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District Court 14 June 2018

R v Aaron Brian Aston

[2018] NSWDC 422

Drugs
CRIME PRACTICE AND PROCEDURE ADJOURNMENT APPLICATION FUTILE ADJOURNMENT REFUSED

Citation: R v Aaron Brian Aston [2018] NSWDC 422
Court: District Court of New South Wales
Date: 14 June 2018
Judge(s): Neilson DCJ

Background

The accused was charged with supplying a prohibited drug, specifically 3,4-methylenedioxyamphetamine (MDA), contrary to the Drug Misuse and Trafficking Act 1985 (NSW). He pleaded not guilty. The prosecution case arose from an incident at Sydney Olympic Park on 10 December 2016, when a drug detection dog singled out the accused at a dance party.

When confronted by police, the accused admitted he was carrying approximately 110 pills. He told police he had accepted the package from an unidentified man outside the venue, agreeing to transport the pills past a police inspection barrier and into the dance party in exchange for a promised payment of $600. His account was that he intended to hand the pills back to the same man once inside.

The accused applied for an adjournment before trial to seek additional evidence in support of what his counsel called a "Carey defence." That defence, drawn from R v Carey (1990) 20 NSWLR 292, concerns whether a person who merely holds or returns drugs to their owner is properly characterised as "supplying" them within the statutory definition.

Legal Issues

  • Whether the accused's proposed adjournment to gather evidence for a "Carey defence" had any prospect of advancing his case.
  • Whether the accused's conduct, on his own account of events, constituted "supply" within the meaning of section 3 of the Drug Misuse and Trafficking Act 1985.
  • Whether the accused could be characterised as a passive minder of drugs rather than an active participant in the distribution chain.

Decision

Issue 1: Whether a Carey defence was available on the accused's own case

The court found the adjournment application wholly futile because the accused's own account of events precluded the Carey defence from operating in his favour (at [7]). The accused did not dispute the core facts: he accepted approximately 110 pills from an unidentified man, agreed to carry them through a police inspection point in exchange for $600, and intended to return them to that man inside the venue (at [4], [14]). No additional evidence could alter those foundational circumstances (at [17]).

Issue 2: Whether the accused's conduct amounted to "supply"

The District Court held that the accused was, within the statutory definition in section 3 of the Drug Misuse and Trafficking Act 1985, delivering the drugs for supply (at [15]). He had taken possession from an unknown person and intended to return them so that person could on-supply them to attendees at the dance party. The large quantity of pills, approximately 110, meant the only rational inference was that they were intended for distribution rather than personal consumption (at [15]).

Issue 3: Whether the accused was a passive minder

The court rejected the characterisation of the accused as a mere passive minder of drugs. He actively performed a role in the distribution chain by physically transporting the pills through a police checkpoint, becoming part of the supply network (at [16]). His conduct went beyond passive custody: he facilitated the movement of drugs toward the point of ultimate distribution to dance party attendees (at [16]).

Issue 4: Reservation as to a Carey direction at trial

Despite refusing the adjournment, the court expressly reserved its position on whether a Carey direction would ultimately be given to the jury. Neilson DCJ cautioned that this question would depend on the full body of evidence as it emerged at trial (at [18]).

Orders Made

  • Application for adjournment dismissed.

Key Takeaways

  • A Carey defence, which addresses whether a person who merely holds or returns drugs to their owner has "supplied" them under the Drug Misuse and Trafficking Act 1985, is unavailable where the accused's own account of events places him squarely within the statutory definition of supply (at [14]-[15]).

  • Under section 3 of the Drug Misuse and Trafficking Act 1985, a person who transports drugs from one location to another as part of an agreed scheme to facilitate their on-supply by another person is "delivering for supply," even if the transporter's immediate intention is to return the drugs to the person who gave them (at [15]).

  • The District Court confirmed the analysis in R v Carey (1990) 20 NSWLR 292 and Alliston v R [2011] NSWCCA 281 that active participation in moving drugs through a distribution chain is not saved by characterising the accused as a passive minder (at [16]).

  • Refusing the adjournment, the court applied the principle that where additional evidence could not alter the legal consequences flowing from the accused's own admitted facts, seeking that evidence is a futile exercise (at [7], [17]).

  • The decision does not finally resolve whether a Carey direction will be given at trial: the court explicitly preserved that question for determination after all evidence has been received (at [18]).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985

Cases
- Alliston v R [2011] NSWCCA 281
- R v Carey (1990) 20 NSWLR 292
- R v Maginnis [1987] 1 AC 303