Citation: [1999] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 30 April 1999
Judges: Wood CJ at CL; Hidden J; Smart AJ
Background
The appellant was convicted in the District Court of supplying a prohibited drug (methylamphetamine) under s 25(1) of the Drug Misuse and Trafficking Act 1985. Because the weight of the drug exceeded three grams, the charge relied on the "deemed supply" provision in s 29 of that Act, which treats possession of a drug above a certain quantity as supply without the Crown needing to prove an actual transaction.
The appellant was a pensioner and self-described regular heroin user. Police searched his flat, which he shared with several other occupants, and found methylamphetamine at the base of a pot plant in the living room. They also found heroin under a lounge cushion, a large sum of cash, electronic scales, small plastic bags, and a quantity of balloons. On discovery of the drugs, the appellant made admissions to police, though his account shifted materially at several points before and during trial.
The appellant received a minimum term of eighteen months' imprisonment with an additional six-month term. He appealed the conviction on four grounds: inadequate jury directions on possession, inadequate directions about his own evidence, error in the directions on inferential and indirect evidence, and that the verdict was unsafe and unsatisfactory.
Legal Issues
- Whether the trial judge's directions on the element of possession were legally sufficient
- Whether the trial judge was required to direct the jury that the Crown must prove the appellant had hidden the drugs
- Whether the jury needed a special direction on how to assess the appellant's own evidence, including a requirement that his explanation for his admissions be negatived beyond reasonable doubt
- Whether the directions on the use of inferential and indirect evidence (including the large sum of cash and other drug supply indicia) were adequate and accurate as to the Crown's onus
- Whether the verdict was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912
Decision
Directions on possession: The Court refused leave to argue this ground. It found the trial judge's directions were clear, succinct, and consistent with established case law. No objection had been taken to those directions at trial. The Court also rejected the argument that the judge was required to direct the jury that the Crown had to prove the appellant had physically hidden the drugs, finding such a direction would have introduced an immaterial issue and imposed a burden on the Crown that did not legally exist.
Directions on the appellant's evidence: Leave was again refused on these grounds. The Court confirmed there is no legal requirement for a trial judge to direct the jury that the accused's explanation for an admission must be negatived beyond reasonable doubt. The conventional direction, requiring proof of each element of the offence beyond reasonable doubt, is the correct one and was given clearly in this case. The Court also rejected the proposed approach of treating the accused's evidence as deserving less critical scrutiny than other evidence.
Inferential evidence directions: Leave was granted on this ground but the argument was not made good. The directions told the jury they must be very certain before drawing an inference, and certain that no contrary inference could reasonably be drawn. The Court found those directions were adequate and did not suggest any lesser onus applied to the Crown. The Court affirmed the established position that evidence of large cash holdings and supply indicia is relevant and admissible on a deemed supply charge, and the Crown is not forced to elect between relying on the statutory presumption of possession or positive evidence of the purpose of supply.
Unsafe and unsatisfactory verdict: The Court dismissed this ground. The drugs were found in the room where the appellant slept. He made admissions about both the nature and ownership of the drugs immediately on their discovery. The Court noted significant and material inconsistencies in his account across the ERISP, police interview, and trial evidence, including changing explanations for why he initially claimed the methylamphetamine was his. The jury were entitled to accept the admissions as true and to find guilt beyond reasonable doubt.
Orders Made
- Appeal dismissed
- Conviction and sentence confirmed
Key Takeaways
- A trial judge is not required to direct the jury that the Crown must prove a defendant physically concealed or hid drugs in order to establish possession; such a direction would impose a burden on the Crown that does not exist at law.
- No separate direction is required that an accused person's explanation for an admission must be negatived beyond reasonable doubt. The conventional reasonable doubt direction on the elements of the offence is sufficient.
- Evidence of large unexplained cash holdings and other indicia of drug supply is relevant and admissible in a deemed supply prosecution, and the Crown is not required to elect between the statutory presumption of possession and positive circumstantial evidence going to purpose.
- In dismissing the unsafe verdict ground, the Court of Criminal Appeal confirmed that where an accused makes contemporaneous admissions and later gives materially inconsistent accounts at trial, a jury is entitled to act on those admissions.
- Failure to object to jury directions at trial is a relevant factor when leave is sought on appeal to argue those directions were inadequate.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases:
- He Kaw Teh (1985) 157 CLR 523
- Saad (1987) 61 ALJR 243
- Williams v Douglas (1949) 78 CLR 523
- Filipetti (1978) 13 A Crim R 335
- Bazeley (NSWCCA, 23 March 1989)
- Sobolewski (NSWCCA, 21 April 1998)
- Ellis (NSWCCA, 27 February 1987)
- Donohoe (NSWCCA, 2 August 1993)
- McMahon (NSWCCA, 23 June 1978)
- Hughes & Curtis (1982) 10 A Crim R 125