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Court of Criminal Appeal 9 December 2010

Davis v Regina

[2010] NSWCCA 258

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION POSSESSIN OF DRUG THE ONLY ISSUE

Citation: Davis v Regina [2010] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 9 December 2010
Judge(s): McClellan CJ at CL, Kirby J, Hoeben J

Background

The appellant was convicted by a jury in the District Court of supplying a prohibited drug (MDMA, commonly known as ecstasy) contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW). The charge related to 300 ecstasy tablets found in the wardrobe of his home unit in Dee Why during a police search conducted on 26 February 2007. The search followed the appellant's arrest in Queensland, where he was found in possession of cocaine and drug-related paraphernalia.

The Crown case rested substantially on circumstantial evidence. The drugs were found alongside cash, resealable plastic bags, multiple mobile phones, SIM cards, and a security licence in the appellant's name, all located within his sole-occupancy unit. A police expert gave evidence that these items were consistent with the paraphernalia of drug supply.

The appellant gave evidence at trial. He acknowledged involvement in cocaine supply in Queensland but denied knowledge of the ecstasy tablets in his wardrobe. He attributed those drugs to a friend, Terrence Day, who had been staying at the unit for approximately five days before the pair travelled to Queensland. The central factual dispute for the jury was whether the appellant was in possession of the ecstasy tablets.

  • Whether a comment made by the trial judge suggested to the jury that the appellant was obliged to give evidence, thereby creating an unfair impression about the right to silence
  • Whether the trial judge's directions on the drawing of inferences were adequate in the circumstances
  • Whether the jury's verdict of guilty was unreasonable or unsupported by the evidence

Decision

Ground 1: Judge's comment on the accused giving evidence. The Court examined a remark made by Blackmore DCJ during the trial that the appellant contended implied he had an obligation to testify. The Court rejected this ground, finding that, when the comment was read in context of the charge as a whole, it did not convey to the jury that the appellant was required to give evidence. No application for redirection had been made by trial counsel at the time, which the Court noted was consistent with the comment not having the effect contended.

Ground 2: Direction on inferences. The appellant argued the jury was not adequately directed on how to approach the drawing of inferences from the circumstantial evidence. The Court found that the only live issue at trial was possession of the ecstasy tablets, and the directions given were adequate for that narrow factual question. The Court declined to grant leave under the relevant rule, agreeing with the Crown that the charge was sufficient given the limited scope of the contested issue.

Ground 3: Unreasonable verdict. Applying the test from M v The Queen (1994) 181 CLR 487, the Court asked whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt. The Court concluded it was not only open but that the Crown case was reasonably strong. The appellant's account that the drugs had been placed in his wardrobe without his knowledge was characterised as capable of rejection, and the jury's verdict was described as unsurprising in light of the evidence.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing all three grounds of appeal, the Court of Criminal Appeal confirmed that a trial judge's comments must be read in the context of the charge as a whole when assessing whether they impermissibly suggested an obligation to testify.
  • The absence of any application for redirection by trial counsel at the time of the allegedly problematic remark was treated as a relevant indicator that the remark did not carry the meaning later attributed to it on appeal.
  • Where the contested issue at trial is narrow, directions on circumstantial evidence and inference drawing will be assessed against that limited scope rather than evaluated in the abstract.
  • Under the test in M v The Queen, an appellate court must pay full regard to the jury's primary role as fact-finder and its advantage of having seen and heard witnesses, before concluding a verdict was unreasonable.
  • Sufficient evidence existed here to sustain the conviction, given the quantity of drugs, the cash, the paraphernalia, the appellant's sole occupation of the unit, and the expert evidence about the indicia of drug supply.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 29

Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531
- The Queen v Clarke (1995) 78 A Crim R 226