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 He was evidently refused legal aid to conduct the appeal, and the Court has been informed that the appeal would be withdrawn.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bourke v Reid

Details

AGLC: Bourke v Reid [1993] QCA 83
Case: [1993] QCA 83
Decision Date: 22/03/1993

CaseChat Overview and Summary

In the case of Bourke v Reid, the respondent, Bourke, appealed against a conviction for possession of a dangerous drug, specifically heroin, under sections 9, 57(c), and 57(d) of the Drugs Misuse Act 1986. The appeal was heard in the Court of Appeal, Supreme Court of Queensland. The appellant, Reid, did not appear or provide legal representation, while Ms. Clare represented the Crown. The Director of Public Prosecutions acted as solicitor for the Crown. The hearing took place on 16 March 1993, with the case number being C.A. No. 356 of 1992.

The primary legal issue for the court to determine was whether the trial judge had correctly exercised his discretion when sentencing the respondent, Bourke. The court had to consider whether the sentence imposed was excessive, taking into account the nature of the offence and the circumstances surrounding the offence. The court was also required to assess whether the trial judge had erred in his application of the law, particularly in relation to the sentencing principles outlined in the Drugs Misuse Act 1986.

The court found that the trial judge had not erred in his application of the law or in exercising his discretion in sentencing. The court determined that the sentence imposed was not excessive, given the nature of the offence and the circumstances surrounding it. The court considered the relevant factors, including the seriousness of the offence, the respondent's criminal history, and the need to deter others from engaging in similar conduct. The appeal was subsequently dismissed, and the conviction and sentence remained in place.

The final orders of the court were that the appeal was dismissed, and the conviction and sentence imposed by the trial judge were upheld. The respondent, Bourke, remained convicted of possession of a dangerous drug and was subject to the sentence determined by the trial judge.

Orders