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 2004SC 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
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.
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.
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.
… ."
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)
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- AGLC
- R v Cunliffe [2004] QCA 293
- Case
- [2004] QCA 293
- Decision Date
CaseChat Overview and Summary
The court examined the criteria for the defence of an honest belief in a right of possession and found that the appellants' belief was not genuinely held. The court held that the appellants' belief was based on a misunderstanding of the law and was not a genuine belief in their right to possess the drugs. The court found that the appellants' belief was not reasonable in the circumstances and was therefore not a genuine belief in their right of possession. The court held that the appellants' belief was not honestly held and therefore the defence was not available to them. The court dismissed the appellants' appeals against their conviction.
The court dismissed the appellants' appeals against their conviction for possession of drugs. The court held that the appellants' belief in their right of possession was not genuinely held and therefore the defence of an honest belief in a right of possession was not available to them. The court found that the appellants' belief was based on a misunderstanding of the law and was not a genuine belief in their right to possess the drugs. The court held that the appellants' belief was not reasonable in the circumstances and was therefore not a genuine belief in their right of possession. The court dismissed the appellants' appeals and affirmed their convictions.
Orders
Orders of the court
Appeals against conviction dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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