JUDGES:	WARREN CJ and VINCENT and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2008
DATE OF JUDGMENT:	16 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 136
JUDGMENT APPEALED FROM:	R v Henderson & Warwick (Unreported, County Court of Victoria, Judge Duckett, 1 June 2006). R v Henderson & Warwick (Unreported, County Court of Victoria, Judge R. Williams, 13 December 2006).

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CRIMINAL LAW – Application for leave to appeal against conviction and sentence –Trafficking and possession of a drug of dependence – Possession of firearms – Handling stolen goods – Whether jury adequately charged on possession under Drugs, Poisons and Controlled Substances Act 1981 and Firearms Act 1996 – Meaning of ‘possession’, ‘occupy’ and ‘control’ – R v Phung [2003] VSCA 32 – R v Yeates [1981] VR 1034 – Whether test for control analogous for both drug and firearms offences – Whether direction to jury unsafe and unsatisfactory – Latent duplicity – Rule in Dyer’s case – Crimes Act 1958 ss 88 and 456AA – Leave granted – Appeal allowed – Re-sentence – Interstate sentence – Prisoners (Interstate Transfer) Act1983.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr JD McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the applicant Henderson For the applicant Warwick	Mr S Gillespie-Jones Mr M Cahill	Matthew White and Associates Andrew George Solicitors

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The search at Burton Crescent

The first trial (drug possession and trafficking)

The defence cases on the first trial

The sentences after the first trial

The second trial (possession of firearms)

The prosecution case at the second trial

Henderson’s case at the second trial

Warwick’s case at the second trial

The third trial (handling of stolen goods)

The defence cases on the third trial

The sentences on the second and third trials

Henderson’s application for leave to appeal against conviction and sentence in the first trial

Record of interview grounds

The rule in Dyers’s case grounds

Putting of the defence grounds

Henderson’s appeal against conviction in the second trial

The application for leave to appeal against conviction

Directions as to possession of firearms grounds

Henderson’s application for leave to appeal against conviction in the third trial

Warwick’s application for leave to appeal against conviction in the first trial

Warwick’s application for leave to appeal against conviction on the second trial

Warwick’s application for leave to appeal against conviction in the third trial

Summary of disposition of the applicant Henderson

First Trial

Second Trial

Summary of disposition of the applicant Warwick

First trial

Second trial

The re-sentence of the applicant Henderson

WARREN CJ:

The applicants, who are father and son, were presented on multiple counts in the County Court relating to three separate groups of offences.

They arose upon the execution of three search warrants…

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 Henderson & Warwick

Details

AGLC: R v Henderson & Warwick [2009] VSCA 136
Case: [2009] VSCA 136
Decision Date: 16 June 2009

CaseChat Overview and Summary

In this case, Henderson and Warwick were convicted and sentenced in the County Court of Victoria on various charges, including trafficking and possession of a drug of dependence, possession of firearms, and handling stolen goods. The appellants sought leave to appeal against their convictions and sentences, primarily challenging the adequacy of the jury’s instructions regarding possession under the Drugs, Poisons and Controlled Substances Act 1981 and the Firearms Act 1996. The key legal issues centred on the interpretation of the terms ‘possession’, ‘occupy’, and ‘control’ in the context of both drug and firearms offences, and whether the jury’s directions were both safe and satisfactory. The court examined the relevance of previous cases, such as R v Phung and R v Yeates, in interpreting these statutory terms and determining the appropriate test for control in these offences.

The Court of Appeal held that the jury’s instructions were inadequate because they failed to properly distinguish between the different meanings of ‘possession’ in the Drugs Act and the Firearms Act. The court noted that the term ‘possession’ in the Drugs Act includes not only actual possession but also constructive possession, whereas in the Firearms Act, possession requires actual physical control. This distinction was not adequately conveyed to the jury, leading to potential confusion and a misapplication of the law. The court also concluded that the trial judge's direction did not address the latent duplicity inherent in the jury’s verdicts, thus breaching the rule in Dyer’s case. Consequently, the Court granted leave to appeal, found the convictions unsafe and unsatisfactory, and ordered a re-sentencing. The court further directed that the appellants should serve their sentences in their home states under the provisions of the Prisoners (Interstate Transfer) Act 1983.

Given the errors in the jury’s directions and the resultant unsafe and unsatisfactory verdicts, the Court of Appeal quashed the convictions and sentences imposed by the County Court and ordered a re-sentencing. The court emphasised that the jury must be properly instructed to avoid latent duplicity and ensure that the verdicts align with the correct legal standards. In light of the appeal’s success, the court also addressed the appellants’ request to serve their sentences in their home states, providing directions under the Prisoners (Interstate Transfer) Act 1983 to facilitate this.

Orders