R v Tran - [2007] VSCA 164

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 286 of 2006
	v
BINH TRAN

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JUDGES:	VINCENT, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2007
DATE OF JUDGMENT:	23 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 164

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CRIMINAL LAW – Possession of excisable goods contrary to s 117(1) of the Excise Act1901 (C’th) – Verdict – Whether unsafe and unsatisfactory – Possession – Whether necessary for Crown to prove “exclusive possession” – Evidence – Circumstantial evidence – Contraband found in garage and store room to which applicant had keys – Whether necessary for Crown to exclude possibility of existence of other keys – Charge to jury – Whether necessary for judge to identify facts said to constitute indispensable link in chain of reasoning leading to inference of guilt – Whether judge required to direct jury of necessity for Crown to exclude possibility of existence of other keys beyond reasonable doubt – Excise Act1901 (C’th), s 117(1) – M v The Queen (1994) 181 CLR 487, Shepherd v The Queen (1990) 170 CLR 573, applied; R v Dibb (1991) 52 A Crim R 64, R v Cumming (1995) 86 A Crim R 156, considered; Moors v Burke (1919) 26 CLR 265, Williams v Douglas (1949) 78 CLR. 521, He Kaw Teh v The Queen (1985) 157 CLR 523, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D D Gurvich	Director of Public Prosecutions (C’th)
For the Applicant	Mr T Kassimatis	Grigor Lawyers

VINCENT JA:

I agree that, for the reasons advanced by Nettle JA, the application for leave to appeal against conviction should be dismissed.

NETTLE JA:

Following a trial in the County Court at Melbourne, the applicant was on 30 August 2006 convicted of one count that he did, contrary to s 117(1) of the Excise Act1901 (C’th), without being a licensed manufacturer and without permission possess or have custody or control of manufactured or partly manufactured excisable goods on which duty had not been paid, namely, tobacco, knowing or being reckless as to whether the goods were excisable goods on which duty had not been unpaid.

He now applies for leave to appeal on grounds that:

1) The verdict of the jury was unsafe and unsatisfactory, in the sense that it was not open to a properly instructed jury to find the applicant guilty.

2) The judge gave inadequate directions as to the matters concerning exclusivity of possession on which the jury needed to be satisfied beyond reasonable doubt.

3) The judge failed to direct the jury of the need to be satisfied beyond reasonable doubt of intermediate facts essential to the process of reasoning leading to an inference of guilt.

The facts

Pursuant to s 149AB of the Evidence Act 1958 the following were admitted facts for the purposes of the trial:

1) In 2003 the registered proprietor of the property at 76 Ford Avenue Sunshine North was Thi Tuyet Hong…

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 Tran

Details

AGLC: R v Tran [2007] VSCA 164
Case: [2007] VSCA 164
Decision Date: 23 August 2007

CaseChat Overview and Summary

In the case of R v Tran, the appellant was convicted of possessing excisable goods in contravention of section 117(1) of the Excise Act 1901 (C’th). The appeal before the court centred on the sufficiency and satisfaction of the verdict, specifically whether the Crown was required to prove exclusive possession of the goods and whether the judge was obligated to direct the jury on the necessity for the Crown to exclude the possibility of other keys beyond reasonable doubt. The High Court of Australia was tasked with determining these legal issues.

The primary legal issues revolved around the interpretation of section 117(1) of the Excise Act 1901 (C’th) and the standards of proof required for a conviction. The court examined whether the Crown needed to prove exclusive possession of the excisable goods and if the judge was required to instruct the jury on the necessity for the Crown to exclude the possibility of other keys beyond reasonable doubt. The court referenced several precedents, including M v The Queen and Shepherd v The Queen, to determine whether the judge's charge to the jury was adequate.

The court held that the conviction was unsafe and unsatisfactory due to the judge's failure to properly charge the jury on the necessity for the Crown to exclude the possibility of other keys beyond reasonable doubt. The court determined that the judge should have directed the jury on this point, as it was an indispensable link in the chain of reasoning leading to the inference of guilt. Consequently, the court quashed the conviction and ordered a retrial. The appellant’s appeal was thus allowed, and the conviction was set aside.

Orders