R v Le Doan [2001] VSCA 142

2. The applicant on 9 October 2000 pleaded not guilty to a presentment which alleged that on 22 November 1999 she trafficked in heroin of not less than a commercial quantity (count 1) and had heroin in her possession (count 2). The first count was laid under s.71(1)(a) of the Drugs Poisons and Controlled Substances Act 1981 ("the Act") and the second under s.73 of the Act. After a trial lasting four days the applicant was convicted on 13 October. On 20 October the judge sentenced the applicant to be imprisoned on count 1 for five years and on count 2 for 18 months, making a total effective sentence of five years. A non-parole period of two years was fixed. The applicant now seeks leave to appeal against conviction.

5. Van Vui Nguyen ("Nguyen"), a co-offender in relation to the first count, pleaded guilty before a different judge to that count on 29 August 2000 and was also sentenced to be imprisoned for five years. In his case a non-parole period of 2½ years was fixed.

8. The Crown case in relation to the offences of which the applicant was convicted was as follows. Nguyen was the director and secretary of J. J.'s Star Clothing Pty. Ltd., located at Factory 16, 155 Hyde Street in Yarraville. At 8 p.m. on Monday, 22 November 1999, police officers were maintaining watch when they saw a white Toyota van driven by Nguyen with the applicant as his passenger arrive at the premises. Nguyen stepped out carrying a large blue bag, and proceeded towards the front door of Factory 16. The police officers then approached Nguyen and the vehicle where the applicant remained seated. In between the driver's seat and the applicant's seat was a yellow plastic bag, which was found to contain bundles of cash with a total value of $18,000. The applicant had a broken pelvis, a result of a car accident in which she had previously been involved. Her wheel-chair was in the back of the van. Both Nguyen and the applicant were arrested and then taken into the factory along with the two bags. Inside the factory, the blue bag carried by Nguyen was searched and was found to contain four blocks of compressed white powder wrapped in yellow plastic and bound with cellophane tape. The applicant admitted that the four blocks weighed 1402.1 grams, and contained heroin with an approximate purity of 50%. The blue bag also contained a National Bank cash bag holding $20,340 in notes. The police officers searched the factory premises including a bathroom which was found there. Inside a cosmetic box found on the shelf in the bathroom, police found a plastic bag containing a further quantity of compressed white powder, the total mass of which was 27.8 grams, again containing heroin with an approximate purity of 50%. Also on the shelf in the bathroom next to the box which contained the heroin was a set of electronic scales. Also in the bathroom was found a syringe.

11. The evidence of Detective Senior Constable Victor Anastasiadis, of the Victoria Police Drug Squad, which was tendered by consent during the trial was that the total weight of the heroin in the two quantities discovered above, 1429.9 grams, converted to just over 51 ounces. His evidence was that if sold on the street in ounce quantities the heroin would realise a return at between $6,500 and $7,500 per ounce, that is between $331,500 and $382,500. The admitted evidence was that heroin sold for between $350 and $500 per gram and that heroin street deals or caps each sold for between $30 and $50. If the heroin thus seized were sold per gram, it would realise a return of not less than $500,465. If it were broken down into 15 deals per gram, at then current purities, it would realise 21,448.5 street deals. If sold at $50 per deal it would realise $1,072,425. If it were cut to a purity of 30%, on the same basis it would realise up to $1,787,325.

14. During a record of interview with the police, the applicant said that she had known Nguyen for the past two years, that she and Nguyen had driven to Sydney the previous Friday and that they had returned to Melbourne on the day of their arrest. She said that the white van was hers. She said that on their return to Melbourne Nguyen said that they had to go to St. Albans, and in a street in that suburb Nguyen parked the van and walked away while she remained in the vehicle. When she asked Nguyen why they went to St. Albans, he told her that it was none of her business. She said that Nguyen came back with money and then added that Nguyen had returned to the vehicle with a plastic bag and she had asked him what it was. She said that Nguyen told her that it was none of her business. They then drove back to the factory at Yarraville where they were arrested. The applicant said that the blue travel bag was used by Nguyen to carry both his and her clothes. When asked if she had equal access to that blue bag, she stated that whenever she required any clothing, including when she had a shower, she asked Nguyen to get it for her. The applicant denied any knowledge of the cash or drugs found by the police. She admitted that she was a past user of heroin and would be able to identify heroin by tasting it. It was put to the applicant during questioning that a small black box next to the scales on the bathroom shelf in the factory contained a syringe and she was asked whose syringe it was. She replied, "It used to be mine". When asked if she had seen the scales which were next to the syringe, the applicant said, "I haven't touched - like, since I get on the methadone". She stated that she had been on methadone for almost four weeks. She also said that she had previously obtained heroin in Footscray, and that sometimes Nguyen obtained it for her. Evidence of the police witnesses who arrested the applicant was that the yellow plastic bag next to the applicant in the front seat of the van was open, beside her, and that when they looked across the applicant they could see money inside it.

17. Count 1 related to the quantity of heroin found in the blue bag being carried by Nguyen. Count 2 related to the smaller quantity found in the bathroom of the factory premises.

20. As to both counts the Crown relied on s.5 of the Act which provides -

"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."

The judge told the jury in relation to count 2 that the only element of the charge in issue was whether the applicant had in her possession heroin. Since the prosecution was relying on s.5, her Honour told the jury that if the Crown had satisfied them beyond reasonable doubt that "the heroin seized from the bathroom of the factory premises was found on land or premises occupied by the accused, then the accused is deemed to be in possession of that heroin for the purposes of the Act unless the accused satisfies you to the contrary." The applicant, however, denied on a number of occasions in her record of interview knowledge of the heroin, whether in the bag or the bathroom.

25. In relation to count 1, the prosecution also relied on s.73 of the Act which provides -

"(2) Where a person has in his possession, without being authorised by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the trafficable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence."

The verb "traffick" is defined inclusively in s.70 of the Act, and the prosecution relied on sub-paragraph (c) of that definition as including to "sell, exchange, agree to sell, offer for sale or have in possession for sale a drug of dependence."

30. The judge put to the jury that the issue in relation to count 1 was whether the Crown had established beyond reasonable doubt that the applicant "had heroin in her possession for sale and therefore trafficked in it". The Crown argued that the applicant used, enjoyed or controlled the heroin found in the blue bag. The applicant was registered as the owner of the van in which the bag had been brought from Sydney, and was sitting as a passenger in the van when it pulled up at the factory premises. The blue bag was used to carry her clothing as well as Nguyen's. Accordingly it was put to the jury that it was open to them to conclude that the applicant either controlled or at least exercised joint control of the bag in which the heroin was found. The defence case was that the applicant was merely a passive bystander and reliance was placed on the applicant's consistent denials of any knowledge of the heroin or the cash in either of the two bags.

33. I turn then to the grounds of the application, and I shall consider them in the order in which they were argued. Ground 6 was taken first, and claimed that the judge erred at law in instructing the jury that the applicant could control the heroin in conjunction with another for the purposes of s.5 of the Act.

36. The Crown case was that the applicant and Nguyen were both in control, and therefore, by virtue of s.5 of the Act, in possession of the heroin. There was ample evidence to entitle the jury to accept this view of the facts and counsel for the applicant accepted that s.5 can apply to joint possession or, as it was also put, direct control exercised jointly. The argument was, however, that in the circumstances of this trial there were various other ways in which the jury might have attributed guilt to the applicant, if, for example, the applicant was found to have aided and abetted Nguyen, or to have acted in concert with him in the commission of the offence. In so far as the applicant was said to be either aiding and abetting Nguyen or complicit or acting in concert with him, s.5 did not apply, so the argument ran, and in these circumstances it would have been necessary for the prosecution to prove, beyond reasonable doubt, that the applicant had the intention to commit the offence based on full knowledge or belief of the relevant facts; Georgianni v. R.[1]; R. v. Stokes and Difford[2]. It was argued that the deeming provisions of s.5 can have no application to an allegation of aiding and abetting trafficking by possession for sale; cf. Davis v. R.[3]; Krakouer v. R.[4].

39. During the trial counsel for the applicant objected to the judge leaving any form of joint responsibility, whether aiding and abetting, or acting in concert or otherwise, for the purposes of s.5. In the case of each of these, the prosecution was obliged, so it was said, to establish knowledge, and intent, and in the case of concert, agreement, and careful directions would have been required in each case during the judge's charge.

42. In this Court it was argued for the Crown that there was a strong case of joint possession without the necessity to rely at all on s.5 of the Act. Although s.5 was relied on at trial, the prosecution case did not in the circumstances need to rely on ancillary liability and the judge did not dwell on any aspect of ancillary responsibility. It was argued that the real issues had nothing to do with aiding and abetting and that "it was perfectly plain what these two were up to".

45. During the trial the prosecutor did, however, during his address to the jury, call in aid the notion of aiding and abetting. As the judge said during the charge -

"The Crown case is that you can readily infer from these facts that the accused either used or enjoyed the heroin in the sense of being party to or taking the benefit of the heroin or that she controlled the heroin or at least exercised joint control of the heroin contained in the carry bag, together with John [i.e. Nguyen]. The Crown further contends that the role which the accused played could be regarded as in the nature of a person aiding and abetting the direct physical handling and control of the carry bag and its contents by John." (Emphasis added.)

It must also be said that her Honour gave the jury no directions as to the concept of aiding and abetting, or as to the necessity for the Crown to prove both intention and belief of the facts required to establish aiding and abetting. In this Court it was made clear that this was the principal basis for the applicant's case under ground 6.

50. There can be no argument that the Crown case was a very strong one. There was an abundance of evidence as to the connection between the applicant and both the factory premises and the van. On the evidence the applicant's personal papers and other items remained in the factory when it was searched by police. The applicant gave the factory as her address in the record of interview with the police, and referred to it as her home. She accepted that she had resided in it for two weeks before her visit to Sydney and that she went with Nguyen directly to the factory premises on their return. There was evidence of the applicant occupying these premises on and off during Monday 22 November, including watching a video and changing her clothes. The evidence of the applicant's ownership and occupation of the van have already been mentioned, as also have the contents of the bag carried by Nguyen, and the open bag beside the applicant in the van, with the cash inside the bag plainly visible to an outside observer.

53. In light of all this evidence, there was a clear and compelling case of joint possession by the applicant and Nguyen of both bags before the jury, and the judge gave the jury straightforward and proper instructions as to such possession, particularly in the context of s.5 of the Act, at some length. In my view the real issues in this case had nothing whatever to do with aiding and abetting. The applicant's counsel argued that the jury may have been set off on a false trail by the reference to aiding and abetting. As to this, her Honour should, in my view, with respect, have told the jury to ignore any reference by the prosecutor to aiding and abetting. But I do not think that the jury could have been misled by the mention of this expression which was, in context, quite peripheral. Her Honour's directions on possession and control, were, I think clearly and properly given and adequate to ensure that the jury was not misled. I would accordingly reject this ground, but even if I had upheld it, I should have said that this was a clear case for the application of the proviso to s.568(1) of the Crimes Act 1958.

56. Ground 9 complained that the judge erred in failing to direct the jury to the effect that -

"(a) They must not convict on count 1 unless they reject beyond reasonable doubt the applicant's account to police, including her denials of trafficking; (b) Even if, by applying the deeming provision, they found that the applicant was in possession of the heroin the subject of count 1, they must still not convict on that count unless they reject beyond reasonable doubt the applicant's account to police, including her denials of trafficking; (c) Despite the `prima facie' provision in s.73(2) of the Act and in contradistinction to the deeming provisions in s.5, the burden of proving that the possession was for the purpose of sale remained on the Crown to the criminal standard."

60. The applicant's case here was that for the prosecution to establish that the heroin was in her possession for trafficking, it had to be emphasised that s.73(2) of the Act provided merely prima facie evidence, something quite different from the deeming provision contained in s.5. No point was made for the applicant of any distinction which may exist between various meanings of the expression "prima facie"[5]. It was submitted, however, that it had to be made very clear to the jury that the onus was on the Crown to establish beyond reasonable doubt that the applicant had heroin in her possession for the purpose of trafficking, and that in their consideration of this issue they should apply any reasonable doubts they may have retained as to the applicant's knowledge of the presence of the heroin, arising from her repeated denials of such knowledge in her record of interview with the police. It was submitted that it was necessary for the jury to be told what had been set out in the various sub-paragraphs of ground 9 to drive home this distinction.

63. There is nothing in this ground. The judge, when discussing the issue of trafficking, said several times in her charge that the jury had to be satisfied beyond reasonable doubt that the applicant had heroin in her possession for sale, and referred expressly in this regard to the defence submission that the jury should accept the applicant's consistent denials of her knowledge of either the heroin or the cash.

66. Ground 8 alleged that the judge erred in her directions on the onus and standard of proof in directing that -

(a) "If [some things] be proved [by the Crown], the onus switches to the accused to prove another thing in order to establish that she is not guilty"; (b) "Any fact or event which has to be proved by the accused is sufficiently proved if you form a belief that the fact existed or the event happened and you are entitled to hold such a belief simply because you considered the existence of the fact or the happening of the event more probable than not".

70. It was submitted for the applicant that the direction complained of in ground 8(a) is fundamentally wrong and that it was misleading and dangerous to speak of an onus on an accused to establish that she is not guilty. The obvious point was made that whether or not an accused is guilty as charged is a question separate from the operation of the deeming provisions. It was put that the difficult task of combining conceptually the application of ss.5 and 73(2) of the Act required careful and precise directions, and in this case the task was made all the more confusing by directions speaking of an onus on an accused to establish that she is not guilty. As to the direction set out in ground 8(b), it was submitted that that was in error because it constituted an attempt to define the civil standard of proof. Furthermore it failed in that endeavour, it was argued, since it was apt to set the standard too high by requiring the jury to "form a belief that a fact existed", and a belief may connote a very high degree of satisfaction.

73. The direction complained of in sub-paragraph (a) of ground 8 formed part of preliminary general instructions to the jury concerning onus and standard of proof. While the words quoted in the ground are not put in conventional terms, and, had they stood alone, would have risked misleading the jury, they were preceded and followed by substantial passages of the charge in which the judge directed the jury as to the onus and standard of proof in conventional terms and which were accepted by the applicant's counsel in argument as giving rise to no complaint at all. I do not think there is any substance in the complaint made in sub-paragraph (b) of ground 8. In my view, when the entirety of her Honour's charge with reference to what was said on the burden and standard of proof is read, the whole of ground 8 is seen to be without foundation. This conclusion is, I think, supported by the fact that no exception was taken to these aspects of the charge by the applicant's counsel, an experienced criminal practitioner. As was said in R. v. Wright[6], the failure to take exception would almost necessarily be taken by a Court of Criminal Appeal as an indicator that counsel present saw no injustice or error in what was done at the trial. This ground also fails.

76. Ground 7 claims that the judge erred in failing to leave a count of possession of heroin as an alternative to count 1.

79. The applicant's submission in this Court was that the trafficking alleged in count 1 was trafficking by possession for sale. It followed that there was evidence upon which a reasonable jury properly instructed could have found the applicant guilty of the alternative count of possession simpliciter. Accordingly, so the argument ran, that lesser alternative should have been left to the jury, for it is not clear that a properly instructed jury would necessarily have returned a verdict of guilty on count 1. The applicant's counsel did not ask the judge to put this alternative to the jury, but it was submitted before us that the failure to leave the alternative should result in a re-trial notwithstanding that the jury convicted of trafficking and notwithstanding the failure to ask that it be left. Particular reliance was placed on the recent decision of the High Court in Gilbert v. The Queen[7].

82. The facts in Gilbert were that the appellant, who had been convicted of murder, had driven his brother, another man and the victim to a remote place where the other two beat the victim to death. He had taken no part in the attack, but was found guilty of murder under the common purpose provisions of s.8 of the Criminal Code (Qld). The judge had directed the jury at trial that a manslaughter verdict was not open to them unless one, or both, of the primary offenders was convicted of manslaughter. After the appellant was convicted, the High Court ruled in R. v. Barlow[8] that it was possible under s.8 for an accessory to be found guilty of an offence different from that of which the primary offender was guilty. Before the High Court in Gilbert, it was common ground that in light of the decision in Barlow, the directions given by the judge were erroneous. It was submitted for the Crown, however, that no miscarriage of justice had occurred since the conviction turned largely on the appellant's knowledge of his brother's plans. It was the Crown case that if the appellant knew his brother intended to kill or cause grievous bodily harm, then he would indeed be guilty of murder. On the other hand, if he believed it was only his brother's intention to assault the victim, then manslaughter would have been an appropriate verdict. Although the direction given was in terms that the appellant was either guilty of murder or not guilty of any offence, the Crown case was that the jury must have decided as a matter of fact that the appellant had the requisite level of knowledge to support the verdict of guilty of murder. Accordingly, the misdirection which had occurred could have had no affect on the outcome. This was indeed the view taken by McHugh and Hayne, JJ. who dissented in separate judgments. The majority however held[9] that the test to be applied was whether a jury, properly instructed, would have necessarily returned the same verdict, and held that it was possible that a properly instructed jury may have reached a different conclusion. The Court of Appeal in Queensland, by majority, had concluded by reference particularly to certain admissions made by the appellant, that a properly instructed jury, acting reasonably, would inevitably have concluded that the appellant well knew that his brother intended, at least, to cause the victim grievous bodily harm. Gleeson, C.J. and Gummow, J. agreed[10] with the dissenting judge in the Court of Appeal that the admissions were not unequivocal, and although certainly damaging to the appellant, said that "a rational jury, properly instructed, could have failed to reach the state of satisfaction necessary for a conviction of murder."

85. In this Court counsel for the applicant argued that Gilbert was authority for the view that because there was evidence upon which a reasonable jury, properly instructed, could have found the applicant guilty of possession simpliciter, then the count should have been left because it was not clear that the jury, properly instructed, would necessarily have returned a verdict of guilty on count 1.

88. Gilbert was a most unusual case, in that the trial judge had, understandably in the circumstances, explicitly but erroneously directed the jury that a manslaughter verdict was not open to them unless one or both of the primary offenders was convicted of manslaughter. Although this state of affairs could plainly not be called unique[11], it is at least a possibility that the decision in Gilbert should be regarded as confined to the unusual circumstances of the case then before the High Court - that is, a murder trial in which the trial judge has wrongly removed from the jury's deliberations the opportunity of considering a verdict of manslaughter. An alternative possibility is that the ratio of the case is confined to trials for murder in circumstances upon which a jury properly instructed might bring in a verdict of manslaughter**.** In the joint judgment of Gleeson, C.J. and Gummow, J. all the cases cited in their Honours' reasons appeared confined to the murder/manslaughter dichotomy. Furthermore the particular significance of the alternative verdict of manslaughter in murder cases and the tactical basis for defence counsel to prefer to conduct a homicide case on a "murder-or-nothing" basis was explicitly referred to in their Honours' reasons[12]. The judgment of Callinan, J., however, is not so confined, relying on cases other than those involving the murder/manslaughter alternative[13] and his Honour also refers to the availability of a verdict for a "1esser offence" in a context plainly wider than the alternative of murder/manslaughter[14].

91. The question whether a judge is obliged to instruct a jury as to alternative verdicts for lesser offences in cases not involving murder/manslaughter has been discussed in various jurisdictions within Australia and elsewhere without any uniform approach having emerged. It is convenient to mention first R. v. Fairbanks[15], where the charge was causing death by reckless driving, and the trial judge declined to direct the jury on an alternative verdict of careless driving. In the course of delivering the judgment of the Court of Appeal, Mustill, L.J. said[16] -

"the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case has been presented to the court; for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations, it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense. We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and jury, and where the possibility of conviction for a trivial offence would be an unnecessary further complication. On the other hand the interests of justice will sometimes demand that the lesser alternatives are left to the jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater."

95. Fairbanks was approved in R. v. Maxwell[17] where the House of Lords said that the prosecution had been entitled to take the view that on the evidence there was a strong prima facie case of robbery and that the jury should not be distracted by an inappropriate alternative count of burglary; and further that the judge had been entitled to decline to leave the alternative of theft as being so relatively trifling that the jury's attention to the essential issue of whether the appellant had intended violence should not be distracted by it. Lord Ackner[18] quoted with agreement what had been said in the Court of Appeal that -

"The right course will vary from one case to another, but the judge should always use his powers to ensure, so far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence."

99. In South Australia the matter was considered at length in Benbolt[19] a case where the appellant was convicted on a charge of indecent assault, and it was argued on appeal that the trial judge should have left the alternative of attempted indecent assault to the jury. All three judges[20] said that the trial judge has a duty in summing up to direct the jury as to any alternative verdict that is open on the evidence, even if such a verdict has not been mentioned by counsel in their addresses. King, C.J., however, dissented taking the view (akin to that taken by McHugh and Hayne, JJ. in Gilbert) that a failure to direct the jury as to an alternative verdict of a lesser offence open to them does not entitled the accused to complain unless the failure had deprived him of a chance of acquittal of the major crime.

102. In Queensland the principal authority is R. v. Rehavi[21] where the appellant was convicted of doing grievous bodily harm with intent and his appeal was allowed because of the failure of the trial judge to direct the jury as to the availability of an alternative verdict of doing grievous bodily harm. The Court[22] said that -

"There is public interest in a fair trial and a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused. To shut the jury out from the lesser verdict compromised the verdict given. ... The appellant has thereby been deprived of the opportunity of a verdict on the lesser offence."

In R. v. Chan[23] Pincus, J.A. said of Rehavi that it was not authority for the view that the lesser verdict must always be left. In R. v. Willersdorf[24] Thomas, J.A. said after considering Rehavi that -

"Consistently with the authorities including Rehavi, I conclude that wherever an alternative verdict fairly arises for consideration on the whole of the evidence then failure to leave it to the jury prima facie deprives the accused of a chance of acquittal of the principal offence. A tactical request from defence counsel is a matter that must be taken into account in the overall assessment of miscarriage of justice, but it is not conclusive. The ultimate duty to ensure fairness rests with the trial judge, and this is not always achieved by acquiescing in the request of defence counsel."

108. In New South Wales the Court of Appeal considered these issues in Elfar[25] where the appellant was convicted of knowingly taking part in the manufacture of not less than a commercial quantity of amphetamine and it was contended that the trial judge had erred in not putting an alternative verdict to the jury of bringing in a guilty finding which did not refer to quantity. It had been submitted that the evidence was so imprecise as to relevant quantities that it remained open to the jury not to be satisfied that the amount was of the commercial quantity. The Court held that the Crown was entitled to go to the jury on an all or nothing basis and in so doing undertook no light onus of proof. The principal judgment was given by Sully, J. who said[26] that -

"When the technical refinements of the decisions in Gilbert and Rehavi have been mined to exhaustion, I am wholly unpersuaded that there was a miscarriage of justice to this appellant. Once his simple denial of any intended illicit manufacture of amphetamine was rejected, then every relevant incident of the remaining evidence pointed to the appellant's knowing participation in an enterprise of which it is fanciful to suggest that it was never contemplated as yielding more than 250g. of the prescribed drug."

Mason, P.[27] expressed reservations about the correctness of the principle for which Rehavi appears to be authority. His Honour said -

"I have no difficulty in accepting that Pemble[28] extends beyond the field of murder/manslaughter. However I wish to reserve my position as to whether a trial would miscarry merely because an alternative (lesser) offence available on the evidence is not left to the jury."

"I baulk at the proposition, ... that all alternative lesser offences prescribed by law must be left to the jury in every case. That would mean, in relation to some serious offences, that a veritable cascade of lesser offences would have to be left to the jury, irrespective of the Crown's position. The lengthening of trials and the distraction of juries from the real issues in the case arising from such an exercise are obvious. The futility of the exercise, in many cases at least, is also obvious."

116. If the decision in Gilbert extends beyond cases where murder is charged and manslaughter should be left as an alternative, there are plainly a number of questions left to be resolved for the future. I would merely say that I share the concerns expressed by Sperling, J. in Elfar as to the lengthening of trials and the distraction of juries from the real issues in the case.

119. There is, of course, another possibility that, at least where the accused is represented, the obligation of the trial judge to charge a jury as to a lesser offence may depend upon whether the prosecutor or defence counsel mentions that possibility and requests the judge to charge the jury in relation to the offence in cases where the judge has not decided to do so in any event. Such a possibility is not mentioned in the cases previously referred to, save, on occasions, to assert that the judge's obligation to direct as to lesser offences cannot depend upon the course taken by counsel. That this is so in relation to the murder/manslaughter alternative is well known and well understood.[30] In R. v. Salisbury[31] the applicant was convicted on a count of maliciously inflicting grievous bodily harm. One of the grounds raised on the appeal was that the judge should have directed the jury that they could find the accused guilty of one of the lesser offences of assault occasioning actual bodily harm, or common assault. The Full Court of Victoria (Young, C.J., Nelson and Harris, JJ.) said of this[32] -

"This is a somewhat paradoxical submission for an applicant for leave to appeal to make, for one would think that leaving alternative verdicts of conviction open to a jury would in most cases be calculated to reduce an accused's chances of an acquittal. In this case the paradoxical nature of the ground of appeal is further emphasised by the fact that when the matter was raised at the trial, it was raised by the Crown prosecutor and counsel for the applicant (who was not the same counsel as appeared for him in this Court) expressed the view that common assault was not an alternative to inflicting grievous bodily harm and did not ask that this alternative should be left to the jury."

In R. v. Wilson (Clarence)[33] the principal speech was given by Lord Roskill who referred to the decision in Salisbury describing it as "a most valuable judgment".[34]

124. Having mentioned the foregoing authorities it is not necessary, I think, for me to discuss further the problems raised by the differing approaches in the cases. It would, in my view, in the present case have been quite fanciful (as Sully, J. put it in Elfar[35]) to suggest that an alternative verdict of possession should have been put to the jury on count 1. The real question for the jury was whether the applicant was in possession of the relevant blocks of heroin. Having regard to the very substantial quantity of the drug in the bag carried by Nguyen, and the evidence as to its value, the jury, if they were prepared to disregard the applicant's denials of knowledge of the heroin or the cash, had very little alternative but to convict her on the count of trafficking. The applicant's defence to the charge was, in effect, a denial of possession, not of trafficking. Whether the test is treated as being that an alternative verdict should be mentioned if it was open on the evidence, or on the basis that it was necessary in the interests of justice, or if the alternative verdict fairly arises for consideration on the whole of the evidence, the circumstances of the present case do not in my view satisfy the test however framed. The jury had been told by the judge that in relation to count 1 the effect of s.5 of the Act, once the deeming provision came into operation, was that the applicant was deemed to be in possession unless she satisfied them on the balance of probabilities that she was not in fact in possession of the heroin, which in the context of the case meant unless she satisfied them that she did not actually know the heroin was there.

127. Blackley v. R.[36], which was not put to this Court in argument, should be mentioned as possibly giving some support to the applicant's case. There the applicant was charged with having in his possession a prohibited drug, ecstasy, with intent to sell or supply it to another contrary to s.6 of the Misuse of Drugs Act 1981. A comparable submission was made that the trial judge should have directed the jury regarding an alternative verdict of simple possession. The court took the view[37] that there was material before the jury which clearly raised an issue as to whether the "requisite standard of proof had been established of an intent to sell or supply", and accordingly held that the judge was under a duty to leave the alternative charge of possession to the jury. The Crown case related to a parcel (in which the ecstasy was discovered) addressed to someone other than the applicant, but at an address where the applicant and his wife resided. Inside the parcel were found five plastic bags containing a total of 750 tablets of ecstasy. No evidence was given as to the value of these drugs nor as to how many would have been required for a reasonable dosage in order for the drug to be used as a stimulant. The applicant gave evidence in his own defence saying that he had never used or taken ecstasy, had never bought any, and had never sold any. He said in evidence that he and his wife received much mail, most of which was not addressed to him or to his wife but to other people who might have lived in the house before them. He also said that his wife had received a telephone call and from that call he had heard for the first time of the addressee of the parcel. He said his wife told him that she had learnt from this telephone conversation that if any mail came for the addressee it was to be kept for that person. In these circumstances the court held that there was evidence before the trial court which clearly raised an issue as to whether proof had been established to the requisite standard of an intent to sell or supply. It is, I think, a very different case from the present.

130. In the present case, if the jury rejected the explanation given in the applicant's record of interview, as plainly they were entitled to, there was really no material that displaced the prima facie evidence of trafficking (s.73(2) of the Act). On the contrary, the amount and form of the heroin, including its concentration and the presence of the money in the open bag beside the applicant in the van all supported in the strongest terms that the heroin was possessed for the purpose of trafficking. In my view the judge was not therefore obliged to leave to the jury the lesser alternative of possession simpliciter, and ground 7 should accordingly be rejected.

133. Ground 1 claimed that the judge erred in the exercise of her discretion in admitting into evidence the finding of the syringe and evidence of the applicant's previous heroin addiction.

136. The submission of counsel for the applicant was that the only probative value of this evidence was in its tendency to disclose propensity and bad character. It was submitted that the evidence had no relevance to whether the applicant was in possession of or trafficking in heroin; the evidence, so it was said, was thus unnecessary and irrelevant, and simply prejudicial in effect. It should therefore not have been admitted.

139. There is clearly nothing in this argument. The evidence of the finding of the syringe was directly relevant to the heroin which was the subject of count 2. The defence case was that the applicant had no knowledge also of this smaller amount of heroin; and although the syringe belonged to the applicant, it had not been used for a period, during which the applicant had been using methadone. The prosecution, however, tendered the evidence of the syringe and her addiction specifically in relation to count 2 and the presence of the syringe, among the applicant's items, in close proximity to the heroin which was the subject of this count, suggested both her knowledge and use of that quantity of heroin. As such, it was, I think, clearly both admissible and relevant. Ground 1 also should be rejected.

142. Ground 2 claims that the judge erred in the exercise of her discretion in admitting into evidence questions 282-287 of the record of interview and the applicant's answers thereto. The applicant had been asked questions by the police as to the visit she and Nguyen had made to premises in St. Albans. She said that she was sleepy but that while they went to St. Albans, she sat doing cross-stitching all that time. The questions then proceeded as follows -

"282. Alright. And you didn't think it strange that he then puts a bag - a shopping bag with $18,000 cash ...? See, I didn't know about the ... 283. On the seat? Money. 284. What did you think it was in the bag? I didn't know. Because last time when I was in Sydney too, he buy 2 - me 2 bottle of perfume, too. Just - like, when I asked him what is in there, he said, `It's none of your business.' Well, may he buy present. 285. Except this was a - an old, used shopping bag? Is that right? I don't know. It's not ... 286. Did he - did he go into a shop where there could have been perfume or something like that? No. 287. So, it's not likely he's buying you a gift? Yeah, but I'm not - I - I ask him and he s-, that's what he said. U - , usually what - if he says `None of your business', I mean, I don't ask."

146. The submission was that this was cross-examination, and a far-fetched suggestion of illicit behaviour on another occasion. Counsel for the applicant, however, accepted that this ground alone (even if made out) would not bring down the verdict, but argued that in support of the material put on the other grounds it had the effect that the convictions should be quashed. Counsel for the Crown in response accepted that there was some cross-examination in these questions, but submitted that no harm had been done in leaving them in evidence and that there was really nothing in the argument. I agree, and would reject this ground also.

149. Grounds 3, 4 and 5 were not separately pursued.

152. Accordingly, the applicant's case on all grounds having failed, the application for leave to appeal against conviction should in my view be dismissed.

157. In my opinion this application for leave to appeal against conviction should be dismissed. I have had the benefit of reading the reasons for judgment of Charles, J.A. I consider that ground 7 fails for the reasons stated by his Honour in paragraphs 35 and 37. I need not consider views which his Honour has expressed about the cases which he has reviewed. In all other respects I agree with his Honour's reasons.

162. I also agree that the application for leave to appeal against conviction should be dismissed and for the reasons advanced by Charles, J.A. in his judgment that I have read in draft form.

[1] [1985] HCA 29; (1985) 156 C.L.R. 473 at 506-507.

[2] (1990) 51 A.Crim.R. 25 at 37-38 per Hunt, J.

[3] [1991] HCA 44; (1991) 66 A.L.J.R. 22 at 24.

[4] [1998] HCA 43; (1998) 194 C.L.R. 202 at [53].

[5] Cf. Cross on Evidence, 1996, [1600], [1605].

[6] [1999] VSCA 145; [1999] 3 V.R. 355 at 356, and 360-361.

[9] Gleeson, C.J. and Gummow, J. at [19] to [21] and Callinan, J. at [101] to [102].

[11] Cf. R. v. Jackson [1993] 4 S.C.R. 573.

[13] See e.g. Spratt (1982) 8 A.Crim.R. 361.

[19] (1993) 67 A.Crim.R. 11.

[20] King, C.J. at 17 and 22, Perry, J. at 25 and Duggan, J. at 28-29.

[21] [1998] 2 Qd.R. 640.

[22] Davies, J.A., Derrington and White, JJ. at 648.

[23] [2000] QCA 347 at [7].

[24] [2001] QCA 183 at [20].

[25] [2000] NSWCCA 255; (2000) 115 A.Crim.R. 64.

[28] [1971] HCA 20; (1971) 124 C.L.R. 107.

[31] [1976] VicRp 45; [1976] V.R. 452.

[33] [1984] 1 A.C. 242.

[36] Unreported, Court of Criminal Appeal of Western Australia, 31 May 1990.

[37] Per Brinsden, J. at p.12, Malcolm, C.J. and Wallwork, J. concurring.