Crilly v Gardiner - [2011] WASC 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CRILLY -v- GARDINER [2011] WASC 140

CORAM: MURRAY J

HEARD: 18 MAY 2011

DELIVERED : 26 MAY 2011

FILE NO/S: SJA 1011 of 2011

BETWEEN: LAURENCE WILLIAM CRILLY
Appellant
AND
BRADLEY WAYNE GARDINER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S P SHARRATT
Citation  :POLICE -v- CRILLY
File No  :JO 11729 of 2010

Catchwords:

Criminal law and procedure - Appellant convicted of possession of cannabis with intent to sell or supply - Appellant sought to prove cannabis was for his personal use - Magistrate rejected evidence of appellant - Whether conviction constituted a miscarriage of justice - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6, s 11

Result:

Appeal allowed
Conviction quashed
Conviction of simple possession substituted
Fine imposed
Costs order made

Category: B

Representation:

Counsel:

Appellant: Mr L Levy SC
Respondent: Mr M Seaman

Solicitors:

Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Abbott v The State of Western Australia [2005] WASCA 42
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Fowler v The Queen (2001) 121 A Crim R 531
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Mt Lawley Pty Ltd v WA Planning Commission [No 1] [2004] WASCA 149; (2004) 29 WAR 273
Singh v The Queen (Unreported, CCA SCWA, Library No 6002, 18 September 1985)
SKA v The Queen [2011] HCA 13

MURRAY J:

The proceedings at first instance

Relative to this appeal, the appellant was charged with possession of cannabis with intent to sell or supply, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a). The offence was alleged to have been committed at a place in Clarkson on 8 September 2010. The evidence established that he had in his possession 278 g of cannabis. This is only a few grams less than 10 oz of cannabis. Because there were less than 500 g of cannabis, although the offence charged is a crime, punishable on indictment, the charge was capable of being tried summarily: s 9(1) and Sch III.
The appellant pleaded not guilty to the charge and it was tried in the Joondalup Magistrates Court before his Honour Magistrate Sharratt on 14 January 2011.
There was no issue at trial in respect of the appellant's possession of the drug. The question for determination was whether the appellant's possession was with intent to sell or supply. The offence of simple possession of the drug, contrary to s 6(2) of the Act, is a simple offence and an available alternative conviction: s 10(a).
The summary conviction penalty for the crime of possession of cannabis with intent to sell or supply is a fine of up to $5,000 or imprisonment for a maximum of 4 years or both: s 34(2)(b). The maximum penalty provided for the simple offence of possession of cannabis is a fine of $2,000 or imprisonment for 2 years or both.
After trial, the appellant was convicted of the offence with which he had been charged, possession of cannabis with intent to sell or supply, and fined $3,000. I note that in giving evidence at trial the appellant said that he had bought the cannabis. He would ordinarily pay about $300 an ounce, but on this occasion he had managed to make the purchase for $250 an ounce. Because there were about 10 oz, he had saved himself $500. It may be that the amount of the fine bears a relationship to what the drug cost the appellant to buy, at least on his evidence.
As to the question of the appellant's intention in relation to his possession of the drug, s 11(a) applied:
11. Presumption of intent to sell or supply
For the purposes of -
(a)section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug; …
The quantity of cannabis specified in Sch V is 100 g.
The meaning and effect of s 11 has long been clear: see Singh v The Queen (Unreported, CCA SCWA, Library No 6002, 18 September 1985) and Abbott v The State of Western Australia [2005] WASCA 42. In Fowler v The Queen (2001) 121 A Crim R 531 [8], I endeavoured to explain the meaning and effect of s 11:
It has been held that the effect of this provision is not to displace the onus resting upon the Crown to prove guilt of such an offence beyond reasonable doubt, but in a case to which s11 applies it may discharge that onus by proving beyond reasonable doubt possession of at least the prescribed quantity of a prohibited drug or the cultivation of at least the prescribed number of prohibited plants. Conviction will follow unless, upon the whole of the evidence, the jury think it more probable than not that the accused had no such intention to sell or supply …
In short, where s 11(a) applies, the prosecutor must prove, beyond reasonable doubt, as he did in this case, that the accused had in his possession at least the prescribed quantity of the prohibited drug. If that is done, the intention to sell or supply is deemed to exist and conviction will follow. But the deeming process may be overcome if the accused proves that he had no intent to sell or supply. The onus shifts to the accused and the burden of proof which lies upon him is, as is ordinarily the case in criminal proceedings when the accused must assume an onus to establish a defence, proof to the civil standard, on the balance of probabilities.
If the accused is not able to displace the operation of the deeming provision by evidence which is accepted and which persuades the court to the required standard of the absence of an intention to sell or supply, then s 11 operates upon proof beyond reasonable doubt of possession of more than the prescribed amount of the drug so as to deem that possession to have been with the intent to sell or supply.
When this matter came on for trial, the prosecution case was comprised of evidence given by the respondent, a detective involved in the execution of a drugs search warrant at the address where the appellant was found in possession of the drug. The nature of the drug and the quantity were proved. His possession was clear and was admitted by him. The appellant elected to give evidence in his defence and he was the sole witness for the defence, giving affirmative evidence that the cannabis seized was for his own use.
His Honour did not accept that evidence and the appellant was convicted.

The appeal

The appeal to this court against that conviction is made upon the following grounds, substituted on the hearing of the appeal.
1.The conviction of the appellant amounts of a miscarriage of justice in circumstances where it was unsafe, unsatisfactory and contrary to the weight of evidence.
Particulars
a)The uncontested evidence of the appellant's consumption of cannabis.
b)The appellant's evidence in relation to his intentions with respect to the cannabis and its source.
c)The learned Magistrate's palpable errors in rejecting the appellant's evidence and concluding that his evidence (including the account given on the visually recorded interview - Exhibit 2) had the quality of being a 'cobbled together story' (Learned Magistrate's reasons, transcript page 25, 14/1/2011).
2.The learned Magistrate erred in law by failing to give adequate reasons for his decision.
3.The learned Magistrate erred in law by taking into account irrelevant factors in arriving at his finding of guilt.
Particulars
a)The learned Magistrate's reference to other people blaming 'drinkers at hotels' as the source of illegally obtained items (Learned Magistrate's reasons, transcript page 25, 14/1/2011).
The appellant requires leave to pursue those grounds. I said I would deal with that question upon the determination of the appeal. As will be seen, in the final result I grant leave in respect of all three grounds and I allow the appeal and quash the conviction. But effectively the ground which moves me to that conclusion is ground 1 and I do not uphold the other grounds.
In the event that I should come to that conclusion, the appellant submitted, and the respondent agreed, that having quashed the conviction I ought to exercise the power under s 14(1)(d) of the Criminal Appeals Act 2004 (WA) and substitute a conviction for simple possession. Having set aside the fine imposed, it is submitted that I should again proceed to sentence. I propose to take that course.

The undisputed facts

On 8 September 2010, at 6 pm, police officers went to a residence in Clarkson where they suspected a person was dealing in cannabis. It was the home of a Mr and Mrs Pierce. The police had obtained a search warrant and they proceeded to execute it.
About 45 minutes later, the appellant and his wife came to the house by car. The police searched it. They examined a cooler bag which was being carried by the appellant. When the bag was opened it was found to contain 10 plastic clipseal bags, each of which contained very close to 1 oz, or 28 grams, of cannabis. On top of the ten bags of cannabis there were five bottles of Corona beer.
As I have said, neither when he was interviewed by the police at the house on that day, nor when he gave evidence at trial, did the appellant dispute that he was in possession of the prohibited drug which he knew to be cannabis.

The evidence about the appellant's intention

During the course of the execution of the search warrant, the appellant was interviewed and the interview was recorded on video. I have viewed the video. It is very evident that the appellant, having been informed at the commencement of the interview what his rights were, was prepared to be interviewed, but wanted to say no more than was independently verifiable in relation to his possession of the drug.
He said that he had brought the cannabis to the house because he had obtained it 'earlier on'. He declined to say where or from whom he had obtained the cannabis. He declined to say any more about why he had the cannabis with him.
He said he had purchased it as it was, in ten 1 oz bags. He would not say what the price was, but he did say that he was a heavy user of cannabis, smoking about 1 oz a week and consuming it daily. He said the cannabis was for his personal use. He had not brought it with him to sell it or to share it with people at that address.
His evidence at trial was consistent, although by then, unsurprisingly, he was rather more forthcoming with detail about his use of cannabis and his acquisition of the cannabis found in his possession.
The appellant said that some years earlier he had fallen from a motor bike and suffered serious injuries for which he had been hospitalised for a period of about 2 weeks, until his medical advisers were persuaded to let him go home to his wife. He and his wife live in Wanneroo. He was on medication for pain relief, but it seems that he was unhappy with the combination of that medication and anti‑inflammatory medication which he was taking for gout.
He drank alcohol and, for some 20 years, had been a regular smoker of cannabis. When he was required to give up drinking, in an effort to cause him to lose weight and improve his general health, he increased his consumption of cannabis until, by September 2010, he was smoking nearly an ounce a week. He used the drug daily, and therefore his daily consumption was about 4 grams.
He had reduced his consumption of alcohol greatly, and his habit was, for pain relief and relaxation, when he came home from work in the evening, to sit in the spa and smoke the cannabis using a bong. None of that detailed information had been provided when he was questioned by the police.
When cross‑examined he was not challenged as to the rate of his use of the drug. It was not put to the appellant, for example, that it was a very high rate of use or that the appellant's evidence was untrue. Nor did the prosecution adduce any evidence about that matter.
It was undisputed that, after the police had finished at the Clarkson house, they went with the appellant to search his house at Wanneroo. There they found a glass smoking implement, apparently secreted in a laundry basket, and a quantity of some 12.5 g of cannabis. I take the glass smoking implement to be of the kind which is colloquially referred to as a bong. No other indicia of drug dealing was found on this search.
The appellant said that he had bought the cannabis found in his possession at Clarkson, at the Merriwa Tavern, to which he had gone, looking to purchase cannabis, on his way from his home to visit the Pierces, a social visit for which the beer had been brought. The two families, the appellant said, were friends and they had regular social contact. The appellant said he went to the Merriwa Tavern to purchase cannabis because he had only about 12 g at home, about 3 days' supply, and he did not want to run out.
He worked in the building industry during the week, and at weekends he worked with a friend, tree‑lopping. He said his average weekly income was about $2,000. He said he used about an ounce of cannabis a week, and it would ordinarily cost him about $300 an ounce. There is no suggestion that the appellant's evidence about money should not be accepted.
The appellant said that he had no regular supplier. He thought that, at the Merriwa Tavern, he might obtain the drug more cheaply than it could be purchased from his friend Pierce. As it turned out, he said, that proved to be the case because, when he asked to purchase a quantity of the drug, a man, whom he did not know, said that he had 10 oz available and was prepared to sell it to the appellant. The man said that if he bought the 10 oz, the appellant could have it for $250 an ounce.
The appellant realised that that would be a saving of $500 for an acquisition of sufficient cannabis to last him about 3 months. He had $700 in cash on him. He returned to his home where he had cash from the tree‑lopping in his bedside drawer. He took $1,800 from there, returned to the tavern and completed the purchase for $2,500. He then secreted the cannabis that he had purchased in the bottom of the cooler bag, placing the bottles of beer on top, and continued his journey with his wife to make their social visit to the Pierces.
In my opinion, it is fair to say that cross‑examination of the appellant exposed no difficulty in accepting the story. Nor did it appear that any aspect of it ought to have been regarded as improbable. When it was put to him, the appellant said that he had not purchased from his friend Pierce because he thought he might be able to get it more cheaply at the tavern, a place where he had purchased the drug on previous occasions. He did not ever sell or supply the drug himself. He was able to afford this purchase of enough cannabis to last him for about 3 months, thereby saving him the trouble of going to hotels, 'trying to chase it up again' (ts 19). The purchase of a large amount, as on this occasion, enabled him to save money.

The reasons of the magistrate

In giving his ex tempore reasons for his decision to convict, his Honour the magistrate reviewed the physical elements of the offence, all of which he found to be proved, before correctly directing himself about the legal effect of s 11 of the Act. His Honour commenced his consideration of the question of intention and the appellant's case that he lacked the intention to sell or supply, by commenting upon the appellant's evidence about the frequency and amount of his use of the drug (ts 23). His Honour said:
I may have to swallow my disbelief that someone can sit in a spa and bong four grams of cannabis down every evening after he comes home from work, as a physically difficult task to achieve, and when I hear him giving that evidence note there was no cross‑examination on the physical difficulty in actually doing that …
I take those remarks to be an expression of disbelief. His Honour did not return to this evidence again before giving his final conclusion.
He observed that he had been asked to conclude that the evidence of the lack of drug trafficking paraphernalia in the appellant's house was consistent with the fact that his use of the drug was confined to his personal use. His Honour said, 'I am unwilling to draw that inference' (ts 24). His Honour went on to observe that a person might acquire the drug in ounce lots, as on this occasion, and simply on‑sell it at a profit. But I note that there was no evidence about commonly encountered street trading or wholesale practices in relation to the sale of cannabis.
In relation to the appellant's evidence about his acquisition of the cannabis at the tavern, his Honour's remarks seem to me to reveal that, although the story was not challenged, his Honour did not accept it. He commented that the appellant had, for a long time, been a resident of Wanneroo and that he had, for a long time, used cannabis. He would know, the magistrate surmised, a lot of people from whom he could acquire the drug and, his Honour observed, 'A lot of people who don't want to reveal where they received stolen goods from, or cannabis, often blame drinkers at hotels' (ts 25).
That seems to me to indicate that the magistrate simply did not believe that part of the story, that he found it improbable, in the circumstances, that the appellant would not be able to go to a known supplier, rather than offering to buy cannabis from persons he did not know in the public place which was the Merriwa Tavern.
His Honour went on to refer to the explanation of the appellant for putting the cannabis in the cooler bag under the beers. His Honour said that the appellant explained that this was merely 'a convenient hiding place'. Although his Honour does not expressly say so, my reading of those remarks is that his Honour had reservations about accepting the appellant's evidence of his reason for having the cannabis in the cooler bag.
The magistrate expressed his final conclusion about the matter in the following terms:
I have to look at the whole of the evidence and I have to be of the view, I think, that it's more probable than not that the accused did not have that intention. The evidence that I've heard from the accused, both on his video record of interview and in the witness box, does not have that quality. It has the quality, in my view, of a cobbled together story made to explain why he was found at a dealer's place with 10 bags of cannabis amounting on the whole to very nearly two and a half times the presumption that operates on 100 grams.
I am of the view that he hasn't discharged that burden of proof. I am not satisfied by his explanation as to how he obtained the cannabis, that it has that quality. Nor am I satisfied that in all the circumstances he had that four gram usage, although it's quite possible for someone to smoke that much per night, there's not enough evidence in my view, except from what came from his mouth - and I know he set that up at the beginning by saying that to the police. In my view the evidence doesn't have that quality of demonstrating for me that it's more probable than not. So in those circumstances, I find the charge proven by the presumption (ts 25 ‑ 26).

My conclusion about the appeal

It is convenient to deal first with ground 3 which, I have already said, I do not uphold. To put it shortly, it seems to me that the reference to people blaming drinkers at hotels as the source of something when they do not want to reveal the true source is not to take into account something which is irrelevant, but simply to make an observation about the magistrate's view of the credibility of the appellant as a witness giving that evidence. Whether that view is persuasive of an incapacity to accept as a truthful account the evidence given by the appellant, is another matter, to which I will come.

Nor would I uphold ground 2. It is well accepted that the inadequacy of reasons for decision may, of itself, constitute an error of law upon which ground it may be necessary to set aside the decision in question. Section 31 of the Magistrates Court Act 2004 (WA) imposes a duty upon a Magistrates Court, in the same way as the law imposes such a duty on any court of record, to give reasons sufficient to explain how the decision was made, upon what basis of law the court acted, and upon what basis of fact the court proceeded.
There are many cases on the point, including the decision of the High Court in AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438. So far as this case is concerned, it seems to me that it is sufficient to refer to Mt Lawley Pty Ltd v WA Planning Commission [No 1][2004] WASCA 149; (2004) 29 WAR 273. At [28] the Full Court made the point that in a case such as this case, where credibility issues arise, it is necessary for the judge, not to refer to all the evidence, but to explain why one body of evidence was preferred to another or, to put it in terms of this case, to explain why the judge rejected the evidence of the appellant as a truthful account upon which his Honour was prepared to rely to put aside the deemed intention to sell or supply to which s 11(a) of the Misuse of Drugs Act would otherwise give rise.
I have discussed his Honour's reasons. They may have been more clearly expressed, but it seems to me that, upon a fair reading, they reveal that in relation to particular aspects of the story told by the appellant, both when interviewed by the police and when giving evidence at trial, his Honour the magistrate was unable to accept the appellant as a witness of truth because he thought that the story sounded incredible, for the reasons which he gave. In my view, his Honour sufficiently made clear the basis upon which he rejected the appellant's account, and I do not uphold ground 2.
That brings me to ground 1 which, I think, raises the proposition that the conviction of the appellant constitutes a miscarriage of justice: Criminal Appeals Act, s 8(1)(b). That is said to be so because, in all the circumstances, the magistrate was not entitled to reject the appellant's evidence as a contrived and incredible account put together to provide an explanation consistent with his innocence of an intention to sell or supply which would otherwise arise by operation of law from his possession, in the incontrovertible circumstances described above, of about 2 1/2 times the quantity of the drug which would give rise to the deemed intention.
Ground 1 puts the proposition badly by asserting that the conviction was unsafe, unsatisfactory and contrary to the weight of evidence. In that context, the parties debate the test to be derived from the leading authority of M v The Queen [1994] HCA 63; (1994) 181 CLR 487, as explained in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, and applied recently in SKA v The Queen [2011] HCA 13.
If the magistrate's decision about the credibility of the appellant as a witness giving evidence that he had no intention to sell or supply is supportable, then the conviction would be upheld because the application of s 11(a) of the Misuse of Drugs Act would establish the existence of the intention to sell or supply. There could then be no question that the conclusion of guilt was unreasonable or unsupported by the evidence.
The question for me is whether the conclusion of the magistrate about the credibility of the appellant as a witness is supportable. Because this is a credibility decision, I should not overlook, if it is relevant, the fact that the magistrate had the opportunity, denied to me, to both hear and see the appellant give evidence. However, I have set out the reasons given by his Honour for the decision to which he came. They do not appear to relate to the demeanour of the appellant as a witness. Rather, they are concerned with the inherent lack of credibility, as his Honour the magistrate saw it, in the story told by the appellant.
Even so, I must not upset the decision of the magistrate unless I consider that his Honour has failed to use, or has clearly misused, his advantage as the trial judge. In a case such as this I may come to that conclusion only if I think that it is clear that uncontested testimony, which ought to have been accepted, shows the findings made by his Honour to be unsupportable.
The leading case guiding an appellate judge placed as I am in relation to a case such as this, is Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Gleeson CJ, Gummow & Kirby JJ at 127 ‑ 129 [27] ‑ [31]. That decision was applied in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458, Kirby J, Gleeson CJ agreeing, at 466 [21] ‑ [23] and Callinan & Heydon JJ at 492 [180].
I may put my views as to the reasons why I have, with respect, reached the conclusion that the magistrate's decision must be set aside, quite shortly.
The decision depended upon the credibility of the story itself, and not upon any adverse conclusion about the truthfulness and reliability of the appellant as a witness. On that basis, it had to be accepted that the appellant's long‑standing cannabis use, for the reasons he gave, was of the order that he described in evidence. There was nothing to show that his evidence about the amount of his consumption was inherently unbelievable.
Nor was there any reason to suppose that he might not have hoped to acquire cannabis at the Merriwa Tavern for a price lower than that which he might ordinarily expect to pay a supplier such as Pierce. There was no reason to suppose that he did not in fact purchase the cannabis at the Merriwa Tavern in the circumstances that he described. There was nothing to suggest that he could not afford to pay the price of that transaction. Indeed, what the appellant said about the savings made and the benefit of not having to go out more frequently to see if he could source smaller quantities of cannabis, to my mind rings true.
There is no evidence to suggest that the appellant and his wife did not have an arrangement to go to the Pierces' house for a social occasion of a kind in which they habitually engaged. It does not seem to me that to secrete the cannabis in the cooler bag was inherently incredible.
The fact that the cannabis was placed under the bottles of beer is at least neutral as to whether there was any intention to sell or supply the cannabis to Pierce. But there is no evidence to suggest that the appellant might profitably on‑sell the cannabis which he had purchased at the Merriwa Tavern to Pierce so that he might again acquire cannabis to feed his habit, and at the same time make a profit on the sale.
Indeed, the appellant's evidence that he was low on his cannabis supply was directly supported by the fact that about 12 1/2 g of cannabis were found at his house when it was searched. Further, the fact that the only equipment found there was a bong was at least consistent with his story and was not inconsistent with it.

The disposition of the appeal

I conclude that the appeal must be allowed and the conviction and sentence of the magistrate must be set aside. I substitute the decision that the appellant is convicted of the offence of simple possession of cannabis: Criminal Appeals Act, s 14(1)(d).
I consider that I should accept the invitation of the parties, and go on to impose a sentence for that offence. I have noted that the magistrate imposed a fine of $3,000 for the offence against s 6(1)(a) of the Misuse of Drugs Act when he had power to impose a fine of $5,000 or imprisonment for 4 years or both.
In respect of the offence under s 6(2), I have noted that the maximum penalty is a fine of $2,000 or imprisonment for 2 years or both. It would not be appropriate for me to overlook the view of the magistrate that imprisonment was not required, but that a fine was the appropriate penalty. For the offence of simple possession in the circumstances of this case, I would impose a fine of $1,500, enforceable under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
The parties agree that if that should be my view I should deal with the question of costs. The appellant is a partly successful accused, within the meaning of s 4(2)(b)(i) of the Official Prosecutions (Accused's Costs) Act 1973 (WA). By s 7(1) of that Act, a partly successful accused may be awarded costs, both of the trial at first instance and on appeal, if the court is satisfied that the appellant incurred additional costs by reason of being charged with the offence in respect of which he was successful.
As I understand it, the appellant was prepared to plead guilty to the offence of simple possession. He has incurred additional costs by being put to trial and by the necessity for his appeal. However, the charge laid by the respondent was a reasonable and appropriate response to the circumstances, as they appeared to be, when the prosecution notice was issued.
The appellant's complete story only emerged at trial before the magistrate. Prior to that time, the prosecution were entitled, in my opinion, to consider that it was fairly arguable that the offence with which they had charged the appellant might be established beyond reasonable doubt. In the circumstances, I would make no award with respect to the costs of trial. Each party should bear their own costs of those proceedings.
However, the appellant has been successful on the appeal in securing the lesser conviction. In my view, he is entitled to the costs of the appeal. I fix them in the sum of $10,000, having regard to Item 23 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination, 2010 as applied by the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination, 2010.
I have regard to the fact that the appellant was represented on the appeal by senior counsel and to my assessment of what work would reasonably be required in the getting up and presentation of the appellant's case on the appeal. I have considered advice by the appellant's solicitors as to the costs they would seek upon taxation.