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Court of Criminal Appeal 22 November 2019

Musa v R

[2019] NSWCCA 279

Drugs
CRIME APPEALS LEAVE TO APPEAL AGAINST CONVICTION UNREASONABLE VERDICT ISSUE OF POSSESSION MISCARRIAGE OF JUSTICE

Citation: Musa v R [2019] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 22 November 2019
Judges: Gleeson JA; Johnson J; Cavanagh J

Background

The applicant was convicted in the District Court in July 2018 of deemed supply of methylamphetamine under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge rested on proof of possession of a traffickable quantity, being 87.5 grams of methylamphetamine found inside a shoe box on the top shelf of a wardrobe in a bedroom of a Guildford unit. The applicant was not present when police executed a search warrant at approximately 8:45 am on 14 October 2016, but surveillance had placed him at the unit from around 4:30 pm the previous afternoon until 1:45 am that morning.

The unit was occupied by two brothers, close family friends of the applicant, who had grown up with him in Somalia. A third person, a guest of one of the brothers, was also present when police arrived. All three denied any knowledge of or connection to the shoe box and its contents. Inside the box, in addition to the drugs, police found electronic scales and an iPhone box containing another scale.

Forensic examination of the shoe box yielded 41 latent fingerprints, of which 13 matched the applicant. His prints appeared on a freezer bag containing methylamphetamine, on an electronic scale, on a plastic box found inside the shoe box, and on nine locations on the exterior of the shoe box itself. No prints matched either of the unit's two occupants.

  • Whether the trial judge erred in dismissing a directed verdict application by applying an incorrect legal test for possession (Ground 1)
  • Whether the verdict was unreasonable because the evidence was insufficient to establish that the applicant had possession of the drugs to the exclusion of all others (Ground 2)
  • Whether the trial miscarried due to the Crown's conduct during cross-examination and closing address, in circumstances where no objection was taken at trial (Ground 3)

Decision

Ground 1 was accepted by the applicant's counsel to be effectively subsumed within Ground 2, and the Court dealt with them together. The central question under Ground 2 was whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant possessed the methylamphetamine. The Court applied the test in M v The Queen (1994) 181 CLR 487: an appellate court may set aside a verdict as unreasonable only where, having made its own independent assessment of the evidence, the court concludes the jury must have entertained a reasonable doubt.

Gleeson JA reviewed the fingerprint evidence in detail. Thirteen prints matching the applicant were found across multiple surfaces, including a drug-containing bag and the scales. No prints matched either occupant of the unit. The applicant's own evidence at trial, which the Court assessed carefully, included an account of having handled the shoe box and its contents that the jury was entitled to reject. Taking the whole of the evidence, the Court was satisfied it was open to the jury to find possession established, and the verdict was not unreasonable.

Ground 3 raised several complaints about Crown conduct: the Crown calling one of the unit's occupants in its case-in-chief to ask questions ordinarily suited to cross-examination, the manner of cross-examination of the applicant, and a submission in closing address suggesting recent invention arising from the failure to cross-examine on bedroom door locks. No objection had been taken by trial counsel to any of these matters. The Court applied the principle that an applicant is generally bound by the forensic decisions of competent trial counsel, and leave to raise such grounds on appeal requires demonstration of a miscarriage of justice. The Court found no such miscarriage on any of the complaints. The improper closing submission about recent invention was identified by the trial judge immediately, corrected by the Crown before the jury, and accompanied by a direction; trial counsel raised no further complaint.

Orders Made

  • Leave to appeal granted on Ground 2
  • Leave to appeal refused under Rule 4 of the Criminal Appeal Rules (NSW) on Ground 3
  • Appeal against conviction dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a verdict is unreasonable only where, on an independent assessment of the evidence, the jury must have entertained a reasonable doubt; it is not enough that the evidence was disputed or that other outcomes were open.
  • Fingerprint evidence across multiple surfaces within a drug-concealment package, combined with the absence of any matching prints from the unit's occupants, can support a finding of possession beyond reasonable doubt even where the accused was not present when drugs were discovered.
  • An applicant is generally bound by the forensic decisions of trial counsel; complaints about Crown conduct at trial that were not the subject of contemporaneous objection will ordinarily not attract leave to appeal under Rule 4 of the Criminal Appeal Rules unless a miscarriage of justice is demonstrated.
  • Where the Crown makes an erroneous submission in its closing address, a prompt correction by the Crown followed by a judicial direction may be sufficient to remove any miscarriage, particularly where trial counsel raises no further objection to the terms of that correction.
  • Under s 29 of the Drug Misuse and Trafficking Act 1985 (NSW), proof of possession of a traffickable quantity (more than 3 grams of methylamphetamine) is sufficient to establish deemed supply; the critical battleground in prosecutions of this kind is therefore often the possession element alone.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5F, 6(1)
- Criminal Appeal Rules (NSW), r 4

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- SKA v The Queen (2011) 243 CLR 400
- R v Baden-Clay (2016) 258 CLR 308
- Fennell v The Queen [2019] HCA 37
- Flack v R [2011] NSWCCA 167
- Flaherty v R; R v Flaherty (2016) 92 NSWLR 290
- R v Filippetti (1978) 13 A Crim R 335
- R v Delon (1992) 29 NSWLR 29
- AP v R [2013] NSWCCA 189
- Browne v Dunn (1893) 6 R 67