Dixon v Lusted

[2010] TASSC 16

[2010] TASSC 16

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Dixon v Lusted [2010] TASSC 16

PARTIES:  DIXON, Michelle Louise
  v

LUSTED, Sergeant Gary

FILE NO/S:  521/2009
DELIVERED ON:  15 April 2010
DELIVERED AT:  Launceston
HEARING DATE:  15 March 2010
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Need for error to be shown – Whether finding reasonably open – Allegation that it was unsafe and unsatisfactory – Circumstantial evidence.

Justices Act 1959 (Tas), s107(4)(a).

Kelly v O'Sullivan (1995) 4 Tas R 446; Hadju v Brown [2007] HCA Trans 245, considered.

Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
             Applicant:  S J N Brown
             Respondent:  A Hensley
Solicitors:
             Applicant:  Simon Brown
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASSC 16
Number of paragraphs:  23

Serial No 16/2010
File No 521/2009

MICHELLE LOUISE DIXON v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT  CRAWFORD CJ
  15 April 2010

1. The applicant moved the Court to review convictions by a magistrate for one count of selling a controlled drug (Ritalin, morphine, dexamphetamine and methylamphetamine) and one count of selling a controlled plant or its products (cannabis).  The evidence was circumstantial.  The sole ground of the review is that there was "a miscarriage of justice in that her conviction was unsafe and unsatisfactory in that the Learned Magistrate erred in fact in convicting the applicant when there was, on the evidence, a reasonable hypothesis consistent with innocence open to the Court which had not been excluded beyond a reasonable doubt".  For reasons I will give, the motion fails.

The evidence

1. Police went to the home of the applicant on 21 September 2007 and searched it.  In her bedroom was found a mobile telephone and a container that had been used for the supply of methadone.  Also found were some syringes, a smoking device, cannabis and cannabis seeds.  The applicant admitted that the house was hers and that she lived there with her two children.  She also admitted that the mobile telephone belonged to her.  She said that Dale Apted had stayed at her home a fair bit, but she had moved him out about a week before. 

1. The mobile telephone contained a number of text messages, in its inbox and sent box, that were received or sent between 1 August 2007 and the day of the search on 21 September 2007.  The messages amounted to cogent evidence that at least one person had been using the telephone for the purpose of dealing in drugs that included Ritalin, dexamphetamine, methylamphetamine and cannabis.  A number of them appeared to have been sent to or by Dale Apted because they contained his nickname, Daz or Dazz, as either the sender or receiver.  A number did not appear to have been sent or received by him because, although they may have referred to his name, if they did so it was in the third person and not in the context of him being the sender or receiver.  Three messages are likely to have been sent to or by the applicant.  They were the following:

1On 19 August 2007, a message was sent to the telephone which said "Hi shelly, daz. was wondering if mite b able 2 get any things ... ds or rs? tomorrow – cash and bit smoko also if u camm help me .. at hagley but b bak 18r or morn".  It appears likely that the message was sent to both the applicant and Apted, or to the applicant only, and that it was asking if dexamphetamine, Ritalin and cannabis could be supplied the following day for cash.  In her interview she accepted that some people may have called her "Shell" and did not challenge that "Shell" may have been a reference to her.

2On 21 August 2007, "Michelle", the name of the applicant, sent a message from the telephone asking "Mel" if there was "any luck with any smoko", an enquiry for cannabis.  To the police the applicant said Mel was an acquaintance.

3On 21 September 2007, the day of the police search and about a week after Apted had moved out of her house, according to the applicant, a text was sent to the telephone asking if the unnamed recipient wanted the unnamed sender to come over and mind the kids and whether the recipient could "give me some please", adding that the sender would give the recipient some smoko, no doubt a reference to cannabis.  There is every likelihood that the recipient was the applicant because it was her telephone and she had two children.

1. At the house, she was asked who else used her telephone.  She said just Dale Apted, that he did not own a telephone and had "predominantly used my phone over the last couple of months".  She said that the two of them predominantly used it, but she did not know if he allowed his mates to use it also. 

1. A formal interview with the applicant was conducted three days later on 24 September.  She said that the smoking device belonged to her and that she used it for smoking cannabis.  She declined to state her source of supply.  She was asked about a number of syringes found in her bedroom.  She said that she did not know to whom they belonged and she declined to answer a number of other questions concerning them. 

1. She admitted being the owner of two bags of cannabis found in her handbag.  She refused to comment on the reason for them being in individual bags and about her source.  She denied that the cannabis was intended for anyone else and claimed that she intended to use it.

1. She said that she was taking prescribed methadone in liquid form and that Apted was on a methadone program as well. 

1. She indicated that off and on Apted had stayed at her house for a couple of years.  He had used her mobile telephone, not having one of his own.  She said that some of his friends probably used it as well, but she did not know the names of his friends.  Apted received visitors at the house who would stay for "half an hour maybe".  She only knew about 10 percent of them.  Sometimes they would go into her bedroom and she would go into the lounge because she did not want to be in there.  Asked why he used her bedroom, she said that she did not know but supposed it was possible that he did not want to talk in front of her children. 

1. She claimed to be unaware of the messages that were recorded in her inbox and sent box.  She denied being involved in the sale or supply of drugs and declined to comment when asked whether Apted was involved. 

1. No evidence was given or adduced by the applicant.

The magistrate's findings

1. The learned magistrate found both charges proved for the following reasons:

"The history of the matter is that on the 21^st of September 2007 with, what is conceded to be a lawfully issued warrant.  The search was conducted of the defendant, Dixon's house.  At the house, multiple drugs were found, a smoking device and a number of syringes, which it is conceded were implements for use and administration of illicit drugs.  Also found in the defendant's bag, that's the defendant Dixon's bag, was a mobile phone which she conceded was hers.  Ms Dixon was at the house at the time of the search and upon being asked, directed police to drugs and a number of the implements which were in her bedroom in a cupboard.  She conceded, as I've noted that the mobile phone was hers, although denied knowing the subject matter of texts on the phone and claimed that Mr Apted, who she said had been living with her on and off for a number of years, used it frequently and that probably the texts were his. She said that she did not know whether he lent it to his mates.  But the implication clearly was that that may have been the case. 

I have been given a record of a number of text messages which were received and sent during the relevant period and I'm satisfied on the evidence that they are substantially messages either asking for, or offering drugs.  From the messages it is clear that there are multiple messages requesting, offering for sale, and offering for exchange a number of illicit drugs, including methadone, cannabis, Ritalin and dexamphetamine during the relevant period.  I was unable from the evidence to identify any offer or request for, morphine during the relevant period and insofar as the charge includes that drug, it will not be found proved.

The only conclusion I can draw from the messages which I would have thought were only open to one interpretation, is that a person or persons using the phone, was engaged in and was known by other persons who were the senders and receivers of the text, to be engaged in the trading of illicit drugs.  The phone belongs to Ms Dixon, or at the time belonged to Ms Dixon, and it seems to me to be inconceivable despite her protestations, that she did not know and was not involved in what it was being used for.  That conclusion of my view is reinforced in the light of what was found in her bedroom, and in, that being a substantial amount of drugs and syringes and a pipe, which were used as I said earlier, for smoking and/or administration of those drugs.  Secondly, it's reinforced by her admission that Mr Dale Apted was a friend and had been living in her house on and off over something up to a three year period and her admissions that he had 'habits', with, visitors of taking them into her room for short periods, which I would have thought would only be consistent in her mind with drug deals.  It seems to me in that context is that it's virtually impossible for Ms Dixon to protest that she was, if not directly involved in physically selling, then either authorising, permitting, or suffering the dealing in illicit drugs to take place by the use of her phone and on her premises."

What had to be proved?

1. The offences were created by the Misuse of Drugs Act 2001, ss26 and 27. The applicant was charged with selling the drugs. The extended definition of "sell" in s3(1) includes agreeing to sell; offering to sell; dealing in, bartering or exchanging; and permitting or suffering any of those things to be done. Subsection (3) provides that a person is taken to engage in an activity if that person participates in it; controls or directs it; or provides finance or another resource that allows the activity to be carried on.

1. The effect of the Justices Act 1959, s73(1), was that where an offence is committed by a person, another is also guilty of committing it if he or she does an act for the purpose of enabling or aiding the principal offender to commit the offence of abets the principal offender to commit the offence.

1. Therefore, the applicant could be found guilty of the charges if it was proved beyond a reasonable doubt that she sold, agreed to sell, offered to sell or dealt in, bartered or exchanged any of the illegal drugs; or that she permitted or suffered any of those things to be done; or if she participated in any of those things; or if she provided finance or another resource that allowed the activity to be carried on; or if she did an act for the purpose of aiding or enabling the principal offender to commit the offence; or if she was present and encouraging the principal offender to commit the offence.

The ground of review

1. The ground is expressed as "a miscarriage of justice in that her conviction was unsafe and unsatisfactory".  It is particularised upon the basis that the learned magistrate erred in fact in convicting the applicant because on the evidence there was a reasonable hypothesis consistent with her innocence which was not excluded beyond a reasonable doubt. 

1. For a case such as this, the Justices Act, s107(4)(a), requires that a ground must allege an error or mistake on the part of the magistrate or justices on a matter or question of fact alone or of law alone, or of both fact and law. An assertion of a miscarriage of justice alone is not a proper ground of review, for it does not assert an error or mistake of the kind required by the section. However, the ground in this case goes on to assert that the conviction was unsafe and unsatisfactory because of an error in fact that was made by the learned magistrate. In Kelly v O'Sullivan (1995) 4 Tas R 446 at 451, Green CJ held that unsafe and unsatisfactory is only a valid ground if it is based upon an allegation that the magistrate was in error in finding a charge proved when he ought to have entertained a reasonable doubt. At 460, I held that if a finding of guilt is unsafe and unsatisfactory in the sense that it is unreasonable or cannot be supported having regard to the evidence to the extent that, although there might have been evidence upon which the finding of guilt could have been based, it would be dangerous in all the circumstances to allow the finding to stand, then an error or mistake on the part of the magistrate on a matter or question of fact has occurred, and a ground asserting it was a valid one.

1. Both Green CJ and I were concerned that error on the part of the magistrate had to be shown.  That requirement was confirmed by Hayne J, with whom Crennan J agreed, when refusing special leave to appeal in Hajdu v Brown [2007] HCATrans 245. His Honour made the point that the test in M v R (1994) 181 CLR 487 for a miscarriage of justice by reason of an unsafe, unsatisfactory or unreasonable jury verdict is not a test that is raised by the review provisions of the Justices Act.  The matter was mentioned by the Full Court in Phillips v Arnold [2009] TASSC 43 at pars41 – 46.

1. I propose to approach the ground of review in this case upon the traditional basis, which I will state. Section 107(4)(a) requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. If the finding of guilt was not reasonably open on the evidence then the motion should be upheld. If, on the other hand, the magistrate might, as a reasonable person, have come to the finding, then the motion should be dismissed. The onus is on the applicant to establish that the finding was not reasonably open.

1. The evidence of guilt was entirely circumstantial.  Because of that, a question that was raised was whether the inference of guilt was the only inference reasonably available on the evidence.  If there was a rational hypothesis or a reasonable possibility consistent with innocence, the charge was not proved.  Chamberlain v R (No 2) (1984) 153 CLR 521; Shepherd v R (No 5) (1990) 170 CLR 573.

1. Counsel for the applicant did not contend that it was not reasonably open to the learned magistrate to find from the messages recorded on the telephone that the person or persons who used it were engaged in, and were known by persons who were the senders and receivers of texts to be engaged in, the trading of illicit drugs. 

1. Instead, he submitted that the learned magistrate ought to have concluded that it was a reasonable possibility that the applicant was not involved in any way as an offender.  He argued that the evidence left open the reasonable possibility that she was ignorant of dealings in drugs engaged in by Apted and possibly others, and of the use of her telephone and house for that purpose.  He submitted that the findings of the learned magistrate that it was inconceivable that she did not know and was not involved in what her telephone was being used for was erroneous.  He submitted that another finding that was erroneous was that Apted's habit of taking visitors into her bedroom for short periods was only consistent with drug dealing by Apted.  Counsel's main submission was that the applicant's version of the events and her claim to have been ignorant of drug dealing, and of not being a party to it, was a reasonable possibility having regard to the evidence. 

Conclusion

1. I hold that the finding of guilt has not been shown to be one that a reasonable person could not have reached.  It was justified having regard to the many texts on her telephone that established it was being used for drug trafficking; the terms of two of the texts that implicated her specifically; her admissions concerning visitors who would stay for "half an hour maybe", some of whom would go into her bedroom with Apted while she stayed in the lounge; her association with drugs as a user of cannabis and methadone and her possession of syringes; and her close association with Apted, who was proved to be trafficking and who lived in her home for much of a long period of time.  The learned magistrate was not obliged to accept the applicant's denials to police of any knowledge of or involvement in drug dealing.  There was sufficient evidence to justify the finding that the charge was proved.  It was not unreasonable to reach a conclusion that innocence was not a reasonable possibility. 

1. The motion to review will be dismissed.