Jenvey v Cook - [1997] QCA 207

IN THE COURT OF APPEAL	[1997] QCA 207
SUPREME COURT OF QUEENSLAND

C.A. No. 128 of 1997

Brisbane

[Jenvey v. Cook]

MARK JENVEY

KAREN MAREE COOK

Appellant

Fitzgerald P.
McPherson J.A.
Helman J.

Judgment delivered 22 July 1997

Separate reasons for judgment of each member of the Court, Fitzgerald P. and McPherson J.A. concurring as to the reasons and order of Helman J.

APPEAL ALLOWED. CONVICTION OF OFFENCE UNDER S.9 DRUGS MISUSE ACT 1986 SET ASIDE. FINE OF $600.00 AND SENTENCE OF IMPRISONMENT FOR TWENTY DAYS IN DEFAULT OF PAYMENT OF FINE SET ASIDE. SUBSTITUTE A FINE OF $300.00 AND A SENTENCE OF IMPRISONMENT FOR TEN DAYS IN DEFAULT OF PAYMENT OF FINE FOR OFFENCE UNDER S.10 OF THE DRUGS MISUSE ACT 1986. FOUR MONTHS PERMITTED FOR PAYMENT OF THE FINE.

CATCHWORDS:CRIMINAL LAW - DRUGS - Appellant convicted of possession of a dangerous drug s.9 Drugs Misuse Act 1986 - cannabis sativa found on premises occupied by appellant and another - whether s.57(c) Drugs Misuse Act 1986 applies when another person has actual possession of a drug and accused has no actual knowledge of it.

R v. Nguyen and Truong [1995] 2 Qd.R. 285
R v. Clare [1994] 2 Qd.R. 619
R v. Sargent [1994] 1 Qd.R. 655
Symes v. Lawler [1995] 1 Qd.R. 226
Lawler v. Prideaux [1995] 1 Qd.R. 186

Counsel:	Mr S. Hamlyn-Harris for the appellant. Mr R. Martin for the respondent.
Solicitors:	Legal Aid Office (Qld) for the appellant. Queensland Director of Public Prosecutions for the respondent.

Hearing Date: 24 June 1997

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 22 July 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of
Helman J.

It is possible that the appellant pleaded guilty to the second offence, that on 13 December 1996 she unlawfully had in her possession a thing, a cigarette rolling machine, that she had used in connection with the smoking of a dangerous drug, because she had been found guilty of the offence the subject of this appeal. Further, it is not clear to me why her possession of a cigarette rolling machine was unlawful. However, this appeal does not relate to that conviction.

I agree that the appeal against the appellant’s conviction for unlawful possession of cannabis sativa should be allowed for the reasons stated by Helman J. and with the orders proposed by his Honour.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 22 July 1997

For the reasons (with which I agree) of Helman J., the appeal should be allowed to the extent proposed by his Honour in those reasons.

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered 22 July 1997

On 14 March 1997 the appellant came before the Magistrates Court at Proserpine charged under s.9 of the Drugs Misuse Act 1986, which is in Part 2 of that Act, with unlawfully having possession of a dangerous drug: it was alleged that on 13 December 1996 at Cannonvale, Queensland she unlawfully had…

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 Jenvey v Cook

Details

AGLC: Jenvey v Cook [1997] QCA 207
Case: [1997] QCA 207
Decision Date: 22/07/1997

CaseChat Overview and Summary

The case of Jenvey v Cook involves the appellant, Mark Jenvey, appealing against the conviction of Karen Maree Cook under section 9 of the Drugs Misuse Act 1986, which pertains to the unlawful possession of a dangerous drug, specifically cannabis sativa. The conviction arose from a search conducted on 13 December 1996 at a flat in Cannonvale, Queensland, where cannabis sativa was found in the possession of another individual, Neil Boland. Karen Maree Cook appealed on the grounds that the verdict was against the evidence and unsafe and unsatisfactory, and that the Magistrate erred in applying section 57(c) of the Drugs Misuse Act. The Court of Appeal considered these arguments and found that the Magistrate's application of section 57(c) was erroneous, leading to an unlawful conviction. The Court set aside the conviction and the associated fine and sentence, substituting a reduced fine and sentence for the offence under section 10 of the Drugs Misuse Act. The appeal was allowed, and the original conviction was set aside.

The primary legal issue the Court of Appeal had to decide was whether section 57(c) of the Drugs Misuse Act applied when another person had actual possession of a drug and the accused had no actual knowledge of it. The Court considered the application of section 57(c), which provides a conclusive presumption of possession if a dangerous drug is found in a place occupied or managed by the accused, unless the accused can prove they had no knowledge or reason to suspect the presence of the drug. The Court examined previous cases, including R v Nguyen and Truong, R v Sargent, Symes v Lawler, and Lawler v Prideaux, to determine the correct interpretation of section 57(c). The Court concluded that section 57(c) does not apply when another person has actual possession of the drug, as it was intended to address cases where no immediate physical possession is evident.

The Court of Appeal found that the Magistrate had incorrectly applied section 57(c) by assuming it applied to a situation where Boland had actual possession of the cannabis sativa. Since Boland was the sole possessor of the drug and Karen Maree Cook had no knowledge of its presence, she should not have been found guilty under section 57(c). Consequently, the conviction under section 9 was unlawful, and the appeal was allowed. The Court set aside the original conviction, the fine of $600, and the sentence of imprisonment for twenty days. In its place, the Court imposed a fine of $300 and a sentence of imprisonment for ten days in default of payment for the offence under section 10 of the Drugs Misuse Act. The Court allowed four months for payment of the fine, noting that the element of unlawfulness regarding the possession of the cigarette rolling machine was not clear but did not affect the outcome of the appeal.

Orders