R v Tran

[2011] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TRAN

[2011] SASCFC 85

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)

11 August 2011

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - EVIDENCE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

Appeal from verdict of a jury – appellant convicted of trafficking in a controlled drug – police searched house occupied by appellant and found trafficable quantity of heroin – police also found materials frequently used for packaging heroin – appellant gave evidence that he had bought the heroin for his own use and forgotten where he had hidden it – whether appellant had “possession” of heroin – whether prosecution was required to elect which presumption in s 32(5) of the Controlled Substances Act 1984 (SA) it relied upon – whether trial judge misdirected jury by saying the presumption arose if the appellant took part in the process of sale – whether trial judge erred in leaving to the jury the packaging of the drug as an alternative path to conviction where the drug was not found packaged – whether trial judge erred in failing to give propensity warning to the jury not to conclude that the appellant's use of heroin made it more likely that he committed the charged act.

Held: appeal dismissed – appellant still knowingly had physical custody and an intention to exercise control of it – appellant had “possession” of heroin –prosecution was not required to elect which presumption it relied upon – not necessary for appellant to take part in process of sale to invoke presumption – trial judge misdirected jury – misdirection could only have benefited the appellant – no miscarriage of justice. Not necessary for heroin to already be packaged in order for packaging to be considered a step in the process of sale – all the paraphernalia for packaging was present – the trial judge did not err in leaving the packaging of the drug as a path to conviction – the volunteered evidence of the appellant did not extend to criminal behaviour similar to the charged behaviour – neither counsel nor the trial judge suggested the appellant’s use of heroin was relevant by way of propensity – a propensity warning was unnecessary in this case.

Controlled Substances Act 1984 (SA) s 4(1), s 32(3), s 32(5); Criminal Law Consolidation Act 1935 (SA) s 288A; Summary Offences Act 1953 (SA) s 33(3); Controlled Substances (General) Regulations 2000 (SA) Sch 1, referred to.
He Kaw Teh v R (1985) 157 CLR 523; DPP v Brooks [1974] AC 862; Police v Kennedy (1998) 71 SASR 17, applied.
R v Martindale [1986] 1 WLR 1042; R v Buswell [1972] 1 WLR 64; McCalla v…