Hafner v The Queen - [2011] VSCA 431

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hafner v The Queen

Details

AGLC: Hafner v The Queen [2011] VSCA 431
Case: [2011] VSCA 431
Decision Date: 15 December 2011

CaseChat Overview and Summary

In the case of Hafner v The Queen, the defendant, Hafner, was convicted of trafficking in a drug of dependence under section 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The case was heard and determined by the Victorian Court of Appeal. The central issue in the case was whether the trial judge correctly directed the jury that possession of a drug of dependence is prima facie evidence of trafficking in that drug. The court was tasked with examining the legal basis for such a direction and determining if it was appropriate for the trial judge to have instructed the jury in this manner.

The court addressed the legal issues by considering the statutory framework and the relevant case law. It examined whether the prima facie evidence rule under section 71AC of the Act was correctly applied. The court reviewed the statutory language and found that possession of a drug of dependence is indeed treated as prima facie evidence of trafficking. The court further determined that the trial judge's direction to the jury was consistent with the statutory language and existing legal precedents. The court held that the trial judge did not err in directing the jury that possession of a drug of dependence is prima facie evidence of trafficking in a drug of dependence, affirming that the jury's understanding was correctly guided.

Consequently, the court upheld the conviction, finding that the trial judge's direction to the jury was legally sound. The court dismissed Hafner’s appeal, and the conviction for trafficking in a drug of dependence was affirmed. The reasoning and outcome of the court provide clarity on the application of the prima facie evidence rule under section 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), ensuring that such directions to juries in similar cases are correctly applied.

Orders