Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Huynh v R [2020] NSWCCA 202 Hearing dates: 10 June 2020 Date of orders: 12 August 2020 Decision date: 12 August 2020 Before: Macfarlan JA at [1]; N Adams J at [93]; Lonergan J at [94] Decision: (1) Grant the applicant such extension of time for him to apply for leave to appeal as he requires. (2) Grant the applicant leave to appeal. (3) Quash the applicant's conviction of the supply of prohibited drug offence with which he was charged. (4) Direct a new trial on that charge and fix 21 August 2020 at 9:30am as an arraignment listing date before the District Court. (5) Quash the aggregate sentence imposed on the applicant in the District Court on 10 June 2016. (6) Remit the proceedings to the District Court for the applicant to be re-sentenced on the three possession charges under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW) to which he pleaded guilty. Catchwords: CRIMINAL LAW – application for leave to appeal against conviction – applicant convicted of supply of prohibited drug offence – s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) – argument available on the evidence that he possessed drugs "otherwise than for purpose of supply" because he received them from the true owner and intended to return them to him – R v Carey (1990) 20 NSWLR 292 – trial judge and Crown informed jury of potential availability of Carey defence – whether trial miscarried because defence counsel failed to put Carey defence to jury CRIMINAL LAW – trial judge's summing up – trial judge made comments disparaging applicant's case – whether summing up was unbalanced and unfair in a way that constituted a miscarriage of justice – appeal allowed and new trial ordered Legislation Cited: Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Alkhair v The Queen [2016] NSWCCA 4; (2016) 255 A Crim R 419 Director of Public Prosecutions v Brooks [1974] AC 862 He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 Kamali v R [2019] NSWCCA 186 McKell v The Queen (2018) 264 CLR 307; [2019] HCA 5 Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 R v Ali (1981) 6 A Crim R 161 R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462 R v Carey (1990) 20 NSWLR 292 R v Filippetti (1978) 13 A Crim R 335 R v WE (No 16) [2020] NSWSC 325 Texts Cited: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (at 3 August 2020) Category: Principal judgment Parties: Huy Bao Van Huynh (Applicant) Regina (Respondent) Representation: Counsel: P Coady (Applicant) S Flood (Respondent) Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2013/309607 Publication restriction: Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 10 June 2016 Before: King SC DCJ File Number(s): 2013/309607 Judgment 1. MACFARLAN JA: In April 2016 the applicant was arraigned in the District Court before a jury on the following charge to which he pleaded not guilty: "On about 12 February 2013, at Sydney, in the State of New South Wales, [the applicant] supplied a prohibited drug, namely pseudoephedrine, in an amount of 424.6 grams", contrary to s 25(1) with s 29(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the "DMT Act"). 2. He was convicted of this offence following the jury's return of a verdict of guilty. He was also convicted of three offences under s 10 of the DMT Act of possessing prohibited drugs (cocaine and pseudoephedrine), to which he had pleaded guilty. He was sentenced in aggregate to a term of imprisonment of 3 years, with a non-parole period of 2 years and 3 months. 3. The applicant seeks leave to appeal against his conviction on the supply charge on the following grounds: 1. The trial miscarried due to defence counsel failing to properly put the Applicant's defence during the closing address. 2. The Trial Judge's summing up caused a miscarriage of justice. 1. The applicant requires an extension of time to make his application for leave to appeal but as he has provided an explanation for his delay and the Crown does not oppose an extension, time should be extended as sought. 2. For the reasons given below I have concluded that leave to appeal should be granted and the applicant's appeal allowed on Ground 2 but not on Ground 1. The evidence at trial 1. After the Crown's case had been opened, defence counsel gave a brief opening to the jury which appeared to confine the defence case to one of whether the applicant obtained possession of the bottle containing drugs referred to in the summary of evidence given below. The Crown case 1. Ms Melissa Patterson, an Australian Federal Police officer, gave evidence that on 12 February 2013 she was involved in the execution of a search warrant at the rear part of a house in which the applicant lived with his father. The applicant was not present at the time of the search but his father was. 2. On appeal, the Crown agreed that the applicant's summary as follows of what was found during the search was accurate: "(1) Numerous mobile phones (including a bag containing nine mobile phones and another bag containing eight mobile phones under [the applicant's] bed) as well as numerous sim cards; (2) A small packet containing .9 grams of cocaine powder; (3) A small packet containing .1 gram [of] cocaine paste; (4) A small packet containing a red and yellow substance known as 'prill', being granules of pseudoephedrine and an antihistamine. (5) In the hallway of the house police found some electronic scales. (6) At the entrance of the house police found two bottles containing orange liquid, wrapped in a plastic bag. One of the bottles [a "Pura Light" milk bottle] contained orange liquid containing 424.6 grams of pseudoephedrine, with 6% purity. The other bottle contained white liquid with 1.1 grams of pseudoephedrine and traces of methamphetamine. The contents of this bottle were not the subject of a charge. (7) Fingerprints of the accused were found on the plastic bag, as well as the palm print of another man, Lei Xiao (referred to in the trial by that name, and also by the name Tony) as well as some unidentified fingerprints…" Items (1) to (4) were found in the applicant's bedroom. 1. Evidence was given by a forensic expert (Mr Nathan Green) as to the procedure to convert the pseudoephedrine fluid into methamphetamine hydrochloride, commonly known as ice. Mr Green also gave evidence that the "prill" which was located in the applicant's bedroom was a substance manufactured by pharmaceutical companies and not available to retail consumers in Australia. It is an ingredient of an over-the-counter cold and flu medication available in China. 2. Another expert, Mr Eduards Stipnieks, gave evidence, over objection, as to the value of the end product "ice" which could have been produced from the seized drugs. This was in the range of $14,000 to $27,000. 3. On appeal, the Crown referred to the following additional aspects of the evidence: 1. The two plastic bottles containing the liquid with pseudoephedrine suspended in it were found inside the main entrance and near the front door of the applicant's home. 2. Pseudoephedrine can be extracted from prill. The first step to do this is to dissolve the prill in water or alcohol. 3. In the opinion of the forensic expert Mr Green the colour of the liquid in the plastic bottles was consistent with what he would expect to see if the applicant's pink and yellow prill was dissolved in water or alcohol. 1. The traffickable quantity of pseudoephedrine is 15 grams. As a result, if the applicant was in possession of the bottle containing a substantial quantity of drugs (the Pura Light milk bottle), he was deemed to have that possession for the purpose of supply (see s 29 of the DMT Act referred to in [18] below). As earlier indicated the bottle contained 424.6 grams of pseudoephedrine. The defence case 1. The applicant gave the following evidence in chief concerning the bottles found at his flat: "Q. From your point of view, how did the bottles get to be at your home? A. Well, I came home one night and my father said, "One of your mates or somebody dropped by" and he said he didn't remember the name, but he said it could've been Tony and he dropped them off. Q. Did you open the plastic bag at all? A. From memory I picked it up and had a look at it. I don't recall opening it up no. Q. Where did you put the bottles after you picked it up and had a look? A. Near the door. Q. Is that where you found them? A. Yes. Q. The jury will need to know, did those bottles belong to you at all? A. No. Q. Did you have any idea at any time what was in those bottles? A. No. Q. Was there any intention at all that you would keep those bottles? A. Well, I just left them there to make sure whoever was going to come and get them would come back and get them, I didn't know what was inside. … Q. Did you try to contact him [Tony] at all after you found the bottles at your residence? A. Yes, I remember calling but I couldn't contact him. Q. Did you hear anything at all about why the bottles had been left at your place of residence? A. I don't know, I just came home and my dad said, "One of your mates dropped them" and he said that he thinks it was Tony, he doesn't remember the name and that's why I tried to look for him. He didn't say anything about dropping anything off to my place, no. Q. Are you aware now that Tony has been in trouble with the police for drug charges, drug matters? A. Yes." 1. In cross examination, the applicant said that he used to "smoke drugs" with Tony (whose palm print appeared on the plastic bag – see [8] above) but he did not know why Tony dropped the bottles off to his flat. He said they had been dropped off a week or two before the police search was conducted and said that he had tried to contact Tony either by ringing him or going to his home. He also said that he was leaving the bottles where they were "until Tony came back and claimed them", which did not occur. When implicitly invited to speculate why Tony left the bottles at the flat, the applicant said "[w]ell I can only think he was getting spooked by the police. He's going to hide it somewhere isn't he?" 2. Other evidence given by the applicant was to the following effect: 1. He said that he collected the mobile phones found in his bedroom from family and friends to provide to orphans in Vietnam. 2. He said that the cocaine powder and paste found in his bedroom were for his personal use and that the scales found in the hallway were used when he purchased drugs. 3. In relation to the packet of "prill" found in his bedroom, the applicant said that he obtained cold and flu tablets and that a customs officer broke the capsules apart and that the applicant retained the prill inside as he suffered hay fever. 4. He said that the liquid contents of the Pura Light milk bottle looked like plain water. 1. Mr Sin Huynh, the applicant's father, gave evidence in relation to the origin of the bottles that "[there] were a guy who came to our home on behalf of my son, which is Peter, and I answer my son wasn't home and then he asked if he can drop this stuff here, and I say yes and then he left". He said that he had put the bottles in the hallway near the front door where they remained for about two to three weeks. He did not see his son touch them in that time. Legal principles 1. Before describing what occurred at the trial after the close of evidence, it is necessary to refer to the legal principles relevant to the supply charge on which the applicant was being indicted. 2. The applicant was charged with an offence under s 25(1) of the DMT Act which relevantly provides that: "[a] person who supplies…a prohibited drug is guilty of an offence". The Crown relied upon the deeming provision in s 29 of the Act which is relevantly in the following terms: 29 Traffickable quantity—possession taken to be for supply A person who has in his or her possession an amount of a prohibited drug [pseudoephedrine] which is not less than the traffickable quantity [being 15 grams] of the prohibited drug shall, for the purposes of this Division [which includes s 25], 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. In his written directions to the jury, as confirmed in his oral summing up, the trial judge instructed the jury, in the terms suggested in the Criminal Trial Courts Bench Book published by the NSW Judicial Commission, that there were three elements of the offence charged, namely: "(1) That there was a substance that was a prohibited drug, and (2) [The applicant] possessed that substance, and (3) That he possessed that substance for the purpose of supply". 1. Consistent with the deeming provision in s 29, the written directions informed the jury that, subject to one exception, "if an accused person has in his possession a specified quantity or more of a prohibited drug, then he is regarded as having possession of that drug for the purpose of supplying it". The jury was instructed that the exception was as follows: "If you are satisfied that the Crown has proved beyond reasonable doubt each of these three essential facts (or ingredients), then it is a defence to this charge if Huy HUYNH proves on the balance of probabilities that he had the drug in his possession otherwise than for the purpose of supply." 1. On the evidence adduced at the trial, there was a question whether, in light of the applicant's co-occupation of the house with his father, the applicant had possession of the bottle containing drugs which was found there and was the subject of the charge against him. The concept of possession in this context is that "one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control" (Director of Public Prosecutions v Brooks [1974] AC 862 at 866; cited with approval in He Kaw Teh v The Queen (1985) 157 CLR 523 at 537 (Gibbs CJ); [1985] HCA 43). Where, as here, the prosecution alleges exclusive possession by an accused it must negate possession on the part of any other person such as a co-occupant of the accused's residence (R v Filippetti (1978) 13 A Crim R 335 at 337-8). The jury's verdict indicated that it was satisfied that the Crown did this in the present case. 2. One circumstance in which the defence for which s 29(a) expressly provides is applicable is where the accused had possession of the drugs merely for the purpose of returning them to their owner or the person reasonably believed to be the owner (the Carey defence: R v Carey (1990) 20 NSWLR 292 at 294). In Carey, the accused's sister gave the drugs to the accused with a request to mind them overnight pending collection of them by the sister the next day. The Court held that the accused did not have possession of the drugs for the purposes of "supply" as that term was then defined in s 3 of the DMT Act. That finding is equally applicable to the following slightly amended definition of "supply" now contained in s 3 of the DMT Act: supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things. 1. Carey was applied in a number of cases referred to in R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462 at [18]-[19]. Blair emphasised that the defence is not available where the accused did not receive the drugs "as a mere custodian but was a link in a chain of intended supply…" (at [16]). 2. The Carey defence is, and was at the time of the trial, referred to prominently in the Criminal Trial Courts Bench Book (see [5-1800]). 3. The defence was of potential relevance in the present trial at least because of the applicant's evidence that he left the two bottles in the hallway "until Tony came back and claimed them" (see also his evidence that he left them there "to make sure whoever was going to come and get them would come back and get them…"). The remainder of the trial 1. After the evidence concluded, the trial judge asked counsel in the absence of the jury if there were any matters that they wished to raise. The Crown said that it appeared that "a Carey type defence" would be relevant. His Honour agreed but defence counsel did not comment. 2. In her final address, the Crown prosecutor said that a defence was available to the applicant if he satisfied the jury on the balance of probabilities that he had possession of the drugs otherwise than for the purpose of supply. The Crown referred specifically to a Carey defence by saying: "…his Honour will give you directions about this…if a person is given an object by its owner, has temporary custody of it and intends to return it to the owner, not another person, the defence would be made out; that is, in terms of how the defence case has been presented in this matter that the accused was holding the [Pura Light milk bottle] which contained approximately 420 grams of pseudoephedrine in liquid form for Lei Xiao [Tony] who he says was the owner of it and that he was going to return it to him…" 1. The Crown also submitted to the jury that the element of possession by the applicant had been satisfied, saying that the applicant possessed the bottle containing drugs "in the sense that he had access to it and could obtain custody and control over it and the Crown case is that the accused had exclusive possession of that bottle". 2. After dealing with other matters, the Crown returned to the applicant's potential Carey defence that he was not in possession of the drugs for the purposes of supply, saying that: "[the] defence of the accused has been that the accused had [the bottle containing drugs the subject of the charge] because he was not the owner of it, this person Lei Xiao [Tony] is the owner of it, he dropped it off to him and that the accused was holding the bottle temporarily and was going to give it back to Lei Xiao." 1. The Crown then referred at some length to evidence and arguments which it submitted should lead the jury to reject the factual propositions on which this Carey defence rested, namely that, first, the relevant bottle was deposited with the applicant to be held by him temporarily and then given back to Tony and secondly that Tony rather than the applicant was the owner of the bottle. 2. Before defence counsel addressed, the trial judge asked counsel in the absence of the jury whether they wanted to make any submissions about the draft written directions to the jury that his Honour had made available to counsel. In response, the Crown enquired whether his Honour wanted to give "more explanation regarding the Carey defence" or "just… leave it in the general terms". His Honour replied, somewhat cryptically, "no, I will deal with that otherwise". Defence counsel said "we agree, your Honour". 3. Defence counsel then addressed the jury, first, on the question of whether the applicant had possession of the drugs and, secondly, on whether he knew what was in the bottle which was the subject of the charge, which was an aspect of the same possession issue. 4. Defence counsel then turned to the question of "supply", which she described as the "fourth element". She appeared to put that the jury should not find that the applicant had possession for the purposes of supply but did not support that contention by submitting that the jury should find, on the balance of probabilities, that the applicant received the drugs only temporarily for the purpose of returning them to their owner, Tony. Thus she did not, at least expressly, put the Carey defence. 5. She then responded to some aspects of the Crown case and concluded by submitting that the jury should not find that the Crown had proved that the applicant was in possession of the drugs. 6. After the conclusion of the defence address, the trial judge asked defence counsel in the absence of the jury to state "in a succinct form, what is your case that is the defence case in relation to this matter because I have to tell the jury". In response, defence counsel said that, first, the applicant contended that he was not in possession of the drugs and, secondly: "He wasn't aware of the contents and therefore there is no supply. There wasn't even any possession to start with which is the Carey style defence, your Honour". 1. Unsurprisingly, both the trial judge and the Crown prosecutor joined issue with the proposition that what defence counsel described was a Carey defence and his Honour expressed doubt as to whether she had in fact put a Carey defence to the jury. Defence counsel said that she "did look" at the issue, referred to the applicant's evidence that he "left them there until Tony came back and claimed them" (see [25] above) and referred to the decision of Blair but did not explain why she had not put a Carey defence to the jury or indicate that she now sought to do so. The summing up 1. Consistent with the draft that the trial judge had given to counsel (see [31] above), the written directions that his Honour gave to the jury clearly identified the three elements of the subject offence as listed in [19] above. At three points, the written directions went on to emphasise that it was a defence for the applicant to prove on the balance of probabilities that the drugs were in his possession otherwise than for the purposes of supply. They referred to supply as being to "give [the drugs] or provide [the drugs] to some other person". The written directions did not refer to the evidence that might establish that defence. 2. Early in his summing up the trial judge gave the jury the standard direction that "[the] facts of the case and the verdict you give are for you and you alone because you alone are the judges of the facts", followed by an instruction that if he expressed any views upon questions of fact the jury must ignore those views. Although the trial judge said that he was entitled to express a view on the facts he said that he did not propose to try and persuade the jury "one way or the other". 3. The trial judge then referred to the elements of the offence with which the applicant was charged and to the written directions that he had supplied to the jury. As I have said, these included references to the defence provided for in s 29(a) of the DMT Act. His Honour referred in this context to the applicant's evidence that he left the bottles in the hallway "until Tony came back and claimed them" and stated that, assuming the jury found that the applicant was in possession of the subject bottle and was aware that it was likely to contain a prohibited drug, it was a defence if the applicant satisfied the jury on the balance of probabilities that the true owner of the bottle was Tony and the applicant "was merely retaining it so that it could be returned to Tony, the person that he believed or reasonably believed to be the owner of it". His Honour thus raised the Carey defence with the jury for its determination. 4. His Honour then said in relation to that defence: "In that respect there was no evidence from the accused or from his father as to why, if Tony had dropped off these two bottles to be given to the accused, as to whether they were being left there temporarily or permanently; that is, the accused's father did not say that there was any expectation given to him that Tony was going to come back, or the person who delivered them was going to come back and get them, and the accused at no time had any contact with the person who he believes had delivered them, being Tony, and accordingly, he appears on his evidence to have been simply expecting, in the absence of any information as to why the substance had been left at his premises for him - as to why anyone would come back to collect them, so that is a matter for you, ladies and gentlemen." 1. His Honour then turned to the inferences that the Crown asked the jury to draw, in particular that the applicant "knew, or that there was a real or significant chance that he believed that the substance in the container was a prohibited drug". He said that the Crown argued that the jury would not accept that the applicant thought that the liquid in one of the bottles containing drugs was plain water. Having referred to a photograph of the two bottles, his Honour said: "There is no way that anyone looking at that package, even packaged as it is in the bag, would think that this was a bottle of milk that contained any milk or that it was a bottle of demineralised water that only contained water. No doubt there may be other things if you looked at that package you might suspect was in it, but certainly not water, as the accused has said in his evidence, and you might, if you picked it up and looked at it and realised that, ask yourself, hang on, why is someone giving me a part bottle of some yellow coloured substance in a milk bottle and another one in a demineralised water bottle? 'I wasn't expecting this,' the accused says, 'I don't know anything about it.' You would think, or you might ponder why it is that when you believe or think that it is Tony, the person that you occasionally smoke ice with but who is only an acquaintance, has dropped it around for you, there might be some particular reason other than wishing to supply you with part filled bottles of water." 1. His Honour then referred to the Crown's response to the applicant's explanation for his possession of prill, describing the Crown's submission as being that the explanation was "inherently implausible and farfetched". 2. In relation to the applicant's knowledge of the contents of the Pura Light bottle, the trial judge referred to "the circumstances of this matter" from which the Crown said an inference of knowledge should be drawn, that is: "[A] package, on the evidence of [the applicant] and his father, having been dropped off, containing these bottles, by Tony, an acquaintance, in the absence of any information that such an event was to occur, or any further information as to why it occurred, or any further information as to whether the bottles were to stay there permanently or not, or might be collected." 1. Later, his Honour referred to the Crown's submission that the applicant relied on "an implausible story": "[T]hat is, that Tony, an acquaintance, would leave at the accused's premises without his knowledge or any forewarning a quantity of liquid, being pseudoephedrine in solution". 1. Having repeated that the Crown submitted that this story was implausible, his Honour turned to the defence case. His Honour referred to the points made by defence counsel but provided a contradiction of the principal ones immediately after he referred to them. 2. First, he said that defence counsel submitted that the applicant made enquiries to establish that it was in fact Tony who left the bottles at the home but his Honour told the jury that "[t]here is in fact no evidence of the accused making any inquiry that established that it was Tony who had delivered it". He said that the defence counsel referred to the applicant trying to contact Tony but his Honour told the jury that the applicant "never actually gave any evidence of any inquiry that he made which actually demonstrated that the bottles came from Tony". 3. Secondly, he said that defence counsel submitted that the existence of a partial unidentified fingerprint on the plastic bag containing the bottles was consistent with Tony having delivered the bag. In immediate response to that his Honour then said: "Well, ladies and gentlemen, a fingerprint that cannot be identified cannot confirm that any particular person touched it and the unidentified fingerprint could have been that of Lei Xiao [Tony], it could have been that of the accused, it could have been Mr Huynh senior's fingerprint, it could have been the fingerprint of someone at Woolworths or Coles, if that was the original place the bag originated from, and so a fingerprint which cannot be identified cannot confirm that a particular person, as suggested by [defence counsel], in this case the accused's father, ever dealt with the bag." 1. His Honour then referred to further matters in contradiction of defence counsel's fingerprint point. 2. Thirdly, the trial judge referred to defence counsel's submission that the Crown did not call Tony to give evidence because his evidence would not have assisted the Crown case and that the defence could not call Tony. His Honour immediately said that the latter proposition was not correct ("well, that is not correct, ladies and gentlemen") and gave reasons. He went on to state reasons why the jury had before it an explanation for the Crown not calling Tony and stated twice more that defence counsel was not correct in saying that the defence could not itself have called Tony to give evidence. 3. Fourthly, his Honour referred to defence counsel's reliance on the applicant's evidence that he believed that the relevant bottle contained water. His Honour answered that submission by referring to a photograph of the two bottles, to which he had earlier referred the jury, saying "it is a matter for you as to what you might think if one would have observed – if one had looked at – the package with the bottles in it". 4. His Honour then referred to defence counsel's reliance on the expert evidence of Mr Nathan Green for the proposition that the applicant "would not know what was in the bottles unless he smelt them". His Honour immediately responded strongly to this by saying, "Well, it is not a question of whether you smell what is in it or not" and giving a reason. 5. Fifthly, the trial judge summarised the defence case by saying that it contended that the applicant was not in possession of the drugs because the relevant bottle was "simply in the hallway of his home occupied by himself and his father" and that even if he had possession "he was simply leaving it [in the hallway] waiting for its true owner to return to collect it". His Honour thus referred again to the substance of the Carey defence. Seemingly, in intended detraction from the absence of possession defence, his Honour added: "Now you would need to add to that other persons may have had access to the premises, but the only evidence as to other persons having access to the premises was that the grandmother lived there but she was overseas at the time. There is no evidence of anyone else coming or going to those premises at any time, so it was not his; he did not know what was in it and he was not in possession of it …" 1. His Honour then referred to other aspects of the evidence including the seizure of some 20 mobile phones and many SIM cards, and to the evidence that the applicant and Tony smoked ice together. He said that the former was not of any particular significance and gave an appropriate warning to the jury against using the latter as evidence of the applicant's bad character. 2. After the summing up and in the absence of the jury, his Honour enquired of counsel whether they had any matter to raise, to which they replied that they did not. Ground 1: Whether the trial miscarried due to defence counsel failing to properly put the Applicant's defence during the closing address 1. On appeal the applicant contended that there was evidence which arguably supported a Carey defence, that defence counsel failed to put that defence to the jury in her closing address, and that a miscarriage of justice resulted because the applicant lost a chance of acquittal that was fairly open to him. 2. As to the applicable legal principles where the competence of counsel is in issue, the applicant relied on the following summary that I gave in Alkhair v The Queen [2016] NSWCCA 4; (2016) 255 A Crim R 419 at [31]: "I draw from these authorities the following principles relevant to the present case: (1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial. (2) Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf. (3) Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. (4) The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open." 1. As I stated in (4), and as was emphasised by Simpson AJA in Kamali v R [2019] NSWCCA 186 at [50], the ultimate question is whether a miscarriage of justice resulted from counsel's conduct. The Crown relied in this context on Simpson AJA's observation in Kamali at [43] that it is apparent from Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 that the strength of the Crown case is "a significant factor in limiting the adverse impact of the inadequacies of representation", as it bears on the issue of whether the applicant was derived of a chance of acquittal that was fairly open (at [73]). 2. I accept the applicant's submission that there was sufficient evidence in the present case to warrant his counsel putting a Carey defence to the jury on his behalf and to give rise to a miscarriage of justice if it was not put. In particular, the evidence to which I have referred at [14] and [25] provided the basis for this conclusion. It is not to the point that it was well open to the jury to reject that evidence and therefore reject the Carey defence. 3. In the circumstances of this case, the critical question is thus whether a Carey defence was in fact put before the jury for determination. My conclusion is that although it was not put to the jury by defence counsel it was sufficiently raised for the jury's consideration by the Crown and the trial judge. 4. Defence counsel did not put a Carey defence to the jury either in her brief opening or in her closing address. In opening, she referred only to an issue as to whether the applicant had had possession of the drugs (see [6] above). Likewise, in final address, her submissions only contested possession (see [32]-[34] above). 5. This occurred notwithstanding that the potential availability of a Carey defence was brought to defence counsel's attention on a number of occasions as follows. 6. First, after the evidence concluded and in the absence of the jury, both the Crown and trial judge referred to the potential availability of a Carey defence (see [26] above). Secondly, in her closing address to the jury, the Crown prosecutor referred twice to the potential availability of a Carey defence (see [27]-[30] above). Thirdly, before defence counsel's address and in the absence of the jury, there was an exchange between the Crown and the trial judge indicating their view that a Carey defence was potentially available and the need for it to be left to the jury (see [31] above). 7. Fourthly, after the defence address and in the absence of the jury, the trial judge asked defence counsel to identify the applicant's defence case (see [35] above). Defence counsel referred to an issue as to possession and "the Carey style defence" but both the trial judge and Crown prosecutor expressed doubt as to whether defence counsel had in fact put a Carey defence to the jury. Defence counsel did not, at least expressly, assert that she had in fact put the defence nor did she seek an opportunity to add to her address to put it. 8. Neither at the trial nor on appeal was there identified any sensible forensic reason for defence counsel not putting a Carey defence to the jury. The Crown suggested on appeal that such a reason might have been so as not to diminish or detract from the applicant's denial that he was in possession of the drugs. There was no reason however why the defence arguments could not have been put in the alternative. This is in fact how the trial judge subsequently identified them. Defence counsel did not object to this occurring. 9. Bearing in mind the repeated prompts that defence counsel received at the trial and the prominence given to the Carey defence in the Criminal Trials Bench Book, the regrettable conclusion must be reached that defence counsel acted incompetently in not putting it to the jury. 10. As indicated earlier (see [57] above), that conclusion alone does not entitle the applicant to succeed on Ground 1: a resultant miscarriage of justice must be shown. 11. In light of the terms of the Crown closing address and the trial judge's summing up, the jury would in my view have been aware, for the following reasons, that it had to determine whether the applicant was entitled to defend the charge against him on the basis that he had demonstrated on the balance of probabilities that he was in possession of the drugs simply for the purpose of returning them to their apparent owner. 12. The Crown referred to the Carey defence on two occasions. In her final address she clearly referred to the availability of the defence as noted at [27] above and she later referred to it again (see [29] above), identifying the factual propositions on which it rested (see [30] above). Those propositions were simple matters of fact that the jury would have had no trouble understanding. 13. The defence available to the applicant of proving on the balance of probabilities that the drugs were in his possession otherwise than for the purposes of supply was referred to (without specific reference to the Carey mode of establishing that) in the trial judge's written directions to the jury on three occasions. A similar reference was made in the oral summing up when the written directions were referred to. 14. In his oral summing up his Honour referred specifically and clearly to the Carey defence as described in [39] and [40] above, and later as described in [52] above. There is an issue as to whether his Honour's observations to the jury about the Carey defence and other matters in the summing up gave rise to a mistrial (see Ground 2 dealt with below), but for the purposes of Ground 1, I conclude that the trial judge brought the Carey defence to the jury's attention in a manner that would have been clearly understood. 15. In these circumstances, I reject Ground 1 on the basis that because the jury was charged to consider a Carey defence (and by its verdict must be taken to have rejected it), the applicant did not "lose a chance of acquittal that was fairly open" (see Alkhair and Kamali at [56] and [57] above). There was therefore no miscarriage of justice by reason of the conduct referred to in Ground 1. Ground 2: Whether the trial judge's summing up caused a miscarriage of justice 1. There were two aspects to the applicant's argument in support of this ground of appeal. First, the applicant contended that although the trial judge brought the Carey defence to the attention of the jury he did so in a manner that caused the trial to miscarry. In particular, the applicant submitted that the "only description of the Applicant's true defence was immediately followed by comment that strongly tended to undermine the defence" and that this breached the trial judge's obligation to clearly describe the defence in the absence of personal comment. 2. The second aspect of the applicant's submissions on Ground 2 was the contention that the summing up was "unbalanced and unfair", was "in a persuasive and argumentative form" and "included personal comment and criticism of counsel when summarising the evidence". 3. It is convenient to refer first to the recent decision of the High Court in McKell v The Queen (2018) 264 CLR 307; [2019] HCA 5. In that case the High Court found at [4] that the trial judge's comments during the course of his summing up were "so lacking in balance as to be seen as an exercise in persuading the jury of the [accused's] guilt". The comments were therefore found to be unfair to the accused and to give rise to a miscarriage of justice. The trial judge was the same trial judge as in the present case but the decision in McKell was published long after the trial in the present case took place. 4. The plurality in McKell stated at [3] that a trial judge's summing up "is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view" and for that reason "judicial circumspection is required in the exercise of the [trial judge's] discretion to comment [on the facts]". Their Honours added at [5] that "it should be clearly understood that the risk of… unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury". 5. Their Honours found at [40] that the "content and tone of the trial judge's remarks" in relation to one aspect of the case "would not have been out of place in a powerful address by counsel for the prosecution" and the fact that the trial judge had directed the jury that "they were the 'sole arbiters of the facts'" afforded no answer to the concern arising out of the remarks. The vice in the summing up, their Honours said at [40], was that the prosecution "was being given the advantage of a second address". Later at [44], their Honours referred to the "real and well-recognised difference between the statement of a case and the advocacy of that case" and stated that the observations of which complaint was made were couched in the "forceful language of persuasion". 6. In response to Ground 2 in the present case, the Crown emphasised that the manner in which a judge structures a summing up is a matter for the judge and whether a party's case has been adequately put to the jury is not measured by the length of time devoted to it in the summing up. Whilst the Crown recognised the inappropriateness of a summing up attempting to persuade the jury to a particular view, it submitted that "a balanced summing up may inevitably reflect the strength of one case and the weakness of the other". The Crown contended that, taking the summing up as a whole, "the case … was accurately and fairly left for the jury's determination". It drew support from the fact that although the trial judge asked counsel after the conclusion of the summing up whether there were any issues they wished to raise, defence counsel neither sought a redirection nor a discharge of the jury. 7. Six particular matters in the summing up upon which the applicant relied, and the Crown's responses to them, were as follows. 8. First, the applicant complained that the trial judge's observations which immediately followed his summary of the Carey defence (see [40] above) significantly undermined that defence. In response, the Crown submitted that his Honour gave an accurate description of the evidence relevant to that defence and "it was fairly left to the jury for their determination". 9. Secondly, the applicant submitted that in contrast to the way in which the trial judge referred to the defence case, his Honour gave a "full and persuasive summary of the Crown case…which was often couched with personal comment and criticism of [defence] counsel". In response, the Crown submitted that the reason what his Honour said was persuasive was "not because of any comment made by the trial judge, but because this was a very strong Crown case relying on undisputed evidence". The Crown relied in this context on the statements of this Court in R v Ali (1981) 6 A Crim R 161 at 165, that a balanced summing up may inevitably reflect the strength of one case and the weakness of the other. 10. As to the alleged criticism of defence counsel, the Crown submitted that there were misstatements by counsel that needed to be corrected and, in the absence of counsel seeking to do that, the trial judge did it in an appropriate place in his summing up. 11. Thirdly, the applicant criticised the trial judge's comments concerning what someone who saw the subject bottles might think were their contents (see [41] above). In response, the Crown submitted that it would have been clear to the jury that his Honour was summarising the Crown's submissions. 12. Fourthly, the applicant criticised the trial judge referring in his summing up to evidence given in response to a question his Honour asked during the Crown case as to whether "a coffee filter" could be utilised in processing prill to produce illicit drugs. In response, the Crown contended that there was no unfairness in this portion of the summing up or in the judge's questions of the witness. It relied on Bellew J's observation in R v WE (No 16) [2020] NSWSC 325 at [20] that, whilst excessive interference or involvement by a trial judge should not occur, "it is open to a trial judge to ask questions which are designed to clear up answers that may be equivocal, ambiguous or uncertain, or which may, within reason, be designed to identify matters that may be of concern to the judge himself or herself". 13. Fifthly, the applicant complained about passages in the summing up, including those referred to at [42]-[44] above, which the applicant said contained inappropriate comment by his Honour. In response, the Crown submitted that it would have been clear to the jury that the trial judge was referring to Crown arguments and not giving his own opinion. 14. Sixthly, the applicant complained that although the trial judge told the jury that the fact that a large number of mobile phones were found during the search of the applicant's home was not significant in relation to the charges against the applicant, his Honour nevertheless implied by his comments that it was unlikely that someone would possess such a large number of phones for a lawful purpose. In response, the Crown submitted that the matter complained of simply constituted a brief comment about peripheral evidence. 15. With the exception of the fourth point, these criticisms made by the applicant were in my view well founded. Taken as a whole, the trial judge's summing up was unfair and unbalanced. Contrary to the constraints on his Honour's role identified in McKell, the summing up constituted "an exercise in persuading the jury of the [applicant's] guilt" (see [74] above) and transgressed his Honour's limited authority to comment on the facts. Drawing on the applicant's submissions identified above, the following are the principal matters that lead to that conclusion. 16. Although the applicant's Carey defence was described to the jury by the trial judge, it was immediately dismantled. As recorded in [40] above, his Honour's reference to the defence was coupled with a statement of reasons why it should not be accepted. What his Honour said was not framed as a recitation of the Crown's submissions but clearly expressed his Honour's own views, for example in his Honour's statement that "accordingly, he appears on his evidence to have been simply …". This went beyond a statement of the respective cases and amounted to advocacy of the Crown's response to the Carey defence (see McKell referred to at [76] above). 17. These remarks about the defence case followed soon after the trial judge's description of the Crown's case in which he twice referred to the Crown's submission that the applicant's "story" that Tony left pseudoephedrine in solution at the applicant's home "without his knowledge or any forewarning" was "implausible" (on the second occasion, the term was "entirely implausible") (see [42]-[45] above). Whilst the description reflected the Crown's case, the emphatic way in which it was stated, without reference to any possible weaknesses in it, stood in marked contrast to the way in which the defence case was dealt with. The imbalance cannot in my view be explained away as simply a reflection of the strength of the Crown case and the weakness of that of the defence. 18. Further, when dealing with the important issue of whether the applicant had relevant knowledge of the drugs in his home, the trial judge disparaged the applicant's evidence that he thought that the liquid in one of the bottles was plain water. His Honour said that there was "no way" that someone might have thought that one of the bottles contained milk and the one other water, and that one would "certainly not [think it was] water, as the accused has said in his evidence" (see [41] above). His Honour's view was clearly conveyed to the jury without any suggestion that he was simply reciting the Crown's submissions. 19. For these reasons, I conclude that the applicant did not receive a fair trial and that the trial he had therefore miscarried. His conviction must therefore be quashed. Understandably the Crown did not contend that if this Court upheld Ground 2, the applicant's application for leave to appeal and appeal should nevertheless be dismissed under s 6 of the Criminal Appeal Act 1912 (NSW) on the basis that "no substantial miscarriage of justice has actually occurred". Orders 1. For these reasons, orders that the applicant's conviction on the supply charge be quashed and a new trial directed should be made, as sought by the applicant. The trial concluded on 21 April 2016 and a sentence of 3 years imprisonment was subsequently imposed on the applicant. That sentence was however specified not to commence until 3 May 2021 and to expire on 2 May 2024. The non-parole period of 2 years 3 months was to commence on 3 May 2021 and expire on 2 August 2023. 2. For the above reasons, I propose the following orders: 1. Grant the applicant such extension of time for him to apply for leave to appeal as he requires. 2. Grant the applicant leave to appeal. 3. Quash the applicant's conviction of the supply of prohibited drug offence with which he was charged. 4. Direct a new trial on that charge and fix 21 August 2020 at 9:30am as an arraignment listing date before the District Court. 5. Quash the aggregate sentence imposed on the applicant in the District Court on 10 June 2016. 6. Remit the proceedings to the District Court for the applicant to be re-sentenced on the three possession charges under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW) to which he pleaded guilty. 1. N ADAMS J: I have had the significant advantage of reading the judgment of Macfarlan JA in draft. I agree with the orders proposed by his Honour for the reasons provided. 2. LONERGAN J: I agree with Macfarlan JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2020