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Court of Criminal Appeal 30 November 2001

R v Barnier

[2001] NSWCCA 459

Drugs
CRIMINAL LAW DEEMED SUPPLY HEROIN

Citation: R v Barnier [2001] NSWCCA 459
Court: NSW Court of Criminal Appeal
Date: 30 November 2001
Judge(s): Ipp AJA, Hidden J, Barr J

Background

Federal Police officers executed a search warrant at a Wetherill Park house occupied by the appellant. When asked whether anything was present that should not be, the appellant volunteered that a man had visited the previous day and asked to leave a package in the kitchen. The appellant acknowledged he knew the package contained some kind of drug but denied any ownership or involvement, saying he believed he had been "set up."

Police located a clear plastic bag of methyl-amphetamine concealed in a gap at the base of a skirting board near a pantry cupboard. There were no fingerprints on the package and no other indicators of supply activity, such as scales or additional bags. The appellant did not give evidence at trial.

The appellant was convicted in the District Court on a charge of supplying methyl-amphetamine, with the Crown relying on the deeming provision in section 29 of the Drug Misuse and Trafficking Act 1985 (which treats possession of a traffickable quantity as deemed supply). He appealed to the Court of Criminal Appeal on the basis that the verdict was unreasonable and unsupported by the evidence.

  • Whether the evidence was sufficient to establish that the appellant was in possession of the drug, specifically whether he exercised dominion or exclusive control over it
  • Whether the jury's verdict was unreasonable given the absence of direct evidence linking the appellant to the drug beyond his own account

Decision

The Court of Criminal Appeal upheld the conviction, dismissing the appeal unanimously. Hidden J, with whom Ipp AJA and Barr J agreed, found there was ample evidence from which the jury could conclude the appellant had exclusive control over the drug.

Central to this conclusion was the fact that, while the evidence was silent on whether anyone else occupied the house, the trial had proceeded on the common understanding that the appellant was the sole occupant. The woman present at the time of the search had been excluded by unchallenged evidence from any involvement, and no suggestion was ever raised that another person had access to the premises.

The manner in which the drug was secreted in the kitchen was also significant. The concealment of the package in a gap in the skirting board, in the appellant's home, under circumstances where no one else appeared to have access, was sufficient to support a finding of exclusive control. The jury was entitled to treat the appellant's account sceptically, and their verdict demonstrated they were not satisfied on the balance of probabilities that he was merely minding the drug for another person.

On the separate question of whether the drug was possessed for a purpose other than supply, the Court noted the jury was entitled to find against the appellant on that issue as well. No contrary argument was pressed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Possession in a deemed supply case requires the Crown to prove not only awareness of the drug but also that the accused exercised dominion over it, meaning an intention and ability to exercise exclusive control.
  • Where a defendant is the apparent sole occupant of a premises and no other person is shown to have access, concealment of a drug within that premises can be sufficient to establish exclusive control.
  • The Court distinguished this case from the Queensland decision in Solway (1984), where undisputed evidence showed multiple occupants had access to the relevant space, a factual distinction the Court treated as decisive.
  • A jury is entitled to reject an accused's account that they were merely minding drugs for a third party, and a verdict reflecting that rejection is not necessarily unreasonable.
  • Under the deeming provision in section 29 of the Drug Misuse and Trafficking Act 1985, an accused may avoid a supply conviction by satisfying the jury on the balance of probabilities that possession was for a purpose other than supply, following R v Carey (1990) 20 NSWLR 292.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 29

Cases
- R v Carey (1990) 20 NSWLR 292 (NSW Court of Criminal Appeal)
- Solway (1984) 11 ACrim R 449 (Queensland Court of Criminal Appeal)