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Court of Criminal Appeal 16 December 2011

Alliston v R

[2011] NSWCCA 281

Also reported as (2011) 217 A Crim R 323
Drugs
CRIMINAL APPEAL NO ADVERSE CONSEQUENCE FOR APPELLANT NO MISCARRIAGE OF JUSTICE NO LESSER SENTENCE WARRANTED AT LAW APPEAL DISMISSED.

Citation: Alliston v R [2011] NSWCCA 281
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2011
Judge(s): McClellan CJ at CL; Simpson J; Fullerton J

Background

The appellant was a passenger in a vehicle travelling from Sydney to Townsville when police stopped the car near Glen Innes for a random breath test. A search of the vehicle uncovered methylamphetamine totalling over 1 kilogram: approximately 129 grams in a purse belonging to the appellant, and approximately 973 grams concealed in the rear of the vehicle. The appellant's fingerprints were found on the bags in the rear of the car.

At trial, the appellant gave evidence that her partner had asked her to carry the drugs in her purse, and that she had no knowledge of the drugs secreted in the back of the vehicle. She described herself as a passive carrier of drugs that belonged to someone else and were not intended for any purpose involving her.

The jury acquitted the appellant of supplying a large commercial quantity (the charge requiring a combined weight of at least 1 kilogram) but convicted her of the statutory alternative: supplying not less than a commercial quantity of methylamphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The trial judge imposed a sentence of 7 years with a non-parole period of 3 years and 6 months. The appellant appealed against conviction and sought leave to appeal against the sentence.

  • Whether the trial judge should have directed the jury on the principle established in R v Carey (1990) 20 NSWLR 292, namely that a person who has physical possession of drugs but intends only to return them to the owner may not be guilty of supply.
  • Whether the trial judge's summing up was otherwise adequate.
  • Whether a lesser sentence was warranted having regard to the applicable sentencing principles, including the High Court's decision in Muldrock v The Queen [2011] HCA 39.

Decision

All three judges agreed that the trial judge erred in declining to direct the jury on the Carey principle. The Carey principle concerns a scenario where a person has physical control of drugs but intends to return them to the owner rather than to distribute them onward. The Court held that, on the appellant's own evidence, this direction should have been left to the jury. The appellant's account, that she had merely been asked to carry the drugs in her purse and had no intention of dealing with them independently, raised at least an arguable basis for the direction.

However, the Court unanimously concluded that the failure to give the direction caused no miscarriage of justice. To sustain the commercial quantity conviction, the jury necessarily had to be satisfied that the appellant was in possession (for supply) of the drugs found in the rear of the vehicle, since it was only by combining the weights of the purse drugs and the back-seat drugs that the total exceeded 250 grams. The jury must therefore have rejected the appellant's evidence that she was unaware of the drugs in the back of the car. The Carey direction, even if given, could not have affected that finding, because Carey addresses only the drugs in the purse, not those concealed elsewhere in the vehicle.

On sentencing, the Court considered the appellant's submissions in light of Muldrock v The Queen, which addressed the correct approach to standard non-parole periods. The Court found that no lesser sentence was warranted in law and refused the sentence appeal.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • The Carey principle, drawn from R v Carey (1990) 20 NSWLR 292, recognises that a person who has physical custody of drugs but intends only to return them to the owner may not be engaged in "supply" within the meaning of the Drug Misuse and Trafficking Act 1985. Where evidence at trial raises this possibility, the trial judge must direct the jury accordingly.
  • An error in failing to give a Carey direction does not automatically result in a new trial. Where the jury's verdict must have rested on findings that the direction could not have disturbed, no miscarriage of justice arises.
  • Under s 29 of the Drug Misuse and Trafficking Act 1985, possession of a traffickable quantity of a prohibited drug is deemed to be possession for supply unless the accused proves otherwise on the balance of probabilities.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the combined weight of separate drug packages can be aggregated to establish the requisite quantity for a charge under s 25(2), but the Crown must prove the accused's knowledge of or possession over each package relied upon for that purpose.
  • No error in sentencing was established by reference to Muldrock v The Queen, and the Court found the 7-year sentence with a 3 year and 6 month non-parole period was not outside the range warranted by law.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25, 29, 32, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Carey (1990) 20 NSWLR 292
- Muldrock v The Queen [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357
- Dinsdale v R (2000) 202 CLR 321
- Maginnis [1987] AC 303
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Blair [2005] NSWCCA 78
- R v Frazer [2002] NSWCCA 59; 128 A Crim R 89
- R v Liberti (1991) 55 A Crim R 120
- R v Small (1991) 54 A Crim R 460
- R v Tuckey (1991) 57 A Crim R 468
- R v Asim (unreported, NSWCCA, 3 March 1997)
- R v Fong (unreported, NSWCCA, 29 November 1996)
- R v EAS (unreported, NSWCCA, 26 July 1990)
- O'Brien v Smith (unreported, NSWSC, 9 May 1986)