Rowan Leigh McCabe v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0081

ROWAN LEIGH MCCABE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, McLEISH and MACAULAY JJA
WHERE HELD:	Melbourne
DATES OF HEARING:	4, 23 May 2022
DATE OF JUDGMENT:	15 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 139
JUDGMENT APPEALED FROM:	[2019] VCC 1808 (Judge Dean)

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CRIMINAL LAW – Appeal – Conviction – Jury directions – Identification of matters in issue – Role of trial counsel – Trafficking by possession for sale – Knowledge of presence of drug – Large quantities of drug and cash found in storage unit – Applicant leased and used unit – Whether directions required on exclusivity of applicant’s possession, control, access to unit – Exclusivity not put in issue – Directions not requested – Whether ‘substantial and compelling reasons’ for giving unrequested directions – Whether photograph of applicant invited tendency reasoning – Whether reliance on presence of cash permissible – Whether evidence accurately identified for jury – No error – Extension of time refused – Dunn (a pseudonym) v The Queen [2017] VSCA 371, James v The Queen (2013) 39 VR 149, R v Falzon (2018) 264 CLR 361 applied – Jury Directions Act2015, ss 11, 12, 15, 16, 65.

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Counsel
Applicant:		In person
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	---
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
MCLEISH JA
MACAULAY JA:

Summary

After a trial in the County Court, the applicant was convicted on one charge of trafficking MDMA in not less than a large commercial quantity. He was sentenced to 11 years’ imprisonment, with a non-parole period of 7 years.
The applicant now seeks leave to appeal against his conviction. Because his leave application was filed more than 18 months out of time, he also seeks an extension of time within which to file it. The respondent opposes the extension application.
At trial, the applicant was represented by experienced counsel, senior and junior. On this application, he appeared unrepresented. His written submissions were nevertheless detailed and clear, with helpful references to the trial transcript and to relevant case law, and his oral argument was articulate and fluent.
The applicant does not contend that the guilty verdict was unreasonable. That is, he accepts that it was reasonably open to the jury, on the evidence presented to it, to conclude that he was guilty of the offence. Rather, his complaint is that he was denied a fair trial. His complaints are directed at what was said, and not said, by the trial judge and the prosecutor to the jury and, in particular, at what he contends was the judge’s failure to give necessary directions to the jury.
All of the applicant’s proposed grounds confront a very substantial threshold difficulty, namely, that none of the matters he now complains of was the subject of objection by his counsel during the trial. Both at common law and now under the Jury Directions Act 2015 (‘JDA’), an accused person is ordinarily bound by the decisions made by his/her counsel in the running of the trial.[1]
[1]Saricayir v The Queen [2018] VSCA 319, [83]–[87] (‘Saricayir’); Dunn (a pseudonym) v The Queen [2017] VSCA 371, [48]–[54] (‘Dunn’).
Under the JDA, it is the responsibility of counsel to inform the trial judge at the conclusion of the evidence what matters are in issue and what directions should be given to the jury. The applicant’s principal complaint is that the judge failed to direct the jury that, before they could find him guilty of possession of MDMA for sale, they had to be satisfied that he had possession of the drug to the exclusion of any other person. As will appear, however, exclusivity of possession was discussed but not pressed, and was effectively disavowed as an issue in this trial. There was therefore no occasion for the defence to seek, or for the judge to give, such a direction.
The applicant’s other grounds concern particular aspects of the evidence and what are said to be deficiencies and inaccuracies in the final address of the prosecutor and in the judge’s summing-up for the jury. That the applicant’s counsel raised no objection to any of those matters in the course of the trial is, once again, a reflection of forensic decisions which they made on his behalf.
Forensic decisions of that kind are made continuously throughout any criminal trial. Appellate intervention is not called for unless the course taken by counsel is shown to have been ‘plainly wrong’ — incapable of rational explanation having regard to the accused’s interests — and of such significance as to have occasioned a substantial miscarriage of justice.[2] We have examined each of the applicant’s complaints and, for reasons which follow, none of them falls into that exceptional category.
[2]Saricayir [2018] VSCA 319, [87].
Since the proposed grounds of appeal do not have reasonable prospects of success, the application for an extension of time will be refused.
Factual background
On 29 May 2017, a search warrant was executed at Unit 203 of Fry’s Self Storage Facility in Fitzroy. The unit was secured by a padlock. A quantity of MDMA, 5.3 kilograms, was seized from a Fox Racing backpack located to the right of the storage unit, under a desk, and 37 grams of methylamphetamine was seized from a Bells Beach sports bag under the same desk. The applicant was arrested on 2 June 2017 and charged with the trafficking offence.
The applicant was in possession of a key to the unit padlock, found on his bedside table on 2 June 2017. He admitted to filling out the forms for the storage unit agreement. He had completed the lease agreement on 11 December 2015, in the name of Jordan Mehfeld, a convicted drug trafficker. He signed the agreement using Mehfeld’s name and using Mehfeld’s genuine driver’s licence as identification.
The applicant resembled the person in the photo on the driver’s licence used to rent the unit. That licence was found in the Bells Beach bag in the unit. The storage unit was under surveillance by police between 12 February and 25 April 2017. The applicant was observed to enter the unit on a number of occasions, and was the only person observed entering in that period.
On 12 April 2017, the investigators gained covert access to the unit and observed the following in it:
•a Bells Beach bag containing drug preparation material;
•a Faraday bag containing hundreds of thousands of dollars in cash;[3] and
•a Fox Racing bag containing a large quantity of drugs made up of pills, powder, digital scales and so on.
[3]A Faraday bag is constructed so as to prevent electronic connection with the contents of the bag.
At the time of gaining access, investigators installed an optical surveillance device in the unit. On 25 April 2017, the device captured the applicant using the key to unlock and enter the unit. Once inside, he handled the Faraday bag, and he took a substance from somewhere underneath the desk and weighed it on digital scales. He then left the storage unit with the Faraday bag (the cash bag) and the weighed substances. When the applicant was arrested on 29 May, the Faraday bag and a set of keys including the key to the padlock to the storage unit were found at his house, but no cash was found.
In his charge, the judge summarised the elements of the circumstantial case on which the prosecution relied to prove that the applicant possessed the MDMA for sale:
•he had rented the unit in a false name;
•in doing so he had used the Mehfeld driver’s licence, there being a resemblance between himself and the photo of Mehfeld on the licence (suggesting it was a deliberate ploy to adopt a fake identity);
•he admitted in evidence that he had filled in the agreement and signed it;
•he had access to the unit, as demonstrated by the sign-in book, the PIN code records of the gate, the CCTV footage and the surveillance device footage;
•the large amount of money found in the unit (some hundreds of thousands of dollars);
•the large (valuable) amount of MDMA (and methylamphetamine) found in the unit (at the time of arrest), making it highly unlikely that anyone other than the owner of the cash and drugs would have access to the unit;
•the applicant used scales to weigh a drug, as depicted in the surveillance footage;
•the applicant’s admission that he had opened the Bells Beach bag and the Faraday bag located inside the unit;
•his admission that he owned the Faraday bag which he claimed to have used to convey cash to and from a drug trafficker (‘Jack’);
•the Bells Beach bag contained items consistent with drug trafficking, the applicant had access to it and removed items from it, including methylamphetamine;
•he had parked his car some distance from the storage unit, showing that he was being ‘cautious’ in relation to his movements in the vicinity of the unit;
•he was the only person to enter the unit while it was under constant video surveillance.
The applicant gave evidence. He said that he had entered the unit solely to obtain methylamphetamine for his personal use. He said he had nothing to do with — and had no knowledge of — the large quantity of MDMA found in the Fox Racing bag. He said he was not the only person with access to the unit.
He made the following assertions:
•the remaining keys (two or three) for the Masters padlock to the storage unit were unaccounted for;
•there was a person called Jack (Jacob Johnston-Hurrel) on whose behalf he had acted to retrieve methylamphetamine from the unit on seven occasions. (Jack was not called, nor was his identity verified.);
•the only reason he had filled out the rental paperwork for the unit on Mehfeld’s behalf was that he happened to be with Mehfeld at the time Mehfeld was making the application to rent the unit. When Mehfeld was called away on the phone, the applicant proceeded to complete the paperwork as if he was Mehfeld;
•at that time, Mehfeld was his ice supplier but he was jailed soon after renting the unit;
•later, Jack became his ice supplier and happened to take over the very same storage unit that Mehfeld had previously rented;
•he had entered the storage unit four times in 2016 to retrieve car parts which he had stored there;
•the surveillance video only showed him accessing the Bells Beach bag, which contained methylamphetamine;
•Jack’s address was only 1.2 kilometres from the storage unit at relevant times and the electronic records of entries to the unit began in the same month that Jack began residing nearby;
•a 12 month upfront cash payment for the storage unit was also made in the month Jack began residing close to the storage unit;
•there were 34 entries to the unit between November 2016 and April 2017 by persons who were not identified;
•the storage unit manager said clients of the storage units generally could, and did, gain entry during office hours without physically signing in;
•the handwriting on the sign-in document for the unit was (arguably) different from the applicant’s handwriting, as was the handwriting on the snap lock bags containing the MDMA;
•the (different) handwriting on the snap lock bags indicated that some person other than the applicant knew of and physically handled the bags, and had placed the drug in the bags;
•the optical surveillance evidence ‘proved’ that the applicant had no physical contact with the bag containing the MDMA.
We turn now to consider the proposed grounds of appeal. As noted earlier, the applicant’s principal complaint concerns what is said to be the inadequacy of the judge’s directions on the element of possession.

Ground 3: was a direction on exclusive possession necessary?

Proposed ground 3 is in these terms:
The judge erred in failing to direct on the necessity of proving exclusive possession, in particular exclusive physical control, and to exclude a reasonable possibility of another’s possession or physical control causing a substantial miscarriage of justice.
In order to deal with this ground, it is necessary to set out at some length how the issue of possession was dealt with in the course of the trial.
Towards the end of the Crown case, the judge said to counsel (in the absence of the jury): ‘An examination of the issues in the case would suggest that at least it’s arguable that the prosecution have to prove exclusive possession of those items [the bags in the storage unit].’ When the prosecutor demurred, his Honour responded by saying that he had formed that view on his analysis of ‘authorities that go back to the 1930s’. The question was deferred until later in the day.
Returning to the issue, his Honour urged the prosecutor to look at the authorities. He made reference in particular to Moors v Burke (‘Moors’),[4] saying, ‘We’ll need to see whether that applies in this case’. After it was pointed out that Moors had been decided a century earlier,[5] the prosecutor drew attention to the decision of this Court in R v Tran (‘Tran’).[6] As the prosecutor correctly submitted, the Court there held that it was ‘sufficient to establish the accused had possession even if there was a reasonable possibility that someone else had possession.’ The prosecutor added, ‘And that’s where I’ve been coming from all along. That’s the Crown’s position.’ There was no response from defence counsel.
[4](1919) 26 CLR 265; [1919] HCA 32.
[5]The transcript indicates that this point was made by defence counsel, but the context would suggest that the exchange took place between the judge and the prosecutor.
[6](2007) 16 VR 673; [2007] VSCA 164.
Following the conclusion of the defence case, the judge read out to counsel the opening words of s 11 of the JDA, which provides as follows:
Counsel to assist in identification of matters in issue
After the close of all evidence and before the closing address of the prosecution—
(a)the prosecution must inform the trial judge whether it considers that the following matters are open on the evidence and, if so, whether it relies on them—
(i)any alternative offence, including an element of any alternative offence;
(ii)any alternative basis of complicity in the commission of the offence charged and any alternative offence; and
(b)defence counsel must then inform the trial judge whether he or she considers that the following matters are or are not in issue—
(i)each element of the offence charged;
(ii)any defence;
(iii)any alternative offence, including an element of any alternative offence;
(iv)any alternative basis of complicity in the commission of the offence charged and any alternative offence.
His Honour then turned to s 11(b) and the following exchange with senior defence counsel occurred:
HIS HONOUR:        Thank you. Defence counsel must then inform the trial judge whether he considers that the following matters are or are not an issue. Each element of the offence charged. There is one issue in this case, I think. Am I right about that?
COUNSEL:The issue, Your Honour, is knowledge of the contents of the Fox Racing bag.
HIS HONOUR:        Right, so therefore the element in issue is possession.
COUNSEL:That’s right. We say Mr McCabe is not in possession. To be in possession, of course, the very first thing you need to do is have knowledge.
HIS HONOUR:        Yes. All right. There’s no dispute that he — and this is not really an exclusive access case, anyway.
COUNSEL:No.
HIS HONOUR:        Even though at one point — and that was before Mr McCabe gave his evidence — it was thought that it may be. But the real issue in this case is did Mr McCabe know that the Fox bag contained the MDMA. Did he have knowledge of the presence of the MDMA in the bag?
COUNSEL:No. That may throw a - - -
HIS HONOUR:        Because he knows the bag’s there.
COUNSEL:He knows the bag’s there.
HIS HONOUR:        And he’s got physical custody and control of the bag, by way of access to the shed.
COUNSEL:There’s the mental element, Your Honour.
HIS HONOUR:        Yes.
COUNSEL:What one might — pardon me — one might physically be able to access - - -
HIS HONOUR:        Yes.
COUNSEL:- - - an item, but you also have to intend — to intend to exercise control and dominion over it. So it’s knowledge - - -
HIS HONOUR:        Well, yes.
COUNSEL:But it — the real issue in the case is knowledge.
HIS HONOUR:        Yes.
COUNSEL:But to make out possession, you have to have dominion - - - over the item. You’ve got to know it’s a drug. And you have to intend - - -
HIS HONOUR:        Yes.
COUNSEL:- - - to exercise your control over it.
…
HIS HONOUR:        That’s the way in which I intended to charge the jury.
PROSECUTOR:       It’s quite a narrow case in that sense.
HIS HONOUR:        Well yes. There’s no legal defence as such relied upon in this case, is there, such as self-defence or anything of that nature, obviously?
COUNSEL:No, Your Honour.
HIS HONOUR:        No.
COUNSEL:We’re not suggesting that, because whoever runs Fry’s might have a key that destroys possession. We’re not - - -
HIS HONOUR:        No.
COUNSEL:We’re not saying that at all.[7]
[7]Emphasis added.
His Honour then moved on to the question of directions, which is governed by s 12 of the JDA:
Legal practitioners must request that particular directions be given or not given
After the matters in issue have been identified in accordance with section 11, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of—
(a)the matters in issue; and
(b)the evidence in the trial relevant to the matters in issue.
His Honour asked the prosecutor whether there were specific directions which the prosecution wanted given to the jury. He then asked the same question of defence counsel, who responded by specifying the following directions:
•a direction on the drawing of inferences;
•a direction about the applicant having given evidence;[8]
•a Liberato direction;[9]
•an Azzopardi direction;[10]
•a direction on the need to eliminate any hypothesis consistent with innocence.
[8]JDA, s 44A.
[9]Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66.
[10]Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25.
As to the last matter, his Honour confirmed with counsel that the relevant hypothesis was ‘the evidence the accused man gave’. His Honour then said to defence counsel that, even if the jury put the applicant’s evidence to one side, they would still have to be satisfied beyond reasonable doubt of the elements of the charge, irrespective of what the applicant had said. The following exchange then took place:
COUNSEL:Yes, Your Honour, they have to prove, irrespective of the evidence, that Mr McCabe knew of the presence - - -
HIS HONOUR:        Yes.
COUNSEL:- - - of drugs in the Fox Racing bag, and that he intended to exercise dominion and control - - -
HIS HONOUR:        Yes.
COUNSEL:- - - over that. If they fail to prove either one of those two things, then he has to be acquitted.
HIS HONOUR:        Well I’ll be telling them that.
COUNSEL:But the alternative scenario, Your Honour, is really based on his evidence that whilst he was there, and whilst he was involved with drugs, he was involved only with going to the Bells Beach bag to get methylamphetamine.
There was no further discussion of directions. Later that day, after the prosecutor’s final address, defence counsel addressed the jury. Unsurprisingly, given what counsel had said to the judge, there was no reference in the final address to any question of exclusivity of possession or exclusivity of access to the storage unit.

As he had foreshadowed, defence counsel identified the critical issue as being the applicant’s knowledge of what was in the Fox Racing bag. That argument was advanced in these terms:
This case just turns on two questions really. Has the prosecution proved beyond reasonable doubt that Mr McCabe knew of the contents of the Fox Racing bag? Quite contrary to what Mr Shaw ended up telling you, that’s what this case is all about. Has the Crown proved beyond reasonable doubt that Mr McCabe knew that there was a stash of drugs in that Fox Racing bag? Mr McCabe says, ‘I never touched it. Never accessed it. I did as I was told. I went to the bag with the methylamphetamine in it each time, as instructed, did as instructed and left.’
You can’t be in possession of something unless you know about it. Sometimes the law makes sense. That’s one of the ones that does. You can’t possess something unless you know you’ve got it.
Towards the end of his address, counsel spoke to the scenario consistent with innocence, in these terms:
Now, he’s given evidence. If you accept what he says then you will acquit him. That’s one scenario. ‘I believe him, I accept it.’ Well then he’s not guilty. It might be that you’re of the view, ‘look, I don’t accept it, but it might reasonably be true’. If you’re of that mind, then that means you’ve got a reasonable doubt, and you would find him not guilty.
…
If there’s an hypothesis, if there’s a scenario, if there’s a way of looking at times on the facts that’s reasonable and it’s consistent with innocence, and that scenario here is that Mr McCabe went there to get his methylamphetamine, went to the Bells Beach bag, had nothing to do with the bag, did not know the contents of the Fox Racing bag, if that’s a reasonable hypothesis, you don’t have to believe in it, but if that’s a reasonable hypothesis then it’s incumbent on the prosecution to prove beyond reasonable doubt that that alternative scenario should be rejected.
In his charge to the jury, the judge dealt with that topic in these terms:
[T]he accused gave evidence in the trial — and in due course I will deal with that — and he explained to you that the reason that he accessed that storage unit and the reason he is connected to it was due to his dealings with both [Mehfeld] and Jack when purchasing drugs for personal use from them, and that is why he went into the unit.
That is why he filled out the agreement, at [Mehfeld’s] request, and that was the end of his dealings with that unit until he started buying his drugs from Jack, after [Mehfeld] went to prison, and asked Jack if he could store his car parts in the unit, or Jack offered him the storage — access to the unit — and that is how he started, initially, entering the unit in June of 2016 and, thereafter, when he was purchasing his drugs from Jack, Jack allowed him to go to the unit, collect the drugs and return drugs to Jack as well from time to time, and that was why he accessed that unit and he gave evidence that at no stage did he ever access the Fox Racing bag.
When he came to the element of possession, the judge directed the jury as follows:
To prove possession, the prosecution must prove that the accused had physical custody or control of the drug and in this case the prosecution case is that the accused man stored his drugs in the storage unit. He put them there. They are his drugs and he put them there and they were kept there and that is how he had physical custody or control over them. That is the prosecution case. And that the accused intended to have custody or exercise control over the drugs and that he knew that the substance over which they had custody or control was a drug or was at least aware of the likelihood that it was a drug. That is he was aware that there was a significant or real chance that the substance he possessed was a drug.[11]
[11]Emphasis added.
Soon afterwards, the judge gave the jury a break and, in their absence, asked counsel if they had any exceptions to the charge. The following exchange took place:
HIS HONOUR:        Any exceptions, Mr Dickinson [senior counsel for the defence]?
COUNSEL:             It’s not an exception as such, Your Honour.
HIS HONOUR:        Yes.
COUNSEL:             Because I think what Your Honour has said is correct.
HIS HONOUR:        All right.
COUNSEL:However, in the context of this case what Your Honour hasn’t said in terms of the prosecution establishing possession; Your Honour hasn’t said that they have to prove he’s got knowledge of the contents - - -
HIS HONOUR:        Yes.
COUNSEL:- - - of that Fox Racing bag.
HIS HONOUR:        I’ll emphasise that. I’m happy to do that. Do you have any exceptions, Mr Shaw [prosecutor]?
PROSECUTOR:       No I don’t. I was just wondering if Your Honour is going to say anything about joint and exclusive possession, or is it - - -
HIS HONOUR:        Well, it hasn’t really been an issue in this case.
PROSECUTOR:       It probably hasn’t.
HIS HONOUR:        And I decided that I didn’t think it was necessary for me to do so - - -
PROSECUTOR:       No.
HIS HONOUR:        - - - unless the parties — it’s never been suggested that — it’s never been the defence that he knew that they were there but it was somebody else’s drugs, or something of that sort.
PROSECUTOR:       No. Look, I was just checking, given that we’d had a discussion the other day.
HIS HONOUR:        Yes.
PROSECUTOR:       And I’m happy with that.
HIS HONOUR:        All right. So we’ll just have 15 minutes. I will emphasise knowledge, Mr Dickinson.
COUNSEL:Thank you, Your Honour.
As can be seen, the prosecutor acted with exemplary fairness in raising with the judge, a second time, whether there needed to be a direction on exclusive possession. The judge responded — correctly — that it had not been an issue in the case. That being so, his Honour said, he had concluded that there was no necessity for such a direction.
Crucially, defence counsel remained silent, thereby signalling his agreement with the judge’s statement that exclusivity of possession was not an issue in the trial and that no direction was therefore required. Counsel’s only concern — consistently with everything he had previously said — was that the judge should redirect on the question of knowledge, that having been identified as the critical question.
The judge then gave the following redirection:
You will understand, ladies and gentlemen, in relation to possession that the prosecution must prove that the accused man knew the bag — the Fox bag, contained the MDMA. It is not sufficient to merely for the prosecution to prove that he possessed the bag. He must possess the drugs and to possess the drugs, he must know that they are in the bag. You no doubt understand that.
After the jury had retired to deliberate, the foreperson provided a note to the judge. His Honour informed counsel of the communication in these terms:
So the jury has a question. It’s not actually really in the form of a question, they’re more kind of notes, I suppose. ‘Your Honour, we are hoping to have a clear definition of “possession”. We are stuck on knowledge’ — the word’s underlined and then there’s a point, like a — ‘must have knowledge of what was in the bag or awareness/likelihood of drugs in the bag’, and then it reads, ‘First point of facts the Crown must prove; accused intentionally’, underlined, ‘performed an act of trafficking — (a) possession; (b) intent to sell. Is this correct?’
Well, the answer to the second part of it is yes, that is correct. He must intentionally perform an act of trafficking — that is, intend to possess and intend to sell.
The first part of the question concerns knowledge of what’s in the bag. The answer is yes; he has to have knowledge that there are drugs of dependence in the bag. It was never put on awareness or likelihood, although that’s sufficient and I did direct them on that, but this case — the Crown case is this is the accused man’s drugs. It’s not that he was aware that the drugs were in the bag — well, likely that had drugs in the bag — the Crown case is he knew they were there, they were his drugs.
As the judge here noted, his directions on knowledge had included, as an alternative to actual knowledge, the ‘awareness of a likelihood’ formulation sometimes relied on in cases of this kind.[12] That had not been part of the Crown’s case, as his Honour recognised, and defence counsel submitted that his Honour should ‘direct them expressly and explicitly that this is not an awareness/likelihood case’. Accordingly, when the jury came back, his Honour confirmed through the foreperson that proof of actual knowledge was required and that they could ‘put the awareness or likelihood aspect of it to one side’.
[12]See [31] above; and see Kural v The Queen (1987) 162 CLR 502, 505; [1987] HCA 16.

Consideration

As the trial record clearly shows, the applicant’s counsel did not contend that exclusivity of possession was a ‘matter in issue’ in this trial. On the contrary, as highlighted earlier, he agreed with the judge that it was ‘not really an exclusive access case’. As a result, counsel did not request a direction on exclusive possession. Nor, therefore, did he seek directions regarding exclusive access to the storage unit or exclusive ‘physical control’ of the drug.
In this Court, however, the applicant maintains that the judge should have given directions on all of those matters. He relies on s 16(1) of the JDA, which obliges a trial judge to give a direction — despite it not having been requested under s 12 of that Act — if the judge considers that ‘there are substantial and compelling reasons for doing so’.
The applicant contends that exclusivity of possession/access/control was squarely put in issue in the trial and that appropriate directions therefore needed to be given. The exclusivity issue arose, he says, by virtue of the matters set out in para 17 above, in particular, his own evidence connecting both Mehfeld and ‘Jack’ with the storage unit; the fact that the handwriting on the bags containing the MDMA was different from his own; and the fact that there were numerous entries to the unit between November 2016 and April 2017 by people who had not been identified.
That submission must be rejected, in our view. As this Court noted in Dunn, s 16 was enacted in place of s 15 of the Jury Directions Act2013, using language which was ‘a good deal more stringent than that of its predecessor’. This was ‘plainly enough, a deliberate choice by the legislature’, indicating that s 16 was intended to operate ‘in very limited circumstances’.[13]
[13] Dunn [2017] VSCA 371, [82].
As the Court in Dunn pointed out, s 16 is a qualification to the statutory prohibition imposed by s 15 against the giving of a direction which has not been requested by counsel. The judge’s obligation to give a direction under s 16(1) arises if — and only if — he or she considers that there are substantial and compelling reasons for doing so ‘even though the direction has not been requested under s 12’.[14] The Court said:
In our view, this language reinforces in emphatic terms the policy which underpins ss 11, 12, 14 and 15 of the JDA 2015, namely, that it is for trial counsel to determine how the case is presented to the jury and to identify which directions are required. Where, as here, counsel have discharged their obligations under ss 11 and 12 with obvious care, it is not ordinarily for the judge to override the forensic judgments which underpin the identification of the matters in issue and the requests for directions.[15]
[14]Ibid [84] (emphasis in original).
[15]Ibid [85].
So too in the present case. As appears from the exchanges with the judge set out above, the applicant’s counsel discharged their obligations under ss 11 and 12 ‘with obvious care’. Their forensic judgement was that exclusivity of possession was not an issue to be litigated in this trial. As has been seen, the trial judge himself raised the exclusivity issue with both counsel, drawing attention to the early High Court decision in Moors, and the prosecutor responded by referring to this Court’s decision in Tran.[16] When asked by the judge to state what was in issue, defence counsel made no mention of exclusivity of possession.
[16](2007) 16 VR 673; [2007] VSCA 164.
The only issue — as counsel maintained consistently to the end of the trial — was proof of the applicant’s knowledge of the presence of the MDMA in the Fox Racing bag. And the evidence to which the applicant now draws attention was deployed in support of defence counsel’s submission that knowledge of the presence of the drug had not been proved beyond reasonable doubt.
It has always been the law that the judge’s obligations to direct a jury are defined — and limited — by the issues litigated in the trial. In R v AJS,[17] this Court (Maxwell P, Nettle JA and Redlich AJA) said:
Axiomatically, it is the responsibility of the trial judge in every jury trial—
(a)to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c)to tell the jury, in the light of the law, what those issues are;
(d)to explain to the jury how the law applies to the facts of the case; and
(e)to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.[18]
[17](2005) 12 VR 563; [2005] VSCA 288.
[18]Ibid [55].
The position is now governed by s 65 of the JDA, which provides as follows:
Trial judge’s obligations when summing up
In his or her summing up to the jury, the trial judge —
(a)must explain only so much of the law as is necessary for the jury to determine the issues in the trial; and
(b)must refer the jury to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial but need not summarise the closing addresses of the prosecution and the accused; and
(c)need not give a summary of the evidence but, in accordance with section 66, must identify so much of the evidence as is necessary to assist the jury to determine the issues in the trial; and
(d)may use a combination of oral and written components.
As can be seen, each part of s 65 is defined by reference to ‘the issues in the trial’. The function of s 11, referred to earlier, is to require the prosecution and the defence to identify the matters in issue. And s 12 requires each party to request the giving of directions ‘in respect of the matters in issue’.
A criminal trial is, after all, adversarial litigation and it is the responsibility of the opposing sides to state what is and what is not in issue. As the Full Court said in Re Ratten, the right of an accused to make choices about which issues to contest is ‘fundamental to the conception of fair trial under our system of criminal justice’.[19]
[19][1974] VR 201, 214.
What was said in Dunn applies with equal force to the present case:
In our respectful opinion, the trial judge engaged with counsel in exactly the way contemplated by the JDA 2015, giving them full opportunity to consider their respective positions and to specify what was, and what was not, in issue. As Parliament clearly intended, adherence to those procedures makes it a task of particular difficulty to persuade this Court on appeal that, notwithstanding the position taken by trial counsel, there were nevertheless ‘substantial and compelling reasons’ for the judge to have given a direction which she was not requested to give’.[20]
[20]Dunn [2017] VSCA 371, [6].
Self-evidently, it is not possible for this Court to go behind the forensic decisions made in the preparation, development and presentation of the applicant’s defence case. Nor is it appropriate to speculate about the legal and factual basis upon which senior counsel accepted, as he plainly did, that the issue of exclusive access or exclusive possession simply did not arise in this case. We do know, however, that the applicant himself ‘was at all times heavily involved in the running of his matter, including assisting with the preparation of almost every aspect of the trial …’.[21]
[21]Affidavit of Joshua Taaffe, junior defence counsel at trial, filed on behalf of the applicant.
As Maxwell P explained in James v The Queen,[22] informed decisions made on an accused’s behalf by defence counsel have long been recognised as an exercise of the accused person’s right to a fair trial. The failure to direct on exclusive possession was, quite simply, a reflection of that right having been exercised. There was no miscarriage of justice.

The correctness of Tran[23]

[22](2013) 39 VR 149, 152 [4], 155 [13] (Maxwell P, Whelan JA agreeing at 173 [119]); [2013] VSCA 55.

[23](2007) 16 VR 673; [2007] VSCA 164.

Had the defence wished to raise exclusivity of possession as an issue, the judge would presumably have regarded himself as bound by the 2007 decision in Tran. As the applicant properly conceded during argument in this Court, a direction in accordance with Tran would not have assisted him, as he was unable to do more than point to the possibility that someone other than himself had had access to the unit and to the bag containing the drug. As a result, he was constrained to submit that Tran was wrongly decided and should be overruled, or alternatively that it should be distinguished, such that this Court would conclude that exclusivity of possession needed to be proved and should therefore have been the subject of a direction.
Given our conclusion that this was not a matter in issue, it is not appropriate for us to deal with the challenge to the correctness of Tran, or its application to this case. On accepted principles, we would in any event only depart from a decision of this Court if persuaded that it was ‘plainly wrong’.[24]
[24]See RJE v Secretary, Department of Justice (2008) 21 VR 526; [2008] VSCA 265, [48] (Maxwell P and Weinberg JA); Commissioner of State Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617; [2011] VSCA 272, [20] (Sifris AJA, Buchanan and Tate JJA agreeing at 619 [1] and [2]).

Ground 4: adequacy of directions on intent

Proposed ground 4 contends that the judge erred in that he
failed to adequately direct upon mens rea (intent). This was compounded by placing undue emphasis and an incorrect explanation about the significance of knowledge, causing a substantial miscarriage of justice.
Under this ground, the applicant advances two complaints, the first concerning what the judge said about knowledge, the second about intention to traffick.
As to the first of these, the applicant draws attention to the judge’s inclusion, in his initial directions on knowledge, of the alternative of ‘awareness of a significant or real chance’. As already noted, however, the judge later redirected the jury, making clear — as the defence had requested — that the prosecution had to prove actual knowledge of the presence of the drugs.
As to intention to sell, the judge directed the jury as follows:
The prosecution in relation to this first element must also satisfy you that he intended to sell it. The prosecution must prove that the accused intended to sell the drug. In other words, you must be satisfied that the accused possessed the MDMA for the purpose of selling it rather than for another reason such as personal use and of course the prosecution point to the fact that there is 14,000 tablets there. They would not be for personal use. Together with hundreds of thousands of dollars in cash in a bag right next to where the drugs are and the prosecution invite you to infer from those facts that that was the accused man’s intention in relation to the possession of the MDMA.
It is not necessary for the prosecution to prove that the accused had a particular sale in mind, or who he was going to sell the drugs to. The prosecution must prove that he had a general intention to sell the drugs so it is for you to decide, based on all of the evidence in this case, whether the accused possessed the MDMA in accordance with the directions I have given you and that he intended to sell it. It is only if you are satisfied of both of these matters that the first element will have been proved by the prosecution beyond reasonable doubt.

According to the applicant’s written case, the judge in this passage:
asserted his personal opinion or at least failed to sufficiently distinguish his comments from directions of law, in defence of ‘personal use’, which was neither raised nor open on the evidence. Consequently, by raising and defeating this straw man with evidence of handling the cash, in a practical sense he indicated his opinion as to the proper determination of the ultimate disputed issue of fact and linked that finding to the applicant.
There is nothing in this point. His Honour’s direction on the element of intention to sell was entirely correct, and his statement of the prosecution’s argument was pertinent and accurate. It was of assistance to the jury to have the legal question linked to the facts in the case. Unsurprisingly, defence counsel took no exception.
Under this ground, the applicant also draws attention to the jury’s request for a copy of the relevant provisions of the Drugs, Poisons and Controlled Substances Act 1981. With the concurrence of the defence, the judge refused that request, explaining that there would be ‘no utility at all’ in the jury being provided with a copy of the legislation. His Honour continued:
You decide this case based upon the instructions of law that I gave you. You have the charge … and I’ve explained to [you] what the elements are, and there’s one element which is in issue in this case in any event, and that is the possession for sale, which of course includes knowledge.
According to the applicant’s written case, the judge here ‘removed his earlier direction that there was a second element of intending to traffick a drug of dependence’. Further, he contends:
selective attention on the ingredient of knowledge in the absence of a specific question effectively removed critical issues from the jury, when merely giving undue emphasis to a matter affecting the balance of fairness is impermissible. This was a misdirection because it effectively overlayed correct aspects of earlier directions and created confusion. Otherwise it essentially withdrew elements in issue implying that a finding of knowledge entailed guilt of the charge. This placed an additional and inappropriate burden on the applicant by misrepresenting his direct evidence case of denial and was so fundamental that despite failure of counsel to take exception, the applicant should not be penalised.
Once again, in our view, these complaints are unsustainable. The focus on the question of knowledge was entirely consistent with the way the defence case had been outlined by defence counsel, both in discussions with the judge and in his address to the jury. So far as intention to traffick is concerned, this had not been an issue in the trial. As defence counsel correctly appreciated, if the prosecution could prove that the applicant had knowledge of the presence of the drugs, then — given the quantity of drug in the bag and the large amount of cash nearby — it was inevitable that the jury would be satisfied that he possessed the drug with an intention to traffick.
Nor was there any failure on the judge’s part to give a sufficient account of the evidence given by the applicant. The ‘alternative scenario’ had been clearly explained by defence counsel and the trial judge gave the jury a very full summary of the applicant’s evidence.

Ground 6: relating the directions to the evidence

Proposed ground 6 contends that the judge erred ‘by failing to relate, adequately or at all, the directions on the element of exclusive physical control and mens rea to the evidence in the trial, causing a substantial miscarriage of justice’.
The applicant’s argument in support of this ground was set out in his written case, as follows:
The jury was not directed how the applicant could have physical custody and control of the drugs, by reference to exclusive access or sufficient use of the storage unit. Correspondingly, this bore upon the question of whether he had knowledge and an intention to exercise custody and control of the contents of the Fox Racing Backpack, which was not explained either. His Honour’s initial direction about physical custody and control was misleading about the prosecution’s case and bereft of meaningful detail. And in re-direction he either incorrectly implied that manual possession was open, or otherwise, inexplicably began at the midpoint of the chain of reasoning the jury was required to follow to resolve the issue of possession. Irrespective, exclusive physical control of the bag combined with knowledge could not entail physical custody and control of the drugs, when an explanation of intention to exert dominion and control and of determining and relating evidence to it was non-existent.
His Honour’s error in law on exclusive possession, compounded by an incorrect belief that ‘he’s got physical custody and control of the bag, by way of access to the shed’ prevented any coherent path to resolving the element. It was also advanced that ‘the large amount of drugs in the unit itself, that that is a circumstance that points to the accused having the possession of the drugs … and you would therefore be able to conclude that they’re his drugs effectively, because there’s so many of them’. The mere fact of large quantity could not infer physical control of the MDMA, knowledge or an intention to exert dominance and control over it.
His Honour was obliged to collect and identify the evidence which pertained to the element of intention and refer the jury to how they could draw inferences, in permissible circumstances, of an intention to exert dominion and control and to sell.
There is no substance in any of these complaints. Under s 65(c) of the JDA, the judge was required to ‘identify so much of the evidence as is necessary to assist the jury to determine the issues in the trial’. That obligation was fully discharged. Had there been any inadequacy in the charge of the kind the applicant asserts, defence counsel would have been astute to seek a redirection. To a large extent the argument renews criticism of the judge’s directions about possession. Enough has already been said to show that the directions were adequate and were understood by the jury — taking account of the clarification which resulted in the elimination of the ‘awareness’ alternative.

Ground 7: admission of ‘irrelevant or inadmissible evidence’

Towards the end of the applicant’s cross-examination, he was shown a photograph which he agreed was a photo of himself. The photograph showed the applicant’s face, with his head shaven but his face unshaven.
The applicant makes two complaints about the admission of this photograph into evidence. First, he contends that it was a breach of an agreement previously reached between the defence and the prosecution that the photograph would not be used. Secondly, and in any event, he contends that the photograph was highly prejudicial and, because it had little or no probative value, should never have been admitted into evidence.
We deal first with the danger of unfair prejudice. The applicant contends that the photograph would have appeared to the jury to be a ‘mugshot’, that is, a photograph of the kind taken by police of persons in custody. He contends that ‘the demeanour and unshaven appearance of the applicant [in the photo] is consistent with a person in police custody’. Furthermore, he says, the photo is clearly distinguishable from one used on a driver’s licence or in social media because it is ‘taken against a dark wall’ and because of ‘excessive space above the head area’.
As the applicant correctly points out, there was no issue in the trial as to identity. The defence accepted that the applicant was the person shown in the surveillance footage, entering the storage unit and undertaking activities inside it. Despite this, the applicant contends
the Crown was particular [sic] to draw to attention of the jury to the headshot photo at the very end of cross examination, to remind them of its propensity character. The prosecution’s purpose in bringing the photo back to the jury’s attention was to imprint prejudice as to character and criminal past and to undermine the presumption of innocence and the defence case through discrediting its sole witness.
And further:
Viewed in totality, the reality of the purpose for which the evidence was originally tendered was to encourage propensity reasoning. It advanced a goal of securing a conviction via imputation of suspicion, association and innuendo, contrary to the proposition that ‘evidence may not be adduced merely to show that an accused has a criminal disposition or may have committed, or intended to commit, other and different crimes’.
The respondent disputes each of these contentions. It submits that there was no reliance on the photograph to suggest that the applicant had a tendency to act in a particular way or have a particular state of mind. Rather:
The prosecution relied on the photograph for the limited purpose of demonstrating the similarity between Mehfeld’s photograph in the driver’s licence and the applicant’s appearance at the time the Fry’s Storage agreement was signed. As was acknowledged by the applicant [in his evidence], since the time of the offending, he had ‘grown his hair’ and was ‘a bit more clean shaven’. The resemblance between Mehfeld and the applicant at the relevant time, according to the prosecution case, ‘would help [the applicant] obtain a storage unit in a fake name’ given Fry’s Storage required some form of identification to be provided. … This use was for a legitimate forensic purpose.
Further, the respondent submits, there was nothing intrinsically prejudicial about the photograph such as might have led the jury to engage in impermissible reasoning. The respondent relies on the affidavit filed on the applicant’s behalf by his junior counsel at trial, Mr Joshua Taaffe. Mr Taaffe recalled the applicant having had concern about the photograph on the ground that it looked like a ‘mugshot’. In Mr Taaffe’s view, however, it was ‘not obviously a police photograph’.
Mr Taaffe recalled the applicant raising with him and senior counsel, following his cross-examination, the fact that the photo was in the jury book. Mr Taaffe recalled indicating to the applicant
that I did not think the inclusion of the photo was a big issue or that it would be used by the jury in a prejudicial way. … At this point we may have discussed very briefly the possibility of applying for a discharge [of the jury]. We would have advised against such an application as unlikely to succeed and forensically ill-advised.
As to the prior agreement between defence and prosecution, Mr Taaffe confirmed that when the applicant’s trial was first listed in October 2018, the photo was removed from the jury book at the request of the defence. At the time of the trial in 2019, however, the prosecution provided a new copy of the jury book which, Mr Taaffe noted, included the photograph that had previously been removed. Mr Taaffe says:
The inclusion of the ‘mugshot’ photograph did not concern me and upon seeing it I did not recall Mr McCabe had found it objectionable in the past. Given our instructions that identity was not in issue my attention was not focussed on the photographic evidence.

Consideration

Having viewed the photograph in question, we consider that the applicant’s complaints are unfounded. It may be accepted that it is an unflattering photo of the applicant but there is, in our view, nothing about it which would suggest to a jury that he was at the time in police custody or had committed offences or, less still, had a propensity to commit offences. In the context of this trial, there was no risk that the jury would attach to the photo any more significance than that attributed to it by the prosecution, namely, that it showed the similarity in appearance between the applicant and Mehfeld, whose driver’s licence the applicant used when he was applying to rent the storage unit.
Nor is there anything in the ‘breach of agreement’ point. As the applicant’s junior counsel properly acknowledges, he was aware of the presence of the photo in the revised jury book and was in a position to make whatever forensic judgment was required about whether its inclusion would be unfairly prejudicial. Both the judgment made at that time — not to object to its inclusion — and the judgment made following the applicant’s cross-examination — not to seek a discharge of the jury — are decisions of the kind to which we have referred, made on the applicant’s behalf in exercise of his right to a fair trial.

Ground 1: ‘suggesting unsafe inferences and encouraging speculation’

Proposed ground 1 contends that:
A substantial miscarriage of justice occurred in the closing address by the prosecution suggesting unsafe inferences and encouraging speculation in a manner not in accordance with the evidence.
This ground relates to the following statement in the prosecutor’s final address, referring to what the surveillance footage showed of the applicant’s movements while in the storage unit:
Mr McCabe said in evidence that, oh he went in there and he only touched the Bells Beach bag, but he also touched the Faraday bag to tie up the bag that was inside it, so that the money wouldn’t be exposed. Well look what actually happened. He’s gone straight in there, pulled out the Faraday bag and unzipped it, and then tied that. So the money was never exposed and he’s gone straight to that bag. This isn’t a matter of walking in and going, oh that bag’s open, I’d better do something about it. Clearly he knows what’s in this storage unit. He knows exactly what is there and he walks straight in, went to the Faraday bag, opened it up, tied it up and then you’ll see what he does with it after that …
Then he puts a bag that belongs to him in there, even though this is all supposed to be going back to the mysterious Jack. He also was at pains to say that he only dragged things out from the left-hand side of the desk. Well, it’s not quite as clear as that. That looks like it’s coming out of the centre, to my eye, but you be the judge of whether he’s actually getting things out from various parts under the desk. He would have you accept that he was only getting things from the left-hand side, and that for some reason that’s why he put his chair on that angle. Well I suggest you could make up your own mind about where he’s getting things from, from underneath. …
Now we can’t see because of the, the desktop’s in the way, exactly where the items that Mr McCabe is touching … come from. He’s at pains to say that it’s all down the left side, but as you can see a lot of it seems to be coming and going from around the centre of the desk. Either way, I ask you to think about this. Does it really matter? Whether in that particular video there the accused man got something out of the Fox Racing bag, or weighed something in the Fox Racing bag, in that video there?
The applicant draws attention to the highlighted passages and submits that
reaching to either the left or centre under the desk was physically incompatible with handling MDMA and therefore a fundamental defect in the prosecutor’s submission. The issue of which drug was being prepared should not have been simply thrown up in the air and left for the jury to speculate about, this method showing the prosecutor’s preparedness to wound but not to strike. The existence of exclusive physical control, the requisite knowledge of a particular narcotic substance in a specific quantity and intention to traffick should only have been a matter of inference from what the applicant had actually done …[25]
[25]Emphasis in original, citations omitted.
The applicant contends that the prosecution originally alleged that he had prepared MDMA pills or powder himself but that ‘this possibility was overtaken’ by evidence showing that he only handled methylamphetamine. Since this was — he contends — a ‘fundamental change in the nature of the Crown’s case’, it was incumbent on the prosecution to identify ‘with some precision, before final address, that preparing MDMA on scales had not occurred’.
There is no substance in this point, in our view. As the respondent correctly points out, the prosecution’s case was clearly explained to the jury, and did not change. As already noted, it was alleged that the applicant had engaged in trafficking by having the MDMA in his possession for sale, relying on the common law definition of possession. This was made clear at the start and again at the end of the trial.
The surveillance footage showed the applicant taking digital scales from a drawer in the desk and using them to weigh a substance which, he conceded in evidence, was methylamphetamine. The prosecution relied on his admitted use and knowledge of methylamphetamine, and his use of the scales, as circumstances from which a jury could infer that the unit and its contents belonged to the applicant. As the prosecutor submitted to the jury, even if the evidence established no more than that the applicant had touched the Bells Beach bag, the circumstantial evidence ‘demonstrates very clearly that this is the accused’s storage unit’.
It is convenient at this point to deal with the additional ground, which the applicant sought leave to add following the conclusion of argument on the first day of the appeal hearing.

Ground 5: the presence of substantial sums of cash

Proposed ground 5 contends that ‘The trial judge erred by instructing the jury to use evidence of substantial sums of cash in an impermissible way, causing a substantial miscarriage of justice.’
In final address, the prosecutor referred to the presence in the storage unit of the bag containing ‘hundreds of thousands of dollars, $50 notes all nicely bundled up and put in a bag’. He referred also to the 14,000 MDMA pills found in the storage unit, and to the fact that during the seven week period between the installation of the surveillance device and the arrest of the applicant, he was the only person who ever went into the unit.
The prosecutor then submitted:
It is implausible, it is indeed ridiculous to think that anybody who owned those two things [the cash and the pills] and had had the foresight to lock them up in a storage facility would let anyone anywhere near them, let alone give someone a key and the PIN code and say, ‘go in there whenever you feel like it’. And that’s what the defence say the situation was. … Everything in that unit belonged to Mr McCabe. If you had several hundred thousand dollars and a very large amount of drugs, you would lock them away and you wouldn’t let anyone else near them, and you would make sure no one else had access to them.
In his charge, the judge correctly identified the presence of the cash as one of the elements of the Crown’s circumstantial case. The only other reference to the cash was in connection with the element of intention to sell. As noted earlier, the judge simply recounted the prosecution argument as to the basis of the inference of intent, as follows:
of course the prosecution point to the fact that there is 14,000 tablets there. They would not be for personal use. Together with hundreds of thousands of dollars in cash in a bag right next to where the drugs are and the prosecution invite you to infer from those facts that that was the accused man’s intention in relation to the possession of the MDMA.
The applicant submits that his Honour
either encouraged ‘rank propensity’ reasoning [that] the applicant was the ‘sort of person’ who would intend to sell drugs, or else had a tendency to conduct a drug trafficking business … since possession was in issue, it can’t be ruled out the jury might similarly have reason the applicant was the ‘type of person’ who would possess large amounts of MDMA.
Once again, this point is without substance. First, it is well-established that the presence of cash (in a relevant place at a relevant time) is a circumstance from which an intention to traffick may be inferred, and that the evidence is admissible notwithstanding that it may imply the commission of previous acts of trafficking.[26] The applicant sought to make something of the fact that the cash was not in the unit on the day he was arrested but, as counsel for the respondent pointed out, it was the applicant who had taken it there and had later removed it.
[26]R v Falzon (2018) 264 CLR 361; [2018] HCA 29.

Secondly, as noted earlier, both the quantity of drug and the quantity of cash were such that, if the jury were satisfied beyond reasonable doubt that the applicant knew what was in the bag, it was inevitable that they would be satisfied that he was in possession to traffick. There was no realistic possibility of a doubt being raised that he was in possession for any other purpose.

Ground 2: ‘material misstatements of fundamental evidence’

Proposed ground 2 contends that:
A substantial miscarriage of justice occurred in the closing address of the Crown and summing up of His Honour, by material misstatement of fundamental evidence and leading of inferences not fairly put to the applicant.
Under this ground, the applicant complains about particular statements in the prosecutor’s closing address and in the judge’s charge, which are said to have misrepresented or mischaracterised the evidence put before the jury. These complaints variously concern:
•what happened to Mehfeld’s driver’s licence after the applicant had used it to arrange to lease the storage unit;
•the fact (shown on the surveillance footage and admitted in evidence by the applicant) that the first thing he had done upon entering the storage unit was to unzip the Faraday bag, tie up the bag of cash within it, and place another bag belonging to him in the Faraday bag;
•the admitted fact that the applicant parked his car away from Fry’s Storage, despite the facility having an available car park; and
•whether the applicant touched the Fox Racing bag.
We have reviewed the relevant parts of the transcript. There was not, in our view, any material misstatement, or any invitation to draw an impermissible inference, of the kind which the applicant alleges.
Once again, any judgment required to be made about matters of detail like this was a judgment to be made by the applicant’s trial counsel. Subject to his (apparently detailed) instructions, they were in charge of the conduct of the trial on his behalf and they were perfectly placed to assess whether there was any relevant misstatement and, if there were, whether it was of sufficient importance to justify an objection being made.
None of the matters now relied on was the subject of any objection from the applicant’s counsel. In the circumstances, there is no occasion for this Court to set out the details either of the evidence in question or of what was said about that evidence in the prosecutor’s closing address or in the charge.
Ground 8: aggregate of errors
In the alternative, the applicant relies on ‘the aggregate of errors’ contended for under the other grounds. None of those errors having been made out, this ground necessarily fails.

Conclusion

For these reasons, the proposed appeal has no prospects of success and the extension of time in which to seek leave to appeal must therefore be refused.

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[2022] VSCA 139

15 July 2022