The Queen v Falzon

The High Court has allowed a Crown appeal concerning the prosecution’s use of evidence of large amounts of cash found at the defendant’s premises to support charges of trafficking cannabis. The defendant was charged with possessing and cultivating cannabis for sale at two properties. His defence was that the cannabis was for his personal use or for gifts to others. The prosecution presented evidence of $120,000 in cash hidden at his home address. The jury convicted him of cultivating cannabis for sale at one of the properties and possessing it for sale at another. However, his appeal to Victoria’s Court of Appeal was allowed on the basis that the cash could not be properly used to convict him, because (a) ‘insofar as the evidence of the possession of the cash was admitted on the basis that it was evidence of past trafficking, it was irrelevant and therefore inadmissible’ (VSCA at [146]) and (b) if it is relevant, ‘such probative value must be low, in circumstances where the risk of the misuse of the evidence is undoubtedly high.’ (VSCA at [148]).¬†On further appeal to the High Court, the Court unanimously allowed the Crown’s appeal at the conclusion of the hearing, with reasons to follow.

The joint judgment (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) reviewed lower court rulings on the use of cash as evidence in drug trafficking prosecutions (at [34]-[39]), commencing with a 1989 ruling by the Northern Territory Court of Appeal. The joint judgment observed that that ruling by an Australian intermediate court was not followed by other Australian intermediate courts and instead it was the dissenting ruling in that case that ‘has ultimately prevailed in subsequent authority’ (at [34]). Turning to the relevance of the cash in the case before it, the the joint judgment held that the trial judge’s and dissenting judge’s rulings that the cash was admissible was ‘plainly correct’ (at [40]). The joint judgment held it did not matter that the prosecution did not argue that the charges in question were part of a continuing enterprise; noting evidence of drug traffickers’ preference for using cash, the cash was evidence of ‘a continuing business of trafficking in cannabis’ by the defendant, which in turn could be used to infer that he intended to sell the cannabis at the two properties (at [41].) ‘For the same reason’ ([42]), the Court of Appeal was wrong to characterise the purpose of the cash evidence as supporting ‘rank propensity reasoning’; the cash was evidence of the defendant’s business, not the ‘sort of person’ he was. The joint judgment observed that the mere fact that the cash evidence disclosed the defendant’s past crimes did not make it inadmissible in his trial (at [43]) and that the evidence fell squarely within the authorities that preferred the dissent in the 1989 Northern Territory judgment to the majority (at [44]).

Turning to the Court of Appeal’s alternative finding that the cash evidence should have been excluded under s137 of the Evidence Act 2008, the joint judgment found (at [45]) that the probative value of the cash evidence was ‘high’ – not ‘low’ as the Court of Appeal had held – because, ‘combined with other circumstantial evidence of the [defendant’s] carrying out the business of drug trafficking’ the cash ‘constituted a powerful circumstantial case’ of such a business. As well, the evidence was ‘not to any significant extent unfairly prejudicial’ {at [45]), as the risk of the jury using the cash to reason about the sort of person the defendant was ‘was minimal’, especially given the trial judge’s direction ‘not to think that because a person breaks the law in one instance, he is likely to break the law in another.’ While ‘views may differ’ as to whether the defendant should have sought a more detailed direction advising against this propensity use of the cash evidence, the defence has a ‘good forensic reason’ not to do so (at [46].) Discussing the defendant’s argument on appeal that the trial judge should nevertheless given such a direction to avoid a substantial miscarriage of justice (under s16 of the Jury Directions Act 2015), the joint judgment observed that the argument not only lacked a notice of contention was was ‘entirely without merit’ as the trial judge could not have properly concluded that there were substantial and compelling reasons to override the defendant’s decision (at [47].)

Finally, the joint judgment reiterated earlier holdings that ‘Australian intermediate appellate courts are bound to follow the decisions of other Australian intermediate appellate courts in both matters of statutory interpretation and matters of common law unless persuaded that those decisions are plainly wrong’ ([48]). Noting that the admissibility of the cash evidence ‘was supported by a succession of decisions of other Australian intermediate appellate courts’ and that the Court of Appeal did not and could not properly consider those decisions to be clearly wrong, the joint judgment observed that the Court of Appeal instead distinguished those precedents on a ‘now concededly untenable basis’ and a ‘patent misconception’ that the evidence was unfairly prejudicial. Such a holding was ‘in effect to refuse to follow those earlier decisions’, a course that was not ‘properly open’ and ‘should not be repeated’.

High Court Judgment [2018] HCA 29
Result Appeal allowed
High Court Documents Falzon
Full Court Hearing [2018] HCATrans 68
Special Leave Hearing [2017] HCATrans 212
Appeal from CA [2017] VSCA 74
Trial Judgment
[2016] VCC 1039
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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

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