AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 7 March 2003

R v Duong [2003] NSWCCA 55 revised - 10

[2003] NSWCCA 55

Drugs
CRIMINAL LAW POSSESSION OF HEROIN FULL DIRECTIONS ON WHAT WAS POSSESSION THE SPECIFIC DIRECTION NOT REQUIRED WHETHER FINDING OF GUILT OPEN TO JURY FINDING OPEN.

Citation: R v Duong [2003] NSWCCA 55 revised - 10/03/2003
Court: New South Wales Court of Criminal Appeal
Date: 7 March 2003
Judge(s): Giles JA; Dunford J; Smart AJ

Background

The appellant was convicted in the District Court of deemed supply of a prohibited drug, specifically 9.3 grams of heroin found in a red envelope inside a drawer in the tallboy in her bedroom. The offence was made out by possession of at least a trafficable quantity under the Drug Misuse and Trafficking Act 1985. She was sentenced to three years' imprisonment with a non-parole period of 15 months.

The appellant lived at the Hinchinbrook property with her three children, her mother, and two brothers. A friend, Ms Nguyen, had stayed at the house for a week and left on the Monday before the Thursday search. The appellant denied any knowledge of the heroin throughout the search and the subsequent police interview.

The central question at trial was whether the Crown had proven that the heroin was in the appellant's possession. The appeal challenged both the adequacy of the trial judge's jury directions on possession and whether a guilty verdict was open on the evidence.

  • Whether the trial judge was required to direct the jury specifically that the Crown must negative the possibility the heroin was in the possession of someone other than the appellant (such as Ms Nguyen or other household members)
  • Whether the jury directions on possession, including the element of exclusivity, were adequate in the circumstances
  • Whether a finding of guilt was open to the jury on the whole of the evidence

Decision

The Court of Criminal Appeal held that no specific direction of the kind sought by the appellant was required on the facts of this case. While prior authority confirmed that where others could have had possession of the relevant goods, the Crown must prove exclusive possession by the accused and the jury must understand this requirement, the adequacy of any particular direction depends on the circumstances and the issue actually in dispute. Here, the trial judge had given full directions on the meaning of possession, including explicit reference to exclusivity, and had directed the jury repeatedly on the burden and standard of proof.

The Court found that, given those directions, the jury could not have been in doubt that it needed to be satisfied beyond reasonable doubt that the heroin was in the appellant's possession to the exclusion of Ms Nguyen and the other household occupants. The Court also rejected the argument that the Jones v Dunkel direction given against the Crown (arising from the police's failure to contact Ms Nguyen) had the potential to distract the jury from the critical question of whether the heroin may have been in Ms Nguyen's possession.

On the second ground, the Court applied the test from M v The Queen (1994) 181 CLR 207. The heroin was found in the appellant's own room, in a drawer of her tallboy, among her personal items, in an envelope identical to others the appellant acknowledged were hers. The suggestion that Ms Nguyen or another occupant had secretly placed the heroin in the drawer was a matter the jury was entitled to reject. A guilty verdict was plainly open on the whole of the evidence.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A conviction for deemed supply by possession of heroin does not automatically require a jury direction in specific terms that the Crown must negative the possibility of possession by someone else; the content of adequate directions depends on the evidence and the issues actually raised at trial.
  • Where multiple persons could have had access to a location where drugs were found, the Crown must prove the accused had possession to the exclusion of those others, and the jury must be made to understand that requirement. However, the precise form of the direction is flexible.
  • The Court of Criminal Appeal confirmed that full directions on the elements of possession, including exclusivity, combined with thorough directions on the burden and standard of proof, can satisfy the requirement without a separately framed direction targeting specific alternative possessors.
  • In dismissing the miscarriage of justice ground, the Court emphasised that the jury was entitled to reject speculative suggestions that a third party had secretly placed the drugs in the accused's personal drawer.
  • No error was established simply because trial counsel did not seek correction of or addition to the directions at the time; the adequacy of directions is assessed in the context of the trial as a whole.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 29

Cases:
- M v The Queen (1994) 181 CLR 207
- R v Anderson (CCA, 15 December 1983, unreported)
- R v Bazley (CCA, 23 March 1989, unreported)
- R v Filipetti (1983) 13 A Crim R 335
- R v Sobolewski (CCA, 21 April 1998, unreported)
- R v Trotter [1999] NSWCCA 90
- Jones v Dunkel (implied reference to the evidentiary principle)