R v Dung Chi Dang [2004] VSCA 38

5. The passage cited by O'Bryan, A.J.A. from the judgments in Edwards v. The Queen[1] shows that if the Crown seeks to rely upon a lie told by the accused to prove guilt, the lie must be precisely identified. In the present case the judge said in the charge that the prosecutor had put to the jury that the accused told lies to the court about "the location of the sandwich bags" and that "his reason for lying was his knowledge, consciousness of guilt of the crimes of which he is charged". It does not appear from the transcript that any discussion took place between counsel and the judge during which any warning was given that the prosecutor would rely on any such lie as evidence of consciousness of guilt.

8. The cross-examination upon which the prosecutor based his submission was set out in the charge. It is by no means clear that the accused lied in the passage quoted, as opposed to the prosecutor and the accused being somewhat at cross-purposes, as defence counsel submitted in taking an exception to the judge's charge on consciousness of guilt. But if there was any lie, I think it was clearly not about the location of the sandwich bags, as was suggested, but rather as to the purpose for which the sandwich bags were used. The prosecutor, if correctly quoted, and the judge, were, I think, with respect, in error in that no lie was precisely identified at all. I agree, however, with O'Bryan, A.J.A. that if the accused lied, at most the telling of such a lie went to his credit, and could not be said to have amounted to an admission of his guilt. The prosecutor should not, in my view, have been permitted in this case to submit to the jury that any lie told by the accused could be taken as constituting an admission by him of his guilt. The judge should, with respect, either have told the jury so in clear terms, or possibly have discharged the jury.

11. 4 In cases where there is room for doubt whether the accused has lied, or as to the identification of the lie, the preferable course is, I think, as O'Bryan, A.J.A. suggests, for the prosecutor to inform the court that he or she intends to rely upon the lie as consciousness of guilt before addressing the jury. In Osland v. The Queen[2], Gaudron and Gummow, JJ. said that where there is a risk that a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain what use the prosecution contends may be made of the evidence in question. In Zoneff v. The Queen[3], Gleeson, C.J., Gaudron, Gummow and Callinan, JJ. said -

"Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged."

15. If the judge and defence counsel had, in the present case, been warned of the prosecutor's intention to rely on consciousness of guilt before addresses to the jury commenced, the miscarriage of justice which resulted in ground 5 succeeding might well have been avoided.

20. I have read the judgments of Charles, J.A. and O'Bryan, A.J.A. I agree that the appeal should be allowed for the reasons given by O'Bryan, A.J.A. and I respectfully endorse the addendum of the presiding judge.

25. The applicant was presented in the County Court on 7 counts of offences against the Drugs, Poisons and Controlled Substances Act 1981. Counts 1 and 2 alleged that the applicant had in his possession unlawfully at Deer Park on 19 September 2001 drugs of dependence namely, methylamphetamine (count 1) and diacetylmorphine (count 2). Diacetylmorphine will be referred to as heroin. Counts 3, 5 and 7 alleged that the applicant had in his possession unlawfully at Deer Park drugs of dependence namely, methylamphetamine, (count 3), heroin (count 5) and a drug commonly known as ecstasy (count 7). Count 4 alleged that on 19 September at Deer Park the applicant trafficked in a drug of dependence namely methylamphetamine. Count 6 alleged that on 19 September at St. Albans the applicant trafficked in a drug of dependence namely heroin. As the evidence would show, the drugs the subject of counts 3, 4, 5, 6 and 7 were found in the same unit known as 35 Concord Circuit, St Albans.

28. The applicant pleaded guilty to counts 1 and 2 in the absence of the jury. The first presentment was re-printed omitting counts 1 and 2 and the applicant pleaded not guilty to counts 1 - 5. Count 1 was an alternative to count 2 and count 3 was an alternative to count 4. During the trial the judge directed the jury to find the applicant not guilty of count 5 on account of an absence of evidence about finding ecstasy in the unit.

31. The jury convicted the applicant of trafficking as alleged in counts 2 and 4 in the re-printed presentment. The quantity of heroin involved in count 4 was 45.1 grams. The total amount of pure heroin was 6.398 grams. The quantity of methylamphetamine involved in count 2 was 35 grams.

34. After the applicant was found guilty on counts 2 and 4, he was arraigned again on the first presentment and pleaded guilty to counts 1 and 2. He was then arraigned on a second presentment containing one count that he had in his possession at Richmond on 8 April 2000 a drug of dependence, namely heroin. The applicant asked the judge to take into account a summary charge of failing to appear, in accordance with his undertaking of bail, and surrender himself in custody.

37. In my opinion it was less than satisfactory that the first presentment named Deer Park in counts 1 - 5 as the place where the offence was committed and St. Albans in counts 6 - 7. When the applicant was arrested on 19 September 2001 he was at the Deer Park Caravan Park, also known as West City Caravan Park, Deer Park. The drugs the subject of counts 1 and 2 in the first presentment were located in the Deer Park Caravan Park. The drugs the subject of counts 3 - 7 were located in a unit situated at 35 Concord Circuit St. Albans, but the presentment refers to Deer Park, not St Albans, in counts 3, 4, and 5. No issue arose at trial as to the correct location of the unit in Concord Circuit.

40. The applicant admitted 13 prior convictions from 8 court appearances. The prior convictions included possession of heroin (2), using a drug of dependence heroin (1), using a drug of dependence (1), trafficking in heroin (1), attempting to traffic in a drug of dependence (1) and trafficking in a drug of dependence (1). These offences were committed between 1991 and 1997.

43. Following a plea the applicant was sentenced on the first presentment as follows:

Count 1 - Possession of methylamphetamine - 3 months' imprisonment

Count 2 - Possession of heroin - 3 months' imprisonment

Count 4 - Trafficking in methylamphetamine - 36 months' imprisonment

Count 6 - Trafficking in heroin - 42 months' imprisonment

The sentence on count 1 was ordered to be served cumulatively with the sentence on count 6. All the other sentences were to be served concurrently.

51. On the second presentment the following sentences were imposed:

Count 1 - Possession of heroin - 3 months' imprisonment

Summary Charge - Failing to appear to answer bail - 1 months' imprisonment

The sentences imposed on count 1 and on the summary charge were ordered to be served cumulatively on count 6 and with each other.

57. The total effective sentence was 49 months. A non-parole period of 30 months was fixed. A period of 372 days was to be reckoned as the period of pre-sentence detention already served.

60. The applicant gave notice of application for leave to appeal against conviction on two grounds:

"1. That the conviction is against the weight of evidence and the jury should have been given direction to acquit the applicant. 2. The verdict is unsafe and unsatisfactory in that no jury acting reasonably could convict the applicant on the evidence."

64. The applicant gave notice of application for leave to appeal against sentence on three grounds:

"1. That the sentencing judge erred in giving insufficient weight to the personal circumstances of the applicant. 2. That the sentencing judge erred in making an order for cumulation of the sentence in relation to count 1 upon the sentence imposed on count 4 (sic count 6) and of the sentence in relation to count 1 (second presentment) upon the sentences imposed on counts 1, 2, 4, and 6 (sic only count 6). 3. That in all the circumstances the sentence imposed was manifestly excessive."

68. When the hearing of the appeal commenced Mr. Croucher, counsel for the applicant sought leave to add 4 new grounds of appeal, notification of which was given to the court twenty four hours before the hearing began. The original grounds of appeal against conviction were given on 3 April 2003. Counsel had delivered an outline of submissions limited to the 2 grounds early in March 2004. Mr Croucher, who was not engaged in the trial, received the brief late through no fault of his and perceived errors in the charge which he felt it was his duty to raise in this Court.

71. In these circumstances the Court decided to hear argument on the new grounds and reserved its decision whether to allow an amendment of the notice of appeal. Mrs Quin for the respondent did not object to this course. The new grounds are:

"3. The judge erred in, and a miscarriage of justice resulted from, in leaving to the jury additional bases for proof of possession, namely possession at common law and `deemed' possession under the second limb of s.5 of the Drugs, Poisons and Controlled Substances Act 1981, in circumstances where neither basis was open upon the evidence. (Charge at 151-161 and 164-167). 4. The judge erred in failing to direct to the effect: (a) that in order to find the applicant guilty of trafficking the jury had to be satisfied beyond reasonable doubt that the applicant knew of the presence of the relevant drug and (b) that, even if the jury were satisfied of the possession alleged in counts 3 and 5 because, say, they were satisfied on the criminal standard that the applicant was in occupation of the premises but were not satisfied on the civil standard that he did not know of the relevant drug it was nevertheless open to them to acquit on counts 4, and 6 on the basis that they were not satisfied on the criminal standard that the applicant knew of the presence of the relevant drug. 5. The trial judge erred: (a) in leaving to the jury as evidence of consciousness of guilty an alleged lie or lies told by the applicant in the course of his evidence in circumstances where it was not open to do so, and a miscarriage of justice resulted there from, and (b) in failing to identify sufficiently or at all the alleged lie or lies relied on (Trial at 59, 116 and 122; charge at 139-141, 144-149 and 166). 6. An aggregate of errors caused the trial to miscarry."

75. The facts may be stated quite shortly. On 19 September 2001 at 2.30 p.m. police executed a search warrant of a residential unit in premises known as 35 Concord Circuit, St. Albans, in the presence of the applicant. Police located a quantity of drugs and other items in the main bedroom currently being occupied by the applicant's wife, who was present during the search, and in a second bedroom. A red hydraulic press, an item commonly associated with trafficking, was located in the garage of the house. Other items included a set of scales, plastic bags and a grinder, commonly associated with trafficking were found in the house. In the main bedroom, a red bag containing approximately 15 grams of methylamphetamine, a square piece of heroin weighing approximately 23 grams, small pieces of rock heroin and a heart shaped jewellery box containing a foil of heroin and a small amount of methylamphetamine were found. In a second bedroom, several pieces of heroin and various amounts of methylamphetamine were located in a tin. A total of 45.1 grams of heroin and 35 grams of methylamphetamine were located altogether.

78. Before the police searched the St Albans unit, they had found the applicant at unit 41 at the West City Caravan Park, Ballarat Road, Deer Park at about 8.30 a.m. on 19 September 2001. A search made at Deer Park by the police located heroin and methylamphetamine in the possession of the applicant. The quantity of heroin was small and the Crown conceded during the plea it was for personal use. Likewise the methylamphetamine was for personal use. Defence counsel conceded that the applicant was a user of heroin and methylamphetamine.

81. Counts 1 and 2 in the first presentment were not contested by the applicant. I shall say something later about the relevance of the Deer Park possession to the Crown case in respect of counts 3, 4, 5 and 6.

84. The applicant had lived at the St. Albans house with his wife from January 2000 to September 2001, but had moved out of the house following an argument and at the request of his wife about 10 days before the police visited it. His wife was then seven months pregnant. The applicant went to his parents' residence in Yarraville, but had retained a key to the unit in St Albans. He took some of his clothing when he left, but most of his clothing was left in the unit. He had continued to pay the rent and was in the process of negotiating with the landlord a reduced rent when police executed the search warrant on 19 September.

87. The applicant's wife, Phung Kim Phan, gave evidence of being married to the applicant for 4 years and residing in the St. Albans unit since January 2000. She said that in March 2001 friends of her husband, Raymond and Sally, moved into the unit sometimes sleeping in the garage and sometimes in a room opposite her bedroom. Raymond and Sally left the premises during the morning of 19 September and the police arrived at about 2.30 pm. Neither Raymond, nor Sally, was called as a witness. Phan was told by police that drugs had been found in a heart shaped jewellery box and underneath the bottom drawer in a chest of drawers in the bedroom she occupied. Phan denied in evidence having any knowledge of the drugs found in the unit. She said that she had seen the jewellery box but never looked inside. In cross-examination she was asked about the applicant leaving and said that he had left without taking any personal belongings with him. She said that she had not seen the applicant with any of the items, scales, drugs and jewellery box, shown in photographs taken by the police and tendered in evidence. It was not suggested to her by the applicant's counsel that she owned or used the drugs of dependence found in the unit.

90. Senior Constable Bullock gave evidence of going to the premises in St. Albans at 2.30 pm. on 19 September 2001, gaining access by a key found in the applicant's possession and conducting a search in the presence of the applicant and the applicant's wife. In the main bedroom upstairs he found a number of items: a coffee grinder, a red bag containing approximately 15 grams of methylamphetamine, a square piece of heroin weighing approximately 23 grams, small pieces of rock heroin and a heart shaped jewellery box containing a foil of heroin and a small amount of methylamphetamine. In a second bedroom several pieces of heroin and various amounts of methylamphetamine were located in a tin. A number of plastic bags similar to those found with the drugs and a cardboard box for sandwich bags were found in the second bedroom. He said that the red hydraulic press was found in the garage.

93. The applicant was interviewed by police at three stages and an edited tape recording was played in court. The applicant made no admissions to police in relation to the drugs and other items described above. During the third stage he gave `no comment' answers. During the first interview the applicant twice stated that his address was 56 Blackwood Street, Yarraville, the residence of his mother. Later, when asked about his wife, living at 35 Concord Circuit he replied: "We're staying there." In the third interview he was again asked for his address and he answered 35 Concord Circuit, St. Albans.

96. There was no forensic evidence, such as DNA or fingerprints, led in evidence.

99. At the conclusion of the Crown's case Counsel for the applicant made a no case submission in relation to the St. Albans counts. Her Honour rejected the application giving detailed reasons for doing so. The argument presented to her Honour was based upon there being no evidence upon which a reasonable jury could find proved the element of possession of the drugs by the appellant. Her Honour considered there was evidence upon which the jury could find that the premises at St. Albans were `occupied' by the applicant or that the drugs were `controlled' by him.

102. Counsel for the applicant called the applicant as a witness for the defence. He said that on 19 September 2001 he had not been living at the St. Albans address for about ten or eleven days. He said his wife, who was pregnant, had asked him to leave because she believed he was having a relationship with Sally, the lady who shared the unit with them. He said that he had not seen Sally or Raymond since he left the unit. He said that he recognised the coffee grinder depicted in photograph No.3 located in the kitchen of the unit. He said that he recognised the chest of drawers depicted in photograph No. 5 but had never seen the items that were found underneath the bottom drawer depicted in photograph No. 6. He said that the drugs were not his, nor did he have any knowledge of them. He said that he had nothing to do with the plastic bags and drugs found in the second bedroom and depicted in photographs No. 14 and 15. In cross-examination he said that his wife was about seven months pregnant, and was not working. He said that he paid the rent and continued to pay after he left the unit. He said that he used sandwich bags for his work lunches.

105. In the course of his evidence in chief the applicant was asked by his counsel about the plastic bags depicted in photograph 15: "Do you recognise anything that's in that photograph?" His answer (as recorded in court) was: "The (and then an indistinct word) sometimes inside my house. Inside like a sandwich bag". In cross examination the prosecutor asked the applicant: "What (are) the sandwich bags in there for?" He answered: "Well, for instance, if I'm going out to work I take my sandwich with me, and I put it in the bag. I put it in the bag."

108. The prosecutor submitted to the jury in his final address that the applicant told lies to the court about the location of the sandwich bags and did so out of a consciousness of guilt of the crimes of which he was charged. The judge directed the jury how the jury could use evidence as showing consciousness of guilt, but later she corrected her charge and told the jury that before they could consider the evidence of the applicant as probative of guilt they must be satisfied beyond reasonable doubt that the evidence revealed a deliberate lie; not an error or an untruth arising from the confusion of the applicant or told inadvertently. Her directions were intended to follow the principles stated by the High Court in Edwards[4].

111. Counsel for the applicant at the trial was satisfied with the re-direction and the original notice of appeal did not assert an error by the trial judge with regard to the consciousness of guilt point now raised by Mr Croucher.

114. It will be convenient to deal first with the new ground 5. Mr Croucher submitted that the trial miscarried because the trial judge fell into error in leaving to the jury as evidence of consciousness of guilt the offences of possession and trafficking specified in counts 2-7.

117. It is necessary to consider more closely the evidence from which the prosecutor mounted his argument based upon consciousness of guilt. Paragraph 15 shows a timber shelf in the second bedroom on which lay the lid of a cardboard box. Resting partly on the lid was a cardboard box marked "200 Sandwich Bags". Alongside the cardboard box an open box matching the lid rests on the shelf. Inside the box are four large plastic bags. Mr Bullock had described photograph 15 in these terms:

"Photograph 15, this is also in the second bedroom. It shows a number of plastic bags (indistinct) shelf to the right of the bedroom. These bags were similar to what we found the heroin and methylamphetamine wrapped up in the house".

No plastic bags can be seen in the box marked "200 Sandwich Bags".

122. In evidence-in-chief the applicant was shown photograph 15 and asked if he recognized anything that was in the photograph. The applicant's answer was partly indistinct and the transcript reproduced the answer as follows:

"The (indistinct) sometimes inside my house. Inside like a sandwich bag."

He denied having anything to do with the items in the photograph on 19 September 2001. It was a curiously framed question for no-one had suggested he had anything to do with drugs and items in the unit on the day the search took place.

"... the plastic bags that were found by the police in one of the cupboards I think in the other room, you said you knew about those. Did you know about those or not?"

The question was very imprecise in identifying "the other room" and "the cupboards". No reference was made to photograph 15. The applicant answered the question:

"In the cupboard where she put food, thing's everything's in there."

The applicant then agreed with the prosecutor that food was in the cupboard to be eaten later. He was asked:

"Well, for instance if I'm going out to work I take my sandwich with me and I put in the bag."

141. It was from these questions and answers that the prosecutor asked the jury to infer the guilt of the applicant. In her charge, the judge said to the jury:

"The Crown says that the accused told lies to the court about the location of the sandwich bags and that his reason for lying was his knowledge, consciousness of guilt of the crimes of which he is charged."

145. Her Honour next proceeded to give the jury directions about the prosecutor's argument. She told the jury that they may infer that the applicant entertained a consciousness of his own guilt of the crime if, but only if, they were satisfied beyond reasonable doubt of three matters:

"First, that the statements attributed to the accused were indeed made by him; second, that the statements were lies - that they were not only untrue but that the accused knew, at the time he made them, that they were untrue; and third, that the only reasonable explanation that the accused did tell lies was his consciousness of guilt of the crimes - not of some other wrongdoing or because of some other reason to lie abut the matter. Were you satisfied beyond reasonable doubt that the accused did tell lies in this way and did so because of a consciousness of guilt of this crime? This is the question that you have to determine. If you are so satisfied you could use that consciousness of guilt as evidence of actual guilt."

149. At the request of counsel for the applicant, her Honour gave the jury a re-direction in relation to consciousness of guilt. She drew the jury's attention to the question asked by the prosecutor to which the applicant answered: "Those bags were in the kitchen" and then proceeded as follows:

"In his final address, counsel for the defence submitted that the prosecutor did not ask the accused where the sandwich bags in photograph 15 were located. Mr Jackson submitted that the accused may have been talking about sandwich bags in general. The prosecutor submitted that the accused - sorry, Mr Jackson submitted that the accused and the prosecutor may have been talking at cross purposes. Before you consider that statement by the accused as probative of guilt, you must be satisfied beyond reasonable doubt that the evidence revealed a deliberate lie, not an error or an untruth arising from the confusion of the accused or told inadvertently."

153. Later in the charge, when the judge was dealing with the "possession" counts (3, 5 and 7) in the first presentment, the judge said to the jury:

"The prosecutor submitted that the accused told a lie about the location of a sandwich bag. The accused said that they were found in the kitchen. The prosecutor submitted that the accused told a lie about the location of the sandwich bags because he was trying to hide his guilt."

157. It was not until the judge dealt with the possession counts that the lie relied upon by the prosecutor was identified with any precision. In the passage referred to in the preceding paragraph, the lie was identified as relating to the location of "a sandwich bag". The directions in the charge moved from lies to a single lie and from "the sandwich bags" to "a sandwich bag". It is not at all clear whether the prosecutor intended to ask the applicant about the cardboard sandwich box shown in photograph 15 or about a sandwich bag and, if the latter, which one of the four identified by Mr Bullock in the cardboard box on the shelf. Another matter of imprecision is whether the location of "a sandwich bag" was really intended to be the subject matter of the lie relied upon by the prosecutor.

160. A critical issue, not adverted to by the prosecutor in his cross-examination and address to the jury, was whether a plastic sandwich bag had been used to contain 15 grams of methylamphetamine. The plastic bag is shown in photograph 6. Plastic bags of a similar kind are shown also in photographs 7, 8, 10 and 11.

163. It seems that the prosecutor did not pursue with the applicant usage of plastic sandwich bags from the sandwich bag box for the purposes of possession of drugs. In my view, the use to which some plastic bags had been put was more important to proof of guilt than the location of "a sandwich bag" or the cardboard sandwich box marked "200 Sandwich Bags"..

166. Precise identification of an alleged lie or lies told in court is required where a lie is relied upon to prove guilt. The following passage from the joint judgment of Deane, Dawson and Gaudron, JJ. in Edwards[5] explains the directions to be given to a jury before a lie told by the accused exhibits a consciousness of guilt:

"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth)[6], because of "a realisation of guilt and a fear of the truth".

170. I fail to appreciate how, if a lie was told by the accused about the location of "the sandwich bag box" or "a sandwich bag", such a lie could be taken into account by the jury to prove guilt. At most, in my view, the lie could be used as going to credit, leaving it open to the jury to reject his evidence.

173. It is unfortunate that the prosecutor did not inform the trial judge of his intention to rely upon a lie as consciousness of guilt before he addressed the jury. Had he done so, counsel for the accused might have objected, or the trial judge might have ruled against the prosecutor using the lie (if precisely identified) as evidence of guilt. Alternatively, before the re-direction was given, there was an opportunity to identify the lie with more precision or for the judge to have withdrawn the prosecutor's argument on consciousness of guilt from consideration by the jury.

176. As a consequence of the direction given to the jury, if the jury was satisfied that the accused had told lies they could have used the lie or lies to infer a consciousness of guilt of counts 4 and 6. The trial miscarried in my opinion because consciousness of guilt should not have been left to the jury and the convictions cannot stand. I would uphold ground 5.

179. Because of the view I have formed about ground 5, I propose to deal briefly with the other grounds. I shall deal first with the original grounds which assert that the convictions were against the weight of the evidence and the verdicts were unsafe and unsatisfactory.

182. Were these grounds to be upheld, the verdicts of guilty would be quashed and an acquittal ordered to be entered on the record.

185. The issue for the jury was whether the applicant was in possession of the drugs of dependence found by the police in the unit at 35 Concord Circuit, St Albans, on 19 September 2001. If he was in possession of not less than three grams of heroin, or not less than six grams of methylamphetamine, s.73 of the Act provides that such a quantity of heroin and/or of methylamphetamine in a person's possession is prima facie evidence that he trafficked in it.

188. The Crown's case was that the respondent had in his possession for sale the drugs found by the police. The Crown relied upon the plain meaning of possession: having physical control of something and intending to exercise control over it. The Crown argued that the jury should have been satisfied beyond reasonable doubt that the respondent put the drugs in the drawer in the main bedroom and had control over them. The Crown further relied upon the jury believing the wife's evidence that she did not know the drugs were there and disbelieving the respondent's evidence that he had no knowledge of the drugs, that they did not belong to him and that he did not put the drugs in the places where they were found. In convicting the respondent of trafficking the jury must have disbelieved the evidence of the respondent and believed the wife's evidence. This the jury was entitled to do. The Crown argued that if the wife did not know about the drugs in the bedroom, evidence relating to occupation of the unit entitled the jury to infer that the respondent placed the drugs and other items found by the police in the places indicated and that he continued to exercise control over the drugs notwithstanding that he did not actually reside in the unit.

191. The following evidence, which was not contested, was relied upon by the Crown to prove that the applicant possessed and had control of the drugs in the unit on 19 September 2001.

1. The applicant arranged the leasing of the premises for himself and his wife to occupy.

2. The applicant resided with his wife in the premises for about 20 months.

4. The applicant was not in physical occupation for about 10 days before 19 September 2001, but otherwise remained in occupation.

5. The applicant's wife remained in physical occupation during the ten days before 19 September.

6. The applicant was negotiating to pay a reduced rent.

7. The applicant retained a key to the premises so that he could access the premises whenever he wished.

8. The applicant gave his address on two occasions as being 35 Concord Circuit, St Albans.

9. When the applicant left the premises at his wife's request he took with him very little clothing and left the rest at the premises.

203. In my opinion, a jury properly instructed could have found the accused guilty of trafficking in heroin and methylamphetamine. The case against the applicant was circumstantial, but was capable in law of establishing possession of the drugs by the applicant based upon s.70 of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act") which provides that traffic in relation to a drug of dependence includes "possession for sale a drug of dependence", the common law meaning of possession and the second limb specified in s.5 of the Act. Omitting the first limb and unnecessary words, s.5 provides:

"Without restricting the meaning of the word `possession', any substance shall be deemed for the purpose of this Act to be in the possession of a person so long as it is ... controlled by him in any place whatsoever, unless the person satisfies the court to the contrary."

207. I consider that the first limb in s.5 was also available to the Crown:

"any substance shall be deemed ... to be in the possession of a person so long as it is upon any ... premises occupied by him."

211. Properly instructed, it was open to the jury to be satisfied to the requisite standard that the drugs located in the unit were controlled by him at all material times.

214. Grounds 1 and 2 must fail, in my opinion, in the absence of error being shown in the charge. Reliance was placed upon M v. The Queen[7] by Mr Croucher. I am of the opinion that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of trafficking in heroin and methylamphetamine. The jury had the benefit of seeing and hearing the evidence and properly instructed was entitled to infer that the applicant was in possession of the drugs located in the unit.

217. The new grounds 3, 4 and 6 may be considered briefly together. Mr Croucher mounted a substantial argument of error in the charge in leaving common law possession to the jury based upon Moors v. Burke[8] and He Kaw Teh v. The Queen[9] and "deemed" possession under both of the two limbs of s.5 of the Act. Mr Croucher also contended that the judge erred in relation to the trafficking counts because she failed to direct the jury that the Crown had to prove beyond reasonable doubt that the applicant knew of the presence of heroin and methylamphetamine in the unit before it could convict. Reliance was placed upon R. v. Tregear[10].

220. Mrs Quin for the respondent argued that the trial judge was right in leaving possession at common law or pursuant to both limbs of s.5 of the Act and that in the end it was a question of fact for the jury to determine whether the accused actually occupied the unit after he physically ceased to reside there and up to and including 19 September 2001. Mrs Quin submitted that the jury was entitled to find proved a temporary cessation of occupancy by the applicant, that he had secreted the drugs where they were found and that he controlled them at all material times.

223. I consider that there is no merit in Mr Croucher's argument that the first limb of the extended meaning of "possession" had no application to the facts in the case. The jury could have been satisfied of the applicant's possession of the drugs because they were found upon premises "occupied" by him. "Occupied" for the purposes of the first limb includes the right to possess and physical presence in the premises all the time is not required. A person who is temporarily absent from premises he owns or leases remains the occupier when absent on holidays or whilst working and living elsewhere or whilst briefly separated from their spouse.

226. A problem arises out of the second limb and the direction given to the jury:

"Here, on the facts of this case, the Crown must provide beyond reasonable doubt that the accused occupied the premises or used, enjoyed or controlled the methylamphetamine or heroin which were found in the premises."

230. It was not the Crown's case that the applicant used and enjoyed the drugs and there was no evidence to prove that he did so. The critical issue was whether he "controlled" the drugs found on the premises.

233. In my opinion, the charge did not give clear and precise directions about "possession" and "deemed possession", but it is unnecessary to determine finally whether the new grounds 3, 4 and 6 have been made out. It is noted once again that at the trial and in the notice of appeal no complaint was made about her Honour's directions.

236. Mr Croucher submitted that a new trial should not be ordered. In my opinion, a new trial should be ordered. It will be a matter for the Office of Public Prosecutions to determine whether a new trial is to take place.

239. Should a new trial be held, the Crown might seek to lead evidence of finding heroin and methylamphetamine in the possession of the applicant at the caravan park at Deer Park on 19 September 2001. It might seek also to lead evidence that he has admitted being a user of drugs of the kind found in the unit at St Albans for the fact that he was a user of the same drugs as were found in the unit at St Albans on the same afternoon was probative of his possession and control of them. It could not be used as propensity evidence and a clear warning to the jury in this regard would need to be given.[11] A trial judge might admit the evidence, or might exclude the evidence on account of its prejudice outweighing its probative value.

242. I would allow the applicant to amend the grounds of appeal to include the new grounds. I would allow the appeal, set aside the convictions and sentence and order a new trial.

[1] [1993] HCA 63; (1993) 178 C.L.R. 193 at 210-211.

[2] [1998] HCA 75; (1998) 197 C.L.R. 316, at [44].

[3] (2000) 200 C.L.R. 234 at [17].

[4] Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193.

[5] Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193 at 210-211.

[6] R. v. Lucas (Ruth) [1981] Q.B. 720.

[7] M v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487.

[8] Moors v. Burke [1919] HCA 32; (1919) 26 C.L.R. 265.

[9] He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 C.L.R. 523.

[10] R. v. Tregear [2003] VSCA 222.