Citation: Colley v R [2003] NSWCCA 323
Court: NSW Court of Criminal Appeal
Date: 5 November 2003
Judge(s): Studdert J, Barr J, Whealy J
Background
The appellant was convicted in the District Court of supplying a prohibited drug after police stopped his vehicle in the early hours of 20 February 2001. Officers found 57.9 grams of methylamphetamine divided into eighteen resealable bags in the centre console, along with $3,500 cash in the appellant's sock, a further $320 in his wallet, and drug paraphernalia. A subsequent search of his premises uncovered two sets of scales, further syringes, glucose (used as a cutting agent), and other substances including morphine and methadone.
The quantity of methylamphetamine far exceeded the traffickable quantity of 3 grams prescribed under the Drug Misuse and Trafficking Act. By operation of section 29 of that Act, the appellant was therefore deemed to have possessed the drug for supply unless he could prove on the balance of probabilities that possession was for personal use only.
The appellant gave evidence that he had become addicted to methylamphetamine after inadvertently consuming it in September 2000, that he was using up to three grams per day by injection, and that the entire quantity found had been purchased solely for his personal use. The jury rejected that account and returned a guilty verdict. He was sentenced to five years and eight months imprisonment with a non-parole period of four years and three months.
Legal Issues
- Whether evidence admitted at trial without objection, including expert valuation evidence about the drugs, mobile phone records, and evidence from the search of the appellant's premises, was inadmissible and so damaging that the conviction should be set aside (Ground 1)
- Whether the absence of a direction (commonly called an "Edwards direction") concerning a lie told by the appellant caused the trial to miscarry (Ground 2)
- Whether leave should be granted under rule 4 of the Criminal Appeal Rules to raise both grounds on appeal, given that neither had been taken at trial
Decision
On both grounds, the threshold question was whether leave should be granted under rule 4 of the Criminal Appeal Rules to argue points not raised at trial. Relying on the Court's earlier decision in R v ITA [2003] NSWCCA 174 and the dicta of McHugh J in Papakosmas v R (1999) 196 CLR 297, Studdert J affirmed that leave will not be granted unless the Court is satisfied either that the trial judge made an error of law or that the conviction is otherwise a miscarriage of justice.
On Ground 1, the Court examined each category of impugned evidence in turn. Even accepting that some of the evidence may have been subject to challenge under the Evidence Act (particularly sections 80, 135, 136, and 137), the Court was not persuaded that admitting it caused the trial to miscarry. The evidence against the appellant, including the quantity and packaging of the drug, the scales, the cash, and the expert valuation, was cogent. Leave to rely on Ground 1 was refused.
On Ground 2, the appellant argued that the trial judge should have given an Edwards direction warning the jury about the limited use of a lie the appellant had told when first confronted by police. The Court noted that no such direction had been sought at trial, that the Crown had not contended the lie was evidence of guilt, and that counsel for the appellant had apparently made a deliberate forensic choice not to seek the direction. Applying the High Court's reasoning in Dhanhoa v The Queen [2003] HCA 40, Studdert J held that where the prosecution does not rely on a lie as consciousness of guilt, a judge is not generally required to give an Edwards direction unless there is a real danger the jury may misapply the evidence. No such danger existed here.
Barr J and Whealy J each agreed with the reasons of Studdert J without further elaboration.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- Under rule 4 of the Criminal Appeal Rules, a ground of appeal not raised at trial requires leave, and leave will be refused unless the Court is satisfied there was an error of law or the conviction is a miscarriage of justice.
- Section 29 of the Drug Misuse and Trafficking Act operates to deem possession for supply once a quantity exceeds the traffickable threshold, placing the burden on the accused to prove otherwise on the balance of probabilities.
- Refusing leave on Ground 2, the Court of Criminal Appeal confirmed the principle from Dhanhoa v The Queen: an Edwards direction about a lie is not automatically required whenever an accused is found to have been untruthful. It is needed only where the prosecution relies on the lie as evidence of guilt, or where there is a real risk the jury may draw an impermissible consciousness-of-guilt inference.
- A deliberate tactical decision by trial counsel not to seek an Edwards direction is a relevant consideration in the leave inquiry, particularly where seeking such a direction might have drawn unwanted emphasis to a consciousness-of-guilt inference.
- Sufficient evidence of supply existed in the combination of the quantity of drug, its division into pre-packaged portions, its assessed street value, the presence of cutting agents, multiple sets of scales, and a substantial amount of cash, such that the conviction could not be characterised as a miscarriage of justice.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act (NSW), s 29
- Criminal Appeal Rules (NSW), r 4
- Evidence Act (NSW), ss 80, 135, 136, 137
Cases
- Dhanhoa v The Queen [2003] HCA 40
- Edwards v The Queen (1993) 178 CLR 193
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Birks (1990) 19 NSWLR 677
- R v David & Gugea (unreported, NSWCCA, 10 October 1995)
- R v ITA [2003] NSWCCA 174
- R v Lam [2002] NSWCCA 377