R v Harman [2009] VSCA 78

2 Accordingly and upon the date of the hearing of the application, the following orders were made:

(a) Application for leave to appeal against conviction on count 1 granted;

(b) Appeal against conviction on count 1 is treated as instituted and heard instanter and is allowed;

(c) The conviction sustained on count 1 below is quashed and the sentence passed thereon is set aside;

(d) The Court directs a judgment and verdict of acquittal to be entered on count 1.

3 Aside from the above orders the matter of the application for leave to appeal, the conviction and sentence upon count 4 was reserved for judgment.

4 For the reasons expressed by Dodds-Streeton JA in her judgment, I agree that the application for leave to appeal conviction on count 4 should be allowed.

5 That raises the question of whether any order should be made for the retrial of the appellant upon counts 2, 3 and 5 which were alternatives to count 1 and upon count 4.

6 Counsel for the respondent conceded before us that it was open to the Court in the proper exercise of its discretion not to order a retrial of counts 2, 3 and 5. That concession was likewise properly made. He made no such concession in relation to count 4, his contention being that the application for leave to appeal conviction should be refused.

7 The appellant has served all of the nine months' imprisonment imposed by the sentencing judge on count 1. Indeed the pre-sentence detention of 322 days which the sentencing judge took into account under s 18 of the Sentencing Act 1993 exceeded the sentence imposed. The sentence imposed on count 4 was that the appellant was convicted and discharged. In the circumstances, the interests of justice are not served by an order for retrial on any alternative count to count 1 or on count 4.

8 The orders which should now be made are as follows:

(a) Application for leave to appeal against count 4 is granted.

(b) The appeal against conviction on count 4 is treated as instituted and heard instanter and is allowed.

(c) The conviction on count 4 sustained by the appellant in the court below is quashed and the sentence passed thereon is set aside.

(d) The Court directs a judgment and verdict of acquittal be entered on count 4.

9 The applicant, Anthony Harman, seeks leave to appeal against his conviction for trafficking in and possession of drugs of dependence.

10 By Presentment C07058551 filed on 28 July 2008, the following counts were preferred against the applicant:

Trafficking in a drug of dependence - counts 1 and 2;

Possession of a drug of dependence - counts 3, 4 and 5; and

Possession of an explosive substance without lawful excuse - count 6.

11 The applicant's trial in the County Court commenced on Monday, 28 July 2008. Evidence for the Crown was given over three days from 29 July 2008 to 31 July 2008. On 31 July 2008, at the close of the Crown case, the applicant went into evidence and called evidence from two other defence witnesses. The judge

commenced the charge on the same day and completed it the following day. Following discussion and a majority verdict direction, the jury convicted the applicant on counts 1 and 4. Count 1 related to trafficking methylamphetamine. Count 4 related to the possession of a single tablet of MDMA (ecstasy).

12 A plea was heard on 4 August 2008. On 5 August 2008, the applicant was sentenced as follows:

Count 1: nine months' imprisonment

Count 4: convicted and discharged

13 Pre-sentence detention of 322 days was declared pursuant to s 18(1) of the Sentencing Act 1991.

14 The applicant seeks to appeal on the following grounds:

GROUND 1: The trial of the Applicant miscarried in that the Learned Trial Judge erred in his directions to the jury by:

(a) failing to properly summarise the evidence;

(b) failing to properly summarise the addresses of Counsel; and

(c) failing to properly relate the law to the evidence.

GROUND 2: In the particular circumstances of this case the Learned Trial Judge erred in failing to direct the jury that for Count 1 they had to be satisfied that the Applicant was engaged in continuous trafficking activity over the whole or a substantial part of the charged period.

GROUND 3: The guilty verdict of the jury on Count 1 was unsafe and unsatisfactory.

15 Before us, the respondent conceded, correctly, as the Court indicated, that grounds 2 and 3 (which related to count 1) were established. Therefore, the only 'live' ground of appeal was ground 1, which related to the applicant's conviction on count 4. Count 4 arose from an incident which occurred on 14 September 2006 when the police located illicit drugs, including the ecstasy tablet, in a red Mitsubishi Magna which was being driven by the applicant, although it was owned by a friend, Adrian Carradine, who was a passenger at the time. The police apprehended the applicant after he had driven the car to a park near a football ground in Bayswater.

16 The applicant and Carradine were sitting inside the parked car when the police approached. The men alighted and the police searched the vehicle. A bag containing white powder, subsequently established to be methylamphetamine, was located in the footwell on the driver's side.

17 The police also located a black sunglasses case under the driver's seat of the vehicle. The sunglasses case contained another quantity of plastic bags containing white powder and a small tablet marked with an image of a bullet. The tablet subsequently proved to be ecstasy, the subject of count 4.

18 The police found a number of other items in the car, including a small tub containing small bags of off-white powder (subsequently established to be methylamphetamine) about $1,500 in cash, a knife, a set of digital scales and three mobile telephones.

19 On 15 September 2006, the applicant was interviewed by police. He stated that on the afternoon of 14 September 2006, he was sitting in the Mitsubishi Magna with Adrian Carradine, a longstanding friend, whom he understood to be the owner of the car. The applicant stated that he drove the car from St Vincent de Paul in Bayswater to a park near the football ground in Bayswater. He denied that when police arrived and he alighted from the vehicle, he knew 'that there was anything in the car that shouldn't have been in there'.

20 The applicant stated that he had driven the car a couple of times in the last week when 'Adrian' asked him to do so. He denied that either he or Adrian had used drugs while in the car and stated: 'I don't even know that's - the bags there - ... I drove the car ... I certainly didn't notice any'.

21 The applicant admitted that about $1,500 cash found in the car was his. He stated that it was mainly money received from a friend to buy a computer. The applicant conceded that a knife found in the car was also his property. He stated that he was in a knife collector's club and used the knife to remove bottle tops. The applicant stated that he owned the scales found in the car, which were used to weigh computer components. He conceded that a mobile telephone located in the car was his.

22 The applicant denied that he owned, or was even aware of the bags of white powder, the sunglasses case and its contents or the tub containing bags of white powder.

23 At trial, one of the arresting officers, Senior Constable Bremner, gave evidence that on 14 September 2006, at about 3 pm, he and another officer (Senior Constable Cliff) observed a man whom they suspected of being engaged in drug activity in the park near the Bayswater railway station. They approached a red Mitsubishi Magna and observed the applicant and Carradine sitting in the front seats talking. The applicant was sitting in the driver's seat. Senior Constable Bremner noticed the applicant leaning forward appearing to place something underneath the front seat. The occupants alighted and the car was searched. When a plastic bag was found under the footwell on the driver's side of the vehicle, the applicant and Carradine were arrested.

24 When cross-examined, Senior Constable Bremner agreed that no traces of drugs were identified on some items located in the car, including a muesli container, a green shopping bag, a set of digital scales, a spoon and magnifying glasses. He conceded that the applicant, when interviewed, denied that any of the substances were his and stated that various items belonged to Carradine. Fingerprint analysis was not conducted on the items found to contain drugs and DNA testing was not undertaken on any of the items found in the car. The witness could not contradict the applicant's evidence that the mobile telephones found in the car were not working. He agreed that the applicant said he was a member of a knife collectors club and had a club card in his wallet, although it had expired. He agreed that the applicant had told him he had been given cash to buy a computer.

25 Senior Constable Bremner agreed that the car was registered in the name of Adrian Carradine and that Carradine appeared to be substance and alcohol affected when the police approached the car. He described Carradine as being 'jittery and bouncy'. Carradine was charged with, and subsequently pleaded guilty to, possession of some of the drugs found in the car.

26 Senior Constable Cliff testified that she also observed Carradine to be affected by alcohol.

27 At trial, the applicant gave the following sworn evidence:

1. Carradine was an old friend who had grown up with the applicant in the same locality. However, the applicant had not seen Carradine for a period of some years when he met him again at a car yard shortly prior to 14 September 2006.
2. On 14 September 2006, the applicant's car broke down while he was in transit and he had telephoned Carradine to request a lift to an automotive spare parts retailer.
3. After Carradine picked him up, the applicant observed that he was obviously 'affected by something' which Carradine acknowledged to be alcohol and mood stabilizers (prescription medication). The applicant therefore asked Carradine to pull over so that the applicant could drive. Carradine agreed and the applicant thereafter drove, because 'I was nervous about Adrian's driving'.
4. The applicant received a text message from his girlfriend asking him to meet her and her children in the park that day. Carradine agreed to do this on the way to the spare parts retailer. The applicant met his girlfriend in the park and spoke to her for ten to 15 minutes.
5. The applicant and Carradine were stretched out in the car with the seats back when two police officers approached. The applicant was startled and automatically reacted by moving to turn on the ignition, but he denied that he reached under the driver's seat.
6. The applicant was unaware of, and did not recognise, the powder, the sunglasses case or the white bag containing the small tablet which the police located in Carradine's car.
7. The applicant was working casually trying to establish a business as a computer technician at the time of the 14 September 2006 incident.
8. The applicant agreed that some items found in the car belonged to him. He explained them as follows:

8.1. The applicant's sports bag contained his clothes, torches and personal items, including vitamin pills.

8.2. The applicant used a butane torch with a candle lighter for spa baths.

8.4. The digital scales were part of the applicant's tool case and were used to weigh computer parts and other items.

8.5. The magnifying glass was for the applicant's jewellery, watch repair and lapidary work.

8.6. The three non-working mobile telephones belonged to the applicant's acquaintances and he was to have them repaired.

8.7. The applicant frequently carried an overnight bag and tools which were used for computer and lapidary work.

8.8. The bulk of the cash found in the car was given to the applicant by a friend (one Howard) to build his son a computer system. About $400 represented the applicant's unemployment benefits.

28 In summary, the applicant explained that he was driving his friend's car because the friend who had picked him up that day was substance affected. He admitted that he owned a number of items located in the car, but denied that they were related to drug trafficking, instead proffering alternative explanations, such as his lapidary, computer and electronics work and his involvement in telephone repair. The applicant denied that he owned, or was even aware of, the illicit substances found in the car.

29 Anthony Howard gave evidence for the defence that he lent the applicant about $1,000 - $1,500 in cash to buy a computer for his son. He testified that the applicant mended computers and worked in lapidary. Justin Maloney, a friend of the applicant, gave evidence for the defence which was not related to count 4.

30 Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act') states:

5 Meaning of possession

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.

31 Prior to the delivery of the charge, defence counsel observed that pursuant to s 5 of the Act, the relevant substances must be under the accused's control before the onus was cast on him to establish that he had no knowledge of it. Counsel asserted that the judge was obliged to direct the jury that, notwithstanding s 5, the Crown case was circumstantial and they must therefore exclude any reasonable hypothesis consistent with the applicant's innocence. Essentially, that hypothesis was that the illicit substances were in Carradine's sole possession.

You are not looking for a reasonable hypotheses consistent with innocence... you are saying, in order to establish control, the Crown case is that in all the circumstances you should infer that these things were under the control at that point ... you say that they seek to reach that conclusion by way of a circumstantial case and they therefore have to exclude any reasonable hypothesis that they were not in his control.

...

It is an inference that they ask the jury to draw from all the circumstances that existed at the time.

Some of those circumstances are favourable to that conclusion, some of them aren't, but all in together, do all the circumstances paint a picture of him being in control of that item. I have taken it that there were no admissions in the record of interview...

No ...[1]

His Honour ultimately appeared to accept defence counsel's assertion. He stated:

In order for them to be satisfied of that, they have to exclude the hypotheses that these things were ... not under his control or joint control but under the control of Mr Carradine or somebody else. Mr Carradine I suppose is the logical nominee.[2]

33 Counsel for the Crown agreed with that proposition.[3]

34 Defence counsel also asserted that the jury should be reminded that the owner of the car was the applicant's co-accused.[4] The judge responded that ownership was not the only factor relevant to control and, if the applicant were driving, he had control of the car. Possession was, his Honour said, different from control, and required knowledge.

35 His Honour gave a detailed exposition of the deemed possession of substances under s 5 of the Act.

36 His Honour stated that the section in effect read, 'Any substance shall be treated as being in a man's possession so long as it is controlled by him unless he satisfies a jury to the contrary.'[5]

37 His Honour explained that according to the Crown case, the applicant had control of the relevant substances because he drove and parked the car they were in, thus controlling the car and the items in it. The jury could infer control from the facts and circumstances that the applicant was in the car, whether he drove it there, whether he parked it and the effect, if any, of the owner of the car being asleep beside him. (There was in fact no evidence that Carradine was asleep.)

38 His Honour explained that possession was a 'legal expression' different from control, which was a matter of fact.

39 His Honour informed the jury that, as a first step, they must be satisfied beyond reasonable doubt that the applicant had control of the substances. If not, the Crown would fail. If the jury were so satisfied, they must conclude that the applicant had possession for the purposes of the Act, unless he satisfied them on the balance of probabilities that he did not have possession, which effectively meant, in the context of the case, that 'he satisfied you that he did not actually know that these powders were in the car that he was driving'.[6] He is not saying 'I knew there were some powders there but I didn't know they were drugs.' His case is ... 'I didn't even know the powders were in the car'.[7]

40 His Honour reiterated those instructions in various forms. He explained that they applied to counts 1, 2, 3 and 4. He informed the jury that they were entitled to take into account all the circumstances and evidence.

41 His Honour relevantly summarised the Crown case on count 4 'in a nutshell' as follows:

So let me just again try and put this in a nutshell for you. The Crown case in a nutshell is, as I understand it, first of all that on 14 September a car being driven by Mr Harman at the playground he had control of and was in effect in possession of methylamphetamines and certain equipment. That is sufficient to establish Count 3, which is possession of the drug at that time at that place. The Crown then says he in fact was in possession of more than a trafficable quantity of that drug, 8.6 grams, so that amounts to trafficking or is prima facie evidence of trafficking, not just possession, but trafficking of that drug, of a drug of dependence, on that day at that time. That is Count 2 the Crown would say.

He was also in possession of some MDMA on that day in that car and that is enough to establish Count 4. Possession mind you, not just control, but possession the Crown has to establish and then on 5 November, some weeks later in a different car in a different place ...[8]

42 His Honour summarised the defence case 'in a nutshell' as follows:

Now again in a nutshell the defence case as I understand it is this: Mr Harman says I did not know that those drugs were in the car on either of these occasions. I am not saying - I knew there was something there, but I did not know it was a drug. I did not know that there was even the powders in the car, either car, at that time. I did not know that these various accoutrements as they have been called were in the car, the paraphernalia. There was some equipment or items of mine in some of these cars, but I have explained that to you, why I had them there. Some were for my jewellery interest, some I used for watches, some I used for my precious stones, some I used for my computer business, et cetera, et cetera. I have explained all that to you. They were there innocently and significantly he would say: look, if I had had anything to do with this my prints would have been on the things. They could have tested - they did have my DNA - they could have tested these packages for DNA or for fingerprints and that would settle it pretty quickly, would it not? They have not. You do not have that information. You cannot assume that I knew anything about them or that I had even touched them.

It will be a question for you whether or not some of these drugs found and the items that were found were obvious or out in the open or hidden. He says, Mr Harman, I did not see any of them there. It is all very well for the Crown to say they were at the feet. I did not see them, I did not know they were there. I told the police that as soon as they questioned me in my record of interview. I have told you again now on oath, that is the truth. If I was into all these drugs and so on you would think they would have found something in the house, would you not? They searched my house twice. They did not find a single thing by way of drugs in that house, so that is his case.[9]

I have to some extent tried to summarise for you the case put by the Crown and the case put by the accused, but I have advised, and I again repeat it, pay attention to what counsel have put to you rather than my imperfect summaries of them and only to a limited extent have I endeavoured to summarise the evidence for you. I think it is pretty clear, it is a short case. The factual issues are pretty short and counsel have been over them with you.[10]

44 His Honour also stated that he would 'very quickly run through' that part of the relevant evidence which related to 'what was found in the car and the circumstances in which it was found'.[11]

45 His Honour then described what was found in the vehicle on 14 September 2006. He stated that the applicant conceded that he drove the vehicle to the park. His Honour referred to the evidence of Senior Constables Bremner and Cliff that the applicant moved forward and appeared to place something under the driver's seat.

46 Defence counsel submitted that his Honour had not summarised the defence evidence. Counsel stated:

... your Honour summarised the evidence of the prosecution and at one stage, whilst Your Honour was doing that brief summary, Your Honour said "Well of course, Mr Harman said" and then Your Honour said "But I'll come back to that." And Your Honour then summarise[d] the prosecution evidence but didn't summarise, at that stage, defence evidence including the evidence of Mr Howard and Mr Harman.[12]

47 His Honour stated that he had not 'the slightest idea' of the relevance of the evidence of the two additional defence witnesses. As to the applicant's own evidence, his Honour stated:

What I was going to say and when I said I'd come back to that, I think I was going to say this and I didn't in the end, that on the question of control, at one point I was going to say to the jury: "Mr Harman on the first occasion tells you that he was driving his car because he didn't think Mr ...

Carradine was fit driving -

"Carradine was fit to drive, I think - couldn't have had the car under proper control. So he took over the driving of the car and you might think, members of the jury, thereby took control of the car and what was in it." I didn't say any of that.

...

You know my views about summarising the evidence, I don't think a trial judge should have to do it at all.[13]

48 His Honour concluded that he objected to summarising things 'for the sixth time'.[14]

Charging a jury - Common Law obligations of the trial Judge

49 In R v Thompson,[15] Redlich JA (with whom Neave JA (in part) and Hansen AJA agreed) restated the common law obligations of a judge in a jury trial summarised in R v AJS.[16] His Honour stated that the common law obligations included:

... an explanation to the jury as to how the law applies to the facts of the case, identification of the issues in the trial, relating the issues to the facts of the case and summarising so much of the evidence as is relevant to the facts in issue by reference to the issues in the case. These obligations subsume the judge's obligation to ensure that the prosecution and defence case is clearly placed before the jury, usually by summarising the addresses of counsel, on both sides.[17]

50 His Honour referred to 'the principle stated in Alford v Magee[18] that the law must be given to the jury with an explanation of how it applies to the facts, together with the concomitant obligation to identify the issues and the evidence relevant to those issues'.[19]

51 His Honour stated: 'In the oral charge, the jury's attention must ordinarily be drawn to the relevant evidence which bears upon the issues of fact in dispute'[20] including both ultimate facts in issue and the substratum of facts.

52 Redlich JA affirmed the remarks of Ormiston JA in R v De'Zilwa where his Honour identified 'the fallacy in assuming that jurors will recollect the same things that a trained and experienced lawyer would recollect'.[21] Moreover, Redlich JA acknowledged that the jury might not recognise the real significance of evidence at the time it was given, in relation both to other evidence and the parties' arguments.[22]

53 Redlich JA recognised that although the minimum assistance necessary for the required purposes must always be given, no particular form or means was prescribed. There was considerable flexibility because:

The level of particularity at which the evidence and arguments need to be summarised will vary, depending upon the nature of the issues and the circumstances of the trial. The summary should highlight the evidence which bears upon the resolution of the issues in the trial without an unnecessary recitation of unimportant evidence. But enough must be said to ensure that the jurors have sufficient knowledge and understanding of the relevant evidence and the issues to which they relate, to discharge their duty to determine the case according to the evidence.

Directions given in a very short trial involving a simple factual issue may differ considerably in their content from those required in a lengthy or more complex trial. It is for the trial judge to craft the oral directions in such a way that ensures that the oral exposition is sufficient**.** In R v VN it was recognised that in some circumstances, summarising the respective case for each party might satisfy the obligation of identifying the factual issues in the case by focusing the jury's attention on the real issues. And if in doing so, reference is also made to the evidence which each party relies upon in relation to those issues, that may be sufficient to satisfy the requirement that the evidence relating to the issues be summarised.

If the accused has given an account by way of sworn evidence or interview, there ought to be either a summary of that evidence, or alternatively the relevant parts of that evidence could be referred to in answer to each part of the Crown case as it is separately summarised. A failure to advert by some method during the charge to the substance of the applicant's account, will ordinarily mean that the case for the accused has not been adequately placed before the jury.[23]

It seems to be becoming increasingly frequent for judges in the County Court not to summarise the evidence, usually on the ground that the trial has been short and that the jury would therefore remember all that had been given in evidence. The present trial in fact took some six sitting days so that some of the evidence was given a week before the judge concluded his address to the jury. One should not assume that what a trained and experienced lawyer can recollect will be invariably the same as each member of the jury, without the same or any similar training, can recollect at the end of a trial.[24]

55 The observations of Ormiston JA were approved in R v Dao,[25] where the Court of Appeal added that the jury did not have the transcript and 'in any but the most straight-forward of cases'[26] it was necessary to remind them of the evidence which had been placed before them and relate the facts and issues to the charges. Their Honours stressed the importance of 'an even-handed summary relating the evidence to the issues'.[27] They stated that the charge should provide 'a summary of the relevant evidence or of the arguments which counsel have offered to the jury in their final addresses'.[28]

56 In R v VN,[29] Redlich JA similarly stressed that the trial judge's summary of the arguments or other identification of the factual issues in the case was necessary in order to eliminate the otherwise substantial risk that the accused would not receive a fair trial. His Honour stated: 'By some means or other, the attention of the jury must be drawn to the issues and the evidence upon which the defence relies'.[30]

57 In R v Andrakakos,[31] ('Andrakakos') Ormiston JA (with whom Winneke ACJ and Buchanan JA agreed) rejected the defence's contention that the trial judge's summary was inadequate. In Andrakakos, the accused did not give evidence. The trial judge had recited matters contained in the accused's record of interview on which the Crown relied and reiterated the defence's contention that the Crown had failed to make out its case to the necessary standard. Ormiston JA concluded that 'there was little more that could have been said on this issue'.[32] His Honour considered that (although the trial judge had not described any matters favourable to the accused contained in the record of interview) the totality of the material suggested that the judge had, throughout, reiterated the burden resting on the Crown. Moreover, his analysis drew together the relevant parts of the evidence and contentions on each side, so that the jury could 'most conveniently grasp the essence of what the Crown had to prove and the way in which that case was being denied'.[33]

58 Ormiston JA stated that although the trial judge did not set out every answer given in the course of the police interview, the 'gist of those answers, especially that part relied upon by the counsel, were appropriately summarised'.[34] Therefore, no important part of the defence case was omitted.

59 The authorities make clear that in some circumstances, particularly where there is a short trial involving straightforward facts and issues, the trial judge's fundamental obligations in charging the jury may be appropriately discharged by a very succinct summary of the principal arguments and evidence comprising the Crown and defence cases.

60 In the present case, it was not, in my opinion, necessarily inappropriate to provide a 'nutshell' summary of the parties' respective arguments and evidence. The issues were relatively straightforward, the facts were not complicated and the trial was relatively short. An elaborate, highly detailed summary would have been repetitive and would have served little purpose, given the short time which had elapsed since the evidence of the parties and counsels' addresses.

61 Even the most succinct summary must, however, be accurate, even handed and include the principal evidence and fundamental arguments relied on by the parties. In my opinion, the charge in the present case failed to satisfy those minimum requirements, because the summation of the defence case omitted (despite defence counsel's objection, to which the trial judge somewhat ambivalently appeared to accede) a number of important aspects of the applicant's evidence crucial to his argument that he did not have control of the illicit substances within the meaning of s 5 of the Act.

62 The summary omitted to remind the jury of the applicant's evidence that:

(a) Carradine was the registered owner of the car in which the drugs were found;

(b) Carradine had picked the applicant up after his own vehicle broke down in order to drive him to a spare parts retailer;

(c) Carradine was initially driving, but when he appeared substance affected and unfit to drive, the applicant took over;

(d) the men drove to the park en route, in order to meet the applicant's girlfriend after he had received a text message from her;

(e) Carradine had been charged with and pleaded guilty to possession of some of the drugs located in the car.

63 The applicant elected to give a substantial account of events in his record of interview and to go into evidence at trial, thereby subjecting himself to cross-examination. He was entitled to a summary of the evidence or so much as was relevant to answer the Crown case, so that the 'substance of [his] account'[35] was appropriately adverted to, 'the jury's attention drawn to the issues and evidence on which [his defence relied]'[36] and 'an even handed summary relating the evidence to the issues'[37] was given.

64 The summary of the applicant's case was incomplete and ultimately inadequate. It could not be said that the substance of the applicant's account was summarised even handedly with the evidence in support of the Crown case. Furthermore, the evidence was not adequately related to the charges.

65 Before us, the respondent contended that it was unarguable that the accused had control of the car and therefore any illicit drugs located in it, as there was no dispute that he was driving it and intended to put the key in the ignition. On that basis, the deficiencies, if any, of the charge would make no material difference.

66 I am not persuaded that the deficiencies of the charge occasioned no prejudice. Section 5 of the Act provides that a substance will be deemed for the purposes of the Act to be in a person's possession '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' (emphasis added). It is not clear that control of a car is necessarily equivalent to occupation of land or premises and would invariably suffice to establish possession of the drugs located in it. While driving a car has been recognised to confer possession of the substances in it[38], that conclusion might not invariably follow. If control of a car did not amount to occupation of land or premises, it would be necessary to prove that the applicant had use, enjoyment or control of the drugs in order to establish deemed possession under s5 of the Act. The preliminary question of control of the car was, in any event, a matter of fact for the jury, as the trial judge acknowledged.

67 It is unnecessary to determine the inter-relationship and significance of the various elements of s 5 of the Act in the present context, because, on any view, the summary omitted, despite defence counsel's exception, several significant elements of the applicant's case and the evidence which he chose to give on oath. Even if the jury clearly recalled that evidence, which was given shortly before the charge, its omission from the 'nutshell' summary may have suggested to the jury that it did not warrant any weight.

68 While the Crown case against him appeared strong, the applicant had, on the basis of his evidence, a chance of acquittal on count 4 which was lost due to the omission of material elements of his account from the summary of the defence case.

69 In my opinion, the applicant should be granted leave to appeal against his conviction in respect of count 4. The appeal should be treated as instituted and heard instanter and should be allowed. In all the circumstances, where the appellant was convicted and discharged on count 4 and the other sentence imposed has already been served, a retrial on any count should not be ordered. The conviction in respect of count 4 should be quashed and a verdict of acquittal entered in respect of that count.

70 I have had the advantage of reading in draft the reasons for judgment of Kellam and Dodds-Streeton JJA and agree with the judgment and the orders proposed for the reasons given.

[15] [2008] VSCA 144.

[16] (2005) 12 VR 563; [2005] VSCA 288.

[17] R v Thompson [2008] VSCA 144, [134] (citations omitted).

[18] (1952) 85 CLR 437; [1952] HCA 3.

[19] R v Thompson [2008] VSCA 144, [136].

[21] [2002] VSCA 158; (2002) 5 VR 408, 410; [2002] VSCA 158.

[22] R v Thompson [2008] VSCA 144, [137].

[23] Ibid [138]-[140] (citations omitted).

[24] R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408, 410.

[25] (2005) 156 A Crim R 459; [2005] VSCA 196 (Buchanan and Vincent JJA and Byrne AJA).

[29] (2006) 15 VR 113; [2006] VSCA 111 (Maxwell P, Buchanan and Redlich JJA).

[31] [2003] VSCA 170.

[35] R v Thompson [2008] VSCA 144, [140].

[36] R v VN [2006] VSCA 111; (2006) 15 VR 113, 144-45.

[37] R v Dao [2005] VSCA 196; (2005) 156 A Crim R 459, 464.

[38] See, for example, R v Edwards (1998) 2 VR 354; (1997) 94 A Crim R 204; R v Brooks [1974] AC 862; R v Hiep Tan Tran [2007] VSCA 19, [21] (Redlich JA).