Bourke v Reid

[1993] QCA 83

IN THE COURT OF APPEAL [1993] QCA 083

SUPREME COURT OF QUEENSLAND

C.A. No 356 of 1992

Brisbane
[Bourke v. Reid]

BETWEEN

ALLAN BRIAN BOURKE
- and -
ANDREW JAMES REID

(Appellant)

The President
Mr Justice McPherson

Mr Justice Shepherdson

Judgment delivered 22/03/93

Reasons for judgment by the Court

APPEAL ALLOWED; CONVICTION AND SENTENCE SET ASIDE; AND JUDGMENT

OF ACQUITTAL ENTERED ON CHARGE AGAINST APPELLANT

CATCHWORDS CRIMINAL LAW - Possession of a dangerous drug - Heroin - ss.9, 57(c),(d) Drugs Misuse Act 1986.

Counsel: Ms. Clare for the Crown

Appellant unrepresented and absent

Solicitors: Director of Prosecutions for the
Hearing Date: 16 March 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 356 of 1992

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Shepherdson

[Bourke v Reid]

BETWEEN

ALLAN BRIAN BOURKE
- and -
ANDREW JAMES REID

(Appellant)

REASONS FOR JUDGMENT - THE COURT
Judgment delivered 22/03/1993

The appellant was convicted in the magistrates court of a single charge of being in possession of a dangerous drug on 10 April 1992. At about 11.45 a.m. on that day police executed a search warrant at a unit in a motel where the appellant and two others were staying. They found a pair of jeans with a plastic bag containing a white powdery substance in the pocket.

When questioned about it, the appellant agreed that the jeans belonged to him, but said the white substance was sugar not heroin. He said:

"It's sugar. I got it off a bloke who said it was heroin. He ripped me off. It's sugar. I tasted it, it's sugar."

On analysis the white powder was found to contain a "minute trace" of heroin. The analyst said the trace was not measurable. It was at the limit of resolution afforded by the machine used to measure it. It was given the lowest possible figure on the certificate. "We cannot", said the analyst, "put a figure on anything lower". In fact, the analyst's certificate (ex. 7) states that "the calculated weight of heroin in the powder is less than 0.01 grams".

The appellant lodged an appeal against his conviction in respect of the offence. He was evidently refused legal aid to conduct the appeal, and the Court has been informed that the appeal would be withdrawn. It was, however, not formally abandoned before it came on for hearing, at which the appellant did not appear and was not represented. Counsel for the Crown nevertheless canvassed various matters that might be argued in support of the appeal, and candidly acknowledged that they were not demonstrably without substance.

Two or three points were debated before us. In Williams v.

The Queen (1978) 140 C.L.R. 591, 600, Gibbs and Mason JJ. said:

"... when the Act creates the offence of having possession of a dangerous drug or a prohibited plant, without adverting to quantity, it contemplates possession not of a minute quantity incapable of discernment by the naked eye and detectable only by scientific means, but a possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession".

In the present case the magistrate in giving his decision said that the evidence showed the white powder in the plastic packet found in the jeans was "clearly visible" to the police officer who found it. However, it is apparent that, in what they said in Williams, their Honours were referring to a quantity of the drug itself that was capable of being discerned by means of the naked eye, and not simply a host substance with or in which the drug was mixed or embedded. The evidence here fails to show beyond reasonable doubt that in this instance the quantity of heroin detected by analysis would have been visible to the naked eye even if it had been capable of separation from its host. Indeed, the contrary is strongly suggested by the evidence before the magistrate.

Reference was made to s.57 of the Drugs Misuse Act 1986. It provides that in respect of a charge against a person of having committed an offence defined in Part II of the Act:

"(c) proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in his possession unless he shows that he then neither knew nor had reason to suspect that the drug was in or on that place;

(d) the operation of section 24 of The Criminal Code is excluded unless that person shows his honest and reasonable belief in the existence of any state of things material to the charge."

It may be that in some circumstances the presence of even a minute quantity of a drug at a particular time would be capable of raising an inference as to the presence of a larger quantity of the same drug at an earlier time. Even so, that would not matter here because the appellant was charged with having had possession on the date the white powder was found at the motel unit. In any event, the observations of their Honours in the High Court in Williams are fairly capable of being applied to the word "possession" in s.57(c), so as to give it the meaning of possession of only a visible or discernible amount of the drug in question.

Finally, there is the exception recognised at the very end of s.57(c), by which the evidentiary effect of that provision is displaced if the occupier shows he neither knew nor had reason to suspect that the drug was in or on the place in question. In that context the evidence as to what the appellant said when questioned at the time of the search might, in the absence of any reason for doubting its accuracy, be thought to be capable of discharging the burden of proof resting on the appellant under s.57(c), or alternatively under that part of s.57(d) concerning an honest and reasonable belief in a state of things material to the charge. What the appellant said at the motel suggests that he honestly believed the white substance found in the packet in the jeans was sugar. There was nothing in the Crown case to contradict or rebut that conclusion.

When all these matters are taken into account it does not seem to us that it was open to convict the appellant of this offence. The appeal should be allowed; the conviction and sentence should be set aside. Judgment of acquittal should be entered on the charge against the appellant.