Alliston v R [2011] NSWCCA 281

Application of the “Carey defence” in charge of supplying drugs

 

The decision of the Court of Criminal Appeal in Alliston v R raises issues about the deeming provision in s 29 Drug Misuse and Trafficking Act (DMTA) and the use of what has come to be known as the “Carey defence”: see R v Carey (1990) 20 NSWLR 292. Carey decided that possession of drugs for the purpose of returning them to the owner was not “possession for supply” and, therefore, evidence of possession for that purpose could rebut the deeming provision in s 29. The issue in Alliston was whether the judge should have left the “defence” to the jury. The judge refused to do so because the appellant had not given evidence of that intention.

The facts of Alliston are important to an understanding of what was held and the implication of the decision. The appellant was charged with the supply of a large commercial quantity of methylamphetamine arising from the finding in a vehicle, in which she been a passenger, of two separate quantities of the drug. Police found drugs amounting to 129.3 gms in paste and pill form in a purse in the front passenger side of the vehicle. Police also found secreted in the rear of the vehicle five bags of tablets containing in total 973.5 gms. The DMTA provides that a large commercial quantity is 1 kg, a commercial quantity 250 gms, an indictable quantity 5 gms, and a traffickable quantity 3 gms.

The appellant gave evidence that her partner, the driver of the vehicle, had given her the drugs found in her purse. She denied knowledge of the drugs in the rear of the vehicle. She was convicted by the jury of supplying a commercial quantity. A ground of appeal was that the judge should have directed the jury as to the Carey defence for the drugs found in her purse.

A majority of the court held that the judge was in error in failing to leave the defence because the inference was raised by the appellant’s evidence that she was intending to return the drug in her purse to her partner. However, it was held that there was no miscarriage of justice as the jury had convicted her of supplying only a commercial quantity. The court held that the Carey defence could have only applied to reduce the charge of supplying a large commercial quantity by providing a rebuttal to the deeming provision in relation to the amount of drug found in her purse. The jury must have concluded she was in possession also of the drugs in the rear of the vehicle despite her evidence to the contrary. As she claimed no knowledge of those drugs, the Carey defence did not arise.

Section 29 DMTA is relevantly as follows:

It should be noted that the section refers to “the prohibited drug” in the person’s possession. On its face it appears to deem the whole of the drug possessed to be for the purpose of supply unless the person proves that “the prohibited drug” was in possession otherwise than for supply. Therefore, arguably, the deeming provision cannot be overcome by proving on the balance of probabilities that some of the drug was possessed for the purpose otherwise than for supply. It may be that an accused can prove that one part of the drug is for his or her own use and another part is for return to the owner but the defence has to apply to the entire amount of the drug in the accused’s possession.

Such a reading of the provision is in accordance with the decision on a similar provision in ACT legislation in Hughes and Curtis v R (1983) 49 ALR 110; (1983) 10 A Crim R 125. There it was held that the deeming provision applied to the whole of the drug in the accused’s possession, that is, in order to overcome the deeming provision the accused had to prove “to the contrary” that he was not in possession of the whole of the drug for supply.

There is some difference in the wording of the two provisions and whether that difference would produce a contrary view of the meaning of s 29 may need to be resolved. However, it seems that the decision in Hughes and Curtis was never brought to the attention of the court in Alliston and no consideration was given to the wording of the deeming provision in s 29 DMTA. It does not appear that the Crown argued against the deeming provision being able to operate in the way the defence suggested. The current suggested direction in the Criminal Trial Courts Bench Book relating to s 29 at [5-1820] indicates that the defence must apply to the whole of the drug possessed by the accused.

However, it is important to bear in mind the different purpose served by the various prescribed quantities in relation to prohibited drugs. The small and indictable quantities are relevant to the jurisdiction of the Local Court. The large commercial and commercial quantities are in effect part of the charge and are to be proved as an element of the offence giving rise to an increased maximum penalty from that for supply simpliciter. The purpose of the traffickable quantity is evidentiary and triggers the deeming provision in s 29. Of course, it is of crucial importance for each of the quantities leading to an aggravated offence of supply and the application of s 29, to determine what amount of drug the accused had in his or her possession especially where the drug is found in different packages and places, as was the case in Alliston. A jury would need to be directed to first determine what drug the accused had in his or her possession and then as to the consequences of particular findings. For example, the jury may not be satisfied that the accused was in possession of a traffickable quantity and, therefore, s 29 would not apply.

Alliston on its facts would suggest that the jury was first to determine whether the appellant was in possession of both the drugs in her purse and in the rear of the vehicle. If the jury found that she was in possession of both, then in relation to the drug in her purse, the Carey defence had been raised and they were to then determine whether in respect of that drug she had proved that she was in possession of the drug otherwise than for supply. If she had proved that fact on the balance of probabilities, then she could not be convicted of possession of a large commercial quantity because the drug in the rear of the vehicle was less than 1 kg. If she were in possession only of the drug in her purse, then, if she proved the Carey defence, she would be acquitted of the charge of supply.

The Criminal Trial Courts Bench Book will be amended to reflect this decision.