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Court of Criminal Appeal 6 November 2014

R v Holden

[2014] NSWCCA 230

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION CHARGE OF DEEMED SUPPLY OF MDMA JUDGE ALONE TRIAL WHETHER VERDICT UNREASONABLE

Citation: Holden v R [2014] NSWCCA 230
Court: Court of Criminal Appeal, NSW
Date: 6 November 2014
Judges: Johnson J, Harrison J, Garling J

Background

The appellant was convicted after a judge-alone trial in the District Court of one count of deemed supply of a prohibited drug, specifically 5.4 grams of MDMA (3,4-methylenedioxymethamphetamine). Police found the drugs in a hotel room at Brighton-Le-Sands after attending a report of a vehicle break-in. The appellant was present, appeared drug-affected, and initially denied then later admitted ownership of the drugs.

Shortly after his arrest, police found 84 small plastic bags in the caged police truck used to transport the appellant. His fingerprint was on one of the bags, and he admitted in evidence that he had concealed them in his clothing and then discarded them in the truck before police became aware of them.

Because the quantity of MDMA exceeded the traffickable threshold under the Drug Misuse and Trafficking Act 1985, the appellant was deemed to have possessed it for supply. The sole issue at trial was whether the appellant had discharged his onus of proving on the balance of probabilities that he held the drugs for personal use rather than supply.

  • Whether the trial judge's verdict was unreasonable or could not be supported having regard to the whole of the evidence (s 6, Criminal Appeal Act 1912).
  • Whether it was open to the trial judge to reject the appellant's uncontradicted evidence that he possessed the drugs for personal use.
  • Whether the appellant had discharged the reverse onus under s 29 of the Drug Misuse and Trafficking Act 1985 to prove possession otherwise than for supply.

Decision

The Court of Criminal Appeal unanimously refused leave to appeal, finding the application wholly without merit. Harrison J (with Johnson J and Garling J agreeing) applied the established test from SKA v The Queen and MFA v The Queen: an appellate court must conduct its own independent assessment of the evidence and ask whether it was open to the tribunal of fact to be satisfied of guilt beyond reasonable doubt, giving appropriate weight to the trial judge's advantage of observing witnesses directly.

The trial judge had rejected the appellant's account on multiple credibility grounds: the vagueness of his evidence about where he purchased the drugs, inconsistencies between his record of interview and his trial evidence, and his conduct in concealing and then discarding the 84 plastic bags. The trial judge found that the only reasonable explanation for discarding the bags was that the appellant knew they would implicate him in supply. Harrison J held that the trial judge was entitled to reach this conclusion.

The Court of Criminal Appeal rejected the appellant's central argument that his Honour was compelled to accept his evidence simply because it was not directly contradicted by other evidence. The absence of direct contradiction does not automatically constitute proof on the balance of probabilities. A finder of fact may disbelieve a witness for reasons articulated in the judgment, even where no contrary evidence has been led.

The evidence relied upon by the appellant pointed, at most, to a colourable argument in his favour. None of the individual factors, nor their combination, necessarily or persuasively established that the drugs were held for personal use. The trial judge's findings remained within the bounds of a reasonable verdict.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Under s 29 of the Drug Misuse and Trafficking Act 1985, once possession of a traffickable quantity is established, the accused bears the onus of proving on the balance of probabilities that possession was otherwise than for supply.
  • A trial judge is not obliged to accept uncontradicted defence evidence. The absence of directly contradicting evidence does not, by itself, satisfy the reverse onus or compel a finding in the accused's favour.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the appellate unreasonable verdict test requires an independent assessment of whether the verdict was open on the evidence, not merely whether it was one reasonable view among others.
  • No error was established in the trial judge's credibility findings, which rested on identifiable inconsistencies in the appellant's accounts and his conduct in concealing and discarding the plastic bags.
  • The cumulative weight of circumstantial evidence, including possession of 84 small plastic bags at the same time as a traffickable quantity of drugs, can support a finding against an accused on the deemed supply reverse onus even without direct evidence of a supply transaction.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6

Cases:
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
- Burrell v R [2009] NSWCCA 193
- Smith v R [2007] NSWCCA 156