Allison v Van Meer

[1991] TASSC 174

Serial No B60/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Allison v Van Meer [1991] TASSC 174; B60/1991

PARTIES:  ALLISON, Paul Francis
  v
  VAN MEER, Kees

FILE NO:  LCA 33/1991
DELIVERED ON:  11 October 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B60/1991
Number of paragraphs:  

Serial No B60/1991
File No LCA 33/1991

PAUL FRANCIS ALLISON v KEES VAN MEER

REASONS FOR JUDGMENT  ZEEMAN J

11 October 1991

1. The applicant seeks to review his conviction by a magistrate at Hobart on each of four counts alleging breaches of various provisions of the Poisons Act 1971 ("the Act"). Each of the offences allegedly was committed on 8 March 1990 at the Sheraton Hotel in Hobart. Two of the charges (which were counts 2 and 3 on the complaint) alleged that the applicant had had in his possession a prohibited substance, namely cannabis, contrary to s55(1)(c) of the Act. A further charge, which was count 4 on the complaint, alleged that the applicant had used a prohibited substance, namely cannabis, contrary to s55(1)(d) of the Act. The final charge alleged that the applicant had in his possession a raw narcotic, namely amphetamine, contrary to s48(1) of the Act. As the complaint was drawn, counts 2 and 3 were in identical terms with nothing on the face of the complaint to indicate what particular conduct on the part of the applicant constituted which offence. However, the case was conducted before the learned magistrate upon the basis that count 2 related to a packet of cannabis found in a room at the hotel, and count 3 related to a quantity of cannabis smoked by the applicant in the hotel room, which act of smoking was the subject of count 4. As no complaint was made before the learned magistrate as to the form of the complaint and as the case was conducted upon the basis that both parties knew which conduct on the part of the applicant was alleged to constitute which offence, no injustice flowed from what was a formal defect in the complaint.

1. As originally drawn, the grounds upon which the review is sought barely raised the real issues. Accordingly they were amended and in their amended form, those grounds are as follows:

"1That the learned Magistrate erred in law in that he failed to properly apply the fundamental principle that a person is presumed to be innocent until his or her guilt is proven beyond reasonable doubt;

1AThat the learned Magistrate erred in law in that he convicted the applicant when such convictions were unsafe, unsatisfactory and wrong in law;

2That the learned Magistrate erred in law by finding that he was satisfied beyond reasonable doubt that the Applicant had been found in possession of any prohibited substance or raw narcotic either at Common Law or pursuant to Section 3(3) of the Poisons Act or at all.

3That the learned Magistrate erred in law in finding the complaint proved when upon the whole of the evidence there was no case for the applicant to answer."

1. The undisputed evidence before the learned magistrate was that at about 4.30am on 8 March 1991 a number of police officers went to room 1805 at the Sheraton Hotel where they found the applicant and three other persons. One of those persons, one Wendy Robertson, was lying on a double bed. A search of the room occurred. The double bed was moved away from a wall. Thereupon two sachets, one containing a green substance and the other containing a white substance, fell to the floor from the bed. Upon analysis the green substance was found to be cannabis and the white substance was found to be amphetamine. It was the alleged possession by the applicant of those substances which was the subject of counts 2 and 8 on the complaint.

1. It was also undisputed before the learned magistrate that some time after the finding of those sachets the applicant was conveyed to the premises of the Hobart Drug Squad and that there Det Sgt Blue had a conversation with the applicant. As to what was said during the course of that conversation was the subject of dispute at the trial before the learned magistrate. However, it was the case for the respondent that during that conversation the respondent, having been asked whether he had been smoking "a marihuana joint", said that he had "had a couple of drags". It was sought to be inferred that that admission related to the time that the applicant was in the hotel room on the night of 78 March 1990. The admissions allegedly made by the applicant were said to constitute the evidence of the commission of the offences charged by counts 3 and 4 of the complaint. The brief references which I have made, make it clear that it is convenient to deal with counts 2 and 8 together, and separately to deal with counts 3 and 4 together. Ground 2 of the grounds upon which the review is sought relate to counts 2 and 8 only. All other grounds relate to all the relevant counts on the complaint.

1. It is convenient to deal with ground 2 first. In the course of giving the reasons for his decision, the learned magistrate expressed himself to be satisfied that the applicant was an occupier of room 1805 within the meaning of s3(3) of the Act. That subsection extends the meaning of the expression "possession" and deems a substance or plant "to be in the possession of a person so long as it is on any land or premises occupied by him or is enjoyed or controlled by him in any place or is in his order and disposition unless he proves that he had no knowledge of the substance or plant." I infer from what the learned magistrate said that he concluded that the relevant substances were on premises occupied by the applicant and that it was upon that basis and no other basis that he concluded that the applicant was in possession of the relevant substances. The learned magistrate gave no reasons for so concluding other than saying that he repeated what he had said in earlier reasons. The reference to earlier reasons was no doubt a reference to the reasons given by the learned magistrate for holding that the applicant had a case to answer. In the course of those reasons, the learned magistrate had this to say:

   "Is there evidence at this point of the trial that the substances were on premises occupied by the defendant at the relevant time? In my view, in relation to counts 2 and 8 there is. The evidence in relation to those two counts is that Sergeant Young said that he found the cannabis and amphetamines in the sachets which fell from the bed which was in the room where the defendant was. There is no direct evidence as to when the defendant entered that room, but there is some evidence from Miss Rudan that she delivered an order to the particular room at approximately 11 p.m. the night before. She said that she took two to three orders to that room and that they had all been ordered by a female. Her evidence fell short of a positive identification of the defendant, but I think the inference is open that the defendant had been in the room for a reasonable amount of time prior to the police arriving.

   As His Honour Mr Justice Nettlefold said in Allison v Lowe at page 27 –

   'Certainly a legalistic approach to the question of whether the accused was an occupier is to be avoided. At the end of the day it will be a question of fact and degree whether, on the evidence, the accused can fairly be said to have been the occupier.'

2. There is evidence that the search warrant obtained by Sergeant Young was directed to one Trevor Brown. There is material from which it can be inferred that Brown had booked the room 1805. It seems to me that there is evidence upon which a jury properly directed could find that the defendant was an occupier of that room within the meaning of Section 3(3). It seems to me that there is evidence from which it could be found that the defendant was not merely a transient user of that room and, indeed, I go further and say that it seems that all of the four persons referred to in the evidence could be found to have been occupiers of that room for the purposes of Section 3(3).

1. That being so, is there evidence that the substances were in those premises at the relevant time. So far as the substances referred to in counts 2 and 8 are concerned, I am satisfied that there is. I have the uncontradicted evidence of Sergeant Young and the other police officers that those drugs were found in the room at the time that the defendant was occupying that room. Section 3(3) deems possession in the defendant unless he proves that he had no knowledge of the substance or plant. At the moment all I have are statements attributed to the defendant by the police officers in which the defendant denied knowledge. In my view, that is not sufficient at this stage to bring the defendant within the exemption provided in Section 3(3)."

1. It was insufficient for the learned magistrate to merely repeat those observations as providing the basis upon which he found that the applicant was an occupier of the room at the relevant time. When holding that the applicant had a case to answer, the learned magistrate was not called upon to make any findings of fact and did not purport to do so in the course of the passage which I have set out, although he had earlier, and quite inappropriately at that stage, said that he generally accepted the evidence given by a number of police officers. Nevertheless, in the context of the whole of his ruling, that was obviously a slip. At the time the magistrate gave his reasons for his ultimate decision, he had heard significant further evidence relevant to the question as to whether or not the applicant was the occupier of the room at any relevant time. It was incumbent upon the learned magistrate to make the necessary findings of fact and then determine, as a matter of law, upon the basis of the facts so found, whether the applicant was the occupier of the room. The evidence of the applicant on this issue, not inconsistent with evidence given by any police officer and therefore apparently not rejected by the learned magistrate, may be summarised as follows. During the course of 5 March the applicant had been in the company of Anne Bradburn at the Waratah Hotel. He there met Kevin Brown, Trevor Brown and a Mr Hall. Having spent an appreciable part of the day at the Waratah Hotel, Kevin Brown invited the applicant and Miss Bradburn back to his room at the Sheraton Hotel to a party. The room had been let to the man Kevin Brown. Kevin Brown did not actually return to the Sheraton, but Trevor Brown and Hall did. All went to the room. Various other persons attended from time to time during the course of the night. There was a party. At the time the police officers arrived at the room, all the persons then present therein, other than the applicant, were asleep, no doubt after having consumed quantities of intoxicating liquor. During the course of the night various quantities of food and beverages had been delivered to the room by room service staff. Those deliveries were consistent with a party being in progress in the room.

1. The learned magistrate referred to Allison v Lowe [1988] Tas R 21, and with respect I would adopt as being correct the statement of the directions which the Court ought to give itself concerning the correct construction of s3(3) therein enunciated by Nettlefold J at pp25–27. I do not consider that it was open to the learned magistrate to conclude that the applicant was an occupier of the room. The room had been let by the hotel management to Kevin Brown. The applicant went to that room for the purpose of attending a party therein at the invitation of Kevin Brown. The applicant was present in that room for some hours only during which time there was a party in progress in the room although the remaining participants may have lost their enthusiasm by the time the police officers arrived. The evidence did not indicate anything more than a mere transitory use of the room by the applicant. That is insufficient to constitute the room as one occupied by the applicant. The learned magistrate found counts 3 and 4 to be proved upon the basis that the applicant was the occupier of the room. He did not occupy the room. The learned magistrate did not purport to find possession on any other basis and clearly it was not open to him to so find. Accordingly, the convictions on counts 3 and 4 must be quashed. As upon the whole of the evidence the applicant had no case to answer on these counts, no retrial should be ordered.

1. I turn to counts 2 and 8. As I have indicated earlier, the evidence in support of those charges was to be found in alleged admissions made by the applicant to Det Sgt Blue. That evidence was as follows:

"I said to him 'Paul you are not obliged to say anything unless you wish to do so, whatever you do say will be recorded and may be given in evidence, do you understand?' and he said 'Yeah'. I then handed him a Statement and said 'This is a Statement made by Christopher Hall I'd like you to read it'. I then handed him a hand–written Statement made by Christopher Hall. He appeared to read it. I then said to him 'Were you smoking marihuana joints?' Allison said 'I was crook in the guts I had a couple of drags but that made me feel worse'. I said 'Would you be willing for us to take a sample of your blood?' Allison said 'Yeah no worries, I was drinking milk all night, I didn't have a drink at all'."

The conversation was recorded in handwriting by Snr Const Hobbs. The notes were not shown to the applicant, Snr Const Hobbs saying that they were made as an aide memoire so that he could refresh his memory at a later stage. The existence of the notes was not disclosed to the officer carrying out the interrogation book procedure. The notes of the interview were not shown to the applicant, but were signed by Snr Const Hobbs and Det Sgt Blue. Snr Const Hobbs was cross–examined as to why the notes were not shown to the applicant. His explanation was that the notes were made as an aide memoire so that he and other police officers could refresh their memories from them at a later time. He did not consider it necessary for the applicant to see them. It appears that he did not consider those notes to constitute a record of interview. Det Sgt Blue was also cross–examined. He appeared to distinguish between notes of an interview and a record of interview. He said that where the record made was classified as "notes", then quite often they would not be shown to the person interviewed. It ought to be made perfectly clear to police officers that the distinction drawn by the witnesses is no distinction at all. If a suspected person is interviewed in circumstances where a warning is appropriate and a contemporaneous record is made of that interview (whether the police officer categorises the record as constituting notes or a record of interview), then the document constitutes a record of interview which ought to be shown to the person interviewed and which he ought to be invited to sign. A record of interview is precisely what it says it is, namely a record of what has been said during the course of an interview. It matters not whether the record is made by use of a typewriter or is written in a police officer's notebook or is produced in any other manner. It still constitutes a record of interview. The procedure adopted in this case is fraught with danger. Human experience suggests that when police officers give evidence, their memories will be heavily refreshed by the use of notes. Even if a police officer endeavours to honestly and faithfully record the course of an interview, there is always the possibility that errors will be made. A suspected person being interviewed ought to have the opportunity of seeing the record immediately so that any corrections can be made. In the absence of that, there is a real risk that a police officer, relying on defective notes, will give erroneous evidence as to the content of a conversation. If there is an emerging practice whereby conversations with suspected persons are recorded in the form of notes intended to serve as an aide memoire to the interviewing police officers, without such persons being shown those notes, without being given the opportunity to correct them and without being asked to sign them, then it ought to cease forthwith. If the practice of bringing suspected persons who have been interviewed before a senior officer is to serve its proper purpose, then any notes of the type produced in this case ought to be brought to the senior officer.

1. The learned magistrate was faced with a situation where a number of police officers had given evidence that the applicant had made admissions during the course of the interview to which I have referred and the applicant had given evidence that he had made no such admissions and that he had not smoked marihuana at the relevant time.

1. Not surprisingly, the learned magistrate considered that the issue of credit was important. As to the credit of the applicant on the one hand and that of the police officers on the other hand, the learned magistrate said this:

1. "I must say that I was not impressed with the evidence of the defendant. I thought he gave his evidence in a flambuoyant (sic) manner, and at the end of the day I formed the view that he was not a witness to be relied upon.

1. I saw and heard all the police officers. Whilst I have some reservations about the reasons given for not providing a video record of interview and also some in relation to the decision to not fingerprint various items, at the end of the day their evidence is not so shaken that I would be prepared to reject it. And in relation to the evidence of the police officers and that of the defendant, I prefer the evidence of the police officers where it conflicts with the defendant's."

1. The learned magistrate's ultimate conclusions as to counts 3 and 4 were expressed as follows:

   "Counts 3 and 4 – I accept the evidence of Sergeant Blue that the defendant admitted use of the cannabis. I am conscious of the High Court's decision in Carr v The Queen and I am also conscious of His Honour Mr Justice Neasey's remarks in his dissenting judgment in that case in the Court of Criminal Appeal. I am also very conscious of counsel's submissions that were made both orally and in writing and the criticisms that were made. I am satisfied beyond a reasonable doubt that the defendant made the admission. I do not regard the circumstances of its making as being so unsafe or of such a nature that it cannot be relied upon. I am, therefore, satisfied beyond a reasonable doubt that the defendant used the cannabis and, as I said earlier, to do that he was in possession. Counts 3 and 4 are proved."

2. The only reasons discernible from what the learned magistrate said for his having been satisfied beyond reasonable doubt that the applicant made the relevant admissions are to be found in his conclusions that the applicant was not a witness to be relied upon and that the evidence of the police officers was not so shaken that he would be prepared to reject it. Those reasons indicate that the learned magistrate misdirected himself as to what constituted sufficient reasonable doubt requiring the relevant charges to be dismissed. The learned magistrate was not called upon to rely upon the applicant as a witness (except in the context of proving an absence of knowledge under s3(3) of the Act, which, I have already concluded, had no application), nor was he called upon to reject the evidence of the police officers. It would not be inconsistent with the existence of a reasonable doubt for the magistrate to conclude that he could not rely upon the evidence of the applicant and that he could not reject the evidence of the police officers. In order to find the relevant charges proved, it was a necessary prerequisite that the learned magistrate was satisfied beyond reasonable doubt that the applicant had admitted to smoking marihuana. There was no other evidence of the commission of those offences. The learned magistrate could not have been so satisfied unless he was satisfied that the applicant's assertion that the admissions had not been made might not reasonably have been true. In other words, if the learned magistrate had concluded that the probabilities were that the police officers had told the truth and the applicant had not, but was unable to exclude that what the applicant had said in evidence might reasonably have been true, then the applicant was entitled to be acquitted. The learned magistrate did not apply that test and subsequently ground 1 is made out in so far as charges 3 and 4 are concerned. Plainly having regard to the evidence to which I have referred, ground 3 is not made out in relation to these counts. I have expressed no view as to ground 1A. In particular, I find it unnecessary to consider whether the error alleged thereby can constitute error for the purposes of a review under s109 of the Justices Act 1959.

1. The convictions on counts 3 and 4 cannot stand and must be quashed. The question is whether a new trial ought to be ordered. I received opposing submissions as to that. By agreement of the parties, I received further evidence upon the hearing of the notice to review, which evidence is relevant to this question. The evidence before the learned magistrate was that on 8 March 1990 a sample of the applicant's blood was taken at the instance of the police. There was no evidence before the learned magistrate as to what was the result of any analysis of that sample. The further evidence before me indicates that portions of the blood were analysed by two separate analysts, one of whom detected traces of marihuana and the other of whom did not. I have no evidence as to when each of the analyses were carried out. If such evidence were to be called it might be suggested by expert evidence that one or other was likely to be the more reliable. If the evidence of the analysis which detected traces of marihuana were to be accepted, then it could be said to corroborate the evidence as to the admissions allegedly made by the applicant. It is unnecessary for me to express any views as to whether evidence of the analyses ought to have been led upon the trial of the applicant. The fact is that it was not. Without it, although I am conscious of the fact that I did not have the advantage of seeing and hearing the witnesses, the case before the learned magistrate might be described as weak. If there is a retrial, the evidence may be much stronger by reason of expert evidence and evidence of the analyses. I do not consider that in the circumstances of this matter the applicant ought to be prejudiced by a second trial wherein it will be open to the respondent to significantly add to the strength of his case by adducing evidence available to him on the first trial but which he then determined he would not call.

1. Accordingly, the order of the court will be that the convictions of the applicant on each of counts 2, 3, 4 and 8 of Complaint 04125/90 and the sentence on count 2 thereof be quashed.