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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: Court of Criminal Appeal, New South Wales
Date: 30 November 2001
Judge(s): Ipp AJA, Hidden J, Barr J

Background

The appellant was the occupant of a house at Wetherill Park when federal police officers arrived at around 5.30am with a search warrant. Upon being questioned, the appellant told officers that a man had come to the house the previous day and asked to leave a package there. The appellant acknowledged knowing the package contained some kind of drug but denied it was his or intended for sale, claiming he had been set up.

The appellant led police to the kitchen, where they found a clear plastic bag containing methyl-amphetamine concealed in a small opening in the skirting board near a pantry cupboard. There were no fingerprints on the package and no other indicators of supply such as scales or additional bags. The appellant did not give evidence at trial.

The appellant was convicted by a jury in the District Court on a charge of supplying methyl-amphetamine, with the Crown relying on the deeming provision in the Drug Misuse and Trafficking Act 1985. He appealed to the Court of Criminal Appeal on the ground that the verdict was unreasonable and unsupported by the evidence.

Legal Issues

  • Whether the evidence was sufficient to establish that the appellant was in possession of the methyl-amphetamine, in the sense of exercising dominion or exclusive control over it
  • Whether the jury's verdict was unreasonable given the appellant's account that he was merely minding the drug for another person

Decision

Ground 1: Sufficiency of evidence to establish possession

Hidden J (with whom Ipp AJA and Barr J agreed) rejected the submission that the evidence failed to establish dominion over the drug. The trial judge had correctly directed the jury that the Crown was required to prove not only that the appellant knew the drug was present, but that he had the intention and ability to exercise exclusive control over it.

The appellant's counsel relied on the Queensland decision in Solway (1984), where the undisputed presence of another person with access to the cupboard where drugs were found meant possession could not be established. Hidden J distinguished that case on its facts. In Solway, it was undisputed that another person had placed the drugs in a shared space. In the present case, the trial proceeded on the basis that the appellant was the sole occupant of the house, and the woman present when police arrived was excluded from involvement by unchallenged evidence.

Given the manner in which the drug was secreted in the kitchen and the absence of any suggestion that anyone else had access to the premises, Hidden J found there was ample evidence for the jury to conclude the drug was under the appellant's exclusive control. It was therefore open to the jury to find the element of possession established beyond reasonable doubt.

Ground 2: Purpose of possession

Hidden J also noted that it was open to the jury to find the drug was not held for a purpose other than supply. The trial judge had directed the jury, in accordance with R v Carey (1990), that the appellant would be entitled to acquittal if they were satisfied on the balance of probabilities that he was merely minding the drug. The jury's verdict demonstrated they were not so satisfied.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Establishing possession for the purposes of deemed supply under the Drug Misuse and Trafficking Act 1985 requires proof that the accused had both knowledge of the drug's presence and the intention and ability to exercise exclusive control over it.
  • A defendant's account that they were merely minding drugs for another person is not automatically inconsistent with possession, as confirmed by the Court of Criminal Appeal applying R v Carey (1990) 20 NSWLR 292.
  • Where a trial proceeds on the basis that an accused was the sole occupant of premises, and no other person with access to the relevant area is identified, there may be ample evidence to support a finding of exclusive control.
  • The Queensland decision in Solway (1984) was distinguished on the basis that, unlike the present case, the undisputed presence of another person with access to the drugs in that case made possession impossible to establish.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury is entitled to reject an accused's exculpatory account and to find that the accused was not holding drugs for a purpose other than supply, even absent direct evidence of sale or distribution.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated