Mickelberg v The Queen

[2000] WASCA 163

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   MICKELBERG -v- THE QUEEN [2000] WASCA 163

CORAM:   SCOTT J

HEARD:   9 JUNE 2000

DELIVERED          :   15 JUNE 2000

FILE NO/S:   CCA 87 of 2000

CCA 94 of 2000

BETWEEN:   RAYMOND JOHN MICKELBERG

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Application for bail pending appeal - Exceptional circumstances - Drug offences - Possession with intent to supply - Summing-up of trial Judge - Substantial portion of custodial sentence will be served before appeal will be heard - Not of itself a sufficient basis for granting bail

Legislation:

Bail Act 1982, Sch 1 Part C cl 4(b)

Misuse of Drugs Act 1981, s 3, s 11

Result:

Application dismissed

Representation:

Counsel:

Applicant:     Mr M J McCusker QC & Mr G H Lawton

Respondent:     Mr A G Elliott

Solicitors:

Applicant:     Lawton Gillon

Respondent:     State Director of Public Prosecutions

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

Caratti v R [1999] WASCA 91

Chamberlain v The Queen (No 1) (1983) 153 CLR 514

Manisco (1995) 79 A Crim R 213

Robinson v The Queen (1991) 65 ALJR 519

Tran v R, unreported; SCt of WA; Library No 990117; 11 March 1999

Case(s) also cited:

Bernt (1984) 70 A Crim R 1

Ex parte Maher [1986] 1 Qd R 303

Marotta v R (1998-99) 160 ALR 525

R v Bibby, unreported; CCA SCt of WA; Library No 960308; 3 April 1996

Williams v The Queen, unreported; CCA SCt of WA; Library No 930255; 5 May 1993

1. SCOTT J:  The applicant has applied for bail pending appeal.  The application arises following the trial of the applicant in the District Court in Perth, in which he was convicted of two counts of possession of cannabis with intent to sell or supply.  The quantity of cannabis involved was in excess of 1.5 kgs on one of those counts and in excess of 2.5 kgs on the other count.  It is common ground that the quantity concerned was substantially in excess of the quantity required to give rise to a presumption of an intention to sell or supply.

2. The applicant was sentenced to a term of 2 years' imprisonment with respect to each of the two counts of which he was convicted.  Those sentences were ordered to run concurrently and a parole order was made in respect of them.

3. The sentences were imposed on 18 April 2000 so that on 18 December 2000 the applicant will become eligible to apply for parole. 

4. It is common ground that the applicant's appeal against his conviction and sentence is unlikely to be heard before the September sessions of the Court of Criminal Appeal. 

5. Senior counsel for the applicant accepts that for the application to succeed, the applicant must demonstrate exceptional circumstances. That is common ground and, in any event, is provided for in Sch 1 Part C of the Bail Act 1982 in cl 4(b).

6. There are two matters which senior counsel for the applicant contends constitute exceptional circumstances in this case:

   1that a substantial portion of the custodial part of the applicant's sentence will be served before his appeal can be heard; and

   2that the applicant has a strongly arguable case on appeal so that there is a distinct possibility that the appeal will succeed.

7. The application is to be judged on the material that has been placed before this Court and it is important to note that a full copy of the transcript of the trial has not been provided.  Excerpts of the transcript containing what counsel submit are relevant portions have been annexed to the various affidavits filed in relation to this matter.  Following the hearing of the application I was provided by consent with a copy of the summing-up of the trial Judge.  Nonetheless, the transcript of the trial runs into in excess of 900 pages and it is clear from the material that has been provided on this application that only a very small proportion of that transcript has been produced.  It is extremely difficult to make any proper assessment as to the strength of the appeal with so little transcript, as will become apparent in these reasons.

8. It is common ground that on 14 May 1997 the date alleged in counts 2 and 3 on the indictment, the applicant was found with quantities of cannabis in his possession.  One quantity was located in bushland and concealed within blackboy trees at various locations and the other quantity was located in a crate in the garage of the applicant's house.  It is not disputed that the applicant had possession of each of those quantities of cannabis.  The defence case was that the cannabis was not the applicant's but that he was holding it on behalf of another, Lindsay Edward Treby ("Treby") who had given it to him for safekeeping pending its disposition.  Treby was called to give evidence and testified that he had supplied the cannabis to the applicant for safekeeping on the basis that an associate known both to Treby and the applicant, one George Laurenson ("Laurenson") or another would collect it.  The applicant's evidence at trial was that it was not made clear to him whether Laurenson or another of Treby's acquaintances would collect the cannabis, but it was a matter of indifference to him so long as it was eventually taken away.  The applicant accepted in cross-examination that because of its quantity, the cannabis was clearly to be taken for the purpose of sale or supply. 

9. In the course of the submissions in relation to this application, considerable focus was placed upon the basis upon which it was said that the applicant was holding the cannabis.  The bail application was argued on the basis that it was common ground that the applicant had no propriety interest in the cannabis and, that he was holding it, either to hand on to Laurenson or to another person or persons to collect on Treby's behalf. 

10. In the course of the hearing of the application, the summing-up of the trial Judge was not made available to this Court but as I have already said it has since been made available.

11. On reading the summing-up of the trial Judge, it is apparent that the basis upon which the bail application was argued namely that that the applicant did not have a beneficial interest in the cannabis but was only holding it on behalf of Treby to deal with as Treby directed, was misconceived.  On reading the summing-up of the trial Judge, it is apparent that the case was left to the jury for determination on the issue of whether the applicant had the cannabis for his own purposes or whether, as Treby testified, it was only held on his behalf to pass on to Laurenson or another.

12. Upon reading the summing-up of the trial Judge, it is clear that the case was left to the jury on the basis of a factual contest as to whether the cannabis was the applicant's or that of Treby.  By the jury verdict, it is clear that the jury was satisfied beyond reasonable doubt that the applicant had the cannabis as a principal.  That there was evidence to support that conclusion was made apparent by the trial Judge in his summing up.  His Honour outlined that the applicant's son used a portion of it and that the applicant was involved in stripping the cannabis that was in his garage.

13. In my opinion, the learned trial Judge made it clear to the jury that if the applicant had the drugs on the basis that he was simply holding cannabis owned by Treby for return to Treby, then he would not be guilty of the offence of possession with intent to sell or supply: Manisco (1995) 79 A Crim R 213 per Steytler J at 225. It is not in dispute that the learned trial Judge's summing-up in that respect was not in error.

14. The submission by senior counsel for the applicant was that there was no dispute that Treby's evidence was correct and that the Crown relied upon it.  It was said that it was not in dispute that the cannabis belonged to Treby.  It was also said that it was not in dispute that the cannabis was to be collected either by Laurenson or somebody else on behalf of Treby, either for the purpose of returning it to Treby or to be dealt with at Treby's direction. 

15. In my opinion, however, the summing-up of the learned trial Judge does not support those contentions.  The case was summed-up by the trial Judge on the basis that the contest was whether the cannabis was the applicant's (which was the Crown's case) or whether the applicant was simply holding the cannabis on the basis that it was and remained the property of Treby, to be disposed of at Treby's direction, either to Laurenson or somebody else on Treby's behalf.  In my view, the fact that the jury convicted the applicant on these counts leads inevitably to the conclusion that the jury was satisfied beyond reasonable doubt that the cannabis belonged to the applicant.

16. If it be the case, as in my view it must have been, that the jury accepted that the cannabis was at the control or disposition of the applicant, then the presumption contained in s 11 of the Misuse of Drugs Act 1981 operated so as to deem the applicant to be in possession of that drug with the relevant intent.

17. The contention by counsel for the applicant was that the Crown accepted Treby as a witness of the truth, and that the real contest was whether the applicant as bailee of the cannabis, held the drug for the benefit of Treby or Treby's agent and if so, as to whether that constituted a defence to the charge.  If that proposition is right, and on the papers before this Court it is impossible to make that judgment, then the summing-up of the learned trial Judge never focused upon that issue.  As I have already said, the way the case was left to the jury revealed the contest as being whether the cannabis belonged to the applicant in his own right (in the sense that he had control or dominion over it - see the definition of "to possess" in s 3 of the Misuse of Drugs Act 1981), or whether the beneficial ownership of that drug was always that of Treby and that the applicant's involvement was only that of a bailee.

18. I would emphasis that it is impossible on the materials placed before me to make any assessment as to the strength of this appeal and as to whether or not the grounds of appeal or any of them are likely to be made out.

19. The only matter that falls for consideration on the issue of bail is whether the length of time that the applicant will spend in custody prior to the appeal being heard of itself constitutes a sufficiently exceptional circumstance to justify his release on bail without anything further.  Whilst it is true that should the appeal be heard in September, a substantial portion of the custodial term will have been served, in my view, in this case, that of itself is not sufficient to justify the grant of bail, unless the court was satisfied that there was some distinct merit in the appeal: see Chamberlain v The Queen (No 1) (1983) 153 CLR 514 per Brennan J at 519-520; Tran v R, unreported; SCt of WA; Library No 990117; 11 March 1999; and Caratti v R [1999] WASCA 91 per Miller J. See also the considerations referred to by Gaudron J in Robinson v The Queen (1991) 65 ALJR 519 at 519, 520.

20. If, as senior counsel for the applicant says, a grave injustice may be suffered by the applicant because the appeal is unlikely to be heard until September, then in my view the appropriate course is to apply to the Listing Co‑ordinator with a view to having the appeal listed as a matter of urgency.  So far as counsel for the applicant was able to inform me, no such application has as yet been made.

21. The application will be dismissed.