New South Wales Court of Criminal Appeal CITATION : R v Barnier [2001] NSWCCA 459 FILE NUMBER(S) : CCA 60290/01 HEARING DATE(S) : 16/11/2001 JUDGMENT DATE : 30 November 2001 PARTIES : Regina (respondent) Geoffrey William Barnier (applicant) JUDGMENT OF : Ipp AJA at 1; Hidden J at 2; Barr J at 13 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0873 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER : COUNSEL : A P Cook (applicant) M G Allnutt (Crown) SOLICITORS : Legal Aid Commission (applicant) Solicitor for Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - Deemed supply heroin - whether evidence sufficient to establish possession LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 CASES CITED: R v Carey (1990) 20 NSWLR 292 Solway (1984) 11 ACrim R 449 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60290/01 IPP AJA HIDDEN J BARR J Friday 30 November 2001 Regina v Geoffrey William Barnier Judgment 1 IPP AJA: I agree with Hidden J. 2 HIDDEN J: The appellant, Geoffrey William Barnier, was tried in the District Court before Ainslie-Wallace DCJ and a jury upon a charge of supplying methyl-amphetamine. The Crown relied upon the deeming provision in s29 of the Drug Misuse and Trafficking Act 1985. He was found guilty and appeals to this Court against his conviction. 3 The facts can be stated shortly. At about 5.30am Federal Police officers, armed with a search warrant, went to a house at Wetherill Park occupied by the appellant. The appellant admitted them to the house. Also present there was a woman, who later left. One of the police officers, Federal Agent McQuillan, asked the appellant if there was anything in the house which should not be there. The appellant said that there was, in the kitchen. He added that "a guy" had come to the house the previous day and asked if he could leave a package there. The appellant agreed and he saw that man put the article in the kitchen. The effect of what the appellant told the police was that he was aware that the package contained a drug of some kind but he denied that it was his, saying that he had nothing to do with the drugs. He added that he thought that he had been set up. 4 The appellant led the police to the kitchen area and pointed to a hole in the wall above a pantry cupboard. He then pointed to the floor and Mr McQuillan saw a small opening in the skirting board at floor level. Inside that opening he found a clear plastic bag containing the methyl amphetamine the subject of the charge. (It may be that the bag was placed in the wall cavity above the cupboard and fell to the position where it was found, but it does not appear to me that anything turns on this.) Asked what he could tell police about the contents of the bag, the appellant replied, "Well, I don't really know what it is. It wasn't mine and it wasn't there to sell. It was there for somebody." He said that that person told him that he just wished to leave the package there and that he would come back and get it. 5 There was no evidence of any identifiable fingerprints on the package or of any other indicia of supply, such as scales or plastic bags. The evidence was silent about whether the house was occupied by anyone other than the appellant. There was unchallenged evidence that the woman who had been present when police arrived had nothing to do with the matter. The appellant did not give evidence at the trial. 6 The learned trial judge left the issue of possession to the jury, explaining that the Crown bore the burden of proving not only that the appellant was aware of the presence of the drug at the house but that he exercised dominion over it, in the sense that he had "the intention and the ability to exercise exclusive control" over it. Her Honour also left to the jury the issue of whether the appellant had the drug for a purpose other than supply, assuming they were satisfied that he was in possession of it. Applying this Court's decision in R v Carey (1990) 20 NSWLR 292, she directed them that the appellant would be entitled to be acquitted if they were satisfied on the balance of probabilities that he was merely minding the drug for someone, as he had claimed. 7 The only ground of appeal is that the jury's verdict is unreasonable, being unsupported by the evidence. In this Court the appellant was represented by Mr Cook of counsel, who did not appear at the trial. Argument centred upon the adequacy of the evidence to establish possession. Of course, the circumstances described by the appellant in which the drug came to be in the house are not inconsistent with his being in possession of it: cf Carey, per Hunt J (as he then was) at 297. However, the jury may well have treated the appellant's account with considerable scepticism. Certainly, their verdict demonstrates that they were not satisfied of it on the balance of probabilities. It was not the Crown case at the trial that he was in possession of the package jointly with someone else. From the summing-up, it appears that the Crown prosecutor argued to the jury that the appellant told the police what he did in an attempt to distance himself from the drug. 8 Before us, Mr Cook's submission was that, while it was common ground that the appellant knew of the presence of the drug, the evidence failed to establish that he exercised dominion over it. This submission was founded upon the appellant's account to the police. Mr Cook argued that the evidence did not establish that the appellant was the only occupant of the house. He relied upon the decision of the Queensland Court of Criminal Appeal in Solway (1984) 11 ACrim R 449, but the facts of that case were significantly differently from this case. 9 In Solway the undisputed evidence was that someone other than the appellant had placed marijuana in a bathroom cupboard in the house where he lived. He was aware that the drug was there but he made no claim to it and did nothing to it, such as moving or hiding it, although he did tell police that he had intended at some time to "dump it". He was not the only occupant of the house and, in particular, not the only person with access to the cupboard. The court held that this evidence could not establish that he was in possession of the marijuana, even though he had an intention to dispose of it at some future time. 10 As I have said, the evidence in the present case was silent about whether anyone else occupied the appellant's home. I have referred also to the unchallenged evidence excluding the woman who was present when police arrived at the house from any involvement with the drug. From a reading of the summing-up, and some legal argument before it which is recorded in the transcript, it is clear that it was never suggested that anyone else had access to the house and the trial appears to have been conducted upon the basis that the appellant was its only occupant. That being so, and given the manner in which the drug was secreted in the kitchen, there was ample evidence to establish that it was under the appellant's exclusive control. 11 Accordingly, it was well open to the jury to be satisfied beyond reasonable doubt of the element of possession. Equally, it was open to them to find that it was not in his possession for a purpose other than supply. The contrary was not suggested. 12 I would dismiss the appeal. 13 BARR J: I agree with Hidden J. ********** 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.