Police v Gibo

[2010] QMC 25

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Gibo & Anor [2010] QMC 025

PARTIES:

POLICE

(prosecution)

v

REUBIN GIBO

(defendant)

JONATHON AIDEN

(defendant)

FILE NO/S:

MAG111986/10(0), MAG111989/10(9)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge

ORIGINATING COURT:

Magistrates Court at Kowanyama

DELIVERED ON:

17 November 2010

DELIVERED AT:

Kowanyama

HEARING DATE:

22 October 2010

MAGISTRATE:

Bentley JM

ORDER:

I find the defendant Aiden not guilty. I find the defendant Gibo guilty.

CATCHWORDS:

LIQUOR LAW – OFFENCES – attempt to enter restricted area with alcohol

Liquor Act 1992, s 168C

COUNSEL:

Bowen for defendants

SOLICITORS:

Prosecution on own behalf

ATSILS for defendants

1. At about 11.30pm on 5 June 2010 the Nissan Patrol which Gibo was driving and in which Aiden was one of two passengers was stopped by police about 100km out from Kowanyama, on the Kowanyama Dunbar Road.

1. Sgt Kersley asked Gibo where he was going and he answered, “Kowanyama, home”. He was asked whether there was any alcohol in the car and he said there wasn’t. The police opened the rear doors of the car and found more than 182 litres of alcohol, consisting of 37 casks of wine, 14 bottles of rum and 65 cans of beer.

1. The defendants are charged with attempting to enter Kowanyama Shire Council whilst in possession of liquor.

1. The defendants say they are not guilty.

1. The road led only to Kowanyama, the Normanton and Koolatah turnoffs being prior to the interception point. There were a number of dirt tracks leading off the road to cattle stations, some of which provide a back way into Kowanyama.

1. In order to prove its case the prosecution must prove beyond a reasonable doubt that the defendants intended to take the liquor into Kowanyama.

1. There is no evidence that Aiden was in possession of the alcohol. He was a passenger in the car and although I find that he must have known of the presence in the vehicle of such a large amount of alcohol, there is nothing to prove that he possessed, had custody or had control over any of the alcohol. I find him not guilty of the offence.

1. I find that, taking into account the amount of alcohol in the vehicle, Gibo must also have known that it was in the vehicle. He was in charge of the vehicle and was driving the vehicle (and taking the alcohol) to Kowanyama and, therefore, in moving the alcohol he was exercising some control over the alcohol.

1. The defence submits that it is possible that he was going to drop the alcohol off somewhere in the bush, prior to entering the restricted area. There is no evidence of that before the court and I do not accept that it is a likely possibility given the amount of alcohol in the vehicle and that Gibo told Kersley that he was going home to Kowanyama.  Further, such a finding would necessarily involve speculation which is impermissible.  To find the defendant Gibo guilty, the facts as alleged by the prosecution must be the only rational hypothesis open on the evidence. I find that it is and find the defendant Gibo guilty of the offence as charged.