Moore v Free Marijuana

[1996] QCA 406

IN THE COURT OF APPEAL	[1996] QCA 406
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No.292 of 1996
[Moore v. Freemarijuana]

DAVID CAMERON MOORE

v.

JOHN FREEMARIJUANA

Appellant

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Fitzgerald P.

Moynihan J.

Mackenzie J.

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Judgment Delivered 18/10/96
Judgment of the Court

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APPEAL DISMISSED

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CATCHWORDS:  CRIMINAL LAW - possession of a dangerous drug "cannabis sativa" - appellant asserted that he believed the relevant plant to be "cann abis indica", a plant not specified in the Drugs Misuse Act 1986 - whether the element of "possession" was proven.

EVIDENCE - Drugs Misuse Act 1986, s.56 - certificate of analysis tendered as evidence that a plant was "cannabis sativa" - appellant asserted that he believed the relevant plant to be "cannabis indica", a plant not specified in the Drugs Misuse Act 1986 - evidentiary status of an analyst's certificate discussed - nature of "evidence to the contrary" discussed.

Drugs Misuse Act s.9, s.56

R v. Apostilides (1984) 154 CLR 563 discussed

Counsel:	Appellant appeared on own behalf.
P.M. Ridgway for the respondent.
Solicitors:	Appellant appeared on own behalf.
Director of Public Prosecutions (Queensland) for the respondent.
Date of hearing:	10 October, 1996

REASONS FOR JUDGMENT - THE COURT

Judgment Delivered 18 October, 1996

The appellant was convicted by a Magistrate of having possession of a dangerous drug namely cannabis sativa. The grounds of appeal argued were that the Magistrate's decision was unsafe because the Crown did not call the analyst who certified the plant as cannabis sativa, that the Magistrate erred in rejecting the appellant's argument concerning the mental aspect of possession and that he erred in concluding that the appellant was "mentally in possession of the plant".

At the hearing a certificate under s.56 of the Drugs Misuse Act describing the plant as cannabis sativa was tendered. It was signed by a Senior Constable of Police stationed at the Scientific Section, who, amongst other things had completed a Bachelor of Science Degree, and a three month course at the Queensland Herbarium and had been appointed an analyst for the purposes of the Drugs Misuse Act. Upon its being admitted into evidence a certificate is evidence of the identity of the dangerous drug in question. In the absence of evidence to the contrary it is conclusive evidence of that matter. Although the point need not be formally decided in this case, the "evidence" referred to seems plainly enough evidence which is at least sufficient to raise a reasonable doubt concerning the correctness of the certificate.

The appellant argued that the prosecution should have called the analyst as part of its case. Before the Magistrate the appellant relied on R. v. Apostilides (1984) 154 CLR 563. Nothing in that decision obliged the prosecutor to call the analyst. It is also authority for the proposition that a decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it is seen to give rise to a miscarriage of justice. The appellant called the analyst and questioned him about the identification of the plant. The point he wished to establish was that cannabis sativa and cannabis indica were different species of plants. The record indicates that the analyst was aware of the point which the appellant wished to make but said definitely both in examination-in-chief and cross- examination that there was only one species of cannabis, cannabis sativa. There was therefore evidence both in the certificate and from the analyst that the plant to which the charge related was cannabis sativa.

The appellant who has no botanical or other scientific qualifications but claimed to be an expert on cannabis sativa on the basis of having read and written on the subject, gave evidence that he believed, although he could not be certain, that the plant was cannabis indica, not cannabis sativa.

The Magistrate found as facts that during the course of a public rally the plant seized from the appellant was taken from a bag, that the appellant said that he was going to perform an act of civil disobedience, that he referred to the plant as a "lovely marihuana plant" and elected to carry it after making that statement. Although it is not the subject of a specific finding in the reasons, there is uncontradicted evidence that after the appellant made his statements he and a number of other persons marched to police headquarters where the plant was seized from the appellant.

After referring to events at the rally the Magistrate said of the appellant:

"His evidence that he did not know whether the substance was sativa or indica in my opinion

is fanciful and not to be believed."

There was therefore no evidence acceptable to the Magistrate to the contrary of the statement

The finding also disposes of the second ground of appeal which was, in effect, that he believed
that he was in possession of a plant of a kind which was not prohibited by the Drugs Misuse Act.
The ground could not succeed unless there was some acceptable basis in the evidence that the
appellant may have had a reasonable belief that the plant was not cannabis sativa. It is not to be
assumed that the existence of such a belief would necessarily have been relevant to the question of
guilt. The meaning of "cannabis sativa" in the Second Schedule of the Act was not argued and in
view of the Magistrate's findings it was unnecessary to do so.

in the analyst's certificate and the analyst's oral evidence that the plant was cannabis sativa. necessary to establish possession. The appellant argued, on the basis of a passage in R. v. Solway (1984) 2 QdR 75 that, to be in possession of the plant, he had to know of its existence and lay some claim to it. It is unnecessary to comment on the correctness of that proposition. The Magistrate said that the appellant's reference to the plant as a lovely marihuana plant and his statement that he was going to perform an act of civil disobedience indicated that he had the requisite knowledge that the plant was cannabis and the fact that he carried the plant indicated that he had the requisite control to satisfy the definition. The Magistrate was entitled to so find. The appellant's argument that in taking the plant to police headquarters he was in a position analogous to that of a finder of goods is untenable factually and because s.25(1) of the Vagrants Gaming and Other Offences Act relating to possession of goods suspected of being stolen or unlawfully obtained is fundamentally different from s.9 of the Drugs Misuse Act. There is no substance in this ground.

The appeal is dismissed.