R v Tran

Case [2007] VSCA 19 21 February 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 346 of 2005
	v
HIEP TAN TRAN

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JUDGES:	NETTLE, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2006
DATE OF JUDGMENT:	21 February 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 19

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CRIMINAL LAW – Application for leave to appeal against conviction – Occupier of premises deemed to be in possession of drugs under Drugs Poisons and Controlled Substances Act 1981 s 5 – Elements of possession established unless the accused proves to the contrary – Whether element of intention to exercise control raised as an issue on the evidence – Duty of trial judge to direct only as to real issues – No need for direction regarding intention to exercise control – Whether misdirection as to meaning of ‘prima facie’ in Drugs Poisons and Controlled Substances Act 1981 s 73(2) – Accomplice warning where evidence corroborated – Application refused.

CRIMINAL LAW – Sentencing – Whether a sentence of four years’ imprisonment with a non-parole period of three years manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O P Holdenson QC	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr P G Nash QC with Mr J P Dickinson	Access Law

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Redlich JA, and the concurring judgment of Neave JA, and I agree with their Honours that the applications for leave to appeal against conviction and sentence should be refused. I wish, however, to add some brief observations concerning the applicant’s first and principal ground of appeal.

As appears in Redlich JA’s reasons, the applicant was presented for trial on one count of trafficking in a drug of dependence, namely, heroin, contrary to s 71AC of the Drugs Poisons and Controlled Substances Act 1981, and an alternative count of possessing a drug of dependence, namely, heroin, based on evidence that police had found a traffickable quantity of heroin concealed in the applicant’s bedroom and elsewhere in the premises at which the applicant lived at 7 Renbold Place, Mulgrave.

The Crown relied on s 5 of the Act, which provides that a substance shall be deemed for the purposes of the Act to be in possession of a person so long as it is upon premises occupied by him unless the person satisfies the court to the contrary,[1] and on s 73(2) of the Act, which provides that where a person has in his possession a drug of dependence in a quantity of not less than a traffickable quantity applicable to that drug of dependence, his possession of the drug is prima facie evidence of his trafficking in that drug.
[1]On the balance of probabilities.

The defence case was that although the applicant lived at the premises, the drugs belonged to Vo, who also lived there and trafficked in drugs, but that the applicant did not know that Vo trafficked in…

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.

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Details

AGLC: R v Hiep Tan Tran [2007] VSCA 19
Case: [2007] VSCA 19
Decision Date: 21 February 2007

CaseChat Overview and Summary

The case of R v Tran involved an appeal against both the conviction and the sentence imposed on the accused. The accused was found to be in possession of drugs under the Drugs Poisons and Controlled Substances Act 1981. The central issue before the court was whether the trial judge erred in not directing the jury on the requirement of proving the accused's intention to exercise control over the drugs. Additionally, the court had to consider whether there was a misdirection concerning the term "prima facie" as used in section 73(2) of the Drugs Poisons and Controlled Substances Act 1981, and whether the sentence imposed was manifestly excessive.

The court found that the trial judge did not err in omitting a direction regarding the intention to exercise control since this element was not raised as an issue by the evidence presented. The court emphasised the trial judge's duty to direct only on real issues arising from the evidence. Regarding the term "prima facie," the court held that there was no misdirection as the jury was properly informed about the standard of proof required under the statute. The court also found that the sentence of four years’ imprisonment with a non-parole period of three years was not manifestly excessive, taking into account the nature of the offence and the circumstances of the case.

The court's reasoning led to the conclusion that the appeal against conviction and sentence was without merit. Consequently, the application for leave to appeal was refused. The decision underscored the importance of ensuring that trial judges provide appropriate directions only on issues actually raised by the evidence and that the sentence imposed is proportionate to the offence committed.

Orders