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Court of Criminal Appeal 27 September 2019

Li v R

[2019] NSWCCA 228

DrugsFirearms & weapons
CRIME APPEALS LEAVE TO APPEAL AGAINST CONVICTION

Citation: Li v R [2019] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 27 September 2019
Judges: Gleeson JA at [1]; Johnson J at [127]; Fagan J at [128]

Background

Following a 32-day trial in the District Court at Parramatta, the applicant was convicted of supplying a large commercial quantity of methylamphetamine (3,784.9g), and possessing two prohibited weapons (electric shock devices, commonly known as tasers). She was sentenced to an effective term of 14 years imprisonment with a non-parole period of 10 years. A separate sentence for ongoing supply of methylamphetamine, to which she had pleaded guilty, was also imposed.

The prosecution case rested on controlled drug purchases made by undercover operatives, recordings of meetings between the applicant and those operatives, and items located in the applicant's locked bedroom and ensuite when police executed a search warrant on a Parramatta apartment. Among those items were several kilograms of crystalline substance, cash, and drug-related paraphernalia. The applicant's son occupied a separate bedroom in the apartment. The applicant disputed that she knowingly and intentionally possessed the drugs and weapons found.

The applicant sought leave to appeal against her convictions, raising concerns about the trial judge's directions on the element of possession. She argued those directions had either improperly confined her evidence to a specific legal defence or had introduced the legally irrelevant concept of joint possession, thereby misleading the jury.

  • Whether the trial judge erroneously directed the jury that the applicant's exculpatory evidence about possession was only relevant to the so-called "Carey defence" (a defence based on the principle from R v Carey (1990) 20 NSWLR 292, which applies where a person possesses drugs solely for the purpose of returning them to their true owner), thereby restricting how the jury could use that evidence.
  • Whether the trial judge's directions on joint possession, given in the context of the taser counts, were a misdirection that misled the jury on all three counts.
  • Whether, taken as a whole, the summing up fairly placed the applicant's case on possession before the jury.
  • Whether the applicant required, and should be granted, leave to appeal, given that trial counsel had not objected to the directions or sought any redirection.

Decision

The Court of Criminal Appeal refused leave to appeal. Gleeson JA (with Johnson J and Fagan J agreeing) found that the trial judge's directions, read as a whole, had not confined the applicant's evidence to the Carey defence in the way the applicant alleged. Her Honour had directed the jury that the applicant's evidence was relevant to the general question of whether she knowingly and intentionally possessed the drugs, and not merely to the more specific Carey defence. The directions correctly left the burden of proof on the Crown regarding all elements of possession.

On the Carey direction specifically, the Court noted that the circumstances of the case, including evidence that the applicant had been told not to disturb the duty-free bag in which drugs were found, naturally raised the question whether her possession (if any) was solely for the purpose of returning drugs to another person. The trial judge's inclusion of a Carey direction in that context was appropriate and did not distort the overall presentation of the issues.

Regarding the joint possession directions given in connection with the taser counts, the Court accepted that those directions addressed more legal ground than was strictly necessary. However, they were not legally incorrect and were not misleading. The Court found the directions could not have undermined or obscured the separate, clearly presented directions on the drug supply count.

Critically, trial counsel had not objected to any of the directions at the time, and had not sought any redirection. The Court treated this as confirmation that the summing up, taken as a whole, left the issues and the burden of proof properly before the jury. No miscarriage of justice was established.

Orders Made

  • The time for filing the notice of application for leave to appeal was extended to 29 March 2019.
  • Leave to appeal against conviction was refused.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a summing up must be assessed as a whole, not by isolating particular passages, to determine whether the jury was fairly and properly directed on the elements of an offence.
  • A Carey direction (directing a jury on possession solely for the purpose of returning drugs) does not automatically limit how the jury may use a defendant's exculpatory evidence, provided the broader directions on knowing and intentional possession are also correctly given.
  • Where trial counsel does not object to directions or seek a redirection, the absence of that objection is a relevant consideration in assessing whether the directions caused a miscarriage of justice, though it is not necessarily determinative.
  • Directions touching on more legal concepts than are strictly necessary for the jury's deliberations do not constitute a misdirection, provided they are legally accurate and do not mislead the jury on the actual issues to be decided.
  • Leave to appeal on grounds involving a challenge to directions not objected to at trial requires demonstrating a miscarriage of justice under the Criminal Appeal Rules (NSW), r 4, a threshold the applicant did not meet here.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Appeal Rules (NSW), r 4
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25, 25A, 29, 33
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- R v Carey (1990) 20 NSWLR 292
- Baini v The Queen (2012) 246 CLR 469
- Castle v The Queen (2016) 259 CLR 449
- Filippou v The Queen (2015) 256 CLR 47
- RPS v The Queen (2000) 199 CLR 620
- Papakosmas v The Queen (1999) 196 CLR 297
- Aravena v R (2015) 91 NSWLR 258
- Odisho v R [2018] NSWCCA 19
- Roach v R [2019] NSWCCA 160
- Roos v R [2019] NSWCCA 67
- Dixon v R [2017] NSWCCA 299
- AP v R [2013] NSWCCA 189
- R v ITA [2003] NSWCCA 174
- A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174