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Court of Criminal Appeal 24 May 2001

R v Bera

[2001] NSWCCA 205

Also reported as (2001) 119 A Crim R 552
Drugs
CRIMINAL LAW JOINT POSSESSION FOR SUPPLY REQUIREMENT OF KNOWLEDGE

Citation: R v Bera [2001] NSWCCA 205
Court: New South Wales Court of Criminal Appeal
Date: 24 May 2001
Judges: Stein JA; Foster AJA; McClellan J

Background

The appellant was convicted of two offences under s 25(2) of the Drug Misuse and Trafficking Act 1985 following a judge-alone trial before Woods DCJ in the District Court. He pleaded guilty to one count of supply of a commercial quantity of methylamphetamine (between 250g and 1kg) over a period from May to September 1997. He contested a second count involving supply of a large commercial quantity, being more than 1kg, on a single date in September 1997.

The second count arose from an incident on 19 September 1997, when police found approximately 1.885kg of methylamphetamine in a sports bag on the rear floor of a car the appellant was driving. The Crown alleged joint possession for supply with the car's owner, David Parker, who was a passenger. Both men denied knowledge of the bag. No fingerprints were found on any items, and neither man participated in a formal police interview.

The conviction rested on circumstantial evidence, including listening device recordings from Parker's home and a telephone intercept. Critically, a recording from five days earlier captured the appellant and Parker discussing drug quantities and packaging amphetamine, with references to amounts including "fourteen pounds." The appellant acknowledged in evidence that he had participated in breaking up a large quantity of drugs on that occasion.

  • Whether the conviction was unreasonable given the circumstantial nature of the evidence, particularly as to the appellant's knowledge of the drugs in the car and their quantity.
  • Whether knowledge of quantity could properly be inferred from the surrounding circumstances, including events on a prior occasion.
  • Whether the trial judge complied with s 17 of the Criminal Procedure Act 1986 by sufficiently articulating the principles of law applied and the findings of fact relied upon in reaching the verdict.

Decision

On the question of reasonable verdict, the Court of Criminal Appeal found no error in the trial judge's approach. His Honour had correctly identified the relevant legal framework, including the need to prove knowledge of the quantity of drugs involved, and applied the test for circumstantial evidence: that the Crown must demonstrate no reasonable hypothesis consistent with innocence remained available. The Court found that the inferences drawn from the circumstances were rationally open on the evidence.

The listening device recording from 14 September 1997 was central to the reasoning. The Court accepted that the trial judge was entitled to infer from the appellant's direct involvement in handling a large quantity of drugs five days earlier, combined with his ongoing relationship with Parker in the supply trade, that the appellant had the requisite knowledge on 19 September 1997. The defence argument that a falling-out between the appellant and Parker meant the appellant did not know what was happening on the day of arrest did not displace this inference.

On the s 17 ground, the Court applied the principles from Fleming v The Queen (1998) 197 CLR 250, which establish that a failure to include in a judge-alone judgment the principles of law applied and the findings of fact relied upon constitutes a wrong decision on a question of law. The Court reviewed the trial judge's reasons and was satisfied that, while they could have been more detailed, they sufficiently exposed the reasoning process linking the legal principles, the factual findings, and the verdict. The Court observed that the standard does not require exhaustive articulation, provided the reasoning chain is discernible.

The Court unanimously dismissed the appeal, with Foster AJA and McClellan J both agreeing with Stein JA's reasons.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Knowledge of the quantity of drugs involved is a required element of a charge under s 25(2) of the Drug Misuse and Trafficking Act 1985, and that knowledge may be established by inference from the surrounding circumstances.
  • Where an accused has directly participated in handling a comparably large quantity of the same drug only days before the offence, a trial judge is entitled to treat that as a circumstance supporting an inference of knowledge as to quantity on the charged occasion.
  • Under s 17 of the Criminal Procedure Act 1986, a judge sitting alone must include in the judgment the principles of law applied and the findings of fact relied upon; failure to do so amounts to an error of law under s 6(1) of the Criminal Appeal Act 1912, as confirmed in Fleming v The Queen.
  • In dismissing the appeal, the Court confirmed that the obligation under s 17 does not require exhaustive or perfectly detailed reasons, provided the judgment adequately exposes the chain of reasoning that connects the legal principles, factual findings, and the verdict.
  • A bare denial of knowledge by an accused, combined with refusal to participate in a formal interview, does not automatically generate a reasonable hypothesis of innocence sufficient to defeat a circumstantial Crown case.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Procedure Act 1986 (NSW), s 17
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Fleming v The Queen (1998) 197 CLR 250
- R v Winner (1995) 79 A Crim R 528
- M v The Queen (1994) 181 CLR 487
- R v Schubert [2000] NSWSC 1127 (Greg James J, unreported, 5 December 2000)