Citation: R v Nicodin [2002] NSWCCA 447
Court: NSW Court of Criminal Appeal
Date: 7 November 2002
Judge(s): Simpson J, Carruthers AJ, Mathews AJ
Background
The appellant was convicted in the District Court of supplying not less than the commercial quantity of methylamphetamine (approximately 500 grams), following a trial before Christie DCJ. He was sentenced to five years and nine months imprisonment with a non-parole period of three years and nine months.
The appellant had been arrested after being observed in the company of a man under Australian Federal Police surveillance. When arrested, he was found in possession of a package containing the drug. That physical possession was not disputed.
At trial, the appellant gave evidence that he had been holding the package temporarily at the request of the other man and intended to return it shortly. He denied any knowledge of what the package contained. These two matters, knowledge of the contents and the nature of his custodial arrangement, were the central factual issues at trial.
Legal Issues
- Whether the trial judge misdirected the jury by repeatedly describing only the appellant's knowledge of the package's contents as the matter in dispute, while omitting any direction on the "mere custodian" defence.
- Whether the omission to direct the jury on the principle in R v Carey (that transferring physical control of a drug back to its owner does not constitute supply) constituted a material error in the trial.
Decision
The appeal was disposed of quickly because the Crown properly conceded that one ground of appeal should succeed. The trial judge had directed the jury on at least five occasions that only one matter was in dispute, namely the appellant's knowledge of the drug's identity. This characterisation overlooked the appellant's distinct defence: that he was a mere temporary custodian intending to return the package to the person who gave it to him.
The principle in R v Carey directly applied to that defence. That decision established that a person in possession of a drug with an intention to transfer its physical control back to its owner is not in possession of the drug "for the purposes of supply." The trial judge had indicated during the summing up that he would return to this point but never did. When defence counsel raised the omission in the absence of the jury, the judge declined to supplement the summing up.
Simpson J (with whom Carruthers AJ and Mathews AJ agreed) held that this omission infected the trial process with error. The appropriate remedy was a new trial rather than an acquittal, a position accepted by both parties.
Orders Made
- Appeal against conviction allowed.
- Conviction quashed.
- New trial ordered.
Key Takeaways
- A conviction for drug supply cannot stand where the trial judge fails to direct the jury on a properly raised defence that the accused was a mere temporary custodian intending to return the drug to its owner.
- Under the principle in R v Carey (1990) 20 NSWLR 292, possession of a prohibited drug with the intention of transferring physical control back to its owner does not constitute possession for the purposes of supply.
- Where multiple factual issues are genuinely in dispute at trial, the trial judge's summing up must address each of them. Directing the jury that only one matter is in dispute, when the evidence raises more, constitutes misdirection.
- The Court of Criminal Appeal confirmed that the appropriate remedy for the misdirection here was a new trial rather than a verdict of acquittal.
- The Crown's concession that the appeal should succeed on this ground illustrates that prosecutorial fairness can resolve an appeal without requiring the court to examine all remaining grounds, including the sentence appeal.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 29 (deemed possession for supply)
Cases:
- R v Carey (1990) 20 NSWLR 292 (Hunt, Wood and Finlay JJ)