R v Nicodin - [2002] NSWCCA 447

CITATION: R v Nicodin [2002] NSWCCA 447

FILE NUMBER(S): CCA 60239/02

HEARING DATE(S): 7 November 2002

JUDGMENT DATE:
7 November 2002

PARTIES :

Mario Nicodin - Appellant
Crown - Respondent

JUDGMENT OF: Simpson J at 1; Carruthers AJ at 13; Mathews AJ at 14

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0301

LOWER COURT JUDICIAL
OFFICER : Christie DCJ

COUNSEL : RJ Bromwich - Crown
P Byrne SC & C Abbott - Appellant

SOLICITORS: DPP (Cth) - Crown
Watsons - Appellant

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Carey (1990) 20 NSWLR 292

DECISION: (i) appeal against conviction allowed; (ii) conviction quashed; (iii) that there be a new trial.

60239/02

SIMPSON J
CARRUTHERS AJ
MATHEWS AJ
7 November 2002

REGINA v Mario NICODIN

Judgment

1 SIMPSON J: On 25 March 2002 the appellant was charged with a single offence of supplying not less than the commercial quantity of a prohibited drug (methylamphetamine). Following a trial in the District Court the jury returned a verdict of guilty. He was subsequently sentenced to imprisonment for five years and nine months with a non-parole period of three years and nine months. He appeals against the conviction and seeks leave to appeal against the sentence.

2 Two grounds of appeal were advanced on behalf of the appellant, one of which was divided into a number of parts. Since the Crown has very fairly and properly conceded that one of the grounds of the appeal should succeed, the appeal may be disposed of quickly. It is necessary only briefly to state the relevant facts and circumstances.

3 Early in 2001 officers of the Australian Federal Police were investigating the suspected distribution of prohibited drugs. For this purpose they had under surveillance a man named Loh. During the course of surveillance the appellant was seen in the company of Loh, both in a coffee shop at Leichhardt, and subsequently in a vehicle driven by Loh. The appellant was observed to alight from the vehicle and walk away. He was then arrested and found to be in possession of a package which contained approximately 500 grams of methylamphetamine. So much was not in dispute.

4 The appellant gave evidence in the trial, the effect of which was that he was in possession of the package at the request of and on behalf of Loh, and was unaware of the nature of the contents of the package. Specifically, he said that Loh had asked him to take the package temporarily but on the understanding that he would return it to Loh shortly afterwards.

5 Accordingly, two issues of fact arose for the resolution of the jury. These concerned the appellant’s knowledge (or otherwise) of the identity of the contents of the package; and his assertion that, in effect, he was a mere custodian of the package on behalf of Loh, and which he intended to return to Loh.

6 Notwithstanding this, in directing the jury, the trial judge on at…

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 Nicodin

Details

AGLC: R v Nicodin [2002] NSWCCA 447
Case: [2002] NSWCCA 447
Decision Date: 7 November 2002

CaseChat Overview and Summary

In the case of R v Nicodin, Mario Nicodin appealed against his conviction and sentence for supplying not less than the commercial quantity of a prohibited drug, methylamphetamine, under the Drug Misuse and Trafficking Act 1985. Nicodin was observed in the company of another individual, Loh, and was found in possession of approximately 500 grams of methylamphetamine. Nicodin claimed he was unaware of the contents of the package and merely acted as a custodian on behalf of Loh. The District Court jury returned a guilty verdict, and Nicodin was sentenced to imprisonment. The appeal raised two primary issues, one of which was conceded by the Crown as erroneous.

The legal issues before the court concerned the adequacy of the jury directions provided by the trial judge. Specifically, the trial judge did not direct the jury on the issue of Nicodin's assertion that he was merely a custodian of the package for Loh, intending to return it. Instead, the trial judge focused exclusively on the issue of Nicodin's knowledge of the contents of the package. This oversight was deemed significant, as it aligned with the issue addressed in R v Carey, where it was held that a person who possesses a drug with the intention of transferring its control to its owner is not in possession for the purposes of supply. The Crown conceded that this error necessitated the allowance of the appeal.

The court, consisting of Simpson J, Carruthers AJ, and Mathews AJ, agreed that the error in the trial judge's directions warranted the allowance of the appeal against conviction. The conviction was quashed, and the court ordered a new trial to ensure that the jury would be properly directed on all relevant issues. The appeal against sentence was not addressed due to the resolution of the conviction appeal. Consequently, the final orders included the allowance of the appeal against conviction, the quashing of the conviction, and the direction for a new trial.

Orders