he said ‘Okay, you got me. You got me’. He didn’t say ‘Oh thank God, the police are here. You wouldn’t believe what’s just happened next-door. Someone’s invading. We need your help’. He didn’t say that at all. He didn’t act like you might expect someone to act with just being fearing for their life. … Members of the jury, the prosecution case is that he was running because of consciousness of guilt. Now, you will have to reject the innocent explanation that [the appellant] has proffered but given his presentation as a witness and the fact that his story and his actions when he met with police just don’t appear to make logical sense, my suggestion is that this won’t cause you too much difficulty and it is the only logical and rational conclusion to draw. 92 In relation to the evidence of flight, the defence case was that the appellant heard a loud noise which frightened him. He then panicked and fled the premises because he believed there were intruders and the premises was subject to a home invasion. He said that he did not hear the words “police” and when he realised that it was police chasing him, he stopped and said, “It’s okay, it’s okay”. 93 In summing up to the jury, the trial judge summarised the opposing positions in relation to the evidence, and instructed the jury in the following terms: Now, to decide whether to use this evidence as evidence of flight you must consider two things: the first thing you should consider is, do you accept that the [appellant], in fact, fled the scene. It is probably not too difficult. There appears to be no dispute that the [appellant] fled the scene, although it is, of course, common ground that when he was confronted by the police officer on Seaview Road he stopped and complied with her directions. The second question you will need to consider is, did the [appellant] flee the scene because he knew he had committed the offence of trafficking? You should consider whether the [appellant’s] flight was due to some other reason. [The appellant] said the reason was panic. There might be other reasons such as to escape an unjust accusation or of being wrongly associated with the operation if he, in fact, had no involvement. In considering those two questions you will be able to decide whether to use the [appellant’s] flight as part of the prosecution case against the [appellant]. If you do think that the [appellant’s] flight is evidence of guilt then you must still consider all of the circumstances when deciding whether the prosecution has proved guilt beyond a reasonable doubt. If you decide to use flight it is simply one of the circumstances that you are entitled to consider when you consider the case overall. If you think though that [the appellant’s] flight from the scene is explicable by something other than him having a consciousness of guilt or an awareness that he was guilty of trafficking, then you should disregard that evidence as part of the circumstances that you are considering. 94 The appellant contends that the trial judge erred by failing to direct the jury that before they could use the evidence of flight as evidence of guilt or an implied admission, the jury needed to be satisfied beyond reasonable doubt there was no innocent explanation for the appellant’s flight. -- 19 of 44 -- [2026] SASCA 92 The Court 16 95 In our view, the appellant’s contention is not supported by the authorities and a direction in the terms contended for would have been incorrect. 96 In Edwards v The Queen (‘Edwards’),10 the High Court explained that where evidence of a post-offence lie is led as a piece of circumstantial evidence in support of a consciousness of guilt, it need not be proved to any particular standard. The evidence may be considered together with other circumstantial evidence to establish guilt beyond reasonable doubt. It is only where a post-offence lie is the sole evidence against an accused or is an indispensable link in a chain of evidence necessary to prove guilt, that the lie and the inference to be drawn from the lie of the accused’s consciousness of guilt, is required to be proved beyond reasonable doubt. 97 As the majority explained:11 … Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is guilty or is not guilty beyond reasonable doubt. (Citations omitted.) 98 This approach has been adopted by this Court and applied to other forms of post-offence conduct in R v Wildy (‘Wildy’)12 and NBM v The Queen (‘NBM’).13 99 In Wildy, the defendant was convicted of a number of sexual offences. There was evidence that, following a letter from the complainant accusing the defendant of abuse and demanding $50,000, the appellant loaned the complainant $6,000. The prosecution relied on the loan as an attempt to buy the complainant’s silence. On appeal, it was argued that the trial judge ought to have directed the jury that it could not use the evidence as an implied admission unless it was satisfied beyond reasonable doubt both of the conduct, and that it demonstrated a consciousness of guilt. Vanstone J (Sulan J agreeing) held that the principles discussed in Edwards are of general application to other forms of post-offence conduct (in addition to lies) and when evidence of post-offence conduct is adduced as a 10 Edwards v The Queen (1993) 178 CLR 193. 11 Edwards v The Queen (1993) 178 CLR 193 at 210 (Deane, Dawson and Gaudron JJ). 12 R v Wildy (2011) 111 SASR 189 at [25]-[26] (Vanstone J, Sulan J agreeing), and [102]-[104] (White J). 13 NBM v The Queen [2021] SASCA 105 at [158]-[159] (Doyle JA, Kelly P and Lovell JA agreeing). -- 20 of 44 -- [2026] SASCA 92 The Court 17 strand in a broader circumstantial case, it does not have to be proved beyond reasonable doubt. 100 White J (in a dissenting judgment as to the adequacy of the directions) also found that, except for those cases in which the post-offence lie is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, it is not necessary for the prosecution to prove beyond reasonable doubt that the defendant told the lie out of a consciousness of guilt. Rather, “(t)he post-event lie is simply part of the overall body of evidence which the jury should consider”.14 White J considered that the principles enunciated in Edwards applied to other post-offence conduct including the defendant’s response to the letter which was characterised by the prosecution as an attempted bribe. 101 In NBM, the defendant was convicted of a sexual offence against his biological daughter. The prosecution relied on the evidence of a post-offence telephone conversation had by the defendant with a nurse as circumstantial evidence of a consciousness of guilt or an implied admission. When considering the adequacy of the trial judge’s directions in relation to this evidence, Doyle JA said:15 The evidence … is akin to post-offence conduct of an accused relied upon to support ‘consciousness of guilt’ reasoning, or as evidence as a form of implied admission. Such evidence is sometimes referred to as merely circumstantial evidence of conduct which is more consistent with the conduct of a guilty man than with the conduct of an innocent one. As with lies by an accused person, other post-offence conduct relied upon in this way by the prosecution need not be proved beyond reasonable doubt unless it is essentially the only evidence of guilt or is otherwise an indispensable link in a chain of reasoning to guilt. Rather, the trier of fact may accept and rely upon that evidence without applying any particular standard of proof, and conclude that, when considered with the other evidence, the accused is or is not guilty beyond reasonable doubt. Equally, the existence of other (innocent) explanations for the conduct do not need to be excluded to any particular standard; rather they also fall to be considered as part of the trier of fact’s assessment of the evidence in its entirety. (Citations omitted.) 102 The appellant also relies on the authorities of R v Burns (‘Burns’),16 Coughlan v The Queen (‘Coghlan’)17 and R v Dickinson (‘Dickinson’).18 The appellant contends that these cases are authority for the proposition that a jury should be directed that it must be satisfied beyond reasonable doubt that the only 14 R v Wildy (2011) 111 SASR 189 at [102] (White J). 15 NBM v The Queen [2021] SASCA 105 at [158]-[159] (Doyle JA, Kelly P and Lovell JA agreeing). See also R v Adam (1999) 106 A Crim R 510 at [54]-[65] (Spigelman CJ, James and Bell JJA); R v Camilleri (2001) 119 A Crim R 106 at [25]-[34] (Phillips CJ and Brooking JA), [107]-[110] (Ormiston JA); R v Ciantar (2006) 16 VR 26 at [44]-[59] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA). 16 R v Burns (2009) 103 SASR 514. 17 Coughlan v The Queen (2020) 267 CLR 654. 18 R v Dickinson [2007] VSCA 111. -- 21 of 44 -- [2026] SASCA 92 The Court 18 rational explanation for the defendant’s post-offence conduct is a consciousness of guilt. 103 In Dickinson, the defendant was convicted of the offence of culpable driving causing death. On appeal, the defendant contended that the evidence of leaving the scene could not amount to flight, nor was the evidence capable of giving rise to a consciousness of guilt of the charged offence. When considering this ground of appeal, the Victorian Court of Appeal cited R v Ciantar19 with approval wherein the Court accepted that where the evidence of flight is the only strand of circumstantial evidence on which the prosecution relies to establish guilt, the evidence of flight and the inference of consciousness of guilt may be established on the totality of the evidence without applying any particular standard of proof. 104 In Dickinson, Chernov JA (Nettle JA agreeing) reiterated that ordinarily, no particular standard of proof is required and noted that in order to avoid the possibility of unfairness, a jury must be directed as to the proper use of the post-offence conduct and the limited circumstances in which the jury could find that it gives rise to an implied admission of guilt.20 In that case, the majority comprising Chernov and Nettle JJA held that the post-offence conduct was capable of being characterised as flight, and as demonstrating a consciousness of guilt. 105 Contrary to the appellant’s contention, Dickinson is not authority for the proposition that post-offence conduct giving rise to an inference of guilt must be proved beyond reasonable doubt. 106 Coughlan involved a circumstantial case of arson. The special leave question was whether the Court of Appeal of Queensland was correct to dismiss an unreasonable verdict complaint. When considering the various pieces of circumstantial evidence, and in particular the appellant’s flight from the scene, the High Court held that before the jury could use the appellant’s flight in support of the prosecution case, “it had to be satisfied that, in all the circumstances, there was no explanation of that conduct other than his consciousness of his guilt of arson”.21 The High Court did not suggest any particular standard of proof applies to this evidence; and thus, this authority does not provide any support for the appellant’s contention. 107 In Burns, the defendant had been convicted at trial of the offence of causing harm with intent. The defence case was that the appellant had acted in self-defence. One ground of appeal complained that the trial judge’s directions failed to adequately prevent the jury from placing undue weight on the evidence of flight, 19 R v Ciantar (2006) 16 VR 26. 20 R v Dickinson [2007] VSCA 111 at [25] (Chernov JA, Nettle JA agreeing) citing R v Nguyen (2001) 118 A Crim R 479 at 489-490; Edwards v The Queen (1993) 178 CLR 193 at 210-211 and R v Ciantar (2006) 16 VR 26 at [74]-[87]. 21 Coughlan v The Queen (2020) 267 CLR 654 at [54] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ). -- 22 of 44 -- [2026] SASCA 92 The Court 19 in circumstances where the appellant gave evidence of leaving the scene to avoid retribution from the complainant or his associates. 108 The majority (Gray and Sulan JJ) held that the trial judge did not adequately address the jury on this point; and that the trial judge misdirected the jury that the evidence of flight could be used even if the jury was satisfied that when the appellant fled the scene, he genuinely believed that he had acted in self-defence. Gray and Sulan JJ said:22 … This is an incorrect analysis of the position and is a misdirection of some substance. The direction should have made it clear to the jury that, if they were to consider the defendant leaving the scene as evidence of consciousness of guilt, they must be satisfied beyond reasonable doubt that when he left the scene he did so because he believed he had committed the offence of assault, in circumstances in which he believed he had not acted in self-defence. 109 When reaching that conclusion, the majority referred to R v Power (‘Power’)23 wherein Doyle CJ cited with approval the approach taken by Shepherdson J in R v Melrose (‘Melrose’):24 I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused’s person’s flight but if at the end of the day if they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference. 110 In a separate judgment, Kourakis J (as he then was) also found that the trial judge’s failure to direct the jury on the limited probative value of the evidence of flight resulted in a miscarriage of justice. However, in reaching that conclusion, Kourakis J rejected the proposition that a jury must be satisfied beyond reasonable doubt that evidence of flight establishes a consciousness of guilt before it can be used as an item of circumstantial evidence.25 111 It may be accepted that the authorities of Power and Burns (relying on the judgment of Shepherdson J in Melrose) indicate that juries should be directed that they must be satisfied on the whole of the evidence that if they decide to infer from the evidence of flight a consciousness of guilt, they must be satisfied beyond reasonable doubt of such an inference. 112 However, it may be observed that Melrose requires an assessment of the inferences to be drawn from the evidence of flight upon a consideration of the whole of the evidence, not just the post-offence conduct. Further, Melrose was decided before the decision of the High Court in Edwards. Moreover, both Power 22 R v Burns (2009) 103 SASR 514 at [38] (Gray and Sulan JJ). 23 R v Power (1996) 87 A Crim R 407. 24 R v Melrose [1989] 1 Qd R 572 at 579 (Shepherdson J). 25 R v Burns (2009) 103 SASR 514 at [84] (Kourakis J). -- 23 of 44 -- [2026] SASCA 92 The Court 20 and Burns involved prosecution cases which relied heavily on the circumstantial evidence of the defendant’s post-offence conduct. To the extent that the authorities of Power and Burns are viewed as support for the appellant’s contention that a jury should be directed that it must be satisfied beyond reasonable doubt that the only rational explanation for the defendant’s post-offence conduct is a consciousness of guilt, this can no longer be considered correct in light of Edwards, and this Court’s analysis in Wildy and NBM. 113 It follows that the direction that the appellant submits ought to have been given was not required at law. That direction would have required the jury to reach its ultimate finding as to guilt beyond reasonable doubt before determining to use the appellant’s flight as a piece of evidence to make that same finding. That approach is contrary to the authorities outlined above. 114 The appellant also challenged the adequacy of the trial judge’s direction on flight, generally. In some cases, directions may be required to ensure that post-offence conduct such as flight is not accorded more weight than it deserves, or to prevent the evidence otherwise being misused by the jury. This may require the trial judge to give directions reminding the jury that there may be innocent explanations for the accused’s flight.26 It may also require that the jury be instructed not to use the post-offence conduct as evidence of a consciousness of guilt unless it is satisfied, having regard to the totality of the evidence, that there is no other explanation for the conduct that is open on the facts.27 A direction in these terms is designed to prevent the jury reasoning that just because the defendant engaged in the post-offence conduct, the defendant must be guilty of the charged offence.28 115 In the present case, the trial judge directed the jury that they should consider alternative explanations for the appellant’s flight, including the explanation given by the appellant in his evidence (that he heard a loud bang, and panicked because he was scared) and other possible explanations such as to escape an unjust accusation. Her Honour then proceeded to direct the jury to disregard the evidence in its entirety if it considered the appellant’s flight to be “explicable by something other than him having a consciousness of guilt or an awareness that he was guilty of trafficking …”. The trial judge also instructed the jury that if it considered the evidence to be evidence of guilt, then the evidence could only be used as “one of the circumstances” that the jury was entitled to consider when they considered the case overall. 116 By directing the jury in these terms, the trial judge effectively protected against any risk that the jury would fail to consider other innocent explanations for 26 Edwards v The Queen (1993) 178 CLR 193 at 211 (Deane, Dawson and Gaudron JJ). See also R v Power (1996) 87 A Crim R 407 at 410 (Doyle CJ, Millhouse and Williams JJ agreeing); R v Ciantar (2006) 16 VR 26 at [86] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA); R v Wildy (2011) 111 SASR 189 at [28]-[37] (Vanstone J, Sulan J agreeing). 27 Edwards v The Queen (1993) 178 CLR 193 at 211 (Deane, Dawson and Gaudron JJ). See also NBM v The Queen [2021] SASCA 105 at [160] (Doyle JA, Kelly P and Lovell JA agreeing). 28 R v Ciantar (2006) 16 VR 26 at [78], [87] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA). -- 24 of 44 -- [2026] SASCA 92 The Court 21 the appellant’s flight and place undue weight on the evidence of flight; or reason that just because the appellant fled the premises, he must be guilty of the charged offence. These directions accord with the principles enunciated in Edwards, Wildy and NBM. 117 For those reasons, we dismiss this ground of appeal. Grounds 3, 4 and 5 – the evidence of Constable Calicchio 118 These three grounds concern the evidence of Constable Calicchio. 119 As outlined earlier, Constable Calicchio gave evidence that she became aware there was a person climbing over the back fence into 92 Seaview Road. She saw a male run onto the grassed area at the front of the property who she told to stop. Constable Calicchio gave evidence the male stopped and said, “Okay, you got me, you got me”. 120 In his evidence, the appellant disputed Constable Calicchio’s account and said that he in fact uttered the words, “It’s okay, it’s okay”. 121 Ground 3 complains that Constable Calicchio’s evidence as to the exact words used by the appellant on 26 May 2020 was bolstered by her evidence that she had made contemporaneous notes of his statement on that day. 122 Constable Calicchio gave evidence that she made notes on 26 May 2020 as to the events of that day. However, she did not have any notes with her when giving evidence. It is common ground that there was no evidence as to what was, in fact, recorded in any notes that may have existed. 123 On appeal, the respondent accepted that in June 2024, in the context of a request for the disclosure of police notes, a solicitor for the Director of Public Prosecutions informed the appellant’s solicitor that in respect of Constable Calicchio “there are no notes”. However, the respondent did not agree that there were never any police notes authored by Constable Calicchio on 26 May 2020. 124 The appellant submits that the evidence of Constable Calicchio that she made contemporaneous notes on 26 May 2020 may have impermissibly bolstered her credibility. 125 In her evidence, and under cross-examination, Constable Calicchio said: Q: … you prepared a statement in respect of this matter, is that right. A: Yes, that’s right. Q: And the statement commenced being written on 18 July 2020. A: Yes. -- 25 of 44 -- [2026] SASCA 92 The Court 22 … Q: And as I further understand it, you signed the statement as being true and correct on 25 July 2020. A: Yes, that’s correct. … Q: What I was going to suggest to you in the conversation [with the appellant] you effectively said ‘Stop’ or something similar to that and then [the appellant] said ‘It’s okay, it’s okay’. That was the words he used; do you agree with that or disagree. A: Disagree. He said ‘Okay, you got me, you got me’. Q: I suggest to you that you got it wrong; you disagree with that. A: I do disagree with that. … Q: And in respect to your notes, when did you first make notes about what the conversation was in respect of your meeting with [the appellant]. A: So I had notes from that day. Unfortunately, I do not have those. Q: Sorry. A: I had notes that day. I had my notebook with me. [Defence counsel]: Your Honour, could I just approach the witness; I haven’t seen this? [Prosecutor]: She said she doesn’t have them. … [Defence counsel]: She doesn’t have them. … I have no further questions of this witness. 126 During the trial, the prosecutor relied on the appellant’s utterances to Constable Calicchio, “Okay, you got me, you got me” to rebut the appellant’s explanation for fleeing the premises. The prosecutor submitted that those words were inconsistent with the appellant fleeing because he had heard a loud bang and panicked. The prosecutor also submitted that Constable Calicchio was a credible and reliable witness, and that the jury should accept her evidence. 127 On the other hand, the appellant’s trial counsel urged the jury to accept the appellant’s evidence that he had said, “It’s okay, it’s okay” – those statements not being inconsistent with his explanation for leaving the premises out of panic. 128 During the summing up, the trial judge outlined both the prosecution and defence cases in respect of the evidence of flight. As outlined earlier, her Honour summarised each party’s position in respect of this evidence. While her Honour -- 26 of 44 -- [2026] SASCA 92 The Court 23 did not explicitly address the issue of Constable Calicchio’s failure to bring her notes with her to court, nor direct the jury not to speculate as to the contents of those notes, her Honour did give the jury a general warning not to speculate or guess when drawing inferences from evidence at trial. Her Honour also directed the jury not to speculate on topics or issues for which there was no evidence, and to reach its verdict only on the evidence called at trial. 129 Towards the end of the summing up, a jury note was given to the trial judge which, relevantly, read: Do both lawyer(s) [sic] agree on the evidence to be given in the trial before it starts? And if so, for me a bit piece of evidence is missing. The body cam video of [Constable Calicchio] when she first sees [the appellant] saying “you got me, you got me” Or is there a rule or law which prohibits the use of that piece of evidence to be shown?? (If no, can request to see the video??) … Lastly your Honour, a bit off topic! I found it a bit disappointing Constable [Calicchio] a MAJOR witness didn’t bring her notes to court. (and the fact she filled it out in July not May?? Was that a Detective going over the case seen nothing in her notes and she got told to fill it in) And was she asked not to bring in the note book?? (by the lawyers/Detectives) Thanks your Honour, this will help me with my decision making!! 130 After discussing the issues raised by the jury note with counsel, and with their agreement, the trial judge provided the following instructions to the jury: Members of the jury, I am going to address the note first. I will not read it out verbatim, but I will go to the topics. The first topic that the note asks about is body-worn video from Constable Calicchio, and you saw a portion of that, and it refers to whether there is body-worn footage of [the appellant] saying ‘You got me. You got me’. I direct you in relation to that that there is no evidence about that topic. Do not speculate about the topic, do not speculate as to why it was not called, or even whether that recording exists at all. So you have what you have. … The final topic is in relation to Constable Calicchio. She gave some evidence about records that she had kept. I want to read out to you her evidence just to refresh your memory about what she said on this topic. This is at transcript 85 from line 22, this is [defence counsel] -- 27 of 44 -- [2026] SASCA 92 The Court 24 asking Constable Calicchio this question. you remember Constable Calicchio was quite young, she was a probationary constable at the time this happened. She was asked: 131 Her Honour then read out the evidence set out above at [125]. What is being referred to there is a police notebook, which is different to a formal statement. [Defence counsel] then says: ‘Your honour, could I just approach the witness. I haven’t seen this.’ And the prosecutor said ‘She doesn’t have them’, talking about the police notebook. I said ‘She doesn’t have them’, and everyone then realised that Constable Calicchio did not have her police notebook with her. It is no evidence about whether anyone asked her not to bring the notebook in, but can I make this observation, that it is not uncommon, particularly for a young police officer, to forget to bring their police notebook to court. All right, so that deals with that. 132 The appellant contends that the combined effect of the evidence of Constable Calicchio and the trial judge’s directions resulted in the jury being misled to believe that Constable Calicchio had created contemporaneous notes on 26 May 2020 of the words spoken by the appellant. The appellant submits that the jury would have used Constable Calicchio’s evidence that she had made contemporaneous notes to bolster her credibility and reliability on the contested issue of the words spoken by the appellant. The appellant submits this was significant as the prosecution relied on this evidence to rebut the appellant’s explanation for fleeing the premises, and at least one juror considered that Constable Calicchio was a “major” witness. 133 The appellant also submits that the trial judge’s directions had the effect of reinforcing Constable Calicchio’s evidence that she had taken contemporaneous notes on 26 May 2020 and in fact added to the risk of this evidence unfairly bolstering her account of the words uttered by the appellant. 134 The appellant contends that the combined effect of the evidence, and the trial judge’s directions was productive of a miscarriage of justice. 135 While it is common ground that the appellant’s solicitors were advised that “there were no notes”, the respondent does not concede that there were never any notes made by Constable Calicchio about the alleged offence on 26 May 2020. However, there was no further information provided to the appellant’s trial counsel, or indeed on appeal, as to whether those notes in fact ever existed, and if they did exist, what may have happened to the notes. It is therefore appropriate to consider this appeal ground on the basis that there were no notes made by Constable Calicchio on 26 May 2020 as to the events of the day. 136 While it must be accepted that contrary to the Director of Public Prosecution’s solicitor’s intimation that there were no notes, the jury heard evidence that Constable Calicchio had made notes on 26 May 2020, “about what the conversation was in respect of [her] meeting with [the appellant]”. However, there was no evidence as to what was recorded in those notes. For the jury to have used this evidence to bolster the credibility and reliability of Constable Calicchio, the jury would have had to engage in a process of reasoning which would involve -- 28 of 44 -- [2026] SASCA 92 The Court 25 speculation as to the content of Constable Calicchio’s notes, a matter about which there was no evidence. 137 In addition, during her summing up, the trial judge gave the jury a general warning not to speculate when drawing inferences from evidence at trial. The jury were also later directed not to speculate on topics or issues for which there was no evidence, and to reach its verdict only on the evidence called at trial. In particular, her Honour directed the jury that they: … should not speculate or guess about what the results of further searching or further investigations might have yielded. Your obligation is to decide the case on the evidence that is called at trial. I remind you though that it is the prosecution that must do all of the proving. If the absence of evidence on a particular topic is relevant to what inferences you are prepared to draw from other evidence, then that is a matter that you can bring to bear. If there is a gap in the evidence on a particular topic that you consider is a deficit leading to you holding a doubt about proof of the charge then the prosecution will have failed to prove the charge. 138 As to the jury note, it does not suggest that the jury were speculating as to the content of Constable Calicchio’s police notes but rather that the jury were confused as to why Constable Calicchio’s police notes were not available. The questions raised in the jury note related to whether Constable Calicchio had been told “by the lawyer/detectives” not to bring her notes to court and related to some confusion in Constable Calicchio’s evidence between her statement and her police notes. 139 In response to the jury question, the trial judge read relevant parts of Constable Calicchio’s evidence to the jury, and clarified the difference between a formal police statement, and her police notebook from 26 May 2020. Her Honour also directed the jury that there “is no evidence about whether anyone asked her not to bring the notebook in, but can I make this observation, that it is not uncommon, particularly for a young police officer, to forget to bring their police notebook to court”. 140 It is true that the trial judge did not specifically direct the jury not to speculate as to the content of Constable Calicchio’s police notes. This can be explained by the fact her Honour was addressing the specific questions raised in the jury note about why Constable Calicchio did not have police notes with her in court. However, and in any event, at other parts of her summing up, her Honour instructed the jury not to speculate about evidence which was not before them, and to decide the case on the evidence adduced during the trial. 141 Given there was no evidence as to the contents of the notes and the jury was directed by the trial judge not to speculate as to matters not the subject of evidence and to only decide the issues on the evidence adduced at trial, we are satisfied there was no risk the jury used the evidence to impermissibly bolster Constable Calicchio’s evidence as to the words uttered by the appellant. 142 We dismiss this ground of appeal. -- 29 of 44 -- [2026] SASCA 92 The Court 26 Grounds 4 and 5: Non-disclosure of corruption investigation of Constable Calicchio 143 Ground 4 complains that there was a breach of the prosecutorial duty of disclosure which resulted in a miscarriage of justice. The relevant material in support of this ground of appeal is found in the affidavit of Nicholas Blandford sworn on 1 December 2025. The basis for this complaint is that the prosecution did not disclose to the appellant that, at the time of his trial, SAPOL were investigating Constable Calicchio for the offence of abuse of public office. 144 The SAPOL Anti-Corruption Section (‘ACS’) commenced an investigation into Constable Calicchio (‘Operation Loud’) in February 2024. At that time, investigators suspected that Constable Calicchio had an undisclosed association with a person associated with a criminal drug syndicate, Ms Munchenberg, and with Ms Tran, an associate of Ms Munchenberg. Constable Calicchio was suspected of using her position as a police officer to obtain and disseminate sensitive information to Ms Munchenberg and/or Ms Tran to assist a criminal enterprise. 145 On, or around, 5 February 2024, a review was conducted of SHIELD audits29 as well as CCTV footage from the Henley Beach Police Station, and the telecommunication services associated with Constable Calicchio, Ms Munchenberg and Ms Tran. This review revealed: • on 19 January 2024, a station support officer at the Henley Beach Police station conducted a SHIELD check on Ms Munchenberg, as well as reviewing two police occurrences linked to Ms Munchenberg and a “street check” (intelligence added by a police officer); • CCTV footage taken from the Henley Beach Police Station showed that it was in fact Constable Calicchio who conducted the SHIELD check on Ms Munchenberg; • Constable Calicchio is then depicted leaving the workstation and departing the Henley Beach Police Station at 3:16pm; • at about 3:33pm, Constable Calicchio travelled from Henley Beach to the area around Plympton, consistent with Constable Calicchio travelling from her workplace at Henley Beach Police Station to her home address; • Constable Calicchio was in the vicinity of phone towers near Ms Munchenberg's home address at 4:29pm and remained in the area until about 6:17pm; and 29 SHIELD is the computer system SAPOL uses to manage and record criminal investigations. -- 30 of 44 -- [2026] SASCA 92 The Court 27 • on 19 January 2024, at 3:51pm, Constable Calicchio’s mobile service received a phone call from a service registered to Ms Tran. Constable Calicchio telephoned the service linked to Ms Tran at 4:35pm. The phone call lasted for seven seconds and is consistent with Constable Calicchio calling Ms Tran to say that she was at Ms Munchenberg’s home. 146 On 9 February 2024, police arrested Ms Munchenberg at her home address in Prospect for the offences of trafficking in a large commercial quantity of a controlled drug, trafficking in a controlled drug, and possessing prescribed equipment to manufacture a controlled drug. 147 During a search of Ms Munchenberg’s home, police located 28 grams of Dimethyl Pentylone and two pieces of prescribed equipment. 148 On 25 October 2024, police attended at Constable Calicchio’s address in Plympton and seized her mobile phone. Constable Calicchio was not arrested at that time and when interviewed, denied any wrongdoing. However, she admitted that she knew Ms Munchenberg, and that she had disclosed a conflict to a member of the Western District Criminal Intelligence Branch and a supervisor during an incident in which the business owned by the Munchenberg family was the subject of an arson attack. Constable Calicchio was also questioned about the electronic transfer of funds to Ms Tran on 2 May 2024 (suspected to be for a drug debt). 149 Police from the ACS met with Ms Munchenberg on 11 December 2024. Ms Munchenberg denied that Constable Calicchio had provided her with any sensitive information on 19 January 2024 but disclosed that on 24 January 2024, Constable Calicchio had provided her with the address of a person who had stolen her iPad. Ms Munchenberg signed police statements to that effect on 13 December 2024 and 28 December 2024. 150 The appellant’s trial commenced on 5 December 2024. Constable Calicchio gave evidence on 6 December 2024, and a verdict of guilty was returned on 12 December 2024. One of the investigating officers into the corruption allegations, Detective Blandford, was also involved in the appellant’s trial. 151 Before the appellant’s trial concluded on 12 December 2024, SAPOL and Detective Blandford were aware of the following information: • On 19 January 2024, Constable Calicchio had used the SHIELD system to search for information relating to Ms Munchenberg, a person suspected of being involved in drug trafficking. Within an hour of interrogating the SHIELD system, she attended at Ms Munchenberg’s home address. Constable Calicchio had no known lawful reason for accessing that information; -- 31 of 44 -- [2026] SASCA 92 The Court 28 • Constable Calicchio made an electronic transfer of money to Ms Tran, an associate of Ms Munchenberg (and also a person suspected of trafficking in drugs); and • on 24 January 2024, Constable Calicchio provided Ms Munchenberg with the residential address of a person who had allegedly stolen an iPad from Ms Munchenberg. 152 After the verdict was delivered, ACS investigators obtained two formal statements from Ms Munchenberg and again reviewed Constable Calicchio’s use of SHIELD as well as the telecommunication services associated with Constable Calicchio, Ms Tran and Ms Munchenberg. Following this further review, on 9 January 2025, Detective Blandford arrested Constable Calicchio and charged her with the offence of abuse of public office allegedly committed on 24 January 2024. General principles as to the prosecutorial duty of disclosure 153 The prosecution’s duty of disclosure is imposed at common law30 and by statute.31 It is also the subject of the South Australian Director of Public Prosecution’s policies and guidelines,32 and r 29.5 of the Australian Solicitors’ Conduct Rules (2022). 154 The duty of disclosure requires the prosecution to disclose all material capable of constituting evidence relevant to the guilt or innocence of a defendant, including material that may undermine the prosecution case, or material that may raise a new issue that is not apparent from the evidence that the prosecution proposes to rely upon.33 155 The prosecutorial duty of disclosure extends beyond material which is in the actual possession of the Director’s office to material in the possession of investigators.34 156 Relevantly, the authorities are clear that the prosecutorial duty of disclosure includes information which may materially affect the credibility or reliability of prosecution witnesses.35 However, there are limits to the reach of this obligation and there may be cases where information or material is speculative or otherwise of such little weight that it is unlikely to have any effect on a witness’s credibility. 30 Ratten v The Queen (1974) 131 CLR 510 at 517 (Barwick CJ, McTiernan, Stephen and Jacobs JJ agreeing). 31 Criminal Procedure Act 1921 (SA) ss 123(2) and 125. 32 Director of Public Prosecutions of South Australia, Statement of Prosecution Policy & Guidelines (October 2014), Guideline 9. 33 Mallard v The Queen (2005) 224 CLR 125 at [81] (Kirby J); Eastman v Director of Public Prosecutions (ACT) (No 13) [2016] ACTCA 65 at [343] (Osborn, Whelan and Priest AJJ); R v K (1991) 161 LSJS 135 at 140 (King CJ, Cox and Debelle JJ agreeing). 34 R v Forrest (2016) 125 SASR 319 at [65] (Kourakis CJ, Kelly and Lovell JJ agreeing). 35 Grey v The Queen (2001) 75 ALJR 1708 at [16]-[18] (Gleeson CJ, Gummow and Callinan JJ). -- 32 of 44 -- [2026] SASCA 92 The Court 29 157 In such circumstances, there is no prosecutorial duty to disclose such information. As King CJ observed in R v K:36 There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness. (Citations omitted.) 158 Where an appellate court finds that there has been a failure to comply with the prosecutorial duty of disclosure, the issue for determination by the court is whether this breach of disclosure has resulted in a miscarriage of justice. A miscarriage of justice will have been established where the breach could have realistically affected the reasoning of the jury to the guilty verdict.37 159 In R v Forrest,38 the Court of Criminal Appeal held that the failure of the prosecution to disclose the prior convictions (and other police intelligence) concerning a prosecution witness amounted to a breach of the prosecutorial duty of disclosure. The undisclosed material was said to have “provided a strong foundation on which to challenge [the witness’] credibility and reliability”.39 Kourakis CJ explained that “the failure to disclose trivial or insignificant information will not of itself show that there has been a miscarriage of justice [but] (b)eyond cases of that kind, care must be taken before finding that the material could not have changed the result.”40 160 In the present case, the appellant contends that the information the investigators failed to disclose was capable of materially affecting the credibility and reliability of Constable Calicchio. Further, the appellant submits that the evidence was capable of undermining his explanation, given on oath, for fleeing the premises which is of significance given the prosecution relied upon the evidence of flight as an implied admission. On the other hand, the respondent contends that the information was “speculative and vague” and was not relevant to any contested issue in the appellant’s trial such as for example, providing Constable Calicchio with a motive to give false evidence. 161 As outlined earlier, prior to Constable Calicchio giving evidence on 6 December 2024, SAPOL suspected her of the offence of abuse of public office allegedly committed on 19 January 2024. By 11 December 2024, and prior to the 36 R v K (1991) 161 LSJS 135 at 140 (King CJ, Cox and Debelle JJ agreeing). 37 Brawn v The King (2025) 99 ALJR 872 at [42]-[43] (The Court). 38 R v Forrest (2016) 125 SASR 319. 39 R v Forrest (2016) 125 SASR 319 at [66] (Kourakis CJ, Kelly and Lovell JJ agreeing). 40 R v Forrest (2016) 125 SASR 319 at [67] (Kourakis CJ, Kelly and Lovell JJ agreeing). -- 33 of 44 -- [2026] SASCA 92 The Court 30 close of the appellant’s trial, Ms Munchenberg had informed investigators that Constable Calicchio had provided her with the personal details of a person who had stolen her iPad. 162 This information in SAPOL’s possession was relevant to Constable Calicchio’s general credibility and was capable of undermining her account of the words purportedly uttered by the appellant when he was stopped after fleeing the premises. 163 If the information known to SAPOL prior to trial had been disclosed to the appellant’s trial counsel, he could have put to Constable Calicchio that she was being investigated for the offence of abuse of public office and that police suspected her of providing sensitive police information to a person associated with a drug syndicate. The appellant’s trial counsel could have also put to Constable Calicchio that police had attended her home on 25 October 2024, taken her devices, and spoken to her about events on 19 January 2024, and the transfer of money to Ms Tran (an associate of a drug trafficker) in May 2024. The appellant’s trial counsel could have asked Constable Calicchio whether she did in fact commit an offence of abuse of public office on 19 January 2024, and whether she was associated with persons involved in a drug syndicate. 164 In respect of the material obtained by police on 11 December 2024, Constable Calicchio could have been recalled, and the appellant’s trial counsel could have asked Constable Calicchio whether she did in fact commit an offence of abuse of public office on 24 January 2024, or whether she was associated with persons involved in a drug syndicate. 165 It may be accepted that Constable Calicchio would not have been obliged to answer questions relating to whether she committed any offence due to the privilege against self-incrimination. It may also be accepted that if Constable Calicchio had denied any of the factual matters underpinning the allegations (such as the SHIELD audits, CCTV or telecommunication material) the appellant’s trial counsel may not have been able to adduce evidence to contradict her evidence given those matters appear, on their face, to be collateral. However, it may also be observed that with some further investigation, there may well have been a basis for the appellant’s counsel to contend that the material was relevant to more than Constable Calicchio’s credibility given the investigation involved her association with a drug syndicate and the appellant was charged with drug trafficking. 166 Notwithstanding the limitations in relation to the use of the undisclosed material, the investigator’s suspicions were based on specific pieces of objective evidence (the SHIELD audit, CCTV and telecommunication material) which considered together, and in the hands of a skilled cross-examiner, had the capacity to materially affect the credibility of Constable Calicchio. The evidence was not of the nature described by King CJ in R v K as “vague and tenuous” nor consisting of a “speculative and scurrilous rumour”. The information was capable of -- 34 of 44 -- [2026] SASCA 92 The Court 31 materially affecting Constable Calicchio’s credibility such that there was a prosecutorial obligation to disclose the material. 167 It follows that prior to the commencement of the trial, the police had a duty to disclose to the appellant’s counsel the fact of the police investigation into Constable Calicchio, and the information upon which SAPOL suspected her of having abused her public office on 19 January 2024. They also had a duty to disclose the information received from Ms Munchenberg on 11 December 2024 which formed the basis of the charges subsequently laid against Constable Calicchio. 168 We are also satisfied that the undisclosed information was capable of realistically affecting the jury’s reasoning to guilt. The prosecution case relied on the appellant fleeing from the scene as evidence of his consciousness of guilt or as an implied admission. The appellant’s alleged statement to Constable Calicchio, “okay, you got me, you got me” could be viewed as inconsistent with his innocent explanation that he fled the premises because he panicked after hearing a loud bang, and was capable of undermining this aspect of the appellant’s evidence as to his reason for fleeing the premises. 169 The prosecution’s failure to disclose the material deprived the appellant of the opportunity of fully challenging Constable Calicchio’s account as to the words spoken by the appellant and undermined his ability to challenge the prosecution case that the evidence of flight constituted an implied admission. In those circumstances, we are satisfied that the prosecutorial breach of the duty of disclosure could realistically have affected the reasoning of the jury to a verdict of guilty and was productive of a miscarriage of justice warranting the allowing of the appeal, subject to the application of the proviso. 170 Given our conclusion on Ground 4, there is no need to consider Ground 5, that is, whether the information obtained after the conclusion of the trial constituted fresh evidence. Ground 6: Misstatement of the evidence 171 Under this ground of appeal, the appellant complains that a miscarriage of justice arose as a result of the trial judge’s misstatement of the evidence of Detective Burton. The evidence was relevant to the contested issue of flight and, more specifically, whether the appellant knew it was the police he was running from when he fled from the Military Road address. 172 As outlined earlier, Detective Burton gave evidence that she could not recall the exact words she used when she saw the appellant; however, her usual practice is to say, “Stop. Police”. Detective Burton also gave evidence that a number of uniform police officers were behind her as she moved up the southern side of the house. -- 35 of 44 -- [2026] SASCA 92 The Court 32 173 Ms Unaiki Esther gave evidence that at about 11:30am on 26 May 2020, she was mopping the balcony of 92 Seaview Road, Tennyson, when she heard a female voice say, “Hey, stop”. She looked and watched a man (the appellant) come over the fence. When she looked out the front window, she saw a police officer with him on the pavement. 174 While it may be accepted there was no direct evidence that Detective Burton said, “Stop. Police”, it could be inferred from the evidence as to her usual practices (and the fact she was in plain clothes that day) that she did use those words. There was also other evidence which suggested that it would have been apparent to the appellant that it was police who had arrived at the Military Road address. 175 Detectives Popa and Blandford gave evidence that it was standard practice for police to loudly announce their presence as police officers when entering a property under a general search warrant. Both Detectives gave evidence that on this occasion, they announced their presence as police officers before forcing entry through the front gate of the Military Road address, and as they moved through the premises. There was also evidence that live CCTV was operating in the premises which may have enabled the appellant to see police approach the home before police entered through the front gate. 176 The appellant gave evidence that he heard a very loud bang and angry yelling. As a result, he panicked and ran from the premises. He said that the yelling was loud but muffled and he did not hear any of the words being spoken. He did not give evidence that he heard the precise words spoken by any person. 177 In her summing up, the trial judge inaccurately stated that when Detective Burton saw the appellant climbing over the back chicken wire fence of the Military Road address, she called out “Stop. Police”. Her Honour said: Detective Sarah Burton attended 51 Military Road and she told you that the front gate, which was locked, was forced using a heavy tool that is used by police for that purpose. She entered in company with a number of other police but she went down the side of the house to the left. She told you the idea was that police do not clump together but they spread out and she went down the side and there was someone stationed at the back on Seaview Road in case they got what she called runners. She was in plain clothes but she said that officers who were behind her were in full police uniform. As she went down the side of the house she was calling out that they were police. She said she was calling that out quite loudly as she moved down the side and she told you I think that, it is particularly important to identify themselves as police because they were in plain clothes, some of them were anyway, some of them were in uniforms. Detective Burton heard a loud clanging coming from the back of the house and she started to run. As she started running she saw [the appellant] climbing over the chicken wire at the back of the house and at that point she called out ‘Stop, police’. She said she had a tendency to be very loud and she said those words loudly. She said she tried to use her radio to alert other officers but her battery was dead, so she called out to uniformed members behind her to use their radio because, in her words, they had a runner. (Emphasis added.) -- 36 of 44 -- [2026] SASCA 92 The Court 33 178 The appellant contends that the misstatement of the evidence was material in the sense that it could have realistically affected the reasoning of the jury to a verdict of guilty. The appellant submits that the error was capable of strengthening the prosecution case that he fled the premises out of a consciousness of guilt and more easily reject the appellant’s evidence that he had no idea that police were on the premises. 179 When the evidence on this topic is looked at as a whole, we are satisfied that the trial judge’s misstatement of the evidence could not have affected the jury’s assessment of the appellant’s evidence. There was an abundance of other evidence which suggested that the appellant was aware that it was the police who had attended at the premises. Further, the appellant gave evidence that he did not hear the words spoken by police so whether Detective Burton yelled “Stop” or “Stop, Police” on his own account, the appellant would not have heard either command, and it would have had no bearing on his state of mind. Having regard to the whole of the evidence, we are satisfied that her Honour’s misstatement of the evidence could not realistically have affected the reasoning of the jury to its verdict. 180 We dismiss this ground of appeal. Ground 7 – Conduct of the appellant’s trial counsel 181 This ground complains that a miscarriage of justice resulted from trial counsel’s incompetent conduct. The appellant submits that trial counsel’s conduct was incompetent by: first, failing to adduce evidence of the forensic examination of a right shoe worn by the appellant; secondly, not challenging Constable Calicchio’s evidence that she had made notes of her interaction with the appellant; and thirdly, during his closing address, misstating the appellant’s evidence as to why he fled the premises. 182 Under this ground of appeal, this Court is required to undertake an objective inquiry into the conduct of the appellant’s counsel to determine whether counsel’s conduct was rational or otherwise capable of explanation.41 The ultimate question is whether any irregularity in the trial gave rise to a miscarriage of justice.42 Forensic Science SA examination evidence – the right shoe 183 The appellant was not wearing any shoes when he was stopped by Constable Calicchio. His left shoe was located near the fence between the Military Road address and the Seaview Road address. His right shoe was in his backpack. The appellant’s clothing and right shoe were examined by a forensic scientist. There were agreed facts about the forensic examination of these items. 41 TKWJ v The Queen (2002) 212 CLR 124 at [8], [16]-[17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J); Nudd v The Queen (2006) 80 ALJR 614 at [9] (Gleeson CJ), [27] (Gummow and Hayne JJ), [157] (Callinan and Heydon JJ). 42 TKWJ v The Queen (2002) 212 CLR 124 at [25]-[31] (Gaudron J, Gummow J agreeing), [79] (McHugh J); Nudd v The Queen (2006) 80 ALJR 614 at [2] (Gleeson CJ), [24] (Gummow and Hayne JJ), [158] (Callinan and Heydon JJ). -- 37 of 44 -- [2026] SASCA 92 The Court 34 There was no evidence adduced as to the forensic examination of the appellant’s clothing beyond the following agreed facts: 39. The blue tracksuit pants that [the appellant] was wearing on 26 May 2020 (20/A41148/25) were analysed by Ms Wilczek, who found, located in the pocket of the track pants, one fragment of cannabis leaf. The size of the fragment was 0.5mm by 0.045mm. The age of the cannabis fragment cannot be identified. 40. … 41. … 42. The clothes [the appellant] was wearing on 26 May 2020 were seized and examined. 43. If called to give evidence [the forensic analyst] would say that, if cannabis comes into contact with an object, it would be unlikely that no THC or plant fragments would be transferred. However, it is possible for the THC or plant fragment to be too small to be detected through the general testing procedures. 184 During his closing address, the appellant’s trial counsel emphasised the inconsistency between the absence of cannabis fragments on the outside of the appellant’s clothing and shoes (and other items in his possession) and the prosecution case that he was packaging cannabis. When making these submissions to the jury, trial counsel referred to the absence of cannabis on the following items: shoes worn by the appellant; on the other pair of shoes in his possession; inside or on the appellant’s backpack; on any of the multiple disposable and fabric gloves inside his backpack; on the white t-shirt and tracksuit pants he was wearing; and on his socks. 185 Following trial counsel’s closing address, the trial judge queried whether there was an evidentiary basis for all his submissions as to an absence of cannabis. The appellant’s counsel accepted that there was no evidence to establish an absence of cannabis inside or on the appellant’s backpack and gloves. Trial counsel submitted that the agreed facts inferentially established that no cannabis was present on any seized items of clothing, except for the cannabis fragment located in the appellant’s tracksuit pant pocket. 186 During her summing up, the trial judge instructed the jury that they could infer from the agreed facts (39 and 42) that cannabis (or THC) was not located on any of the clothing worn by the appellant. However, her Honour also instructed the jury that despite the submissions of trial counsel, there was no evidence that the disposable gloves, the garden gloves and the backpack had been examined for the presence of cannabis. Her Honour observed that “there is simply no evidence either way as to whether the gloves or backpack had remnants of cannabis or THC on them”. Nothing further was said about whether the shoes worn by the appellant had been forensically examined for cannabis (except to the extent that this was encapsulated within the description of clothing). -- 38 of 44 -- [2026] SASCA 92 The Court 35 187 There was in fact evidence that the right shoe worn by the appellant had been examined, and there was no “cannabis like” plant material located on the shoe. Trial counsel did not adduce this evidence. 188 The appellant contends that the jury were likely to focus on the agreed facts [39 and 42] and, in the absence of an explicit statement that the shoes constituted clothing, reason that they had not been forensically tested for the presence of cannabis. The appellant submits that the failure to adduce this evidence cannot be reasonably explained by a tactical decision by trial counsel, and the evidence would have materially affected the jury’s reasoning to guilt. 189 It may be accepted that it would have been preferable had trial counsel adduced evidence of the forensic examination of the right shoe so that the trial judge had an evidentiary basis to explicitly instruct the jury that there was no cannabis like material located on the right shoe. It may also to be accepted that there is no rational explanation for the conduct of trial counsel in failing to do so. 190 However, the jury were instructed that they could infer from the agreed facts that cannabis (or THC) was not located on any of the clothing worn by the appellant. They were also not told that there was no evidence that the right shoe was examined for the presence of cannabis (as they were for the disposable gloves, the garden gloves and the backpack). Given those directions, we do not consider the jury would have reasoned that the trial judge’s reference to clothing did not include the right shoe. In those circumstances, we are satisfied that the failure of the appellant’s trial counsel to adduce evidence of the absence of observable cannabis remnants on the appellant’s right shoe was not realistically capable of affecting the reasoning of the jury to its verdict. Misstatement of the evidence by trial counsel 191 In his closing address, the appellant’s counsel incorrectly submitted to the jury that the appellant saw police officers at the Military Road address before he fled. Trial counsel told the jury: Now, if at the end of the day if you don’t know whether he was inside doing the packaging or not, then you have to acquit. Now, because the case for the prosecution is that he was in there doing the packaging at the time that the police attended. [The prosecutor] indicated that when the police attended, he was inside the house and somehow got out and then went over the back fence. There’s no disputing he went over the back fence. He said that it was because of the noise, the yelling, and if you have a look at some of the walk-through video and some of the video of the police officers, they’re all in plain clothes, they’re wearing hoodies and jeans and they’ve got all sorts of things around their waist and that is the evidence that [the appellant] says. He heard a loud crash, yelling, he panics and that is what he has said and has maintained. He has leapt over the back fence, dropping some stuff on the way through, and I’ll come back to those things. 192 The appellant submits that this error adversely affected the jury’s assessment of flight and whether to use the evidence as consciousness of guilt. -- 39 of 44 -- [2026] SASCA 92 The Court 36 193 While there was some infelicity in the language used, we do not consider that the appellant’s counsel actually said that the appellant saw police officers at the premises when he fled. It is apparent that counsel was referring to the appellant’s evidence as to the “noise and the yelling” as “the evidence that [the appellant] says” (caused him to leave) rather than the fact the persons entering the premises were police officers. 194 In any event, the appellant was clear in his evidence that he did not look down the side of the house and see who was there, and that he did not know police had arrived at the property. The jury had copies of the transcript of the appellant’s evidence in the jury room during their deliberations. In the trial judge’s summing up, she repeated the appellant’s evidence that he “did not look down the side of the house or try and see what was going on” and that he did not hear anyone yell out the word “police”. 195 In all the circumstances, we are satisfied there is no risk that the jury was under a misapprehension as to the appellant’s evidence on this issue, and any lack of clarity in the language used by the appellant’s counsel was not realistically capable of affecting the reasoning of the jury to its verdict. Failure to challenge Constable Calicchio as to notes 196 The appellant’s trial counsel did not challenge Constable Calicchio’s evidence that she had made notes of her “conversation” with the appellant after he fled the premises. The appellant submits that the failure of the appellant’s counsel to cross-examine Constable Calicchio about her lack of notes, and trial counsel’s conduct in agreeing with the trial judge’s instructions to the jury about this evidence, had the effect of bolstering the credibility of Constable Calicchio and resulting in a miscarriage of justice. 197 The decision by the appellant’s trial counsel to not challenge Constable Calicchio on her evidence, viewed objectively, had an obvious forensic purpose. There was a risk that, if challenged, Constable Calicchio would have confirmed that she did record the exact words of the appellant in her police notes on 26 May 2020. Even putting to one side the forensic purpose of the decision, as outlined earlier in relation to Ground 3, there is no real risk that the jury speculated as to the content of Constable Calicchio’s police notes. Accordingly, the decision by trial counsel not to challenge Constable Calicchio’s evidence as to her notes could not realistically have affected the jury’s reasoning to a guilty verdict and did not give rise to a miscarriage of justice. 198 For those reasons, we dismiss this ground of appeal. The proviso 199 Given our view that Ground 4 has been made out, and the prosecutorial breach of the duty of disclosure has resulted in a miscarriage of justice, it is -- 40 of 44 -- [2026] SASCA 92 The Court 37 necessary to consider the application of the proviso under s 158(2) of the Criminal Procedure Act 1921 (SA). 200 When applying the proviso, the Court must consider whether, upon a review of the whole of the record, it is satisfied that no substantial miscarriage of justice has occurred.43 It is a necessary condition of the application of the proviso (but not necessarily sufficient) that the appellant’s guilt was proved beyond reasonable doubt.44 201 There may be cases where the procedural irregularity or error which occurred during the trial resulting in a miscarriage of justice is of a nature which prevents the appellate court from making an assessment as to whether the prosecution has proved the appellant’s guilt beyond reasonable doubt. In Kalbasi v Western Australia,45 Kiefel CJ, Bell, Keane and Gordon JJ explained: … Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury’s consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases … regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of “process” and “outcome” may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter. (Citations omitted.) 202 In the present case, there was no submission, nor could there be, that the procedural irregularity amounted to a fundamental error which went to the root of the trial. 203 Like Hofer v The Queen,46 this was not a case where the contested issue of whether the prosecution had proved that the appellant was taking a step in the trafficking of cannabis by packaging fell to be determined by resolving a dispute between the contested credibility of prosecution witnesses and the appellant. That is, this was not a case where this Court is required to resolve a conflict between oath and oath.47 As outlined earlier, apart from the evidence of flight adduced as an implied admission of guilt, the prosecution case consisted of unchallenged objective evidence led as part of a largely circumstantial case. It relied upon the appellant’s presence at the Military Road address, unfettered access to the home, and his connection with various items located at the premises associated with 43 Perara-Cathcart v The Queen (2017) 260 CLR 595. 44 Weiss v The Queen (2005) 224 CLR 300 at [39]-[41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). See also Singh v The King [2025] SASCA 98 at [121] (Livesey P, Bleby JA agreeing). 45 Kalbasi v Western Australia (2018) 264 CLR 62 at [15] (Kiefel CJ, Bell, Keane and Gordon JJ). 46 Hofer v The Queen (2021) 274 CLR 351. 47 Cf Liberato v The Queen (1985) 159 CLR 507. -- 41 of 44 -- [2026] SASCA 92 The Court 38 cannabis and drug trafficking, as well as items located on the appellant linking him with the packaging of cannabis in the home and the drug trade generally. 204 It is true that the procedural irregularity of the breach of the duty of disclosure infected the evidence of flight because the appellant’s explanation for fleeing the premises was undermined by his alleged statement to Constable Calicchio, and the appellant was denied the opportunity of properly challenging her evidence. It may also be accepted that but for the procedural irregularity, the appellant’s credibility generally may have been bolstered by an acceptance of his account of his conversation with Constable Calicchio. 205 However, it is possible to put the evidence of flight, and indeed the fact of the guilty verdict (which may have been affected by the procedural irregularity), to one side and while accepting the accuracy of the appellant’s account of his conversation with Constable Calicchio, and its capacity to bolster his general credibility, determine whether the prosecution had proved beyond reasonable doubt that the appellant was taking a step in the sale of cannabis by packaging the drugs at the Military Road address. 206 While the appellant gave evidence in his own defence during which he denied the offence and provided an innocent explanation for each of the various bodies of incriminating pieces of evidence, given the unchallenged nature of the objective evidence implicating the appellant, it is open to this Court to make its own assessment of the appellant’s evidence. The procedural irregularity does not prevent this Court from being able to assess the circumstantial case against the appellant (putting to one side the evidence of flight and any reliance on the guilty verdict), and the cogency of the appellant’s evidence and explanations for the incriminating circumstantial case, while making proper allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record and determining whether guilt was proved to the criminal standard. 207 For the reasons which follow, upon our own independent assessment of the strength of the circumstantial evidence implicating the appellant, and a consideration of the appellant’s evidence which was lacking in cogency and “so glaringly improbable as to be incapable of belief”,48 we are satisfied that there was no rational explanation on the whole of the evidence consistent with innocence and the offence was proved beyond reasonable doubt. 208 First, it was unlikely that a person not involved in the drug enterprise involving 192 kgs of cannabis worth more than $800,000 would have keys to the roller door and the front door of the premises used for packaging the illicit drugs. 209 Secondly, the appellant’s explanation for being in possession of various gloves as his tools of trade for his business of home improvements, painting and 48 Hofer v The Queen (2021) 274 CLR 351 at [61] (Kiefel CJ, Keane and Gleeson JJ, Gageler J agreeing). See also Castle v The Queen (2016) 259 CLR 449 at [52], [66] (Kiefel, Bell, Keane and Nettle JJ). -- 42 of 44 -- [2026] SASCA 92 The Court 39 decorating, did not account for the number of gloves, and their similarity with the gloves located in the premises. The appellant gave evidence that the blue disposable gloves in his possession had fallen out of the box when he was trying to take out a pair. A box of blue disposable gloves was not located in the appellant’s backpack or sports bag. However, a box of blue disposable gloves was found in the main bedroom of the Military Road address. 210 Further, DNA was extracted from a blue glove inside the house near the cannabis. There was a degree of support for the hypothesis that the appellant was a contributor. 211 Thirdly, despite defence counsel’s emphasis on the absence of cannabis or THC located on clothing worn by the appellant, there was a fragment of cannabis found in the appellant’s track pants for which there was no exculpatory explanation, apart from some form of innocent secondary transfer. 212 Fourthly, as to the notepad located in the appellant’s backpack containing a list identical to a list found in a bedroom next to the cannabis, the appellant gave the unlikely explanation that he collected the notebook from the verandah and placed it in his backpack because it might be of some use to him. 213 Fifthly, the appellant gave a strained explanation that he had searched Master Butchers or MBL Food Service on three occasions between 6 May 2020 and 12 May 2020 because he was sourcing plastic meat trays to store meat for his two dogs. 214 In addition, the appellant’s evidence contained a number of inconsistencies which significantly diminished the reliability and credibility of his evidence. The appellant gave conflicting accounts as to the number of mobile phones found in his backpack and on his person (the number of phones was relied on by the prosecution as being consistent with being involved in the trade of drugs). In examination-in-chief, the appellant gave evidence that he had retrieved one mobile phone from the back verandah of the Military Road address and placed that phone in his backpack. Later, he gave evidence that he in fact took two mobile phones from the back verandah. Yet, under cross-examination, the appellant reverted to his original evidence that he only took one mobile phone from the verandah. The appellant was found with two mobile phones in his backpack and an iPhone on his person. 215 As to the appellant’s association with Mr Hallion (who was separately linked to the Military Road address) the appellant gave evidence in cross-examination that he attended at Mr Hallion’s home address to “firm up the quote” for the cleaning job. He explained that he would determine the quote for a job after viewing the location of the job and seeing what was required such as any machinery, skip bins or materials. Despite this, the appellant had given evidence in examination-in-chief that prior to attending at the Military Road address, he and Mr Hallion had agreed on a day rate of $450. -- 43 of 44 -- [2026] SASCA 92 The Court 40 216 The appellant also gave evidence that he had planned to meet Mr Hallion at the Military Road address at 11:00am. Yet, in cross-examination, he said that there “wasn’t really a plan” to meet Mr Hallion at 11:00am, and that his “impression” was that Mr Hallion would get there when he could. This was presumably to account for his access to the premises and the fact that Mr Hallion was not present at the premises when police arrived. 217 The prosecution case against the appellant was overwhelming. The appellant’s evidence as being reasonably possibly true relied on the combination of a series of unlikely coincidences and occurrences which, as a matter of ordinary human experience, are not reasonably possible. The appellant’s evidence was so lacking in credibility and cogency by reason of its inherent implausibility and internal inconsistencies that it can be rejected as being reasonably possibly true. That being so, we are satisfied on the whole of the record (excluding the evidence of flight and the guilty verdict) that the appellant’s guilt has been proved beyond reasonable doubt and there has been no substantial miscarriage of justice. 218 For those reasons, we apply the proviso and dismiss the appeal. Conclusion 219 We grant permission to appeal but dismiss the appeal. -- 44 of 44 --