R v Frazer [2002] NSWCCA 59 | Case summary

The obligation resting upon her, he explained, was one that called for proof on the balance of probabilities, an onus which he distinguished from that resting upon the Crown, which required proof beyond reasonable doubt. The onus which rested upon her was thereafter consistently expressed as one that required proof that it was more probable than not that she had the drugs " for a purpose other than supply" . 8 It is plain that counsel for the accused was not happy with these directions at trial, since he sought twice to have a Carey direction given. On the first occasion his Honour made no response to that request. On the second occasion his Honour indicated that he considered that he had dealt with the matter sufficiently. 9 The problem as I see it, arises from the circumstance that, on various occasions, his Honour explained that supply, in both ordinary usage and at law, consisted of the selling of a substance or giving it to some other person, which, his Honour explained by way of example, included "furnishing it, or making it available to some person". Strictly understood, a definition in those terms would include holding an item, and handing it over to its true owner, after having been a repository or minder of it. 10 As can be seen from the extracts from the summing up previously noted, his Honour did not directly deal with the situation where the person charged with supply was in fact a temporary minder of the substance. Rather, his Honour referred repeatedly to the onus, resting on the accused, as one of establishing that it was more probable than not, that she had the drugs in her possession for some purpose "other than supply". Absent express reference to the particular circumstance which was relevant in Carey, and which was equally relevant here, I am left with the impression that the jury would not have understood the qualification which it established. 11 The closest that the summing up came to dealing directly with this matter was in the context of lies, concerning in particular, whether the applicant had lied in a way demonstrating a consciousness of guilt when giving a version to police which differed from that given during her evidence, when she said that she had been holding the drugs for Mr Rindfleish. In the course of dealing with that aspect of the case, his Honour noted the concession made by the appellant, to the effect that the earlier version which she had given to police was a lie, and that it had been told because she was afraid not only for herself, but also for what Mr Rindfleish would do to her if she told the truth. 12 It is clear from this passage (summing up at page 11), and also from the general summary of the evidence given by her, that the jury were well aware that it was her case at trial that she had been a minder of the drugs on a temporary basis. However, the deficiency in the summing up seems to me to relate to the fact that the relevance of that factor was not appropriately drawn to the Jury's attention in the context of the offence charged. In other words, the jury were not sufficiently instructed that in the event of them being satisfied that it was more probable than not that the accused was merely a temporary minder of the drugs for Mr Rindfleish, then she was entitled to be acquitted. At no point was that brought expressly to their attention, although it was the critical issue in the trial. 13 The importance which this had for the trial can be seen from the circumstances that arose when the jury returned to the Court on 31 May 2001. Part way through the summing up they sought clarification on the definition of supply, which they said was a "grey area" for them. The directions then given were in the following terms: "HIS HONOUR: The accused is charged, as you will see from the indictment, that she did supply a prohibited drug, namely 18.8 grams of methyl amphetamine. In ordinary English when we speak of supplying some commodity we mean selling it or giving it to some person, furnishing it or making it available to some person. It has that meaning in law also. In a case of this kind where the trafficable quantity is 3 grams, if the prosecution proves to you beyond reasonable doubt that the accused had in her possession on 21 January 2000 at Hartley more than the trafficable quantity, by the relevant section of the Drug Misuse and Trafficking Act she is deemed to have the drug for supply. The prosecution must prove beyond reasonable doubt that the accused did have in her possession not less than the 3 grams, the trafficable quantity, of the drug amphetamine. If you are not satisfied of that that is the end of it. You cannot find her guilty of supply upon that basis. You then go ladies and gentlemen to the next part. If you are so satisfied on that matter, that she had in her possession more than the trafficable quantity then the deeming provision comes in. you should find her guilty unless after considering all the evidence including what the accused has said to you you are also satisfied that it is more probable than not that her possession was not for supply. You will recall that I told you that the prosecution must prove every element of its case that I have just outlined and that the accused did not have to disprove anything, there being no onus on an accused. So what I have said to you may seem inconsistent with that. What the prosecution does have to prove is that the accused had in her possession not less than the trafficable quantity. It is only after this has been done that any obligation is placed upon the accused. And the obligation placed upon her is different from that that is placed upon the prosecution. [Then] they have to prove each element in their case beyond reasonable doubt. The accused merely has to satisfy you that what she says is more probably true than not. I will pause there Mr Foreman whilst I notice you are all making notes and without saying further words ask you to tell me from your jurors whether that answers your question. FOREMAN: That answers my question - - HIS HONOUR: Would you like to discuss it with them or? FOREMAN: Yeh. That clarifies that point. If you would just expand again on the three elements. HIS HONOUR: Well the three elements are that she on 21 January 2000 at Hartley did have in her possession, one, that is one. Two, a prohibited drug. Three, that was in excess of 3 grams. And I pointed out to you that by the admissions made the real issue that Mr Boyden said to you in his address was that it comes down to whether you accept her explanation, namely that she had them for a purpose other than supply . It is all clear now? FOREMAN: Thank you your Honour, yes." 14 Again it can be seen that no reference was made to the principle in Carey. While no doubt it was understood by his Honour and counsel, I am quite unpersuaded that the critical point for the accused was sufficiently explained to the jury. That trial counsel shared this view is shown by the fact that he immediately sought a redirection that "if they (the jury) accept on the balance of probabilities the evidence that Rindfleish gave her the [bubble] temporarily and if it was always intended that it would be given back at some point, then they should acquit." 15 That would have been a proper direction, and it would have clearly brought the point home to the jury who, almost certainly, were unfamiliar with the legal concept whereby certain facts can be "deemed" to be so, and who may have had difficulty with a case involving shifting burdens and standards of proof. 16 In all those circumstances, I am of the view that there was a miscarriage of justice arising by reason of the failure of the summing up to specifically deal with the defence. I would propose that the conviction and sentence be quashed and that a new trial be directed.

19 On 21 January 2000, at approximately 10:00am police at Lithgow received information concerning a dark grey Holden Commodore car, registration number TCT 250, travelling in a Westerly direction towards Lithgow, and how there was a suspicion that the car may contain prohibited drugs. 20 The appellant, Jason Rindfliesh and Christine McKinnon, were in the car when it was stopped by Constable O'Flynn and Sergeant Campbell, near the base of the River Lett Hill at Hartley. Rindfliesh was quite agitated when initially spoken to by the police. Detective Cottee who arrived at the scene informed Rindfliesh that they intended to search the vehicle as they suspected that it was carrying prohibited drugs. 21 The occupants were asked to get out of the vehicle and a search was carried out. Green plastic capsules were found in the centre console of the vehicle which resembled capsules known as "Kinder Surprise" novelty gifts. These capsules were suspected to contain prohibited drugs. 22 A female Police Officer who arrived at the scene escorted McKinnon to a police caged vehicle in order to conduct a search of her person. Const. O'Flynn said to the appellant: "Do you have anything on you, you shouldn't have, in your clothes or on you personally? You're going to be searched by a female officer after she finishes searching Christine". The appellant replied: "yeah I have got something". Const. O'Flynn asked, "What?" And the appellant said: "I got like a bubble I found I don't know what's in it". Const. O'Flynn asked where it was and the appellant told him that it was down the front of her pants. He said: "It's like a bubble is it?" And the appellant said: "Yeah like a Kinder Surprise bubble, I just found it". 23 When Sgt. Campbell asked the appellant why she had put it down the front of her pants, the appellant did not respond. The appellant reached into the top left hand corner of her trousers and removed a small red oval shaped container that had red tape around its centre. The appellant was placed under arrest and cautioned, and when asked by Det. Cottee: "What's in it?. The appellant replied: "I don't know, I found it". 24 The appellant was taken to Lithgow Police Station where the plastic capsule was found to contain a resealable plastic bag containing two more resealable bags which both contained cream coloured powder. The drugs were subsequently analysed and found to contain methylamphetamine. One resealable plastic bag delivered to the analyst had 16.35 grams of methylamphetamine with a content of methylamphetamine of 7 per cent. The other powder with 2.3 grams was found to be methylamphetamine. 25 In an interview, the appellant told Police that she had found the container that morning on a chair in a plaza area of the main street of Penrith. She had not opened the container but it was her intention to do so in the car. When asked by the Police whether she had been given the item by anyone the appellant replied: "No". 26 When asked why she had placed the container down the front of her pants she answered: "Cause I didn't know what was in it". 27 The appellant's evidence was that on 21 January 2000, her boyfriend Rindfleish, requested that she travel with him to Sydney. The appellant complained of a headache prior to departure and had taken an analgesic, which made her quite drowsy and as a result she slept in the car for most of the journey. 28 The appellant said that she partially woke up when the car was parked in a service station. Some time shortly after that the appellant said that Rindfleish woke her up and asked to take and put away a bubble-like container. In evidence, the appellant said that she had intended to return the capsule to Rindfleish once he had paid for the petrol. The appellant fell back to sleep prior to returning the capsule and the next event that she remembers is McKinnon shouting "Fuck fuck fuck", and Rindfleish informing her that the police were following them. 29 The appellant stated that during a conversation with Const. O' Flynn, she admitted to carrying the bubble container but was frightened to tell the police that Rindfleish had given it to her. She further stated that she continued with the lie during the record of interview as she was scared of how Rindfleish would react. 30 The appellant gave evidence that she had been in a relationship with Rindfleish for about six years and that she was afraid of him. She feared physical retribution, as he had assaulted her prior to this offence. When she revealed to Rindfleish that she was going to tell the truth in Court, he assaulted her to the extent that she had to attend Lithgow District Hospital for treatment. 31 During cross-examination, the appellant admitted that she had told lies to the police at the scene of the incident and in the record of interview, but that those lies were born out of fear. She reiterated that she had held the capsule for Rindfleish with the intention of returning it to him. Subjective Factors 32 The appellant was thirty-eight years of age at the time of the offence. She is a sole parent who resided with her children aged between fifteen and nineteen years, prior to incarceration. The appellant had a difficult and traumatic childhood living with an abusive alcoholic father, and as a result, spent periods of her childhood and adolescence in children's homes. 33 The appellant alleged that she had been sexually abused by an uncle over a four year period from eight to twelve years of age for which no counselling had been given to the appellant. 34 The appellant had little in the way of education, leaving school at the age of fifteen and has worked in factories and as a housekeeper. She has done some voluntary work at an aged care centre, but was in receipt of a supporting parent's benefit at the time of the offence. 35 The appellant married the father of her three children at twenty-two years of age. The marriage was short lived because of alcohol abuse by her husband. Her next relationship over a six year period was both physically and emotionally abusive. She has had little family support over the years. 36 The appellant has had some health problems apparently suffering from asthma, migraine and prior to imprisonment, a blood clot in her toe. Whilst the appellant denied drug dependency, her probation officer believed that there was a substantial drug problem, which would need to be addressed through drug rehabilitation and counselling. Ground 1(A) The Trial Judge erred in failing properly to direct the jury regarding the elements of the offence. 37 The appellant submitted that the Learned Trial Judge failed to direct the jury that "possession" in law requires "knowledge". The appellant relied on R v Popa (1991) 53 A Crim R 102 and Pereira v DPP (1988) 82 ALR 217. 38 There is no issue that under ss25 and 29 of the Act that on a charge of possession, in the normal course, the jury must be directed of the necessity to prove knowledge. However, I am not satisfied that such a direction was required in the particular circumstances of this case. Mr Odgers SC, for the appellant, conceded in his written submissions: "Indeed, at the beginning of the trial, on advice, the appellant formally admitted that she was "in possession of 18.8 grams of methylamphetamine on 21 January 2000". There was also prosecution evidence from which it would have been open to infer that the appellant knew at the relevant time that she had drugs in her possession". 39 Mr Odgers SC submitted that regardless of these admissions, the appellant in her testimony was unwilling to accept that she knew what was in the capsule, conceding only that she "had a suspicion" about what it may have contained, and later said she "suspected' it contained "drugs or money". There was never an admission from the appellant in her evidence that she thought it "likely" that the capsule contained drugs and that it had been taped up when she received it. At the close of evidence it was submitted there was an issue as to whether the appellant had the necessary knowledge for possession of drugs, which required determination by the jury. 40 It is submitted that the formal admission of possession by the appellant did not remove the obligation from the prosecution to prove possession, and accordingly it was submitted that the Learned Sentencing Judge erred in failing to properly direct the jury in relation to this element of the offence. 41 The Crown submitted that whilst the Crown conceded that His Honour did not direct the jury in relation to the "knowledge" aspect of the offence, it was submitted that on the basis of the way the trial was conducted, from the opening legal argument right through to sentence, the trial was conducted on the basis that there was no dispute as to possession. 42 The Crown submitted that the relevant starting point is that prior to the evidence commencing, in the trial the appellant's solicitor, Mr Boyden, told the Court that (Transcript p39): "Well the issue will be for the jury whether she had those drugs in her possession for the purpose of supply". 43 Further Mr Boyden went on to tell the Court that: "…. I have instructions to admit possession in a legal sense pursuant to 184 of the Evidence Act 1995". 44 On 29 May 2001, relevantly the second day of the trial, the following admission occurred in evidence (with the formal signed admission tendered as Exhibit A) at p7: " His Honour: Ladies and gentlemen it's permissible in a Court of Law to make admissions and I'm told by the respective Counsel that Miss Frazer in your presence will make admissions and perhaps a copy of this document that's in writing and signed by her will be available to you. Miss Frazer would you please stand. Tracy Ann Frazer you being the accused in this matter do you formally make the following admission that you were in possession of 18.8 grams of methylamphetamine on 21 January 2000. Accused: Yes your Honour. His Honour: Did you make that admission after receiving legal advice about it from your solicitor Mr Boyden? Accused: Yes your Honour". 45 In Uniform Evidence Law (S. Odgers, 4th Edition), I refer to the following analysis at p443 as to the application of s184 of the Evidence Act: "It has been held at common law that while evidence need not be called by the Prosecution in respect of such admitted matters of fact, the formal admission does not preclude such evidence being adduced; R v Smith [1981] 1 NSWLR 193.Under the Act, it is arguable that the evidence would not be relevant as the fact is no longer in issue (see s55). However, that is not the approach taken by the courts (R v JGW NSWCCA [23 June 1999]. Of course, a court may exercise its exclusionary powers under ss135 and 137. If the parties make an agreement as to facts under s191, evidence may not be adduced to contradict or qualify an agreed fact unless the court gives leave". 46 I adopt what is said by the learned author, but in any event, the formal admission by the appellant and the manner in which the trial was conducted from beginning to end was that there was no dispute that she had the package and she volunteered the package when asked if she had anything that she should not have, and that she admitted her earlier statements concerning the package were lies. 47 An examination of the Remarks on Sentence and the Summing Up by His Honour made it clear that the issue in the trial was whether the jury accepted her explanation, namely that she had the drugs for purposes other than supply (Summing Up 30.5). 48 There was therefore no error on the part of His Honour in failure to provide a direction as to the mental element of possession. I do not consider that the first limb of Ground One is made out. Ground 1(B) Possession other than for supply 49 Mr Odgers SC, for the appellant, submitted that the appellant had the capsule in her possession for safekeeping with the intention of returning it. It was submitted that apart from the appellant's testimony, there was other evidence to support such a finding. The fact that similar capsules were found in the console of the car, which were identified as belonging to Rindfleish and the appellant's genuine fear of the likely violent response from Rindfleish if she told the police that the capsule belonged to him. 50 It was further submitted by the appellant that His Honour failed properly to articulate the distinction between supply in law and holding something to give back to its owner as held in R v Carey (1990) 50 A Crim R 163. 51 The Crown submitted that the Learned Sentencing Judge was abundantly clear in his Summing Up that to displace the "deeming " provision it was necessary for the appellant to establish on the balance of probabilities that her possession was otherwise than for supply. 52 The relevant passages in the Summing Up by Twigg DCJ, the Crown submitted provided a more than sufficient distinction between the "supply" that the prosecution had to establish and the "return to owner" that the appellant sought to establish. I set out the Summing Up at p7: "You should find her guilty unless after considering all the evidence, including what the accused has said to you, you are also satisfied that it is more probable (sic) than not that she had the drug in her possession for some purpose other than supply. The real issue in this case as been said to you by both Counsel is whether or not the accused can satisfy you that she had the drugs in her possession for a purpose other than supply. Whereas to establish the offence (sic) that I have been discussing the accused has merely to satisfy you that what she says is more probably true than not. It is the test called the balance of probabilities. The circumstances it must be proved by the accused on the balance of probabilities amounts to the test that it is probable than not that she had it for a purpose other than supply". (SU p7) 53 In the Summing Up His Honour further directed on the issue of differentiating between "supply" in law and the safekeeping of drugs for another: "You should find her guilty unless after considering all the evidence including what the accused has said to you, you are also satisfied that it is more probable than not that her possession was not for supply." (SU p29.6) 54 Before turning to the issue raised in Carey, it is probably appropriate to set out s29 of the Act: "S29 A person who has in his or her possession an amount of prohibited drug which is not less than the trafficable quantity of the prohibited drug shall, for the purpose 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;" 55 Section 29 does not create an offence. It is an evidentiary provision designed to facilitate proof of the offence of supplying a prohibited substance under s25 of the Act. The onus was on the appellant to prove on the balance of probabilities the circumstances in s29(a). 56 In Carey, the facts were that the appellant was minding the prohibited drugs for her sister to be returned to her the next day. Her defence was that she was in possession of the drugs with the intention only of returning them to her sister. The issue however in that appeal was that the Trial Judge rejected the argument that in such circumstances possession did not amount to supply within ss3 or 29 of the Act. Hunt J, as he then was, in Carey, with whom Wood and Finlay JJ agreed, held at p164 that: " The Crown case in fact relied upon the deeming provisions of s29, not upon the extended definition of "supply" in s3. Those deeming provisions apply as soon as possession has been established, and that possession is thereupon deemed to be possession for supply". 57 As with the present case, possession was conceded in Carey and thus the principle established there accords with the proceedings in the present case. In Carey, Hunt J, as he then was, went on to hold that the interpretation of "supply" within the meaning of ss3 and 29 of the Act does not include the situation where a person has obtained a quantity of drugs on behalf of another person and where the mere transfer of physical control of the drugs from that person who has had those drugs to that other person. Hunt J held that the only consequence of this construction was to distinguish the mere delivery of drugs from the more serious offence. It was thus held that the Trial Judge in Carey had erred (p168): "She could also be found guilty of supplying those drugs in accordance with ss25 and 29 if the jury do not accept her statements as to her intention merely to return them to their owner. She would then be liable to a sentence of imprisonment for 15 years. But she should be entitled to have the jury determine that issue before she is found guilty of that far more serious offence. The ruling by the judge prevented her from obtaining that determination". 58 The issue in these proceedings was that the jury should understand the meaning of the word "supply", and the precise nature of the Defence case. 59 In the Learned Trial Judge's Summing Up, His Honour explained to the jury the elements of the offence, including an explanation of the meaning of "supply", and that the jury needed to be satisfied that it was more probable than not that she had the drug in possession for some purpose other than supply. His Honour made it clear that the onus on the appellant to establish her defence was a civil onus. 60 Counsel for the appellant twice sought to have a direction in terms of Carey, given that on the second of those occasions, His Honour indicated that he had dealt with the matter sufficiently. 61 In the examples that His Honour used in explaining supply, he said that it included "furnishing it, or making it available to some person". The use of the words "making it available" would cover some form of bailment or temporary control with the intention that it be returned. This was not properly explained by His Honour to the jury. 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. 63 Even though it is clear from the Summing Up that the appellant's case was that she was a minder of the drugs on a temporary basis, this was not adequately explained to the jury in the examination of the offence, and the defence raised by the appellant. 64 The Summing Up therefore failed to adequately set out the case for the defence, and I thus consider that there was a risk of a miscarriage of justice, and that the conviction should be quashed and a new trial ordered.

R v Frazer

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (1)

Cited By (8)