R v Frazer [2002] NSWCCA 59

Reported Decision : (2002) 128 A Crim R 89

New South Wales Court of Criminal Appeal

CITATION : R v Frazer [2002] NSWCCA 59 FILE NUMBER(S) : CCA 60525/01 HEARING DATE(S) : 04/02/2002 JUDGMENT DATE : 12 March 2002

PARTIES : Regina Tracey Ann Frazer JUDGMENT OF : Wood CJ at CL at 1; Sully J at 17; Dowd J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0039 LOWER COURT JUDICIAL Twigg DCJ OFFICER :

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 Pereira v DPP (1988) 82 ALR 217. R v Carey (1990) 50 A Crim R 163. CASES CITED: R v JGW (Unreported, NSWCCA, 23 June 1999). R v Popa (1991) 53 A Crim R 102. R v Smith [1981] 1 NSWLR 193. DECISION : 1. Appeal against conviction upheld; 2. Conviction and sentence be quashed; and 3. New trial ordered.

-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

1 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. 2 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. 3 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. 4 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 greater than the trafficable quantity commensurable to that drug which is 3 grams." 5 His Honour then went on to deal with the element of supply by instructing the jury: "Supply in the ordinary language consists of selling it or giving it to some person, eg. furnishing it or making it available to some person. It has that meaning in law also. One legal meaning of supply is to have in possession for supply, and here the prosecution alleges that the accused had the drugs in her possession for the purpose of supply. For that purpose the prosecution must first prove that she had them in her possession." 6 His Honour went on to explain that before the prosecution could rely on "deemed supply to prove the purpose for which (the accused) had the drug in her possession", it had first to satisfy the jury beyond reasonable doubt that the accused had in her possession not less than 3 grams of the drug. If they were satisfied, he added: "You should find her guilty unless after considering all the evidence, including what the accused has said to you, you are also satisfied that it is more probabl[e] than not that she had the drug in her possession for some purpose other than supply." 7 His Honour then added: "The real issue in this case as been said to you by both counsel is whether or not the accused can satisfy you that she had the drugs in her possession for a purpose other than supply."