Police v Measey - [2017] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MEASEY
[2017] SASC 194
Judgment of The Honourable Justice Peek
21 December 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
The appellant was charged on separate Complaints with one count of possession of cannabis contrary to s 33L(2)(a) of the Controlled Substances Act 1984, and one count of failing to obey a reasonable direction for the safe and efficient regulation of traffic given to him by a police officer contrary to rule 304(1) of the Australian Road Rules, both charges arising from the circumstances surrounding the actions of police after stopping a vehicle in which there were three occupants. The appellant was seated in the front passenger seat.
The Magistrate found both charges proven. The appellant appeals against the Magistrate’s findings in relation to the possession of cannabis charge only.
The prosecution case was that, subsequent to the vehicle being stopped and the appellant alighting, a police officer – who was not called to give evidence - searched the vehicle and located a small bag of cannabis somewhere in the area of the front passenger’s seat. When questioned by the police, the appellant, who was intoxicated and irate at the time, said words to the effect that he would have smoked the cannabis had the police not been present.
Held per Peek J, allowing the appeal:
(1)     The Magistrate did not correctly approach and analyse the evidence relevant to the issue of possession, and misdirected himself as to the required elements of possession.
(2)     The possession charge was not proven beyond reasonable doubt on the evidence and inferences available before the Magistrate.
(3)     The finding of guilt is set aside and the complaint is dismissed.
Controlled Substances Act 1984 s 33L, referred to.
Taylor v Hayes (1990) 53 SASR 282, applied.
R v Khalil (1987) 44 SASR 23; R v GNN (2000) 78 SASR 293, discussed.
R v McCarthy [2015] SASC 11; R v Frangos (1979) 21 SASR 331; R v Curlija [1967] SASR 1, considered.

POLICE v MEASEY
[2017] SASC 194
Magistrates Appeal: Criminal
PEEK J.
Introduction

The appellant was charged on separate complaints with one count of possession of a controlled drug (cannabis) contrary to s 33L(2)(a) of the Controlled Substances Act 1984 (the Act), and one count of failing to obey a reasonable direction for the safe and efficient regulation of traffic given to him by a police officer contrary to rule 304(1) of the Australian Road Rules. Both charges arose from the circumstances surrounding the actions of police on 7 September 2016 near Pimba after stopping a vehicle in which the appellant was a passenger.
The charges were each found proven by a Magistrate after a trial on 27 September 2017. The appellant appeals against the Magistrate’s finding…

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 Police v Measey

Details

AGLC: Police v Measey [2017] SASC 194
Case: [2017] SASC 194
Decision Date: 21 December 2017

CaseChat Overview and Summary

In Police v Measey, the appellant was convicted by the Magistrates Court of South Australia of possessing cannabis and failing to obey a police direction. The appellant appealed against the conviction for possessing cannabis. The Supreme Court of South Australia considered the appeal and found that the Magistrate misdirected himself in his reasoning concerning possession. The court found that possession of the cannabis by the appellant was not proven beyond reasonable doubt.

The primary legal issues for the court were whether the Magistrate had misdirected himself in his understanding of the elements of possession, and whether the prosecution had proved the charge of possessing cannabis beyond reasonable doubt. The court found that the Magistrate had indeed misdirected himself in his understanding of the elements of possession and that the prosecution had failed to prove the charge beyond reasonable doubt.

The court held that the Magistrate had incorrectly and insufficiently directed himself on the critical matter of possession. The court found that the Magistrate's direction at paragraphs [33] to [34] concerning possession was incorrect and that his remark at paragraph [34] that the cannabis belonged to the appellant was not based on any identifiable evidence in the case. The court also found that the charge was not proven beyond reasonable doubt on the evidence and inferences available before the Magistrate. The court held that, in all the circumstances, it was preferable not to order a retrial and dismissed the complaint without ordering a retrial.

The court quashed the finding of guilt of the charge of possession of cannabis and acquitted the appellant of that charge. The appeal was allowed, and the complaint was dismissed. The court ordered that the finding of guilt of the charge of possession of cannabis be quashed and that the appellant be acquitted of that charge and that the complaint be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the reasons which follow, I allow the appeal on the basis of each of the two aspects of the second ground and quash the Magistrate’s finding of guilt of that charge. It is unnecessary to deal with the first ground of appeal. The evidence at trial At around 7:50pm on 7 September 2016, the appellant was one of three people travelling in a Ford sedan (the Ford sedan) which was timed by police as being driven at 158 kilometres per hour on the Stuart Highway near Pimba. Mobile patrol Police Constables Starkey and Blackwell stopped the vehicle and attempted to interview the driver. However, the appellant, who was sitting in the front passenger’s seat and was heavily intoxicated, alighted from the vehicle and began yelling at the police. He was saying that the vehicle belonged to his father and was questioning the alleged speed at which it was timed by police. The police told the appellant that the preparation and administration of the expiation notice would take 15 minutes but this did not mollify him. Inexplicably, he walked onto the Stuart Highway and stood in the south-bound lane. By this time it was dark and the police officers could see headlights approaching in the distance. As the vehicle (which in fact later proved to be a road train) continued to approach,[1] both the police officers and the driver of the Ford sedan told the appellant to get off the road but the appellant refused. As the vehicle continued to approach, Constable Starkey forcibly removed the appellant from the road. He estimated that by this time, the truck was less than ten seconds away from hitting the appellant.[1] Constable Starkey gave evidence that the truck was travelling at approximately 100 kilometres per hour, however Constable Blackwell estimated it was travelling at 30 to 40 kilometres per hour. The appellant was then restrained and Constable Blackwell issued him with an expiation notice for failing to obey a reasonable direction of a police officer. By this time, two additional police officers had attended to assist. One was Constable McKenzie who subsequently searched the Ford sedan and is said to have located a bag containing less than 25g of cannabis somewhere in the area of the front passenger’s seat (where the appellant had been sitting). It is necessary to be circumspect here because, as it happened, Constable McKenzie was not called as a witness and his evidence was in no way agreed.The examination-in-chief of Constable Starkey Constable Starkey was one of the officers who originally conducted the traffic stop. After recounting the above difficulties encountered with the appellant, he gave the following evidence relevant to the cannabis charge:A… At that point, due to the issues that we had with Mr Measey a Port Augusta patrol, which was heading south on a prisoner conveyance, stopped by our location. Once they were there those officers conducted a vehicle search of the speeding vehicle and from there a small amount of green vegetable matter was located in that vehicle.QDid you have any conversation with the defendant in regard to that cannabis?AYes, I interviewed him on a notebook statement in regards to that quantity that was found.QDo you remember that conversation?AAm I able to refer to my notes?QI will have to seek authority from his Honour.HIS HONOUR: Any objection?MR WRIGHT: No.HIS HONOUR: Refer to your notes if you need to, constable.AWill I continue?APP DEBONO: Yes, thank you.AI haven’t got Mr Measey word for word but what I have written down is this, Mr Measey responded, ‘What do you think, cunts’. I responded by saying, ‘Is this cannabis yours’. He later said ‘In my seat’. I then said ‘What are you going to do with the cannabis’ and Mr Measey says, ‘Smoke it all now with you dog cunts, you third world cunts’ and that was the end of the conversation due to his demeanour.[2][2] A serious problem with the accuracy of the transcription of this answer is discussed immediately below.HIS HONOUR: Sorry, after you said, this cannabis is yours and he said what?AHe said ‘In my seat’. So the cannabis was located in the foot well of the vehicle on the passenger side.APP DEBONO: As a result of that interview did you take any action in regards to that cannabis being attributed to the defendant?AYes, we issued a cannabis expiation notice.QWhy did you issue him with an expiation notice for the cannabis after that interview; what was your mindset after that interview with him?AThe mindset was the cannabis was located in his seating position in the vehicle. At the time I understood that he knew what the cannabis was and when asked what he was to do with the cannabis he quite clearly stated he would smoke it if police weren’t present.QDid that give you the opinion that was his and that is why you gave the expiation notice?AYes, it was. (Emphasis added)An uncertain transcription error

Decision

Reasons for decision

PEEK J

The Magistrate has incorrectly and insufficiently directed himself at paragraphs [33] to [34] concerning the critical matter of possession. It is necessary to add that his Honour’s further remark at paragraph [34] that “I am satisfied the cannabis belonged to Mr Measey and not to any other occupant in the car” which is perhaps directed at a possession/ownership distinction[14] does not appear to be based on any identifiable evidence in the case.[14] Obviously there are many situations where a person has possession of an item that is owned by a different person. The prosecution are only required to prove possession, not ownership.Conclusion as to the Magistrate’s process of reasoning and directions For the reasons stated above, I conclude that the Magistrate did not correctly approach and analyse the evidence relevant to the issue of possession and that his Honour misdirected himself as to the required elements of possession. This aspect of ground 2 of appeal is therefore made out. Allowing the appeal on this aspect of ground 2 would lead to a consideration of the broad discretion to either order a retrial or dismiss the charge. I consider that a retrial would not be warranted here in all of the circumstances including: that an acquittal on a retrial is likely; that if convicted, the penalty is likely to be very moderate; that the appellant still faces sentence on the “fail to obey direction charge”; and that the expense to the public of a retrial here is simply not justified in all of the circumstances. Accordingly, the preferable exercise of discretion would be not to order a retrial. However, I also conclude that the second aspect of ground 2 of appeal is made out, namely that the charge was not proven beyond reasonable doubt on the evidence and inferences available before the Magistrate. The correct consequence of success on this second aspect of ground 2 of appeal is an order for dismissal without retrial. In Taylor v Hayes, Perry J stated:[15] Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.[15] (1990) 53 SASR 282, 291. Having performed that independent review of the evidence, I consider that, in all of the present circumstances, possession by the appellant of the subject cannabis was not proven beyond reasonable doubt. Accordingly, by reference to that second aspect of ground 2 of appeal, I find the appellant not guilty of that charge. I order that that complaint be dismissed without an order for a retrial. Orders1. The appeal is allowed.2. The finding of guilt of the charge of possession of cannabis is quashed.3. The appellant is acquitted of the charge of possession of cannabis and that complaint is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Full text does not contain this section.