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Court of Criminal Appeal 12 August 2020

Huynh v R

[2020] NSWCCA 202

Drugs
CRIMINAL LAW R V CAREY (1990) 20 NSWLR 292 TRIAL JUDGE’S SUMMING UP APPEAL ALLOWED AND NEW TRIAL ORDERED

Citation: Huynh v R [2020] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 12 August 2020
Judges: Macfarlan JA (principal judgment); N Adams J and Lonergan J (agreeing)

Background

The applicant was convicted after a District Court jury trial of supplying a prohibited drug, specifically 424.6 grams of pseudoephedrine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Because the quantity exceeded the traffickable threshold of 15 grams, s 29 of that Act deemed him to have possessed the drug for the purpose of supply. He had separately pleaded guilty to three possession charges.

The drug was found in a plastic milk bottle near the front door of the home the applicant shared with his father. The applicant's evidence was that the bottles had been left there by a man known as Tony, without the applicant's knowledge of their contents, and that he had simply left them for Tony to retrieve. Tony's palm print was found on the plastic bag containing the bottles; the applicant's fingerprints were also on the bag.

The applicant sought leave to appeal his conviction on two grounds: first, that defence counsel failed to properly put a particular available defence (the so-called "Carey defence") in closing address; and second, that the trial judge's summing-up was unbalanced and unfair to the point of causing a miscarriage of justice.

  • Whether trial counsel's failure to advance the "Carey defence" in closing submissions caused a miscarriage of justice (Ground 1)
  • Whether the trial judge's summing-up was so unbalanced and disparaging of the applicant's case that it denied him a fair trial (Ground 2)
  • What the "Carey defence" involves, and whether it was available on the facts

Decision

Ground 1: The Carey defence

The "Carey defence" derives from R v Carey (1990) 20 NSWLR 292 and operates where an accused possesses drugs not as owner but as a temporary custodian intending to return them to the true owner. In such circumstances, possession is arguably not for the purpose of "supply" within the meaning of the DMT Act. Both the trial judge and the Crown had identified to defence counsel that this defence appeared available on the applicant's own evidence, yet counsel did not put it to the jury in closing. The Court of Criminal Appeal found this was an error, but concluded it did not cause a miscarriage of justice. The Carey defence had been squarely placed before the jury by the trial judge in the summing-up, and there was no substantial risk that the failure by counsel to reinforce it in closing deprived the applicant of a real chance of acquittal on that basis.

Ground 2: The trial judge's summing-up

The Court upheld this ground. Macfarlan JA found that the trial judge made a series of comments in the summing-up that disparaged the applicant's evidence and presented the Crown case as obviously correct, without fairly conveying the defence case to the jury. Notably, the judge stated there was "no way" someone could have thought the bottle contained water, directly contradicting the applicant's evidence in a manner that went beyond neutral recitation of the Crown's submissions. The cumulative effect of such comments was to convey the judge's own adverse assessment of the applicant's credibility and the merit of his defence.

The Court held that an unfair and unbalanced summing-up of this kind constitutes a miscarriage of justice. The Crown did not contend that, if Ground 2 succeeded, the court should nonetheless dismiss the appeal under s 6 of the Criminal Appeal Act 1912 (NSW) on the basis that no substantial miscarriage occurred. The conviction on the supply charge was therefore quashed and a new trial ordered.

Orders Made

  • Extension of time granted for the applicant to apply for leave to appeal
  • Leave to appeal granted
  • Conviction for supply of a prohibited drug quashed
  • New trial directed on the supply charge, with an arraignment listing date before the District Court fixed for 21 August 2020
  • Aggregate sentence imposed in the District Court on 10 June 2016 quashed
  • Proceedings remitted to the District Court for re-sentencing on the three possession charges under s 10 of the Drug Misuse and Trafficking Act 1985 to which the applicant had pleaded guilty

Key Takeaways

  • A trial judge's summing-up must present the defence case fairly; repeated disparaging comments about an accused's evidence, conveyed as the judge's own view rather than as a recitation of the parties' submissions, can render a trial fundamentally unfair and require a new trial.
  • The "Carey defence" under R v Carey (1990) 20 NSWLR 292 may be available where an accused holds drugs temporarily as a custodian for the true owner intending to return them, such that possession is arguably not for the purpose of "supply" under the DMT Act.
  • Defence counsel's failure to advance the Carey defence in closing address was an error, but the Court of Criminal Appeal found it did not constitute a miscarriage of justice where the trial judge had independently put the defence to the jury in the summing-up.
  • Where both the trial judge and the Crown identify an available defence that counsel has overlooked, the court may nonetheless salvage the fairness of a trial by directing the jury on that defence, provided the summing-up itself is fair and balanced.
  • Under s 29 of the Drug Misuse and Trafficking Act 1985, possession of a prohibited drug above the traffickable quantity gives rise to a statutory presumption of possession for the purpose of supply, which the Carey defence potentially displaces.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25(1), 29

Cases
- R v Carey (1990) 20 NSWLR 292
- Alkhair v The Queen [2016] NSWCCA 4; (2016) 255 A Crim R 419
- Director of Public Prosecutions v Brooks [1974] AC 862
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Kamali v R [2019] NSWCCA 186
- McKell v The Queen (2018) 264 CLR 307
- Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
- R v Ali (1981) 6 A Crim R 161
- R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462
- R v Filippetti (1978) 13 A Crim R 335
- R v WE (No 16) [2020] NSWSC 325