The grounds of appeal
98The grounds of appeal are pleaded as follows:
"1. Her Honour erred by not directing the jury that the possession of the appellant must consider whether the possession was for other than supply [sic].
2. Her Honour failed to sum up the case for the appellant.
3. Her Honour erred in not sufficiently identifying as a possible verdict the accused was not guilty of all charges; the primary charge, the first alternative, and the second alternative.
4. The sentence was manifestly excessive in the circumstances, and another sentence is warranted at law."
Grounds 1 and 2
99The foundation for these grounds is the refusal of the trial judge to direct the jury in accordance with the express request may by counsel for the appellant .
100The application was based upon the decision of this Court in R v Carey (1990) 20 NSWLR 292, followed in R v Liberti (1991) 55 A Crim R 120. It is convenient here to extract the principle stated in those decisions. In Carey Hunt J (as he then was), with whom Wood and Finlay JJ agreed, said:
"The word 'supply' where secondly appearing in s 29 of the Act [ie in sub-para (a)] therefore does not include the transfer of physical control of the drugs from a person who had the drugs deposited with him to their owner or to the person reasonably believed to be such. Although the issue does not directly arise in this appeal it is clear ... that the same construction must also be applied to the word 'supply' in the phrase 'having in possession for supply' in the definition of 'supply' in s 3."
101The facts in Carey were simple. The appellant had, in a bedside table, traffickable quantities of two different drugs. She did not dispute the possession. She told police that the drugs had been left with her by her sister, to mind overnight, and that her sister was to collect them the following day. If her sister did not do so, it was the appellant's intention to flush them down the toilet.
102The Court held that it ought to have been (but was not) left to the jury to determine whether the appellant had proved (within s 29(a)) that she had the drugs in her possession "otherwise than for supply". The decision turned on the meaning of "supply" in that context.
103In O'Brien v Smith (unreported, NSWSC, 9 May 1986), Yeldham J had reached a similar conclusion in relation to similar provisions in the Poisons Act 1966.
104The decision in Carey is about no more and no less than the meaning of the word "supply" as it appears in the exception (in para (a)) to the deeming provision enacted by s 29. Section 29 does three things. First, it creates a presumption, adverse to a person shown to be in possession of more than the traffickable quantity of a prohibited drug (ie that the drugs are in possession for supply to another). Second, s 29, in paras (a) and (b), creates two exceptions to that presumption. The relevant exception is that created by para (a): that the person had the drugs in his or her possession otherwise than for supply. Third, it casts the onus of proving that the exception applies on the accused person. It is commonly said that sub-paras (a) and (b) provide statutory defences, where the evidence otherwise would be sufficient, by reason of the presumption created by the opening words of s 29, and by reason of the extended definition of "supply" in s 3, to establish possession for the purpose of supplying to another. Carey explains that what is meant by "supply" in the statutory defence includes its ordinary meaning (of furnishing or providing something needed or required by its recipient) as well as the extended s 3 meaning.
105All the decision in Carey does is to confirm that, where an accused person adduces evidence capable, if it is accepted, of proving that he or she had the relevant quantity of drugs in possession otherwise than for supply, that question must be left to the jury for determination. Whether the evidence in any trial is capable of raising that issue will be a matter for individual determination in all the circumstances of the individual case. Carey does not create or state any new principle or proposition of law; it clarifies the meaning of "supply" in s 29(a).
106The principle of Carey is that, where the evidence in a trial permits a finding that the physical possession or control of drugs by a person is transitory (that is, where that person is "a temporary minder" of the drug: see R v Frazer [2002] NSWCCA 59; 128 A Crim R 89 at p 91), then the jury must be directed accordingly.
107What was stated in Carey has been applied in a number of subsequent cases. I will defer for the moment further consideration of those cases.
108"Supply" is, as mentioned above, in s 3 given a definition that is considerably wider than its ordinary meaning. But the extended definition is not without any boundaries. In relation to the s 3 definition, in Carey , Hunt J said:
"None of the various limbs of that extended definition would include the mere return of the drugs to their owner or to the person reasonably believed to be the owner. References to 'sending, forwarding, delivering' are all qualified by the words 'for supply'.
The word 'supply', however, retains its ordinary meaning as well as the extended meaning for which that inclusive definition provides. The various dictionary meanings of the word are generally agreed as being to furnish or to provide something which is needed or wanted or required by the person to whom it is given. They do not suggest that the use of the word is appropriate when that something is merely returned to its owner or the person reasonably believed to be its owner." (p 294 F-G)
109The question for this Court is whether the evidence given by the appellant was sufficient to call for the s 29(a) defence (or exception) to have been left to the jury for determination; that is, whether her Honour was in error in declining to take that course. It is necessary to bear in mind that the s 29(a) defence or exception was, to the extent that it was raised at all, raised only in relation to the traffickable, but relatively smaller, quantity of drugs in the purse. The appellant, in denying any knowledge of the drugs under the back seat, made no claim that she possessed them otherwise than for supply.
110The decision in Carey has been invoked, and considered, in a number of appeals to this Court, to which both counsel referred. It is fair, I think, to say that its application depends upon the final analysis of the evidence in the trial. Cases in which it has been held that the defence was available on the evidence, and ought to have been left, include R v EAS, unreported NSWCCA, 26 July 1990; R v Tuckey, unreported, NSWCCA 11 May 1991; R v Liberti (1991) 55 A Crim R 120; R v Fong (unreported NSWCCA, 29 November 1996; R v Frazer [2002] NSWCCA 59; 128 A Crim R 89. It is unnecessary to say more about EAS ; the case was heard in conjunction with Carey , with which it was said to be "on all fours" and judgment was given immediately after the judgment in Carey .
111It has been held not to have been available in R v Small , unreported NSWCCA, 31 May 1991; R v Asim , unreported, NSWCCA, 3 March 1997; R v Blair [2005] NSWCCA 78.
112In Frazer , the appellant, a 38 year old woman, was one of three people in a motor vehicle driven by the appellant's boyfriend. The vehicle was stopped by police who announced that they intended to search the vehicle as they suspected that it was carrying prohibited drugs. The search revealed a number of capsules in the vehicle itself.
113When female police officers told the appellant that they proposed to conduct a search of her, and asked her if she had anything to disclose, she told them that she had "a bubble" but she did not know what it contained. It was concealed in the front of her pants. When asked why it had been there concealed, she did not respond, but produced a container that proved to contain a quantity of methylamphetamine. In an interview, the appellant told police that she had found the container in a public street, but had not opened it, and did not know what was in it. In answer to a direct question, she said that she had not been given the item by anybody else.
114In her trial, the appellant gave very different evidence. She said that she was travelling with her boyfriend at his request, but that, prior to departure, had taken an analgesic because of a headache, as a result of which she became quite drowsy. She said that she partially woke when the car was parked in a service station and that her boyfriend woke and asked her to take and "put away" a "bubble-like container". She said that she had intended to return the capsule to her boyfriend once he had paid for petrol. She fell asleep, and then became aware that her boyfriend was telling her that the police were following them.
115She gave an explanation for the earlier version she had given.
116The issue on appeal in Frazer was not whether the evidence adequately raised an issue concerning s 29(a), but whether the jury had been adequately directed with respect to what it was held had been clearly enough raised in the appellant's evidence. The Court held that it had not been sufficiently explained and ordered a new trial. The reasoning in Frazer casts no light on the present issue.
117Liberti was a somewhat curious case. The appellant had entered a plea of guilty to two counts of supplying a prohibited drug (amphetamine). There was no evidence of actual supply; the prosecution relied upon the deeming effect of s 29. An agreed statement of facts was put before the sentencing court. The statement of facts included information that a search of the appellant's home had produced a quantity of amphetamine concealed in a light fitting, and that, on interview by police, the appellant had said that he was minding the drug for a friend whom he knew to be a supplier. He refused to name the friend, but said that the friend had asked him to take care of the drug because he was afraid that his own house might be searched. The appellant said that he was to return the drug to its owner at a later date.
118In that case the Crown conceded that, notwithstanding the plea of guilty, he could not and should not have been convicted because the agreed statement of facts was insufficient to sustain a conviction in the circumstances. This Court accepted that concession as properly made. Liberti casts no light on the present issue.
119In Tuckey , the appellant was the proprietor of a "clothing studio". Police attended and asked him if he had any drugs in his possession. He disclosed that a sideboard contained a package of cocaine. Of this, he told police:
"A person owed me some money and he asked me to keep it until he could give me the money."
120In evidence on his trial, he gave a slightly expanded account to the same effect, saying that a man called "Nigel" had come to the studio and selected some clothing he wished to buy, worth about $950. He said that he had no money with him but would return with the money, and wanted to take the clothing with him. Eventually, after some argument, "Nigel" gave the appellant a bag of cocaine as "collateral", telling him that it was worth more than the value of the clothing. "Nigel" left and never returned. The appellant said he thought that "Nigel" would return and said that he was not going to do anything with the cocaine.
121This trial took place before the decision in Carey was delivered and the trial judge gave directions not in accordance with Carey , but, in fact, in accordance with a contrary decision of the House of Lords which this Court in Carey declined to follow ( Maginnis [1987] AC 303; and see Carey at 295F - 297A).
122This Court held that a direction in accordance with Carey ought to have been given. For reasons upon which it is not necessary to elaborate, the Court declined to order a new trial and entered a verdict of acquittal. Toohey was an instance of the application of Carey , on the specific evidence addressed in the trial.
123Fong is another curious case. The allegation against him was that a substantial quantity of heroin had been found secreted in premises occupied by him. Police gave evidence that, in a conversation with Fong, he claimed that he had been asked to look after the drug, and had had it for three days, but declined to name the owner. On those facts, it was held, a Carey direction would be called for. The curiosity is that, in the trial, Fong gave evidence denying that conversation, and denying any knowledge of the heroin. The Court held that a s 29(a) defence could be established by evidence in the Crown case, as well as in the defence case, and that the conversation attributed to Fong by police was a sufficient basis for the jury to accept that he was in possession of the drug otherwise than for supply. The jury having been expressly directed in a contrary way, the Court upheld the appeal ordered a new trial.
124On the other hand, there are cases in which it has been held that the facts do not justify a direction based on Carey . In Asim , the appellant, who had been found in possession of heroin, said in evidence that he had intended to return the drug to the person whom he believed was entitled to it. However, he also said that he intended to use the drug as "leverage" to persuade another person to repay a debt which he owed to the appellant. At trial it was held, in effect, that possession for such a purpose amounted to possession for supply, and did not come within the s 29(a) exception. That ruling was upheld on appeal to this Court.
125In Blair, a quantity of drugs was found in a freezer in the appellant's home. Initially, he said he had no idea what it was. When asked if he could say who owned the drug, he said that he could, but declined to do so. He then told police that a friend from South Australia, whom he declined to name, had asked him to drive to Coogee to collect a parcel. (The appellant was a courier by occupation.) He went to Coogee, was approached by a person who identified him, and handed him three bags of white powder. He took this home and put it in the freezer in containers. He did not know what it was, but suspected it may have been heroin. Neither the friend from South Australia nor anybody on his behalf had come to collect the substance.
126This Court held that the facts as alleged by that appellant could not come within the Carey principle. The Court quoted and adopted a passage in Carey to which I have not previously alluded. Hunt J added:
"I should also refer to one very common situation which that construction [of supply] should not be understood as including. That is the situation where one person has obtained a quantity of drugs on behalf of another person or on behalf of a group of persons (which may or may not include himself) and where he transfers physical control of those drugs (or some portion of them) to that other person or to those other persons. That is in no sense analogous to the 'bailment' situation as is that with which the present appeal is concerned, and in my view such a situation would necessarily fall within the ordinary meaning of the word 'supply'."
127In Blair , Grove J, with whom James and Barr JJ agreed, said:
"16 The appellant's assertion of facts, if accepted, would fall within that situation which is expressly distinguished from that of Ms Carey. The appellant received the drugs from the Coogee man on behalf of the South Australian man. He was not a receiver of them from the latter as a mere custodian but was a link in a chain of intended supply commencing with the man at Coogee and passing through the appellant's possession ultimately to the man from South Australia. That does not demonstrate a possession by the appellant 'otherwise than for the purpose of supply'."
128From the above review of cases, it can be seen that whether a Carey direction ought to be given or not depends upon a close analysis of the evidence, whether given by an accused person in the trial, or by way of response to police questioning, or that otherwise emerges during the course of the trial. Fine distinctions may emerge. Based on Blair , for example, a distinction may be drawn between a passive custodian, and a custodian who becomes part of the supply chain. It is therefore necessary to analyse in a little more depth the considerable complications that attended the trial of the appellant.
129The sole allegation against the appellant (and Schirmer) was of supply of a large commercial quantity of methylamphetamine, constituted by their joint possession of the entire quantity of that drug found in the car, both in the appellant's purse, and in the back seat. The charge did not distinguish between the two separate packages. Neither quantity alone was sufficient to constitute a large commercial quantity. A large commercial quantity is one kilogram: the drug found in the back of the car, at 973.5 grams, fell short of that quantity. It was more than sufficient to constitute a commercial quantity, of 250 grams. It was only in combining that quantity with the 27.3 grams in the brown paste, and the 102 grams in the tablets (the drug contained in the purse), that the quantity could be made to exceed one kilogram.
130Thus, in order to prove the appellant guilty of the supply of the large commercial quantity, it would be necessary that the Crown prove that she (knowingly) had possession of both the drug in the purse and the drug under the back seat, and that she knew that, in total, it amounted to one kilogram or more.
131There was no difficulty in proving the appellant's possession of the drug in the purse; she admitted as much in her evidence. Her position on appeal is that her defence to that (which was never as clearly articulated by her as it might have been) was that, in accordance with Carey , she was a mere transitory custodian of the drug, which she held on behalf of Schirmer (and would return to him, or at his direction). Examination of her evidence, however, reveals that she never explicitly, or indeed, by any clear implication, made that claim. At most, she said (in chief) that Schirmer had asked her to put the drugs in her handbag to carry to the car. In cross-examination by counsel for Schirmer, she repeatedly denied that the drugs were hers. In cross-examination by the Crown Prosecutor, she said that she did not know what Schirmer (or his mates) intended doing with them. But she made no mention of her own intention with respect to the future disposal of the drugs.
132This is some way short of claiming transitory possession with the intention of returning the drugs to their owner.
133The appellant was represented at trial by counsel who was, if the transcript is a fair indication, alert to the various issues that arose. She was certainly aware of the Carey issue; she asked for a direction in accordance with that decision, and also mentioned Liberti . She did not ask the appellant the critical question.
134Hock DCJ was correct to decline to direct the jury in accordance with Carey .
135The appellant also denied outright all knowledge of the larger quantity of the drug in the back of the car. That made it impossible for her to raise a Carey defence in relation to that quantity: R v Small (1991) 54 A Crim R 460. The judgment in Small makes it quite clear that where an accused person denies knowledge of the presence of a drug, there is no evidentiary basis to establish possession for a purpose other than for supply.
136It is clear that the jury rejected the appellant's denial of knowledge of the drug under the back seat of the car. Had they not done so, they could not have found her guilty of supply of not less than the commercial quantity. They would have been left only with the much smaller quantity contained in her purse, which was significantly less than the 250 grams required to establish a commercial quantity.
137Given the different position adopted by the appellant in relation to the two quantities of drugs, it was necessary to differentiate between those in the directions to the jury. It is necessary now to analyse with some particularity the jury's verdict.
138The possibilities are:
- the jury accepted that the appellant was in (knowing) possession of the drugs in the purse. (That the jury was so satisfied is, given the evidence, highly likely, virtually inevitable.) In that case (subject to s 29(a) and Carey ), it would find her guilty of the supply of not less than the traffickable quantity;
- the jury accepted that the appellant was in (knowing) possession of the drugs under the back seat of the car (rejecting her evidence that she did not know of their presence), but not of the drugs in her purse. In that case it would find her guilty of supply of not less than the commercial quantity;
- the jury accepted that the appellant was in knowing possession of both quantities of drugs. In that case (again, subject to s 29(a) and Carey in relation to the drugs in the purse) it would find her guilty of supply of the large commercial quantity.
139The only way in which the jury could arrive at a verdict of not guilty of supplying the large commercial quantity, but guilty of the supply of the commercial quantity, was by applying, even in the absence of instruction, the Carey principle - that is, accepting that the appellant held the drugs in the purse on behalf of Schirmer.
140There is no other basis on which the appellant could have been found guilty of the offence of which she was convicted. In this respect, the conviction of Schirmer on the charge on the indictment is of some relevance. That verdict is consistent with the jury accepting that the drugs in the purse were his, held by the appellant on his behalf, and that the larger quantity in the car was in the joint possession of the two accused.
141In her sentencing remarks, the trial judge said:
"In Ms Alliston's case there are two bases on which the jury could have reached its verdict, the first is that she was not in possession of the drugs in the handbag. However, in the light of the jury's notice, MFI 39, in my view it is more probable that they were not satisfied beyond reasonable doubt that she knew, or was aware, that there was a significant or real chance that the amount was more than the large commercial quantity. I propose to sentence her on that basis."
142I am unable to accept this construction of the verdict. The note did not differentiate between the two accused. There was no basis in the evidence for concluding that the appellant might not have known of the presence of sufficient of the drug to constitute the large commercial quantity, but did know of the presence of sufficient to constitute a commercial quantity.
143It is also of some relevance to note that, during the course of argument at a very late stage, after the final addresses of counsel, the judge commented on how "extraordinarily attentive" the jury had been (AB 961). I would reject grounds 1 and 2 of the appeal.
Ground 3
144The complaint in relation to this ground is based upon the document provided to the jury, entitled "Possible Verdicts"; specifically, that only three possible verdicts were identified. Omitted from the jury's consideration was a verdict of not guilty of any offence.
145The first possible verdict specified on the document was of "Guilty or Not Guilty of the charge on the indictment" - that is, of supply of the large commercial quantity of the drug. The subsequent possible verdicts were, in descending order of seriousness, of Not Guilty of that charge, but Guilty of the lesser offence of supplying a commercial quantity; or of Not Guilty of the offence on the indictment, but Guilty of supply (quantity unspecified, and therefore less than the traffickable quantity).
146As I have indicated in my consideration of grounds 1 and 2, the second alternative could only have been reached by finding the appellant guilty of knowing possession of the drugs under the back seat, but excluding those in the purse.
147But the current question is whether a fourth alternative - not guilty of any offence - ought to have been included in the document. Perhaps it would have been better if it had, although that did not suggest itself to either counsel at the trial. It is also necessary to have regard to the oral directions. These were as follows:
"Firstly, the accused is guilty or not guilty of the charge on the indictment, as I have just said. For the accused to be guilty of the charge on the indictment the Crown must satisfy you beyond reasonable doubt of all seven elements, including large commercial quantity, element 6, and large commercial quantity, element 7.
To find the accused not guilty of the charge on the indictment effectively means that you are not satisfied beyond reasonable doubt that he or she had possession of any of the drugs in the car. In other words the Crown would fail at that very fourth element. Then if the Crown fails on the fourth element that is the end of your deliberations in respect of that accused. ..."
148Thereafter, her Honour reiterated the content of the written directions and then said:
"Both accused, as you know, deny all knowledge of the drugs in the back of the car. If you are not satisfied beyond reasonable doubt that either accused, when you are considering each case, knew anything about the drugs in the back of the car, your verdict would be not guilty of the charge on the indictment, but guilty of supplying a prohibited drug. If you are satisfied that the accused knew something about the drugs in the bag, or was in possession of the drugs in the bag, there are a number of different possibilities, of course, depending upon your findings in respect of the evidence about the two discrete quantities of drugs and that is why it is a little bit complicated for you.
Your findings may involve, as I am sure you are aware, that both accused knew about all the drugs. That one accused knew about the drugs in the back of the car and the other did not. That one accused knew about the drugs in the purse and other did not. There are a number of combinations. For that matter, that neither of the accused knew anything about the drugs in the car. They are all matters that you have to decide as your role as judges of the facts."
149In my opinion, the jury could not have been under any misapprehension that an outright acquittal was one of the alternative verdicts available. Had the possibility of such misapprehension been a realistic one, it would have been apparent to one or both counsel. The directions, taken in conjunction with the oral directions, were adequate.
150I would reject this ground of appeal.
151With respect to the application for leave to appeal against sentence, I agree with McClellan CJ at CL.
152FULLLERTON J: I have had the advantage of reading the judgments of McClellan CJ at CL and Simpson J.
153In so far as grounds 1 and 2 of the appeal against conviction concern the trial judge's refusal to direct the jury in accordance with the decision in Carey, I agree with McClellan CJ at CL at [34] that there was a sufficient foundation in the appellant's evidence as to the circumstances in which she came to be in possession of the drugs in her purse for the jury to consider whether her possession of those drugs was as a mere custodian and, if so, to conclude that her possession was otherwise than for the purposes of supply. While I accept Simpson J's analysis of the collected authorities and her Honour's observation at [75] that, depending upon the facts in a particular case, fine distinctions may emerge between a passive custodian and a custodian who intends to become or does become part of a supply chain, I am also of the view that, in this case, whether the appellant was a mere custodian was a jury question obliging the trial judge to give the direction sought by her counsel.
154The question that then arises is whether the consequence of upholding those grounds of appeal necessitates ordering a new trial. In my view it does not, there being no miscarriage of justice. The appellant faced one charge on the indictment, namely supply of not less than a large commercial quantity of the prohibited drug methylamphetamine which is specified under the Drug Misuse and Trafficking Act at 1 kg. In the way the Crown conducted its case at trial, a conviction on that charge necessitated the jury being satisfied that the appellant was in possession (for supply) of the drugs in the purse (totaling 129.3 grams) and the drugs in the back seat (totaling 973.5 grams), since it was only by the combined weight of those discrete packages that the total weight of the drugs exceeded 1 kg. The appellant was acquitted on that charge and convicted of the statutory alternative of supply of a commercial quantity of that drug, specified under the Act as 250 grams. Whether the verdict was because the jury were in doubt as to whether she knew or was aware that the combined weight of all the drugs exceeded 1 kg (the view of the trial judge and adopted by McClellan CJ at CL at [37]) or whether it was as a result of the jury accepting that the drugs in her purse were not for supply despite the absence of instruction on the basis of Carey (the preferred analysis of Simpson J), the jury must have rejected the appellant's claim that she had no knowledge of the drugs under the back seat. The trial judge's failure to direct on the Carey principle cannot affect that finding. In those circumstances there is no utility to ordering a new trial.
155I agree with his Honour that leave should be refused to raise ground 3 and that ground 4 is not made out. I agree that leave to appeal is granted but that the appeal should be dismissed. I also agree with his Honour that the appeal against sentence should be dismissed.