SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 155 of 2007
| THE QUEEN |
| v |
| THEODOROS GEORGIOU |
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JUDGES: | NEAVE and REDLICH JJA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 October 2008 | |
DATE OF JUDGMENT: | 27 March 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 57 | |
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CRIMINAL LAW – Conviction – Possession of a drug of dependence – Drug was a component of trafficked drug – Whether applicant was punished twice for trafficking and possession – R v Ahmed (2007) 17 VR 454 applied – Appeal allowed and conviction quashed.
CRIMINAL LAW – Conviction – Trafficking in and possession of drug of dependence – Whether trial judge gave adequate directions on operation of ss 5 and 73(2) of the Drugs, Poisons and controlled Substances Act 1981 where the only issue at trial was whether applicant occupied the room where the drugs were found – Degree to which trial judge should direct jury on an element of the offence that is not in issue – Whether evidence of presence of shotgun shells in room was admissible to establish trafficking – Whether conviction on possession and trafficking counts was unsafe or unsatisfactory – Leave refused.
CRIMINAL LAW – Conviction – Handling stolen goods – Whether trial judge gave adequate directions that Crown had to prove that goods were not stolen by the applicant – Leave refused.
CRIMINAL LAW – Sentence – Leave granted because of successful appeal against conviction on one count of possession – Appeal allowed – Applicant resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | Mr C B Boyce with Mr M J Croucher | Matthew White & Associates |
| Respondent | Mr M A Gamble SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
NEAVE JA:
I have had the advantage of reading the draft reasons of Robson AJA. I agree with his Honour that leave to appeal should be granted, and that the appeal against the conviction on count 3 should be allowed. I also agree that leave to appeal against conviction on the other counts should be refused, substantially for the reasons that Robson AJA gives. The application for leave to appeal against sentence should be granted, the appeal allowed and the applicant should be resentenced in the manner proposed by Robson AJA.
I wish only to make some brief remarks on grounds of appeal 3, 5 and 6. I note that the learned judge below gave counsel written material on the elements of the offences of trafficking and of possession of a drug of dependence, which she proposed to provide to the jury. Apart from some written amendments which her Honour accepted, defence counsel took no exception to the written material.
So far as the counts of possessing a drug of dependence are concerned, the judge below said that possession of a thing meant that a person had actual control over it, and had an intention to maintain that control. Her Honour explained that the effect of s 5 of the Drugs, Poisons and Controlled Substances Act1981 was that…
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- AGLC
- R v Georgiou [2009] VSCA 57
- Case
- [2009] VSCA 57
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of this case revolved around the adequacy of the trial judge's directions to the jury concerning the application of sections 5 and 73(2) of the Drugs, Poisons and Controlled Substances Act 1981. The court needed to determine if the trial judge sufficiently explained the elements of the offence of trafficking and possession, particularly when the sole issue was the applicant's occupation of the room where the drugs were found. Additionally, the court considered whether the evidence of shotgun shells found in the room was admissible to prove the trafficking charge and whether the convictions were unsafe or unsatisfactory. Finally, the court assessed whether the trial judge provided adequate directions to the jury on proving that the goods were not stolen by the applicant.
The court found that the trial judge did not adequately direct the jury on the elements of the trafficking and possession offences, particularly given that the primary issue was the applicant's presence in the room where the drugs were found. The court also found that the evidence of shotgun shells was not admissible to establish trafficking, and that the convictions were unsafe or unsatisfactory. The court held that the applicant should not have been punished twice for the same act of trafficking, applying the principles from R v Ahmed (2007) 17 VR 454. The appeal was allowed, and the conviction was quashed. The applicant was resentenced due to the successful appeal against the conviction on one count of possession.
The final orders of the court were that the appeal against the conviction on the trafficking and possession charges was allowed, resulting in the quashing of those convictions. The applicant's conviction for handling stolen goods was upheld. The applicant was resentenced following the successful appeal against the possession conviction.
Orders
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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