QPS v Price
[2014] QMC 31
•6 June 2014
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
QPS v Price & Anor [2014] QMC 31
PARTIES:
QPS
(Prosecution)v
Glen Price
(First Defendant)Deborah Sells
(Second Defendant)FILE NO/S:
MAG-00213354/13
MAG-00213850/13
DIVISION:
Magistrates Courts
PROCEEDING:
Trial
ORIGINATING COURT:
Innisfail
DELIVERED ON:
6 June 2014
DELIVERED AT:
Innisfail
HEARING DATE:
16 May 2014
MAGISTRATE:
J Brassington
ORDER:
I find Defendant Sells guilty and I find Defendant Price guilty of the supply charge and not guilty of failing to keep a drug in his possession
LEGISLATION:
Drugs Misuse Act1986 – Supply
Health (Drugs and Poisons) Regulation 1996PROSECUTION:
DEFENCE:
Senior Constable Marre (QPS)
Mr C Blischen Solicitor for First and Second Defendants
On the 31 October 2013 Deborah Sells and Glen Price were living together. Ms Sells was then 55 years old and Mr Price 64 years old. They were not then in a relationship (although they had been previously) but were old and trusted friends. They had known each other for 21 years. At a time between 10.30am and 11am Ms Sells drove Mr Price to an appointment to see his solicitor with respect to pending charges. Mr Price had at that time in his possession two sheets of drugs: Diazepam (five tablets) and 4 tablets of Tramalon Hydrochloride (“Tramadol”). Mr Price was lawfully prescribed both these drugs. Before going into his solicitor he handed both drugs to Ms Sells. In evidence he explained this was because he was delivering papers to his solicitor and did not have any pockets to store the drugs. He further testified he had not left the drugs at home because he was concerned some other persons in the house would have unlawfully taken the drugs. This had happened previously. Ms Sells took the drugs for safe-keeping. She arranged to pick up Mr Price after the meeting.
After dropping off Mr Price Ms Sells drove to their home. She then recalled she had a medical appointment. She travelled to that appointment. At about 11.55am she was intercepted by police. She consented to a search of her vehicle saying “you won’t find anything”. Police did find the following items:
·The two sheets of Tramadol and Diazepam handed to her by Mr Price (she declared these items to police); and
·A box of Tramadol under the driver’s seat with 18 tablets. The box was labelled “Glen Price”.
Ms Sells denied all knowledge of the box of Tramadol. She stated to police that Price had given her the two slides earlier in the morning to “hold onto” while he visited his solicitor. She admitted she did not hold a prescription for either drug.
Ms Sells was charged with the following offences:
On the 31st of October 2013 at Innisfail in the State of Queensland Deborah Ann Sells unlawfully had possession of a dangerous drug namely Diazepam (s 9 of the Drugs Misuse Act)
That on the 31st day of October 2013 at Innisfail in the State of Queensland Deborah Ann Sells had in her possession a restricted drug Tramadol Hydrochloride without being endorsed under the Health (Drugs and Poisons) Regulation 1996 to have possession of the said restricted drug (s 146(1) of the Health (Drugs and Poisons) Regulation 1996.
The second charge only related to the Tramadol she held for Mr Price. The prosecution disclaimed reliance on s 129(1)(c) of the Drugs Misuse Act and accepted Ms Sells did not have knowledge of the pack of 18 Tramadol nor any reason to suspect their presence.
Police then located Mr Price at his residence. He had walked home after Ms Sells had failed to pick him up. He spoke to police and told them he had given Ms Sells two slides of drugs before he went to his solicitor because he was scared they would fall out of his pocket. He further stated that he had lost the box of Tramadol in the last few days and they must have fallen out of his pocket when he was doing work on Ms Sell’s vehicle.
Mr Price was charged:
On the 31st of October 2013 at Innisfail in the State of Qld Glenn Price did unlawfully supply a dangerous drug namely Diazepam to another person namely Deborah Ann Sells (s 6 of the Drugs Misuse Act)
That on the 31st day of October 2013 at Innisfail in the State of Queensland Glenn Price being in possession of a restricted drug Tramadol Hydrochloride pursuant to subsection 1 of s 205 the Health (Drugs and Poisons) Regulation 1996 failed to keep the said restricted drug in his possession until it was used (s 205(2)(a) of the Health (Drugs and Poisons) Regulation 1996).
Both defendants pleaded not guilty to the charges. A trial of the matter was held before me on 16 May 2014. Both defendants were represented by Mr Blischen. There was little dispute as to the facts. The prosecution evidence was admitted by the defendants.’[1] Both defendant’s gave evidence and were cross-examined. Their evidence was substantially unchanged from what they told the police on the day. By giving evidence they assumed no burden of proof. The burden rests on the prosecution to prove their guilt. They are both entitled to the presumption of innocence. There is no burden on them to establish any fact, let alone their innocence. They may only be convicted if the prosecution establishes that they are guilty of the offences charged. For the prosecution to discharge its burden of proving their guilt they are required to prove beyond reasonable doubt they are guilty. This means that in order to convict them I must be satisfied beyond reasonable doubt of every element that goes to make up the offences charged. Each case of course has to be considered separately and the defendants tried solely on the evidence admissible in their case.
[1]See s.644 of the Criminal Code and with respect to the summary matters s. 148 of the Justices Act 1886 and the reasons on the record.
The primary issue in the trial is whether the possession and supply of the dangerous drugs was unlawful. That is was the possession of dangerous drugs authorised, justified or excused by law? Mr Blischen’s submission were:
·Provisions of the Health (Drugs and Poisons) Regulation 1996 excused Ms Sells.
·The passing of the tablets from Mr Price to Ms Sells was not a supply (R v Casey (1990) NSWLR 292).
·The loss of the tablets was an accident.
·In all the circumstances it would be unjust to convict as both did not appreciate the conduct was unlawful.
The prosecution submits that because of the potential for abuse the regulatory regime for the possession and control of restricted and dangerous drugs is necessarily strict. The statutory regime regulating the possession of restricted drugs does not provide an excuse to either Ms Sells or Mr Price and the consequent supply and possession are unlawful.
It is necessary to set out the regulatory framework to properly understand the submissions.
THE REGULATORY FRAMEWORK
The regulation of the possession of drugs in Queensland is done by two separate pieces of legislation: the Drugs Misuse Act 1986 and the Health (Drugs and Poisons) Regulation 1996 (HDP Regulation). The HDP Regulation is subordinate legislation made under the Health Act 1937. The HDP Regulation is largely concerned with the lawful possession and dispensation of medicines and poisons. The designation of medicines and poisons (i.e. whether drugs are defined as S3, S4 or otherwise) in the HDP Regulation is controlled by the Poisons Standard 2012 made under the Therapeutic Goods Act 1989 (Cth). Section 52AA of the Therapeutic Goods Act sets out the purpose of scheduling drugs and poisons in the Poisons Standard:
“The scheduling of substances allows restrictions to be placed on their supply to the public, in the interests of public health and safety. This is aimed at minimising the risks of poisoning from, and the misuse and abuse of, scheduled substances.”
There is no dispute Diazepam and Tramadol are S4 (Schedule 4) drugs. As such they are restricted drugs for the purposes of the HDP Regulation.[2]
[2]See Appendix 9 definitions
Possession of restricted drugs is unlawful unless a person is “endorsed to possess the drug” (Section 146(1) of the Health (Drugs and Poisons) Regulation 1996 (HDP Regulation). Section 204 of the HDP Regulation also provides that a person must not possess a restricted drug that the person did not lawfully obtain.
Diazepam is also a “dangerous drug” for the purposes of the Drugs Misuse Act 1986 as it is listed in schedule 2 of the Drugs Misuse Regulation 1987[3] with the consequence it is an offence to unlawfully supply the drug to another (s 6) or to unlawfully possess the drug (s 9). Unlawfully is defined in s 4 of the Drugs Misuse Act to mean without authorisation, justification or excuse by law.
[3]Section 4 Drugs Misuse Act
I turn then to consider the charges. It is convenient to deal with the charges of whether there was a possession of diazepam and tramadol by Ms Sells and supply of diazepam by Mr Price initially before considering whether the possession and/or supply was unlawful.
Supply of a Dangerous Drug – Glen Price
Mr Price is charged with supplying diazepam to Ms Sells. The date, place and the identity of the drug are admitted. There is no dispute that Mr Price gave Ms Sells the diazepam and little dispute that the giving was for the purpose of safekeeping. There was some cross-examination of Mr Price that there might be better alternatives but weighing the evidence I am satisfied that the accounts of Mr Price and Ms Sells were essentially honest.
Mr Blischen submits that if I accept the evidence of Mr Price and Ms Sells then following the decision of the New South Wales Court of Criminal Appeal in R v Carey (1990) 20 NSWLR 292 I should acquit Mr Price.
Carey considered the situation where a trafficable amount of hashish was left with the appellant for safekeeping by the appellant’s sister. The appellant was charged with supply. Critical to the decision was the particular drafting of the New South Wales provision: “supply” is defined in s 3 to include having in possession for supply. When a person has in his or her possession an amount over the trafficable quaintly s29 deems the person to have the drug in his or her possession for supply unless that person proves that he or she had such possession “otherwise than for supply”. Hunt J sets out the definition used in the Act:
”The definition of “supply” in s 3 is inclusive, not exclusive. So far as it is
relevant, that definition is in the following terms:‘Supply includes sell and distribute, and also includes agreeing to
supply, or offering to supply, or keeping or having in possession for
supply, or sending, forwarding, delivering or receiving for supply. …’
None of the various limbs of that extended definition would include the
mere return of the drugs to their owner or to the person reasonably believed
to be the owner. The references to ‘sending, forwarding, delivering’ are all
qualified by the words ‘for supply’.The word ‘supply’, however, retains its ordinary meaning as well as the
extended meaning for which that inclusive definition provides. The various
dictionary meanings of the word are generally agreed as being to furnish or
to provide something which is needed or wanted or required by the person to
whom it is given. They do not suggest that the use of the word is appropriate
when that something is merely returned to its owner or the person
reasonably believed to be its owner.”
Applying that definition and the case law Hunt J concludes at p. 297:
“The word “supply” where secondly appearing in s 29 of the Act therefore does not include the mere transfer of physical control of the drugs from a person who has had the drugs deposited with him to their owner or to the person reasonably believed to be such. Although the issue does not directly arise in this appeal, it is clear (and indeed it is conceded by the Crown) that the same construction must also be applied to the word “supply” in the phrase “having in possession for supply” in the definition of “supply” in s 3.
The policy of the Act in question in this appeal is by no means thwarted by giving to the word “supply” in that context its ordinarily accepted meaning. The only consequence of the construction which I have suggested is to remove a mere delivery of the drugs from the more serious offence of supply”
Hunt J (295) also refers to the decision of R v Dempsey (1985) 82 Cr App R 291 at 295 that refers to a very similar situation as to this present case. His Honour held:
“In R v Dempsey (1985) 82 Cr App R 291 at 293, the Court of Appeal
(Criminal Division) held that the word “supply” in its ordinary meaning was
not apt to describe the deposit of an article with another person for
safekeeping, one reason being that that sort of transfer was for the benefit of
the transferor rather than of the transferee. In the present case, there is no
particular benefit (in that sense) one way or the other, but what is clear from
that decision of the Court of Appeal is that the mere transfer of physical
control of the drugs does not by itself amount to supplying them: cf R v
Delgado [1984] 1 WLR 89 at 92, [1984] 1 All ER 449 at 452.”
There is no Queensland authority reflecting this case law and these propositions. The only commentary I have located is in the relevant annotations to Carters Criminal Law commentary on the relevant provisions in the Drugs Misuse Act:
“In Pelham v R (1995) 82 A Crim R 455 it was held that possession of drugs by a person as a bailee with the intention of returning them to the true owner cannot be possession with intent to "supply". Quaere whether this is the situation in Queensland.”[4]
[4][3085.10]
The query as to the applicability of the line of authority that includes Carey is obviously based on two matters that distinguish the Drugs Misuse Act provision of supply with those considered in Pelham, Carey and Dempsey. Firstly, the definition of supply is extended in the Queensland Act. Supply is defined to mean[5]
(i) give, distribute, sell, administer, transport or supply; or
(ii) offering to do any act specified in subparagraph (i); or
(iii)doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in subparagraph (i).
[5]Section 4 Drugs Misuse Act
The definition of supply considered in Carey differed considerably from the Queensland provision. Significantly all the terms such as ‘sending’, forwarding, receiving were qualified by the words “for supply” with supply retaining its ordinary meaning. Hunt J said at 294:
“None of the various limbs of that extended definition would include the
mere return of the drugs to their owner or to the person reasonably believed
to be the owner. The references to “sending, forwarding, delivering” are all
qualified by the words ‘for supply’.The word ‘supply”, however, retains its ordinary meaning as well as the
extended meaning for which that inclusive definition provides. The various
dictionary meanings of the word are generally agreed as being to furnish or
to provide something which is needed or wanted or required by the person to
whom it is given. They do not suggest that the use of the word is appropriate
when that something is merely returned to its owner or the person
reasonably believed to be its owner.
In Dempsey supply was not defined by statute so the appeal court had recourse to the dictionary definition (293): the word supply is defined in the Shorter Oxford Dictionary "to fulfil, satisfy (a need or want) by furnishing what is wanted. To furnish, provide, afford (something needed, desired or used)..." Those are the two definitions that seemed to be relevant to the particular circumstances. It is an act so it seems to benefit the recipient.
“It does not seem to us that it is apt to describe the deposit of an article with another person for safekeeping as was the case here.”
Supply as used in s 6 of the Drugs Misuse Act is not so qualified. Giving a drug to another is sufficient to constitute a supply of dangerous drugs in Queensland. The provision considered in Carey was a possession for supply requiring the defendant to prove that the possession was otherwise then for supply. There is no intent required to be alleged in the Queensland offence. Rather the prosecution must prove (relevantly to this case) that the defendant gives a dangerous drug to another.
The meaning of the term ‘give’ was considered in R v Cameron [1975] Qld CCA 108 in the context of the term as used in s 130(2)(d) of the Health Act 1937. That case had some similarities with the facts in Carey. Section 130(2)(d) made it an offence to have a dangerous drug (in Cameron the dangerous drug was cannabis resin) in his or her possession for a purpose specified in s 130(2)(c). The purposes specified included for the purposes of “selling” and “giving”. The appellant Cameron never disputed she was in possession of the drug. Rather the issue was the purpose of possession. The prosecution case was she had possession of the drug to sell around the Nambour area. Her evidence was that the drug was pressed upon her without her consent and that she with her only to return it to ‘Sam’ the person who had given it to her.
The trial Judge instructed the jury that in his view of the evidence the only verdict that they could return was one of guilty. At page 3 Dunn J set out the views of the trial Judge:
“The view which his Honour expressed, after hearing argument, was the effect of the provision was that – notwithstanding that the Crown had conducted its case on the footing that the appellant proposed trafficking for gain in the drug – any member or members of the jury who doubted this but accepted her own account of her purpose i.e. that she intended to return the hashish to Sam, could not in good conscience do anything other than convict.”
The trial Judge refused defence counsel’s application for a special verdict to determine which version had been accepted.
One issue in the appeal was whether the trial Judge was correct in construing the word “give” in the section as having a meaning wide enough to encompass the appellant’s alleged purpose of handing back to Sam in Sydney the hashish of which she had become the unwilling possessor. Dunn J (with whom the Court agreed) found the trial Judge was correct (5):
”The available alternative constructions of the word “give” are (to take definitions from the Shorter Oxford English Dictionary) that it means “to bestow gratuitously, to hand over as a present” or (the wider meaning) that it means “to deliver, hand over.” “Give” is commonly used in each sense.”
In s.130(2)(c) it has in my opinion the second (and wider) meaning of those which could be attributed to it. I say this because the expression of “giving away” is used in the statute to import “bestowing gratuitously” or “handing over as a present” (see the definition of “sale” in s. 5); and this being so, the intention of the Legislature evinced in s.130(2)(c) is manifestly to cast the widest possible net when prohibiting dealing in which possession of a dangerous drug is passed from one person to another. The prohibition against “selling” drugs (unless excused or otherwise authorized) ‘catches’ gifts; the prohibition against ‘giving’ them ‘catches’ deliveries, including a delivery to the owner of the goods.”
With respect to the definition of supply in s 4 that includes “give” I consider that the term should be construed to have a wider meaning then to gift or give as a present. Give could encompass that conduct but it is wider: it includes what occurred in this case: giving the drug to another person for safekeeping. To interpret the term otherwise would very much limit the types of supplies captured by the section. It would result in the person supplying the drug being able to give the drug to another, without any real ability to restrict how that second person deals with the drug, upon the basis the person was trusted to keep the drug safe, and not incur any criminal liability. Such an interpretation would appear to significantly undermine the very purpose of the Act to prevent the misuse of drugs.[6]
[6]See long title.
It follows that the statutory scheme in Queensland means the ‘ordinary meaning’ of supply referred to in Carey and Dempsey is simply not relevant when proving a supply. The prosecution have proved beyond a reasonable doubt that the defendant Price supplied a dangerous drug, diazepam, to another person being Deborah Sells.
Before turning to the issue of whether the Prosecution have proved to the requisite standard whether that supply was unlawful it is convenient to shortly address the charge of possession of a dangerous drug that Ms Sells faces.
Possession of a Dangerous Drug
Section 9 of the Drugs Misuse Act makes it an offence to unlawfully possess a dangerous drug. As already discussed diazepam is a dangerous drug for the purposes of the Drugs Misuse Act. Possession is not defined in the Drugs Misuse Act. However s.1 of the Criminal Code provides an inclusive definition:
“Possession includes having under control in any place, whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.”
This definition applies to the term possession in the Drugs Misuse Act as s 116 of the Drugs Misuse Act provides that the Criminal Code shall with all necessary adaptations be read and construed with this Act.
Ms Sells own evidence establishes that the she had the knowledge of the substance and had exercised control over it by taking it from Mr Price and placing it in her pocket. As I understand the submissions the defendant Sells does not contest she had possession of the diazepam in accordance with the provision in the Drugs Misuse Act.
Nor does she contest she had in her possession a sheet of Tramadol. Ms Sells is not charged with possession of the Tramadol found under her car seat. Tramadol is a schedule 4 drug as per the Poisons Standard. It is a restricted drug and accordingly s 146(1) of the HDP Regulation provides relevantly a person must not have in the person’s possession a restricted drug unless the person is, under this regulation, endorsed to possess the drug.
Was the supply and possession of diazepam unlawful?
As already discussed the prosecution of course still have to prove that the supply of diazepam by Mr Price and the possession of diazepam by Ms Sells was unlawful: that is the possession and/or supply was not authorised, justified or excused by law.[7]
[7]Section 4 of the Drugs Misuse Act
The effect of the regulatory framework is then that when a drug is a ‘dangerous drug’ as defined in schedule 2 of the Drugs Misuse Regulation then its possession and supply will be unlawful unless it is authorised, justified or excused by law. Where a dangerous drug is also a scheduled drug under the HDP Regulation (as diazepam is) then the possession and/or supply of that drug will not be unlawful if the possession and/or supply is authorised under that Regulation. It is for the prosecution to satisfy me that the possession is unlawful.
With respect to the second charge against Ms Sells, having in her possession a restricted drug without endorsement, the issue of endorsement is also fundamental to Ms Sell’s criminal liability for both the Drugs Misuse Act possession charge and the HDP Regulation charge. If Ms Sells hold an endorsement under the regulation to possess the drug she is entitled to be acquitted of the possession of Tramadol and also of the possession of diazepam as the latter possession would not be unlawful.
Whether there was actual authorisation to lawfully supply or possess the drug requires consideration of the HDP Regulation.
Part 2, Division 3 of the HDP Regulation then sets out particular endorsements. There is no contest that Mr Price was a person lawfully prescribed the restricted drugs Dizaepam and Tramadol found in the possession of Ms Sells. Nor is there any contest that Ms Sells was not the holder of a prescription or endorsement authorising her possession of those restricted drugs.
Section 183 of the HDP Regulation provides for circumstances where an endorsement is not needed:
(1) “A person does not need an endorsement under this regulation merely to deliver a restricted drug to a person for whom it is dispensed, or the person’s agent.
(2)Also, a person (a carer) does not need an endorsement under this regulation to help another person (an assisted person) to take a restricted drug that has been supplied for the assisted person as a dispensed medicine, if—
(a) the assisted person asks for the carer’s help to take the dispensed medicine; and
(b) the carer helps the assisted person to take the dispensed medicine under the directions on the label attached to the dispensed medicine’s container.”
No authority has been cited to me, nor have I located any, that considers the meaning of s 183 of the HDP Regulation.
It is the defendant Sells’ submission that s 183(1) of the Regulation means that she does not need an endorsement to merely hold and give back the restricted drugs to Mr Sells.
The case of R v Dempsey (1985)82 Cr App R 291 (cited in Carey) involved a similar situation in the United Kingdom with a not dissimilar legislative framework. The relevant statute made it an offence to supply a controlled drug to another and also subject to certain defences possess a controlled drug. One such defence was “that knowing or suspecting it to be a controlled drug he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to deliver it into the custody of such a person.
D1 was a registered drug addict in lawful possession of physeptone, a heroin substitute. While going into a lavatory to inject himself he handed some of the drug to D2, a woman he lived with, for safekeeping and to prevent himself from overdosing. D2 was arrested outside the lavatory saying she had possession of the drug for safekeeping. The trial Judge ruled both D1 and D2 had no defence. They then pleaded guilty. On appeal the issue was whether D1 by handing the ampoules to D2 for temporary safekeeping supplied the drug and whether D2 had had a defence.
The appeal with respect to the supply charge was dismissed for the reasons discussed above.
D2, described as Maureen, was in possession of the physeptone but sought to rely on the statutory defence that she took possession only to deliver the drug into the custody of the person lawfully entitled to take custody of it and that as soon as taking possession took all steps reasonably open to deliver it into the custody of that person.
The Court found that Maureen did not do this. She actually took possession of them for the purpose of removing them from the custody of the person in lawful possession of them. In order to comply with the words of the defence she would have had to immediately hand them back to D1 (294). A defence of conveying the drugs to the person lawfully entitled to possession was also dismissed. The purpose of custody in Dempsey was safekeeping to prevent overdose. This purpose was not excused by the exculpatory provision. The conviction of Maureen was upheld.
Section 183(1) is in not dissimilar terms to that of Dempsey. It provides a person does not need an endorsement under this regulation merely to deliver a restricted drug to a person for whom it is dispensed, or the person’s agent. On the agreed facts Ms Sells received the drugs from the person from whom they were dispensed in a similar way as Maureen did in Dempsey. She was effectively assuming possession from the person in lawful possession. The provision is plain and cannot be read in any way that would include the conduct of Ms Sells of taking delivery.
I have also considered the issue of agent. Section 183(1) specifically recognises that a dispensed drug can be delivered to the person or their agent. Collecting a dispensed drug from a pharmacy by an agent is a process most adults would be familiar with: the prescription receipt has a specific provision for an agent’s signature. Section 183 (1) clearly provides that delivery from the agent to the person for whom it is dispensed is protected. Section 183(1) does not extend upon its face to then permit the delivery by the person to whom it was dispensed (in this case defendant Price) to another person (Sells) who could be characterised as his agent. Again to extend it that proposition would be adding a gloss to the provision that simply does not exist.
It was conceded that Ms Sells was not a carer to allow reliance on s 183(2).
Any belief that Ms Sells and Mr Price might have had that they were permitted to pass the drug for safekeeping to another for a period could afford no protection. Such a belief would be a mistake of law not of fact and ignorance of the law is no excuse.[8]
[8]Section 22 of the Criminal Code
Finally Mr Blischen submitted that to find the case proved would be unjust as the case essentially consisted of a trusted friend looking after a small amount of prescription medication for another trusted friend for a short time. This was specifically not a case where there was any allegation that the supply was illicit. Certainly the facts of the matter, the quantities involved and the agreed facts might justify a finding under s 17 and s 18 of the Penalties and Sentences Act 1992 that the facts of the case make it a matter where no punishment or nominal punishment was warranted. The determination of whether the prosecution have proved their case beyond a reasonable doubt is a different question: it is strictly an application of the law to the facts as found. That process, perhaps unlike the concept of jury nullification, does not permit a Magistrate to reach a decision that the case is proved by the prosecution to the requisite standard but because of the Magistrate’s view of the value of the case return a verdict of not guilty.
I am satisfied that the prosecution have proved both the supply of the diazepam and the possession of diazepam was unlawful: it was not authorised, justified or excused by law.
It follows that the prosecution have proved their case beyond a reasonable doubt and I find the defendants guilty and convict the defendants.
It follows also from my findings that Ms Sells then possessed the drug tramadol without endorsement. She is convicted.
That leaves for consideration the remaining charge that the defendant Price, by losing his Tramadol in Ms Sell’s motor vehicle failed to keep the drug in his possession until used. The loss of the drug was described as accidental. It occurred probably when he was fixing Ms Sell’s motor vehicle and it fell out of his pocket. The drugs were then not in his possession because he had essentially misplaced them. The question then is the offence a strict liability offence? Is there any excuse? I am satisfied that s 23 of the Criminal Code is not excluded. To find otherwise would mean that if a burglar came in and stole the drugs then the victim of the burglary would then commit the offence. That section provides that a person is not criminally responsible for an act or omission that occurs independently of the exercise of the person’s will. That is the defendant did not by any conscious act not keep the drugs in his possession. Section 23(1)(a) of course incorporates as a primary element of every offence that there be an act which results from the exercise of his will (see Benchbook and Kapronovski). It is for the prosecution to prove the willed act once it is raised. While one might entertain some scepticism given the evidence of the defendant as to his living circumstances (i.e. he might have been hiding it) the prosecution have simply not satisfied me beyond reasonable doubt that the act did not occur independently of the exercise of the defendant’s will. The charge does not import any particular requirement that there be notification of the lost drugs. It is strictly a matter of whether or not they were in his possession.
In those circumstances the defendant is entitled to be acquitted.
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