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R v Georgiou

R v Georgiou

Case [2009] VSCA 57 27 March 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 155 of 2007

THE QUEEN

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…

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 R v Georgiou

Details

AGLC: R v Georgiou [2009] VSCA 57
Case: [2009] VSCA 57
Decision Date: 27 March 2009

CaseChat Overview and Summary

The applicant, Georgiou, was convicted of possession of a drug of dependence, trafficking in the drug, and handling stolen goods. The appeal to the court was against the conviction and sentence, with the primary focus being on whether the trial judge provided adequate directions to the jury regarding the legal principles involved, particularly in relation to the trafficking and possession charges. The court also examined whether the evidence presented was sufficient to support the convictions and whether the applicant was unfairly punished twice for the same act of trafficking.

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