Hafner v The Queen
[2011] VSCA 431
•15 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0446 | |
| DARREN JOHN HAFNER | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P, BUCHANAN JA and JUDD AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 November 2011 | |
DATE OF JUDGMENT/ORDER: | 15 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 431 | |
JUDGMENT APPEALED FROM: | R v Hafner (Unreported County Court of Victoria, Judge Tinney, 11 November 2010) | |
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CRIMINAL LAW – Trafficking in a drug of dependence – Possession of a drug of dependence is prima facie evidence of an offence against s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) – Trial judge did not err in directing the jury that possession of a drug of dependence was prima facie evidence of trafficking in a drug of dependence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Leanne Warren & Associates |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I agree with Buchanan JA.
BUCHANAN JA:
Members of the police force intercepted a motor vehicle being driven by the appellant and in which his de facto partner was a passenger. The police searched the vehicle and found a toilet bag containing $2,450 in cash and two plastic bags containing crystals and some powder. The crystals and powder were a mixture of methylamphetamine and another substance and weighed in all 9.1 grams.
The appellant was tried in the County Court on a count of trafficking in a drug of dependence with an alternative count of possession of a drug of dependence. The appellant pleaded not guilty and gave evidence in his own defence. He said that he had bought the methylamphetamine purely for his own use. He said that the money in the bag belonged to his de facto partner and was to pay bills and get a roadworthy certificate for the motor car. The money was from his de facto’s pension and his business of selling jewellery.
At the conclusion of the trial the jury found the appellant guilty on the charge of trafficking in a drug of dependence.
The appellant has been granted leave to appeal against his conviction on the ground that the trial judge erred by directing the jury in accordance with s 73(2) of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).
Section 71AC of the Act creates the offence of trafficking or attempting to traffick in a drug of dependence. Section 70 of the Act provides:
‘traffick’ in relation to a drug of dependence includes –
(a) prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c)sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence;
Section 73(1) of the Act creates the offence of having or attempting to have in one’s possession a drug of dependence and provides for a lesser penalty where the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in a drug of dependence. Sub-section (2) provides:
(2)Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.
The issue in the trial was whether the Crown could establish that the appellant intended to sell or offer for sale the methylamphetamine in his possession.
In the course of his charge to the jury, the sentencing judge said that the prosecution was required to prove beyond reasonable doubt that the appellant intentionally committed an act of trafficking and that the substance in his possession was a drug of dependence. He continued:
I told you in my introductory remarks yesterday that according to the law, in the absence of any evidence to the contrary, proof that the accused possessed no less than three grams of methylamphetamine, even in a mixed setting, is sufficient to enable you to find these elements have been met. The prosecutor had raised that issue in his address to you and spoke of the notion of prima facie evidence to you. I clarified that in the course of my introductory remarks. At the time I told you that it can be used in that way, but there was no suggestion, as a matter of law, that must, or should, be used in that way. So you were told that in that setting, it is before we embarked upon any of the evidence, in the setting of uncontradicted evidence of the possession of that quantity, 3 grams or more, that you may use the uncontradicted evidence that the accused possessed that quantity of drugs in finding the elements of trafficking established, but you could only do so, I told you, if that evidence, either by itself or together with other evidence, satisfied you that the accused is guilty of trafficking beyond reasonable doubt.
Counsel for the appellant submitted that s 73(2) had no application to the offence of trafficking. The submission challenged the orthodox view of s 73(2) that has been followed since the decision of the Full Court in R v Clarke and Johnston.[1] According to the appellant, the only purpose of the sub-section was to assist in the resolution of the issue with which s 73(1)(b) was concerned, that is, the question whether the offence of possession was committed for any purpose relating to trafficking.
[1][1986] VR 643. See R v Tragear (2003) 9 VR 107, 116-7; R v Stavropoulos and Zamouzaris (1990) 50 A Crim R 315, 381-9; R v Hiep Tan Tran [2007] VSCA 19, [47]-[51]; R v Georgiou [2009] VSCA 57, [45]-[64]. See also Momcilovic v R [2011] HCA 34, [66]-[70] (French CJ), [193]-[194] (Gummow J), [280] (Hayne J), [609] Crennan and Kiefel JJ), [696] (Bell J).
Counsel for the appellant relied upon the position of the provision in the section dealing with the offence of possession. He also submitted that the word ‘trafficking’ in s 73(2) could not have been intended by the legislature to refer back to the term ‘traffick’ in s 70 because possessing not less than a traffickable quantity of a drug of dependence could never amount to prima facie evidence of manufacturing a drug of dependence or selling a drug of dependence or even exchanging a drug of dependence. Counsel relied upon the use of the word ‘trafficking’ in s 73(2) and s 73(1)(b) and the use of the word ‘traffick’ in s 70.
In my opinion, s 73(2) has no application to s 73(1)(b). The former provision on its face is an evidentiary aid in determining whether the possession of a drug of dependence is ‘trafficking’ per se. The latter provision requires the determination of the question whether the possession of a drug of dependence was ‘for any purpose relating to trafficking in that drug of dependence’. The concepts are discrete. As Kaye J observed in R v Bridges:
I pause to note that a purpose relating to trafficking does not fall within the definition of trafficking, which includes ‘having possession for sale a drug of dependence’. No doubt the type of situation envisaged in paragraph (b) would include one where the person in possession has the drug for his or her own use, or for safe keeping on behalf of another.[2]
[2](1986) 20 A Crim R 271, 274.
Section 73(1)(b) imposes upon the accused the onus of proving ‘on the balance of probabilities, that the offence was not committed … for any purpose relating to trafficking … ‘. Section 73(2), on the other hand, assumes that the onus is on the Crown for it establishes a prima facie case of trafficking in certain circumstances. The jury would only be entitled to convict the accused if the prima facie evidence, either by itself or in conjunction with other evidence, satisfied the jury beyond reasonable doubt that the accused intentionally engaged in an act of trafficking. Section 73(2) does not assist the prosecution in the resolution of the issue raised by s 73(1)(b), for under that provision the prosecution already enjoys a presumption in its favour.
In R v Clarke and Johnstone the Full Court dealt with the argument that possessing not less than a traffickable quantity of a drug of dependence could never amount to prima facie evidence of, say, manufacturing, selling or exchanging a drug of dependence, saying:
The effect of s 73(2) is the possession of a traffickable quantity of a drug of dependence is prima facie evidence of trafficking. Section 73(2) is not in our opinion to be read as providing that possession of a traffickable quantity of a drug of dependence is prima facie evidence of trafficking in all the ways in which one may traffic within the common law meaning of that word or the meanings given by the interpretation clause. We consider that upon a proper construction, possession is prima facie evidence of trafficking in the way or ways which are consistent with evidence in the case. For example, in a case where all the evidence showed the person in possession had not manufactured the drug, the possession would not be prima facie evidence of trafficking in that way.[3]
[3]Above, 659.
Counsel for the appellant submitted in the alternative that even if s 73(2) of the Act did enable the possession of a drug of dependence to be prima facie evidence of the commission of an offence against s 71AC, it was not appropriate to instruct the jury in those terms in this case. He said that where the only issue was the existence of an intention to sell, the direction created a risk of reversing the onus of proof.
Counsel likened the direction to the statement by the trial judge in R v Bacash.[4]In that case the trial judge told the jury that he had determined to admit evidence of certain telephone conversations as evidence of a common purpose between the accused and a co-accused. It was held that the judge erred in telling the jury he had
made his decision on the balance of probabilities for the jury could very easily have regarded that remark as indicating that the judge had decided that the accused was probably guilty.
[4](2001) 3 VR 428. See also R v Atallah (2001) 3 VR 437.
It is one thing for a judge to tell the jury that he has decided an issue against the accused on the balance of probabilities. It is altogether different for a judge to tell a jury that a statute enables the jury to use a certain state of affairs as prima facie evidence. The latter does not carry the risk that the jury would think that it had been determined that the accused was probably guilty and their function was to determine whether the prosecution had established guilt at the highest standard of proof beyond reasonable doubt. Indeed, in my view, it was appropriate to inform the jury of the effect of s 73(2) for otherwise the jury may have thought that, in the absence of direct evidence of commercial activity of dealing in methylamphetamine by the appellant, the prosecution was bound to fail. I do not consider that the application of the sub-section is limited to rebutting a no case submission.
In any event, the trial judge’s charge was replete with directions in emphatic terms warning the jury against concluding guilt of the offence of trafficking because possession supplied prima facie evidence. His Honour said on several occasions that the jury were to examine and act upon all the evidence.
For the foregoing reasons I dismiss the appeal.
JUDD AJA
I agree that the appeal should be dismissed for the reasons given by Buchanan JA.
Without in any way qualifying what has been said about the adequacy of the direction that was given by the trial judge in this case, I am of the opinion that the use of the expression, ‘evidence to the contrary’ , when explaining the effect of s 73(2) to a jury may, in a different context, invite the jury to think that there is a burden
imposed on the accused.
The trial judge in the present case used that expression. That part of the charge seemed to follow a formula implicitly re-endorsed by this court in R v Hiep Tan Tran[5] and in Georgiou v Queen.[6] In Tran, this court examined the meaning of the expression, ‘prima facie evidence’ as used in s 73(2) of the Act. In that case the trial judge had directed the jury in the following 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.[7]
[5][2007] VSCA 19.
[6][2009] VSCA 57.
[7]Emphasis added.
The court in Tran dealt with a submission that the direction did not adequately convey the correct meaning of the term and overstated its effect. When rejecting that submission the court noted that the passage was almost identical to a passage approved by the court on Stavropoulos v Zamouzaris.[8]
[8](1990) 50 A Crim R 315.
It will rarely be the case that there is no evidence, other than the mere fact of possession, which bears upon the purpose for which the drug is in the possession of the accused. Having told the jury that the law in this State provides that because the accused had in his possession a particular quantity of drugs, his possession was prima facie evidence of trafficking, a trial judge might more helpfully instruct the jury that in the absence of other evidence about the purpose for which the accused had the drug in his possession, it would be open for them to conclude that the accused possessed the drug for the purpose of trafficking.
This more neutral expression, coupled with the caution (given in the present case) that the mere possession of the quantity did not mean that the jury should or must reach that conclusion; and a direction that the existence of the prima facie evidence does not relieve the prosecution of the burden of proving the offence beyond reasonable doubt will, in my opinion, tend to reduce any risk that the jury might think that a burden is imposed on the accused.
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