R v Tran

The appeal in *R v Tran* was heard by Nyland, Anderson and David JJ of the Supreme Court of South Australia. The appellant had been convicted by a jury of trafficking in a controlled drug, specifically heroin. The conviction followed a police search of his residence where a trafficable quantity of heroin and materials commonly used for packaging the drug were discovered. The appellant testified that he had purchased the heroin for personal use and had forgotten its location.

The court was required to determine several legal issues. These included whether the appellant was in "possession" of the heroin, whether the prosecution was obliged to elect which of the presumptions under s 32(5) of the *Controlled Substances Act 1984* (SA) it intended to rely upon, and whether the trial judge had misdirected the jury regarding the presumption arising from participation in the sale process. Further issues concerned whether the trial judge erred in allowing the jury to consider the packaging of the drug as a basis for conviction when the heroin itself was not found packaged, and whether a propensity warning was necessary to prevent the jury from inferring guilt from the appellant's admitted heroin use.

The Full Court dismissed the appeal. It held that the appellant retained "possession" of the heroin as he knowingly had physical custody with the intention to exercise control over it. The court found that the prosecution was not required to elect between the statutory presumptions. Regarding the trial judge's direction on the presumption, the court acknowledged a misdirection but concluded it could only have benefited the appellant and therefore did not occasion a miscarriage of justice. The court also held that the presence of packaging paraphernalia was sufficient to allow the jury to consider the packaging of the drug as a step in the process of sale, even if the drug was not yet packaged. Finally, the court determined that a propensity warning was unnecessary as the appellant's volunteered evidence of drug use did not suggest criminal behaviour similar to trafficking, and neither counsel nor the judge had suggested his use was relevant to propensity.