R v Frazer - [2002] NSWCCA 59

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Frazer [2002] NSWCCA 59

FILE NUMBER(S):
60525/01

HEARING DATE(S): 04/02/2002

JUDGMENT DATE: 12/03/2002

PARTIES:
Regina
Tracey Ann Frazer

JUDGMENT OF: Wood CJ at CL Sully J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/61/0039

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL:
Mr SJ Odgers SC- Appellant
Mr RA Hulme- Crown

SOLICITORS:
DJ Humphreys- Appellant
SE O'Connor- Crown

CATCHWORDS:
Appeal against conviction
Supply prohibited drug
Directions as to meaning of "supply"
Miscarriage of justice
Failure to explain
Accused's case

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Evidence Act 1995

DECISION:
1. Appeal against conviction upheld; 2. Conviction and sentence be quashed; and 3. New trial ordered.

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL

60525/01

WOOD CJ at CL
SULLY J
DOWD J

12 March 2002

Regina v Tracey Anne FRAZER

Judgment

WOOD CJ at CL: I have read, in draft, the judgment of Dowd J in this matter. I agree with his Honour’s conclusion and reasons in relation to each of the grounds of appeal against conviction.
In my view, the summing up was inadequate in so far as it failed to clearly deal with the issue raised in the decision of this Court in R v Carey (1990) 50 A Crim R 163. As in the present case, possession was conceded in Carey, and the case on appeal was concerned with the proper interpretation of the expression “supply” within the meaning of the relevant provisions of the Act. It was there held by the Court, that supply does not include the mere transfer of physical control of the drugs from a person who has had the drugs deposited with him, to their owner, or to the person reasonably believed to be such.
In Carey, the defence of the appellant was that she had been holding the drugs overnight with the intention of returning them to their true owner on the following day. That possession was held not to answer the description of supply. In the present case, a somewhat similar defence was raised, inasmuch as the appellant claimed that she had been handed the drugs by Mr Rindfleish when their motor vehicle had stopped at a service station, and that her intention had been to return the capsule containing them to him, once he had paid for the petrol. In those circumstances, it was important that the jury be properly directed as to what was meant by the expression supply, and precisely how it was that the defence case was pursued.
In order to determine whether that was in fact done, it is necessary to note certain passages of the summing up, on 30 May 2001. His Honour explained to the jury what it was that the Crown had to prove, namely that:
“..the accused:
1) had in her possession on 21 January 2000,
2) a quantity of a prohibited drug, namely methyl amphetamine,
3) which was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Frazer

Details

AGLC: R v Frazer [2002] NSWCCA 59
Case: [2002] NSWCCA 59
Decision Date: 12 March 2002

CaseChat Overview and Summary

The appeal in R v Frazer was brought by the accused, Tracy Ann Frazer, against her conviction for supplying a prohibited drug. The matter was heard in the court of appeal, where the primary concern was the adequacy of the trial judge's directions to the jury regarding the legal definition of "supply" and whether there had been a miscarriage of justice due to the trial judge's failure to explain the concept of possession other than for supply. The crux of the appeal lay in whether the trial judge erred in not providing a direction concerning the mental element required for possession of the prohibited drug with intent other than for supply.

The court considered whether the trial judge failed to sufficiently explain the legal concept of possession other than for supply. The appellant argued that she had the prohibited drug for reasons other than to supply it, and the trial judge did not provide adequate direction to the jury on this point. The court examined the trial judge's summing up and remarks on sentence to determine if the omission constituted a miscarriage of justice. The evidence showed that the appellant had admitted to possessing the drug, and the trial centred on whether the jury accepted her explanation that she had the drugs for reasons other than to supply them.

The court concluded that the trial judge's summing up and remarks on sentence adequately addressed the issue of the appellant's explanation, thus there was no error in the trial judge's direction to the jury regarding the concept of possession other than for supply. The court found that the appellant's admission of possession and the manner in which the trial was conducted left no dispute that she had the package and admitted her earlier statements were lies. The court also noted that the trial judge's summing up clearly focused on whether the jury accepted the appellant's explanation for possessing the drugs. Consequently, the court determined that there was no miscarriage of justice due to the trial judge's failure to provide a specific direction on the mental element of possession other than for supply.

In conclusion, the appeal was dismissed. The court held that the trial judge's directions were sufficient, and the failure to provide a specific direction on possession other than for supply did not result in a miscarriage of justice. The conviction of the appellant was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Further Mr Boyden went on to tell the Court that:“…. I have instructions to admit possession in a legal sense pursuant to 184 of the Evidence Act 1995”. On 29 May 2001, relevantly the second day of the trial, the following admission occurred in evidence (with the formal signed admission tendered as Exhibit A) at p7:“His Honour: Ladies and gentlemen it’s permissible in a Court of Law to make admissions and I’m told by the respective Counsel that Miss Frazer in your presence will make admissions and perhaps a copy of this document that’s in writing and signed by her will be available to you.Miss Frazer would you please stand. Tracy Ann Frazer you being the accused in this matter do you formally make the following admission that you were in possession of 18.8 grams of methylamphetamine on 21 January 2000.Accused: Yes your Honour.His Honour: Did you make that admission after receiving legal advice about it from your solicitor Mr Boyden?Accused: Yes your Honour”. In Uniform Evidence Law (S. Odgers, 4th Edition), I refer to the following analysis at p443 as to the application of s184 of the Evidence Act:“It has been held at common law that while evidence need not be called by the Prosecution in respect of such admitted matters of fact, the formal admission does not preclude such evidence being adduced; R v Smith [1981] 1 NSWLR 193.Under the Act, it is arguable that the evidence would not be relevant as the fact is no longer in issue (see s55). However, that is not the approach taken by the courts (R v JGW NSWCCA [23 June 1999]. Of course, a court may exercise its exclusionary powers under ss135 and 137. If the parties make an agreement as to facts under s191, evidence may not be adduced to contradict or qualify an agreed fact unless the court gives leave”. I adopt what is said by the learned author, but in any event, the formal admission by the appellant and the manner in which the trial was conducted from beginning to end was that there was no dispute that she had the package and she volunteered the package when asked if she had anything that she should not have, and that she admitted her earlier statements concerning the package were lies. An examination of the Remarks on Sentence and the Summing Up by His Honour made it clear that the issue in the trial was whether the jury accepted her explanation, namely that she had the drugs for purposes other than supply (Summing Up 30.5). There was therefore no error on the part of His Honour in failure to provide a direction as to the mental element of possession. I do not consider that the first limb of Ground One is made out. Ground 1(B) Possession other than for supply Mr Odgers SC, for the appellant, submitted that the appellant had the capsule in her possession for safekeeping with the intention of returning it. It was submitted that apart from the appellant’s testimony, there was other evidence to support such a finding. The fact that similar capsules were found in the console of the car, which were identified as belonging to Rindfleish and the appellant’s genuine fear of the likely violent response from Rindfleish if she told the police that the capsule belonged to him.

Decision

Reasons for decision

WOOD CJ

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Ratio Decidendi

Legal Principle Established

Established by: WOOD CJ

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