R v Nicodin [2002] NSWCCA 447

New South Wales Court of Criminal Appeal

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 Christie DCJ OFFICER :

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.

IN THE COURT OF CRIMINAL APPEAL 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 least five occasions stated that only one matter was in dispute, that being the appellant's knowledge of the contents of the package. He did not direct the jury in relation to the appellant's assertion that he held the package in the circumstances already outlined. 7 He gave the jury directions in relation to s29 of the Drug Misuse and Trafficking Act 1985, pursuant to which a person in possession of a prohibited drug is deemed to be in possession thereof for the purposes of supply. 8 At one point in the summing up his Honour made a reference to "a remark" which he said had been made by counsel for the appellant during the course of address. This concerned the appellant's asserted intention to return the package to Loh. His Honour indicated that he intended to return to that issue at the conclusion of his summing up, but this he did not do. 9 In R v Carey (1990) 20 NSWLR 292, this court (Hunt, Wood and Finlay JJ) held that, where a person has possession of a drug with an intention of transferring its physical control to its owner, that person is not in possession of the drug for the purposes of supply. Plainly, the appellant's assertion raised precisely that issue. Trial counsel for the appellant raised the issue in the absence of the jury, but his Honour declined to add anything to the summing up. In these circumstances counsel for the Crown has conceded that error infected the trial process. 10 The Crown has argued that, while conceding that the appeal should be allowed, the appropriate order is that there be a new trial. I think this is correct. It is not opposed by counsel for the appellant and I would propose that this court so order. 11 In those circumstances it is unnecessary to resolve the other matters raised on behalf of the appellant, including the application for leave to appeal against sentence. 12 I propose the following orders: