R v Tran [2007] VSCA 19

1 I have had the advantage of reading in draft the reasons for judgment of Redlich JA, and the concurring judgment of Neave JA, and I agree with their Honours that the applications for leave to appeal against conviction and sentence should be refused. I wish, however, to add some brief observations concerning the applicant's first and principal ground of appeal.

2 As appears in Redlich JA's reasons, the applicant was presented for trial on one count of trafficking in a drug of dependence, namely, heroin, contrary to s 71AC of the Drugs Poisons and Controlled Substances Act 1981, and an alternative count of possessing a drug of dependence, namely, heroin, based on evidence that police had found a traffickable quantity of heroin concealed in the applicant's bedroom and elsewhere in the premises at which the applicant lived at 7 Renbold Place, Mulgrave.

3 The Crown relied on s 5 of the Act, which provides that a substance shall be deemed for the purposes of the Act to be in possession of a person so long as it is upon premises occupied by him unless the person satisfies the court to the contrary,[1] and on s 73(2) of the Act, which provides that where a person has in his possession a drug of dependence in a quantity of not less than a traffickable quantity applicable to that drug of dependence, his possession of the drug is prima facie evidence of his trafficking in that drug.

4 The defence case was that although the applicant lived at the premises, the drugs belonged to Vo, who also lived there and trafficked in drugs, but that the applicant did not know that Vo trafficked in drugs or of the existence of the drugs.

5 Consistently with the way in which the defence case was conducted at trial, the judge directed the jury that:

"If you are satisfied that [the applicant] was in occupation of the premises in which the goods were found, if you are satisfied of that beyond reasonable doubt, then he is to be treated as being in possession of the heroin for the purposes of the Act and therefore, unless he satisfies you that it was not his possession, which boils down in this case to unless he satisfies you that he did not know it was there or, if he did know that the powder was there, he did not know that it contained heroin.

For the purpose of this case, possession ... means custody or control of something, plus actual knowledge at the time that the powder was in the house and that the powder contained heroin. Possession can be defined if you like, this way. One has in one's possession whatever is to one's knowledge physically in one's custody or under one's control or in respect of which one has the means of exercising control. That means that if [the applicant] knew that there were these powders in the house and that they contained heroin and had physical control or custody of them, by virtue of his occupation, then he was in possession of them. It does not matter whether he had sole possession of them, or possession jointly with another, or possession by means of an agent or anything like that.

You can have physical control or custody of something without having it in your hands at the moment. You have physical control or custody of the contents of your handbags ladies, even though you might have left them in the jury room. You have physical control or custody of your furniture, even though it is at home and you are here. A husband and wife can jointly have physical control or custody of the furniture, even though neither of them is at home at the relevant time, and therefore each has control or custody.

So in this case [the applicant] has to satisfy you of one of these things: either that he did not know that there was this substance or powder in the house, or in his bedroom, or that he did not know that it contained heroin.

...[2]

...At the end of the day on this limited issue you might ask yourselves; do I have a belief or a comfortable satisfaction that it is more likely than not that [the applicant] did not know that...this substance was there or did not know that it contained heroin?"

6 Now, despite the fact that the judge's directions on possession accorded precisely with the way in which the defence case was conducted at trial, the applicant seeks leave to appeal on the ground[3] that the judge should have left to the jury as an alternative view of the facts open on the evidence that, even if the applicant knew that the drugs were secreted at the premises, the applicant was not in possession of the drugs because the drugs belonged to Vo and because the applicant did not intend to exercise control over drugs that belonged to Vo.

7 Such a fundamental shift from the way in which the defence case was conducted at trial calls to mind Gleeson CJ's observation in Doggett[4] that the manner in which a trial is conducted and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Consequently, when an accused person has been convicted, and appeals, and there is an attempt to present the defence case in a new way, it is necessary, when evaluating criticisms of a trial judge's directions to a jury, to relate those criticisms to the manner in which the trial was conducted.

8 But as against that, the law since Pemble[5] has been that, whatever course counsel may see fit to take, even if for tactical reasons in what is perceived as the best interests of the accused, a trial judge must give an adequate direction as to the law and the possible use of the relevant facts upon any matter on which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or part.[6]

9 So, despite the way in which the defence case was conducted at trial, if there had been a basis on which the jury could have reached the view on the balance of probabilities that the applicant knew of the existence of the drugs but did not intend to exercise control over them, I accept that it would have been incumbent on the judge to leave that to the jury as a possibility and to direct them accordingly.

10 As it happens, however, I share Redlich JA's view that it was not open to the jury on the evidence to conclude on the balance of probabilities that the drugs belonged to Vo and that the applicant knew that they were secreted at the premises but he was not in possession of the drugs because he did not intend to exercise control over them.

11 There was evidence and a concession on the part of the Crown that Vo was a drug trafficker and that he was trafficking from the premises. Thus, perhaps, there was a basis from which to infer that the drugs belonged to Vo. But, assuming that the applicant knew where the drugs were located, and ex hypothesi it must be so assumed for the purposes of the suggested alternative view of the facts, the facts were really the antithesis of something that made it more likely than not that the applicant did not thereby intend to exercise control over the drugs. Knowledge on the part of the applicant that the drugs were so located either implied that he consented to their being so located, and thus that he intended to exercise control over them, or, alternatively and more precisely, if the fact that the applicant knew that the drugs were so located, was capable of supporting any conclusion, it could only be that the applicant was more likely than not so to have intended.

12 I have had the advantage of reading the draft judgment of Redlich JA. For the reasons that his Honour gives, I agree that the application for leave to appeal against conviction, and the application for leave to appeal against sentence should both be refused. I have also had the advantage of reading in draft the reasons of Nettle JA, and I likewise agree with his Honour's view that it was not open to the jury on the evidence to conclude on the balance of probabilities that the drugs belonged to Vo and that the applicant knew that they were hidden on the premises, but that he was not in possession of the drugs because he did not intend to exercise control over them.

13 On the afternoon of 29 November 2002 police searched a home occupied by the applicant at 7 Renbold Place, Mulgrave. At those premises the police discovered and seized a number of items from a chest of drawers in the main bedroom. In the top drawer was a set of scales, a bag of white powder, a plastic tackle box and some balloons which contained 24.8 grams of heroin. In the bottom drawer were some plastic bags, balloons and foil. In another drawer were some plastic bags containing white powder which was a cutting agent. In the same drawer was 55.9 grams of heroin wrapped in packaging tape. In a cupboard behind the mirrors in the toilet area to the left of the main bedroom the police found a gel container with foils inside which contained 0.9 grams of heroin. In a silver tin which was open on the kitchen bench the police found two orange balloons which contained 7 grams of heroin. A total of 88.6 grams of heroin was recovered from the premises. A trafficable quantity of heroin is 3 grams.

14 The Crown presented the applicant on one count of trafficking in a drug of dependence and one count of possessing a drug of dependence. At the applicant's trial, it was the Crown case that he possessed the heroin for sale found in the house, and that he had sold heroin from the premises on 29 November 2002. The Crown accepted that the applicant's friend, Minh Vo, who stayed at the premises from time to time, also sold heroin from the premises, but alleged that Vo and the applicant were both involved in trafficking, either separately or jointly. The applicant's defence was that the drugs were Vo's, and that he was unaware of Vo's trafficking from the premises.

15 The applicant was interviewed by police in relation to the search on 25 June 2003. In that interview, he admitted that he had lived at 7 Renbold Place before the search (although he claimed that he was away on a trip to Sydney on the day when the search was conducted), and that he occupied the master bedroom of the premises. He denied having any knowledge of heroin being in the house or of any trafficking in heroin from the premises. He did not know to whom any of the items found in his bedroom belonged.

16 The applicant's trial in the County Court began 9 November 2005. The learned trial judge instructed the jury that, given the way the Crown presented its case, the second count was effectively an alternative count and the applicant could only be convicted on one of the charges against him. On 16 November 2005 the jury returned a verdict of guilty on count one (trafficking in a drug of dependence). The applicant now seeks leave to appeal against his conviction and his sentence.

17 It is convenient to consider grounds 1 and 3 together as the same issue is raised by both grounds:

"1. The learned trial judge erred in his directions to the jury as to the effect of s 5 of the Drugs, Poisons and Controlled Substances Act 1981, and, in particular, in directing the jury that if they were satisfied that the applicant was the occupier, the applicant was deemed to be in possession unless he satisfied the jury on the balance of probabilities that he did not know the powder was there or did not know that it contained heroin.

3. The learned trial judge erred in his answer to the question put by the jury, in that he failed to instruct the jury that, if on the balance of probabilities, they were satisfied that Minh Vo was trafficking drugs from the house and the heroin found related to that business, but the applicant was not involved in that business, they must acquit the applicant."

Whether a direction as to intention to exercise control was necessary

18 The Crown's case that the applicant had possession of the heroin rested upon proof beyond reasonable doubt that the applicant was in occupation of the premises on which the drugs were found. Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act") provides that a substance is deemed to be in the possession of a person if it is on premises occupied by him unless he satisfies the Court to the contrary. Consequently, once the Crown establishes that the accused is the occupier, the accused must satisfy the Court on the balance of probabilities that he was not in possession of the drugs.[7]

19 The applicant's defence involved a denial that he was an occupier or that he had any knowledge of the presence of drugs on the premises. It involved a denial that Minh Vo was a drug trafficker or that the applicant trafficked in heroin or had ever given Minh Vo heroin. Although the applicant denied in his interview that he had any knowledge that there were drugs in his bedside table or that he had any knowledge of the presence of heroin on his premises, there was ample evidence relating to those issues upon which the jury could have reached a contrary conclusion.

20 The judge directed the jury on the basis that the applicant was deemed to be in possession if the jury was satisfied that the applicant was the occupier of the premises. The direction as to the applicant's occupancy of the premises included, as required, a direction as to the control necessary to establish occupancy. As Vincent JA observed in R v Phung:[8]

"[T]he jury had to consider whether the applicant could be said to have been in practical control of the premises at the relevant time, bearing in mind that in consequence of making that finding (unless he satisfied the Court to the contrary) he would be deemed to be in possession of what was found there. The ability to control access would, of course, be crucial in answering the question."[9]

21 One of the underlying rationales for the deeming provision is the fact that a person will not be an occupier unless they have a requisite degree of control over the premises so as to be able to control access to it,[10] and hence be able to control access to the substance which they are alleged to possess. So a person who has control over a building will have possession of a pocket book dropped within it.[11] A person driving a car will have possession of the items in the boot.[12] A person with the sole key to a locker will have control over the items in the locker.[13] Even in a shared house, a person who can control access by hiding an item will have the necessary degree of control over it.[14]

22 The directions given to the jury by his Honour concerning occupation of the premises are not in issue nor is it alleged that the evidence was insufficient to establish the applicant's occupation. The contention advanced on the applicant's behalf under grounds 1 and 3 is that the jury was not adequately directed as to what would constitute possession so that the jury could determine whether it had been established by the Crown or disproved by the applicant.

23 A person proved to be in occupation of the premises is deemed to be in possession, as it is understood at common law, unless he proves that he was not in possession of the substance.[15] The elements of common law possession are "the corpus and the animus, the first consisting in a certain physical relationship between the propositus and the thing, the second consisting in a certain mental attitude on his part towards it."[16] Possession requires both physical dominion over the subject matter and an intent to exercise control.[17] That is to say, for the person to be in possession, there must be physical control of the subject matter accompanied by the intention to exercise control. At common law, knowledge of the presence of the item by the occupier of the premises will generally provide the basis from which the necessary intent can be inferred.[18]

24 If the jury were satisfied that the drugs were on premises occupied by the accused,[19] the physical element of custody or control of the substance and the mental elements of knowledge and intent to possess or control the substance[20] would be deemed to be satisfied as a consequence of s 5.[21] To overcome the effect of the deeming provision in s 5, an occupier of a premises must satisfy the jury, on the balance of probabilities, that he or she was unaware that the drug was on the premises or had no intention to exercise control over the drug or the place where it was kept.

25 The evidence as to the applicant's state of mind (knowledge and intent) was to be found in his answers in his record of interview. He had told the investigators that he occupied the master bedroom at 7 Renbold Place where the drugs were found in his bedside drawer. He said that he had no knowledge of any of the heroin found by the police in the house and had never seen any heroin in the house. He denied that he had ever taken any heroin into the house or been in possession of any heroin and did not know to whom the scales and balloons located in his bedroom belonged. He said that he did not know that the heroin was in his bedroom. The jury rejected his explanation.

26 A conclusion that a person is the occupier within the meaning of section 5 of the Act may, depending upon the circumstances, leave open an issue as to whether they knew of the presence of or were in "control" of the item found on the premises.[22] Deemed possession would be disproved if it were shown, on the evidence, as more likely than not that one of these elements of possession did not exist. The applicant would not have possession of the heroin if he did not know of its presence or intend to exercise dominion or power over it.[23]

27 As in the present case, if an issue arises from the evidence as to whether the occupier had knowledge of the presence of the substance, a direction to the jury as to that element would be required. Similarly, where there is evidence that the occupier did not intend to exercise control over the substance, a direction to the jury as to that element of possession would be required.

28 The trial judge, in directing the jury as to what it was the applicant would have to establish if he was to disprove possession, instructed the jury that the burden thrown upon the applicant would only be discharged if he satisfied the jury on the balance of probabilities that he did not know the drugs were on the premises or that the powder contained heroin. This direction was said to be deficient. It was submitted that proof that the applicant had a knowledge that the substance was on his premises and knew what that substance was, did not establish the necessary animus to exercise control over the substance and would therefore be insufficient to constitute possession. Mr Nash QC, who appeared with Mr Dickinson on this appeal, argued that proof that the applicant occupied the premises, including a bedroom, and had knowledge of the presence of the drugs, did not establish that he had possession in the absence of proof that he exercised control over the drugs. Based upon this proposition it was submitted that the trial judge was bound to direct the jury that the applicant would disprove possession if, on the balance of probabilities, he established a lack of control or a lack of intent to control the heroin that was on the premises. The directions given were said to be inadequate as they did not involve a direction as to the element of an intent to control the substance.

29 Counsel for the applicant further submitted that such a direction was necessary because there was evidence from which the jury could infer that the applicant did not have control or the intention to control the drugs. Contrary to the applicant's defence at trial, it was submitted in this court that there was a view of the facts open that the applicant knew of the presence of the drugs on his premises and in particular in his bed side drawer, that they belonged to Vo, were being used by Vo for trafficking heroin from the premises, and that the jury could have inferred that the applicant was not exercising control over them and did not intend to do so. Such facts, if made out by the evidence, would be sufficient to discharge the applicant's burden of proof. It was asserted that as such findings were open on the evidence, a direction as to the elements of possession was necessary.

30 These submissions cannot be sustained. Once the Crown established the applicant's occupation of the premises, carrying with it the legal consequence of deemed possession, the Crown had established all the elements of possession, including the applicant's intent, unless the applicant was able to prove the contrary. There was no evidence that could support a finding, on the balance of probabilities, that any of the drugs found at the time of the search in fact belonged to Vo alone. Moreover, even if there had been sufficient evidence for the jury to have made such a finding, there was no evidentiary material upon which the applicant could rely to establish that he did not intend to exercise control in relation to those drugs. Counsel for the applicant acknowledged that a person may have possession of something that belongs to another or is part of another person's business.

31 Mr Nash properly conceded that the only source from which such evidence could have come was the applicant's record of interview and stated candidly that he was unable to suggest that any answers of the applicant could support such a contention. There were no answers that gave rise to or could positively support the hypothesis that the applicant, whilst aware that Vo's drugs were concealed in his bedside table, had no control over them and did not intend to exercise control over them.

32 In the absence of some evidence to overcome the effect of the deeming provision, the trial judge correctly determined that the only issue raised by the evidence concerned the applicant's knowledge of the presence of the drugs. Moreover, as hereafter appears, the defence, for forensic as well as evidentiary reasons, only wished to pursue the issue of the applicant's knowledge of the presence of the drugs at the premises. It was not necessary that the trial judge direct the jury as to an element of possession which was not open on the evidence or raised by the defence as an issue at the trial.

33 Ground 3 concerns the directions which it is asserted should have been given following the jury question raised during the course of their deliberations. It is said that the jury question emphasised the need to give the direction the subject of ground 1. The jury asked: "[I]f Tran knew that Vo was trafficking drugs from the house and that there were drugs in the house but he was not involved in this business, it was Vo's business only, is Tran guilty of trafficking?" Mr Nash submitted that the jury question, which he assumed was directed to the issue of possession and not trafficking, showed that there was a live issue as to whether the applicant had possession or control of the drugs. He submitted that the question showed that the jury thought that it was Vo who was trafficking from the premises and that the applicant was not involved in Vo's business.

34 Defence counsel at the trial told the trial judge that the question asked by the jury was "impossible to answer" and expressed concern that what the applicant knew or may have known of Vo's trafficking in drugs had to be the subject of evidence and not mere speculation by the jury. He described the question whether the applicant knew that Vo was trafficking drugs from the house as "hypothetical". Defence counsel strenuously resisted any direction that would be based upon the applicant's awareness of the presence of drugs or that trafficking in heroin at the premises took place from the house. He submitted that there was no evidence that established that the applicant was aware of the presence of the drugs. Counsel approved the direction proposed by the trial judge to answer the jury question - namely that the only basis upon which they could find guilt was through finding that the applicant was the occupier and thus deemed to be in possession.

35 The answer which his Honour gave the jury was as follows:

"In respect of count 1, that's the trafficking charge, Mr Tran is charged with trafficking in heroin by having in his possession for sale at the time of the police raid a quantity of heroin in excess of three grams. It is only on that basis, only on that basis, that you can convict him and then only if you are satisfied of that beyond reasonable doubt. The only way you can legitimately reach that conclusion is by the following steps:

(1) You are satisfied beyond reasonable doubt that at the time he was an occupier of the premises as I have defined 'occupier' for you;

(2) If you are so satisfied of occupancy, he is deemed to be in possession of the heroin at that time unless he satisfies you on the balance of probabilities that either (a) he did not know that the powder found by the police was there at the time; or (b) that he did not know that it contained heroin. If he has satisfied you of one or other of those things, on the balance of probabilities, then he is not deemed to be in possession of the heroin and the further steps of proof which the Crown must establish in order to convict him cannot be established because the first step has not been established and therefore you must acquit him. If you are so satisfied of occupancy, on the other hand, and if he has not persuaded you of either of those two matters then he is deemed to be in possession of the heroin found at the time that it was found.

The next matter that the Crown must prove is that he was in possession of the heroin found for sale, for the purpose of selling it. The law is that possession of more than three grams of heroin is prima facie evidence of trafficking by being in possession for sale, and I told you what prima facie evidence is. Next, if after considering that prima facie evidence and indeed all of the evidence, you are satisfied beyond reasonable doubt that he was in possession of the heroin for sale at the time it was found, then you must consider whether by possessing the heroin for sale you are in all the circumstances on all the evidence satisfied beyond reasonable doubt that he was trafficking in it by this means - by means of having it in his possession for sale - that is, you are satisfied beyond reasonable doubt that he was knowingly concerned in the commercial movement of that heroin from its manufacture to its ultimate consumption. If you are so satisfied then he is guilty of trafficking. If you are not so satisfied, beyond reasonable doubt, then he is not guilty of trafficking and you turn to count 2.

He is not charged with trafficking by, for example, selling on the streets in the way that Mr Vo and Mr Nguy were, or jointly with them. He is charged with trafficking by a different means altogether, namely, by possession of heroin for the purpose of sale. It is only by proof of trafficking in that way that he can be convicted. What, if anything, he knew about Mr Vo's activities is relevant to his state - Mr Tran's state of mind and knowledge and therefore relevant to whether, for example, he knew the powder was there at the time it was found and he knew that it contained heroin. But even if he was trafficking jointly with Mr Vo by selling on the streets during the previous fortnight, even if that were established, that would not make him guilty of trafficking in the manner alleged here - that is trafficking of a different kind altogether, he has not been charged with trafficking in that way, the case has not been conducted on the basis that he was trafficking in that way and he cannot be convicted in this trial of this charge by finding that he trafficked in that way. You can convict him in this trial on this charge only if you are satisfied that the crime has established each of those steps, starting with occupancy, deeming possession, Mr Tran not satisfying you on the balance of probabilities that he was not in possession, the fact that possession of more than three grams is prima facie evidence of, that's all, prima facie evidence of trafficking by way of possession for sale. It is only if you can go down that path and be satisfied of all those matters beyond reasonable doubt, insofar as the Crown had to prove them, and they have to prove them all except the one that Mr Tran has to prove which he can prove on the balance of probabilities.

Now that's not a direct answer to your question, I understand that, I don't think it can be answered Yes or No or in any other way. What I have endeavoured to do briefly is to show you the path, and the only path that you can take to convict. I'm not saying you have to take that path but you can't reach conviction unless you go down that path. You can't go down any other path. Now it's entirely a matter for you whether you are satisfied of guilt at the end of the day but my point is there's only one way you can get there."

36 Although the learned trial judge had directed the jury in precisely the manner requested by defence counsel, it was submitted in this court that the learned trial judge, in answering the jury's question, failed to give the direction raised under ground 1 - that is to say, as to the element of possession concerning the applicant's control and intent to control the drug. It was further submitted that his Honour failed to instruct the jury that the applicant should be acquitted if they found that the applicant knew of the presence of the heroin but, on the balance of probabilities, they were satisfied that the heroin was in the exclusive control of Vo. The jury were directed that they could not convict the applicant unless they could exclude as a reasonable hypothesis that it was Vo alone who had possession of the heroin.

37 Mr Nash submitted that the trial judge was obliged to direct the jury as to this element of possession notwithstanding that counsel for the applicant at the trial had urged the trial judge to confine his directions to the factual issues which arose as a consequence of the applicant's defence, and had urged his Honour not to direct them upon any alternative view of the evidence that the applicant knew of the presence of the drugs. Mr Nash argued that the applicant would not have had a fair trial if the jury had not been given instructions as to the legal principles which must be applied to any view of the facts reasonably open on the evidence which has been adduced in the course of the trial.

Duty of the trial judge where an issue is raised on the evidence

38 The High Court in Nicholls v The Queen[24] and Tully v The Queen[25] has again emphasised the fundamental obligation of the trial judge to identify "the real issues" and to direct the jury, in light of the law, as to what those issues are.

39 A concomitant obligation is to confine such directions of law to those the jury need to know in order to resolve the issues in dispute.[26] The ambit of these duties in a particular case will be determined by the evidence and not by the issues which the parties choose to pursue. Thus the obligation is on the trial judge to decide the issues, rather than on counsel for either party. This principle can be traced back to R v Hopper where Lord Reading CJ said:

"We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence, even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence - we say no more than that - upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand."[27]

40 The fact that defence counsel does not stress an alternative case before the jury (which he or she may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it.[28]

41 Application of this principle is demonstrated most recently in Fingleton v The Queen where McHugh J stated that:

"No doubt the arguments of counsel for the appellant at the trial reflected his belief that the appellant's best chance of acquittal lay in putting the issues in the way that he did. His failure to ask the judge for the legal directions that should have been given may also have reflected the belief that putting issues to the jury that did not reflect the course of his address might have confused the jury and made the chance of acquittal less likely. He may have thought that his client's chance of acquittal would not be improved, but would be likely to be harmed, if he asked the judge to direct the jury in accordance with what I think were the real issues posed by the s 119B charge and the evidence. Similarly, he may have thought that the best interests of his client would not be advanced by a close interpretation of the various terms of the section. But if he held these views, he was mistaken because it led to the appellant's true case not being put before the jury."[29]

His Honour also quoted Barwick CJ in Pemble v R:

"Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part."[30]

42 The conduct of the defence cannot exhaustively determine the scope and content of the judge's charge.[31] Rather, the trial judge must direct the jury on all issues of law which the trial judge decides exist. This decision must be made by reference to whether the issue is raised by the evidence, rather than by the parties. But it must none the less be a "real issue" plainly arising from the evidence as distinct from a remote or artificial possibility.

43 This principle has been considered in cases to which s 5 of the Act applied. In Clarke and Johnstone the trial judge had directed the jury that if they were satisfied that the defendant was the occupier of the relevant land, the defendant would only discharge the burden of proving on the balance of probabilities that he was not in possession if he satisfied the jury that he did not know of the existence of the cannabis crop. As in the present trial, that trial had been conducted on the basis that the issue in dispute was whether the applicant knew of the existence of the drugs on the relevant property. The Full Court said:[32]

"The question is whether the several references to knowledge, rather than possession, constituted a misdirection. Strictly speaking, it might be thought that s 5 imposes on a proven occupier the onus of proving that he was not in common law possession of the drug the trial judge would be bound to define the concept of possession at common law. However, it must steadily be borne in mind that a jury need be told only so much of the law as is necessary for them to know having regard to the issues in the trial. If in this case the learned trial judge had defined the elements of possession he would then have had to direct the jury that the only element relevant in this case was knowledge. That would be so for the reason that at no time in the trial was the issue raised that the applicant knew or may have known of the existence of the crop, but for one reason or another chose not to do anything about it - perhaps taking the attitude that since he was not the owner of the farm he would mind his own business and not interfere with Clarke's illegal activity.

Mr Fitzgerald submitted that if a view of the facts was reasonably open that the applicant may have known of the crop but had no guilty intent in respect of it, counsel could have put that and his Honour may have dealt with it by further definition of possession: but, it was said, there was no need so to direct where it was not raised, and his Honour would have been dealing with the law in relating to a fanciful, not reasonable, view of the facts. We think that submission is correct. ... It cannot therefore be said that the failure of the learned trial judge to define common law possession and his repeated reference to knowledge of the crop has been the only relevant element amounted to a misdirection."

44 R v Bandiera and Licastro[33] and R v Mateiasevici[34] are also cases which illustrate that the jury need only be directed as to those elements of possession which it is necessary for them to know to resolve the issues which the evidence raised for their consideration.

45 Mr Nash's submission, that the evidence called for a direction that the applicant could only be found to be in possession if he intended to exercise control over the drugs, cannot be sustained for the reasons I have already given in relation to ground 1. It was for the applicant to establish on the balance of probabilities that he was not in possession and in particular that he did not exercise control over the drugs. It was not made an issue at the trial that the applicant, knowing of the presence of drugs in his bedside drawer had chosen to do nothing about them and left them in the control of someone else. The hypothesis that the applicant did not intend to exercise control over the drugs that were placed in his bedside drawer had no evidentiary foundation.

46 The learned trial judge's duty did not extend to the giving of the direction which it is now said should have been given. The trial judge rightly confined his directions of law to the only real issue raised by the evidence. There being no evidence as to why the applicant had placed or allowed the drugs to be placed in his bedside drawer, there was no evidence which would have enabled the applicant to discharge the burden of negating his presumed intent to exercise control by virtue of his deemed possession, and no miscarriage of justice could arise as a consequence of the failure to give such a direction.

Ground 2

47 Ground 2 is in these terms:

"The learned trial judge misdirected the jury as to the effect of s 73(2) of the Drugs, Poisons & Controlled Substances Act 1981 and in particular, as to the meaning of the term 'prima facie'."

48 Section 73(2) of the Act relevantly provides that where a person has possession of not less than the trafficable quantity of a 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."

49 The learned trial judge directed the jury as to the meaning of the expression "prima facie evidence" in these terms:

"If you have a significant quantity of a drug of dependence the inference is that you intend to sell it and the law says that having more than three grams of heroin powder in your possession is prima facie evidence that you have it there for the purpose of selling it - it is an example, if you like, of a common sense conclusion of which the words 'prima facie evidence' is really a translation. Prima facie evidence is evidence which would be sufficient to convict a person in the absence of any evidence to the contrary. However, although uncontradicted prima facie evidence may be used by you to convict an accused person such as Mr Tran, you would only be entitled to do so if in fact the prima facie evidence, either by itself or in conjunction with other evidence, satisfies you beyond reasonable doubt of his guilt of trafficking by possessing for sale. ... But if you have in your possession such a quantity that the only common sense conclusion is that you have it for commercial purposes, that is to sell it, and that is that you are knowingly moving it along a chain from its point of manufacture towards its ultimate consumer, then the law says that is prima facie evidence that you are trafficking in it and having it in your possession for sale is a step in that movement along the line."

50 Complaint is made that the direction given did not adequately convey the correct meaning of the term and overstated its effect. I do not agree. The direction included a passage which was in its terms, almost identical to a passage approved by this Court in Stavropoulos v Zamouzaris.[35] The direction made clear that it was for the jury to decide whether on the whole of the evidence they were satisfied beyond reasonable doubt that the applicant trafficked in the drug which he possessed.[36] His Honour in fact directed the jury in the very terms which counsel for the applicant submitted were required.[37]

51 It was further submitted, as it had been in Clarke and Johnstone, that the trial judge failed to distinguish the evidentiary effect of s 73(2) from that of s 5 and had not elaborated upon how the evidence may have overcome the effect of the prima facie evidence provision. Again I must point out that the issue in the trial was whether the applicant knew that the drugs were present in his bedside drawer. If the "real issue"[38] had been whether the person in possession had trafficked by having it in possession for sale, a more elaborate explanation of the evidentiary effect of s 73(2) may have been warranted.[39] It is apparent from what I have already said that defence counsel was resistant to the development of secondary issues. His Honour was not asked to elaborate upon the concept of prima facie evidence and no exception was taken to his directions. Whilst the failure of counsel to object will not necessarily be fatal to the success of an application for leave to appeal, its significance is now well established.[40] The circumstances of the present case did not call for any greater elaboration of the direction which was given and to which no exception was or could be taken.

Ground 4

52 Ground 4 alleges error by the learned trial judge in his directions on corroboration and in particular that -

"4.1 such directions could have led the jury to believe that the existence of corroboration should lead them to accept Mr Vo's evidence;

4.2 he failed to direct the jury that the evidence of an accomplice, even where there is corroboration, is still evidence that should be subjected to scrutiny, and the accomplice still remains a witness with potential motive to lie."

53 The learned trial judge gave a standard direction concerning the evidence of an accomplice. In accordance with usual practice, his Honour explained to the jury why it has been the experience of the law that the evidence of an accomplice has frequently been found to be unreliable. His Honour then gave the jury the following direction concerning the evidence of the accomplice Vo:

"So there is a rule of law which applies in this case and it is this. You should consider that it is dangerous to convict an accused person upon the uncorroborated evidence of an accomplice or a person with position that Mr Vo is in. Accordingly, therefore you should subject the evidence of Mr Vo to the closest scrutiny before deciding to act on it, because it has the potential - that is all I say - that it has the potential to be untruthful. You may of course act upon it, even though you are not satisfied that it is corroborated, and I'll come to that in a minute. But even if you were satisfied that it is not corroborated in the legal sense, of course you may act upon his evidence, but only after you have subjected to that close scrutiny, and only after you have taken account of the warning that I am now giving you that it is dangerous to act upon it if it is uncorroborated."

His Honour then gave the jury direction as to corroboration and then referred to the evidence upon which the Crown relied as constituting corroboration. His Honour then continued:

"If you are not satisfied that Mr Vo's evidence is corroborated then you must take account of the warning that I gave you. That does not prevent you from acting on Mr Vo's evidence. I am not saying that at all, that is nothing to do with me. What I say is that you should not act upon it unless you have submitted it to the scrutiny that I have referred to and taken into account the warning that I have given you."

54 The argument agitated on the applicant's behalf was twofold. First it was submitted that the direction, when viewed in its entirety, suggested to the jury that the accomplice's evidence should be accepted if it was corroborated. Second, that no caution need be exercised once the evidence was corroborated. It was submitted that the trial judge should have directed the jury that the fact of corroboration did not remove the motive of an accomplice to be less than truthful and the evidence should still be scrutinised carefully before it was accepted.

55 The first complaint may be readily despatched. The learned trial judge did not tell the jury that the accomplice's evidence should be accepted if it was corroborated. Nor do I consider that the language employed would have left the jury with such an understanding.

56 The second argument which is allied to the first was that the direction may have led the jury to think that if they did find corroboration of the accomplice's evidence, the warning to treat that evidence with special care would cease to have effect and his evidence would have to be assessed like that of any other witness. The same argument was raised and dismissed in R v Parsons and Stocker[41] where it was said:

"If a trial judge were to suggest to a jury that, once corroboration is found, the jury might treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness, the jury would be misdirected. An accomplice remains a person with a potential motive to lie. He is not an independent witness free of interest in the outcome of the case.

In the present case, the trial judge directed the jury that, if they did not find the evidence of Turner and Strunk was corroborated, they were to have regard to the warning that it was dangerous to convict the accused upon the uncorroborated evidence of the witnesses. His Honour did not tell the jury that if they found corroboration, there remained dangers in acting upon the evidence of the accomplices.

In my opinion, the last step was not one which was necessary to prevent the jury thinking that, if they found corroboration, the accomplices were to be treated like any other witness. The trial judge told the jury that the rationale for the warning was that the experience of the law was that the evidence of accomplices was frequently unreliable in that they may well be motivated to justify their own conduct and implicate others by untruthful evidence. I do not consider that the jury would have thought corroboration removed the accomplice's motive to lie. The rationale for doubting the evidence of accomplices advanced by the trial judge remained, even if the evidence of the accomplices was found to have been corroborated."[42]

The present case and that of Parsons and Stocker are to be distinguished from those cases where the jury were erroneously directed that corroboration removed the dangers in the evidence of accomplices so that the accomplice was then to be treated like any other witness.[43] In both Parsons and Stocker and R v Ali (No. 2)[44] this Court has made plain that the need to give the obligatory warning of the dangers of convicting upon the uncorroborated evidence of an accomplice does not require the jury be further instructed that there remain dangers in acting upon the evidence of the accomplice even if the jury finds corroboration to exist. The directions given in those cases were very similar to the directions given in the present trial. They do not give rise to a risk that the jury may have thought that if they found corroboration, the accomplice was to be treated like any other witness. Nor would the jury, in my view, have understood the directions as suggesting that once they found the evidence of the impugned witness to be corroborated, the rationale for doubting the evidence of that witness would disappear. The trial judge did not suggest to the jury that once corroboration was found, they might treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness.

Ground 5

57 Ground 5 is in these terms:

"The learned trial judge erred in telling the jury that the Crown's concession, that 'Mr Nguy trafficked in heroin on behalf of Mr Vo at or from those premises' had been overtaken by the evidence, and it was a matter for them on all the evidence whether in all the circumstances they were able to reach a conclusion on this matter."

58 It was the Crown case that one Minh Nguy trafficked in heroin on behalf of Vo at or from the premises occupied by the applicant. The Crown conceded at the trial that Nguy trafficked in heroin on behalf of Vo at or from the applicant's premises. The accomplice Vo denied that he trafficked in heroin from the premises or at all. In the course of summarising the evidence of Vo his Honour said:

"The Crown has conceded that Mr Nguy trafficked in heroin on behalf of Mr Vo at or from those premises. If there were no evidence on that issue that concession would be sufficient to allow you to find that as a fact. In a sense, but only in a sense, the concession has been overtaken by evidence."

His Honour then referred to the conflicting evidence of Mr Vo and Mr Nguy and instructed the jury it was a matter for them as to what conclusions they reached in relation to their evidence.

59 Counsel for the applicant relied solely upon the outline of submission in support of this ground, in which it was asserted that the trial judge had instructed the jury that the Crown's concession that Vo was a heroin trafficker had been withdrawn and had been overtaken by the evidence. His Honour made no express or implicit suggestion that the Crown's concession had been withdrawn. In the light of the testimony given by Vo it was necessary for the trial judge to make reference to that evidence. Immediately following the impugned direction, his Honour directed the jury that they could not convict the applicant unless they were able to exclude the hypothesis beyond reasonable doubt that it was Vo alone who had possession of the heroin for sale.

60 No complaint was made about his Honour's direction. It is now submitted that his Honour should have directed the jury that in light of the Crown's concession, they were bound to find that Vo was a heroin trafficker. I do not agree. As it was the Crown's case that Vo was selling heroin from these premises through his agent, Minh Nguy, it was for the jury to determine on the evidence whether they accepted that was so or were prepared to act upon the evidence of Vo.

61 It was submitted that the effect of his Honour's direction was to reduce the likelihood that the jury would conclude that Vo trafficked in heroin from these premises. Thus it was said that the applicant's prospects of establishing on the balance of probabilities that he was not in possession of the heroin were improperly confined. For the reasons which I have already given in relation to grounds 1 and 3, such a submission cannot be sustained. The fact that Vo may have trafficked in heroin from the premises says nothing as to whether the heroin the subject of the count was in the applicant's possession and control.

62 Before leaving this ground I note that this is a further direction to which no exception was taken, but which is now the subject of complaint. The principle that this Court should be slow to interfere in relation to criticism of a judge's charge to which no exception has been taken at the trial has particular force where the criticism of the summing up is in relation to the state of the evidence, and was a matter readily capable of being cured.

Ground 6

63 Ground 6 is in the following terms:

"The learned trial judge erred in putting to the jury a scenario of guilt that the Crown had not opened and which in fact was not consistent with the Crown case, but which put to the jury, in effect, an entirely different allegation albeit under the title of 'trafficking'. Alternatively, the learned trial judge's direction in relation to the actual trafficking by Mr Nguy and Mr Vo was likely to mislead the jury that they could convict the applicant on the basis that he was involved in the actual trafficking alleged against Mr Vo rather than on the basis of the case presented by the prosecution."

64 The impugned passage from the learned trial judge's charge was in these terms:

"The Crown case, as I understand the evidence, is that both Mr Tran and Mr Vo were trafficking at or from these premises, that Mr Nguy was the man on the street, if you can put it that way, and that he was supplied from heroin kept on the premises. Now, whether the accused and Mr Vo were acting jointly or were independently trafficking the Crown would say does not matter very much, although it is a matter for you whether it is, the Crown would say, likely that they could be acting independently in all the circumstances. Still it is a matter for you. It is open to you, however, to find that Mr Vo alone was trafficking from the premises and that he alone was running Mr Nguy. The accused, Mr Tran, does not have to prove that Mr Vo was acting alone. Unless you can exclude that explanation beyond reasonable doubt, then you cannot convict Mr Tran, that is, if that is a reasonable possibility then you cannot convict. The case against Mr Tran is that the heroin in the house and especially that in the master bedroom, was in his possession, whether alone or jointly with Mr Vo and the outline as it were of the Crown case is what I have just put to you a few moment's ago."

The outline of the Crown case to which his Honour alluded immediately preceded this passage. That outline referred to the three components of the Crown case, namely that the applicant was the occupier of the house and the main bedroom where the heroin was found, that he was in possession of the heroin, and that he trafficked in it. To establish these elements the Crown relied in part upon the evidence of Vo and Nguy.

65 In the outline of submission it was contended that the jury were directed in relation to a case that had not been put by the Crown. In directing the jury as he did, his Honour was doing no more than identifying the factual context in which the issues of occupation, possession and trafficking were to be considered. It was the Crown case that the applicant was in possession of the heroin, that Vo was also trafficking in heroin from the house, and that Minh Nguy trafficked in heroin on behalf of Vo from the premises. The applicant's case as summarised by his Honour was that Vo was an occupier of the house, that the heroin and other things found at the house belonged to Vo, that it was Vo who trafficked from the house and used Nguy as the man who sold it on the street and that the applicant did not traffic from the house and did not know that Vo was trafficking from the house. The content of the impugned direction followed necessarily from the evidence called and from the issues raised by the parties. His Honour's directions did not enlarge the case or alter the issues that the jury had to consider. This ground is not made out.

Ground 7

7. The learned trial judge erred in allowing evidence to be placed before the jury:

7.1 of the applicant's prior convictions;

7.2 that, on an occasion not the subject of the charge, the applicant had supplied heroin to another person, namely Minh Vo. Alternatively, the learned trial judge erred in not discharging the jury after such evidence was led. Alternatively, the learned trial judge erred in not directing the jury to disregard such evidence."

66 Counsel but faintly pressed this ground. It was not the subject of any oral argument, counsel being content to rely upon the outline of submissions which simply repeated the complaints alleged in the ground of appeal. No argument was advanced in support of those complaints.

67 The Court was informed that on two separate occasions during October 2005 the applicant was presented on the same count and the jury were discharged without verdict. We were not provided with a transcript or summary of the proceedings in either of those aborted trials. The Court was informed that objection had been taken to the admission of the evidence complained of in the previous trials but that no objection had been taken to the evidence in the present trial.

68 Following the conclusion of oral argument on the present appeal, the solicitors for the applicant were permitted to file a supplementary submission in support of this ground. In that submission it was asserted that the jury had been discharged in the first aborted trial because the witness Vo gave prejudicial evidence. The submission did not identify the nature of that prejudicial evidence. Reference was then made to the second aborted trial. It was submitted that the witness Vo had given evidence that the applicant was "selling some heroin" and that counsel had objected to that evidence. It was submitted that the trial judge had ruled that he would not discharge the jury as the evidence was admissible and there was no ground to exclude it. Neither the evidence given at the second trial or the reasons of the trial judge were placed before this Court.

69 Although no argument was advanced in the applicant's outline of submission in support of ground 7, counsel for the respondent, in his outline of submission, identified the evidence which had been given by the witness Vo in evidence-in-chief and in cross-examination in the third trial, firstly to the effect that the applicant had given him some heroin and secondly that he had been in gaol for driving offences prior to the commission of the present offence. Reference was made to the relevant excerpt from the witness's testimony concerning each of these matters. It was submitted that no objection had been taken by defence counsel to the admission of such evidence. It appears that no application had been made for the discharge of the jury by reason of the admission of such evidence and no complaint was made concerning the directions of the trial judge with respect to the evidence. It was contended that this Court should not permit the applicant to review an uninvoked exercise of the discretion to exclude the evidence or the uninvoked exercise of the discretion to discharge the jury. Further, it was submitted that there had been no miscarriage of justice.

70 The supplementary submission was confined to a complaint concerning the introduction of the evidence that the applicant had given heroin to the witness Vo. It was asserted that in the third trial, upon which the applicant was convicted, his counsel had objected to Vo giving such evidence. It was submitted that the trial judge dismissed the objection for the reasons given in the earlier aborted trials. Thus it was submitted that the failure of counsel for the applicant to raise a specific objection when the witness Vo gave such evidence was immaterial.

71 The transcript reference relied upon by the solicitors for the applicant does not support the contention that the applicant's counsel, in the third trial, objected to the admission of such evidence or that the trial judge ruled upon such an objection. The transcript reveals that prior to the opening of the Crown case to the jury, counsel for the applicant complained that the defence had not been provided with a statement which contained all of the evidence which the prosecution intended to adduce from the witness Vo. Counsel did not refer to or rely upon any objection taken at the second aborted trial to Vo's evidence that the applicant sold him some heroin or that any submission he had previously made was relevant to the new trial. The objection taken by defence counsel at the commencement of the third trial was confined to an attempt to prevent the Crown from leading evidence from Vo which was not included in the witness's written statement.

72 Assuming without deciding that it would be appropriate for this Court to act upon the assertions contained within the applicant's solicitor's supplementary submissions as to what transpired at the aborted trials, it is plain that defence counsel did not object to the admission of such evidence and had not sought any direction to the jury in relation to the evidence or the discharge of the jury because of its admission. The failure to take such objection or exception to evidence now said to be inadmissible would in my view be sufficient to dispose of this ground of appeal.[45]

73 The supplementary submission raises the contention that as such evidence was "propensity evidence", it should have been excluded as its probative value was insufficient to justify its admission.[46] The supplementary submission further complains that the trial judge did not give the jury any warning as to the restricted manner in which such evidence could be used but reminded the jury of the evidence of Vo that the applicant had previously given him heroin in the context of directions as to whether the applicant had persuaded the jury that he was not in possession of the heroin the subject of the charge. It was submitted that in accordance with the decision in R v Mateiasevici[47] the trial judge was obliged to give the jury a clear warning.

74 Counsel for the respondent properly acknowledges that the evidence the subject of ground 7.2 was "propensity evidence" for the purpose of s 398A of the Crimes Act 1958. He submitted that it was "just to admit" that evidence.[48] Counsel for the respondent submitted that defence counsel had cross-examined the witness Vo on a number of occasions concerning his allegation that the applicant had given Vo heroin. Thus it was submitted that no real complaint could be advanced as to the admission of the evidence. Be that as it may, contrary to the assertion made by the solicitors for the applicant in their supplementary submission, the learned trial judge gave a specific full and careful direction to the jury as to the limited use which the jury could make of that evidence and a propensity warning as to how the evidence could not be used. The supplementary submission in relation to ground 7.2 is without substance.

75 The supplementary submission makes no reference to the evidence concerning the applicant's prior convictions, the subject of complaint in ground 7.1. It is not alleged that such evidence was introduced at either of the aborted trials. The supplementary submission does not take issue with the respondent's submission that no objection was taken to the introduction of such evidence or the manner in which the learned trial judge had directed the jury as to such evidence. His Honour had instructed the jury that the fact that the applicant had been in gaol for a driving offence was of no consequence or significance in the trial. No exception was taken by defence counsel at the trial to the direction given to the jury as to the use to which such evidence could be put. No argument was advanced on the appeal that such a direction was erroneous or insufficient. This part of ground 7 is similarly without any substance.

76 Before leaving this ground I should observe that where reliance is to be placed upon material which is not before the Court and which is referred to in a supplementary submission filed after the conclusion of oral argument, particular care is required to ensure that the assertions of fact contained in the supplementary submission are accurate and that the supplementary submission is confined to argument in support of the grounds of appeal. In the present case the supplementary submissions contain a number of assertions which were demonstrably incorrect and advanced an argument not raised by the grounds of appeal.

77 No grounds having been made out, the application for leave to appeal should be refused.

Appeal against sentence

78 The applicant also appeals against sentence on the ground of manifest excessiveness. Although a written outline of submissions had been filed, counsel for the applicant did not rely upon it and advanced very brief oral argument. It was submitted that for an offender of only 30 years of age, with a limited history of prior criminal convictions, a sentence of four years with a non-parole period of three years was plainly more than was warranted. Counsel, in oral submissions, referred in support of that contention to the fact that the applicant has responsibility for two children and that on the plea two former employers gave favourable character evidence on behalf of the applicant.

79 I reject the contention that the sentence imposed should be viewed as harsh let alone manifestly excessive. The maximum penalty for the offence of trafficking in a drug of dependence of which the applicant stands convicted was 15 years' imprisonment. His history of prior criminal convictions may be limited and although the last conviction was in May 1996, it includes convictions for theft, assault with a weapon and reckless conduct endangering life. He pleaded not guilty, as was his right, but as a consequence he is not entitled to the sort of discount which would have applied if he had pleaded guilty and shown remorse. Furthermore, the judge was of the view that the prospects of rehabilitation were limited.

80 All things considered, the penalty imposed was well within the range, if not merciful. I would refuse the application for leave to appeal.

[1] On the balance of probabilities.

[2] His Honour then went on to explain to the jury that the standard of proof for that purpose was proof on the balance of probabilities and what that meant compared to the standard of proof beyond reasonable doubt which applied to those things which it was incumbent on the Crown to prove.

[3] Among others.

[4] Doggett v The Queen (2001) 208 CLR 343.

[5] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 117, per Barwick CJ; see also Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 at 34[103]-[106]; Fingleton v The Queen [2005] HCA 34; (2005) 216 ALR 474 at [82].

[6] cf R v Stoddart ( 1909) 2 Cr App R 217 at 246; Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 at 368, per Brennan and Deane JJ.

[7] See R v Clarke and Johnson [1986] VicRp 64; [1986] VR 643 at 647 as to the history of the legislation.

[8] [2003] VSCA 32; (2003) 141 A Crim R 311.

[9] At 317.

[10] R v Tao [1977] QB 141 at 144 per Roskill LJ.

[11] See the examples given in Holmes J, in The Common Law, "Lecture VI: Possession".

[12] R v Brooks [1974] AC 862.

[13] R v Warner [1969] 2 AC 256; Moors v Burke [1919] HCA 32; (1919) 26 CLR 265.

[14] R v Van Swol [1975] VicRp 5; [1975] VR 61.

[15] R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643 at 647-8.

[16] R v Boyce (1976) 15 SASR 40 at 43.

[17] R v Van Swol [1975] VicRp 5; [1975] VR 61 at 68-9 per Gowans J (for the Court). See also R v Phung [2003] VSCA 32; (2003) 141 A Crim R 311 and He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523.

[18] He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 at 599 per Dawson J.

[19] R v Clarke and Johnstone at 659.

[20] R v Lambert [2001] 3 WLR 206 at [61] per Lord Hope of Craighead.

[21] Tabe v R [2005] HCA 59; (2005) 221 ALR 503; R v Marabito (1990) 50 A Crim R 412 at 415 per O'Bryan J.

[22] R v Phung and R v Maio [1989] VR 28.

[23] R v Maio at 285-7; He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 at 585, 600; R v Van Swol [1975] VicRp 5; [1975] VR 61 at 68.

[24] [2005] HCA 1; (2005) 219 CLR 196 at [372] per Hayne and Heydon JJ.

[25] [2006] HCA 56; (2006) 231 ALR 712 at [44],[49] per Kirby J, and at [75]-[77] Hayne J.

[26] Tully at [79] per Hayne J.

[27] [1915] 2 KB 431 at 435.

[28] [1942] AC 1 at 7.

[29] [2005] HCA 34; (2005) 216 ALR 474 at [82].

[30] [1971] HCA 20; (1971) 124 CLR 107 at 117-118.

[31] Ibid.

[32] At 649.

[33] [1999] VSCA 187; [1999] 3 VR 103.

[34] At [48].

[35] (1990) 50 A Crim R 315 at 318-9 per McGarvie J with whom Murphy and Brooking JJ agreed.

[36] R v Clarke and Johnstone at 659-60 per Crockett, McGarvie and Southwell JJ; R v Medici (1989) 40 A Crim R 413.

[37] Outline of Submissions at [15].

[38] Tully at [44], [49] per Kirby J, and [75]-[77] per Hayne J.

[39] R v Clarke and Johnstone at 660.

[40] R v Gaffney [1968] VicRp 54; [1968] VR 417 at 423; R v Smart [1983] VicRp 22; [1983] 1 VR 265 at 297; R v Clarke and Johnstone at 662.

[41] [2004] VSCA 92; (2004) 145 A Crim R 519 at 528 with whom Eames JA and Smith AJA agreed.

[42] At 528-9.

[43] See R v Radford (1993) 66 A Crim R 210; R v Power [1996] SASC 5653; (1996) 87 A Crim R 407 at 411-2 per Doyle CJ; R v Baker [2000] SASC 407; (2000) 78 SASR 103, 118 A Crim R 150.

[44] [2005] VSCA 302; (2005) 158 A Crim R 469 at 480-481 [38]- [40].

[45] R v VN [2006] VSCA 111; (2006) 162 A Crim R 195 at [31]- [34].

[46] Reliance was placed upon R v Cogley [1999] VSCA 123; [1999] 3 VR 366 per Buchanan JA at [15]; and Phillips v The Queen [2006] HCA 4; (2006) 224 ALR 216.

[47] [1999] VSCA 120; [1999] 3 VR 185.

[48] Section 398A(2) of the Crimes Act 1958.