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Court of Criminal Appeal 12 March 2002

R v Frazer

[2002] NSWCCA 59

Also reported as (2002) 128 A Crim R 89
Drugs
APPEAL AGAINST CONVICTION SUPPLY PROHIBITED DRUG DIRECTIONS AS TO MEANING OF "SUPPLY" MISCARRIAGE OF JUSTICE FAILURE TO EXPLAIN ACCUSED'S CASE

Citation: R v Frazer [2002] NSWCCA 59
Court: New South Wales Court of Criminal Appeal
Date: 12 March 2002
Judge(s): Wood CJ at CL, Sully J, Dowd J

Background

The appellant was convicted in the District Court of supplying a prohibited drug, namely 18.8 grams of methyl amphetamine. The quantity exceeded the trafficable threshold under the relevant legislation, which triggered a statutory presumption that possession was for the purpose of supply.

The appellant did not dispute that she had the drug in her possession. Her defence was that a companion had handed her the capsule containing the drugs when their vehicle stopped at a service station, and that she had intended to return it to him once he had paid for the petrol. In short, she maintained she was a temporary holder of the drugs, not someone who possessed them for the purpose of supplying them to others.

The trial judge directed the jury on the meaning of "supply" and on the onus resting on the accused to establish on the balance of probabilities that her possession was for a purpose other than supply. Defence counsel twice requested a direction based on the Court of Criminal Appeal's earlier decision in R v Carey, which addressed whether returning drugs to their owner constitutes "supply." The trial judge declined to give such a direction, indicating he considered the matter had already been sufficiently addressed.

  • Whether the trial judge's directions adequately explained the legal meaning of "supply" in the context of a temporary or custodial possession.
  • Whether the trial judge failed to properly relate the evidence to the accused's specific defence, as required by the decision in R v Carey.
  • Whether the summing up adequately explained to the jury that, if the accused was merely a temporary minder of the drugs, she was entitled to be acquitted.
  • Whether these deficiencies gave rise to a miscarriage of justice warranting a new trial.

Decision

The Court of Criminal Appeal upheld the appeal on the basis that the summing up was inadequate in a critical respect. In R v Carey, the Court had established that "supply" does not include the mere transfer of physical control of drugs by a person who has been holding them on behalf of, and returning them to, their true owner. The trial judge's directions did not bring this qualification to the jury's attention in a clear or useful way.

The trial judge had defined "supply" in terms that included selling, giving, furnishing, or "making available" a substance to another person. The Court noted that the phrase "making it available" could, on a natural reading, encompass a temporary handover with the intention of return, which is precisely the conduct the appellant described. Without express guidance clarifying that such conduct may fall outside the definition of supply, the jury was left without the tools to properly evaluate the defence case.

The Court found particularly telling the fact that the jury itself returned mid-deliberation to ask for clarification on the meaning of "supply," flagging it as a "grey area." Despite this signal, the directions given in response did not remedy the earlier deficiency. The jury was never told, in direct terms, that if they were satisfied on the balance of probabilities that the appellant was merely a temporary minder returning the drugs to their owner, she was entitled to an acquittal.

The second ground of appeal, concerning the failure to relate the evidence to the issues, was treated as substantially overlapping with the first ground. In light of the orders made, the Court did not separately examine it in further detail.

Orders Made

  • The appeal against conviction was upheld.
  • The conviction and sentence imposed by Twigg DCJ were quashed.
  • A new trial was ordered.

Key Takeaways

  • A direction on "supply" that defines the word as selling, giving, furnishing, or "making available" a substance, without further qualification, may be inadequate where the accused's case is that she was a temporary custodian returning drugs to their owner.
  • Under the principle established in R v Carey, returning drugs to their true owner, by a person who has merely held them temporarily, does not constitute "supply" within the meaning of the Drug Misuse and Trafficking Act 1985.
  • Where the accused's entire defence turns on a specific legal qualification to a statutory definition, the summing up must expressly explain that qualification and connect it to the evidence. A general recitation of the burden of proof does not satisfy this obligation.
  • A jury returning mid-deliberation to request clarification on a key definitional term is a strong indicator that the existing directions were insufficient on that point.
  • The Court of Criminal Appeal confirmed that failing to adequately explain the accused's case in the context of the offence charged, where that failure creates a real risk of a miscarriage of justice, is sufficient ground to quash a conviction and order a new trial.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW)

Cases
- R v Carey (1990) 50 A Crim R 163
- Pereira v DPP (1988) 82 ALR 217
- R v Popa (1991) 53 A Crim R 102
- R v Smith [1981] 1 NSWLR 193
- R v JGW (Unreported, NSWCCA, 23 June 1999)