Alliston v R

Case [2011] NSWCCA 281

Court of Criminal Appeal

New South Wales
Case Title: Alliston v R
Medium Neutral Citation: [2011] NSWCCA 281
Hearing Date(s): 3 August 2011
Decision Date: 16 December 2011
Jurisdiction:
Before:

McClellan CJ at CL at [1]
Simpson J at [54]
Fullerton J at [152]
Decision:

1. Leave to appeal granted.
2. Appeal dismissed

Catchwords:

CRIMINAL APPEAL - s25(2) Drug Misuse and Trafficking Act 1985 (NSW) - physical control of drugs but with the intention of returning them to the owner - Carey defence should have been left to jury - no adverse consequence for appellant - no miscarriage of justice - no lesser sentence warranted at law - appeal dismissed.
Legislation Cited:

Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Cases Cited:

Maginnis [1987] AC 303
Dinsdale v R (2000) 202 CLR 321 at 325
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39
O'Brien v Smith unreported, NSWSC, 9 May 1986
R v Asim, unreported, NSWCCA, 3 March 1997
R v Blair [2005] NSWCCA 78
R v Carey (1990) 20 NSWLR 292
R v EAS, unreported NSWCCA, 26 July 1990
R v Fong (unreported NSWCCA, 29 November 1996
R v Frazer [2002] NSWCCA 59; 128 A Crim R 89
R v Liberti (1991) 55 A Crim R 120
R v Small (1991) 54 A Crim R 460
R v Tuckey (1991) 57 A Crim R 468
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Texts Cited:
Category: Principal judgment
Parties:

Jacinta Lee Alliston (Appellant)
Crown
Representation
- Counsel:

S Kluss (Appellant)
S Dowling (Crown)
- Solicitors:
File number(s): 2009/7753
Decision Under Appeal
- Court / Tribunal:
- Before: Hock DCJ
- Date of Decision: 30 July 2010
- Citation:
- Court File Number(s) 2009/7753
Publication Restriction:

JUDGMENT

  1. McCLELLAN CJ at CL: The appellant was convicted of one count of supplying a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 ('the Act'). One significant matter raised in this appeal is whether the trial judge should have left to the jury the issue considered in R v Carey (1990) 20 NSWLR 292. The trial judge was asked to give the relevant direction but declined. There are further grounds of appeal concerned with the adequacy of the trial judge's summing up and the appropriateness of the appellant's sentence. The appellant also seeks leave to appeal her sentence. The trial judge imposed a sentence of 7 years with a non-parole period of 3 years and 6 months.

  2. Schedule 1 of the Act provides that a commercial quantity of methylamphetamine is 0.25kg. A large commercial quantity of methylamphetamine is 1.0 kg and above.

  3. The appellant was charged with a breach of section 25(2) of the Act for supplying not less than a large commercial quantity of methylamphetamine. Section 25(2) provides that:

    "A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not…

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AGLC
Alliston v R [2011] NSWCCA 281
Case
[2011] NSWCCA 281
Decision Date

CaseChat Overview and Summary

The appellant, Alliston, appealed against her conviction for drug trafficking under the Drug Misuse and Trafficking Act 1985 (NSW). The primary issue before the court was whether the trial judge erred in not allowing the jury to consider the defence known as the "Carey defence," which pertains to the temporary possession of drugs with the intention of returning them to the owner. The appellant argued that she had physical control of the drugs temporarily with the intention of returning them to their owner, and thus should not be convicted of trafficking.

The court examined the evidence presented during the trial and considered the legal principles governing the defence in question. The court concluded that although the appellant's evidence suggested she intended to return the drugs to their owner, this was not sufficient to exclude the possibility of trafficking beyond reasonable doubt. The court found no error in the trial judge's decision not to leave the Carey defence to the jury, as the appellant had not demonstrated that she had no intention of supplying the drugs. The court also noted that there was no adverse consequence for the appellant and no miscarriage of justice occurred, thus no lesser sentence was warranted.

The appeal was dismissed, and the conviction and sentence of the appellant were upheld. The court found that the trial judge had correctly applied the law and the evidence did not support the appellant's claim of temporary possession with the intention of returning the drugs. The appellant's appeal was unsuccessful, and the original conviction and sentence stood.

Orders

Orders of the court

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Background

Background to the litigation

Section 29 of the Act is an evidentiary provision which facilitates proof of the offence where a person has in their possession not less than the traffickable quantity. The traffickable quantity for methylamphetamine is 3.0 grams (schedule 1 of the Act). If the prosecution proves the relevant possession the onus shifts to the accused to prove on the balance of probabilities that the possession of the prohibited drug was for a purpose other than supply. Relevant Facts In the present case the appellant was travelling as a passenger in a car driven by her partner Mr Schirmer. They intended to drive from Sydney to Townsville. The car was stopped by the police at Glen Innes where Mr Schirmer was given a random breath test. He returned a negative result but when questioned by the police he volunteered that he had some marijuana in the glove box of the car. The police carried out a preliminary search of the car and on the floor of the front passenger seat found a purse containing two resealable bags containing pills and a paste substance, both of which contained methylamphetamine. The paste substance weighed 27.3 grams and the pills weighed 102 grams. Subsequently the police completed a thorough search of the vehicle. They found secreted in the rear of the vehicle 5 heat sealed bags containing tablets with methylamphetamine. The bags weighed a total of 973.5 grams. Although not relevant to the issues raised in this Court, but no doubt of significance to the jury, was evidence that relatively large sums of cash had been deposited by the appellant, at Mr Schirmer's request, into bank accounts associated with him. The appellant gave evidence at her trial. With respect to the drugs in her purse she said that they were not hers but that Mr Schirmer had given them to her to carry in her purse. The following exchange occurred when she gave her evidence-in-chief at the trial: "Q. You're aware that the police found within the black purse a heat sealed bag containing another plastic Goliath bag with a number of pills in it, you're aware of that? A. Yes. Q. You're also aware, are you, that the police found a further amount of brown substance wrapped in a tissue? A. Yes. Q. How was that? A. I think it was - it might've been the first day we got to Sydney we went to Dwayne's - oh yeah, sorry, I forgot about that - we went to one of Dwayne's friends' place and picked up the drugs. Q. When you say the drugs, which drugs are you referring to? A. The ones in my handbag. Q. Can you describe to the jury what happened when you went out to Windsor - withdraw that. How did you get to Windsor? A. We drove out in the red car, I think. Q. Who's we? A. Me and Dwayne. Q. Was there anybody else? A. No. Q. So could you say what happened when you drove out to Windsor? A. Well we got there and we got in the house and we were just chatting like in the lounge for a bit and when we went to go Dwayne asked me to put the drugs into my handbag to carry to the car. Q. When you say he asked you to do that, did he do anything? A. In - what do you mean? Q. Who passed you the drugs to put them into your bag? A. Dwayne did. Q. He passed them to you and you put them in the bag, is that right? A. Yes. Q. Did that include the heat sealed bag with the pills inside? A. Yeah, all of it, whatever was in there. ... Q. So on 1 October when you drove with him out to Windsor and he asked you to put a bag of tablets into your purse what did you at that time think about Mr Schirmer? A. Well I didn't - my first impression of him was like you know he runs his business and he was settled and all that. But when I seen that I didn't really know what I was getting into."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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