R v Tragear [2003] VSCA 222

2. On this application I regret to say that I have reached a different conclusion from the other members of the Court on the issue critical to their conclusion that the application should be granted and the appeal allowed. Because they have reached that conclusion, it would serve little purpose for me to examine the case in detail and it is sufficient that I briefly express my reasons for reaching a different conclusion on the issue relating to the reception on each count of evidence of the applicant's alleged possession as charged in the other count. (I am referring here to what Callaway, J.A. has described[1] as counts 1 and 3 which were the principal counts at the trial.)

5. The issue was whether this evidence was "propensity evidence" within the meaning of s.398A(2) of the Crimes Act 1958. Having regard to the reasons of the majority, it is not a case where evidence ought not to have been led at the trial or at any future trial, but only one where the jury should be properly warned against using the facts relating to the one count in considering their verdict on the other count. Accepting the need for some warning, I still find it difficult to conclude that this was the kind of propensity evidence which the judge ought to have concluded was unjust to admit as relevant to the other count despite its prejudicial effect. The question on appeal is, of course, whether it was wrong for the judge to have "consider[ed] that in all the circumstances it [was] just to admit it despite any prejudicial effect it may have on the" applicant. One may concede that in a limited sense it was "similar fact" evidence, although in the one case the applicant's possession was static, in that it was shown that the cocaine was found in a bag in a chest of drawers in his bedroom, whereas in the other the trafficking alleged consisted in the collecting of a knapsack filled with cocaine from a tanning studio owned by the applicant. Moreover, one may readily concede that it would not have been proper for the jury to argue from the fact that on one occasion he had kept a traffickable quantity of cocaine in his bedroom and thus had the "propensity" of a possessor of a traffickable quantity of that drug to the conclusion that he knew on some quite separate occasion that the contents of a bag collected were cocaine. Clearly a propensity to use or deal in cocaine would not be sufficient.

8. That, however, was not the gist of the present case as I perceive it. The two events did not occur months or even days apart; they took place on the very same day. Indeed the evidence showed that the small bag of cocaine found in his bedroom drawer was discovered in a police raid at about 2.30 p.m., within an hour of another police raid on the applicant at about 2.45 that same afternoon while he was picking up the knapsack from his tanning studio which contained a larger quantity of cocaine, albeit of a somewhat different grade. Indeed, if the first raid had taken place less than half an hour later, he would have been in possession, at least notionally, of the cocaine in the bedroom at the very same time he is alleged to have collected the knapsack filled with cocaine from the tanning studio.

11. The important thing, however, is that so far as each container was concerned the applicant denied knowledge. As to the bag in the bedroom he denied knowledge of the cocaine in the sense that he said he did not know that the bag was there at all and suggested that it might have belonged to a female friend who lodged with him intermittently. On the other hand, on the trafficking count, the bag admittedly collected by him from the studio and in fact belonging to the same friend, was undoubtedly filled with cocaine, but his answer to that charge was that he was quite unaware of the presence of the drug and that he believed it contained something else. These are the matters as to which he gave evidence at the trial.

14. Whether or not these matters went to the likelihood that he was the sort of person who would commit one or the other offence, the real issue was whether his explanation for both events could stand the light of day inasmuch as it was argued by the Crown that such a coincidence of ignorance as to both large and small bags and their contents was too great for the jury to accept. Of course, the jury could not be asked to reach a conclusion purely upon want of coincidence: the evidence was merely part of a circumstantial case upon which the Crown relied. Neither fact had

to be established beyond reasonable doubt for the purpose of a circumstantial case. Indeed, adopting what Callaway, J.A. said in R. v. Best[2]: "The jury were entitled to consider that the [evidence], when taken together, made it more probable that each was [accurate]. All [the] evidence could therefore be received as mutually supportive of [the] respective allegations."

18. In the present case I see no reason why the jury should not have been asked to use the evidence, propensity evidence or not, for the purpose of reaching conclusions as to events so closely related. I do not feel that it was wrong for the judge to consider that in all the circumstances it was just to admit that evidence despite the prejudicial effect it might have. The section assumes the possibility of some prejudice; the question in each case is whether that overrides its evidential value. In the circumstances I do not believe there was any error in the judge's decision under s.398A or in his direction to the jury[3] on this matter. I would therefore have rejected the relevant ground.

21. As I am in the minority on this issue, it is unnecessary to consider the other grounds but I should not be taken as differing from the observations of Callaway, J.A. on those grounds.

26. On 4th December 2001 a presentment was filed in the County Court containing six counts. Count 1 charged that the applicant trafficked in cocaine at Williamstown on 3rd September 1999. Count 2, which was an alternative to count 1, charged that he had cocaine in his possession at Williamstown on that date. Count 5 charged that he had cocaine in his possession at Altona North on the same day. Count 6 charged that he also had anabolic steroid in his possession at Altona North. The intervening

counts, counts 3 and 4, charged trafficking in methylamphetamine and, in the alternative, possession of methylamphetamine at Williamstown, also on 3rd September 1999.

30. The applicant was arraigned and pleaded not guilty to counts 1 to 5 and guilty to count 6. An application was made to sever the presentment in relation to counts 3 and 4. The learned trial judge granted that application. His Honour considered that, even if a separate consideration direction were given, there was a risk that, if the jury were satisfied that the applicant possessed either cocaine or methylamphetamine, they would conclude that he was a drug dealer and wrongly infer that he must have been in possession of, or trafficked in, the other substance as well.

33. The applicant was again arraigned on counts 1, 2 and 5. (I shall hereafter refer to them as counts 1, 2 and 3 and to count 6 as count 4.) He was found guilty on counts 1 and 3. No verdict was taken on the alternative count 2. He had already pleaded guilty to count 4. At the separate trial in relation to the methylamphetamine counts, the jury were discharged without verdict and the proceeding was adjourned to a date to be fixed.

36. After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on count 1 to six years' imprisonment, on count 3 to two years' imprisonment and on count 4 to 14 days' imprisonment, making a total effective sentence of six years' imprisonment. A non-parole period of four years was fixed and a declaration made regarding 13 days' pre-sentence detention.

39. The applicant seeks leave to appeal against both conviction and sentence. Although the notices are quite general in their terms, I understand them to apply only to the convictions sustained on counts 1 and 3 and to the sentences imposed on those counts.

42. The grounds of appeal against conviction, substituted by order of the Registrar made on 9th September 2003, read:

"1. The learned trial judge erred: (a) in directing that, in considering counts 1 and 2, the jury could take into account a finding of possession in relation to count 3 and that, in considering count 3, the jury could take into account a finding of possession in relation to counts 1 and 2; (b) in failing to direct, with any particularity, how the evidence of possession on one count could be used in proof of the other/s, and as to the limits of that use; (c) in failing to give a propensity direction. (Charge at 127, 133-134 & 140) 2. The learned trial judge erred in his directions on possession; and, in particular: (a) the directions tended to reverse the onus of proof of occupation (in the case of count 3); (b) the judge failed to direct that, if the jury were satisfied beyond reasonable doubt that the applicant was in occupation (count 3) or that he controlled the drug (count 2), he must nevertheless be acquitted if the jury were satisfied on the civil standard either that he did not have control of the drugs to the exclusion of others not acting in concert with him or that he was not aware of the drugs or had no intention to possess them. (Charge at 135-138 & 145-148) 3. The learned trial judge erred in his directions on the issue concerning whether there was female clothing in the drawer; and, in particular, the direction that that issue `is a matter for you as to whether you accept the evidence of the policeman or the evidence of the accused man as to that' tended to reverse the onus of proof. (Charge at 140) 4. The learned trial judge erred in his directions on trafficking (count 1); and, in particular, he erred: (a) in directing that, if the jury found that the applicant was in possession of the cocaine found in the knapsack, `you look at the amount, and you hear what Parliament has said about prima facie evidence, and decide whether you are satisfied beyond reasonable doubt that he was trafficking'; (b) in failing to direct that, in order to find the applicant guilty on count 1, the jury had to be satisfied beyond reasonable doubt that the applicant knew of the presence of the drug and was concerned in its commercial movement from producer to consumer; (c) in failing to direct to the effect that, even if the jury were satisfied of the possession alleged in count 2 because, say, they were satisfied on the criminal standard that the applicant controlled the drug but were not satisfied on the civil standard that he did not possess it, it was nevertheless open to them to acquit on count 1 on the basis that they were not satisfied on the criminal standard that the applicant knew of the presence of the drug or was knowingly concerned in its commercial movement from producer to consumer; (d) in failing to relate the law to the evidence on this topic. (Charge at 134-135, 137 & 147-149) 5. The verdict on count 1 (trafficking in cocaine) is unsafe and unsatisfactory; and, in particular, given the basis upon which the count was left to the jury, no reasonable jury could have been satisfied beyond reasonable doubt that the applicant trafficked in the cocaine found in the knapsack in the car. 6. The learned trial judge erred in failing to direct the jury to the effect that the applicant was not bound to give evidence, that he assumed no onus of proof by choosing to give evidence and that the jury were entitled to give him credit for taking the oath and subjecting himself to cross-examination. (Trial at 101-106, 107-115, 121, 123 & 142-143) 7. An aggregate of errors caused the trial to miscarry."

46. The facts are in a narrow compass and the trial was short. The jury were empanelled at 3.27 p.m. on 4th December 2001 and counsel made their final addresses to the jury the following afternoon. His Honour's charge began at 2.18 p.m. on 6th December 2001 and the verdicts of guilty were returned at 2.28 p.m. the next day.

49. At about 2.45 p.m. on 3rd September 1999 police were conducting surveillance of a tanning studio in Williamstown of which the applicant was the owner. They saw the applicant arrive driving a silver Ford sedan, which he had rented because his own car was being repaired. He parked opposite the studio and went inside. About five minutes later he returned to the car carrying a knapsack, which he put under the front seat. He started the engine and was approached by a woman who had just left the studio. She stood by the driver's window talking to the applicant. Senior Constable John Thompson walked across, identified himself and asked the applicant to get out of the car. The woman left and Thompson searched the vehicle. The knapsack was found to contain a green cloth drawstring bag, inside which was a clear plastic bag, sealed and containing white powder. The studio was searched and the applicant was taken back to the St Kilda Police Station and interviewed.

52. Earlier that day the police had also searched the applicant's home at Altona North. A "bum bag" containing two clear plastic bags full of white powder was located in a chest of drawers in his bedroom. There was a dispute as to the clothing found in the room. That dispute is reflected in ground 3, but the conclusion I have reached makes it unnecessary to say any more about it.

55. The white powder found in the knapsack and in the chest of drawers was found to be cocaine, although not apparently from the same batch. The certificate of analysis showed different levels of purity and the larger of the two amounts found in the chest of drawers was in a compressed form. All the cocaine found in the knapsack was in powder form.

58. The applicant gave evidence at the trial. He said that he had lived in the house at Altona North for four or five years and that, in September 1999, he shared it with Sandra Cassar, Summa Johnstone and Blair Stiles. On 3rd September he had gone to the studio to say goodbye to one of his employees who was finishing up. Summa Johnstone had asked him if he would pick up her knapsack for her. He had not seen it before, but he knew which one to take because it was the only one in the staff room. He said that he did not know that it contained an illegal substance.

61. The bum bag did not belong to him either. He said that he took a lot of vitamins and powders for muscle building, which he kept in small Tupperware containers. Sometimes he used to stay in South Melbourne at his sister's house and he had not stayed at the house at Altona North for a few nights prior to 3rd September. He said that he shared the drawers in the bedroom with Summa Johnstone.

64. In the course of his charge, at page 127, the judge said:

"In this particular case the Crown asks you to infer the guilt of the accused man in so far as the cocaine in the knapsack is concerned, because the Crown says he also had cocaine in his chest of drawers at home. It asks you to infer that the nature of his possession at the home necessarily points to knowledge of what was in the knapsack. It also asks you to infer that the sheer quantity of the cocaine in the knapsack points to the fact that the accused man was trafficking."

"The fact that there are two different transactions brought before you - that is to say, the Williamstown transaction, or the knapsack transaction, if you like, on the one hand, and the chest-of-drawers transaction, on the other - at the same time, is done as a matter of convenience. Strictly speaking, there could be two separate trials, one in respect of the knapsack, and one in respect of the chest-of-drawers. Were that to be done, you might well think it would be a great waste of taxpayers' money, and a waste of jurors' time - and you would be right. So, as a matter of convenience, both transactions are brought before the same jury at the same time. But you must not let that convenience usurp justice.[4] The accused man is entitled, as is the Crown, to a separate consideration by you, of each of those two particular transactions. It is quite wrong for you to say, if you find him guilty of one that he must be guilty of the other. Or, if you find him not guilty of one, then he must be not guilty of the other. The same reasoning may be used by you, in respect of both transactions, but you cannot, simply because you find him guilty of one, therefore find him guilty of another. It would, therefore, be quite wrong to find the accused guilty of possessing cocaine at his home, simply because you find him guilty of possessing cocaine in the knapsack, in the car, or vice versa. Nevertheless, you could certainly take the fact of that possession into account. That is to say, you could, in considering count 3, take into account, should it be the case, that you're satisfied beyond reasonable doubt that he did have cocaine in his possession, in the knapsack, in the car. Conversely, you could, in considering counts 1 and 2, take into account, if it was the case, that you were satisfied beyond reasonable doubt that he had possession of the cocaine found in his house." (Emphasis added.)

The reference to page 140 in ground 1 is to that part of his Honour's summary of counsel's final addresses where he reminded the jury that the prosecutor had said that they could safely infer that the cocaine in the chest of drawers was the applicant's and, if so, that he knew perfectly well that he had cocaine in the knapsack.

71. Ground 1, as argued, raises two distinct issues. The first is whether the fact that the applicant had possession of the cocaine in the knapsack, if that fact were established beyond reasonable doubt, could be taken into account in deciding whether he had possession of the cocaine found in the chest of drawers and vice versa. The second issue is whether, if those facts could be taken into account in that way, the judge gave adequate directions to the jury about permissible and impermissible modes of reasoning.

74. The first issue relates to admissibility. The evidence tending to establish the applicant's possession of the cocaine in the knapsack, as direct proof of the offence charged in count 2 and as a step towards proving the offence charged in count 1[5], and the evidence tending to establish his possession of the cocaine in the chest of drawers (count 3) were admissible at the trial because all three counts were before the jury and no application to sever them had been made or granted. Nevertheless the first issue is to be tested as if there had been separate trials on the counts relating to Williamstown and the count relating to Altona North. As his Honour correctly said, there was a single trial solely for reasons of convenience.

77. It is important to notice that his Honour did not direct the jury that the evidence relating to the alleged possession of the cocaine in the chest of drawers could be used to determine whether the applicant possessed the cocaine in the knapsack and vice versa. It was the fact of his possession of the cocaine in the chest of drawers, if established to the jury's satisfaction beyond reasonable doubt, that could be used in determining whether he possessed the cocaine in the knapsack and vice versa.

80. Section 398A(2) of the Crimes Act 1958 provides:

"(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence."

84. For the reasons explained in R. v. Best[6], the propensity evidence referred to in sub-s.(2) is not limited to similar fact evidence.[7] This is, however, a species of similar fact evidence, where the risk of prejudice is ordinarily at its highest.[8] The basis of its admissibility was not explored at the trial and no exception was taken to the parts of the charge that are now impugned. Perhaps the simplest analysis is that the evidence was thought to be admissible because it was too much of a coincidence that the applicant possessed cocaine at both places on the same day.

87. The effect of s.398A(2) is that the evidence on one count is admissible on another count only if its probative value is sufficiently great to make it just to admit that evidence despite any prejudicial effect it may have.[9]

90. The applicant's defence to counts 1 and 2 was that the knapsack belonged to Summa Johnstone and he did not know that it contained cocaine. His defence to count 3 was that Summa Johnstone shared the chest of drawers with him and he did not know that a bag containing cocaine was in one of the drawers. He claimed, therefore, that the evidence at both places was at best equivocal and for the same reason: the Summa Johnstone factor had to be taken into account in both cases. In those circumstances, in my opinion, the evidence tending to prove the applicant's possession of the cocaine in the chest of drawers was not admissible under s.398A(2) for the purpose of proving his possession of the cocaine in the knapsack or vice versa. But his Honour did not say that it was. What was said to be admissible was the fact of the applicant's possession if that fact were established beyond reasonable doubt.

93. Does the fact of possession of the cocaine in the chest of drawers, if established beyond reasonable doubt, satisfy the test in s.398A(2) in relation to counts 1 and 2? Does the fact of possession of the cocaine in the knapsack, if established beyond reasonable doubt, satisfy that test in relation to count 3? If there had been separate trials relating to Williamstown and Altona North, could the evidence of possession in the other suburb have been led as evidence of an uncharged act, provided there was a direction that the jury could not use the evidence unless they were satisfied beyond reasonable doubt that it proved the applicant's possession at that other place?

96. Uncharged acts rarely have to be proved beyond reasonable doubt, for they are almost always part of a circumstantial case. They are not links in a chain but strands in a cable.[10] At a separate trial relating to Williamstown, neither the evidence relating to Altona North nor even the fact of the applicant's possession of the cocaine in the chest of drawers would be a link in a chain. It would only be a strand in the cable of circumstantial proof.

99. The most favourable interpretation of the direction the judge gave was that the evidence tending to establish possession was not admissible per se, because it did not satisfy the test in s.398A(2); but the fact of the applicant's possession would be sufficiently probative notwithstanding its prejudicial effect and the prejudicial effect of the evidence led to establish it; and, accordingly, the jury were directed, for prudential reasons, that they must first be satisfied beyond reasonable doubt that the applicant possessed the cocaine at, say, Altona North before they used it to infer guilt at Williamstown.

102. Prudential directions, including prudential directions concerning the standard of proof to be applied to a particular fact or issue, are sometimes appropriate.[11] In the present case, however, the net effect was not so very different from permitting evidence of a previous conviction, as, for example, if the Altona North trial had been held first and the applicant convicted. There is also the difficulty that the probative value is less if one turns the example around. Whatever probative value the Altona North evidence or possession may have had in relation to Williamstown, the Williamstown evidence or possession was less probative in relation to Altona North.

105. In the end the task of the Court is to apply the criterion in s.398A(2) as it has been explained in the cases. It has often been emphasized that the application of that criterion does not involve a discretion. The admissibility or otherwise of propensity evidence is a question of law.

108. In my opinion, in all the circumstances of this case, not even evidence proving the fact of the applicant's possession of the cocaine at one location was sufficiently probative to make it just to admit that evidence, despite its prejudicial effect, in relation to the other location.[12] It is not as if there were three or four locations or the cocaine came from the same batch or there were no risk that the jury would mistakenly consider the evidence relating to both places together, rather than first establishing possession at one place by reference to the evidence relating to that place on its own. This was not an improbability of coincidence case of the kind exemplified by R. v. Best or R. v. MCG[13]. It was more like R. v. Cogley[14], but I do not base my decision on that case.[15]

111. For these reasons, I would uphold ground 1(a). It is unnecessary to consider the second issue raised by ground 1[16]

because, at a re-trial, the jury should be given a separate consideration direction without any invitation to apply the evidence or their conclusions on count 3 to counts 1 and 2 or vice versa. If that is done, no further propensity warning should be required.[17] Unlike R. v. Mateiasevici[18]

, the failure to take exception to the italicized words quoted in [20] above cannot be explained by any forensic advantage.[19]

118. The only ground that would lead to a judgment and verdict of acquittal, and then only on count 1, is ground 5. Counsel advanced four reasons why the verdict on that count should be set aside because it is unreasonable or cannot be supported having regard to the evidence[20]:

(a) There was no evidence of drug paraphernalia, whether at the tanning studio or in the car that the applicant had hired or at the applicant's home, and no evidence of the value of the cocaine or of betterment or of any commercial element.

(b) There was no evidence of any person to or from whom the cocaine was being moved, other than the applicant's own evidence that Summa Johnstone had asked him to collect the knapsack for her.

(c) The applicant testified that he did not know of the cocaine in either location, that he shared the house with others and shared the bedroom and drawer with Summa Johnstone, that her clothes were in the drawer and, by implication, that he was not acting in concert with her. He denied that he was involved in trafficking.

(d) The Crown did not call as witnesses the other people who were at the tanning studio or any of the other occupants of the house at Altona North.

124. I can well understand why no oral argument was advanced on this point. (The four reasons are to be found in counsel's written outline of submissions.) It was well open to the jury to conclude, in his Honour's words in the course of his sentencing remarks, that the applicant was a courier who was caught red-handed.

127. It follows, in my opinion, that the convictions on counts 1 and 3 should be quashed and the sentences passed on those counts set aside and that the Court should direct a new trial to be had on counts 1, 2 and 3. There is no need to consider the application for leave to appeal against sentence, but it is desirable to refer to two matters raised by the application for leave to appeal against conviction that have a bearing on the new trial.

130. First, Mr Grace submitted that the Crown could not use both s.5 and s.73(2) of the Drugs, Poisons and Controlled Substances Act 1981 to prove trafficking. Section 5 and s.73(2) read, and read at the relevant time:

"5. 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.

...

73(2) Where a person has in his possession, without being authorized 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 traffickable 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."

134. If their respective conditions precedent are satisfied, s.5 has an uncontested application to counts 2 and 3 and s.73(2) has an uncontested application to count 1. The question is whether s.5 may be used to establish the possession referred to in s.73(2). In my view s.5 can be used that way. There is nothing in either provision to exclude that construction and s.5 expressly says that its deeming is "for the purposes of this Act". That is unambiguous. It should be added that the words "for the purposes of this section" should not be read into s.73(2). There is no reason to do so and, if it had been intended that s.73(2) be purely ancillary to s.73(1), it is likely that its concluding words would have reflected the language of s.73(1)(a)(ii) and (b) by referring to a "purpose related to trafficking", rather than trafficking as such. It is inappropriate to read either provision down simply because it forms part of a statute creating criminal offences.[21]

137. Counsel relied on two cases. The first, R. v. Bilick and Starke[22], dealt with provisions that were materially different from those with which we are concerned. Section 5(4) of the Narcotic and Psychotropic Drugs Act 1934 (S.A.) provided that a person who knowingly had in his possession more than a prescribed quantity of any drug to which that Act applied should be deemed to have that drug in his possession for the purpose of trading in the drug unless the contrary was proved. That had reference to the offence created by s.5(2)(d). It was held that it did not have reference to the offence created by s.5(2)(c).[23] As King, C.J. said[24], it was important to observe the place which sub-s.(4) occupied in the structure of the section.

140. The other case was R. v. Doan[25]. In my opinion, all that Charles, J.A. was saying in the passage on which Mr Grace relied[26] was that there was nothing in counsel's submissions because the points he said should have been covered had been covered in the charge. Moreover, the Crown relied on both s.5 and s.73(2) to establish trafficking in that case[27] and counsel's submissions were consistent with the

distinction drawn in [43]-[44] below. [28]

144. Accordingly, at the new trial, to use s.5 in relation to counts 1 and 2, the Crown will have to prove beyond reasonable doubt that the cocaine in the knapsack was controlled by the applicant but, if that burden is discharged, the applicant will have to prove on the balance of probabilities that in fact he did not possess that cocaine.[29] If possession of not less than the trafficable quantity is so established, such possession in that quantity is prima facie evidence of trafficking in accordance with s.73(2). The difference between the proof of possession under s.5 and the prima facie evidence of trafficking under s.73(2) was explained by the Full Court in R. v. Clarke and Johnstone.[30] Immediately before that passage in their Honours' judgment they expressly said that the Crown may rely on both s.5 and s.73(2).[31]

147. I turn to the second matter that has a bearing on the new trial. It may be assumed that the applicant will again say that he did not know that the cocaine was in the knapsack and did not know that the cocaine was in the chest of drawers and accordingly that he did not possess the cocaine on either occasion. In that case, even if the Crown successfully invokes s.5 in relation to counts 1 and 2 to establish possession, it will still have to prove beyond reasonable doubt that the applicant knew of the cocaine in the knapsack in order to secure a conviction on count 1. Otherwise he would lack the requisite mens rea, of which s.73(2) is only prima facie evidence.

150. It is particularly important in a case like this that the jury be clearly instructed on that last point so that, in relation to count 1, they do not confuse -

(a) the onus on the applicant to prove that he did not know of the cocaine in order to prove that he was not in possession;

with -

(b) the onus on the Crown, even if he was in possession and of an amount that is prima facie evidence of trafficking, to prove that he did know that it was cocaine.

BATT, J.A.:

156. I agree with Callaway, J.A., whose reasons for judgment I have had the benefit of reading in draft.

159. Because the question raised by ground 1(a) is, to my mind, by no means easy, I state briefly in my own words the essential reasoning leading me to conclude that the ground must be upheld. The Director contended that the fact (if so found beyond reasonable doubt by the jury) of the applicant's possession of cocaine at one place was admissible on the question whether he had possession of cocaine at the other place because it went to the probability of whether or not cocaine could be found on the same day in two places closely connected with the applicant without, as the latter claimed, his knowing of its presence in either place (or, perhaps after the assumed finding, in the second place). The argument was one of improbability of coincidence. The Director contended that use of the finding in that way was "a pure exercise of logic", as opposed to an exercise in propensity reasoning. In my opinion, however, in the absence of further features strengthening the improbability, the probative force of the probability reasoning espoused by the Director was not strong. The strength which it may seem to have had flows largely from reasoning which will, I believe, be found on examination to be in fact propensity reasoning, which is not permissible.[32] I consider that, within the meaning of s.398A(2) of the Crimes Act 1958 as expounded in R. v. Best[33], the probative value of the probability reasoning properly available here was in all the circumstances not sufficiently great to make it just to admit, on the question of possession at the second place, the fact of possession at the first place despite the prejudicial effect it might, and would, have on the applicant.

[2] [1998] 4 V.R. 603 at 618. I am not suggesting that what he now says in this case is inconsistent with that proposition: only that, if properly admitted, it would be relevant in the suggested way.

[3] I would have taken his Honour's reference to "the fact of possession", in the context, as meaning "the fact that he knowingly possessed etc."

[4] I have edited this passage slightly.

[5] Drugs, Poisons and Controlled Substances Act 1981, s.73(2).

[6] [1998] 4 V.R. 603 at 606-607, 611-612 and 616 (point 1); R. v. Cogley [1999] VSCA 123; [1999] 3 V.R. 366 at [14].

[7] See, for example, R. v. GAE [2000] VSCA 18; (2000) 1 V.R. 198; R. v. Loguancio [2000] VSCA 33; (2000) 1 V.R. 235 and R. v. Mong [2002] VSCA 203; (2002) 5 V.R. 565 (relationship evidence).

[8] R. v. Best at 612 and 616; R. v. Cogley at [17].

[9] R. v. Best at 607 and 616 (point 2); R. v. Mateiasevici [1999] 3 V.R. at [23]-[24]; R. v. Cogley at [15].

[10] R. v. Best at 618-619; R. v. Loguancio at [9].

[11] See, for example, R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123 at [21] and R. v. Heaney [1999] VSCA 169 at [32].

[12] Another consideration supporting that conclusion may be that the "fact" of possession may have been proved solely by means of s.5 of the Drugs, Poisons and Controlled Substances Act. I say no more about it, because the point was not argued.

[13] [2001] VSCA 17. It was not like R. v. Mateiasevici either. Among several points of distinction in that case is the location of two heroin presses: see especially [15].

[14] See especially the last sentence of [21] in Buchanan, J.A.'s judgment.

17] R. v. J. (No. 2) [1998] 3 V.R. 602 at 614 and 638-643.

19] By contrast, the absence of exception may well have been fatal to ground 1(b) and (c). Compare R. v. Mateiasevici at [33]-[37].

[20] Crimes Act 1958, s.568(1).

[21] Beckwith v. R. [1976] HCA 55; (1976) 135 C.L.R. 569 at 576; Waugh v. Kippen [1986] HCA 12; (1986) 160 C.L.R. 156 at 164-165.

[22] (1984) 36 S.A.S.R. 321 especially at 330

[25] [2001] VSCA 142; (2001) 3 V.R. 349.

[28] See especially the third sentence of [18], in which the important words are "for the purpose of trafficking".

[29] R. v. Gluyas [2002] VSCA 12; (2002) 128 A.Crim.R. 7; R. v. Clarke and Johnstone [1986] VicRp 64; [1986] V.R. 643 at 658-660.

[32] See, for example, R. v. Best [1998] 4 V.R. 603 at 615 and 616.