R v Henderson & Warwick
[2009] VSCA 136
•16 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 571 of 2006
No 918 of 2006
| THE QUEEN |
| v |
| JOHN WILLIAM HENDERSON |
No 672 of 2006
No 506 of 2007
| THE QUEEN |
| v |
| DANIEL WARWICK |
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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 |
Heading.......................................................................................................................... Page Number
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 on 25 March 2004 – the first at premises at 7 Burton Crescent, Maribyrnong, the second at Unit A24, Highpoint Self-Storage, Hampstead Road, Maribyrnong, and the third at Unit 136, Public Self-Storage, Ashley Road, West Footscray. There were other related search warrants executed at or around the same time concerning other persons but they are not relevant to this appeal.
The search at Burton Crescent
On 25 March 2004, members of the Armed Offenders Squad, members of the Dog Squad and other police went to the Burton Crescent premises to a two-storey brick dwelling divided into two sections: a self‑contained area upstairs and another self‑contained area downstairs. The upstairs section could be accessed via two external stairways, one at the front and one at the rear. The downstairs section was accessed by doors at the rear, each leading onto a balcony which led to the entrances. The upstairs section could not be reached internally from the downstairs section. The downstairs area consisted of a number of rooms. There was a living room, four other rooms, a ‘weights room’, and a toilet but no kitchen. There was a safe in one of the rooms. The upstairs area consisted of four bedrooms, a large living area, a kitchen, a bathroom and a separate toilet.
Upon executing the search warrant, the police smashed windows to gain entry in darkness at about 4.55am. The applicant Henderson was found in the downstairs section and was observed coming through an internal sliding door. Henderson was subdued, handcuffed and secured in a hallway.
The search inside the downstairs section located a .22 Ruger firearm and ammunition in a wall unit. A black wallet which contained a driver’s licence and bankcards bearing the name of Henderson was found on a couch which resembled a bed. The search of the premises also located an air rifle; bags of cannabis, including some amounts on a table, together with a set of scales; 14 grams of heroin and eight grams of methylamphetamine; and, a large safe which was opened by police technicians. In the rear garden, a police dog located a substance identified as cannabis in a plastic garbage bag under a vine. Police also found one other small packet in the backyard and two separate bags of cannabis in the ground floor section of the premises.
Henderson was searched. The police found a plastic snaplock bag containing two grams of cannabis in the pocket of his tracksuit pants and a key. The amounts of cannabis found at 7 Burton Crescent were:
-the garbage bag found behind the vine on the fence = 312g;
-the small packet found in the backyard = 3.8g;
-the two bags on the ground floor = 52.3g; and
-the package found in Henderson’s tracksuit pants = 2g.
All items seized were fingerprinted and no identifications were made.
After Henderson was arrested, another individual was found in the downstairs section, one Frank Marijancevic, Henderson’s brother, who was hiding by lying on the floor between a wall and a bed under some bed clothing. He too was searched.
Entry to the upstairs section was effected by a ramming device applied to the front door. The applicant Warwick was found in bed. When Warwick was asked, he said he lived there. Penny Warwick was found in bed in another room. She is the mother of Warwick and the mother of Beau McMahon, a co-accused. McMahon was arrested on the same day at about 6.50am following police entry at a Werribee property. Although charged, McMahon was acquitted and is not involved in these proceedings.
When later interviewed, both Henderson and Warwick said that they had no knowledge of the cannabis. In his interview, Henderson gave his address as 7 Burton Crescent. He did this both before the provision of a formal caution against self incrimination[1] and during his answers.
[1]Section 464AA Crimes Act1958 (‘Crimes Act’).
A total quantity of 370 grams of cannabis was found at 7 Burton Crescent.
Prior to the searches on that day, the police had conducted surveillance of the property and observed Henderson, Warwick, McMahon, and others, attending there. There was also monitoring of the telephone at 7 Burton Crescent and the mobile telephones of Henderson, Warwick, McMahon and Marijancevic.
The first trial (drug possession and trafficking)
On 19 April 2006, the applicants Henderson and Warwick, together with the McMahon, appeared on 28 counts relating to drug possession and trafficking, possession of firearms and receiving stolen goods. The applicants applied for severance of the presentment into three parts: one relating to the drugs counts, one relating to the firearms counts and one relating to the stolen goods counts. The trial judge ruled that the presentments be severed so that counts 1 to 8 (the drugs counts and two of the firearms counts) be heard together with the balance to be heard in two separate trials.
Ultimately, at the first trial, the applicants and the co-accused McMahon were presented on the counts of trafficking and possessing cannabis L (counts 1 and 2), trafficking and possessing methyl amphetamine (counts 3 and 4), trafficking and possessing heroin (counts 5 and 6) and possession of a Ruger sawn-off self-loading rifle and a Shanghai model 61 single shot air rifle (counts 7 and 8). The applicants pleaded not guilty to all counts. Henderson was acquitted on the drug possession counts (counts 2, 4 and 6) and convicted on the trafficking counts (counts 1, 3 and 5) and the firearms counts (counts 7 and 8). Warwick was acquitted on counts 2 to 8 and convicted on the cannabis trafficking count (count 1). McMahon was acquitted on all counts.
At the first trial, Henderson gave evidence that he did not live at 7 Burton Crescent. He said that his former wife, Penny Warwick, lived upstairs and that Ms Warwick and he had divorced about a year earlier. He said that she had a health condition for which he received a carer’s pension and that he went to the house almost daily to look after her. He said his son, the applicant Warwick, his daughter and granddaughter all lived upstairs with his former wife and that his brother, Marijancevic, lived downstairs. Henderson said he gave Burton Crescent as his address in the record of interview, notwithstanding that he lived at 10 Tower Hill Road, Glen Iris, because he feared the police. He said ‘they’d just smashed 7 Burton Crescent up, and I didn’t want the same thing to happen at Tower Hill Road’. He said he did not live at 7 Burton Crescent and did not have a key to those premises. Henderson said he paid the rent for Tower Hill Road in cash and there were no receipts.
He explained his presence at 7 Burton Crescent on the morning of the search by saying he had been talking to Marijancevic most of the night about Marijancevic’s drug addiction and rehabilitation. When asked about the items found at Burton Crescent at the time of the search, he said he knew nothing about them. He said the items of clothing found in the downstairs section belonged to Marijancevic and claimed that the item of cannabis found on him was not there before the police search. Henderson admitted that a four wheel drive vehicle observed at Burton Crescent during police surveillance was registered in his name and at that address but asserted that it was owned by Ms Warwick.
The defence cases on the first trial
In summary, Henderson’s defence at the first trial was that:
1. He was not an occupier of the premises at 7 Burton Crescent and therefore the deeming provisions of the drug legislation did not apply;
2. He did not have access to the Burton Crescent premises;
3. The items of clothing, drugs and related equipment and the weapon found at the premises were not his;
4. The cannabis found in his pocket had been planted by someone else;
5. He had no connection with the Burton Crescent premises or the items found by the police on 25 March save that he happened to be visiting and seeing Marijancevic at the time; and
6. Marijancevic was involved with, and a user of, drugs and was living at 7 Burton Crescent, as borne out by police telephone surveillance recordings.
Warwick did not give or call evidence at the first trial. In summary, his defence was that he lived upstairs at 7 Burton Crescent which was separate from, and had no internal access to, the downstairs area. He was not an occupier of the downstairs section of the premises, and therefore had no connection with the items found on the ground floor or in the rear yard.
For completeness, I mention that McMahon’s defence was that although an occupier at 7 Burton Crescent, he was not present at the time of the search and could not be deemed to be an occupier of the premises.
As already described,[2] there was evidence led at the first trial that the police monitored calls made to and from the telephones at 7 Burton Crescent and the mobile telephones of each of Henderson, Warwick, McMahon and Marijancevic, recordings of which were played to the jury. The officer in charge of the investigation, Senior Sergeant Byrt, acknowledged in cross-examination that Marijancevic, who was not charged, had extensive prior convictions for offences concerning heroin, amphetamines and cannabis and that Marijancevic’s phone calls amounted to ‘suspicious activity’.
[2]See [12].
The sentences after the first trial
Following the convictions on the various counts in the first trial, the applicant Henderson was sentenced as follows:
· Count 1 (the trafficking of cannabis) – two years’ imprisonment with one year to be served cumulatively to all other sentences.
· Count 3 (the trafficking of methyl amphetamine) – one month’s imprisonment to be served cumulatively to count 5 and the other sentences.
· Count 5 (the trafficking of heroin) – one month’s imprisonment to be served cumulatively to count 3 and the other sentences.
· Count 7 (possession of the sawn-off rifle) – 3 years’ imprisonment.
· Count 8 (possession of the air rifle) – 18 months’ imprisonment with 6 months to be served cumulatively to the other sentences.
· Count 7 was specified as the head sentence and, therefore, the total effective sentence was 4 years and 8 months. A non-parole period of 3 years was fixed.
The applicant Warwick was sentenced on count 1 to 12 months’ imprisonment.
The second trial (possession of firearms)
Following an order for severance of the remaining counts relating to handling stolen goods, the applicants appeared again in the County Court on 23 October 2006 before a different judge on seven counts relating to possession of firearms located at a storage unit. The applicants were both charged with being prohibited persons in possession of:
· a registered firearm, a 12 gauge Miroku double-barrelled shotgun (count 1);
· an unregistered firearm, a Winchester Ranger lever action rifle (count 2);
· a registered firearm, a 12 gauge Miroku MK-70 Sport double-barrelled shotgun (count 3);
· an unregistered firearm, a Norinco SKS self-loading rifle (count 4);
· an unregistered firearm, a Lithgow short magazine bolt-action repeating rifle (count 5);
· an unregistered firearm, a Baer custom model self-loading pistol (count 6); and
· an unregistered firearm, a Colt Gold Cup self-loading pistol (count 7).
Both pleaded not guilty to all counts. Henderson was convicted on all counts while Warwick was acquitted on counts 3, 4, 6 and 7 and convicted on counts 1, 2 and 5.
The second trial related to surveillance and a search of a storage unit identified as Unit A24 at Highpoint Self-Storage on 25 March 2004, the same day as the search of the premises at 7 Burton Crescent. Prior to that day, the police installed a surveillance camera at the storage facility which was triggered by movement.
A roller door provided access to the storage facility and once inside a key was needed to open a padlock at the individual unit.
On 5 March 2004, a telephone call was intercepted between Henderson and Warwick at 3.12pm in which Warwick asked Henderson for a white plastic card. Henderson was recorded as saying the card was not needed and to go in and ‘tell them to open it’. Shortly after that call, Warwick, Penny Warwick and McMahon were filmed entering Unit A24. Warwick was observed to open the unit and enter for less than one minute. He did not take anything into the unit but left with a small object the size of his palm and which he placed in his pocket.
Henderson was observed to enter and exit the unit on 8, 10, 11, 16, and 18 March. Most attendances were in the order of two minutes. On one occasion, he was seen to deposit into the unit two objects carried in his hands: a chainsaw and a car battery starter. On 11 March, he exited the unit with an item in his left hand. On this occasion, he was also observed leaving Burton Crescent to attend the unit and then returning.
On 16 March, Warwick went to the unit with Henderson. Warwick walked in empty handed and emerged with a plastic shopping bag. The pair were recorded as being in the unit for about two minutes.
There was no surveillance of either applicant handling any firearms. There was no footage of firearms being placed in the storage unit. The only other persons recorded on film were individuals visiting the storage centre walking past Unit A24.
At the execution of the search warrant at Burton Crescent, the police located on Henderson the key to the padlock of the unit. The police also found two cards in a vehicle at the address that activated the roller door at the storage facility. After the search at 7 Burton Crescent, at about 8.55am, the police went to the storage facility. They found the unit three-quarters filled with boxes, bags and containers. There were many chequered shopping bags, most of which contained nothing of interest to them; however, the following items were found:
·a black backpack from which the barrel of a Lithgow short magazine bolt action repeating rifle protruded;
·a green plastic garbage bag containing a double-barrel shotgun broken into three parts;
·a Baer custom model self-loading pistol;
·a black firearms case containing a lever action 30-30 rifle with a telescopic sight together with rounds of ammunition;
·a striped shopping bag containing a double-barrelled shotgun broken into three parts;
·a green canvas style bag containing a Norinco SKS self-loading rifle and a number of boxes of ammunition in a plastic bag;
·a chequered shopping bag containing a semi-automatic handgun and magazine; and
·a bag from which a shotgun protruded.
The police did not photograph or film the storage unit before a truck was brought in and the items removed to police storage. The only bags showing the protrusion of a firearm were the black backpack and one other bag. One police witness said the most obvious items visible when the storage unit was opened were the firearms. Neither the fingerprints of Henderson nor Warwick were found on the firearms or other items seized from the storage unit.
The manager of the Highpoint Storage Facility, Mr Simmons, gave evidence that the rental agreement for Unit A24 at Highpoint was in the name of one Marcia Gail Nettleton at a Mildura address. The agreement bore the signature of ‘P. Warwick’. He said the facility operated between 9.00am and 5.00pm Monday to Friday and between 10.00am and 3.00pm Saturday and Sunday. There were security gates at the front of the facility which were closed when it was not operating. Sometimes the security gates were left open. When a customer wished to access a storage unit, they were required to attend the office and sign a register. However this was not always done. In order to access the facility the customer operated a roller door by a swipe card. Once opened, the roller door would stay open for an hour. If a person swiped a card to access the roller door it was recorded. The front gates and three roller doors were monitored by video cameras. A new tape was inserted daily, rotated and re-taped every seven days. The manager said the tapes were not very clear or of good quality. He also said that access could be achieved to Unit A24 through a roller door without going to the office.
The manager gave evidence that the last recorded access to Unit A24 prior to the day of the search was on 11 March 2004 (although if the roller door was open electronic access was unnecessary). The police did not request the footage taken by the surveillance cameras and this was subsequently wiped.
Marcia Gail Nettleton gave evidence that she travelled from Mildura to Melbourne in 2003 to open a storage facility at Highpoint Self Storage for Penny Warwick. She had personally never stored any items there. She did not complete the rental agreement for the unit but provided her personal details and identification to the management. She said Penny Warwick signed the rental agreement. The manager, Mr Simmons, gave evidence that the rent for the unit was paid in cash.
The applicants admitted that they were prohibited persons for the purposes of the Firearms Act 1958 and that the various firearms as listed in the presentment were unregistered as specified.
The manager of the storage facility also gave evidence that about two months before the police surveillance of the unit commenced in early March 2004, two unidentified young men in a black Toyota Seca came to the unit and gained access. He also stated that, on 25 March 2004, after the police completed their search of the unit, two unknown men asked him for access to Unit A24. He had placed a new padlock on the unit and gave the key to them. One signed the register as ‘Jamie Smith’. They told the manager they wanted to access the unit to replace some broken pot plants for their aunt.
After the police searched the unit and took some items away, other items were subsequently left in the storage unit.
The surveillance camera used to monitor those entering the unit was turned off on the morning of the search. There was some difference in the police evidence as to what precisely was visible when looking into the unit at the time of the execution of the search warrant. One of the police members involved said he could not be sure whether a rifle was protruding from a backpack. Another said he had a vivid recollection of the firearm barrel protruding from the bag and of seeing the firearm case.
The police were challenged at trial as to whether any of the firearms were visibly protruding from the bags in the unit when it was opened by them. Senior Sergeant Byrt, who was present at the search of the storage unit, said in his evidence-in-chief:
I could see a bag that had what was obviously the barrel of a firearm protruding from it, pointing straight up in the air. I could see that that firearm was actually a rifle, from where I was. I could also see a black rifle case, firearms case, which is a hard plastic case… I also have a recollection of seeing part of another firearm that I believed to be a shotgun, just a small part of it, a shotgun protruding from another bag… .
Under cross-examination by Henderson’s counsel he said:
…My vivid recollection is of that firearm barrel standing out of the bag, my eyes were drawn straight to it.
Henderson gave evidence that he would go to the storage unit for his former wife, Penny Warwick, in order to retrieve items of clothing and other things such as a battery starter for her. He also remembered being sent by Warwick to the unit to collect a brown jumper and that he could not find the item as there were 30 to 40 bags stored there. There were other times when he collected items, including a green garbage bag and some boxes of crockery. He said the storage unit belonged to a person called ‘Gail’ and Ms Warwick had keys and an access card to it. He said the keys to the unit were in his wife’s bag and were given to him when he was sent to the unit together with the card used to open the roller door.
Henderson stated that he had visited the unit the day before the search and had left the keys to the unit in the Toyota Landcruiser, parked outside the Burton Crescent premises. He explained that he had the keys and card found by the police in his car and in his trouser pocket because Penny Warwick had asked him to collect something from the unit. He intended to go to the storage unit the next day.
Henderson said he did not have any items in the unit and asserted that he had never touched, seen or knew about any firearms there and he did not know who put them in the unit.
Henderson said another person, Beau Goddard, received a key to the unit from Penny Warwick but did not suggest that this person may have had knowledge of the firearms in the unit. Henderson said he went to the storage unit once with the applicant Warwick and a bag was collected for Penny Warwick.
Warwick did not give or call evidence.
The prosecution case at the second trial
The prosecution’s case in the second trial was that each of the applicants was in possession of the firearms as he had the necessary knowledge and control of the relevant items. In particular, the prosecution relied on the evidence that in 23 days of surveillance before the police raid, there were five visits by Henderson and two visits by Warwick. The primary elements of the prosecution case were:
· The arrangement for the rental of the unit by Nettleton and its rental in the name of Penny Warwick was a ruse or front. This was because Henderson and Warwick were prohibited persons and needed a place to store the firearms at arm’s length.
· The involvement of Nettleton was unexplained if Henderson was caring for his wife. That was fortified by the finding of the key and swipe card on Henderson and in his car on 25 March.
· Henderson and Warwick were both living at Burton Crescent on 25 March and that it was fanciful to suggest Henderson was living elsewhere.
· The applicants knew of the firearms in the storage unit. The applicants had visited the unit before 25 March and searched for items. The state of the unit on 25 March was the same as earlier in time when the applicants visited. There was no significant disturbance to the items in the unit as seen on 25 March.
· It was unlikely that there was any access, use or occupation of the unit by a third person. Even if this was the case, it was unlikely such person would leave firearms in a unit in the name and for the use of someone else.
Henderson’s case at the second trial
At the second trial Henderson submitted:
· The fact the storage unit was kept for innocent purposes could not be excluded.
· He acted as a carer and assistant to Penny Warwick and otherwise had nothing to do with the storage unit.
· He did not have exclusive access to the unit.
· Access by others to the unit could not be excluded.
· The police evidence as to their observations of firearms on first opening the storage unit on 25 March was inconsistent and unreliable and no photographs were taken at that opportunity.
· He had no knowledge of the firearms in the unit.
Warwick’s case at the second trial
Warwick relied on the matters advanced on behalf of Henderson. In addition, he also submitted:
· His involvement was minimal. He only went to the storage unit twice and, even then, was accompanied by other persons.
· He was unknown to the storage manager, Simmons.
· He was not in possession of the key or card for the unit.
· There was no evidence of joint possession with Henderson. When he wished to access the unit he called Henderson and spoke of his mother’s card rather than ‘his card’ or ‘our card’.
Henderson was convicted on all counts. Warwick was convicted on counts 1, 2 and 5 and acquitted on counts 3, 4, 6 and 7.
The third trial (handling of stolen goods)
The applicants appeared on 8 November 2006 in the County Court before the same judge as in the second trial on the remaining ten counts from the original presentment. These counts related to dishonestly handling stolen goods, described as follows:
· a dumpy level, a dumpy level tripod, a Ramset fastening gun and chargers, a ‘Dyna’ drill and two repelling safety harnesses (count 1);
· a quantity of pharmaceutical products and cosmetics (count 2);
· burnt Australian currency in the sum of $43,865.20 (count 3);
· two Minolta cameras and three camera lenses (count 4);
· a Honda portable generator (count 5);
· a Bosch hammer drill (count 6);
· a Kango drill (count 7);
· one Elan snowboard and a pair of ski boots (count 8);
· a Nissan portable generator (count 9); and
· a wireless Westpac RF electronic transfer point of sale terminal and a pencil case containing documents and business cheques (count 10).
Both pleaded not guilty to all counts. They were convicted on counts 1 and 4 and acquitted on the others.
The counts related to the search conducted at the Highpoint Self-Storage facility (counts 1 to 9) and an additional search at the Public Self-Storage facility at West Footscray (count 10), also on 25 March 2004. In addition to the guns and ammunition that were the subject of the second trial, the search at the Highpoint unit located a number of items including various power tools, pharmaceutical items, photographic equipment and quantities of cash (some burnt and damaged) to the value of $43,865.20. The search of the West Footscray unit located various items including a pencil case and paperwork, a briefcase containing an EFTPOS machine, a camera lens, a generator, a snowboard and ski boots. There was evidence that this search was filmed, however the footage was missing.
The evidence in relation to surveillance, access and attendances at the Highpoint facility was essentially the same as at the second trial. On 1 March 2004, the police had installed a surveillance camera at the West Footscray unit. In the period from 1 to 25 March, no person was seen entering or exiting the unit.
Mr Pendlebury, the manager of the West Footscray storage facility gave evidence that the agreement and accounts for the relevant storage units, Units 136 and 124, were in the name of ‘David Stogg’ at 73 Roberts Street, West Footscray. Helen Stogg, who lived at that address and was the widow of David Stogg, gave evidence that she had lived there since 1972 continuously and did not know anything about the storage units. The applicant Henderson was an acquaintance of her late husband. The witness said she never received mail from Public Self Storage and that if she had received any that did not have her name on it, she would have thrown it out.
The manager of the West Footscray storage facility also gave evidence that Unit 124 was vacated on 6 November 2002 and he recalled seeing people moving items from that unit to Unit 136 on that day. The manager recalled dealings with persons named ‘Daniel’ and ‘David’, and received rental payments in cash from them. He had identified these persons from photographs provided by the police, as the applicants Warwick and Henderson respectively.
There was police evidence about various keys and swipe cards being found at the Burton Crescent address and on each of the applicants. Two keys to the West Footscray facility were found on Warwick when he was interviewed. However, he claimed they were not there before he was searched.
There was evidence that the items identified on counts 1 and 4, power tools and equipment and photographic equipment, on which the applicants were convicted, were stolen.
The defence cases on the third trial
The prosecution’s case at the third trial was wholly inferential:
· The relevant goods found in the storage units at both Highpoint and West Footscray were stolen.
· Both units were rented in false names: in the name of Nettleton for Penny Warwick at the Highpoint unit; in the name of David Stogg at the West Footscray unit.
· The mobile phone of Henderson was listed in a false name.
· If the unit at Highpoint was for Penny Warwick, why would Nettleton come from Mildura to make the rental arrangements? Why was the unit not rented in the name of the applicants?
· Use of a storage unit to store stolen goods was consistent with receiving and storing stolen goods.
· It was fanciful to suggest a person other than Henderson or Warwick or both would place stolen items, including the cash, in a storage unit owned and controlled by someone else.
· Warwick used the key to the Highpoint storage unit on 5 March and Henderson also used the keys to the unit, which along with the swipe card, were found on him and in his car on 25 March. Warwick made an enquiry about the swipe card on 5 March but not about the key.
· Henderson had a number of keys for the West Footscray unit.
· A young man called ‘Daniel’ was seen at the West Footscray unit in November 2002, maybe once or twice and not since by the manager of the West Footscray unit, Mr Pendlebury. The person ‘Daniel’ and one ‘David’ both used the unit and paid the rental to Mr Pendlebury.
· Mr Pendlebury believed the unit was rented by one ‘David Stogg’. Periodically he would call ‘David’ to remind him the unit rental was due. The person he spoke to would then come and pay the rental. That person drove a four-wheel drive vehicle registration number PVW201 registered in the name of Henderson.
· Mr Pendlebury did not see anyone at the unit except the persons ‘Daniel‘ or ‘David’ or persons in their company.
· The payments for the West Footscray unit were made by Henderson under the name ‘David Stogg’ or a few times by Warwick as ‘Daniel’.
· It should be inferred that only the applicants (or persons and family associated with them) accessed the Highpoint unit:
- Henderson was filmed attending five times during 2 to 25 March.
- Warwick was filmed attending twice (once with Henderson) in the same period.
· So far as third parties in a black Toyota Seca visited the Highpoint unit on 25 March 2004, a black Toyota sedan was registered in the name of Penny Warwick.
· The items in the Highpoint unit were obviously stolen and were unlikely to belong to Penny Warwick or Nettleton.
· It was fanciful to suggest any third party would store stolen goods in the units knowing others (Henderson and Warwick) had keys and control of the units.
Henderson’s case at the third trial was:
· There was delay from the actual date of theft of the stolen items located in the units until 25 March 2004. This weakened the likelihood that Henderson knew the items were stolen.
· There were no photographs before the search started at either unit of its contents.
· Access to the Highpoint unit was not limited to Henderson. There was a reasonable possibility of access by other persons that cannot be excluded.
· Other persons were placing items into the units such that either Henderson did not know about it or alternatively did not have the necessary intent to possess the items.
· There were no fingerprints or DNA found on any items in the units.
· Ultimately, there were too many gaps in the prosecution case to permit the inferences invited by the prosecution to be drawn.
Warwick’s case was similar but with the additional aspects:
· The connection between the accused and the Highpoint unit was minimal: Warwick only went to the unit twice and each time in the company of others; the manager, Simmons, did not know him; he did not have a swipe card; he did not have a key to the Highpoint unit on him; when he went to the unit on 5 March the key he used may have been his mother’s.
· The connection between Warwick and the West Footscray unit was also minimal: he was there in November 2002 with others; he paid the rent once or maybe twice; he did not attend the unit alone.
· The evidence of the finding by the police of the West Footscray unit keys on Warwick then should not be accepted.
The sentences on the second and third trials
After Henderson was convicted at the second and third trials, the trial judge invoked the provisions of the Courts Legislation (Jurisdiction) Act 2006 and aggregated the consequent sentences. Henderson was sentenced to a total of four years’ imprisonment on the firearms offences and a total of two years’ imprisonment on the handling stolen goods offences, with one year of the latter to be served cumulatively, making a total effective sentence of five years. The trial judge took account of the sentence imposed for the offences in the first trial and directed that three years of the five year sentence then being imposed be served cumulatively on the earlier sentence of four years and eight months, making a head sentence of seven years and eight months commencing from 1 June 2006. A new non-parole period of five years and two months effective from 13 December 2006 was fixed.
Warwick had already served the sentence imposed upon him following the first trial by that time. He was sentenced to two years and six months’ imprisonment on the three firearms counts from the second trial and one year’s imprisonment on the handling counts with six months from the third trial to be served cumulatively, making a total effective sentence of three years. A non-parole period of one year and six months was fixed.
Henderson’s application for leave to appeal against conviction and sentence in the first trial
Henderson seeks leave to appeal the convictions and sentences relating to the first trial on nine grounds. In summary, they are concerned with the claimed erroneous admission of the record of interview, the manner of proof of amounts of cannabis, erroneous directions by the trial judge, inadequate charging of the jury as to his defence and contention that the verdicts were unsafe and unsatisfactory in the circumstances. I now turn to these grounds.
Record of interview grounds
Three claims of error with respect to the admission of the record of interview were advanced, namely:
1.The learned trial judge erred in admitting into evidence the record of interview;
2.The learned trial judge erred in admitting into evidence the statement of the applicant that his name and address was “John William Henderson 7 Burton Crescent, Maribyrnong”;
3.The learned trial judge erred in failing to take into account section 456AA(2) and (3) of the Crimes Act 1958.
At the beginning of the police interview and before any caution with respect to possible self-incrimination was given, Henderson was asked his name and address and volunteered it as 7 Burton Crescent. The prosecution sought to lead this question and answer in evidence. His counsel objected to its admission on the basis of unfairness.[3] His address was important because of the deeming provisions contained in s 5 of the Drugs Act[4] and s 145 of the Firearms Act[5] to the effect that the occupier is deemed to be in possession of the prohibited item unless the occupier can prove otherwise. In any event, his actual residence at the premises in which the materials were found would be a relevant consideration when determining when he was to be found to be in possession of them. Counsel submitted that his client should have been informed at the outset that he had the right to refuse to answer any question asked of him and, in particular, that he was entitled to the provision of a caution concerning answers that might incriminate him. Accordingly, it was argued, the admission of his answer was unfair and the evidence should have been excluded in the proper exercise of discretion. This contention was considered and rejected by the trial judge. In further support of his submission, counsel relied upon s 456AA of the Crimes Act 1985. Section 456AA(1)-(3) provides:
[3]Reliance was placed upon the principles set out in authorities such as McDermott v R (1948) 76 CLR 501; Lee v R [2007] HCA Trans 482 and Cleland v R (1982) 151 CLR 1 (‘Cleland’).
[4]Drugs, Poisons and Controlled Substances Act 1981, (‘Drugs Act’).
[5]Firearms Act 1996 (‘Firearms Act’).
S 456AA(1) A member of the police force may request a person to state his or her name and address if the member believes on reasonable grounds that the person –
(a)has committed or is about to commit an offence, whether indictable or summary; or
(b)may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed.
s456AA(2) A member of the police force who makes a request under sub-section (1) [i.e. for the person to state his or her name and address] must inform the person of the grounds of his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.
s456AA(3) A person who, in response to a request made by a member of the police force in accordance with this section –
(a)refuses or fails to comply with the request; or
(b)states a name that is false in a material particular; or
(c)states an address other than the full and correct address of his or her ordinary place of residence or business – is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).
Obviously, the impugned evidence was both relevant and admissible and the question which then arises is whether, the proper exercise of discretion required its exclusion.
The trial judge concluded that s 456AA(3) of the Crimes Act expressly authorised the absence of the caution as it states ‘other than the person’s name and address’. Certainly, a good argument can be mounted for that view. However, it is not necessary to determine that question as, even if the provision was not presumed to have that effect, there was no suggestion that the statement of name and address was involuntary or induced by any improper or unfair behaviour on the part of the police member concerned. The applicant was not inexperienced with respect to police or investigative procedures. It has not been argued that he may have been unaware of his rights generally or that, had a caution been given, he would have refused to provide his address. Whether or not he was acquainted with the concept of possession in the relevant legislation, it can reasonably be assumed that he would have understood that once he indicated that he resided at the particular premises, he may possibly have been regarded as associated with materials found there. In other words, save that it has been asserted that the proper procedure was not followed, no basis for finding of possible unfairness has been demonstrated. There is nothing to suggest that the prejudicial effect of the admission of this evidence outweighed its probative value or that it should have been excluded by reason of public policy considerations.[6] Nor in my view was there any unfairness of the kind considered in the authorities that would have required or warranted its exclusion.
[6]See Cleland.
No error has been made out with respect to grounds 1, 2 and 3.
The second category of the grounds of appeal for the applicant Henderson against his convictions in the first trial relate to a claim of latent duplicity or ambiguity.[7] It was submitted that the prosecution achieved a conviction without identifying the particular amounts of cannabis upon which it relied to prove its case (ground 4).
[7]Johnson v Miller (1937) 59 CLR 467 (Dixon J).
Interwoven with ground 4 are the grounds relating to possession and trafficking, grounds 5 and 8:
Ground 5: The learned trial judge erred in his directions as to possession of (a) drugs, (b) any particular amount of drugs, (c) firearms.
Ground 8: The learned trial judge erred in his directions as to trafficking.
A central focus of the appeal was the issue of occupation of the premises at 7 Burton Crescent. Counsel for the Crown submitted that there was sufficient evidence to support the finding that Henderson occupied and had control of the premises and therefore could be deemed to be in possession of materials located there. Emphasis was placed on the access between the upper and lower levels of the building. Plans and photographs showed that the backyard was accessible from both levels and constituted common property. Further, it was said, there was one kitchen and one bathroom between the two levels which implied access to both areas. In addition, it was pointed out that, when interviewed, Henderson gave his address as 7 Burton Crescent and only later sought to qualify that.
Against these submissions, it was said that other persons were known to attend the premises as was apparent from the police surveillance. Further, Marijancevic was present at the time of the raid. However he was not charged.
Clearly, the trial judge was bound to direct the jury as to how the manner in which the concept and evidence of possession could, depending upon their findings of fact, apply in the particular case. These remarks apply equally to the drug and firearms counts.
In this context regard must be had to the separate definitions applicable to the two categories of counts.
The Firearms Act
Section 3possession in relation to a firearm, includes – (a) actual physical possession of the firearm; or (b) custody or control of the firearm; or (c) having and exercising access to the firearm, either solely or in common with others.
Section 145In any proceedings under this Act, evidence that a person occupies any land or premises on or in which any firearm is found is evidence, and, in the absence of evidence to the contrary, is proof that that person possessed the firearm.
The effect of these provisions is that, if a person is in actual physical possession of a firearm, or has custody, control or exercises access to a firearm, solely or with another, then that person is considered to be ‘in possession’ of the firearm. The definition in s 3 deals with possession generally, while s145 deals with the circumstance where a firearm is found on land or in premises which a person occupies.
Section 5 of the Drugs Act provides:
Meaning of possession
Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.
In effect, this provision is an amalgam of ss 3 and 145 of the Firearms Act. A substance is deemed to be in the possession of a person whilst it is upon the land or premises occupied by that person (analogous to s 145), or the substance is used, enjoyed or controlled by that person anywhere (analogous to s 3).
Section 5 of the Drugs Act was considered in R v Phung[8] where Vincent JA said:
The word ‘occupied’ in s.5 does not stand alone. It is used in conjunction with ‘used, enjoyed or controlled’ to encompass a wide variety of factual situations. Whether an accused person's connection with premises falls within the provision is, as his Honour instructed the jury, a matter of fact. It was not, of course, to be determined by reference to indicia of occupancy applicable in other contexts. The question posed by Roskill, L.J. in R. v. Tao[9] ‘[W]hat is the mischief against which this section is aimed?’ arises here. In that matter, it was the punishment of those who permitted the smoking of cannabis in premises under their control. His Lordship then said:[10]
"This suggests that Parliament was intending not that a legalistic meaning should be given to the phrase 'the occupier' but a common sense interpretation, that is to say 'the occupier' was to be regarded as someone who, on the facts of the particular case, could fairly be said to be 'in occupation' of the premises in question, so as to have the requisite degree of control over those premises to exclude from them those who might otherwise intend to carry on those forbidden activities I have already indicated."
There can be no doubt that the ‘mischief’ with which the legislature was concerned included the trafficking in and possession of drugs of dependence when enacting the relevant provisions of the Drugs, Poisons and Controlled Substances Act. Accordingly, the kinds of connection with premises encompassed by s.5 must be seen to be related to and inextricably linked with the deemed possession which arises once the required occupation, use, enjoyment or control is found to exist. His Honour dealt with the notion of occupation of premises in this context, making it clear, in my opinion, that the jury had to consider whether the applicant could be said to have been in practical control of the premises at the relevant time, bearing in mind that in consequence of the making of that finding (unless he satisfied the Court to the contrary) he would be deemed to be in possession of what was found there. The ability to control access would, of course, be crucial in answering this question. No reasonable jury could have been under any misapprehension on this aspect and the possibility that they may have regarded the mere presence of the applicant in the unit as sufficient is, in my view, fanciful. [11]
[8][2003] VSCA 32 (‘Phung’).
[9][1977] 1 Q.B. 141 (Citation in original).
[10]At 144 (Citation in original).
[11]Phung [27].
The provision in Yeatesv Hoare[12] was cast in similar terms to that under consideration here.[13] In that case, the offender’s wife bought a shotgun and, with the knowledge of the offender, hid it under their bed. A fortnight later, the wife left to live elsewhere and for immediate convenience left the gun behind. When on the next day, the police searched the premises, they found the gun where the wife had left it. The offender was charged with possession of a firearm for which he did not hold a licence.[14] Kaye J held that:
The condition of actual physical possession included in the definition corresponds with the words ‘actual possession’ which appeared in the Police Offences Act 1915 in s 40 (now The Summary Offences Act 1966, s26), and of which it was said in Moors v Burke (1919) 26 CLR 265, at p. 274: ‘Having actual possession means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right of power to place his hands on it, and so have manual custody when he wishes.’
Possession as defined by the Act, however, is not limited to possession according to doctrines of civil law, or to actual possession as interpreted in Moors v Burke. It embraces the factual situation of a person, unendowed with any propriety or exclusive possessory rights, having the physical custody or control of a firearm, and to the factual situation of a person who has and exercises access to a weapon, whether alone or shared with others. The word ‘custody’ in the definition does not have any legal or technical connotation. Its meaning in this statute is the ordinary dictionary one of safe keeping, protection, charge or care: see Oxford Shorter Dictionary, 3rd ed., vol. 1, p. 442. Similarly, control denotes actual power to deal with the article in question by restraint or direction: cf. Williams v Douglas (1949) 78 CLR 521, at p. 528, per Rich J. There is no warrant for qualifying either the words ‘custody’ or ‘control’ or ‘access’ with any legal doctrine of possessory rights, nor is there any justification for reading down the words by importing the need for some physical act in connection with the weapon consistent with ownership or dominion.[15]
[12][1981] VR 1034 (‘Yeates’).
[13]See [73].
[14]Section 22AA(1) of the Firearms Act 1958 then provided: ‘no person shall have in possession or carry a firearm … unless he holds a shooter’s licence’.
[15]Yeates, 1037.
The policy of the Drugs Act was considered in R v Hiep Tan Tran[16]:
One of the underlying rationales for the deeming provision is the fact that a person will not be an occupier unless they have a requisite degree of control over the premises so as to be able to control access to it, and hence be able to control access to the substance which they are alleged to possess. So a person who has control over a building will have possession of a pocket book dropped within it. A person driving a car will have possession of the items in the boot. A person with the sole key to a locker will have control over the items in the locker. Even in a shared house, a person who can control access by hiding an item will have the necessary degree of control over it. [17]
[16]R v Hiep Tan Tran [2007] VSCA 19.
[17]Ibid [20].
For both applicants, it was submitted that the Acts involved different statutory definitions requiring the provision of different jury directions, in the absence of which it was said that there was a risk of confusion.
Turning then to what actually occurred at the trial and whether there was any such risk, the trial judge charged the jury first as to ‘possession’ under the Drugs Act, as follows:
A person is deemed to be in possession of drugs so long as the drugs are upon any land or premises occupied by that person, unless that person satisfies the court to the contrary.
So that if you are satisfied beyond reasonable doubt that any one of the accused men occupied the premises at no. 7 Burton Crescent on 25 March 2004 then that accused is deemed to be in possession of those drugs. The onus then shifts to each of the individuals separately accused to satisfy you on the balance of probabilities, not beyond reasonable doubt, but on the balance of probabilities that he did not have possession of the drugs at that time.
…
The law provides that once a person is deemed to be in possession of drugs, the onus then shifts to the defence to the [sic] individual accused to satisfy you on the balance of probabilities that the accused did not have such possession that is that he either did not know about the drugs or alternatively he did not intend to exercise control over the drugs.
Next his Honour directed as to possession for the purposes of the firearms counts. He said:
In connection with the two counts concerning possession of firearms, you must consider all the evidence before you and in the light of that evidence you decide if the prosecution has satisfied you beyond reasonable doubt that the accused had possession of those firearms, that is that they knew of the presence of those firearms and that they intended to exclude others from having possession of those firearms.
An exception was taken that the direction failed to direct the jury that they would be satisfied on the balance of probabilities the accused was not in possession (notwithstanding deemed possession by virtue of occupation) if they were satisfied that one of the common law constituents of the concept of possession did not exist. As a result, his Honour further charged the jury:
As charged in counts 7 and 8, the concept of possession includes the actual physical possession of a firearm, which will not come as any surprise to you, but it also includes custody or control of the firearm or having and exercising access to the firearm, either solely or in common with other persons. So there can be shared possession and that is sufficient as far as the law is concerned on those two charges. Having and exercising access to the firearm, either solely or in common with others is sufficient to establish possession in relation to the firearm counts.
With respect to the burden placed on the prosecution concerning the drug offences, the prosecution must satisfy you beyond reasonable doubt that the individual accused that you are then considering occupied the land or premises where the drugs were found. Once the prosecution has established that to your satisfaction beyond reasonable doubt, the onus then shifts to the accused that you are considering at that time to satisfy you on the balance of probabilities - as opposed to beyond reasonable doubt – on the balance of probabilities either that he did not know of the existence of the drugs or that he did know about the drugs but did not intend to exercise control over those drugs and, if on the balance of probabilities an accused satisfies you of either of those two elements, then that constitutes a defence to that particular count. In other words, if you are so satisfied on the balance of probabilities that the accused did not know of the existence of the drugs, or alternatively, did not intend to exercise control over those drugs – or it could possibly be both – then the proper verdict for you to return on that finding is one of not guilty.
The trial judge did not give any directions as to the meaning of ‘occupy’ in this context although he used the word on several occasions.
In a case in which the onus shifted to the accused once he was found by the jury to have occupied the premises, the judge was required to instruct the jury carefully as to what was required before a finding of occupancy could be made. This, as I have indicated, required that the nature and extent of any control that he might have over them had to be carefully considered and determined.
Some elements of the test for control laid down in the authorities such as R v Maio,[18] R v He Kaw Te[19] and Phung can be seen to be present in the charge. However, the trial judge did not make clear to the jury that this part of the direction related to the test for control or, to put it another way, the importance of control to occupancy. A number of relevant elements of the test of control are missing about which the jury should have been instructed, leaving them at large to attribute to the term occupy whatever meaning they regarded as appropriate.
[18][1989] VR 281.
[19](1985) 157 CLR 523.
In relation to the firearm counts, the trial judge directed the jury that:
So the prosecution must establish beyond reasonable doubt that the accused occupied the land and premises at 7 Burton Crescent, that is that on 25 March 2004 the individual accused that you are considering at the time occupied the premises and that he intended to exercise control over those premises and to exclude persons from that property, if he saw fit to do so … the possession alleged here is to have custody or control of a firearm, that means that the prosecution must establish beyond reasonable doubt that an accused had custody or control of the firearm and also had an intent to exercise control to the exclusion of others.
…
In connection with the two counts concerning possession of firearms, you must consider all the evidence before you and in the light of that evidence you decide if the prosecution has satisfied you beyond reasonable doubt that the accused had possession of those firearms, that is, that they knew of the presence of those firearms and that they intended to exclude others from having possession of those firearms.
There were many comings and goings at 7 Burton Crescent. So much was borne out by the police surveillance in the days preceding the search and the events of the search itself and there was no evidence that Henderson exercised any control over who they might be on the parts of the premises to which they had access. It was argued for him on this application that the property was occupied at least by Marijancevic downstairs and Warwick upstairs, and possibly both sections by Ms Warwick. In my view, properly analysed in those circumstances, there was virtually nothing to connect Henderson to the firearms or to any of the amounts of cannabis except what was found in his pocket. There was no evidence that he was in control of the premises: upstairs, downstairs or the backyard. The prosecution case for the drugs charges and the firearms charges was that the applicant Henderson was an ‘occupier’ in the legal sense, where exercising control over the premises is crucial to such a finding.
I am satisfied that grounds 5 and 8 have a proper foundation. Accordingly the application by Henderson with respect to the first trial must succeed. It follows, also, that ground 4 is made out. So far as is necessary, I consider the remaining grounds.
The rule in Dyers’s case grounds
Ground 6 was based upon the principle set out by the High Court in Dyers v R[20] as to the attack on the applicant Henderson’s credit:
Ground 6: A miscarriage of justice was occasioned by
(a)the cross-examination of the applicant as to witnesses he was to call to corroborate his account;
(b)the making of Jones v Dunkel comments by the prosecutor;
(c)the failure of the learned trial judge to give any directions on the matter.
[20]Dyers v R (2002) 210 CLR 285, 328 (Gaudron, Hayne, Callinan, Kirby JJ).
In the course of cross-examining the applicant as to his place of residence, the prosecutor asked whether any witnesses were attending to support his claim that he lived in Towerhill Road, Glen Iris. The relevant passage reads:
[PROSECUTOR] Is anyone coming to give evidence on your behalf to support the fact that you live at Tower Hill?
[COUNSEL] I object. This question has already been asked several times.
[HIS HONOUR] I don’t think so, not this question.
[COUNSEL] He answered before that ---
[PROSECUTOR] No, that he’s got anything that’s going to support ---
[COUNSEL] All right.
[PROSECUTOR] Is anyone coming, any of the other occupants of the house?---No.
Do you say you were living there for a couple of months?---Yes.
Any of the neighbours, are they coming to support that you lived at 10 Tower Hill?---No.
Obviously you’ve known about this for some time, about proving the possibility of you having to establish or prove that you lived somewhere other than Burton Crescent. Is that right?---Well, not really, because they knew I lived at 10 Tower Hill Road.
I’m asking you. You knew yourself that this may well have been an issue in your trial?---No, I thought that they would give the evidence that they had given.
I suggest you’ve known this for some time and you can’t bring anybody. You can’t produce any witnesses to support that proposition or that fact because you didn’t live there, you lived at Burton Crescent?---No, that’s not right. I lived at 10 Tower Hill Road, Glen Iris.
No direction was sought or given about the question. However, in the charge, the judge gave the standard instruction to the jury that neither questions asked by counsel nor any comments or arguments advanced by them constitute evidence in the trial.
Counsel for the applicant submitted that the questioning should not have been permitted, pointing to the statements of Callinan J in Dyers v R[21] –
In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called. At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence and only the evidence that has been called. As, save for exceptional cases, the Crown Prosecutor may not address or comment on the non-attendance of witnesses for the defence, the reason, and therefore the occasion, for a trial judge to comment, should also be very rare.
…
The principle that an accused is neither obliged to give evidence nor to call it is not to be eroded.
[21]Ibid.
He argued that that the prosecutor had made an improper comment presented as a question. There is certainly force in this claim. The applicant was under no obligation to adduce evidence as to his place of residence at the time and there was nothing rare or exceptional in the circumstances that could justify the pursuit of this line of questioning or comment. However, it is difficult to see that it would have been capable of resulting in a miscarriage of justice in the circumstances. The matter was not taken up in counsel’s addresses or the judge’s charge and would almost certainly have been overwhelmed by much more significant aspects of the evidence. I would also add that any reference beyond the general instruction given by the judge with regard to the burden and standard of proof and counsel’s questions or comments would undoubtedly have highlighted the matter to the applicant’s detriment. In other words, the applicant’s complaint is well made but the defect could not, in my view, be seen to have affected the fairness of the trial.
Putting of the defence grounds
It was submitted under ground 7 that the trial judge failed to sufficiently put the defence in the charge.
His Honour’s directions, it was said, were insufficient to satisfy the judge’s duty to fairly put the defence and relate the law to the facts and issues, in accordance with the principles set out in R v Chai,[22] R v De’ Zilwa[23] and R v Demiri.[24]
[22](2002) 76 ALJR 628, 632 (Gleeson, Gummow, Kirby, Hayne, Callinan JJ)
[23](2002) 5 VR 408, [4]–[6] (Ormiston JA).
[24][2006] VSCA 64, [26] (Redlich AJA).
There is no need to set out the detail of his Honour’s instructions and it is sufficient to state that in my view, perusal of the charge reveals that his Honour covered all elements of Henderson’s defence, albeit briefly, and related the law to the facts sufficiently in all respects save the subject of possession. For the reasons I have already given, his defence as to occupancy was not adequately put to the jury. Regardless of the sufficiency of other aspects of the charge, it was inadequate on this fundamental aspect. It follows that ground 7 is made out.
The last ground (ground 9) asserts that the verdicts should be viewed as unsafe and unsatisfactory in the circumstances. In light of my views on the other grounds, it is unnecessary to consider this contention.
The applicant Henderson, in argument, applied for leave to amend the grounds to rely on two new grounds 10 and 11 with respect to the submissions on occupation in the context of control. Leave was granted nunc pro tunc. It follows that the applicant succeeds in that regard.
I would grant leave to appeal and allow the appeal, set aside the convictions on the first trial of the applicant Henderson and enter a verdict of acquittal. It is unnecessary therefore to consider the appeal against sentence.
Henderson’s appeal against conviction in the second trial
Henderson seeks leave to appeal the convictions and sentences arising from the second trial – the possession of firearms counts at the Highpoint storage facility unit.
The application for leave to appeal against conviction
It is asserted that:
1. The trial judge erred in his directions as to possession of the firearms.
2.The trial judge erred in directing that the accused could still be found guilty if other people aside from his co‑accused had access to the firearms independent of the accused.
3.The trial judge erred in direct [sic] the jury that the control alleged against the accused need not be exclusive of others not acting in concert.
4.The trial judge erred in failing to define ‘control’ in the context of the trial where others not acting in concert have had access to the storage facility.
5.The trial judge erred in failing to explain that the circumstantial evidence required an application of sequential reasoning.
(a)That it ought first be proved beyond reasonable doubt that the guns were visible as evidence of the proof of the knowledge of the presence of the guns; and
(b)That the element of knowledge depended on the establishment of that fact beyond reasonable doubt.
6. The convictions were unsafe and unsatisfactory.
Directions as to possession of firearms grounds
Turning to the possession grounds (grounds 1 to 4) it was submitted for the applicant that the firearms found at the Highpoint storage unit were accessible by a large number of people about whom there was oral and film evidence, and none of whom were charged. By reason of the opportunities for access by these other people, it was said, no adequate basis for the necessary inference of control of the storage unit or its contents by the applicant existed.
With respect to this aspect, the trial judge summarised the evidence and the respective contentions of the prosecution and the defence. His Honour directed the jury that they needed to be satisfied beyond reasonable doubt that the accused ‘treating them separately’ had possession of the firearms. They were informed that the prosecution relied upon the drawing of the necessary inference from the whole of the evidence and that it was open to them to conclude ‘that the accused men did have the necessary knowledge and control and therefore were in possession of the said firearms’, reminding them of the evidence bearing on the issue and the arguments of the Crown and the defence.
His Honour correctly instructed the jury as to the drawing of inferences in a criminal trial and then charged:
…if you feel at the end of your considerations that it’s a reasonable possibility that others controlled the guns, that others put them there and knew about them and controlled them and not these two, or either of them, well then the Crown have failed.
The trial judge provided to the jury an aide document as to relevant definitions. As to possession, the document defined the term under the Firearms Act as having three components:
(a)actual possession of a firearm (the trial judge noted that this component did not arise);
(b) custody and control; and
(c)having and exercising access to the firearms either solely or in common with others.
His Honour directed the jury:
We’re dealing with (b) and (c), and they’re alternatives, of course. If I can turn first (c), ‘Having and exercising access to the firearm either solely or in common with others’. Access in this sense is not a legal word, it’s just an ordinary word, and it’s got a dictionary definition in both the Macquarie and the Oxford dictionaries it’s set out to be pretty much the same thing. The Oxford says, ‘A way of approaching or reaching.’ The Macquarie says,’A way or means or opportunity of approach’. There are other meanings for “access” but that’s the one that’s relevant.
Perhaps taking another example, if you were talking to somebody in the country about their property and they said they had a shed in the back paddock you might well ask, ‘Do you have access to that shed?’ and they might say, ‘Yes, there’s a path leading to the shed down the back gate and you can get to it that way.’ Then you might well ask, ‘Well, do you ever exercise access to it?’ and the answer might be, ‘Every now and then or once a week or whatever, I walk down the path and have a look,’ at the shed or the pond or whatever it might be. In that sense, the person has, and exercises on those occasions, access to the whatever it might be.
Here, I’ve ruled that the meaning of those words here would mean that anybody who had a key to the padlock and had a means of getting to the storage unit, by car or whatever, could be said to have access, and he could say he has access to that unit even if he’s sitting at home in the lounge room. As to exercising, it would be if he actually goes and opens the storage unit door and presents himself in the unit itself. In that sense he’s both had and exercised access.
Underlying all of these three legs I know we’re only dealing with two, but for the sake of what I’m about to say, underlying all three of these is the legal requirement that – and this always applies in the law, when one is dealing with the concept of possession it has to be knowledge. You can’t possess something if you don’t know it’s there. So underlying all three, and that includes (c), it will include (b) when I get to it, the Crown have to establish that the accused, each of them, had knowledge of the presence of the firearms. That’s another issue, and that will be the subject of argument and discussion about the evidence.
So that on my ruling of the meaning ‘having and exercising access’ it would be either solely or in common with others. It would be satisfied if the person concerned attended and opened the door and went into the storage unit. … Custody or control means not – it does not require that something be on the person’s body or on their person but if it’s – people have possession of things so long as they have the custody and control of them to the point where they can exclude others from using them. They have the power to exclude others from using them.
His Honour then gave some examples of possession
I’ve just thought of this example. I mean let’s say a person lived in a house and it, down the back, had a shed and they had a lock on the shed and they were only ones who had the key. In that shed was a number of items that that person had put there. That would be a simple example of that person possessing those items because that person would have the – not have them on his physical person but he’d have control over those items even when he was somewhere else and he could exclude others from them.
That’s an easy example. The same thinking – I might say, because it might arise here – the same thing would apply – let’s say the man lived there with his brother or his son or his wife or whatever and let’s say they all [sic] a key, but only them, and they could all use the things in the shed but they could exclude anybody else, the neighbours or other relatives or strangers. But two or three or four people might have equal access and control to that shed.
So in that case all of them could be said to be in possession of whatever they knew was there. Of course they wouldn’t be – if one of them went and stuck something in, let’s say one of them was a naughty boy or girl and put in, in a back corner, under another bag, a little bag of cannabis, let’s say, and the others didn’t know about it. Well, the other’s wouldn’t be in possession of that because they didn’t know it was there. But they things [sic] they know are they’d all possess if they had right to – collectively the right to enter and exclude others from the usage and control and custody of those items.
…
Now, I mean as between each well if you found that – call them A and B, and I won’t nominate which one but if you found that A had the custody and control of them to the exclusion of all others including B, well, they would only be in the possession of A. If B had the custody and control to the exclusion of all others including A, then they’d only be in the possession of B.
But if they were both acting jointly and so A and B by agreement … could both access and use all of the stuff there, well then they would both [sic] in possession; bearing in mind always that only of the stuff that they know is theirs. If one of them puts things in there that the other one doesn’t know about well then only that person would be in possession of that item.
In relation to both of them, if they were unaware of the presence in the shed of certain items, the firearms in particular, well then, they can’t be in possession of them if they don’t know they are there. That is fundamental in every sense.
The trial judge subsequently summarised matters:
Now, in relation to Henderson you have to deal with the question was he in possession, either under the meaning of (b) or (c) bearing in mind though he has to know about the presence of the particular gun that you are dealing with for each count. Then the same applies with Warwick.
I have already set out the relevant Firearms Act provisions.[25]
[25]See [73].
Henderson argued that his Honour confused custody and control of the firearms with access to the storage unit by giving the examples of possession of items in a family shed. Henderson complained that the judge failed to direct as to what degree of shared control would suffice, the evidence that bore on that question or, for that matter, how each side put its case on that issue.
Referring to my analysis of the treatment of control in the first trial,[26] the trial judge in the second trial was obliged to direct the jury that they were required to determine as a ‘matter of fact’[27] whether the accused ‘had the requisite degree of control over those premises so as to exclude from them those who might otherwise intend to carry on those forbidden activities’.[28]
[26]See [85]-[88].
[27]Phung, [27].
[28]Ibid, citing R v Tao [1977] 1 QB 141.
His Honour’s charge as to possession in the second trial was largely devoted to access. However, there were directions to the jury on ‘control’. His Honour specifically addressed the concepts of custody and control and the power of exclusion. Indeed, his Honour charged the jury on possession as to the firearms more generously to the defence than was required in that he directed that knowledge of the presence of the firearms was necessary, consistent with the definition of possession in s 3 of the Firearms Act but did not qualify his direction to the jury in light of the deeming provision in s 145 of that Act.
Insofar as there was complaint as to the direction or lack thereof by the trial judge on the topic of exclusivity in the context of possession, the authorities referred to make clear that where personal chattels are found in places or receptacles to which a number of persons have had common claims of access, the issue before a jury is who was actually responsible for them.
The substantive question to be answered in relation to each applicant was whether the jury could be satisfied to the requisite standard that he was in control of the firearms, albeit possibly in conjunction with the other applicant, to the exclusion of the other persons known to have visited the storage unit. His Honour directed the jury that they could not convict either applicant unless they could exclude, as a reasonable hypothesis, his claim that the firearms were not his and that he had nothing to do with them. In the case of Henderson there was no evidence that the third persons had any claim to the firearms and the jury was entitled to find that he had the right, due to his control to and access of the Highpoint unit, to exclude such of those persons who were not acting in concert with him. As Winneke P observed in Bandiera[29] the directions required to be given to the jury in this type of case as to the element of possession ‘will necessarily depend upon the issues which the evidence raises for their consideration’.[30] In my view, the trial judge met his obligations. I do not find any of grounds 1 to 4 made out.
[29][1999] 3 VR 103.
[30]Ibid [20].
I turn next to ground 5, under which it was contended that the jury should have been directed that before the applicant was found guilty of possession of the firearms, they had to find beyond reasonable doubt that they were visible to any person entering the storage unit.
His Honour summarised the relevant evidence in his charge and in particular that concerned with the opening and search of the Highpoint storage unit and the observations of the individual police officers. He described, in some detail, the evidence of police member Cox, as to the clear visibility of the protruding firearm barrel from a backpack and that of Sergeant Byrt as to his observations of the protruding rifle barrel from a bag and the rifle case and part of a shotgun protruding from another bag together with other items. His Honour reminded the jury of the acknowledgment by Sergeant Byrt that there were no photos taken of the unit before the police search commenced and, further, of the extensive cross-examination to which he had been subjected about the visibility of various items. His Honour also summarised the evidence of Williamson, to the effect that he saw a gun barrel protruding from a bag, again referring to the cross‑examination of this witness.
In my view, the argument underlying proposed ground 5 has no merit. This was not a sequential reasoning case but one in which possession had to be inferred from all of the circumstances. Obviously if the firearms were clearly visible, then the inference that Henderson was aware of their presence would be more easily drawn. It did not follow that the finding could not be made against him if that was not the case. The trial was conducted on that basis and it is not without significance that there was no exception taken to his Honour’s charge on this aspect.
The remaining ground (ground 6) on the second trial relating to Henderson was that his conviction was unsafe and unsatisfactory.
The final ground advanced on behalf of Henderson arising from the third trial was concerned, again, with the admission of the record of interview into evidence.[40] The same arguments and matters were raised as were advanced with respect to ground 1 of the first trial. The judge on this occasion considered that it was at least arguable that the name and address of a person may be sought before any of the requirements of s 456AA of the Crimes Act are satisfied; secondly, the answer to questions after the caution by Henderson demonstrated that he was prepared to accept that his address was 7 Burton Crescent, Maribyrnong; thirdly, in the exercise of the discretion the applicant had sufficient awareness that the likely areas of questioning would concern the house or the storage unit.
[40]Ground 7: The learned trial judge erred in admitting into evidence the record of interview.
For the reasons given earlier with respect to the first trial, I am far from persuaded that his exercise of discretion has miscarried.
It follows that none of the grounds of the applicant Henderson, in relation to the third trial have succeeded.
Warwick’s application for leave to appeal against conviction in the first trial
Warwick sought leave to appeal the convictions at the first trial on six grounds,
1. The learned trial judge erred by failing to sever the Firearms Act counts from the presentment to avoid the jury receiving evidence of the applicant’s bad character which was inadmissible on the Drugs Act counts.
2. The learned trial judge erred by failing to sever the Firearms Act counts from the presentment to avoid the need for separate directions to the jury on the different definitions under the Firearms Act and the Drugs Act respectively.
3.The learned judge erred by allowing the Crown to proceed on the trafficking and possession counts without directing the jury which items of cannabis were alleged to be in the `deemed’ possession of the applicant.
5.The learned trial judge erred by failing to summarise adequately or at all the evidence, adduced in cross-examination of Crown witnesses, relied upon by the applicant in support of his defence.
6.The learned trial judge erred by failing to summarise adequately or at all the arguments the Applicant’s counsel put to the jury in support of the Applicant’s defence.
At the relevant time, this applicant was subject to a community based order for another offence and, therefore, was a prohibited person under the Firearms Act. The defence argued that severance of the counts relating to possession of firearms from the drug counts was necessary because the evidence that Warwick was a prohibited person would lead the jury to conclude that he was of bad character. This, it was said, would have been highly prejudicial when the jury was considering the drugs counts.
The judge directed the jury to consider each count separately and, specifically, that whilst they were required to be satisfied that the applicant was a ‘prohibited person’ for the purposes of the firearms counts, that finding was not relevant to the other matters. His Honour said:
… those are quite separate offences and you are not to take give that any consideration to the issue of the accused being prohibited persons in relation to the drug counts that are before you.
This direction was given after an exception was taken by defence counsel. It was given in almost precisely the terms sought and no exception was taken to it. In my view, the possibility of prejudice was appropriately addressed. It is significant in this context that Warwick was acquitted on counts 7 and 8 (the firearms counts) and indicative of compliance by the jury with his Honour’s directions.
Ground 1 is not made out.
For the reasons earlier set out with respect to Henderson as to possession, occupation and control, the submissions for the applicant under ground 2 are sustained.
I turn to ground 3. It was submitted under this ground that there was no direct evidence that Warwick possessed any of the individual amounts of cannabis located at Burton Crescent within the common law meaning of ‘possession’ or that he ‘used enjoyed or controlled’[41] any of them. The prosecution, it was asserted, relied solely on the fact that Warwick lived there at the time that the police found the cannabis to prove it was located upon land or premises occupied by him and, therefore, under the Drugs Act deemed to be in his possession.[42]
[41]Section 5 Drugs Act.
[42]Ibid.
For the reasons already given with respect to the concept of ‘control’ in the context of possession, the directions were inadequate. Ground 3 is made out.
The fourth ground was:
4.The learned trial judge erred by misdirecting the jury as to the application of sections 5 & 73(2) of the Drugs, Poisons & Controlled Substances Act.
With regard to ground 4, it was submitted that the trial judge should have:
a. directed the jury as to the definition of ‘possession’ at common law because it was reasonably open that the applicant may have known of the existence of the larger amounts of cannabis but chose not to do anything about it. Therefore, it was open that Warwick had no guilty intent. It was submitted his Honour was in error in not directing the jury that if they were satisfied on the whole of the evidence Warwick probably did not know of the existence of the cannabis or if he knew he probably did not intend to control it to the exclusion of others and, thus, was not proved to be ‘in possession’ under s5. The onus was on the prosecution to prove that Warwick knew the nature of the substance: per R v Tragear.[43]
[43][2003] VSCA 222, [44].
It was argued that the trial judge should have directed the jury as to the differences between ss 5 and 73(2) of the Drugs Act. Reliance was placed on R v Clarke & Johnstone[44] on the basis of which counsel argued that the trial judge ought to have directed the jury that they could convict Warwick only if the evidence satisfied them beyond reasonable doubt that Warwick trafficked in cannabis.[45] Again, for the reasons stated with respect to the charge as to possession, occupation and control, the applicant’s submissions are persuasive.
[44][1986] VR 643, 647-8 (Crockett, McGarvie, Southwell JJ).
[45]See R v Stavropoulos & Zamouzaris [1990] 50 A Crim R 315.
I consider ground 4 is made out.
In support of ground 5, reliance was placed upon the obligation of the trial judge to put the accused’s case adequately and relate it to questions of law in a balanced manner.[46]
[46]R v de Zilwa [2002] 5 VR 408; R v Schmahl [1965] VR 745; R v McKellin [1998] VR 757.
Counsel for Warwick at the trial submitted to his Honour that his client’s case was not put to the jury as it had been put by him. In essence, the complaint was that the jury were not reminded by his Honour of the central contention of the defence, ‘that Mr Warwick did not know of the existence of the drugs and on the evidence that they [the jury] should be satisfied that he did not intend to exercise control over them’. Counsel complained to the judge that he had not provided a summary of his cross-examination bearing on this contention. He pointed out to his Honour that, whilst he had summarised the prosecution evidence, his failure to do so in relation to the evidence that constituted the basis of his client’s defence created an imbalance rendering the trial unfair. Examination of the transcript reveals that the submission made on behalf of the applicant Warwick by his counsel as to the inadequacies and omissions in the charge were well founded. His Honour does not appear to have responded at all to this submission which was made as an exception to the charge.
Here the knowledge, or the lack of it, by Warwick of the presence of the drugs was of crucial importance. In the circumstances of this case – the nature of the building spread over two levels, the possibility of Warwick occupying the upper but not the lower section, the complete lack of evidence of an association with the garden area and the openness of the property – the omission from the judge’s charge to the jury was capable of causing a miscarriage of justice.
Examination of the transcript demonstrates that the concept of control in the context of possession was not addressed adequately. For the reasons I have already stated, ground 5 is made out.
The remaining ground for Warwick in the first trial, ground 6, contains a similar complaint to that addressed in ground 5, namely, that his Honour failed to summarise the arguments put to the jury in support of his defence. For the same reasons as set out for ground 5, ground 6 is made out.
It follows that, in my opinion, the grounds of complaint concerning the first trial are made out, and the application should be allowed.
Warwick’s application for leave to appeal against conviction on the second trial
Warwick also sought to appeal his conviction on counts 1, 2 and 5 in the second trial. It is convenient to deal with grounds 1 and 2 together:
1.The learned trial judge erred in his directions to the jury as to the meaning of ‘possession’.
2.The verdicts are unsafe and unsatisfactory as the Crown did not exclude the reasonable possibility another person stored the firearms in the facility without the Applicant ‘s knowledge.
I have dealt with the manner in which the trial judge approached the subject of possession on the second trial[47], the relevant statutory provisions and the applicable legal principles.[48] In essence, similar arguments were made as for Henderson. For the reasons I have given with respect to Henderson’s application, I do not accept these submissions.
[47]See [106] – [109].
[48]See [75] onwards.
However, a further submission was made for Warwick that, as the evidence was the same in respect of each of the counts, his acquittal on counts 3, 4, 6 and 7, was clearly inconsistent with convictions on counts 1, 2 and 5. The principles in R v Lewis[49] and R v DFA[50] applied. The guilty verdicts had to be regarded as unsafe because there was no reasonable explanation for the differences. This lack, it was argued, suggested that the jury had arrived at a compromise in contravention of the principles in MFA v R[51] and Mackenzie v R.[52]
[49][1960] Crim L R 435 (‘R v Lewis’).
[50][2001] VSCA 197, [45] (Chernov JA) (‘R v DFA’).
[51](2002) 213 CLR 606.
[52](1996) 190 CLR 348, 368 ( Dawson & Toohey JJ).
Applying those principles to the case of Warwick, the same evidence existed with respect to all counts, the case being one that all the subject firearms were located in the Highpoint storage unit. The evidence against this applicant was very limited and consisted essentially of an observation of him entering the unit on 5 March 2004 for less than one minute and removing an item from the unit the size of his palm and placing it in his pocket. There was also evidence of him entering the unit with Henderson on 16 March 2004 and removing a plastic shopping bag. There was no other evidence, save for the surveillance footage and recordings of Henderson entering the Highpoint storage unit on 5, 8, 10, 11, 16 and 18 March 2004. On 11 March, Henderson exited the unit with an item in his left hand. There was no evidence of Warwick handling any firearms. Other than that, there was the evidence as to the visibility of the firearms when the unit was opened by the police on 25 March 2004.[53] The prosecution case was that Henderson and Warwick knew of the firearms in the storage unit.[54] The defence for Warwick in this respect was that there was no evidence of joint possession with Henderson and his involvement in any event in the storage unit was minimal.[55]
[53]See [40].
[54]See [46].
[55]See [58]-[59].
However, there is a basis for distinguishing between these verdicts. Warwick was acquitted on those counts where there was no evidence of any part of the particular firearm being visible upon entry to the unit and convicted on the others. This involved acceptance of the evidence of the police observations on entering the unit.
Counsel for the applicant, argued that, viewed as a whole, there were such weaknesses in the police evidence that no one acting reasonably could have acted upon it.
This impugned evidence was the subject of a deal of attention at the trial with a challenge being made to the accuracy and truthfulness of some of the police witnesses. The jury, through their verdicts, can be seen to have concluded that the evidence of the visibility of some of the firearms could be safely accepted and to have rejected the possibility that Warwick may not have been aware of the presence of at least those that could be easily seen. This view was open to them, notwithstanding the matters to which the attention of this Court has been drawn. Whether or not they accepted the disputed evidence was quintessentially for the jury to decide.
Obviously the jury can be taken to have considered the possibility that another person stored the firearms without the applicant’s knowledge and rejected that hypothesis. I do not consider grounds 1 and 2 are made out.
The third ground asserted the verdicts were unsafe and unsatisfactory because the prosecution did not exclude the reasonable possibility the applicant may have known of the existence of the firearms and did not intend to exercise any control over them.
The jury in the second trial were essentially invited to convict Warwick on the basis of inferences to be drawn from four factors. First, he lived and associated with Henderson who had regularly utilised access to the Highpoint unit. Secondly, the rental arrangement for the unit could be reasonably seen to have been a ruse. Thirdly, Warwick entered the unit twice shortly before the search on 25 March and its state was left largely undisturbed by him each time. Fourthly, it was unlikely any third persons would leave firearms there when it belonged to and was controlled by another.
It was submitted for Warwick that there was no evidence that he rented the storage unit, paid the rent, had a key to it (other than on 5 or 16 March 2004 when accompanied by Penny Warwick and Henderson respectively), had a swipe card to open the roller door access, or handled or used any of the firearms or the bags or containers for them. It was pointed out that the only evidence of him storing an item in the unit was his carrying a shopping bag when he left the unit on 16 March 2004 with Henderson and submitted that the only evidence that could possibly support the inference Warwick had knowledge of the firearms arose from the visibility of the three firearms the subject of counts 1, 2 and 5. Thus, it was argued, the prosecution failed to exclude the reasonable possibility that, even if the applicant knew of the existence of the firearms he chose to have nothing to do with them and, therefore, did not intend to have custody or control of them.
The jury accepted that Warwick must have known of the presence of the visible firearms but not necessarily the others. There was, however, virtually nothing to suggest that he was in control of any of them. The basis upon which the jury was invited to infer that he was in control of those visible would have applied to all of the weapons and was very general in character. It is difficult to avoid the impression that his conviction on the counts related to the visibility of the firearms and that it rested fundamentally upon the jury concluding that he must have known they were there. Therefore, on the basis of this knowledge, he could be held responsible for them without attention being given to the issue of control.
There was very little, if anything, to support the inference that Warwick ever had any such control, and it is difficult to discern any foundation for concluding that he may have had control over the visible firearms but not over the others. I consider ground 3 is made out. I do not consider that the convictions on the firearms counts can stand and would substitute a verdict of acquittal on each of them.
Warwick’s application for leave to appeal against conviction in the third trial
Warwick sought leave to appeal against his convictions in the third trial on three grounds.
Ground 1 alleged that the guilty verdicts were inconsistent with the not guilty verdicts on the other counts. It was submitted that, at trial, the prosecution case was circumstantial resulting in convictions solely on two of the total of seven counts relating to the Highpoint unit. These convictions were based upon the prosecution argument relying on Warwick’s entry into the unit on 5 and 16 March 2004, both for very short periods, and the police observations as to the condition of the unit when it was opened by them on 25 March 2004.
At the outset it must be said that whilst the prosecution case on the third trial was a circumstantial one, it had a number of elements to it, considerably more than the three points highlighted by the applicant’s counsel. As earlier observed, it was asserted for Warwick that the only nexus between him and the Highpoint unit was his possession of the unit key on 5 March when he attended with his mother. Thus, it was argued, on the basis of R v Bacash,[56] as the evidence was the same in respect of each of the Highpoint counts (namely, the police evidence as to the layout, items stored, location and unit contents), the jury’s findings of fact that led to the acquittals on the other Highpoint counts could not sustain the convictions on the remaining counts 1 and 4.
[56][1981] VR 923, 924 (McInerney J).
Self evidently, that is so and was effectively conceded for the respondent on this application. It follows that the jury’s verdicts on these counts should be quashed.[57]
[57]See R v Lewis; R v DFA [45] (Chernov JA)
Furthermore, so far as it might be necessary, the guilty verdicts on some of the Highpoint counts, notwithstanding the uniform evidence as to all the counts, must lead to a conclusion that the verdicts are unsafe and unsatisfactory.[58] Ground 1 is made out.
[58]See MFA v R (2002) 213 CLR 606, 631; Mackenzie v R (1996) 190 CLR 348, 368.
Ground 2 with respect to Warwick’s third trial asserted that the verdicts were unsafe and unsatisfactory as the prosecution did not exclude the reasonable possibility another person stored the items in the facility without the applicant’s knowledge. In support of this claim, reliance was placed on the evidence of the manager Mr Simmons to the effect that other persons accessed the unit in early 2004 and on 3, 6 and 25 March 2004,[59] and the surveillance film of other persons accessing the unit on 5, 8, 16 and 18 March 2004.[60] Thus it was submitted there was a hypothesis – that a person other than the applicant brought items to the unit – consistent with innocence which could not have been excluded beyond reasonable doubt and there should be an acquittal on all counts. However, this was essentially a jury question. They were well entitled to assess whether the involvement of other persons was a reasonable possibility and there is no reason to suppose that they did not do so. The unsafe and unsatisfactory argument does not succeed as argued on this ground.
[59]See [34], [37].
[60]See [24]–[29].
Ground 3 is related to ground 2. However, it alleged more specifically:
3. The verdicts are unsafe and unsatisfactory as the Crown did not exclude the reasonable possibility the applicant may have known of the existence of the items but did not exercise any control over them.
Essentially it was said that there was no evidence of the applicant actually exercising control over any items. Again it was said a hypothesis of innocence was open.
The same issues arise under grounds 1 and 3 as I have already addressed with respect to the other grounds of complaint by this applicant concerning control. For the reasons set out earlier, I consider that they must succeed. As was conceded by counsel for the respondent, upon an unsafe and unsatisfactory ground being sustained, an order for acquittal ought be made.
Summary of disposition of the applicant Henderson
With respect to the applicant Henderson:
First Trial
I would grant Henderson leave to appeal against conviction on grounds 4, 5, 7, 8, 10 and 11 and otherwise dismiss his application as to the first trial. I would determine and allow the appeal instanter and quash the sentences imposed below. In view of the nature of the errors identified it is inappropriate for a retrial to be ordered on counts 1, 3, 5, 7 and 8. It follows it is appropriate to order an acquittal on those counts.
Second Trial
I would refuse leave to appeal on the second trial.
Third trial
I would refuse leave to appeal on the third trial. As Henderson has succeeded on the application with respect to the first trial and as the convictions and sentences arising from that trial were taken into account in the sentences imposed on the convictions in the second and third trial, he falls to be re-sentenced. The applicant also sought leave to appeal the sentences imposed in the second and third trials. In view of his acquittal to be ordered on the first trial, he falls to be resentenced in any event and it is unnecessary to consider those applications.
Summary of disposition of the applicant Warwick
First trial
I would grant the applicant Warwick leave to appeal against conviction on grounds 2 to 6 and otherwise dismiss his application as to the first trial. I would determine and allow the appeal instanter and quash the sentences imposed below. In view of the nature of the errors identified it is inappropriate for a retrial to be ordered on counts 1, 3, 5, 7 and 8. It follows it is appropriate to order acquittal on those counts.
Second trial
I would grant leave to the applicant Warwick to appeal against conviction on ground 3. I would determine and allow the appeal instanter and quash the sentences below.
In my view this is an appropriate case in which to order acquittal on counts 1, 2, and 5 in the second trial with respect to the applicant Warwick.
Third trial
It follows I would grant leave to the applicant Warwick to appeal against conviction on ground 3. I would determine and allow the appeal instanter and quash the sentences below. In my view this is an appropriate case in which to order an acquittal on counts 1 and 4 with respect to the applicant Warwick.
The applicant Warwick sought leave to appeal against the sentence in each trial. It is unnecessary to consider those applications.
The re-sentence of the applicant Henderson
I turn then to the re-sentence of the applicant Henderson.
Arising from the second trial, Henderson stands convicted of seven counts of being a prohibited person in possession of a registered firearm: counts 1 to 7. The maximum penalty for the offence is 15 years’ imprisonment.
Arising from the third trial, he stands convicted of two counts of handling stolen goods: counts 1 (a dumpy level and other items) and 4 (the cameras and lenses). The maximum penalty for the offence is also 15 years imprisonment.
On the plea of the sentences after the second and third trials, counsel for the applicant adopted the submissions made earlier on the plea after the first trial as to the personal background and circumstances of the applicant. I base my summary of the applicant’s history on those submissions. The court was not provided with any other submissions as to background or mitigating circumstances. The respondent made no submissions on sentence.
The applicant was born on 25 June 1955 and is now almost 54 years old. He was born in Australia into a Croatian immigrant family known by the surname, Marijancevic. His father was an abusive alcoholic. The applicant had a disruptive childhood and was placed in care, along with his siblings, when he was nine years old. He was at Allambie, then in foster care and later at Torana and other institutions until he was 15.
At the age of 16, his criminal history began when he was sentenced to a youth training centre for shop breaking offences, illegal use of a motor vehicle and using a firearm to assist or prevent lawful apprehension. The first six months of that sentence was served in Pentridge. Thereafter, he was convicted and sentenced for many property offences and offences relating to the use of cannabis. Relevantly, he was convicted in 1982 of being a convicted felon in possession of a firearm and in 2001 of being in possession of a hand gun. At the plea after the first trial the applicant’s counsel described him as a ‘recidivist in relation to property offences’.
The court was also informed by the respondent in the present application that the applicant had a series of convictions in Queensland between 1980 to 2004 including, relevantly, a conviction for the offence of receiving stolen goods in 1992 for which he was sentenced to 5 years’ imprisonment.
The applicant’s employment history commenced in about 1979 when he worked as a forklift driver for twelve months. In 1981, he was a tradesman’s assistant for a boilermaker, following which he worked as a spray painter for six months. His last employment appears to have been self-employment, renovating old and run down houses. At the time of his arrest for the present matters he was said to be in the process of setting up a waste management business with his brother. However, there had been difficulties in obtaining planning approvals from the local municipality and hence the business had not developed.
There are circumstances relating to activities of the applicant in Queensland which, it was submitted by his counsel, bear upon sentence.[61]
[61]The facts of these matters were contained in a memorandum provided by counsel for the respondent and other materials after the hearing of the application at the request of the Court. They were the judgment in Andrews v Henderson (Unreported, District Court of Queensland, Judge White, 30 October 2003); a memorandum to the Office of Public Prosecutions from Victoria Police dated 1 April 2008; a document entitled Queensland Court Outcomes dated 28 March 2008; and the judgment in Andrews v Henderson (Unreported, District Court of Queensland, Judge White, 15 July 2004).
In 2002, the applicant was apprehended by Queensland police and found to have a large sum of cash in his car, $592,600.[62] Whilst attending motel unit premises in North Cairns, where the police located traffickable quantities of drugs including amphetamines and cocaine, the applicant Henderson arrived in a vehicle in the car park and was about to enter the particular motel unit but turned away when he saw the police. The police detained him and found the cash in the boot of his car. He was also alleged to have been carrying about $6,000 cash on his person. Henderson was charged in the Magistrates’ Court at Cairns with possessing property that may be reasonably suspected of being tainted property under s92(1) of the Crimes (Confiscation) Act1989 (Qld). The complaint was dismissed. The order of dismissal was appealed by the informant in the Queensland District Court. Ultimately, the appeal proceeded against the applicant Henderson without him being represented or present. He did not give evidence. The applicant did not explain his possession of the cash other than to tell the Queensland police that it was to be used for a property purchase.[63] There was police evidence that the market value of a portion of the drugs located by the police ‘approximated the amount of money which [Henderson] was taking into [the North Cairns premises]’.[64] The Queensland District Court judge concluded on the appeal that the cash found in the possession of Henderson may be reasonably suspected of being tainted property.[65] His Honour directed Henderson surrender himself into custody, granted bail on his own undertaking conditional upon Henderson appearing at the adjourned hearing on 13 November 2003.
[62]See Andrews v Henderson (Unreported, District Court of Queensland, Judge White, 30 October 2003), 10.
[63]Ibid 14.
[64]Ibid.
[65]Ibid 23.
Thus, at the time of the offending the subject of the second and third trials in Victoria, the applicant had outstanding matters in Queensland. The Queensland matter came back before the Queensland District Court on 15 July 2004 for disposition on sentence by which time Henderson was in custody in Victoria with respect to the charges arising in the first, second and third trials. It is not clear whether Henderson was represented on the last occasion in Queensland. In his Honour’s reasons it was observed
The other matter that has been addressed is the proceeding pending against [Henderson] in Victoria. He is presently in custody on remand in respect of, I understand, an offence of drug trafficking. His guilt must not be presumed and obviously no judgment can be made as to whether or not he will be convicted. One assumes that if he is acquitted and there are no further outstanding matters in Victoria he will be brought to Queensland to serve any sentence I impose. Whilst I have no knowledge at all of the waiting list for trial in the Supreme Court in Victoria I expect it would not be a particularly lengthy period before the matter is disposed of.
If he is convicted in Victoria the likelihood is, I understand, that he will be sentenced to a very lengthy sentence of imprisonment and Victorian authorities will insist that he serve that sentence before then being transferred to Queensland to serve whatever sentence I impose today. If it were a known fact that he was presently serving a sentence of many years imprisonment in Victoria and would be required of necessity to serve any sentence I impose many years into the future and cumulative upon the Victorian sentence it would be appropriate and I would, in fact, mitigate the sentence I impose accordingly but given the unknown state of affairs in Victoria in my view it is not appropriate for me to give any weight at all to the possibility that he will be required to serve a lengthy term of imprisonment in Victoria. Further, it appears, from what little I have been told that the offence with which he is charged in Victoria might be fairly described at much more serious than the offence that I am dealing with here and the sentence if he is convicted will be substantially longer.
It seems to me to be appropriate to leave any amelioration of a sentence to the sentencing Judge in Victoria should it become necessary for a sentence to be imposed. No doubt the sentencing Judge in Victoria will be told of the pending sentence in Queensland and the requirement that he will have to serve it upon completion of his sentence in Victoria. The sentencing Judge in Victoria will be seized of the details of the facts of that offence. He can be told about the details of the facts of this offence and he will be in a much better position to form a judgment as to whether or not, and in what quantum, the Victorian sentence needs to be ameliorated by taking account of the sentence pending in Queensland. [66]
[66]Andrews v Henderson (Unreported, District Court of Queensland, Judge White, 15 July 2004), 2-4.
The Queensland District Court Judge ordered the appeal be upheld and sentenced Henderson to a term of 18 months’ imprisonment. A subsequent appeal was unsuccessful.[67] To recapitulate, therefore, the applicant has an outstanding unserved term of 18 months imprisonment in Queensland which is to be served after any sentence imposed by this court.
[67]Andrews v Henderson [2004] QCA 145.
The applicant has been in custody with respect to all the matters the subject of these applications since 25 March 2004. In custody, he gained a number of certificates (textile making, laundry management and drug awareness) and studied various courses in computing and accounting. The Court was not informed of any other activities directed towards rehabilitation.
It is difficult to identify any mitigating factors in favour of the applicant. Indeed, there is little if anything that might be said in his favour. Even allowing for his unfortunate personal history, he has continued to reoffend with respect to both firearms and property offences. He has been sentenced to terms of imprisonment for both types of offences in Victoria and Queensland without any apparent rehabilitation or remorse.
Once he completes any sentence for the offences presently under consideration he will serve the Queensland sentence (a further 18 months).[68]
[68]At the sentence delivered in the County Court on 13 December 2006 for these offences, the judge was informed by the applicant that an application under the Transfer of Prisoners Act 1983 to serve the Victorian sentence in Queensland concurrently with the Queensland sentence had been refused by both authorities.
For the applicant, it was submitted to this court that there was no evidence of sale or supply of the firearms or the stolen goods. However, the potential harm to be rendered by the array of firearms should not be underestimated. They were capable of rendering dreadful harm in the community. The offending involving the firearms was a particularly bad example of that type. The judge at the sentence observed the firearms were all in working order and all with ammunition. The offending was not out of character for the applicant with his previous offending as to offences for possession of firearms save as to the number of weapons.
In my view, the nature and number of weapons warrant important recognition as to general deterrence. Specific deterrence might be expected to be of lesser significance for a man of the age and experience of the applicant. However, the applicant has not seized previous opportunities to rehabilitate himself. Instead, when his criminal history is reviewed, notwithstanding his age and experience, specific deterrence is called for. He was also on bail for the Queensland offence at the time of the offending.
As for the handling offences, they are consistent with the applicant’s long history over nearly 40 years of committing property and related offences. Again, opportunities for rehabilitation have not been taken up by him.
There is the additional factor of the outstanding Queensland sentence. Clearly the Queensland District Court Judge anticipated the sentence on the Victorian offences would be lengthy, served in Victoria and ameliorated to take account of the Queensland sentence that would be served cumulatively on the Victorian sentence. The applicant ought, therefore, have any sentence reduced accordingly. The appropriate way to achieve amelioration on these offences is to make carefully measured orders for cumulation.
For the applicant, it was submitted that he was ineligible for parole on any Victorian sentence because of the outstanding Queensland sentence. The court was later informed by counsel for the respondent, following enquiries of the Adult Parole Board, that any decision as to parole is not affected by the Queensland sentence or any prospect of extradition to that State. Unfortunately, the prisoner transfer legislation[69] does not contemplate the present circumstance. It would be desirable for both Victorian and Queensland authorities to re-consider the applicant’s position, namely, time served already in Victoria and the delays in the conclusion of this matter, none of which were caused by the applicant.
[69]Prisoners (Interstate Transfer) Act 1983 (Vic); Prisoners (Interstate Transfer) Act 1982 (Qld).
Upon sentencing the applicant after the second and third trials, the judge approached the sentencing task on the basis of ordering cumulation on the firearms counts and the handling counts in relation to the drug counts for which the applicant had already been sentenced. In summary his Honour noted the existing sentence on the drug counts of four years and eight months. He ordered a total sentence of four years on the firearms counts and two years on the handling counts and then cumulated one year of the handling counts on the firearms counts, making a total of five years’ imprisonment. His Honour then cumulated three of the five years of the combined firearms and handling counts on the drug counts, making a total effective sentence of seven years’ and eight months’ imprisonment effective from 1 June 2006, the date of sentence on the first trial. Hence, the applicant had the benefit of a doubling or double counting arising from the orders for cumulation.
His Honour fixed a new non-parole period of five years and two months effective from 13 December 2006 (the date of sentence after the second and third trials). He also noted that the applicant continued to be entitled to a declaration as to pre sentence detention of 799 days under the first sentence from 1 June 2006.
In light of the complete resentence of the applicant without the effect of the sentence on the drugs counts and the revisiting of that period of pre-sentence detention, this court faces an entirely fresh sentencing task. It is apparent his Honour weighed up the sentences on the drugs counts when fixing the sentences on the firearms and handling counts. We face no such inhibition on this occasion nor are we constrained by the principle of double jeopardy. However, it seems to me the sentences should be properly moderated to generally accord with the range of sentence previously imposed.
Weighing up all these matters, I would resentence the applicant:
On counts 1 to 7 (the firearms offences) – four years imprisonment on each count. I would direct that one year of the sentence on count 2, six months of the sentence on count 3 and three months of the sentences on each of counts 4 and 5 be counts served cumulatively on count 1 (the head count) leaving an effective sentence on the firearms counts of six years imprisonment.
On Counts 1 and 4 (the handling offences) - two years’ imprisonment on each count. I would direct that three months of count 1 be served cumulatively on the head count giving rise to a total effective sentence of six years and three months.
I would fix a non-parole period of four years.
VINCENT JA:
I agree with the disposition for leave to appeal against conviction in each case proposed by the Chief Justice and for the reasons given by her. I also agree with her Honour’s proposals with respect to re-sentencing.
DODDS-STREETON JA:
I have had the advantage of reading in draft the reasons for judgment of Warren CJ. I agree with the disposition proposed by her Honour for the reasons she gives.
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