Feng (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0100

JIN FENG (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of prejudice to the administration of justice, these reasons for judgment have been anonymised by the adoption of a pseudonym in in place of the name of the applicant.

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2025
DATE OF JUDGMENT:	25 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 45
JUDGMENT APPEALED FROM:	DPP v [Feng] [2024] VCC 811 (Judge Cahill)

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CRIMINAL LAW – Interlocutory appeal – Trafficking in not less than a large commercial quantity of a drug of methylamphetamine and other drug offences – Clandestine methylamphetamine factory operating at applicant’s premises – Applicant’s fingerprints found on items in the laboratory – Applicant’s DNA found in masks and on a glove in the laboratory – Whether fingerprint and DNA evidence irrelevant – Whether probative value of evidence outweighed by the risk of unfair prejudice due to CSI effect – Leave to appeal refused.

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Counsel
Applicant		Dr F Gerry KC and Mr EHR Kelly
Respondent		Mr D Brown
Solicitors
Applicant	Lewenberg & Lewenberg
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

An indictment filed in the County Court charges the applicant, ‘Jin Feng’, with: trafficking in not less than a large commercial quantity of a drug of dependence, methylamphetamine (charge 1);[2] possessing substances, materials, documents or equipment for trafficking in a drug of dependence (charge 2);[3] trafficking in a drug of dependence, 3,4-methylenedioxy-N-methylamphetamine (‘MDMA’) (charge 3);[4] possessing a drug of dependence, MDMA and ketamine (charges 4 and 5 respectively);[5] and knowingly dealing with the proceeds of crime (charge 6).[6]
[2]Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’), s 71.
[3]Drugs Act, s 71A(1).
[4]Drugs Act, s 71AC.
[5]Drugs Act, s 73.
[6]Crimes Act 1958, s 194(2).
All charges on the indictment arose from the execution of a search warrant by police (‘the search’) on the applicant’s residential premises in Doncaster (‘the premises’) on 22 October 2020, during which police located a clandestine laboratory for the manufacture of methylamphetamine, together with a large quantity of methylamphetamine and other incriminating articles.
In anticipation of a trial on the indictment, the applicant sought the exclusion of certain ‘scientific evidence’ comprising, first, the applicant’s DNA detected on masks and a glove, and, secondly, the applicant’s fingerprints found on three jugs, located during the search in a storeroom[7] adjoining the premises.
[7]The storeroom was variously described in the materials as a ‘storage room’, ‘storage unit’, ‘workshop’ or ‘shed’. It was described as a ‘workshop’ on scale plan of the premises that was before the trial judge.
By a ruling delivered on 31 May 2024 (‘the ruling’ or ‘the interlocutory decision’), the judge refused to exclude the scientific evidence.[8]
[8]DPP v [Feng] [2024] VCC 811 (Judge Cahill).
Pursuant to certification of the trial judge under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’), granted on 30 May 2024, the applicant seeks leave to appeal against the interlocutory decision on three grounds, which contend that the trial judge erred in finding:
1… in respect of charges 1 to 4 on the indictment, that the prosecution is not required to allege, and prove, that the [applicant] possessed items found in the shed^[[9]] either jointly or exclusively.
2… contrary to expert evidence before the Court, that the scientific evidence was admissible, including on the basis that it could rationally affect the assessment of the probability of the applicant having been present in the shed at material times or being involved in drug manufacture or sale, including by reason of knowledge of the shed’s contents or use/possession of items located in the shed.
3… that any risk of unfair prejudice to the applicant, by misuse of the scientific evidence, can be managed by appropriate jury directions.
[9]See fn 77 above.
In our view, none of the grounds has substance. For the reasons that follow, leave to appeal against the interlocutory decision should be refused.

Background

By way of background, at about 8.30 pm on 22 October 2020, police went to the premises with a warrant to search for drugs. Upon arrival, they announced their presence at the front door of the house, which is part of the premises, by knocking on the door and loudly calling ‘police’. When the door was not answered, police forced entry. The applicant was located in the entry of the house, and his wife, Jie Ren, and their baby daughter, were located in the main bedroom. Police moved all three into the kitchen area.
The premises consisted of a house — including four bedrooms, a lounge-dining room, a kitchen-family area, laundry and bathroom — attached to which at the rear was a garage, and, behind the garage, a storage room. The garage had two interior doors, the first leading from the interior of the house into the garage, and the second leading from the interior of the garage into the storeroom. Significantly, the storeroom could be accessed two ways: first, through the interior garage door (having initially entered the garage from inside the house); and, secondly, from the exterior, through a door which opened onto a rear yard of the premises. Police discovered that there was a key in the lock of the interior garage door. There was also a key in the lock to the door opening onto the rear yard, albeit that door was not locked.
In searching the storeroom, police found a clandestine laboratory, where methylamphetamine was being manufactured. The laboratory equipment included glassware and chemicals used in the manufacture of methylamphetamine (charge 2). There were liquids and solids, containing methylamphetamine — in various states of manufacture — in jugs and dishes, and in a refrigerator. Other methylamphetamine was being dried into crystalline form in a freeze dryer. The various substances which contained methylamphetamine weighed approximately eight kilograms. Police also located approximately 20 kilograms of crystalline methylamphetamine apparently packaged for sale (charge 1). Further, police found two plastic bags containing 31.8 grams of MDMA in tablet and powder form (charge 3; in the alternative, charge 4).
Inside the house, in the pocket of a jacket in the second bedroom, there was 0.5 grams of substance containing ketamine (charge 5). Police also found about $30,000 in a safe in the main bedroom; $10,000 in a puffer jacket in the same room; $5,000 in a shoebox in the dining room; and other cash, the total being $48,790 (charge 6).
At 8.32 pm, police arrested and cautioned the applicant. When questioned about the laboratory in the storeroom, the applicant told police that he had no knowledge of it, and said that he rented the room to someone for about $1,000 per week.
Subsequently, police took the applicant to the Mill Park Police Station where they interviewed him the next day, 23 October 2020. During the interview, the applicant told police that he had lived at the premises for seven years and that he was living there with his wife and their baby daughter. The only other people who have lived in the house are his parents when they come for a visit. He claimed that he did not know if anyone else had access to his home other than himself and his wife and that he did not know how many people had keys to his house. The applicant also told the police that he did not know if there were rooms in his house that he was not allowed to visit.
After police showed the applicant some photographs of the storeroom with the clandestine laboratory, he asserted that he had not seen the contents of the room before and that he had not done anything wrong. Police told the applicant that they were alleging that he was manufacturing methylamphetamine and he responded that he did not know what methylamphetamine was. He said that neither he nor his wife used methylamphetamine.
The applicant subsequently told the police that neither he nor his wife was involved in the manufacturing of methylamphetamine in the storeroom at his home, but that someone else was. When the police asked him who was manufacturing methylamphetamine in the storeroom he told them that he did not know and that he had nothing to say about that. He told the police that he rented the room out but declined to tell them to whom he rented it. Asked about the cash located in his house, the applicant told the police that the $30,000 in the safe belonged to his parents (and they had given it to him to use in case of an emergency), and that he had saved the $10,000 (and kept it in case of an emergency).
Police seized a large number of exhibits from the clandestine laboratory, including face masks, gloves, digital scales, scientific equipment and jugs, scientific glassware, glass dishes and trays all containing liquids or solids or both liquids and solids. Police also seized many zip lock bags containing crystals or solid substances.
The seized exhibits contained 28.5 kilograms of substances that included methylamphetamine, those substances containing just over 20 kilograms of pure methylamphetamine. There was also 31.8 grams of MDMA in two bags, and .05 grams of ketamine in another bag.
A forensic officer developed latent fingerprints impressions on a number of seized exhibits, which were then examined by another forensic officer. The examination revealed that an impression lifted from under the handle of a ‘Xinmin’ glass jug was found to match the applicant’s right thumb; impressions from a ‘Quadrant’ brand plastic measuring jug were from the applicant’s right index finger and left thumb; and an impression lifted from underneath the handle of a ‘Pyrex’ glass measuring jug matched the applicant’s left middle finger.
Three items seized from the clandestine laboratory — two surgical masks and a glove that had been located on a plastic jug — were subjected to DNA analysis.
Samples taken from the inner nose and mouth area of both surgical face masks rendered a single source DNA profile which was then compared to a reference sample taken from the applicant. The samples from the two masks matched the reference sample. A forensic officer concluded that such a match was 100 billion times more likely if the applicant was the source of the biological material on the two masks.
A mixed DNA sample from two contributors was obtained from the inner surface of the glove. The applicant was not excluded as a contributor to the mixed DNA profile. A forensic officer concluded that the DNA evidence is 9.9 billion times more likely if the applicant was one of the contributors to the mixed DNA profile.

The prosecution case

The prosecution case is that the applicant, either on his own, or with another or others, was involved in manufacturing methylamphetamine in the clandestine laboratory at his premises, and was in possession for sale of the methylamphetamine also found at his premises. Large sums of cash found in his home was money in his possession derived from previous drug sales. The prosecution relies on the fact that there was a large scale manufacture of methylamphetamine taking place in a clandestine laboratory in a room that is part of the premises that includes the house in which the applicant lived, in circumstances where scientific examinations link the applicant’s fingerprints and DNA to items which were being used in the manufacturing process. A large quantity of cash (a little over $48,790) in a safe, a puffer jacket and other places within the house, is consistent with the operation of a commercial illicit drug business.

The defence case

For the purposes of the pending trial, the applicant does not dispute that the storeroom contained a clandestine laboratory being used to manufacture, and store, methylamphetamine, or that the laboratory was in operation when police arrived. Moreover, the applicant does not dispute the scientific evidence, but argues, because of the limitations of the science, the scientific evidence must be excluded, either as irrelevant or unfairly prejudicial.
The applicant’s case is that another man, Zheng Gao — whom police had observed go to the premises on 23 September 2020, 6 October 2020 and 22 October 2020 — was operating the laboratory without the applicant’s knowledge. He relies on what he told police: that he lived at the premises with his wife and child; that he had rented out the storeroom and had no knowledge of the clandestine laboratory or the drugs; and that the money found inside his home was personal savings.

The submissions to the trial judge

Before the trial judge, the applicant submitted that, because the scientific evidence does not establish how and when his fingerprints came to be deposited on the three jugs, or his DNA deposited on the two masks and glove, found in the laboratory, the scientific evidence cannot connect the applicant to the drug manufacture and storage in the storeroom. It is therefore irrelevant.
In the alternative, the applicant submitted that, because of the danger of unfair prejudice to him, the DNA evidence should be excluded under ss 135 and 137 of the Evidence Act 2008 (‘the Act’). The applicant submitted that, due to the scientific pedigree of the evidence, there is a danger that the jury will give the evidence undue weight. In seeking to exclude the fingerprint analysis, the applicant relied on the separate ground that contended that the prosecution cannot prove that the fingerprints used for comparison with the latent impressions lifted from the three jugs are the applicant’s fingerprints.
The prosecution submitted that the scientific evidence is relevant because it connects the applicant to the clandestine laboratory. Accordingly, it tends to prove that he was involved in the manufacture of methylamphetamine, and was in possession of the methylamphetamine stored there. The probative value of the evidence is high, and any danger of unfair prejudice arising from the ‘CSI effect’ can be ameliorated by appropriate directions. Hence, none of discretionary or mandatory exclusions in the Act are enlivened.

The ruling

Based on the material that was before him — which it is unnecessary to summarise — the judge was satisfied that the available evidence was capable of proving that the fingerprints used for comparison were the applicant’s fingerprints. That part of the ruling is not challenged.
More importantly, the judge was satisfied that the scientific evidence was relevant because it tended to prove the applicant’s presence in the storeroom and his knowledge of the laboratory. In combination with other evidence, the fingerprint and DNA evidence makes it more likely that the applicant used the relevant items, and possessed them and other pieces of equipment and chemicals, in order to manufacture methylamphetamine.
While others, including Ren and Gao, may have accessed the laboratory, the possibility of secondary DNA transfer to each of the two masks — upon which were located single source profiles — was speculation. The profile obtained from the glove had two contributors, Ren being identified as a possible contributor. The judge was also satisfied the scientific evidence made it more likely that the applicant possessed the crystalline methylamphetamine in the storeroom. Contrary to the applicant’s submissions, while there may be a reasonable possibility Ren or Gao accessed the clandestine laboratory, that does not preclude a conclusion the applicant was in possession of the methylamphetamine either on his own or with someone else.
Recognising the limitations of fingerprint and DNA analysis — and arguable gaps in the police investigation — affect the weight to be given to the scientific evidence, the judge was satisfied the evidence, considered in combination with the other evidence in the case, had ‘high’ probative value. The judge was also satisfied that any risk of unfair prejudice to the applicant, through misuse of the evidence, could be managed by appropriate directions. Accordingly, the judge ruled the impugned scientific evidence to be relevant and admissible.

The applicant’s submissions in this Court

In this Court, counsel for the applicant submitted that, with respect to charges 1 to 4 on the indictment, the prosecution relies on three, discrete strands of evidence, which it contends — when woven together — form a circumstantial case capable of satisfying a jury of the applicant’s guilt: first, money found in various locations in the adjacent house; secondly, DNA on masks recovered from the shed; and thirdly, fingerprints on jugs recovered from the shed. Critically, the prosecution seeks to invite the jury to infer that the presence of the applicant’s fingerprints and DNA on items in the storeroom establishes that the applicant was physically present in the storeroom and interacting with items in the clandestine laboratory, sufficient to establish his involvement in the manufacture, and possession, of methylamphetamine for purposes of sale.
With respect to the first proposed ground of appeal, the applicant’s counsel submitted that, to establish the physical elements of the first four charges on the indictment, the prosecution must prove that the applicant had possession at common law of relevant items recovered from the storeroom; that is, to his knowledge, those items were in his custody or under his physical control. The items said to have been possessed were, however, found in an unlocked, common access storeroom, adjoining the applicant’s shared residential accommodation, to which at least two other individuals had access. To establish possession, counsel submitted, there must be additional evidence whereby the prosecution can prove that the applicant possessed the drugs and equipment either exclusively, or jointly with other persons with equal access with whom the applicant is complicit.
Counsel submitted that, apart from the scientific evidence, there is no other evidence to establish that the applicant was in the storeroom or had contact with items in the clandestine laboratory in the period alleged. Hence, counsel submitted, the prosecution must rely upon the scientific evidence to prove possession that was either exclusive or joint. The scientific evidence is, however, incapable of rationally affecting the assessment of the probability of those facts, in that it cannot establish that the applicant was present in the storeroom at material times, let alone exclusively or jointly using or possessing any items therein.
So far as the second proposed ground is concerned, counsel for the applicant submitted that the trial judge found the scientific evidence to be relevant because, first, it ‘tends to prove’ the applicant’s presence in the clandestine laboratory; secondly, ‘accordingly, his knowledge of it’; thirdly, ‘it makes it more likely, in combination with other evidence, [he] used the items, and possessed them and other pieces of equipment and chemicals, to manufacture methylamphetamine’, and, fourthly, ‘it makes it more likely he possessed the crystalline methylamphetamine stored in the workshop’. In making those findings, counsel submitted, the judge made no reference to expert evidence that established that it was not possible from the scientific evidence to establish ‘activity level propositions’ with respect to any items on which the applicant’s fingerprints or DNA were located. The scientific evidence could not be used to determine whether the applicant was physically present in the storeroom and at relevant times interacting with items in the clandestine laboratory, as would be required to establish his involvement in manufacturing of drugs and possession of drugs for purposes of sale. Counsel submitted that the evidence therefore is irrelevant. It could not rationally affect the assessment of the probability of the fact in issue; that is, that the applicant was present in the storeroom at material times or was involved in drug manufacture or sale (including by reason of knowledge of the storeroom’s contents, or the use or possession of items located within it). Moreover, and contrary to the judge’s reasoning, since the scientific evidence is irrelevant, it cannot be combined with other strands in the circumstantial case so as to clothe it in a mantle of relevance.

As to the third proposed ground, counsel for the applicant submitted that, since the scientific evidence could not be used to prove the applicant’s possession and use of items in the laboratory, to put it before the jury would be to risk its misuse. Counsel submitted that, in circumstances where both prosecution and defence experts are of the view that the scientific evidence cannot be used to assess the activity that the prosecution must prove, the jury could not rationally use that same scientific evidence to assess the likelihood of precisely such activity. Jury directions could not remedy the problem. If there is any probative value at all in the scientific evidence, it is extremely low and is outweighed by the risk of the unfair prejudice the applicant would suffer by its admission, so that the evidence attracts the operation of s 137 (alternatively s 135) of the Act.

The respondent’s submissions in this Court

In written submissions, the respondent’s counsel in this Court submitted that the storeroom, like the garage, was under the roofline of the house. Counsel pointed out that the garage was accessible from the house. The storeroom was at the rear of the garage and was accessible via a door. It also had a second door that led to the backyard. When police searched the premises that door was closed but unlocked, and the door from the garage to the storeroom had a key in the lock on the garage side of the door. Inside the storeroom was a clandestine methylamphetamine laboratory. Police found just over eight kilograms of methylamphetamine in solid and liquid form undergoing a drying process. They also located just under 20 kilograms of crystalline methylamphetamine in plastic bags in cupboards and drawers in the storeroom.
Counsel for the respondent submitted that the principal fact in issue in the case is whether the prosecution can prove that the applicant was involved in the methylamphetamine enterprise being conducted in his storeroom. The prosecution does not discount the possibility that Gao had some involvement in the enterprise, but contends that the possibility of Gao’s involvement in no way affects the applicant’s criminal liability. The prosecution relies on three broad strands of circumstantial evidence to prove that the applicant was involved in the methylamphetamine enterprise in his storeroom: first, the storeroom was under the roofline of the house he occupied with his family, and the improbability of him being unaware of what was occurring in that room; secondly, the scientific evidence, including both the fingerprint and DNA evidence; and, thirdly, the substantial amount of cash located in the house ($48,790).
With respect to the first ground, the respondent’s counsel submitted that, so far as the eight kilograms of methylamphetamine in the process of manufacture was concerned, the applicant’s criminal liability rests on him being involved in the manufacturing process, not his possession of the methylamphetamine. It therefore follows that there is no need for the prosecution to prove exclusive possession. And so far as the remaining 20 kilograms of methylamphetamine is concerned, the prosecution case is that the applicant was in possession of the drugs for sale. To prove possession for sale it is necessary for the prosecution to prove that the applicant had the drug in his physical custody or under his physical control. It is not necessary to prove exclusive possession. If the evidence established that the drugs in the storeroom were in the applicant’s possession, then the fact that his wife might enter the storeroom to retrieve a household item, or the possibility that she had some involvement in the enterprise, would not alter the fact that the applicant was in possession of the drugs. And there is no reason in principle why the outcome should be different if it is assumed that the applicant jointly possessed the drugs with Gao. Counsel submitted that once the evidence establishes that the drugs in the storeroom were to the applicant’s knowledge under his physical control, the fact that someone else may have been in joint possession of the drugs with him, or that someone else may have had access to the room in which the drugs were stored, does not alter the fact that he was in possession of the drugs.
As to the second ground of appeal, the respondent’s counsel submitted that, in assessing the probative value of the scientific evidence, it important to consider the nature of the items within the storeroom on which the scientific evidence was located. Hence, the items on which the scientific evidence was located were either items used, or capable of being used, in the manufacturing process. The two masks were located on a shelf with three glass receptacles containing methylamphetamine in liquid and solid form. One of the masks was positioned in front of one of those glass receptacles and besides another of those receptacles. A single source DNA profile was obtained from both masks with the sample being taken from inside of the mouth and nose area of the masks. The likelihood ratio of the applicant being the contributor to the DNA was 100 billion.
Moreover, the three receptacles on which the applicant’s fingerprints were located were on a work bench with six other receptacles. All contained liquids or solids, some containing methylamphetamine. One of the receptacles on which the applicant’s fingerprint was located contained methylamphetamine; a funnel in the top of another receptacle on which the applicant’s fingerprint was located also contained methylamphetamine; and the glove on which the applicant’s DNA was located was found hanging over the top of a jug on the work bench that contained methylamphetamine; in circumstances where it is open to infer that the jugs, bowls and funnels located on the workbench had been used to prepare the methylamphetamine, and that dishes and trays had been placed in the other areas of the storeroom to facilitate the evaporation of the liquid from the methylamphetamine.
Counsel for the respondent accepted that, from the scientific evidence alone, it is not possible to draw any conclusions about when or in what circumstances the applicant’s DNA and fingerprints were deposited on relevant items in the clandestine laboratory. But the relevance and probative value of any DNA or fingerprint evidence must be assessed according to all of the circumstances. Those circumstances included: first, the fact that the storeroom the applicant claims he rented to Gao two months before the police executed their search warrant was attached to his family home (and the improbability of his not knowing what was being undertaken in the room); secondly, the improbability of Gao choosing such an unsecure place from which to conduct a highly illegal and valuable enterprise; thirdly, the fact that at the time the police executed the search warrant the applicant could have easily accessed the storeroom via either door, given that it might be expected that a person conducting the enterprise without the applicant’s knowledge would have been extremely vigilant to keep both doors locked when not present; fourthly, each of the items on which the scientific evidence was located appears to have been used, or was capable of being used, in the manufacturing process; and, fifthly, there were six items linking the applicant to the methylamphetamine enterprise in the storeroom (not just one item).
With respect to the third ground of appeal, the respondent’s counsel submitted that, given that the applicant is linked to six items in the storeroom, the probative value of the scientific evidence is high. Unlike other cases, the issue of transference does not arise in the present case, except so far as the glove is concerned. A jury will readily understand that the science cannot determine when and in what circumstances the fingerprints and DNA were deposited. Counsel submitted that a jury could quite rationally use the scientific evidence in combination with the other circumstantial evidence to conclude to the criminal standard that the fingerprints and DNA were deposited on the relevant items when the applicant was in his storeroom engaged in the methylamphetamine enterprise. The trial judge was correct to conclude that the probative value of the scientific evidence is high, and that any risk of the jury giving the evidence more weight than it rationally deserves can be managed by directions.

Discussion and analysis

As we have said, we consider that there is no substance in any of the three proposed grounds of appeal.
Turning first, for the sake of convenience, to the second proposed ground of appeal, s 55(1) of the Act provides that relevant evidence ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’. And s 56(1) provides that, except as otherwise provided by the Act, relevant evidence is admissible.
The Dictionary to the Act defines probative value to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue‘. An assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[10]
[10]IMM v The Queen (2016) 257 CLR 300, 313 [44] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’).
Any determination of whether a piece of evidence has the capacity to ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ involves an exercise in logic.[11] In other words, for a particular piece of evidence to be relevant, it must render a fact in issue more probable than it would be without the evidence.[12] As was observed in Washer:[13]
Relevance depends upon whether the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact of the acquittal could rationally affect the assessment of the probabilities. The word ‘rationally’ is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial.
[11]DPP v Wise [2016] VSCA 173, [68] (Warren CJ, Weinberg and Priest JJA) (‘Wise’); DPP v Paulino (2017) 54 VR 109, 124 [66] (Priest JA) (‘Paulino’).
[12]Paulino, 124 [66].
[13]Washer v Western Australia (2007) 234 CLR 492, 498 [5] (Gleeson CJ, Heydon and Crennan JJ) (‘Washer’). (Footnotes omitted.)
Further, as was said in Paulino:[14]
In context, s 55(1) of the Evidence Act directs attention to whether the disputed evidence, ‘if it were accepted’[15] by the jury, ‘could’ — not ‘would’ — ‘rationally affect’ the assessment of the probability of the existence of a fact in issue. As was pointed out in Washer, the adverb ‘rationally’ is significant. Thus, there must be a logical connection between the evidence and the fact in issue. If a trial judge is satisfied that a reasonable jury could find such a logical connection, then he or she must determine the evidence to be relevant. Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.[16] Therefore, ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial.[17] Moreover, in judging relevance, the contested evidence must not be looked at in isolation.[18] As Heydon J observed in Evans:
The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called.[19]
[14]Paulino, 125 [67].
[15]See Adam v The Queen (2001) 207 CLR 96, 105 [22] (Gleeson CJ, McHugh, Kirby and Hayne JJ).
[16]Smith v The Queen (2001) 206 CLR 650, 653 [6] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[17]R v XY (2010) 79 NSWLR 629, 646 [90] (Whealy J); Louizos v The Queen (2009) 194 A Crim R 223, 230 [31] (Howie J).
[18][Bayley v The Queen (2016) 260 A Crim R 1, 22–3] [130]–[131].
[19]Evans v The Queen (2007) 235 CLR 521, 568 [177].
The Act does not define ‘fact in issue’. It is tolerably clear, however, that in a criminal case, the ultimate issue (or issues) will be the existence of one or more of the elements of the charged offence. Facts in issue in the proceeding will be those bearing on the existence of those elements, and behind those will potentially be many facts relevant to those facts in issue.[20]
[20]Hughes v The Queen (2017) 263 CLR 338, 349 [16] (Kiefel CJ, Bell, Keane and Edelman JJ); Smith v The Queen (2001) 206 CLR 650, 653 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (‘Smith’); Murdoch (a pseudonym) v The Queen (2013) 40 VR 451, 468–9 [76] (Redlich, Priest and Coghlan JJA).
Importantly, in Volpe the Court observed:[21]
It must be borne steadily in mind that, in determining whether a particular piece of evidence might rationally affect the assessment of the probability of the existence of a fact in issue (directly or indirectly), it is wrong to focus upon what that piece of evidence — considered in isolation — may prove. One must also have regard to the other evidence in the case. Relevance does not depend on the capacity of a particular piece of evidence by itself to prove the prosecution case on a particular issue. When assessing probability, one must look to the effect of the contested evidence taken in conjunction with the other evidence in the case.[22]
[21]Volpe v The Queen [2020] VSCA 268, [44] (Priest, T Forrest and Weinberg JJA) (‘Volpe’).
[22]Evans v The Queen (2007) 235 CLR 521, 568 [177] (Heydon J); Bayley v The Queen (2016) 260 A Crim R 1, 23 [131] (Warren CJ, Weinberg and Priest JJA); Paulino, 125 [67] (Priest JA).

On charge 1, trafficking in not less than a large commercial quantity of methylamphetamine, the principal fact in issue was whether the applicant had possession of the large quantities of methylamphetamine in the storeroom for sale.[23] With respect to charge 2, possession of substances, materials, documents or equipment for trafficking in a drug of dependence, the principal facts in issue are whether the applicant possessed equipment — household glassware, scientific glassware and apparatus — and, if so, whether he possessed the equipment with the intention of using that equipment for the purpose of trafficking in a drug of dependence. On charge 3, trafficking in MDMA, the principal fact in issue is whether the applicant possessed the 31.8 grams of MDMA in tablet and powder form in two plastic bags found in the storeroom for sale. And on charge 4, possessing MDMA, the principal fact in issue is whether the applicant possessed the MDMA found in the storeroom. Hence, in order to be admissible, the scientific evidence must directly or indirectly be capable of rationally affecting an assessment of the probability, first, that the applicant possessed the quantities of methylamphetamine (charge 1), equipment (charge 2) and MDMA (charges 3 and 4) found within the storeroom; and, secondly, that he possessed the methylamphetamine (charge 1) and equipment (charge 2) for the purposes of trafficking in a drug of dependence.
[23]Section 70(1) of the Drugs Act defines traffick with respect to a drug of dependence as including ‘sell, exchange, agree to sell, offer for sale or have in possession for sale’.
Notwithstanding the submissions advanced by the applicant’s counsel, we consider the scientific evidence clearly to be relevant to the facts in issue in the case. Among other things, the scientific evidence — the presence of his fingerprints on glassware, and his DNA inside masks and a glove, apparently used in the course of manufacturing methylamphetamine — rationally affects the probability that the applicant was actively involved in the manufacture of methylamphetamine, and that he possessed the product of that manufacture for the purposes of selling it. At the very least, the evidence tends to show that the applicant handled various items of glassware (and similar) that were part of a clandestine methylamphetamine laboratory situated in premises he occupied, and also wore masks and a glove, in circumstances where it might readily be inferred that he did so in the course of manufacturing the drug.
Of course, in assessing those probabilities, we have not considered the scientific evidence in isolation. It would be wrong to do so, since relevance does not depend on the capacity of a particular piece of evidence by itself to prove the prosecution case on a particular issue. Instead, it is necessary to consider the effect of the scientific evidence taken in conjunction with the other evidence in the case.
In our view, in determining the relevance of the scientific evidence, it is important to consider the nature of the various items on which the scientific evidence was found, and their relationship one to the other.
As a starting point, not only is it plain that each item on which the scientific evidence located within the laboratory was capable of being used in the process of manufacturing methylamphetamine, but it is also plain that the laboratory had in fact been used to manufacture the drug.
Very significantly, the two masks upon which the applicant’s DNA apparently was found in the mouth and nose area, were located on a shelf with three glass receptacles containing methylamphetamine in liquid and solid form (one mask in front of one of the receptacles, and the other mask beside another receptacle).
Also of significance, the three jugs on which the applicant’s fingerprints were located were on a work bench with six other receptacles, all of which contained liquids or solids, some of which contained methylamphetamine. Hence, one of the jugs on which the applicant’s fingerprint was located contained methylamphetamine. Another jug on which the applicant’s fingerprint was located, which had a funnel on top of it, also contained methylamphetamine. And the glove on which the applicant’s DNA was apparently located was hanging over the top of a jug on the work bench that contained methylamphetamine.
Given the concatenation of the various items within the illicit laboratory, it is open to infer that the jugs, funnels and other receptacles located on the workbench had been used to manufacture methylamphetamine, and that dishes and trays had been arranged in the other areas of the storeroom to permit the evaporation of liquid into methylamphetamine in a solid form.
As we have said, the relevance of the scientific evidence does not fall to be determined by considering it in isolation. The relevance and probative value of the fingerprint and DNA evidence must be assessed according to all of the other evidence in the case.
As to that, the evidence concerning the layout of the premises would suggest it to be highly improbable that the applicant was unaware that methylamphetamine was being manufactured and stored at his premises. Like the garage, which is directly accessible from the house, the storeroom is under the roofline of the house, and is itself directly accessible from the garage or the backyard. When police searched the premises, the door permitting entry to the storeroom from the backyard was closed but not locked; and the door permitting entry to the storeroom from the garage had a key in the lock on the garage side of the door. Inside the storeroom, closely physically connected to the house in which the applicant resided, a clandestine methylamphetamine laboratory had been in operation. In close connection to that laboratory, large quantities of illicit drugs were stored: a little over eight kilograms of methylamphetamine in solid and liquid form, and a little under 20 kilograms of crystalline methylamphetamine in plastic bags in cupboards and drawers.

Furthermore, the large quantity of cash (a little over $48,790) in a safe, a puffer jacket and other places within the house, is consistent with the operation of a commercial illicit drug business. It clearly is open, in our view, to infer that large sums of cash found in the applicant’s home was money in his possession derived from previous drug sales. As to that, a succession of authorities establish that, where it is alleged that an accused person found in possession of a drug of dependence intended to sell it, evidence that the person was, at the time of possession, engaged in the business of selling drugs is logically probative of the fact that his or her purpose in possessing the drug on a particular occasion was for the purpose of sale. Hence, evidence that an accused who is found in possession of an illicit drug is also found in possession of the accoutrements of a drug trafficking business — such as significant quantities of cash — is admissible in proof of the charge.[24]
[24]See R v Falzon (2018) 264 CLR 361, 366 [1] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
As we have said, when assessing relevance, the contested evidence must not be looked at in isolation. Relevance does not depend on the capacity of the evidence by itself to prove the prosecution case on a particular issue (or, for that matter, to raise a reasonable doubt in favour of the defence on that issue). Assessing probability requires consideration of the effect of the impugned evidence when taken with the other evidence in the case. Subject to exclusionary rules, evidence is relevant if there is a logical connection between the evidence and the fact in issue. Ambiguity or apparent inconsistency is not sufficient to result in rejection of evidence.
The fact, therefore, that the items on which the scientific evidence was located (and other incriminating articles) were found in an unlocked storeroom to which at least two other individuals, Gao and Ren, had access, is not of itself a reason for the scientific evidence to be rejected. Indeed, the fact that individuals other than the applicant may have possessed items within the storeroom does not render the scientific evidence irrelevant.
Nor does the fact that the experts are unable to determine precisely when the applicant may have deposited his fingerprints or DNA on items within the clandestine laboratory impinge on the relevance of the challenged evidence. The scientific evidence was found on items in an operational — and apparently operating — methylamphetamine laboratory, located in a storeroom in close proximity to the applicant’s residence, in which a large quantity of cash was found in his possession. Those circumstances are clearly capable of going in proof of the applicant’s possession of incriminating articles at relevant times.
Given the foregoing, the first proposed ground of appeal may be shortly disposed of. In order for the prosecution to prove, for the purposes of charges 1 to 4, the applicant’s possession of items within the storeroom, it is not necessary to establish that he was in sole or exclusive possession of them. Possession requires proof that a person has custody or control of material and an intention to possess that material.[25] And it is well settled that several persons can have possession of the same material. As was observed in one of the seminal cases on possession, Moors v Burke, the High Court said:[26]
Possession is proved by various acts varying with the nature of the subject matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world.
[25]See, e.g., He Kaw Teh v The Queen (1985) 157 CLR 523, 585 (Brennan J), 600 (Dawson J); R v Maio [1989] VR 281, 288 (O’Bryan J, Crockett and Nathan JJ agreeing).
[26]Moors v Burke (1919) 26 CLR 265, 271 (Isaacs, Gavan Duffy and Rich JJ). See also R v Dibb (1991) 52 A Crim R 64, 72 (Hunt J); Pearce and Carter v DPP (No 2) (1992) 59 A Crim R 182, 183–4 (King CJ, Bollen and Prior JJ agreeing); R v Cumming (1995) 86 A Crim R 156, 163–4 (Owen J, Pidgeon and Rowlan JJ agreeing); R v Wan (2003) 140 A Crim R 513, 516–7 [14] (Adams J, Wood CJ at CL and Simpson J agreeing); R v Tran (2007) 16 VR 673, 678–9 [21], 680 [25] (Nettle JA, Vincent and Neave JJA agreeing).
Finally, the third proposed ground is devoid of merit. The ground proceeds on the premise — one that, for the reasons above, we do not accept — that the scientific evidence could not be used to prove the applicant’s possession and use of items in the laboratory.
In any event, there is, in our view, little risk in the present case that a jury will be unduly influenced by the ‘CSI effect’ (a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings).[27] We consider that judicial directions will be capable of adequately bringing home to the jury the limitations associated with the scientific evidence.
[27]Wise, [70]; Paulino, 132–3 [103]; Jenny Wise, Providing the CSI Treatment: Criminal Justice Practitioners and the CSI Effect (2010) 21 Current Issues in Criminal Justice 383, 384.
Leave to appeal against the interlocutory decision must be refused.

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[2025] VSCA 45

25 March 2025