Background
Police observed Danny Oktay Aslan retrieve a Louis Vuitton bag from bushes outside an apartment building and then attempt to dispose of it as an officer approached. The bag contained five bottles holding 2,400 grams of 1,4-Butanediol. Aslan told police that the bag belonged to his girlfriend and that he was retrieving it for her. A sixth bottle was found nearby, although the jury’s verdict concerned only the five bottles in the bag.
A District Court jury convicted Aslan of supplying a commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1987 (NSW). His case at trial was that he did not know the bag contained drugs and therefore did not possess them. On appeal, he argued that the trial judge should have directed the jury under R v Carey that temporary possession solely to return drugs to their owner is not possession for supply.
The Court’s Holding
The Court refused leave to appeal and dismissed the appeal. N Adams CJ at CL held that the Carey issue did not arise as a real issue on the evidence or in the way the defence case was conducted. A Carey defence ordinarily proceeds on the basis that an accused knowingly possessed drugs but did so temporarily to return them to their owner. Aslan instead maintained that he did not know drugs were in the bag and consequently did not possess them. Cavanagh and Muston JJ agreed.
The Court also found no miscarriage of justice. The jury received a full Liberato direction requiring acquittal if Aslan’s account was accepted or might be true. A Carey direction would not realistically have affected the jury’s reasoning, and advancing that alternative could have undermined his primary denial of knowledge. Trial counsel’s failure to request the direction, despite opportunities to address the proposed directions, strongly indicated that the summing-up reflected the forensic conduct of the trial.
Key Takeaways
- A Carey direction requires an evidentiary basis that the accused possessed drugs temporarily or transiently with the intention of returning them to their owner.
- A defence based solely on lack of knowledge of the drugs does not, without more, raise a real issue of possession otherwise than for supply.
- An unrequested jury direction warrants appellate relief only where its omission amounted to error or could realistically have affected the jury’s reasoning and caused a miscarriage of justice.
Why It Matters
The decision clarifies the limits of the Carey defence in deemed-supply prosecutions under NSW drug legislation. Courts must direct juries on real issues arising from the evidence, but they need not introduce an alternative defence that lacks an evidentiary foundation and conflicts with the case deliberately advanced at trial.
For appellate practitioners, the judgment also underscores the significance of trial counsel’s forensic choices and whether an omitted direction was material when the summing-up is considered as a whole.