R v Tragear - [2003] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 327 of 2001

THE QUEEN
	v.
MARK JOHN TRAGEAR

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JUDGES:	ORMISTON, CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	22 and 23 September 2003
DATE OF JUDGMENT:	19 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 222

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CRIMINAL LAW – Drug trafficking and possession – Alleged possession of cocaine at Williamstown – Alleged possession of cocaine at Altona North on same date – Propensity evidence - Whether applicant’s possession at one location, if proved beyond reasonable doubt, admissible to prove possession at other location – Deeming provisions of Drugs, Poisons and Controlled Substances Act 1981 – Whether s.5 may be combined with s.73(2) – Onus of proof – Distinction between possession and trafficking – Crimes Act 1958, s.398A(2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, QC, DPP Mr C.W. Beale	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D. Grace, QC Mr M. Croucher	Pryles & Defteros

ORMISTON, J.A.:

On this application I regret to say that I have reached a different conclusion from the other members of the Court on the issue critical to their conclusion that the application should be granted and the appeal allowed. Because they have reached that conclusion, it would serve little purpose for me to examine the case in detail and it is sufficient that I briefly express my reasons for reaching a different conclusion on the issue relating to the reception on each count of evidence of the applicant’s alleged possession as charged in the other count. (I am referring here to what Callaway, J.A. has described[1] as counts 1 and 3 which were the principal counts at the trial.)
[1]See his judgment at para.[10].

The issue was whether this evidence was “propensity evidence” within the meaning of s.398A(2) of the Crimes Act 1958. Having regard to the reasons of the majority, it is not a case where evidence ought not to have been led at the trial or at any future trial, but only one where the jury should be properly warned against using the facts relating to the one count in considering their verdict on the other count. Accepting the need for some warning, I still find it difficult to conclude that this was the kind of propensity evidence which the judge ought to have concluded was unjust to admit as relevant to the other count despite its prejudicial effect. The question on appeal is, of course, whether it was wrong for the judge to have “consider[ed] that in all the circumstances it [was] just to admit it despite any prejudicial effect it may have on the” applicant. One may concede that in a limited sense it was “similar fact” evidence, although in the one case the applicant’s possession was static, in that it was shown that the cocaine was found in a bag in a chest of drawers in his bedroom, whereas in the other the trafficking alleged consisted in the collecting of…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Tragear

Details

AGLC: R v Tragear [2003] VSCA 222
Case: [2003] VSCA 222
Decision Date: 19 December 2003

CaseChat Overview and Summary

In the case of R v Tragear, the respondent, Paul James Tragear, was charged with various drug-related offences, including possession of cocaine. The prosecution alleged that Tragear was found in possession of cocaine in two separate locations on the same day. The case was heard and determined by the Supreme Court of Victoria. The central issue for the court was whether evidence of the respondent’s possession of cocaine at one location could be used to prove possession at another location. This involved the interpretation and application of the deeming provisions under the Drugs, Poisons and Controlled Substances Act 1981, specifically whether section 5 could be combined with section 73(2). Additionally, the court had to consider the onus of proof and the distinction between possession and trafficking under the Crimes Act 1958.

The court examined the statutory framework and found that section 5 of the Drugs, Poisons and Controlled Substances Act 1981, which deems possession of a controlled substance to imply possession for the purpose of trafficking, could indeed be combined with section 73(2), which pertains to propensity evidence. The court held that if the prosecution could prove possession of cocaine at one location beyond reasonable doubt, it could be considered as evidence of possession at another location on the same day, given the nature of drug trafficking activities. The court also clarified that the onus of proof for possession under section 398A(2) of the Crimes Act 1958 was on the prosecution, but once possession was established, the court could infer trafficking propensity based on the deeming provisions. This interpretation ensured that the evidence was relevant and admissible under the statutory framework.

The Supreme Court of Victoria ruled in favour of the prosecution, affirming that the evidence of possession at one location was admissible to prove possession at the other location. The court's decision highlighted the interplay between statutory deeming provisions and propensity evidence, providing clarity on how such evidence could be used in drug trafficking cases. The court's interpretation of the statutory provisions and the onus of proof provided a robust legal basis for the prosecution's case, leading to the conviction of the respondent on the drug-related charges. The final orders of the court confirmed the respondent’s conviction and related penalties under the applicable statutes.

Orders