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]). Continue reading →