The Queen v Falzon

Kiefel CJ, Bell, Keane, Nettle AND Gordon JJ. Where an accused is found in possession of a prohibited drug and is charged with its possession with intent to sell, proof that the accused was, at the time of possession, engaged in a business of selling drugs or drug trafficking is evidence logically probative of the fact that the accused's purpose in possessing the drug on that occasion was the purpose of sale. Accordingly, as has been established by a succession of Australian intermediate appellate court decisions 1, evidence that an accused who is found in possession of a prohibited drug is also found in possession of the accoutrements of a drug trafficking business, such as scales, re-sealable plastic bags, firearms, a multiplicity of mobile telephones or significant quantities of cash, is admissible in proof of the charge. As Gleeson CJ explained in Sultana2, it is circumstantial evidence which, in conjunction with the fact of possession and, possibly, other evidence, may found an inference that the accused was engaged in the business of selling drugs. And that is so notwithstanding that such evidence may also be indicative of a tendency towards crime.

In this matter, the Crown was granted special leave to appeal from the decision of the Court of Appeal of the Supreme Court of Victoria (Priest and Beach JJA, Whelan JA dissenting) 3 which set aside the respondent's convictions of cultivating a narcotic plant, namely, Cannabis L, in not less than a commercial quantity, and trafficking in a drug of dependence, namely, Cannabis L. In allowing the respondent's appeal against his convictions, Priest and Beach JJA substantially departed from previous authority relevant to the admissibility of evidence of a significant quantity of cash in the respondent's possession.

At the conclusion of oral argument before this Court we announced that the Court was unanimously of the view that, for reasons to be published, the appeal should be allowed and that the order of the Court of Appeal allowing the appeal should be set aside, and, in its place, it be ordered that the respondent's appeal to the Court of Appeal be dismissed. These are our reasons for so ordering.

Section 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the Drugs Act”) provides in substance, and so far as is relevant, that a person who without proper authority cultivates a narcotic plant in a quantity not less than the commercial quantity applicable to that narcotic plant is guilty of an indictable offence punishable by a maximum penalty of 25 years' imprisonment.

“Cultivate” is defined in s 70(1) of the Drugs Act as including to plant, grow, tend, nurture or harvest a narcotic plant. “Narcotic plant” is defined to include Cannabis L 4, and a commercial quantity of Cannabis L is 25 kilograms or 100 plants.

Section 71AC of the Drugs Act provides 5 in substance, and so far as is relevant, that a person who without proper authority trafficks in a drug of dependence is guilty of an indictable offence punishable by a maximum penalty of 15 years' imprisonment.

Section 70(1) of the Drugs Act provides in substance, and so far as is relevant, that “traffick” in relation to a drug of dependence includes have in possession for sale. “Drug of dependence” is defined to include the fresh or dried parts of the Cannabis L plant 6. Section 5 provides that a substance shall be deemed to be in the possession of a person so long as it is upon any land or premises occupied by him or her or is used, enjoyed or controlled by him or her in any place whatsoever, unless the person satisfies the court to the contrary.

On 17 December 2013 police executed search warrants at properties: 10A and 10B Mansfield Avenue, Sunshine North, Victoria; 8 Bryson Court, Sydenham, Victoria; and 5 Kendall Street, Essendon, Victoria.

The search of the dwelling at 10A Mansfield Avenue, Sunshine North revealed 37 cannabis plants of varying maturity and size growing in four rooms, weighing a total of approximately 17.72 kilograms; an electricity bypass in the roof space; 15 shrouds, 28 globes, 12 electrical transformers, one carbon filter, three power boards, two shrouds with globes in boxes, six shrouds containing built-in electrical transformers, and one box containing a grow tent; and a wall chart timetable and copies of a feed programme relating to the cultivation of cannabis.

The search of the dwelling at 10B Mansfield Avenue, Sunshine North revealed 55 cannabis plants of varying maturity and size, growing in three rooms, with a combined weight of 17.039 kilograms; an electricity bypass in the roof space; a number of shrouds, globes, transformers, electrical timers, a carbon filter and wall charts relating to the growing of cannabis; assorted vacuum-sealed bags, a set of scales and a sealer device; a tray containing dried cannabis weighing 28.5 grams; and a vacuum-sealed bag containing dried cannabis weighing 21.1 grams.

In total, 92 cannabis plants were located at the Sunshine North properties with a combined weight of 34.781 kilograms. There was also an additional 49.6 grams of dried cannabis.

The two properties at Sunshine North were jointly owned by one of the respondent's associates and the associate's wife. Police surveillance from July 2013 disclosed the respondent's occasional attendance at those properties.

The search of the dwelling at Sydenham revealed 10 immature cannabis plants weighing 1.76 kilograms; eight harvested cannabis plant stumps weighing 657.9 grams; an electricity bypass; a number of light shrouds, light globes, electrical transformers, power boards and charcoal filters, together with feed programme charts setting out the timetable for nutrients to be fed to cannabis plants; two plastic bags containing a mixture of dried cannabis and unidentified plant material weighing a total of 4.1 grams; and a zip lock bag containing dried cannabis weighing 3.3 grams.

The property at Sydenham had been purchased by the respondent jointly with another person in early 2013 and the respondent admitted that the respondent and the other joint owner cultivated cannabis there.

The search of the respondent's home at Essendon revealed, amongst other things, a plastic container of dried cannabis that weighed 220 grams; three snap-lock bags and a sealed bag (either heat-sealed or vacuum-sealed) containing dried cannabis and unidentified plant material, one snap-lock bag weighing 113.8 grams and the other two snap-lock bags with the sealed bag weighing a total of 172.3 grams, located inside a locked cabinet in the garage (the sealed bag containing dried cannabis could be connected to the presence of a sealing machine at 10B Mansfield Avenue, Sunshine North, there being no sealing machine found at either Sydenham or Essendon); a number of sets of keys that were identical to the ones used to open doors of the dwellings at 10A and 10B Mansfield Avenue, Sunshine North; hard copy documents relating to cannabis cultivation the same as hard copy and electronic documentation found at the premises at Sunshine North; two black garbage bags containing black water pipe tubing of the same type as was in use at the properties at Sunshine North; and $120,800 in cash secreted in various locations throughout the house including the storage area under the stairs inside the house (in a black plastic bag), the upstairs en-suite bathroom (in a “shortbread” tin inside a side bottom drawer), and the work bench in the garage (in a top drawer).

Evidence as to the value of the cannabis grown at Sydenham was that it was between $16,000 and $32,000 for the cannabis already harvested, and between $20,000 and $40,000 for the growing cannabis plants.

Evidence as to the value of the cannabis located and seized at Essendon in the plastic container, the snap-lock bags and the heat-sealed or vacuum-sealed bag was that it was between $4,500 and $8,100, although a much higher value was suggested if the assumption were made that the cannabis was to be sold in “gram quantities”.

The respondent was arrested on 17 December 2013 and, during the course of interview, made a number of admissions. He said...