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 194Magistrates 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…
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CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
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