R v Tran - [2017] SASCFC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN
[2017] SASCFC 168
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
19 December 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction.
The appellant was convicted of two counts of trafficking in heroin contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The heroin was found by police in the appellant’s bedroom, namely hidden inside a printer and a hollowed out candle. The appellant and her former partner, Mr Nguyen, were in the house at the time of the police raid. The appellant had spent the previous night at her sister’s house to allow Mr Nguyen access to their child. The prosecution case was that the appellant hid the heroin in her bedroom acting alone. The prosecution did not rely on the appellant exercising possession jointly with Mr Nguyen.
The appellant appeals on the grounds that the trial Judge failed to adequately direct the jury on the elements of possession and that the verdicts are unreasonable or cannot be supported having regard to the evidence.
Held, by Kourakis CJ (Stanley and Parker JJ agreeing), dismissing the appeal:
1. Although the trial Judge’s directions were brief and lacked any elaboration, they were sufficient to properly direct the jury on the forensic issues in this case.
2. The way in which the prosecution ran its case rendered it unnecessary for the trial Judge to give a direction that mere acquiescence in the hiding of the heroin in the appellant’s bedroom did not itself constitute possession.
3. The verdict was not unreasonable. The places in which the heroin was hidden in the appellant’s bedroom supported an inference that it was hidden by the person who permanently resided in it and not by an overnight visitor.
Controlled Substances Act 1984 (SA) s 32, referred to.
R v GNN (2000) 78 SASR 293; R v Neal (2017) 128 SASR 20; R v Saleh [2017] SASCFC 75; R v Wood [2017] SASCFC 100, considered.

R v TRAN
[2017] SASCFC 168
Court of Criminal Appeal: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: The appellant, Thi My Dieu Tran, appeals against her conviction on two counts of trafficking in heroin contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). Ms Tran appeals on the ground that the trial Judge failed to adequately direct the jury on the elements of possession, and on the ground that the verdicts are unreasonable. Ms Tran was given permission to appeal on the first ground and the second ground was referred to this Court for its consideration.
The heroin was found by police hidden in two locations in Ms Tran’s bedroom. Among others, Ms Tran and her former partner, Mr Nguyen, were in the house at the time. Ms Tran had not spent the previous night in the house to allow Mr Nguyen to have access to their child. Neither Ms Tran nor Mr Nguyen gave evidence. The prosecution case was that Ms Tran hid the heroin in her bedroom acting alone. The prosecution did not rely on Ms Tran exercising possession jointly with Mr Nguyen. The Judge’s directions on possession were brief but contained no misstatement of the law.
In the circumstances of this case no elaboration of the concept of possession was necessary. There was no risk that the jury might think that Ms Tran’s mere acquiescence to Mr Nguyen using her bedroom to hide the heroin was sufficient. The jury verdict must have been based on a finding that Ms Tran alone had possession of the heroin. Nor was the verdict unreasonable. The places in which the heroin was hidden in Ms Tran’s bedroom supported an inference that it was hidden by the person who permanently resided in it and not by an overnight visitor.
I would dismiss the appeal on the first ground and refuse permission to appeal on the second. I elaborate on my reasons below.
The evidence
The following factual summary of the prosecution case is taken from the appellant’s outline of submissions:
On 14 September 2015, police attended upon a house leased by the appellant for the purpose of conducting a search. In the process of searching the house, the police discovered in the order of an ounce of heroin in two locations in a bedroom normally occupied by the appellant. It was the prosecution case that the appellant was in sole possession of the heroin.
At the time of the police attendance, there were four people in the house. The appellant was in the kitchen and a man by the name of Mr Nguyen - the former partner of the appellant - was seen emerging from the appellant’s bedroom.
In the subsequent search of the property, the police located two bundles of heroin in the main bedroom. One bundle was inside a printer, although not carefully concealed. The police also found a set of electronic scales within the printer. The second bundle was found in the base of a candle. Inside the candle were a number of USB devices and sitting in front of or on top of those devices was a Probiotic bottle which contained 8 small press sealed bags of heroin.
There was no forensic evidence linking the appellant to the drugs.
The heroin in the printer was found on subsequent examination to weigh 27.4g and consist of 17.6g pure heroin. The heroin in the Probiotics bottle was found to weigh 2.67g, comprised of small amounts ranging from 0.16g to -0.47g. All up, the heroin was worth in the order of $6,000 - $12,000.
There was no dispute at trial that the main bedroom was generally used by the appellant. Various personal items - such as cards in a purse bearing the appellant’s name - were found in the main bedroom. Similarly, on the USB devices found by police were documents and photographs relating to the appellant, as well as other people. Equally, however, there was no dispute at trial that the appellant had not spent the night before the raid at home but, rather, had stayed at her sister’s house because Mr Nguyen, her former partner, was staying at the appellant’s house, having travelled from Aldinga.
The Director of Public Prosecutions (the Director) agreed with the factual summary with the following supplementation:
·    the heroin inside the printer was wholly concealed within it behind a flap that is used to access the ink cartridges; it was out of sight until the flap was opened;
·    the candle had been hollowed out and had a false bottom to create a secret compartment, and was placed on a shelf approximately 1.5 metres high;
·    Mr Nguyen was described by one of the police officers as wheelchair bound;
·    Mr Nguyen was seen emerging from the appellant’s bedroom as police entered it; between knocking on the door and opening the door, five to six seconds had elapsed.
Ms Tran’s sister, Rosy, gave evidence that Ms Tran had slept overnight at her home on 13 September 2015 and was there early in the morning when she left to go to work. Rosy did not give any evidence about the nature of Mr Nguyen’s medical condition which had left him wheelchair bound.
The prosecutor made no reference to joint possession in her opening. The prosecutor told the jury that her case was that:
… Miss Tran knew the heroin … was in her bedroom and that she also had effective control over it.
In her closing address the prosecutor said:
It will be suggested that one of those people that were present that day, perhaps the man that was wheelchair bound, Mr Nguyen, the man who has a previous drug prior from nine years ago, conveniently because of his history he may have put it there …
Miss Tran doesn't have to prove anything to you in this trial. It is for me, the prosecution, to do that. But, I simply posed those scenarios for you to highlight the prosecution case in relation to Miss Tran and in relation to the fact that I suggest that she knows about the heroin in the candle and that she has effective control over that heroin. She is the one who put it there, on the prosecution case.
…
The prosecution case, as I have already said to you a couple of times, Miss Tran has this heroin. Given the understanding we now have of how much it is worth, I suggest this might explain why it is hidden. There's people in the house at the time when police arrive. There's clearly others that are in the house then at any given time. This might explain to you why it is hidden. I suggest to you that she doesn't want other people to find it.
(emphasis added)
All of the following arguments of the prosecutor anchored the prosecution case to one of possession by Ms Tran acting alone:
·that they should reject the defence position that the heroin was placed there by somebody else;
·that they should find that Ms Tran put it there; and
·that she hid it not just from police but from others in the house excluded any possible reliance on joint possession.
The address of defence counsel also shows that joint possession by Ms Tran and another, or the mere acquiescence by Ms Tran in another person hiding the heroin in her room, were not issues:
His Honour is going to give you directions about this. Again, if I say anything different to his Honour you will ignore what I say and listen to his Honour. Because he is going to deal with it in such detail I won't dwell on it too much other than to say possession is not established merely because the drugs were found in her bedroom. I anticipate his Honour will tell you, it might not be in these words, but the Crown have to exclude beyond all reasonable doubt that the drugs were in the possession of someone else before you convict Miss Tran. As I say, his Honour will tell you more about possession and on behalf of Miss Tran I ask you to pay careful attention to his directions in relation to possession.
(emphasis added)
The reference to the mere presence of the drugs not being sufficient was linked to the real issue identified in the very next sentence, which was whether the prosecution could exclude the possibility that someone else, and not Ms Tran, was in possession of the heroin.
The summing up
The Judge’s direction on trafficking and possession were as follows:
Third, that the accused trafficked in the drugs. Trafficking includes possessing the drug with the intention of selling some or all of it or with the intention that someone else will sell some or all of it. The possession may take the form of storing or guarding or concealing the drug with the intention that some or all of the drug will be sold.
Essential to this ingredient is the legal concept of possession. I explain the legal concept of possession. The essence of the concept of possession in law is that at the relevant time you intentionally and knowingly have control over the object in question. You must have the right to exclude other people from possession of the object. It is not necessary that you have the object in your hand or on your person. It is not necessary that you own the object. You do not need to possess the object permanently. You could possess it temporarily or for some limited purpose.
I will give some examples. If you have a television at home you are in possession of it, even though you are here in court and do not immediate physical possession of it. You may not own the television. You might rent it or you might be borrowing it or looking after it for a short while. In each of these cases you would still be in possession of it. It would be different, however, if you did not know the television was in your house. If, for example, someone had, without your knowledge, hidden the television in your house intending to surprise you with it on your birthday, then you could not be said to be in possession of it; you do not know of its existence. Even though you are at home every night, you do not know of the presence of the television. It will be a complete surprise to you on your birthday. In that case you cannot be said in the eyes of the law to be in possession of the television.
The prosecution must prove beyond reasonable doubt that the accused was in possession of the drugs intending that some or all of them be sold or storing or guarding or concealing.
Ms Tran’s counsel complains that the references in the first paragraph to storing, guarding or concealing may have left the jury with the impression that merely allowing another person to store, guard or conceal Ms Tran’s drugs constituted possession. I reject that submission. The direction was an explanation of the nature of possession for sale and made the point that a person may be guilty of trafficking even before actually engaging in a transaction of sale. It is completely neutral on the question of whether the preparatory possession is joint or exclusive.
Towards the end of the summing up, the Judge referred to the address of defence counsel and said:
Mr Morrison said that you would not find possession proved simply because the drugs were found in the accused’s bedroom. To be in possession, to be in control, she has to have intended to exclude anyone else possessing the drugs.
It will be observed that the reference to intending to ‘exclude anyone else’ in that direction goes a little further than the address of defence counsel in the passage reproduced above. I accept that the Judge’s elaboration on the defence submission is more apt to a case in which there is an issue as to mere acquiescence in, or joint possession with another. However, that was not the forensic issue in this case. I accept that if it were, the collateral reference to the concept by reminding the jury of defence counsel’s submission would not have been an adequate direction. Moreover, as will be seen, in a case where mere acquiescence or joint possession is a forensic issue, greater elaboration is generally necessary to guard against a miscarriage.
Consideration
I observe at the outset that possession is a sufficient but not a necessary element of trafficking in a controlled drug. The definition of trafficking in s 4 of the CSA includes ‘take part in the process of sale of the drug’. The forensic purpose of the prosecution, in relying on possession as the relevant form of participation in trafficking, is to engage the presumption of commerciality in s 32(5) of the CSA which applies when possession of the prescribed quantity is proved. It is of course possible for a prosecution case to rely on other evidence of a commercial purpose, and on a form of participation other than possession to constitute the objective element of the offence of trafficking. It is also possible for the prosecution to, in such a case, rely on the possession and the presumption as an alternative basis on which to prove the commercial purpose. However, in most cases at least, to do so would unnecessarily complicate the case and the directions which would have to be given.
In R v GNN[1] (GNN) this Court considered the elements of possession in the context of charges of trafficking contrary to s 32 of the CSA. In GNN a police search discovered heroin in a house when there were a number of persons present, including some visitors who had just arrived from interstate. Ms GNN was convicted of trafficking in heroin found concealed in two different locations in the kitchen but not guilty of heroin found in a bedroom which she was temporarily sharing with Mr THN, a man with whom she was in a relationship. Mr THN had arrived from Sydney on the day before the police search. The heroin in the bedroom was hidden between the mattress and the base of the bed. That heroin was not related chemically to any other heroin found in the house. Heroin was also found in the car in which the visitors from Sydney had arrived. Ms GNN denied any knowledge of the heroin. Chief Justice Doyle commenced his consideration of the adequacy of the directions on possession as follows:[2]
[20]First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury's part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.
[1] (2000) 78 SASR 293.
[2] R v GNN (2000) 78 SASR 293 at 296, [20].
It follows from the matters identified by Doyle CJ in that passage that there was a forensic issue as to whether Ms GNN had joint possession or had merely acquiesced in the presence of the heroin. The summing up in Ms GNN’s trial contrasted the concepts of immediate possession and control with the ‘right or power to place their hands on it’. Importantly the summing up directed the jury that joint possession was sufficient and gave as an example the joint possession of the owner of a lawnmower with a neighbour to which it is lent, but did not explain that the mere acquiescence in the presence of the heroin did not constitute joint possession.
Doyle CJ continued:[3]
[23]In my opinion, bearing in mind the importance of the issue of possession in this case, the direction given was inadequate. …
…
[25]It was particularly important to identify the circumstances which, if proved to the jury's satisfaction, would establish that the heroin was in the possession of Ms GNN as distinct from being in the possession of one or other of the men found in the house. The judge's direction does not really grapple with that issue. It is an issue which cannot be resolved solely by reference to the knowledge of Ms GNN. It required some further explanation of the practical application of the concept of control. It was not a case that required further general discussion of the nature of the relevant concepts, but rather an explanation of how they were to be applied. The jury needed further guidance on the issue of control because, in this case, it was quite possible that the heroin had been brought into the house by one of the men, but with the knowledge and acquiescence of Ms GNN. The judge's directions gave no assistance on that issue, other than by referring to the concept of custody or control. As well, in my opinion the directions that the judge gave might have misled the jury in two respects. First, the judge referred to a person possessing an object which was in a place such as a person's home, and said that in that situation although the person did not have immediate control of the object, the person could still claim an exclusive right or power over it. There is a risk of the jury interpreting this as meaning that their satisfaction that Ms GNN knew the heroin was hidden in her kitchen was sufficient to constitute possession. As well, in the circumstances of this case I consider that the emphasis on knowledge might have caused that to assume undue importance in the jury's mind. Of course, knowledge was a critical issue, but in the circumstances of this case so was control, and so was the issue of whether the jury were satisfied that Ms GNN, and not some other person, was exercising the relevant control or had an intention to assert control. In particular, the judge did not tell the jury that to convict Ms GNN they would have to exclude the possibility that she had merely acquiesced in one of the men hiding the heroin in the kitchen, in the sense of merely permitting him to conceal his heroin in her house.
[26]I understand the difficulty in crafting appropriate directions, and the need to avoid confusing the jury by the elaboration of legal concepts, or by multiplying examples. But the facts of this case required that the jury be told specifically that proof that GNN knew that the heroin was hidden in her kitchen did not establish that she was in possession of it. The jury should have been told that they would also need to be satisfied either that she had hidden the heroin there herself, and was intending to exercise or assert control over it, or that the heroin had been hidden there by one of the men at her request, she intending thereafter to assert control over it. In that context it would be appropriate to warn the jury that possession by Ms GNN was not established by proving that she allowed one of the men to hide his heroin in her house.
(emphasis added)
[3] R v GNN (2000) 78 SASR 293 at 297-298, [23]-[26].

As I have observed, the prosecution case was limited to Ms Tran concealing the heroin herself. The second alternative basis for possession identified in the underlined sentence therefore did not arise. That factual distinction is critical to the disposition of this appeal.
In R v Neal[4] (Neal) this Court considered an appeal against conviction of one count of aggravated possession of a firearm. The appellant was a passenger in a vehicle driven by an acquaintance, Ms Booth. Importantly both were charged with possession of the firearm in a joint trial. Whether the accused jointly possessed the firearm or whether one possessed it without the knowledge of, or with the mere acquiescence of the other, were necessarily issues in the case. The gun was found inside a white hessian bag placed in the gap between the front passenger seat and the centre console of the car. Mr Neal testified that he knew, but was not close to, Ms Booth and that he had accepted a lift from her. Ms Booth also denied any knowledge of the presence of the firearm, claiming that the car had been hired by another person, a friend of hers. The trial Judge in Neal left joint possession to the jury explaining that joint possession must have ‘the right to exclude’ all others. The Judge explained joint possession and contrasted immediate physical possession with control by reference to the family television, but did not expressly explain that mere acquiescence in the presence of the gun did not constitute joint possession of it.
[4] (2017) 128 SASR 20.
The directions were found to be inadequate for the following reasons:[5]
[44]The direction does not give the jury guidance as to whether, even if it is possible on the evidence that Ms Booth was alone in the possession of the gun, Mr Neal's mere knowledge of the gun would be sufficient to prove “possession”. The evidence that Ms Booth hired, and was in charge of, the car and that she was only casually acquainted with Mr Neal clearly raised that possibility. The jury's attention should have been drawn to the evidence and its legal significance.
[5] R v Neal (2017) 128 SASR 20 at 29, [44] per Kourakis CJ (Nicholson and Parker JJ agreeing).
In R v Saleh[6] this Court considered an appeal against a conviction for trafficking in methylamphetamine following a trial in which the prosecution relied on evidence of possession of the drugs. The Full Court dismissed the appeal. In that case the trial directions were more extensive than in GNN and in Neal. Importantly mere acquiescence was excluded as a basis for possession in a redirection requested by defence counsel.[7]
[6] [2017] SASCFC 75.
[7] R v Saleh [2017] SASCFC 75 at [10]-[12] (Stanley J, Nicholson and Hinton JJ agreeing).
Stanley J said:[8]
[18]In this case, the appellant submits that the judge was required to direct the jury, as was done in GNN, that mere acquiescence by him in allowing Mr [V] or someone else to store the methylamphetamine in his house was insufficient to prove possession. In my view, the direction given by the judge was adequate given the circumstances of this case. The facts of this case are distinguishable from the facts in GNN. On the one hand there was no evidence of Mr [V] being in the appellant’s house. On the other hand, there was no evidence how the methylamphetamine came to be in the house. In these circumstances, the judge was required to direct the jury that proof of possession required the jury to be satisfied beyond reasonable doubt, not only that the appellant knew of the presence of the methylamphetamine in his house, but that it was there for the purpose of him storing it, either for his own purposes or the purposes of Mr [V] or someone else. In other words, it was necessary that the jury be directed that possession required the exercise of an intention to control the drugs in addition to knowledge of their presence in his house. I consider that the initial general direction together with the later explanatory direction, then redirection given by the judge satisfied that requirement.
[8] R v Saleh [2017] SASCFC 75 at [18].
In R v Wood[9] the directions, given by the trial judge were extensive and also expressly excluded mere acquiescence in the presence of the illicit drugs. Vanstone J correctly described the directions as ‘clear and comprehensive’. Vanstone J then continued:[10]
[18]The passage in GNN relied on does not prescribe a particular approach to directing juries on possession. Certainly there is material there which Judges may well find helpful in drafting directions suitable for the particular case before them. But each case turns up different facts and different issues. Generally speaking, the main requirement in terms of the elements of an offence is to clearly explain what is required in terms of proof. If that is done then it will not usually be necessary to provide a catalogue of what is not sufficient. Of course, if issues are muddied by counsel, or if the issue for determination can be honed by sweeping away some red herrings or straw men, then it may be helpful to dispose of those issues by directing that certain matters cannot prove the charge. It is true that the concept of possession, and particularly joint possession, can be a difficult one for jurors, who do not customarily think in such terms. For this reason examples are helpful. However, in the circumstances of this case, having considered the evidence and the directions, I am of the view that the legal issues were clearly laid out.
(emphasis in original)
[9] [2017] SASCFC 100 at [11]-[12].
[10] R v Wood [2017] SASCFC 100 at [18] (Kourakis CJ and Nicholson J agreeing).
Conclusion
The Judge’s directions in this case were brief and lacked any elaboration. However, they were sufficient to properly direct the jury on the forensic issues in this case. The prosecution case was that Ms Tran, herself, placed and concealed the heroin in her bedroom for her exclusive use. The prosecution did not rely on a finding that Ms Tran, having discovered that Mr Nguyen had hidden the heroin in her bedroom, thereafter intended to possess it with him to the exclusion of all others. A direction that mere acquiescence in the hiding of the heroin in her bedroom did not in itself constitute possession was therefore unnecessary. There has been no miscarriage of justice.
Unreasonable verdict
The fact of the presence of the heroin concealed in the printer and the specially fashioned candle in Ms Tran’s bedroom was strong evidence of her possession of it. Mr Nguyen’s presence at the house was temporary and for the purpose of taking access to his child. It was improbable that he would conceal the heroin in the candle and printer if it were his. Given the temporary nature of his stay, and his disability, he is more likely to have kept the heroin in a single and more readily accessible location. It is not arguable that the jury must have entertained a reasonable doubt. On the circumstantial case against the appellant the inference that she had secreted the heroin in the particular hiding spots in which it was found, and that she intentionally exercised exclusive control over it, was properly drawn by the jury.
Orders
·Appeal on ground 1 dismissed.
·Permission to appeal on ground 2 refused.
STANLEY J: I agree with the orders proposed by the Chief Justice and his reasons for making them.
PARKER J: I agree with the reasons of the Chief Justice and the orders he proposes.