R v Holden

[2014] NSWCCA 230

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Holden [2014] NSWCCA 230
Hearing dates:	20 June 2014
Decision date:	06 November 2014
Before:	Johnson J at 1; Harrison J at 2; Garling J at 29
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW - appeal against conviction - charge of deemed supply of MDMA - Drug Misuse and Trafficking Act 1985 s 25(1), s 29 - judge alone trial - whether verdict unreasonable - whether on the whole of the evidence it was open to the judge to be satisfied of guilt beyond reasonable doubt
Legislation Cited:	Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985
Cases Cited:	Burrell v R [2009] NSWCCA 193 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Smith v R [2007] NSWCCA 156
Category:	Principal judgment
Parties:	Phillip Holden (Applicant) Crown (Respondent)
Representation:	Counsel: M Crawford-Fish (Applicant) V Lydiard (Crown) Solicitors: Andrew Harris & Associates (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/10079
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2012-12-12 00:00:00 Before: Frearson DCJ File Number(s): 2012/10079

Judgment

1. JOHNSON J: I agree with Harrison J.

1. HARRISON J: Phillip Holden appeals against his conviction by his Honour Frearson DCJ sitting alone on 12 December 2012 of one count of (deemed) supply of a prohibited drug, namely 5.4 grams of 3, 4 methylenedioxymethylamphetamine contrary to s 25(1) and s 29 of the Drug Misuse and Trafficking Act 1985.

1. The applicant requires leave to appeal: s 5(1)(b), Criminal Appeal Act1912; Smith v R [2007] NSWCCA 156 at [1].

1. The applicant originally relied on two grounds as follows:

(1)   In applying the balance of probability standard, the trial judge's failure to take into account the gravity of the allegation caused the trial to miscarry.

(2) The verdict of the trial judge is unreasonable and cannot be supported having regard to the evidence: s 6, Criminal Appeal Act.

1. Ground 1 was abandoned by the applicant prior to the hearing of the appeal.

1. Section 29 of the Act provides relevantly as follows:

"29 Traffickable quantity-possession taken to be for supply

A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:

(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply..."

1. By reason of the quantity of the drug in the applicant's possession, he was deemed to possess it for the purposes of supply. The only issue at the trial before his Honour was therefore whether or not the applicant had established that he had the prohibited drug in his possession otherwise than for supply. The applicant bore the onus of establishing that fact on the balance of probabilities.

The facts

1. The facts before his Honour were briefly as follows.

1. At about 10.50pm on 10 January 2012, the police attended level 2 of the underground car park of the Novotel Hotel at Brighton-Le-Sands, in response to a report that a vehicle was being broken into. It was the applicant's vehicle and not long after the police arrived the applicant approached. He was in a state of drug intoxication, and he uttered words to the effect, "They ripped me off". His behaviour was rather erratic and he explained to the police that he had a "point" two hours before.

1. Jake McKenna-King and Alana Wayne then approached and explained to police that they had been staying in the same room as the applicant. The applicant looked at them and said words to the effect, "You ripped me off".

1. The hotel room was in fact booked under the name of Alana Wayne and the applicant although Alana Wayne signed the documentation and the applicant produced his passport. Under cross-examination the applicant agreed that he partly paid for the room.

1. There was a consensual search of the room and the police observed a clear plastic bag protruding from under a pillow. That bag contained drugs in the form of capsules and some white powder that was visible to police.

1. At that point the applicant said something initially like, "What substance? There's no fucking substance unless it's yours", pointing to the two other occupants of the room. However, at the hotel he conceded that it was in fact his, and did so again when he was later interviewed at the police station and participated in a recorded interview.

1. In a caged truck that was used to transport the applicant, police subsequently located a bag containing eighty-four smaller plastic bags. The applicant fingerprint was on one of those bags. He admitted in evidence that he had discarded the bag containing the plastic bags in the truck.

1. The clear plastic bag found under the pillow contained 4 smaller bags, one of which is the subject of the appeal. It contained 43 capsules containing 5.4 grams of MDMA of 27.5 percent purity.

The judgment

1. His Honour's judgment was provided to this Court as part of the appeal. Some of what his Honour said is as follows:

"The Crown is required to prove beyond reasonable doubt that the accused was in possession of this prohibited drug 3,4-methylenedioxmethamphetamine. Once the Crown does that, the onus shifts to the accused to establish, on the balance of probabilities, that he had the drug in his possession other than for supply. Indeed, the accused in this case contends that he had the drug in his possession for personal use and he has given evidence to that effect, and that is what he said to the police initially and that is what he said in the recorded interview with the police.

...

This trial has been conducted on the basis that there is no issue as to possession of not less than the trafficable quantity of the drug MDMA. The sole issue in the trial; the single issue is whether the accused has established the defence on the balance of probabilities. He has contended that the drug was not for sale and it was not to be distributed or furnished to anybody else.

I need to determine that issue on the totality of the evidence given at the trial and that obviously includes the evidence of the accused. I acknowledge that the fact that the accused has given evidence does not change the fundamental rules that the Crown is required to establish possession beyond reasonable doubt of not less than the trafficable quantity, but that is not in issue.

...

I find beyond reasonable doubt that the accused was in possession of the 5.4 grams of MDMA, the MDMA that was located in the hotel room as well as the eighty-four plastic bags that were located in the caged police truck.

...

When I look at the credibility of the accused generally and his account; the vagueness of the man from Kings Cross; about where he had purchased the drugs precisely; about his own association with drugs and the inconsistency in his interview and his evidence; about his reason for being at the hotel I do not find to be a credible account. That leads to the question of the eighty-four plastic bags. There is the fact that he had the MDMA and the fact that at the same time he had possession of (although they were in a different place at one point) the eighty-four plastic bags. One would wonder why he would have eighty-four plastic bags. That leads to the question of what he did with the bags. He said in evidence he dakked the bags because of the implications of supply. He said that he abandoned them in the caged truck. Later when he was shown the bag, according to police, he was asked if he could tell the officer anything about it and he said no. The accused apparently dakked the bags before the police became involved and thereafter he dumped them in the vehicle.

It seems to me that in the circumstances of this case that is a material and significant fact whether he had bags at the very time he had possession of the drugs and it seems to be as a material, a significant fact, whether he made any attempt to conceal the fact that he was in possession at the same time of both the drugs and the bags. The only reasonable explanation of the evidence in my view is that he did not wish to be associated with the bags because of the obvious implication, namely that he knew that the bags would tend to implicate him in drug supply.

Now I do appreciate that people do not always act rationally, that people can do things out of panic, confusion, to escape an unjust accusation, or to protect themselves when completely innocent. Those are always possibilities but my conclusion is that on this occasion, and I am satisfied beyond reasonable doubt, that the accused did what he did in dakking the bags, putting them into his own pants and then abandoning them later because he feared that the bags would implicate him in drug supply and that although there are other possibilities they are mere possibilities which I exclude as being reasonable possibilities.

Even if I were to disregard entirely what the accused did with the eighty-four bags and just consider the fact of his possession of the drug of 27.5 per cent purity and the possession, at the same time, of eighty-four clear plastic bags, I would conclude that the accused has not established and has not demonstrated to me, on the balance of probabilities that he possessed the drugs otherwise than for supply. Indeed I am satisfied of the contrary that he had them for supply. For these reasons I find the accused guilty."

1. Counsel for the applicant also referred during the proceedings in this Court to certain other things that fell from his Honour during the course of the trial. Although some faint reliance on those matters was urged in the course of argument in this Court, that approach was ultimately and quite properly discarded.

The applicant's contentions

1. The applicant contended in this Court that his Honour's reasons were unreasonable because he did not believe him. He argued that an analysis of the objective facts on the one hand and the applicant's evidence on the other hand meant that it was unreasonable for his Honour not to accept his evidence.

1. The applicant submitted in terms that "there was nothing in [his] account from which it could be concluded that he is lying about how and why he possessed the drugs." He contended that "the evidence is consistent with possession being for personal use." The applicant submitted that because the evidence was consistent with a probability that possession was for personal use, it was "not open for the trial judge to have been satisfied beyond reasonable doubt that [he] possessed [the drug] for the purpose of supply."

1. In support of that contention the applicant helpfully described the evidence that he submitted supported that conclusion. It was briefly as follows.

1. First, he was affected by drugs when he first came to the attention of police. Secondly, he admitted to having injected one of the 43 tablets that were in his possession. Thirdly, the applicant admitted to the police that he was in effect a heavy user of drugs. Fourthly, his personal and financial circumstances included the fact that he had recently received a compensation payment of $300,000 for an industrial accident sustained in the course of his work as a carpenter and that he had spent a considerable amount of that sum on drugs for personal use. Fifthly, the applicant was unable to describe or identify the person from who he had purchased the drugs in question. Sixthly, the sum that he spent to acquire the drugs was only $350. Seventhly, the applicant had only a limited knowledge of what was in the bag containing the drugs at the time of his purchase, which was different to his Honour's expressed experience that drug purchasers are often "quite fussy about whether they get value for money." Eighthly, although the applicant conceded that the discovery of the 84 snap lock bags made him look like a seller, he gave evidence that they came with the drugs and that his attempts to hide or discard them was related to his wish to dispel that impression. Ninthly, his attempts to hide the drug bags, either under the pillow at the hotel or later by "dakking" them was also related to and explained by his desire to avoid giving the impression that he was a dealer. Finally, there was no evidence of cash, scales, account or client books or phone records suggestive of the conduct of a drug supply business.

1. The applicant contended that these factors compelled this Court to experience a doubt about the evidence said to establish his guilt, which was a doubt that his Honour must also have entertained, and which could not have been and cannot now be accommodated or explained by the manner in which the evidence was given or otherwise by making full allowance for the advantage enjoyed by his Honour in the course of the trial.

The Crown's response

1. The Crown referred to the well settled principles in M v The Queen [1994] HCA 63; (1994) 181 CLR 487; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; and R v Nguyen [2010] HCA 38; (2010) 242 CLR 491.

1. In M v The Queen at 493, 494-5 the following passage appears:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty ... But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations...

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence... In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty..." [Citations omitted]

1. In Burrell v R [2009] NSWCCA 193 the Court emphasised that an appellate court considering whether a jury verdict is unreasonable must make its own assessment of the evidence. That assessment must include a consideration of the cumulative effect of the evidence with "due regard to the common experience of human affairs and common sense brought by the jury to their determination of guilt or innocence": at [65].

Consideration

1. The Crown emphasised that it was significant that his Honour sat as the tribunal of fact and had the important advantage of hearing and observing the applicant in the witness box. That advantage was the same as that enjoyed by juries to which the authorities predominantly refer. However, in the present case, the evidence did not in my view even produce a doubt that required deference to the trial judge's special advantage. The evidence promoted by the applicant did not point in only one direction or produce the conclusion that the trial just must have entertained a reasonable doubt. On the contrary, the factors highlighted by the applicant were at best colourable. In other words, none of them either alone or in combination necessarily points only or even persuasively to the conclusion that the applicant acquired the drugs for his personal use or "otherwise than for supply". Such a conclusion is arguable but no more than that. In the events that occurred, his Honour did not accept the applicant's explanation of the circumstances in which or the purposes for which he acquired the drugs. His Honour was perfectly entitled to reach that conclusion.

1. That is particularly so having regard to the fact that many of the matters upon which the applicant relied do not speak for themselves, but are dependent upon acceptance of the applicant as a witness of truth. The fact that there was no evidence that directly contradicted the applicant's version of events does not equate to proof by him on the balance of probabilities that he possessed the drugs otherwise than for supply. The burden of the applicant's submission is in effect that his uncontradicted evidence had to be accepted by his Honour and that he fell into error by not doing so. That general proposition is not, and for obvious reasons could not be, correct. His Honour rejected the applicant's evidence for the reasons that he gave. His Honour fell into no error by doing so.

Orders

1. I consider that this application is wholly without merit. Leave to appeal should be refused.

1. GARLING J: I agree with the orders proposed by Harrison J and with his Honour's reasons for those orders.

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Decision last updated: 06 November 2014