R v Gluyas [2002] VSCA 12

2. I will invite Charles, J.A. to give the first judgment.

7. On 13 September 2000 the applicant pleaded not guilty in the County Court at Melbourne to a presentment alleging four counts, one count of trafficking in a commercial quantity of cannabis L, one count of cultivation of a narcotic plant, one count of possession of cannabis and one count of theft. After a trial lasting six sitting days the applicant was convicted of trafficking in a drug of dependence and theft. The judge sentenced the applicant on the count of trafficking to be imprisoned for 5 years and 9 months and on the count of theft to be imprisoned for 9 months. A total effective sentence of 6 years' imprisonment was imposed and the judge fixed a non-parole period of 4 years.

10. The circumstances alleged to give rise to the offences may be shortly summarised as follows. On 26 May 1999 the police raided a factory in North Geelong and found a cannabis crop growing in hydroponic conditions. The plants ranged from small seedlings to full-grown plants. The power supply had been tampered with to avoid being metered. Documents linked to the applicant were found at the premises along with a coke bottle with the applicant's fingerprint. Some time during 1994 to 1995 the owner of the shed had leased it to "George Taylor". He met "Taylor" only once but subsequently had a number of telephone conversations with him. He did not recall what Taylor looked like. The rent was paid directly into the owner's bank account. During 1997 the owner at times met "Bill Gluyas" whom he believed to be involved with the property. On one occasion the applicant went to the landlord's house and paid the rent directly to him. Occasionally the landlord would leave notes under the door of the shed and either "Taylor" or the applicant would return the call. The landlord did not have the tenant's contact telephone number. After the police raid the applicant rang the owner and told him about the

raid. The prosecution alleged "George Taylor" did not exist but was simply a name used by the applicant.

14. The applicant denied he was the occupier of the shed and denied knowledge of the cannabis cultivation. He said George Taylor was the tenant and that he had an arrangement with Taylor to help him with feeding the dogs at the factory and arranging the payment of the rent in exchange for using storage space at the shed.

17. In these circumstances the prosecution placed reliance on s.5 of the Drugs, Poisons and Controlled Substances Act 1981, for the definition of the meaning of "possession", the section providing -

"Without restricting the meaning of the word 'possession', any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary."

Reliance was also placed on s.73(2) of the same Act.

22. The applicant now seeks leave to appeal against conviction on a number of grounds, but it is necessary to mention only two, ground 7, that the judge failed to direct the jury as to the concept of common law possession, and ground 10, that the judge erred in his directions on possession generally and in several specific respects.

25. During the charge, the learned judge said to the jury in relation to possession that "to possess something consists of two elements, a capacity to exercise control over the thing possessed and an intention to enjoy such a capacity." His Honour continued -

"Section 5 of the Act extends this definition by providing that any substance upon any land or premises occupied - note the word - occupied by the accused, or any substance used, controlled, or enjoyed by the accused in fact shall be deemed to be in his possession unless the accused satisfied the court - that is you - to the contrary. In other words, what the Act says is that if you are satisfied beyond reasonable doubt that the accused man occupied 10 Freedman Street, then the substance, the cannabis, is deemed to be in his possession unless he satisfies you to the contrary. What does that mean? It means this: that once you are satisfied that the accused man occupied the shed - and by occupation I do not mean sitting there 24 hours a day in the same way as someone occupies a site, or in a forest, or something like that. 'Occupies' means in this context someone who at will can come and go to the premises. Enter the premises. Do things with the premises. In that sense, that is the relevant sense of occupation. Once you are satisfied that the accused man occupied the shed between - note the time frame - 26 January and 26 May 1999 because that is the period in the presentment, he is deemed to be in possession of the crop - of the cannabis, unless he satisfies you that it is more likely than not that he did not occupy the premises, and the principal way in which the accused has sought to do that - that is to satisfy you that it is more likely than not that he did not occupy the premises - is giving you an explanation of his involvement in the shed, from the witness box. He has called two witnesses as well, of course, and he relies on the whole of the evidence, but in the main, the principal way in which he has sought to prove to you that it is more likely than not that he did not occupy the premises, is his explanation from the witness box, so the key, if you like, to that onus which is placed on him really, in substance, revolves around his explanation that he has given you as to how he came to be involved in 10 Freedman Street."

These statements were made in relation to the elements of count 1.

30. Counsel for the applicant submits that these directions are erroneous in that it is fundamentally wrong to instruct that proof by the prosecution of occupation means possession is deemed unless the accused proves he was not in occupation. It is submitted that such a direction reverses the onus of proof and undermines the standard of proof, of occupation; and that it fails to address a fundamental issue, that of proof that the applicant was not in possession, as distinct from occupation. Reliance is placed on The Queen v. Clarke & Johnstone[1]. Counsel's submission was that the accused's principal line of defence had been first that the jury could not be satisfied beyond reasonable doubt that he occupied the premises; and secondly, that even if occupation was established, he was not in possession - because he knew nothing of the crop and had no intention to possess it.

33. In this Court Ms Pullen for the Crown conceded that it is apparent in the

judge's charge that the judge had confused "occupation" with "possession" in the passages referred to. Ms Pullen accepted that the judge had reversed the onus when instructing the jury that it was for the applicant to satisfy them to the contrary, that is, that he was not in occupation. Ms Pullen also accepted that the onus was on the prosecution to prove beyond reasonable doubt that the applicant was in occupation, and then having reached that point it was for the applicant to demonstrate to the jury on the balance of probabilities that he was not in "possession".

37. Although no clear exception was taken by defence counsel on this point, it is accepted by the Crown that the proviso in s.568(1) of the Crimes Act 1958 cannot be applied in the circumstances of this case, involving, as it does, a misdirection bringing about a reversal of the onus of proof. The Crown conceded that the Court should direct that there be a new trial of the applicant.

40. The submissions of counsel for the applicant set out above are, in my view, with respect, clearly correct, and properly conceded on behalf of the Crown to be so. The application for leave to appeal against conviction must succeed and there should be a new trial of the applicant.

The application for leave to appeal against conviction is allowed.

The appeal is treated as having been instituted and heard instanter and it too will be allowed. The conviction recorded below is quashed and we direct that a new trial be had.

A certificate is granted to the applicant under s.14 of the Appeal Costs Act.

[1] [1986] VicRp 64; [1986] V.R. 643 at 647-648 and 658-659.