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Court of Criminal Appeal 12 November 2025

English v R

[2025] NSWCCA 184

DrugsFraud & dishonesty

Citation: English v R [2025] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 12 November 2025
Judge(s): Kirk JA (lead judgment); Yehia J and Rigg J agreeing

Background

The applicant was convicted in the District Court of three counts of deemed supply of a prohibited drug, one count of dealing with proceeds of crime, and one count of possessing a false identification document with intent to supply drugs. The drug and cash offences related to items found during a police search of a St Leonards apartment on 22 April 2020. The applicant had been in the process of taking over the lease of that unit (under an alias) from another person shortly before his arrest.

The Crown's case rested on circumstantial evidence: police search footage, DNA analysis, CCTV images from the building's lifts, and electronic logs recording when the two key fobs associated with the unit were used to access the building. The applicant was found with one fob set when arrested; a second key set was observed on a desk inside the unit but was not seized by police.

The applicant sought leave to appeal his convictions on the drug and proceeds offences on the sole ground of unreasonable verdict. He did not dispute that the evidence showed he possessed the drugs and cash. His argument was narrower: the Crown had made a deliberate forensic choice to allege exclusive possession, and the evidence could not exclude a reasonable possibility that possession was joint.

  • Whether the jury's verdicts on the drug supply and proceeds of crime counts were unreasonable, specifically in circumstances where the Crown had elected to prove exclusive possession rather than joint possession.
  • Whether the evidence, including fob usage logs, CCTV footage, DNA analysis, and key set observations, was sufficient to exclude beyond reasonable doubt the reasonable possibility that another person or persons also had custody or control of the drugs and cash.
  • Whether the extension of time to file the notice of appeal should be granted, given the filing was over 12 months late.

Decision

Kirk JA (with Yehia and Rigg JJ agreeing) granted the extension of time, allowed the appeal, and quashed the convictions on counts 3 to 6. The Court confirmed that possession does not by its nature require exclusivity: several people may possess something jointly or in concert. However, where the Crown makes an affirmative forensic election to allege truly exclusive possession, it takes on the burden of excluding the reasonable possibility of joint possession beyond reasonable doubt.

The Court found that the evidence did not meet that standard. Video footage of the search reasonably supported a conclusion that the applicant was residing in the unit, and DNA analysis strongly supported that he had handled the drugs. Neither body of evidence resolved the question of exclusivity, however.

The fob usage logs presented a particular difficulty for the Crown's case. The logs showed that both fobs were used in the days leading up to the arrest, including on 22 April 2020 itself. There was evidence the applicant used fob 1, and a real possibility from matching CCTV footage that others also used it. Critically, there was no evidence the applicant used fob 2 in that period, yet fob 2 was used. The second key set was observed inside the unit but was never seized, leaving open a real possibility that someone else held that key and fob.

Taken together, the Court found there was a reasonably possible inference that at least one other person had access to and use of the unit, including potential joint custody or control of the drugs and cash. The jury's advantage in assessing the evidence was slight given the substantially unchallenged and objective nature of the material. It was therefore not open to the jury to be satisfied beyond reasonable doubt of guilt in the manner alleged by the Crown.

Orders Made

  • Time to appeal extended to 12 May 2025.
  • Leave to appeal granted.
  • Appeal upheld.
  • Convictions on counts 3 to 6 quashed; verdicts of acquittal entered in their place.
  • Sentence imposed by O'Brien DCJ on 14 April 2023 quashed; in lieu, the applicant sentenced on count 7 to 12 months imprisonment commencing 20 July 2021 and ending 19 July 2022.

Key Takeaways

  • A Crown election to prove exclusive possession, rather than joint possession, is a forensic choice with legal consequences: it requires the Crown to exclude beyond reasonable doubt the reasonable possibility that another person jointly held custody or control of the relevant items.
  • Where fob access records show an unaccounted second fob being used in the relevant period, and a second key set goes unseized, those facts may together give rise to a reasonable possibility of joint access sufficient to defeat an exclusive possession case.
  • DNA evidence establishing that a defendant handled drugs does not, of itself, establish that the possession was exclusive rather than joint.
  • In unreasonable verdict appeals, the advantage enjoyed by a jury in assessing evidence is afforded less weight where the evidence is largely objective and substantially unchallenged, as confirmed by reference to M v The Queen (1994) 181 CLR 487 and Dansie v The Queen (2022) 274 CLR 651.
  • A notice of appeal filed over 12 months late may still attract an extension of time where the delay is adequately explained, here by difficulties in securing private funding and delays by a prior firm.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 193A, 193C(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- R v ZT [2025] HCA 9; (2025) 99 ALJR 676
- He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
- Moors v Burke (1919) 26 CLR 265; [1919] HCA 32
- Lee v R [2013] NSWCCA 68; (2013) 232 A Crim R 337
- Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
- Barzani v R [2024] NSWCCA 188
- Huynh v R [2020] NSWCCA 202
- R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89