AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 23 October 2020

McIlwraith v R

[2020] NSWCCA 274

Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION APPEALS UNREASONABLE VERDICT WHERE ACCUSED BORE ONUS OF PROOF

Citation: McIlwraith v R [2020] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 23 October 2020
Judge(s): Meagher JA, Fullerton J, Button J

Background

The appellant was convicted in the District Court of two counts of supplying a prohibited drug, namely 23.40 grams of methylamphetamine and 69.48 grams of heroin, found on his person on 12 September 2017 at Fairlight. Both quantities exceeded the "traffickable quantity" under the Drug Misuse and Trafficking Act 1985 (NSW), which triggered a statutory presumption that the drugs were possessed for supply.

The appellant did not contest possession. His sole defence was that the drugs were for his personal use. He gave evidence of his drug addiction, a recent inheritance, cash withdrawals made to purchase drugs in bulk, and various explanations for carrying multiple phones, a razor blade, and a significant amount of cash.

The appellant was sentenced to an aggregate term of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months. He appealed against conviction on two grounds: that the trial judge wrongly admitted opinion evidence from a detective as to whether the drug quantities exceeded a personal use amount, and that the verdicts were unreasonable and unsupported by the evidence.

  • Whether the trial judge erred in admitting opinion evidence from a police detective that the quantity of methylamphetamine exceeded what could be expected for personal use.
  • Whether the guilty verdicts were unreasonable or could not be supported by the evidence, given that the sole question was whether the appellant had rebutted the presumption of possession for supply.

Decision

Ground 1: Admission of police opinion evidence

The Court found that trial counsel had not in fact objected to the portion of the detective's statement expressing an opinion about whether the quantity of drugs exceeded a personal use amount. The objection at trial was directed specifically at evidence about street value and potential resale amounts, not at the "personal use" opinion itself. Because no objection was made to that opinion evidence, no error of law arose from its admission. The Court also refused the appellant's application to amend ground 1 to reframe the argument in different terms.

Ground 2: Unreasonable verdicts

Because this ground did not raise a question of law alone, the appellant required leave to appeal. The Court applied the established test: whether, acting reasonably, the jury must have found on the balance of probabilities that the drugs were possessed for personal use. The Court found that the jury was entitled to reject the appellant's evidence. His explanation for carrying almost a week's supply of drugs on his person was described as far from clear or persuasive, and there were discrepancies between the cash he described having and the cash actually found on him. It was plainly open to the jury to find those explanations unreliable and to return guilty verdicts. Leave to appeal on this ground was refused.

Fullerton J and Button J each agreed with Meagher JA's reasons and proposed orders.

Orders Made

  • Time within which notice of intention to appeal against conviction was required to be given extended to 5 June 2019.
  • Application to amend ground 1 refused.
  • Ground 1 dismissed.
  • Leave to appeal on ground 2 refused.
  • Appeal otherwise dismissed.

Key Takeaways

  • Where a defendant at trial does not object to a specific component of a witness's opinion evidence, the failure to object means no error of law arises from its admission, even if that component might otherwise have been contestable.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), once a quantity of a prohibited drug exceeds the traffickable quantity, the accused bears the onus of proving possession for personal use on the balance of probabilities. The prosecution does not need to establish supply beyond reasonable doubt.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that a jury is not obliged to accept an accused's evidence merely because no direct contradicting evidence is called. Credibility and reliability remain matters for the jury's assessment.
  • A conviction on a deemed supply charge is not unreasonable simply because the accused offered an explanation for possessing the drugs. The question is whether the jury, acting reasonably, was compelled to accept that explanation.
  • Sufficient uncertainty in an accused's account, including unexplained discrepancies in cash amounts and an unpersuasive narrative about the need to carry large drug quantities, can justify a jury's rejection of a personal use defence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and Schedule 1
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 10
- Crimes Act 1900 (NSW), s 23A(1)(b)
- Criminal Appeal Rules (NSW)

Cases:
- R v Carey (1990) 20 NSWLR 292
- McEwen v R (1998) 99 A Crim R 421
- R v Holden [2014] NSWCCA 230
- Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- ARS v R [2011] NSWCCA 266
- Rasic v R [2009] NSWCCA 202
- Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
- Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229
- Goodridge v R [2014] NSWCCA 37
- R v Welsh (1996) 90 A Crim R 364