HIS HONOUR: Yesterday afternoon the accused was arraigned on an indictment containing one charge. The charge is that on 10 December 2016 at Sydney Olympic Park in this State, he did supply a prohibited drug namely 3 ,4 methylenedioxyamphetamine. To that offence the accused pleaded "not guilty".
Currently before me is an application by the accused for an adjournment, to seek evidence to buttress what was referred to by learned counsel for the accused as a "Carey defence." The formal indictment refers to both s 25(1) of the Drug Misuse and Trafficking Act 1985 and s 29 of the same Act. Section 29 of the Act commences thus;
"A person has in his or her possession an amount of a prohibited drug which is not less than the trafficable 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, or ..."
The Crown case summary, exhibit VD2, contains this:
"1. On Saturday 10 December 2016, police were engaged in 'Operation Milpulling' at Sydney Olympic Park for 'Knockout Curcuz Dance Party.' The Operation included the authorised use of drug detection dogs.
2. At about 6.50pm, Aaron Aston ('the accused') was approached by an officer handling a drug detection dog near the entry gates to the party. The drug detection dog stopped at the accused and indicated that he had prohibited drugs on his person.
3. The accused was cautioned by the dog handler.
The officer said: 'Do you have any illegal drugs on you?'
The accused said: 'Yes. I have some pills down my pants.'
The officer said: 'About how many?'
The accused said: 'About 110. Some guy out the front was going to pay $600 to bring them in.'"
The accused was then led away to a search area and was searched. The police found 115 tablets of 3 ,4 methylenedioxyamphetamine. The total weight of the drugs was 33 grams with a purity of 7.5%. The trafficable quantity for this drug is 0.75 grams. The commercial quantity is 125 grams.
On this application there is also before me a statement of the officer in charge, now Detective Senior Constable Tara Warwick, who is now serving at Dubbo. Her statement of 29 May 2017 contains this matter:
"4. Due to the number of conversations I'd had with other detectives and supervisors at the location, I was aware that numerous people had been arrested after being found in possession of varying quantities of prohibited drugs. The version provided by some of these people was that they'd been paid by an unknown male that had approached them outside the venue, stating he would pay them to bring the drugs inside the venue. On each occasion from what I was aware, those who had been detected as being in possession of the prohibited drug did not appear to have any knowledge as to the actual quantity of the drug they were carrying.
5. Around 6.50pm, Constable Dos Santos approached me where I was standing with Senior Constable Liddiard and Detective Senior Constable Costa. Constable Dos Santos spoke to me. Constable Dos Santos said words to the effect of 'This guy just told me that he has 110 pills on him. He said, someone paid him to bring them in'..."
In the succeeding paragraph Detective Senior Constable Warwick records a conversation that she had with the accused after cautioning him. This conversation is recorded:
"I said - so tell me more about the drugs. How much were you paid?
The accused said - Nothing yet. He was going to find me in here and pay me.
I said - what does he look like?
The accused said - Middle Eastern male, 25 years old, unshaven, Gucci sunglasses, white Lacoste shirt. He was standing behind the station.
I said - Why did you do it?
The accused said - It was easy money.
I said have [you] taken anything?
The accused said - Two ecstasy and some base. Speed."
The Detective Senior Constable then records that the accused appeared to be relatively unaffected by his ingestion of drugs at that time.
As I understand it, the accused's case is that he was approached by the man he described to Detective Senior Constable Warwick, to whom I shall hereafter refer to as 'X'. X then promised to pay to the accused $600 if the accused would take into the dance party, past the police inspection barrier, a package containing about 110 "pills" which the accused believed to be some form of drug. The accused agreed to do so because he thought it was an easy way to earn money. Unfortunately for the accused he was singled out by a drug detection dog and when confronted by the police admitted that he was carrying about 110 "pills" on him. That led to the searching of him, the finding of the drugs and his subsequent charging that led to the current proposed trial.
The accused seeks an adjournment in order to bolster his "Carey defence". A statement was given to the defence by the Crown yesterday in which a Senior Constable Matthew Grand of the Police Dog Unit referred to his interaction with two ladies, Cassandra Martin and Siobhan Robinson, who had secreted drugs in their person at the behest of some fellows who were eventually identified to the police by Ms Martin. I understand from exhibit VD6 that two of those males are currently before the courts in relation to certain drug charges following upon the admission by Ms Martin of those who gave her the drugs to take into the dance party.
It is clear that Senior Constable Grand could not give evidence as to what he was told by either Ms Martin or Ms Robinson, because that would be hearsay. It would be open to the accused to call either Ms Martin and/or Ms Robinson and it may be that one of the persons identified by Ms Martin might be the man who I have referred to as X. In essence, the accused wishes to reinforce his "Carey defence" by seeking to establish that others may have been approached by X. Perhaps by trying to identify X and by proving that the taking of drugs into a dance party by those attending the dance party at the request of others, in fact doing what the accused did, is not an uncommon procedure.
I must reject the adjournment application on the grounds that it appears to me to be wholly futile.
Supply is defined in s 3 of the Drug Misuse and Trafficking Act 1985 thus:
"Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things."
In R v Carey (1990) 20 NSWLR 292 the facts of the matter were set out by Hunt J (as his Honour then was) at 293E:
"The facts of the case, which were not in dispute, were that a folded handkerchief containing some 15 small paper packages containing trafficable amounts of each drug was found on a chest beside the appellant's bed. The appellant told the police that she did not smoke or use drugs, and that these drugs belonged to her sister. The sister had given the appellant the drugs, after informing her what they were and that they had not been found by the police in a search in that morning, and she had requested the appellant to mind the drugs overnight, stating that she would collect them the next day. The appellant stated that her intention was to flush the drugs down the lavatory if her sister did not collect them as promised. Her defence to the charges was that her possession of the drugs (which was conceded) was with the intention only of returning them to her sister."
His Honour was concerned whether what the accused in that case did amounted to supply. At 294F his Honour cited the first part of the definition of supply contained in s 3. He then went on to say this:
"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. The references to 'sending, forwarding, delivering' are all qualified by the words 'for supply'."
His Honour was concerned with the meaning of the word "supply". His Honour referred to some earlier decisions of the Court of Criminal Appeal where the word "supply" had been used in the Poisons Act 1966. His Honour then commenced at 295D to refer to the decision of Yeldham J in O'Brien v Smith (9 May 1986, unreported). That was an application under the Justices Act 1902, s 112, essentially an appeal. Hunt J referred to the,
"somewhat surprising finding by the magistrate that the prisoner had the drugs in his possession with the intention only of returning them to their owner - who had thrown them from his Ferrari motor vehicle whilst being pursued at high speed by a police vehicle. His Honour did not appear from his ex tempore judgment to have been referred to any authorities, and he decided the case in accordance with what he saw to be the ordinary meaning of the word. He held the word 'supply' did not apply to the mere return of the drugs to their owner or to the person reasonably believed to be such."
Commencing at 295F his Honour commenced to the decision of the House of Lords in R v Maginnis [1987] 1 AC 303 where his Honour did not approve of the speech made by Lord Keith of Kinkel as to the meaning of the word supply. Lord Kinkel was in the majority. Hunt J preferred the speech of Lord Goff of Chieveley who was in the minority, and therefore dissenting, about the meaning of the word supply. His Honour then pointed out that the New South Wales Court of Criminal Appeal was no longer bound by any decision of the House of Lords. I am bound by the decision of the Court of Criminal Appeal of this State. I should point out that the decision of Hunt J to which I am referring was agreed to by both Wood and Finlay JJ. That was a very strong Bench.
At 297C his Honour said this:
"The policy of the Act in question in this appeal is by no means thwarted by giving to the word 'supply' in that context its ordinarily accepted meaning. The only consequence of the construction which I have suggested is to remove a mere delivery of the drugs from the more serious offence of supply. Such a consequence will not open the floodgates. In many (if not in most) cases, the circumstances of the delivery would be such as to establish that the accused was an accessory of the person to whom the delivery was effected. The acts of the drugs storeman to which Lord Keith referred to in R v Maginnis (at 309) would clearly fall within the ordinary meaning of the word 'supply'.
I should also refer to one very common situation which the construction 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'."
A much more recent decision on the same point is Alliston v R [2011] NSWCCA 281. Commencing at [23] McClellan CJ at CL cited a number of authorities decided since Carey. However, earlier at [21] the then Chief Judge at Common Law pointed out that Hunt J (as he then was) acknowledged that in many, if not most cases, the circumstances of the delivery would have the consequence that the accused was an accessory of the person by whom the delivery was affected. Simpson J (as she then was) commenced to discuss the decision in Carey at [105], her Honour said this:
"[105] All 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).
[106] The 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."
Commencing at [110] her Honour discusses the cases decided since Carey, both those in which a successful defence was mounted and those in which a "Carey defence" had been unsuccessful. Eventually at [128] her Honour said this:
"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 [2005] NSWCCA at 78, 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."
Earlier at [125] her Honour said this of Blair:
"In 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."
Whatever additional evidence may be found by the accused, he does not seek to undermine the basic proposition that he accepted the drugs from X on the promise of a reward of $600 and then took the drugs into the dance party but in doing so was arrested. Had he not been stopped by the police the accused's case is that he would have returned the drugs to X and X would have provided him with $600. This is no real Carey defence at all.
The accused, to use the language used in the definition of supply in s 3 was delivering the drugs for supply. He had taken position of them from X and intended to return them to X so that X could supply the pills to those attending the dance party. The number of pills is so great that the only rational inference to be drawn is that the pills were not for the personal consumption of X but for distribution to others, whether it was to a large group of friends or whether it was for the purpose of making money, is quite irrelevant. It had to be for some purpose of supply.
Here the accused, on the case he wishes to establish, moved the drugs from one point to another in an attempt to cross through a police inspection point, where the police were seeking to apprehend those seeking to bring to the dance party illicit drugs, in the pious expectation that he would not be apprehended and could hand the drugs back to X after he had successfully entered the dance party carrying the drugs. The offender had agreed to become part of the drug distribution chain. He was not a mere passive minder of drugs, he actually performed a role in the distribution of the drug. He took the drugs from X in the expectation that he would then supply them to X so that X could distribute it to those who had successfully entered the dance party venue.
In those circumstances it appears to me that seeking further evidence to "bolster the defence" would achieve nothing because the basic facts would remain exactly the same.
Having said that I caution myself, as Simpson J said at [128] of Alliston, that I am not at this stage saying that I will not give a Carey direction but I must receive the whole of the evidence such as it comes out to see whether a Carey direction ought be given at the end of the trial. However to permit an adjournment of the trial in order to obtain evidence which would not in fact advance the Carey defence is, in my opinion, an otiose exercise. The application for adjournment is accordingly dismissed.
[2]
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Decision last updated: 15 January 2019