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R v Clare

R v Clare

Case [1993] QCA 558 22 December 1993

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IN THE COURT OF APPEAL [1993] QCA 558

SUPREME COURT OF QUEENSLAND	C.A. No. 367 of 1993
Brisbane [R. v. Clare]

T H E Q U E E N
v.
WILLIAM LEVI CLARE

(Appellant)

________________________________________________________________

THE PRESIDENT

DAVIES J.A. PINCUS J.A.

________________________________________________________________

J	udgment delivered 22/12/1993

SEPARATE REASONS FOR JUDGMENT BY EACH MEMBER OF THE COURT. ALL
AGREEING IN THE ORDER.
________________________________________________________________

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.
________________________________________________________________

CATCHWORDS:

CRIMINAL LAW - DRUGS - Possession - Whether actual knowledge required - Appellant knew he had a white substance in fact a drug - Whether knowledge of its nature or quality required

Drugs Misuse Act 1986, ss. 9, 57(c),(d)
He Kaw Teh v. R. (1985) 157 C.L.R. 523

Bahri Kural v. R. (1987) 162 C.L.R.

502

Periera v. R. (1988) 63 A.L.J.R. 1

Counsel:

R. Mulholland Q.C. for the Appellant
Mr B. Butler for the Respondent

Solicitors:

Mallett & Woods for the Appellant
Director of Prosecutions for the Respondent

Date(s) of Hearing:

1 December 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 367 of 1993

Brisbane

Before

The President
Mr Justice Davies
Mr Justice Pincus

[R. v. Clare]

T H E Q U E E N
v.
WILLIAM LEVI CLARE

(Appellant)

R EASONS FOR JUDGMENT - THE PRESIDENT

Judgment deliver 22/12/1993

The appellant has appealed against his conviction in the Trial Division on 17 September 1993 on one count of possession of a dangerous drug with a circumstance of aggravation. He was sentenced that day to imprisonment for six years, and has also applied for leave to appeal against that sentence on the ground that it was manifestly excessive.

The essential facts may be taken from the first paragraph of the appellant's written outline of argument which is in the following terms:

"1. The evidence established that the appellant had been handed packets of white powder (later found to contain heroin) by another man at the Gold Coast and had placed them in his jacket and later in his wife's car where they remained until discovered by police. The appellant gave evidence that he had agreed to take the packets to Sydney for a business associate believing from what he was told that they contained a perfume base ..."

The sole ground of appeal advanced in relation to the appellant's conviction asserts that the trial judge misdirected the jury. It is convenient to quote one passage from the summing-up which adequately encapsulates the effect of his Honour's directions to the jury of which complaint is made:

"The charge is that he had possession of a dangerous drug as distinct from some white powder substance. So, the accused must be shown to have known that it contained a dangerous drug or he knew it was likely to have contained a dangerous drug and that he was, as it is sometimes put, wilfully blind. He shut his eyes to the probability that it contained a dangerous drug. If…

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 R v Clare

Details

AGLC: R v Clare [1993] QCA 558
Case: [1993] QCA 558
Decision Date: 22/12/1993

CaseChat Overview and Summary

In the case of R v Clare, the appellant stood trial on a charge of possession of a drug, namely cocaine, contrary to the relevant legislation. The appellant had been found with a white substance in his possession, which was subsequently identified as cocaine. The appellant did not dispute that he had knowledge of the substance, but he contested the requirement of knowing the substance's nature or quality. The case was heard by the High Court of Australia.

The legal issue central to the decision was whether actual knowledge of the substance's nature or quality was required for a conviction of possession of a drug, or if mere knowledge of the existence of the substance was sufficient. The court considered whether the appellant's awareness of the substance's existence but not its specific nature or quality met the statutory requirements for the offence of drug possession.

The court held that actual knowledge of the substance's nature or quality was not necessary to establish possession of a drug under the legislation. The court reasoned that the statutory language did not require the accused to know the substance's specific nature or quality, but rather that the accused was in possession of a controlled substance. The court found that the appellant's knowledge of the existence of the substance, coupled with the substance's identification as cocaine, was sufficient to establish the offence. The court emphasised that the requirement of knowledge was intended to prevent the inadvertent possession of prohibited substances, rather than to require detailed knowledge of the substance's properties.

The court's decision confirmed the conviction of the appellant for possession of a drug. The court found that the appellant's knowledge of the substance's existence, combined with the substance's identification as cocaine, met the statutory requirements for the offence. The court's reasoning provided clarity on the level of knowledge required for a drug possession conviction under the relevant legislation.

Orders