• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Category: Principal judgment

Parties: Danny Oktay Aslan (Applicant)
The Crown (Respondent)

Representation: Counsel:
Ms S Kluss (Applicant)
Ms F Sullivan (Respondent)
Solicitors:
Ross Hill and Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00308249

Publication restriction: Nil.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On the evening of 15 October 2022, the applicant, Danny Aslan, was observed by police retrieving a Louis Vuitton bag from a bush and then attempting to dispose of it. It contained five bottles of 1,4-Butanediol and another bottle was located nearby. The applicant told the police that the bag belonged to his “missus”.

On 18 March 2025, following a trial in the District Court, the applicant was found guilty by a jury of one count of supplying a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misus**e and Trafficking Act 1987 (NSW). The applicant’s case at trial was that because the bag was not his, he had no knowledge of the prohibited drugs and thus did not possess them.

On appeal against his conviction, the applicant’s contention was that the trial judge was required to direct the jury that “supply” does not include temporary possession of a prohibited drug with the intention of returning it to the owner of the drug, or the defence established in R v Carey (1990) 20 NSWLR 292 (“Carey”).

The Court (N Adams CJ at CL, Cavanagh and Muston JJ both agreeing with additional reasons) held, refusing leave to appeal and dismissing the appeal:

(1) There is some doubt as to whether a failure to give a direction that was not asked for can be “a wrong decision on a question of law” in order to amount to second limb error under s 6(1) of the Criminal Appeal Act 1912 (NSW). In any case, when assessing whether there was a miscarriage of justice (or third limb error), the failure to give a Carey direction must have been material in the sense that it could have realistically affected the reasoning of the jury: at [75]-[77] (N Adams CJ at CL, Cavanagh J at [90] and Muston J at [95] agreeing).

MDP v The King [2025] HCA 24; (2025) 99 ALJR 969; Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872, applied.

(2) The decisions in which a Carey defence has been found to be available involve the accused giving an account that they knew what they possessed were drugs but that they intended to return the drugs to their owner: at [53], [82]-[83] (N Adams CJ at CL, Cavanagh J at [90] and Muston J at [95] agreeing).

R v EAS (Court of Criminal Appeal (NSW), 26 July 1990, unrep); R v Tuckey (1991) 57 A Crim R 468; R v Liberti (1991) 55 A Crim R 120; R v Fong (Court of Criminal Appeal (NSW), 29 November 1996, unrep); R v Frazer [2002] NSWCCA 59; (2002) 128 A Crim R 89; R v Nicodin [2002] NSWCCA 447; Regina v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462; Alliston v R [2011] NSWCCA 281; (2011) 217 A Crim R 323; R v Small (1991) 54 A Crim R 460, considered.

Huynh v R [2020] NSWCCA 202, distinguished.

(3) The applicant’s case at trial was that he did not have any knowledge of the drugs in the bag. Upon this evidence, the Carey defence did not arise as a real issue at trial and the trial judge was not required to direct on it: at [80]-[81] (N Adams CJ at CL, Cavanagh J at [90] and Muston J at [95] agreeing).

Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20; Phillips v R [2016] NSWCCA 159, applied.

(4) As to materiality, the Carey direction would not have assisted the applicant any further given that the full Liberato direction was given. There was also a sound forensic basis not to raise the Carey defence because it may have undermined the applicant’s primary case that he did not know about the drugs: at [84]-[85] (N Adams CJ at CL, Cavanagh J at [90] and Muston J at [95] agreeing).

(5) The failure by trial counsel to seek the direction is a strong indication that there was no miscarriage of justice because counsel saw no need for the direction in the atmosphere of the trial. Instead, the trial judge’s directions were consistent with the way in which the trial was run: at [86]-[88] (N Adams CJ at CL, Cavanagh J at [90] and Muston J at [95] agreeing).

BQ v The King (2024) 279 CLR 124; [2024] HCA 29; Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288; Greenhalgh v R [2017] NSWCCA 94, applied.

JUDGMENT

1. N ADAMS CJ at CL: On the evening of 15 October 2022, police observed the applicant, Danny Aslan, outside an apartment building at 21 Conder Street, Burwood. He crossed the street and retrieved a Louis Vuitton bag. That bag was found to contain five bottles of 1,4-Butanediol. Another bottle of 1,4-Butanediol was located nearby. The bottles contained 2,970.5 grams of liquid in total.

2. The applicant pleaded not guilty to one count of supplying not less than a commercial quantity of a prohibited drug (between 2,400 to 2,970.5 grams of 1,4-Butanediol) contrary to s 25(2) Drug Misuse and Trafficking Act 1987 (NSW) (“DMTA”). The maximum penalty for that offence is 20 years’ imprisonment and the standard non-parole period is 10 years.

3. The applicant stood trial in the District Court before a jury and Judge Turnbull SC between 12 March and 18 March 2025. The Crown case was that the applicant possessed each of the six bottles of 1,4-Butanediol for the purposes of supply. The applicant’s case was that the Louis Vuitton bag was not his but belonged to his girlfriend and that he had no knowledge of the prohibited drugs.

4. On 18 March 2025, the jury returned a verdict of guilty. After enquiries by the trial judge, the jury spokesperson indicated that their unanimous verdict was in respect of the “five bottles found in the bag” and not the sixth bottle found nearby.

5. On 3 September 2025, the applicant was sentenced to a term of 4 years’ imprisonment with a non-parole period of 2 years and 6 months, commencing on 12 September 2024. He will be eligible for parole on 11 March 2027.

6. By notice of appeal filed on 16 January 2026, the applicant appeals against his conviction on a single ground of appeal, namely, that the trial judge “failed to properly direct the jury in relation to possession and supply”. The issue is a narrow one; the applicant contends that the trial judge was required to direct the jury that “supply” does not include temporary possession of a prohibited drug with the intention of returning it to the owner of the drug: R v Carey (1990) 20 NSWLR 292 (“Carey”).

7. Leave is required because this ground of appeal does not involve a question of law alone: s 5(1) of the Criminal Appeal Act 1912 (NSW). Leave is also required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) because no objection was taken to the directions regarding “possession” and “supply” at trial.

The evidence at trial

8. CCTV footage within 21 Conder Street, Burwood was played at trial and depicted the movements of the applicant on the evening of 15 October 2022. At 10:09pm, the applicant was seen exiting the lift on level 2 of the building, accompanied by another male, Nicholas Baker. The applicant walked towards unit 15 holding a phone in one hand. He was also holding a bottle similar in appearance to the bottles the subject of the charge. He appeared to enter the premises of Mr Yu Zhang who resided in unit 15. The applicant (accompanied by Mr Baker) returned to the lift area a short time later. The applicant again held a bottle identical in height and shape to each of the bottles the subject of the charge.

9. At 10:12pm, Mr Zhang exited his apartment and interacted with the applicant and Mr Baker in the lift area. On the Crown case, something was passed from Mr Zhang to the applicant and the applicant passed something to Mr Zhang, which Mr Zhang put in his pocket. The Crown case was also that the applicant appeared to be handing around and offering mobile phones to the men he was talking to. At 10:19pm, all three men proceeded into the lift.

10. Senior Constable Kim and Senior Constable Fuller gave evidence at trial. At about 10:50pm on 15 October 2022, they were patrolling Burwood in uniform in an unmarked police vehicle. They observed the applicant and Mr Zhang standing near the entry to 21 Conder Street. They appeared to be talking to each other, and some items were on the brick fence in front of them, including what appeared to be a brand-new iPhone in its white box. The police officers parked a short distance away and continued to observe the two men.

11. The applicant appeared to be looking around in an anxious manner. He suddenly ran across Conder Street, rummaged around bushes outside 10 Conder Street and picked up a large Louis Vuitton bag. He appeared to have some difficulty holding the bag due to its weight and ran back across the street in the direction of Mr Zhang whilst carrying the bag from underneath. The applicant looked at Constable Kim and ran past Mr Zhang towards the entrance of the unit block at 21 Conder Street.

12. Constable Kim approached the applicant and said, “Stop right there. What are you doing with that bag?” The applicant attempted to dispose of the bag discreetly over a brick wall and began walking away. Constable Kim again asked the applicant to stop walking. He responded, “What the fuck do you want?” and continued to walk away. Constable Kim grabbed hold of the applicant’s right arm, told him to stop again and the applicant complied.

13. Constable Kim told the applicant that he had observed him with the bag and asked him what was in it. He recalled their conversation as follows:

Aslan said, [“]that’s my missus’ bag. She left it there, and I was picking it up for her.” I said, “Why would she leave her bag across the road?” Aslan said, “I don’t know. She called me and asked me to get it for her.” I said, “Where is she?” Aslan said, “Around here, I guess.”

14. Constable Kim observed the applicant typing furiously on one of the two phones that he observed in the applicant’s possession. The applicant refused to put the phone down and stop typing when requested. After a short struggle, Constable Kim removed the phone from the applicant and directed that he sit on the ground. Constable Kim looked at the applicant’s phone and observed that he had been attempting to send a message to a person recorded as “M”. The mobile phone number belonged to his mother. The unfinished content of the message read, “Cops got me look”.

15. At around this time, Constable Fuller arrested Mr Zhang. Shortly before this, Mr Zhang had attempted to dispose of two resealable plastic bags containing methylamphetamine from his pants pocket by throwing them over a brick wall. Mr Zhang was also in possession of a brand-new iPhone. Mr Zhang indicated that this iPhone belonged to the applicant, but denied that the applicant was going to give it to him.

16. The applicant was searched by Constable Kim. He located $1,675 in loose notes inside his pants pocket. A mobile phone (which was additional to the two mobile phones the applicant was previously holding) and measuring scales were located within the applicant’s “man bag”.

17. Constable Kim then activated his body-worn video camera. The following exchange was recorded between the applicant and Constable Kim:

[Constable Kim] Whose bag is this?

[The applicant] …..

[Constable Kim] What’s her name?

[The applicant] Ah Jasmine.

[Constable Kim] Jasmine? Why was it over there?

[The applicant] Because she was over there.

[Constable Kim] Just then?

[The applicant] Didn’t you see the blonde girl that was there?

[Constable Kim] No.

[The applicant] Oh bro now you’re, now you’re pulling my leg ..... of the camera’s there. ‘Cause I’m sure that the camera footage has it all.

[Constable Kim] You pulled this out of a bush.

[The applicant] What?

[Constable Kim] That’s what I saw you doing.

[The applicant] Out of a bush?

[Constable Kim] Yeah out of that bush over there.

[The applicant] Bro she was sitting over there near the bush bro.

(INAUDIBLE BACKGROUND CONVERSATION)

[The applicant] And she goes, I’ll put my bag here. I said don’t leave your bag there. Anybody could flipping take it.

(INAUDIBLE BACKGROUND CONVERSATION)

[Constable Kim] So where is she now?

[The applicant] She just walked around there. She just said she was going past a shop quickly. Go look. Look on the cameras brother you’ll see it on camera.

[Constable Kim] So you reckon she’ll come back?

(INAUDIBLE BACKGROUND CONVERSATION)

[The applicant] I don’t know ..... like this I, I hope so .....

[Constable Kim] Well this is her bag so hopefully she does man.

18. The applicant advised Constable Kim that he had won the cash found on him at the Marlborough Hotel the previous Tuesday. He said he had won $8,000 and the amount located by police was the amount that he had left. This account was confirmed by the Marlborough Hotel and was not contested at trial.

19. Within the Louis Vuitton bag police located five blue bottles filled with a liquid later identified as 1,4-Butanediol. There was also a “Dermalogica” bottle, false eyelashes, a purple phone with a lockscreen showing the face of a woman with “peroxide-blond hair”, a black phone and a cosmetic bag.

20. A bottle with the same appearance as the five bottles of 1,4-Butanediol in the Louis Vuitton bag was located near a fire entrance left of the main entrance to the unit block. This was the sixth bottle the subject of the charge. On the Crown case, this was the bottle the applicant was holding on the CCTV footage. Neither the applicant’s DNA nor his fingerprints were identified on any of the bottles.

21. Police inspected the CCTV cameras the applicant was referring to in the body-worn video and discovered that they were “dummy cameras” and not functional.

22. Police also attended Mr Zhang’s premises at unit 15, 21 Conder Street. Items related to the manufacture of prohibited drugs were located. Two bottles with the same packaging as the others were located within the fridge.

The issue of possession at trial

23. The Crown case was that the applicant knew that there was a prohibited drug in the Louis Vuitton bag and that he was also responsible for the sixth bottle, as inferred from the surrounding circumstances. It was contended that he was either in possession of the bottles alone or jointly with the “mystery blonde, Jasmine”. The Crown relied on the reaction of the applicant when he first saw police including attempting to dispose of the bag over a brick wall and walking away from the police officer when he was requested to stop.

24. The applicant’s case at trial was that he had no knowledge of the drugs in the Louis Vuitton bag and that he was meeting Mr Zhang that evening to buy drugs, not to supply them. The applicant did not give evidence but instead relied on his version given to police in the body-worn video that it was not his bag. Defence counsel also cross-examined the officer-in-charge, Detective Senior Constable McCormack, about alleged deficiencies in the investigation in respect to identifying the woman named Jasmine.

25. At the very outset of his opening address, trial counsel for the applicant put the defence case as follows:

Danny Aslan did not know what was in that lady’s bag. It was her bag. It was her drugs. They were not his to supply. He went across the road and got the bag because he thought that she was his missus, and she’d left it unattended. That’s the defence case - her bag, her drugs, he didn’t know, he’s not guilty. (Emphasis added.)

26. Defence counsel then concluded the short opening address in a similar way:

Let me tell you what is in issue in this case, what you do have to decide. Knowledge. He didn’t know what was in that lady’s bag. Knowledge is, as you’ve heard, a stand-alone element of the offence. It needs to be proved beyond reasonable doubt.

That’s the highest standard of proof in our system of justice. Despite all of that evidence, you will be left with a reasonable doubt. Why? Because he didn’t know what was in her bag. It was her bag. They were her drugs. She didn’t tell him. He only went across the road to get it because she thought that she was his missus. He’s not guilty.

27. In closing, defence counsel advanced three primary arguments as to why there was a reasonable doubt that the applicant knew about the drugs:

28. The applicant was there to buy drugs, and Mr Zhang was his supplier;

29. There were no fingerprints or DNA on the bottles; and

30. The applicant was honest with police, and his version was supported by the evidence relating to his win on the pokies. His account that the bag belonged to his “missus” was supported by the contents of the bag and the photograph on the screen of the mobile phone.

The directions

Discussions between the trial judge and the parties

28. On 12 March 2025, after opening addresses, the trial judge asked the parties to provide a list of proposed directions that they believed necessary “to reflect the interests of this case”. His Honour later noted that an agreed elements document tailored to the case would be of assistance.

29. On 13 March 2025, before the evidence commenced for the day, the Crown Prosecutor indicated that the parties had circulated an elements document which was provided to the trial judge (MFI I). This document included a heading “Possession other than for supply” which was identified as an “exception” to the third element of deemed supply. This exception was explained in part as follows:

So, what the accused needs to prove is that he had the drug in his possession for some purpose other than to give it, or provide it, to somebody else. The accused’s case is what he said on the body worn video.

30. On 17 March 2025 (the following sitting day), the trial judge indicated that he had “reworked” their elements document and provided a draft document to the parties (MFI J). The above portion of the parties’ agreed elements document that identified the “possession other than for supply” defence was not maintained by the trial judge. No comment was made by either party as to its exclusion.

31. The following exchange then took place concerning the addition of a scenario involving joint possession:

CROWN PROSECUTOR: … I would like to include on this document about a possible joint position [sic possession].

HIS HONOUR: Yeah. That did occur to me actually, as I was thinking about this over the weekend. And clearly it’s open to the jury to find that it was either in the possession of the accused solely, or it was jointly in the possession of the accused and the person with the white hair, or it was in possession of the person with the white hair solely.

CROWN PROSECUTOR: Yes.

HIS HONOUR: So they’re the three options, aren’t they?

CROWN PROSECUTOR: They are, your Honour.

(Emphasis added.)

32. The Crown Prosecutor also raised the issue that under the heading “For the purposes of supply”, the final line stated that this element was “not in issue”, which could confuse the jury. The trial judge agreed to add a heading for “commercial quantity” which was in fact the element that was not in dispute.

33. No issues were raised by defence counsel.

The elements document

34. The final elements document (MFI N) was handed out to the jury during the trial judge’s summing up. The above changes requested by the Crown Prosecutor were reflected in this final document.

35. Supply and possession were defined as follows:

“Supply” – Supply has an extended definition in law. For the purposes of this case supply includes sell and distribute, and includes agreeing to supply, or keeping or having in possession for supply. In this case possession is in issue.

“Possession” – The Crown must prove that the accused intentionally had the substance in his physical custody or control to the exclusion of any other person. Either alone or together with some other person acting jointly with him in possessing the substance.

(Emphasis in original.)

36. As to deemed supply, the document read:

The law says that if an accused person has in his possession a specified quantity or more of a prohibited drug, then he is regarded as having possession of that drug for the purpose of supply; that is, to give it or provide it to some other person.

37. As was the case for the earlier draft elements document, no defences to deemed supply were identified.

The summing up

38. The trial judge’s summing up commenced after the defence closing address on 17 March 2025.

39. As requested by defence counsel, his Honour gave a Liberato direction (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66) which addressed the applicant’s version as follows:

Now, of course, the bag is an important aspect, but you focus, do you not, on the drugs inside the bag. That is the aspect which is the focus of the forensic tussle between the two parties in this case. However, that is an account of events that the accused relies upon, and I give you this direction, that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt. He is entitled to the benefit of any reasonable doubt.

So it follows that if you accept or believe the accused’s account, then he must be found not guilty. If you have difficulty in accepting the accused’s account but decide that it may be true, again, you must acquit. If after that, if you reject the account, you then turn to the balance of the Crown case and review that case to see whether it alone, absent the account, satisfies you beyond a reasonable doubt. But it is a little more complex than that, is it not, because in this case the Crown says, look, the account is really one that you would not accept, but it is because it shows that he knew what was in the bag, that he knew that there was drugs in the bag that he was carrying in the way that Mr Kim has described, and so it goes to that particular aspect. (Emphasis added.)

40. When summarising the elements of the offence, the trial judge identified that the element in issue was whether the applicant possessed the substance for the purpose of supply:

Now, the accused possessed that substance, that is the issue – the accused possessed that substance for the purpose of supply. … So you have the drugs are prohibited, tick. It is not less than the commercial quantity, tick. Did supply. That is the issue. Did supply. All right.

41. The trial judge gave detailed directions on the definitions of supply and possession, including the following:

It has got an extended definition in law. For the purposes of this case, supply includes sell and distribute and includes agreeing to supply or keeping or having in possession for supply. In this case possession is in issue. That is the matter that you have to be satisfied of beyond a reasonable doubt. Not be suspicious of. You have got to be satisfied beyond a reasonable doubt that he possessed it. All right.

What does possession mean? That the accused intentionally had the substance in his physical custody or control to the exclusion of any other person. Right. Knowledge, custody or control. He knew what it was and it was there and he either had custody of it or he had control of it. Custody usually would be in your pocket, is a simple example. Control might usually be, as the Crown suggested in this case: I know where it is, I know where to go and get it if I want to get it, if you follow. Knowledge, i.e. knowing that it was a prohibited drug.

Custody or control. Possession. The Crown must prove the accused intentionally had the substance in his physical custody or control to the exclusion of any other person, either alone or together with some other person acting jointly with him in possessing the substance. Remember how the Crown closed? They said, well, look, maybe there was a blonde woman. Maybe that blonde woman was there with him at the first instance but the Crown then says, well, it seems troubling, at the very least, that she goes shopping at that time and moves away. Do not lose focus. The focus is on the drugs, not so much on the bag, but it is important because the drugs were in the bag, that you bear that in mind. But it could have been in the custody or control jointly with another. They both, if you would accept that as a proposition, were aware of it but one is not there and he has left, as you remember Constable Kim describing, carrying it.

He of course says, well, and does so immediately, “That’s my girlfriend’s bag, here’s her name, this is a description, and I was just getting it for her because of the phone call” or “I was moving it in order to ensure that it was safe.” And then of course you bear in mind what was in the bag in addition to the drugs. There was obviously the detritus of some other person that might be a female.

All right. In this case the Crown must prove that the accused intentionally had the substance in some place to which he had access and might go to to obtain physical custody or control of it to the exclusion of any other person. That means, just like anything, that your bicycle, you might ride your bicycle with your partner, your kids or whatever, and so there might be thought to be joint custody when you are on it, or control, but if someone, a complete stranger runs up and says, “I’m going to jump on the bicycle,” you have got the right to say, “No, it’s for me and the kids, you can’t use it.” Do you follow? Joint custody or control. So that is where this element does arise. But in this case the Crown must also prove that intentionally having such custody or control as such that the accused knew or believed at the time that the substance was a prohibited drug. So it is one thing to have custody and control over a bag - that is why I say you have got to concentrate here on the drugs - the issue is what is in the bag and the accused must have known or believed at the time that there was a prohibited drug in that bag or, in this instance, a number of vials, if I can call it that, or bottles of the prohibited drug.

42. The trial judge then went on to explain further about these elements:

For the purposes of supply, the Crown must prove that the accused has the substance in his possession, we have just dealt with all of that, either solely or jointly for the purpose of supply. The charge is that the accused supplied a prohibited drug and then we go back here. Did supply, did supply. See how it works? Knowledge, possession, possession - if you conclude that he was in possession - then triggers this aspect. So the ordinary meaning of the word “supply” is to give or provide something to somebody. In this case there is no evidence of the accused having given or provided anything to anybody. Do you see that there? The Crown does not have to make that allegation against the accused and does not make it here and it does not have to do so in order to prove the charge.

So, for example, if you get a load of milk, you have to possess it to supply it, to sell it, don’t you? You have got to have it knowingly, for the purposes here, in your custody or control before you can take it up to the IGA and say, “Right, buy this off me. I want to supply this to the market.” So there is no evidence of the accused having given or provided anything to anybody. That is the point we are at. The Crown does not have to make that allegation against the accused and does not have to do so in order to prove the charge.

For the purposes of determining the offence before you, the word “supply” includes having a substance in a person’s possession for the purposes of supply. Here there is a particular rule of law that comes into operation, and I direct you accordingly, and it must be applied by you. The law says that if an accused person has in his possession a specified quantity or more of a prohibited drug, then he is regarded as having possession of the drug for the purpose of supply. That is, to give it or provide it to some other person. That is the trafficable quantity. If you have got more than the trafficable quantity, then the law deems you to be in possession of that drug for the purposes of supply. Do you follow that? That does not mean he is guilty of supply but it does mean that if you find that he is in possession by finding beyond a reasonable doubt knowledge, custody or control, then the question then is what to make of that. And in relation to the particular drug here, the law specifies such a quantity. That quantity is a trafficable quantity. In this case, the Crown alleges that the accused possessed between 2,400 and 2,970 5 grams, which is greater than that amount, I can tell you that as a matter of law. It is in excess of the trafficable quantity, comfortably so. And as a matter of law, both quantities are in excess of the trafficable quantity and are commercial quantities. That fact is not in issue either. All right? So they are the easy bits at the end.

Now, the fact that I have concentrated on this is because this is the indictment, this is the charge, and it is the Crown case that obviously animates the considerations here. But by the same token, you want to bear in mind that the question of possession is hotly contested in this matter, and that the knowledge aspect of it is hotly contested in this matter.

43. The trial judge then summarised the Crown and defence cases. In relation to the applicant’s case, he observed:

In any event, the police arrive and the accused is arrested. There is no drugs on him. There is no bottle on him. And he gives an immediate version to the police, including nominating confirmation of his account by way of a CCTV camera, which turns out upon further investigation not to be working. It is suggested that the scales were there because he was buying. There is no DNA or fingerprints and no suggestion he was wearing gloves. He volunteered his DNA. And then, of course, there is the quality of the investigation, which I think Mr McCormack has described as evasive. If you remember the cross-examination about the IMEI number, and you could identify it from the phones and so forth, and that was not pursued. It is suggested that he was honest with police and it was not his bag. It was not his bag. and that you would accept that there is a reasonable doubt that if it was not his bag, he would not know what was in it. And then there is an establishment of the truth of his explanation . The cash was won on the pokies. He had won six and a half thousand, it seems, and that has been confirmed. The picture on the phone is a blonde lady. It is a lady’s cosmetic bag, so that supports him. There is no text or communication about the drugs we are seeing, and he wanted the CCTV but it turned out to be broken. He was there to buy. There was no DNA or fingerprints. He was honest with police. You would have a reasonable doubt.

The Carey defence

44. This appeal concerns whether the trial judge was required to direct the jury on the Carey defence even though the applicant’s case at trial was that he did not know about the drugs and thus did not possess them.

45. The applicant was convicted of supplying a prohibited drug contrary to s 25(2) of the DMTA which provides:

(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

46. The definition of the word “supply” includes sell and distribute, and also includes, inter alia, agreeing to supply, offering to supply, or keeping or having in possession for supply: s 3 DMTA.

47. The Crown case at trial relied on the extended definition of “supply”; namely, that the applicant was in possession of the 1,4-Butanediol for the purpose of supply. The DMTA facilitates proof of such an offence by means of the “deeming” provision in s 29:

29 Traffickable quantity—possession taken to be for supply

A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless—

(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply …

48. A commercial quantity of 1,4-Butanediol is 1,000 grams and the traffickable quantity is 30 grams: DMTA, Sch 1. It was an agreed fact at trial that the combined amount in the bottles was not less than the commercial quantity, being 2,400 grams for five bottles and 2,970.5 grams for six.

49. An accused bears the onus of proving that the drug was in their possession otherwise than for supply under s 29(a) on the balance of probabilities: Carey at 294; Li v R [2019] NSWCCA 228 at [53].

50. One way in which the accused may disprove deemed supply in s 29 is by demonstrating that they were in possession of the drugs merely for the purpose of returning them to their owner or the person reasonably believed to be the owner. This is known as the Carey defence. It is derived from the decision in Carey.

51. In Carey, prohibited drugs were located in the accused’s bedside table. The accused’s case at trial was that her sister had asked her to mind the drugs overnight and that she would collect them the next day. Relevantly, her sister had informed the accused what the drugs were. The accused said that she did not intend to use the drugs herself and intended to flush them down the toilet if her sister did not collect them as promised.

52. The Court (Hunt J, Wood and Finley JJ agreeing) held (at 297) that a person does not have prohibited drugs “in possession for supply” where the person has possession of the drug but merely intends to transfer the physical control of it to its owner or the person reasonably believed to be the owner.

53. The Carey defence has been considered in subsequent decisions of this Court. As was accepted during the hearing of this appeal, most of these decisions involve a situation where the accused has given an account that they knew what they possessed were drugs but that they were temporary caretakers of the drugs and intended to return them to their owner.

54. In R v EAS (Court of Criminal Appeal (NSW), 26 July 1990, unrep), cocaine had been left with the accused by his brother for safe keeping while the brother was interstate. A Carey defence was held to be available.

55. In R v Tuckey (1991) 57 A Crim R 468, the accused gave evidence that he had agreed to sell some clothes to a man named Nigel. Nigel did not have the money available but offered to leave some cocaine with the accused as security for future payment. When arrested, the accused had been in possession of the drugs for a week and said that he intended to return them to Nigel. The Court held that the Carey defence should have been left to the jury.

56. In R v Liberti (1991) 55 A Crim R 120, the accused gave evidence that he was holding the drugs for his friend until his friend asked for the drugs to be returned. The drugs were held by the accused for close to 32 months. The Court ordered a retrial on the basis that the Carey defence should have been left to the jury.

57. In R v Fong (Court of Criminal Appeal (NSW), 29 November 1996, unrep), police gave evidence of a conversation with the accused in which he claimed that he had been asked to look after the heroin found in his premises and had had it for three days, but declined to name the owner. Curiously, the accused gave evidence at trial denying this conversation with police and denying any knowledge of the heroin. The Court said that on the basis of the police evidence, there was a “real question whether his possession was for the purpose of supply or temporary custody and return to the owner” and held that the issue should have been left to the jury.

58. In R v Frazer [2002] NSWCCA 59; (2002) 128 A Crim R 89, the accused was one of three people in a motor vehicle driven by her boyfriend that was stopped by police. When police officers asked if the accused had anything to disclose, she told them she had a “Kinder Surprise” capsule concealed in the front of her pants, but she did not know what it contained. It in fact contained a quantity of methylamphetamine. At trial, she gave evidence that her boyfriend gave her the capsule to put away and she had intended to return it to him once he had paid for petrol. She had then fallen asleep.

59. The accused said that she “suspected” the capsule contained drugs or money, but she was unwilling to accept that she knew what it contained. However, it was formally admitted at trial that she was in possession of the drugs. As Dowd J (with whom Wood CJ at CL and Sully J agreed) found, the issue at trial was not whether she had sufficient knowledge to have possessed the drugs but whether the jury accepted her explanation that she possessed them for purposes other than supply (at [47]). In that factual context, the Court found that the jury had not been adequately directed on the accused’s case that she was a minder of the drugs on a temporary basis (at [63]). Dowd J observed at [62]:

There is a difficulty in juries understanding statutory deeming provisions, and the Learned Sentencing Judge’s failure to explain that a temporary handing over of physical control to another person may not constitute supply, created a difficulty for the jury. I consider that His Honour in his Summing Up also failed to adequately explain the nature of the defence case, which was the essence of the trial.

60. In R v Nicodin [2002] NSWCCA 447, the accused gave evidence that he was in possession of a package of methylamphetamine at the request of and on behalf of a friend and was unaware of the nature of the contents of the package. His account was that he had been asked to take the package temporarily but on the understanding that he would return it to the friend shortly afterwards. The trial judge directed the jury that only one matter was in dispute, namely the accused’s knowledge of the package’s contents. The jury were not directed as to the accused’s assertion that he was a mere custodian of the package. This Court found that the accused’s evidence “raised precisely” the issue in Carey and that the trial judge was required to direct the jury on this issue (at [9]). It should be noted that the Crown had conceded that ground of appeal in this Court.

61. In Regina v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462, the accused told police that a friend had asked him to collect a parcel in Coogee. When there, another person handed him three bags of white powder that he put in his freezer. He did not know what it was but suspected it may have been heroin. The Court found that the Carey defence was not available because it fell within the situation contemplated by Hunt J where a person obtains drugs on behalf of another person. The accused was not receiving the drugs as a “mere custodian” but rather “a link in the chain of intended supply” (at [16]).

62. In Alliston v R [2011] NSWCCA 281; (2011) 217 A Crim R 323, McClellan CJ at CL referred to the above cases and observed the following at [28]:

Before a “Carey defence” can be sustained, it is necessary for the party raising it to demonstrate that the evidence is capable of proving that the accused’s possession of the drugs was merely momentary or transient and that the accused intended to return the drugs to their owner (R v EAS (unreported NSWCCA 26 July 1990); R v Tuckey (1991) 57 A Crim R 468; R v Frazer [2002] NSWCCA 59). Analogies have in the past been drawn to the concept of bailment (R v Blair [2005] NSWCCA 78).

63. Similarly, Simpson J observed the following at [128]:

From 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.

64. In Alliston v R, police had pulled over a car in which the accused was a passenger and her boyfriend was the driver. Police found two quantities of drugs in the car: the first in the accused’s purse and the second in the back seat. As to the first quantity, the accused gave evidence that her boyfriend had given the drugs to her to carry in her purse. She did not actually state in her evidence whether her intention was to return the drugs to her boyfriend. The applicant’s case as to the second quantity of drugs was that she did not know it was there. The defence counsel asked the trial judge to direct the jury on the Carey defence. The trial judge declined to give the direction due to the absence of evidence as to whether the accused intended to return the drugs.

65. McClellan CJ at CL (with whom Fullerton J agreed) found that the Carey defence should have been left to the jury in respect of the drugs in the accused’s purse (at [34]). However, his Honour held that there was no miscarriage of justice because the Carey defence was not available for the larger quantity of drugs found in the back seat.

66. Simpson J, however, found that the trial judge was correct to decline to direct the jury in accordance with Carey because the accused never claimed that she intended to return the drugs (at [134]). As to the quantity of drugs in the back seat, her Honour found as follows (at [135]):

The 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.

(Emphasis added.)

67. Her Honour’s reference to R v Small (1991) 54 A Crim R 460 is to the decision of Clarke JA (with whom Gleeson CJ and Newman J agreed). In that case, the accused gave evidence that she had been asked by a friend to collect baby gear and deliver it to them. She claimed that she was not there when it was loaded into her vehicle and thus she did not know that cannabis had in fact been loaded instead. Her case was that she had no knowledge of the presence of the drug and could not be guilty of possession. This Court found that the Carey defence did not properly arise from the evidence at trial as follows (at 462-3):

The sole defence which was maintained at the trial was based on the appellant’s alleged ignorance of the presence of cannabis in the vehicle. She was not, her counsel submitted, in possession of the cannabis. Her statement that she had picked up baby gear in Queensland to deliver to a friend in Sydney was put forward as an explanation of the presence of the cannabis in the van consistent with her absolute ignorance of its existence. In my view it provided no evidentiary basis for a conclusion that she had picked up cannabis to deliver to a friend. Indeed, that conclusion was quite inconsistent with the thrust of her defence that she did not approve of cannabis, did not smoke it and knew nothing of its presence in the back of the van. The suggestion that she was delivering it to a friend in Sydney was completely at odds with the defence being maintained.

The appellant’s counsel presented a rather ingenious argument which involved two steps. The first recognised that the jury rejected her defence and therefore must have been taken to have been satisfied beyond reasonable doubt that she knew there was cannabis in the van. That is, of course, quite correct. The second step was that the jury might nonetheless have accepted the proposition that she had picked up the baby gear and cannabis in Queensland to deliver to her friend in Sydney. Counsel pointed out in this regard that while the jury rejected her claim of ignorance they may well have been satisfied of the other elements of her story. That is, that she picked up the materials in Queensland to deliver to her friend. Upon this basis they could have concluded that she had established that she had the cannabis in her possession for delivery which was, in the circumstances, a purpose otherwise than for supply.

For my part I am quite unable to find any evidentiary basis for the submission. The onus of proving that the exclusion operated lay on the appellant. If she had mounted a defence based on that exclusion she would have had to establish, on the balance of probabilities, that she had the cannabis in her possession solely for the purpose of delivering it to the friend. Once she denied that she had the cannabis in her possession she destroyed the foundation for a defence based on the exclusion which, as is obvious, was quite inconsistent with the defence she actually maintained.

The exclusion proceeds upon the basis that the accused person had the cannabis in her possession for a specific purpose which was not “for supply”. It involves an acceptance of the fact that the accused had the drug in her possession. Although the jury finding in this case demonstrated that it was satisfied beyond reasonable doubt that she did have the cannabis in her possession the absence of evidence showing, or from which it could be inferred, that she intended to deliver the cannabis to a friend is, in my opinion, fatal to the submission. There simply was no evidence upon which a jury could properly have been satisfied, on the balance of probabilities, that she had picked up the cannabis with the intention of delivering it to the friend. In particular in this regard evidence that she intended to deliver, completely innocently, baby gear to a friend would not, in my opinion, provide any basis for a conclusion that she also intended to deliver cannabis to that friend.

(Emphasis added.)

68. The only case in which it has been held that a Carey defence was appropriate despite the fact that the accused eschewed knowledge of the drugs was Huynh v R [2020] NSWCCA 202, in which it was agreed at trial that such a direction should be given. The appeal was determined on the basis that the trial judge had watered down the address and not on a failure to give it.

69. In Huynh v R the accused’s case was that his friend “Tony” had dropped off bottles at his house. The applicant denied knowledge of the content of the bottles. He said he was leaving the bottles in the hallway “until Tony came back and claimed them”. In cross-examination, when invited to speculate why Tony left the bottles at his house, the applicant said, “Well I can only think he was getting spooked by the police. He was going to hide it somewhere, isn’t he?” It was the Crown that had raised with the trial judge that it appeared “a Carey type defence” would be relevant and had addressed on it in closing. The defence counsel, however, did not expressly put the Carey defence to the jury and rather submitted that the applicant was not in possession of the drugs because he did not know what was in the bottes. In summing up, the trial judge referred to the Carey defence but then followed this with a statement of reasons for why it should not be accepted.

70. Macfarlan JA (with whom Lonergan J and I agreed) found that there was sufficient evidence for the Carey defence to be put to the jury and it had been appropriately raised for the jury’s consideration by the Crown and trial judge even if it had not been put by defence counsel. However, his Honour found that the trial miscarried because while the applicant’s Carey defence was described to the jury by the trial judge, “it was immediately dismantled” (at [87]).

Submissions on appeal

Applicant’s submissions

71. The applicant submitted that his account of holding his girlfriend Jasmine’s bag was in effect a species of a Carey defence. Accordingly, it was submitted, the trial judge erred in not directing the jury that if they found the applicant was in possession purely for the purpose of minding Jasmine’s bag, this possession would not be for the purpose of supply. It was further submitted that it was incumbent upon the trial judge to make this direction even in the absence of any request by defence counsel to do so.

72. It was accepted that the applicant’s primary case at trial was that he did not have possession of the drugs, but it was submitted that even if the jury rejected this account (that he did not know the drugs were in the bag), it was still open to find that he only had temporary custody of the bag and was not in possession for the purpose of supply.

73. Counsel for the applicant, Ms Kluss, submitted that it is not knowledge of the prohibited drugs that triggers the Carey defence but rather the nature of an accused’s possession of the drugs. In this case, it was submitted the defence was enlivened by the case put by trial counsel in the opening address (“her bag, her drugs”) and the applicant’s account in the body-worn video that he was a temporary custodian of the bag. When Ms Kluss was asked which portions of the body-worn video she relied upon to establish that his possession was in fact temporary, she submitted that it was the “whole of that passage” including that the applicant told Jasmine not to leave her bag because “anybody could flipping take it” and that she was just “going past a shop quickly”.

74. As to whether the Liberato direction cured any unfairness, the applicant submitted that this direction was only given in the context of the general directions at the outset of the summing up and did not remedy the deficiency of the later directions on the elements of the offence.

Consideration

75. The applicant’s contention in written submissions is that he was “denied a fair trial absent the potential defence being put to the jury with the force of His [sic] Honour’s office and an injustice has resulted such that the accused has lost a chance of acquittal”. It is not clear whether reliance was placed on “second limb” error (wrong decision of any question of law) or “third limb” error (miscarriage of justice) within s 6(1) of the Criminal Appeal Act. There is some doubt as to whether a failure to give a direction that was not asked for could be said to be “a wrong decision on a question of law”. In MDP v The King [2025] HCA 24; (2025) 99 ALJR 969, Gleeson, Jagot and Beech-Jones JJ stated at [102] (after observing that it is for the parties to determine what evidence will be adduced at trial):

By contrast, the responsibility to deliver a summing up that correctly states the relevant principles of law rests with the trial judge, as does the responsibility to deliver reasons for judgment at a judge-alone trial in those jurisdictions that permit such trials. Thus, if a trial judge misdirects the jury on a matter of law or includes a wrong decision on a question of law in their reasons for verdict following a trial without a jury there will be a wrong decision on a question of law for the purposes of the second limb (and that is so whether or not those decisions were the subject of submissions or counsel caused or contributed to the decision). Although a mere failure by a trial judge to give a particular direction will not ordinarily involve the making of a decision on a question of law unless a party has requested such a direction, two further points should be made. First, the failure to give a direction that was not requested may nevertheless amount to a miscarriage of justice. Second, the word “ordinarily” is important. Given the context of the duties and obligations of a trial judge in a criminal trial, there may be circumstances in which a trial judge’s failure to give a direction that has not been requested that has legal effect in a trial gives rise to a decision on a question of law. (Emphasis added.)

76. It seems to me that the distinction is of little significance on this appeal, and I propose to consider this ground on the basis that the applicant relies on both limbs.

77. In assessing whether there was a miscarriage of justice in this matter the question is whether the failure to give a Carey direction could have realistically affected the reasoning of the jury in convicting the applicant: MDP v The King at [33] (Gordon and Stewart JJ), [46] (Edelman J), [106]-[107] (Gleeson, Jagot and Beech-Jones JJ). Similarly in Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 the High Court held that the general test for whether an “error” or “irregularity” in a trial constitutes “a miscarriage of justice” for the purposes of the third limb of the common form criminal appeal provisions is that “they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred” (at [10]).

78. As to the obligation of a trial judge to give a direction that has not been asked for, the relevant principle was stated by the High Court in Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20. It was held in that matter that the trial judge had erred in failing to direct a jury regarding the possibility of a complete acquittal of the appellant despite the fact that defence counsel had conceded that it was a case of either murder or manslaughter. In that context, Barwick CJ stated the following at 117-8:

There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial. The decision of the House of Lords in Mancini v. Director of Public Prosecutions (1942) AC 1 following Lord Reading’s judgment in R. v. Hopper (1915) 2 KB 431 and its influence in the administration of the criminal law must ever be borne in mind (see Kwaku Mensah v. The King (1946) AC 83, at p 92-94). Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part. (Emphasis added.)

79. This principle derived from Pemble v The Queen is a qualified one, for the reasons explained by R A Hulme J (with whom Hoeben CJ at CL and I agreed) in Phillips v R [2016] NSWCCA 159 at [18]-[21]. In that case the applicant relied on what Barwick CJ stated in Pemble v The Queen at 118 (extracted above). After noting this (and another) passage from Pemble v The Queen, R A Hulme J went on to observe the following at [19]-[21]:

[19] It is important to note that both statements of the principle refer to an issue that may arise “upon the evidence”. And it is also important to have regard to further authority (to which we were not taken). In Alford v Magee [1952] HCA 3; 85 CLR 437 at 466 [28] the High Court referred to Sir Leo Cussen’s “great guiding rule”:

“He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny.”

[20] Simpson J (as her Honour then was) referred to this passage from Alford v Magee in R v Greatorex (1994) 74 A Crim R 496 at 504 and said:

“On appeal, it is too late to create a factual issue that did not ever arise during the trial.”

[21] In Huynh v The Queen [2013] HCA 6; 295 ALR 624 at 631 [31] the High Court affirmed the authority of Alford v Magee in the following terms:

“The contention that it is an error law [sic] for a trial judge to omit to instruct a jury on all of the elements of liability for an offence cannot stand with the many decisions of this court affirming the statement of the responsibility of the trial judge in Alford v Magee. The duty is to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues. … Discharge of that responsibility will usually involve instruction respecting the elements of the offence and, where appropriate, the principles governing accessorial or joint enterprise liability. This is not to say that the omission to specify an element of liability that is not in issue in the trial is legal error.”

80. The question in this appeal is whether “upon the evidence” at the applicant’s trial the need for a Carey direction arose: the applicant contended that it did whereas the Crown submitted that it did not. If the applicant cannot establish that the Carey defence arose as a real issue at trial, then the trial judge was not required to direct on it and the appeal must fail.

81. The applicant’s case at trial was simple: he did not have any knowledge of the drugs in the bag. The only evidence that could give rise to a Carey direction was what the applicant said to police when first apprehended. I have already extracted the applicant’s evidence above at [13]-[17] but, relevantly, when he was observed to dispose of the bag discreetly over a brick wall and walk away, he was stopped by police. He explained that it was his “missus’ bag”, that she had left it there and he was picking it up for her. Once the body-worn camera was activated the applicant repeated that the bag belonged to Jasmine who had been sitting near the bush previously. When asked by police whether she was coming back the applicant replied, “I don’t know” and “I hope so”.

82. I have considered the decisions in which this Court has previously held that a Carey direction ought to have been given above at [53]-[70]. In all but one of them*,* the evidence at trial was that the accused person acknowledged that they were in possession of the prohibited drugs but explained that their intention was to return them. The only exception was Huynh v R but the issues which arose in that decision differed to the applicant’s case in a number of respects. In Huynh v R, the Crown had sought a Carey direction at the trial, and the trial judge had given it, albeit a “watered down” version. The issue on appeal was as to the adequacy of that direction. The appeal did not turn on whether such a direction is appropriate when the accused does not admit that he has the prohibited drugs in his or her possession.

83. The fact that the applicant was unable to identify any decision in which it has been held that an accused person who did not admit to being in possession of any prohibited drugs is entitled to a Carey direction is not a complete answer to this ground, but it does weigh against his claim that his trial miscarried.

84. Even if it was accepted that the facts in the applicant’s trial did give rise to the need for such a direction, and I am not satisfied that they did, there is a real question of materiality to consider. The applicant’s trial will only have miscarried if the failure to give the direction could “realistically have affected the reasoning of the jury”. In making that assessment the summing up falls to be considered as a whole, including the fact that a Liberato direction was given. The jury was directed, inter alia, that even if they had “difficulty in accepting the accused’s account [that it was not his bag] but decide[d] that it may be true” they “must” acquit. The applicant was caught “red-handed” in possession of the bag. The only way that a “reasonable doubt” could arise would be if the jury accepted that the applicant’s version “might” be true. In circumstances where this full Liberato direction was made, it is difficult to see how the Carey direction could have assisted the applicant any further.

85. There is also some force in the Crown submission that there was a sound forensic basis not to raise the Carey defence; namely, because it would have undermined the applicant’s primary case that he did not know about the drugs.

86. The fact that no direction was sought by trial counsel at trial is relevant on two bases. First, it means that leave is required to raise this complaint in this Court: r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). Secondly, it is significant in assessing the question of miscarriage that the applicant’s counsel at trial did not suggest that a Carey direction should be given.

87. As outlined above at [28]-[33], no issue was taken by defence counsel when the directions were discussed in advance, a draft elements document was provided, and the trial judge expressly invited the parties to raise any issues at the conclusion of his summing-up. The failure by counsel to seek such a direction is a strong indication that there was no miscarriage of justice: BQ v The King (2024) 279 CLR 124; [2024] HCA 29 at [56]. To put that another way, it may be explicable by the fact that, in the atmosphere of the trial, counsel saw no need for such a direction: Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121] and Greenhalgh v R [2017] NSWCCA 94 at [42].

88. The trial judge’s directions were consistent with the way in which the trial was run. I am not satisfied that the applicant’s trial miscarried due to the absence of a Carey direction.

89. Accordingly, I would propose the following orders:

90. Leave to appeal refused.

91. Appeal dismissed.

92. CAVANAGH J: I have had the benefit of receiving the judgment of N Adams CJ at CL. I agree with the orders proposed and reasons set out by her Honour.

93. The applicant seeks to establish error on the part of the trial judge on the basis of a failure to give a Carey direction that supply does not include temporary possession of drugs for the purposes of returning those drugs to the owner.

94. Error is asserted in circumstances in which:

95. The onus was on the applicant to establish that he did not hold the drugs for the purposes of supply;

96. The applicant maintained as part of his defence at trial that he did not know that the bag in which the drugs were found contained the drugs; and

97. Such a direction was not sought by anyone at trial.

98. It is unsurprising that no one sought such a direction at trial. There was no evidentiary basis for it. The applicant did not seek to establish that he held the drugs other than for supply, that is, to return them to their owner. To do so would have been inconsistent with his defence that he did not know that the bag contained the drugs.

99. Even leaving aside whether anyone sought such a direction at trial, the applicant has not established error on the part of the trial judge in not giving such a direction.

100. MUSTON J**:** I too have had the considerable benefit of reading, in draft, the judgment of N Adams CJ at CL. I agree with the orders proposed and with her Honour’s reasons. I would add the following by way of emphasis and without intending to qualify those reasons.

101. The applicant’s case at trial was that he had no knowledge of the drugs in the Louis Vuitton bag. The account he gave to police when first apprehended was said to support this contention. He argued before the jury that the Crown had failed to establish that he was, in those circumstances, in possession of the drugs.

102. The final elements document handed to the jury (MFI N) made clear what the Crown needed to prove to establish possession. That document emphasised that fact that the Crown was required to prove the mental element of intention. That is what the applicant – relying on his account to police – said that the Crown had failed to establish. If the jury were to have accepted that contention, it would have provided a complete answer to the charge. The Carey defence had no role to play in relation to this aspect of the applicant’s defence as the question of supply would not have been reached.

103. The jury need only have turned their minds to a Carey defence if they had rejected – in the sense contemplated by Liberato – the account provided to police by the applicant. That being the case, there was a tension between the applicant’s case on possession and the maintenance of a Carey defence. The jury’s willingness to accept even that he may have had no knowledge of the drugs in the bag could have been undermined by a defence to the effect that “but if he did know that the bag contained drugs, he was nevertheless in possession of them merely for the purposes of returning them to his girlfriend”. That tension was heightened in this case by what was contained in the CCTV footage described by N Adams CJ at CL in paragraphs [8] and [9] above.

104. How that tension was to be resolved in the context of the trial was a decision for the applicant and his legal representatives: Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [49] and [54]. He chose not to advance a Carey defence or seek the accompanying direction. Viewed objectively, that decision was explicable in that it could – for the reason touched upon in the above paragraph – have resulted in a forensic advantage to the applicant which outweighed any possible benefit that he might have obtained through a Carey defence in the sense discussed in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [28]. That decision did not create a risk of a miscarriage of justice, nor could any failure by the trial judge to have “second guessed” the applicant’s decision and given a Carey direction have done so.

**********

Amendments

20 August 2026

Catchwords added