R v Cunliffe

[2004] QCA 293

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cunliffe [2004] QCA 293

PARTIES:

R
v
CUNLIFFE, Thomas Boyd
(appellant)

R
v
CUNLIFFE, Michelle Louise

(appellant) 

FILE NO/S:

CA No 115 of 2004
CA No 116 of 2004

SC No 345 of 2003  

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2004

JUDGES:

 McMurdo P, McPherson JA, Mackenzie J

 Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeals against conviction dismissed 

CATCHWORDS:

CRIMINAL LAW – DEFENCE MATTERS – HONEST CLAIM OF RIGHT TO PROPERTY – whether appellants could rely on defence under s 22 (2) of Criminal Code for charge of possession of drugs

COUNSEL:

The appellants appeared on their own behalf

B G Campbell for the respondent

SOLICITORS:

 The appellants appeared on their own behalf

Director of Public Prosecutions (Qld) for the respondent

1. McMURDO P: The relevant facts and issues are set out in the reasons for judgment of McPherson JA and Mackenzie J so that I need repeat only those necessary to explain my own brief reasons for also dismissing the appeals.

1. The Cunliffes each gave evidence that they believed they were doing nothing illegal in growing and using marijuana.  The investigating police officers gave evidence that when they attended the Cunliffes' premises and found the marijuana, the Cunliffes reacted as if they were doing nothing wrong.

1. That evidence did not raise a defence under s 22 Criminal Code which relevantly provides:

"(1)  Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
(2)  But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.
… ."

1. In their submission on these appeals, the Cunliffes now claim that they were not ignorant of the law prohibiting their possession and growing of marijuana but they honestly believed they had a right to do so for their own purposes, despite the provisions of s 8, s 9 and s 10 Drugs Misuse Act 1986 (Qld) and Sch 2 of the Drugs Misuse Regulation 1987 (Qld); the learned primary judge erred in not leaving s 22(2) Criminal Code for the jury's consideration.  That was not the evidence at trial and the learned primary judge rightly instructed the jury that on that evidence ignorance of the law did not excuse their possession and cultivation of marijuana (s 22(1) Criminal Code).  That alone is sufficient reason to dismiss their appeals.  Even had the Cunliffes given evidence consistent with the submissions they now make, that could not excuse them from criminal responsibility under s 22(2)