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 The Queen (1988) 87 Cr App Rep 372, considered.

R v TRAN
[2011] SASCFC 85
Court of Criminal Appeal: Nyland, Anderson & David JJ

NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by David J.
ANDERSON J: I would dismiss the appeal. I agree with the reasons of David J.
DAVID J: The appellant and his co-accused, Jules Thu Tran, were charged and convicted by verdicts of a jury of the offence of trafficking in a controlled drug. I set out the information:
HONG PHUC TRAN and JULES THU TRAN
are charged with the following Offence
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Hong Phuc Tran and Jules Thu Tran on the 26^th day of June 2009 at Angle Park, knowingly trafficked in a controlled drug, namely heroin.
At trial, the prosecution case was that the appellant and the co-accused at the date of the alleged offending were in a relationship. The co-accused leased a house at Angle Park and on occasions shared it with the appellant. That house was searched by the police on 26 June 2009 and a quantity of heroin was found. On analysis the heroin was found to weigh 2.66 grams. As a result, the Judge directed the jury about the presumptions contained in s 32(5) of the Controlled Substances Act 1984 (SA) (“the Act”). I will turn to that section in more detail later in these reasons.
The appellant gave evidence at the trial, and maintained that he had been a user of heroin for 10 years up until the time of his arrest. The heroin that was found at the house and was the subject of the charge had been bought by him and brought into the house a month before the police searched it. He had not used any of that heroin for about a month at the time of the police search. The last time he did use it, he hid the heroin in the house and had forgotten where he put it.
At trial, the case was fought on the basis that possession had been proved and the question for the jury was simply whether the presumption in s 32(5) of the Act had been displaced.
The present appeal concerns the question whether both counsel and the Judge at trial were in error in assuming that possession of the heroin by the appellant was proved, in the light of his evidence. Other arguments presented on appeal involve an analysis of the presumption set out in s 32(5) of the Act and whether the trial Judge erred in his directions in relation to that section. The appellant also argues that the Judge did not give a “propensity warning” to the jury as a result of his admission that he had used heroin for 10 years.
Trial
The prosecution case at trial was largely undisputed. At about 10.25pm on 25 June 2009 police stopped a green Mazda sedan near 39 Angle Road, Angle Park. That vehicle was driven by the co-accused and the appellant was a passenger. The property at 39 Angle Road was leased by the co-accused. The co‑accused was searched by police and was found to be in possession of $14,400 and three mobile telephones. The appellant had $1,340 in his trousers pocket. Both were arrested and taken to the Port Adelaide Police Station as a result of which the appellant told the police of his address at 39 Angle Road, Angle Park.
In the early hours of the morning of 26 June 2009, the police searched that property and found the following items:
1An orange balloon containing two pieces of a rock substance wrapped in plastic in a large box of rice in a kitchen cupboard. That substance was analysed and found to weigh a total of 12 grams and contained 2.6 grams of heroin. This heroin was the subject of the charge. At trial evidence was led whereby DNA matching the appellant was located on the piece of plastic.
2Nine packets of water balloons in a child’s bedroom.
3Passports in the names of the appellant and the co-accused.
4Two sets of digital scales in the kitchen. Traces of heroin were found on one of those sets of scales.
5A box containing balloons, strips of plastic, a knife and a straw in the kitchen. Traces of heroin were found on the knife.
6A white crystalline substance which was located in the carport. Upon analysis the predominant substance was found to be sucrose. Evidence was called that sucrose is a cutting agent for heroin.
The appellant gave evidence. The co-accused did not. In evidence the appellant said that at the time of his arrest he was in a relationship with the co‑accused. He also gave evidence that he was unemployed at the time of his arrest and the money found in his pocket was from betting on soccer games.
He then gave evidence that the heroin found in the box of rice was his, and he had bought it for his own use. He said he purchased the heroin for $3,000 about a month before his arrest. He then gave the following evidence:[1]
[1]    T205.
Q.What did you intend to do with that heroin.
A.I used it for my own use.
Q.Did you ever sell any of that heroin.
A.No.
Q.Did you intend to sell any of that heroin.
A.No.
Q.Did you intend to give it away or trade it with anybody.
A.No.
Q.Was it for anybody else other than you.
A.No.
Q.Can you remember how much you paid for the heroin when you bought that lump of heroin.
A.$3,300.
Q.Had you used some of that.
A.I had used a part of it.
Q.The part that you had used, did you inject that.
A.Is correct.
Q.Do you know how much you put in each syringe when you injected.
A.I don't know exactly but I guess is just under half of a gram.
Q.With that heroin that you had that was in that orange balloon, how many times each day would you use it in a syringe.
A.About two or three times.
Q.And sometimes when your heroin habit was very bad, how many times would you use a syringe each day.
A.I don't know how many times but it depends when I had it more or less.
Q.The heroin that the police found at Jules’ house, when was the last time that you had used that.
A.I think about one month after they found.
MS BROWN: It might be a translation problem.
XN
Q.Was the last time you used that heroin one month before the police found it.
A.Is correct.
Q.Why didn't you use any more in that month.
INTERPRETER:    I’m sorry, I think there must be some confusion here. Could we have the question repeated?
HIS HONOUR:    Yes, I think Mr Tran was being asked when was it that he last used from that heroin that was found in the house, when before the police came.
A.About a month before that.
XN
Q.Why didn't you use it in that month.
A.Because on the last time when I used it I was very stoned. I then hid it somewhere and misplaced it. I could not find it.
It is to be noted there was no suggestion in the appellant’s evidence that he had abandoned the heroin.
After the prosecutor opened the case at trial and before evidence was called, counsel for the appellant pursuant to s 288A of the Criminal Law Consolidation Act 1935 (SA) made a short statement to the jury setting out the issues. She said:[2]
Ladies and gentlemen, I act for Mr Hong Tran and you will hear from him that that heroin that the police found was his, he possessed it but he possessed it for his own use. He is a big user of heroin and it was for his own use and his use alone, and that is what you will hear in this case and that is what the issue will be to consider, whether he had it for reasons other than his own possession. Thank you, ladies and gentlemen.
The case was therefore fought on the issue identified by the appellant’s counsel in her opening statement. There was no dispute by the appellant at trial that he was in possession of the heroin, that it was a trafficable quantity (being over 2 grams). He gave evidence that he had it for the purposes of his own use and no other purpose. The appellant argued at trial that his evidence to that effect should be accepted on the balance of probabilities.
[2] T53.
The jury by their verdict obviously did not accept his evidence.
Appeal
I deal with the grounds of appeal in order.
Ground 1
Ground 1 is as follows:
1.The conviction of the Appellant ought to be set aside on the ground there was a miscarriage of justice, which arose from the conduct of the Appellant’s counsel and the directions of learned trial Judge, about proof that the Appellant possessed the heroin the subject of the charge:
1.1     The Appellant’s plea of not guilty to the offence of Trafficking in a Controlled Drug meant the prosecution was required to prove all of the elements of the offence.
1.2 No elements of the offence charged were admitted by, or on behalf of, the Appellant pursuant to section 34 of the Evidence Act, 1929 (SA).
1.3     The Appellant admitted in his evidence that he had bought the heroin the police found, but said that he had lost it about a month before the police search. He had looked for it without success. He had no idea where the heroin was, until the police had found it. He was not cross-examined to suggest his evidence on this topic was untrue.
1.4     The learned trial Judge stated, incorrectly, that in the Appellant’s evidence he, “… has more or less nodded to …” the alternative verdict of simple possession of the heroin.
1.5     Prosecution counsel then told the jury that there was seemingly no dispute that the heroin was in the Appellant’s possession, as he had said as much in his evidence. That was incorrect. The Appellant’s evidence was that he had been the owner of the heroin, but he did not admit he was in possession of it. He said he had lost it.
1.6     The Appellant’s counsel also told the jury, incorrectly, that the effect of the Appellant’s evidence was that he admitted possession of the heroin. But the Appellant had admitted no such thing in his evidence.
1.7     The misunderstanding of the effect of the Appellant’s evidence led the learned trial Judge to withdraw from the jury the issue of whether it had been proven that the Appellant had been in possession of the heroin, by directing the jury that the Appellant had admitted in evidence that he had been in possession of the heroin on 26 June 2009.
1.8     The learned trial Judge ought to have directed the jury that as there was no evidence that the Appellant had physical custody of the heroin on 26 June 2009, in order for it to be satisfied he had possession of the heroin, the jury needed to be satisfied that he had knowingly had control of the heroin and this required proof that the Appellant knew where the heroin was, and so was able to exercise control over it.
1.9     The learned trial Judge ought to have directed the jury that unless it could exclude as a reasonable possibility that the Appellant had lost the heroin, as he said in his evidence, he was entitled to a complete acquittal.
I have already set out the appellant’s evidence at trial, especially that aspect of him forgetting where he had hidden the heroin. I have also set out defence counsel’s concession in her opening statement that in fact the appellant in the conduct of his defence was admitting that he possessed the heroin. Furthermore, the Judge directed the jury on a number of occasions that the appellant had admitted that he possessed the heroin. In other words, during the course of the trial it was accepted by all parties involved that the appellant’s evidence set out above was an admission to having possessed the heroin.
The appellant now argues that that was an incorrect assumption by all concerned.
Mr Henchliffe, counsel for the appellant on appeal, in argument points out that in order to traffic in a controlled drug as in the present case, one of the basic ingredients is that he “must have possession of the drug”.[3] He further argues that he must have actual possession at the time alleged by the prosecution. He then points out the well known dicta in He Kaw Teh v R,[4] where Dawson J approved the definition of possession for the purposes of the criminal law given by Lord Diplock in DPP v Brooks,[5] namely:
In the ordinary use of the word “possession”, one has in one’s possession whatever is, to one’s knowledge, physically in one’s custody or under one’s physical control.
[3] Controlled Substances Act 1984 (SA) s 4(1).
[4] (1985) 157 CLR 523 at 600.
[5] [1974] AC 862 at 866.
Mr Henchliffe argues that accepting the appellant’s evidence that he had forgotten where exactly he put the heroin he no longer had the heroin in his custody or under his control. He argues that therefore the jury should have been directed that to prove the appellant was in possession of the heroin that the prosecution had to prove beyond reasonable doubt that the appellant had not lost or misplaced the evidence when hiding it in the house as he said in evidence.
I do not accept that argument. The appellant’s evidence was that he had misplaced the heroin somewhere in the house, not at large. He had not forgotten that he had the heroin, he had simply forgotten where he had precisely put it within the house. In my view, he still knowingly had physical custody of it and intention to exercise control over it.
A number of cases were referred to by counsel. In Police v Kennedy,[6] the respondent was charged with possession of child pornography contrary to s 33(3) of the Summary Offences Act 1953 (SA). The judgment dealt with the question of whether the respondent was actually in possession of the material which was alleged to constitute child pornography. The evidence was that he had forgotten of the existence of the material which he had bought in the mid 1970s and it was therefore argued that that did not constitute possession. Bleby J held that even though the respondent may have forgotten that he had the material in his possession, nevertheless possession had been proved. His Honour referred to authority in the United Kingdom that mere forgetfulness of the fact that a defendant has certain material objects in his custody or control will not be sufficient to defeat proof of the relevant state of knowledge that he possessed them.[7]
[6] (1998) 71 SASR 175.
[7] R v Martindale [1986] 1 WLR 1042; R v Buswell [1972] 1 WLR 64; McCalla v The Queen (1988) 87 Cr App R 372.
Mr Henchliffe argues that these cases are distinguishable because they involve a situation where an accused person had forgotten of the existence of the material that was required to be possessed as distinct from having misplaced it as in the present case.
I reject that argument. In fact, I am of the view that his evidence that he misplaced the heroin makes out a stronger case for possession than if he had forgotten about its existence. He brought the heroin into the house, he hid it in a cupboard, and at a later stage he had forgotten where exactly he had hidden it. It was in the house which he and his partner, the co-accused, occupied and it was consequently under his control. No-one other than the appellant and the co‑accused, on his evidence, had access to the heroin.
In my view, both counsel and the Judge were correct in their assumption that on the evidence of the appellant possession was in fact admitted and the case was to be contested on the question of the purpose of its possession.
I would dismiss that ground of appeal.
Ground 2
Ground 2 is as follows:
2.The learned trial Judge erred in his directions to the jury about the presumptions contained in section 32(5) of the Controlled Substances Act, 1984 (SA) (the Act) by directing the jury that the presumptions applied simultaneously to the alternative allegations of guilt relied upon by the prosecution:
2.1 The prosecution alleged that the accused were guilty of trafficking in a controlled drug either because they possessed it intending to sell it or because they possessed it for the purpose of taking part in the process of its sale;
2.2 The terms of section 32(5) of the Act permitted only one of the presumptions contained in sections 32(5)(a) and 32(5)(b) to operate in a single case.
In order to understand this ground of appeal it is important to set out the relevant legislation. Section 32(3) of the Act provides:
(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
Within s 4 of the Act (the Interpretation section), is the following:
traffic in a controlled drug means—
(a)sell the drug; or
(b)have possession of the drug intending to sell it; or
(c)take part in the process of sale of the drug;
Section 32(5) of the Act states:
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.

Under the Controlled Substances (General) Regulations 2000 (SA) Schedule 1, a trafficable quantity of heroin is 2 grams.
In the light of that legislation the appellant argues that the learned trial Judge erred in his direction to the jury as to how the presumption set out in s 32(5) of the Act could be used. It is to be noted that the prosecution case was that he was guilty of trafficking in heroin either by having possession of it intending to sell it or having possession of it with the intention of taking part in the process of its sale. It was not incumbent upon the prosecution to elect.
The Judge in dealing with the presumption said the following:
Let me first discuss that question of possession for the purpose of or with the intention of sale.
In proving this, the prosecution has, in this case, the benefit of what is called a statutory presumption and it runs something like this: if it satisfies you beyond reasonable doubt that the particular accused was in possession of more than 2 g of that heroin mix, then the law presumes that that accused possessed it for the purposes of sale, unless that accused proves to you, on the balance of probabilities, that he or she had it for some other purpose.
This is this unusual circumstance, exceptional circumstance, I spoke about where some onus does fall upon an accused person, but for that to arise, the prosecution must first prove beyond reasonable doubt that first element, and further, that the particular accused possessed a quantity of heroin mix in excess of 2 g.
If it has done that, then the presumption that the heroin was possessed with the intention of selling it arises and an onus then falls upon that particular accused to prove that he or she had the drug for some other purpose, that is, a purpose other than for sale, but I stress that that accused does not have to satisfy you of that beyond reasonable doubt.
It is enough if the particular accused persuades you of that on the balance of probabilities or, in other words, persuades you that it is more likely than not that his or her purpose in possessing it was other than to sell it.
In considering that question, you look at the evidence as a whole, including not only the direct testimony of the witnesses but also the inferences that you are prepared to draw from surrounding facts, and having done that, you determine whether you are satisfied it is more likely than not that the particular accused possessed the drug for some other purpose.
…
But let me now discuss with you the other relevant way in which a person may traffic; that is to say, the person possesses heroin intending to take part in the process of sale. At law a person takes part in the process of sale of a drug if he or she directs, takes or participates in any step or causes any step to be taken in the process of sale.
The steps relied upon here by the prosecution, if you get to the point of considering this question, are that the accused, or one of them, stored the heroin, packaged it or guarded it or concealed it. Here, the prosecution says you can find that at the least, each of the accused, or one of them, possessed the heroin for the purposes of taking part in its sale by storing, guarding or concealing or packaging it.
Now as to this aspect of the second element, if you find that the prosecution has proved beyond reasonable doubt that either accused had possession of more than 2 g of the heroin mix and took part in the process of sale in any of those ways, then again, the law presumes that he or she was knowingly acting for the purposes of selling the drug unless he or she proves to you that he or she did not knowingly have it or that he or she had it but was dealing in it for some other purpose.
Once again, that particular accused does not have to satisfy you of that matter, or either of those matters, beyond reasonable doubt but only to satisfy you that it is more likely than not the case, and in that respect, you will again have regard to what that accused says and to the whole of the evidence.
Mr Henchliffe argues that the Judge has erred in applying the presumption in s 32(5) of the Act to both the scenarios set out in s 32(5)(a) and s 32(5)(b). He argues that because s 32(5)(a) and s 32(5)(b) are expressed to be disjunctive, the Crown can only rely upon the presumption in relation to one pathway to guilt and not both.
In other words, the presumption in s 32(5) could only apply to one of the alternative allegations of trafficking and not to both.
I reject that argument. As the prosecution is not required to elect which form of trafficking it relies upon, the presumption must apply to either form of trafficking in a particular case. It could not have been the intention of Parliament, and it would make no sense, to interpret the section in the way the appellant argues.
I would dismiss that ground of appeal.
Ground 3
Ground 3 is as follows:
3.The learned trial Judge erred in his directions to the jury concerning the presumptions contained in section 32(5) of the Act:
3.1 By directing the jury that the effect of the presumption in section 32(5)(a) of the Act was that if they were satisfied that the accused possessed more than 2 grams of the heroin mix, and that the accused had taken part in the sale of the drug by storing, packaging, guarding or concealing the heroin, then it was presumed that they had knowingly acted for the purpose of selling the drug;
3.2 By failing to direct the jury that the effect of the presumption in section 32(5)(a) of the Act was that if they were satisfied that the accused possessed more than 2 grams of the heroin mix, it was presumed that their act of possessing the heroin was for the purpose of sale of it (rather than the alleged acts of storing, packaging, guarding or concealing it);
3.3 By directing the jury that the presumption would be rebutted if the accused proved they did not knowingly have the drug, when this scenario could not possibly arise since the jury must already have decided the accused was in possession of the drug for the presumption to operate against them;
3.4. By directing the jury that a remaining question for them, if knowing possession by the accused was proved, was whether the prosecution had satisfied the jury that the possession by the accused was with the intention to sell or take part in the process of sale. This was in fact presumed in those circumstances, and the only remaining question was whether the presumption had been rebutted by the accused;
3.5 By directing the jury that the prosecution case was that the circumstantial evidence it had led should satisfy the jury that the accused had displaced the presumption in section 32(5), when the prosecution case was to the opposite effect;
Grounds 3.1 – 3.3
The appellant criticises that part of the Judge’s summing up to the jury when he said:
Now as to this aspect of the second element, if you find that the prosecution has proved beyond reasonable doubt that either accused had possession of more than 2 g of the heroin mix and took part in the process of sale in any of those ways, then again, the law presumes that he or she was knowingly acting for the purposes of selling the drug unless he or she proves to you that he or she did not knowingly have it or that he or she had it but was dealing in it for some other purpose.
The appellant argues that the Judge is incorrect when he says the presumption arises when it is proved that the accused had possession of more than 2 grams of the heroin mix and took part in the process of sale. Mr Henchliffe is quite correct in his criticism of that part of the Judge’s charge. For the presumption to arise it only has to be proved that the appellant had possession of more than 2 grams of the heroin. It does not have to be proved that he took part in the process of sale. That is the fact which the presumption seeks to prove. However, by saying that, the Judge rather than prejudicing the appellant appears to have placed a greater burden upon the prosecution for the raising of the presumption. In other words, it was only necessary for it to be proved that the appellant had possession of more than 2 grams of heroin mix for the presumption to arise and it was not necessary to prove that he took part in the process of sale.
Such a mistake could only have been to the benefit of the appellant. I find there was no miscarriage of justice. Also in the above passage, the trial Judge inserted into his charge that the presumption is displaced among other things if “he or she proves to you that he or she did not knowingly have it”. Mr Henchliffe argues, quite properly, that that was a mistake and the question of knowingly having it (in other words possessing it) is an element that has to be proved by the prosecution beyond reasonable doubt. In other words, the impugned direction would have the effect of suggesting a reversal of the onus of proof in relation to a basic ingredient, namely possession, which must be proved by the prosecution. However, on the reading of the summing as a whole the Judge makes it clear on a number of occasions that the element of possession of the heroin has to be proved beyond reasonable doubt.[8] Also at trial as discussed in Ground 1 the question of possession was agreed. I find that the passage referred to can not amount to a miscarriage of justice.
Ground 3.4
[8] Summing up at [20], [31] and [34].
The appellant criticises the following passage in the Judge’s summing up:
Now, in this case, ladies and gentlemen, you might reach the point, in considering the case against one or other of the accused, where you find you are satisfied beyond reasonable doubt that that accused was in possession of heroin, that he or she knew it and that it was a controlled substance, but you otherwise find either that that accused has satisfied you on the balance of probabilities that he or she had it otherwise than for the purposes of selling it or taking part in its sale, or you might find that the prosecution has not satisfied you beyond reasonable doubt that the possession by that accused was with the intention to sell or take part in the process of sale.
In that circumstance, but only in that circumstance, it is open to you to return a verdict of guilty on an alternative count. That alternative count is to the effect that the particular accused was, on 26 June 2009 at Angle Park, in possession of a controlled drug, namely heroin. So it is an alternative count if you find there is possession but you are not satisfied it was trafficking.
(Emphasis added)
Mr Henchliffe argues that there need be no direction of proof beyond reasonable doubt of the appellant’s intention to sell or take part in the process of sale once the presumption arises as it did in this case. Although that direction could be said to be unnecessary, it nevertheless aided the appellant and could not amount to a miscarriage of justice.
Ground 3.5
The appellant also criticises the following passage in the summing up:
Secondly, it says that quite apart from that presumption that I have spoken about, that legal presumption, you can conclude beyond reasonable doubt from the circumstantial evidence, that each of the accused possessed the heroin with the intention of selling it or in circumstances where they were taking part in the process of sale in the sense I have mentioned to you, and that that circumstantial evidence overcomes and should satisfy you the accused has displaced that legal presumption I spoke about.
That passage was in the context of the Judge explaining the circumstantial evidence led by the prosecution. There is clearly a slip by the Judge when he says that the circumstantial evidence “should satisfy you the accused has displaced that legal presumption I spoke about”. What he of course meant to say was that the accused has not displaced that legal presumption. Such a slip could not have caused a miscarriage of justice. What the Judge was saying was that apart from the presumption relied upon by the prosecution there was nevertheless a circumstantial case presented which could justify a conviction and also goes to the question as to whether the appellant had displaced or not displaced the legal presumption.
Ground 4
Ground 4 is as follows:
The learned trial Judge erred in his directions to the jury concerning the alternative prosecution allegation that the accused had trafficked heroin by knowingly taking part in the process of its sale, by directing the jury that it was open to it to find the accused had taken part in the sale of the heroin by packaging it, despite there being no evidence that any heroin in the possession of the accused was packaged for sale.
Sections 4(4) and 4(5) of the Act state:
(4)For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
(5)For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a)     storing the drug;
(b)     carrying, transporting, loading or unloading the drug;
(c)     packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)     guarding or concealing the drug;
(e)     providing or arranging finance (including finance for the acquisition of the drug);
(f)    providing or allowing the use of premises or jointly occupying premises.
His Honour in summing up and directing the jury as to how a person may possess heroin intending to take part in the process of sale said:
The steps relied upon here by the prosecution, if you get to the point of considering this question, are that the accused, or one of them, stored the heroin, packaged it or guarded it or concealed it. Here, the prosecution says you can find that at the least, each of the accused, or one of them, possessed the heroin for the purposes of taking part in its sale by storing, guarding or concealing or packaging it.
In other words, he left packaging of the drug as one of the alternative paths to conviction.
Mr Henchliffe argues that he erred in so doing because there was no evidence to justify leaving it on that basis.
I reject that submission. On the evidence presented at trial, there was all the paraphernalia for packaging.[9] Those items are set out earlier in my judgment. In my view, it is not necessary for it actually to be packaged in order that it be considered a step in the process of sale. It was clearly open for the jury to convict him in that way.
[9] See evidence of Detective Senior Sergeant Taggart at T156-157.
Ground 5
Ground 5 was not proceeded with.
Ground 6
Ground 6 is as follows:
6.The learned trial Judge erred by failing to direct the jury that it could not use the Appellant’s evidence that he had been a long time user and buyer of heroin for the purposes of:
6.1 Concluding that because the Appellant had committed criminal offences in the past, it was more likely that he would also have committed the charged offence; and
6.2 Concluding that the Appellant’s admitted criminal propensity as an illegal drug buyer and user meant that he was the type of person more likely to have committed the charged offence.
Mr Henchliffe argues that, although there was no request made by counsel at trial that the Judge warn the jury as to the dangers of propensity, there has been a miscarriage of justice because he did not do so. It is to be remembered that questions of previous criminal behaviour, namely the appellant’s use of heroin were raised by him in his evidence. Not only were they raised, but they were essential to his case. It was necessary to substantiate the defence that he possessed the heroin for his own use to set out in context the fact that he was a person who regularly used heroin. In the light of that, it is very difficult to know what direction the Judge could have given. In the context of this case neither counsel nor the Judge suggested that his previous personal use of heroin was relevant to the charge of trafficking by way of propensity. It is also to be noted that the volunteered evidence of the appellant’s previous behaviour is limited to his self‑use of heroin and not to criminal behaviour similar to that with which he was charged. In my view a propensity warning was unnecessary.
I would reject that ground of appeal.
Conclusion
I would dismiss the appeal.