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Court of Criminal Appeal 19 August 2026

Aslan v R

[2026] NSWCCA 123

Drugs

Citation: Aslan v R [2026] NSWCCA 123
Court: Court of Criminal Appeal, NSW
Date: 19 August 2026
Judge(s): N Adams CJ at CL; Cavanagh J; Muston J

Background

On the evening of 15 October 2022, police observed the appellant retrieving a Louis Vuitton bag from bushes near an apartment building in Burwood. The bag contained five bottles of 1,4-Butanediol (a prohibited drug), and a sixth bottle was located nearby. When confronted by police, the appellant attempted to discreetly dispose of the bag and told officers it belonged to his girlfriend.

The appellant was tried before a jury in the District Court and convicted of supplying a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1987 (NSW). The total liquid volume across the bottles was approximately 2,970.5 grams, placing the quantity within the commercial range. He was sentenced to four years' imprisonment with a non-parole period of two years and six months.

On appeal, the appellant argued on a single ground: that the trial judge failed to direct the jury on the "Carey defence," that is, that "supply" does not include temporary possession of a prohibited drug with the intention of returning it to the owner. The defence had not been raised at trial, and no request for such a direction had been made by trial counsel.

  • Whether the trial judge was required to direct the jury, of the judge's own motion, that "supply" does not include temporary possession of drugs with intent to return them to the owner (the so-called "Carey direction")
  • Whether the failure to give such a direction constituted a wrong decision on a question of law (second limb error) under s 6(1) of the Criminal Appeal Act 1912 (NSW), or alternatively a miscarriage of justice (third limb error)
  • What factual circumstances must be present before the Carey defence arises as a real issue requiring a direction
  • Whether the absence of a request for the direction by trial counsel was relevant to the miscarriage of justice analysis

Decision

The Carey direction and the applicable legal framework:

The Carey direction arises from R v Carey (1990) 20 NSWLR 292, which established that the statutory definition of "supply" does not extend to temporary possession of drugs with the intention of returning them to their owner. The Court noted some doubt as to whether a failure to give an unrequested direction can constitute a "wrong decision on a question of law" under the second limb of s 6(1). However, the Court proceeded to assess the matter under the third limb (miscarriage of justice), applying the principle from MDP v The King [2025] HCA 24 and Brawn v The King [2025] HCA 20 that any such failure must have been material, in the sense that it could have realistically affected the jury's reasoning.

When the Carey defence arises as a real issue:

The Court reviewed the body of case law in which the Carey defence has been found available. Those cases consistently involved an accused who acknowledged knowing the substance in their possession was a drug, but claimed their possession was solely for the purpose of returning it to the owner. The appellant's case at trial was fundamentally different: he denied any knowledge that the bag contained drugs at all. Because the Carey defence presupposes knowledge of the drugs, it did not arise as a real issue on the evidence presented, and the trial judge was not required to direct on it, applying the principles in Pemble v The Queen (1971) 124 CLR 107 and Phillips v R [2016] NSWCCA 159.

Materiality and the risk of tactical tension:

Even if a Carey direction had been available, the Court found it would not have assisted the appellant. A full Liberato direction had already been given, covering the requirement for the jury to consider the mental element of intention. Raising the Carey defence alongside a denial of knowledge would have created a tactical tension: any suggestion that the appellant knew the bag contained drugs but merely held them temporarily could have undermined his primary case of complete ignorance. The Court observed there was therefore a sound forensic basis for not advancing the defence.

Significance of trial counsel's conduct:

The fact that trial counsel did not seek the Carey direction was treated as a strong indicator that no miscarriage of justice had occurred. The Court applied BQ v The King (2024) 279 CLR 124 and a line of Court of Criminal Appeal decisions to conclude that counsel's choice to run the trial entirely on the basis of no knowledge reflected a deliberate forensic decision. The trial judge's directions were consistent with how the trial was actually conducted, and the Court refused leave to appeal and dismissed the appeal.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • The Carey defence (that temporary possession of drugs for the purpose of returning them to their owner does not constitute "supply") is only enlivened as a real issue requiring a jury direction where the accused acknowledges knowing the substance was a drug but claims limited custodial purpose, not where the accused denies any knowledge of the drugs at all.

  • A trial judge is not required to give a Carey direction of the judge's own motion where the defence does not arise on the evidence and was not raised at trial, consistent with the principle in Pemble v The Queen that directions must reflect the actual issues raised.

  • Where a failure to give an unrequested direction is raised on appeal as a miscarriage of justice, the failure must have been material in the sense that it could realistically have affected the jury's reasoning, applying the High Court's recent formulations in MDP v The King and Brawn v The King.

  • Trial counsel's deliberate choice not to seek a direction can itself be a strong indicator that no miscarriage of justice arose, particularly where advancing an alternative defence would have created forensic tension with the primary case.

  • Some doubt remains as to whether a failure to give an unrequested direction can constitute a "wrong decision on a question of law" under the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), though the Court left the question open.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Drug Misuse and Trafficking Act 1987 (NSW), ss 3, 25(2), 29, Sch 1
- Supreme Court ( Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Alliston v R [2011] NSWCCA 281; (2011) 217 A Crim R 323
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Greenhalgh v R [2017] NSWCCA 94
- Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33
- Huynh v R [2020] NSWCCA 202
- Li v R [2019] NSWCCA 228
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
- Pemble v The Queen ( 1971) 124 CLR 107; [1971] HCA 20
- Phillips v R [2016] NSWCCA 159
- R v Carey (1990) 20 NSWLR 292
- R v EAS ( Court of Criminal Appeal ( NSW), 26 July 1990, unrep)
- R v Fong ( Court of Criminal Appeal ( NSW), 29 November 1996, unrep)
- R v Frazer [2002] NSWCCA 59; (2002) 128 A Crim R 89
- R v Liberti (1991) 55 A Crim R 120
- R v Nicodin [2002] NSWCCA 447
- R v Small (1991) 54 A Crim R 460
- R v Tuckey (1991) 57 A Crim R 468
- Regina v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462
- S anchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46