This is an interesting decision for criminal defence lawyers. The appellant appealed against conviction for one count of supplying a dangerous drug on the basis that it was unreasonable. The clip seal bag supplied had not been seized or tested, and the Crown evidence as to its contents was purely circumstantial. On appeal, the majority of the court found that the jury had rejected the appellant’s explanation at trial thereby excluding any hypothesis consistent with innocence. The majority dismissed the appeal, relying upon the reasoning of the High Court of Australia in R v Baden-Clay.
Sofronoff P and McMurdo JA and Boddice J
16 March 2018
Following a jury trial in the District Court the appellant was convicted of one count of supplying a dangerous drug. As permitted by s 129(1)(b) Drugs Misuse Act 1986, the Crown did not particularise or seek to prove the identity of the substance supplied instead relying on circumstantial evidence to prove the element of the offence constituted by the identity of the substance. . The jury need only be satisfied the substance was a “dangerous drug” as defined by the Act. , .
Police had covertly recorded the supply itself. The appellant got into a vehicle and removed a clip seal plastic bag from the front of his shorts. The bag appeared to contain crystals or a powdered substance with a white hue. He placed it on the console and said, “You’d want to dack that”. The other man then put the bag down the front of his own trousers. .
The clip seal bag was not seized or tested by police. The appellant gave evidence that it contained a sports supplement which was legally available. He was simply being humorous when he told the other man to “dack” it. .
A police officer gave evidence to the effect that the appearance of the substance made it possible that it was a dangerous drug. He accepted that legally available sports supplements could be of similar appearance but said material of that kind was not normally carried in clip seal bags. , . The Crown also relied upon the circumstances of the alleged supply and asked the jury to infer that the material was a substance, the possession or supply of which was unlawful. , .
That inference alone, however, was insufficient. The jury had to further infer that the material was a dangerous drug, as defined, and to exclude any hypothesis consistent with innocence. . The appellant argued it was not open to the jury to be satisfied of that further inference beyond reasonable doubt and, for that reason, the verdict was unreasonable. .
The separate judgments of President Sofronoff and McMurdo JA in the majority each referred to R v Baden-Clay (2016) 258 CLR 308 and dismissed the appellant’s argument on the basis that his evidence at trial was clearly rejected by the jury and had excluded any alternative hypothesis consistent with innocence. –, –. Justice McMurdo referred to Weissensteiner v The Queen (1993) 178 CLR 217, observing that the only other possible witness on the question was the man he had supplied to, who would not have been a compellable witness. His Honour concluded that the only witness who could have given evidence to support any alternative hypothesis was the appellant. –.
In dissent, Boddice J stated that the jury could not use their rejection of the appellant’s evidence to convict him if the Crown evidence was insufficient to exclude, beyond reasonable doubt, the hypothesis that the substance was illicit but not a “dangerous drug”. . His Honour emphasised the police expert’s concession that, on later analysis, some substances seized by police are found not to be a dangerous drug. .
K W Gover of Counsel