R v McDonald

[1993] QCA 100

IN THE COURT OF APPEAL [1993] QCA 100

SUPREME COURT OF QUEENSLAND

C.A. No. 349 of 1992

Brisbane
[R. v. McDonald]

BETWEEN

T H E Q U E E N
v.
ERROL McDONALD

(Appellant)

The President
Mr Justice McPherson

Mr Justice Derrington

Judgment delivered 25/03/93

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS CRIMINAL LAW - Drugs Misuse Act 1986, ss.9, 57(c) - Whether admitted to circumstances of aggravation - Onus of proof - Presumption of guilt once drug found on premises - Whether the two accused were charged jointly or were jointly in possession.

Counsel: D.J. Barrakin for the appellant

P. Rutledge for the respondent

Solicitors: Legal Aid for the appellant

Crown Solicitor for the respondent

Hearing Date:  19 March 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 349 of 1992

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Derrington

[R. v. McDonald]

BETWEEN

T H E Q U E E N
v.
ERROL McDONALD

(Appellant)

REASONS FOR JUDGMENT - THE COURT
Judgment delivered 25/03/1993

The appellant was indicted on two counts under the Drugs Misuse Act the first being that on 26 June 1992 at Miles he produced cannabis, and the second that on the same day and place he unlawfully possessed that drug. In respect of each count the applicant was also charged with the aggravating circumstance that the quantity of cannabis involved exceeded that specified in the third schedule to the Act.

At the trial the appellant was arraigned and pleaded not guilty to both counts and to each circumstance of aggravation. After submissions had been advanced, counsel for the Crown at the trial intimated that he proposed to enter nolle prosequi on count 1 (the cultivation charge), while counsel for the applicant informed the court that his client had decided to plead guilty to count 2 (possession of cannabis) but not the associated circumstance of aggravation concerning quantity.

In consequence, the appellant was re-arraigned on count 2 of the indictment involving a single count of possession of cannabis at Miles on 26 June 1992, together with the same aggravating circumstance as before. He then pleaded guilty to the charge of possession but not guilty of the aggravating circumstance as to quantity. The trial proceeded and evidence was led only with respect to that second element of the charge in count 2.

As to that, the jury found the appellant guilty of the circumstance of aggravation and he was sentenced on that footing. He now appeals against his conviction in that particular.
To understand the point said to be at issue it is now necessary to refer in greater detail to the facts. On 26 June 1992 the police executed a search warrant at a property near Miles. They found small quantities of cannabis in a caravan and also in two or three rooms in the house, as well as some cannabis in a Strepsil tin in the bathroom. In quantity these "bits and pieces", as his Honour called them, added up to some 9 or so grams. In addition, they found elsewhere in a shed on the property a drum containing some 6 kgs. of cannabis. It exceeded by a substantial margin the quantity (500 grams) specified in the third schedule to the Act.

The appellant's plea of guilty to the charge of possession in count 2 is apparently to be understood as being a general confession of guilt unrelated to particular quantities of cannabis found on the property. His plea of not guilty to the circumstance of aggravation that was charged was intended to deny his possession of the much larger quantity of 6 kgs. located in the drum on the same property. As matters developed, it was the appellant's alleged possession of this cannabis that remained the only issue at the trial.

Acting on instructions from his client, counsel for the appellant admitted the Crown case "as opened". In some circumstances an admission in a form as broad and general as that might give rise to differences or disputes about its precise scope and meaning. Here, however, it is enough to know it involved the admission that the appellant was on 26 June 1992 one of the occupiers of the property (which was a farm known as Sunny Acres) where the cannabis was found.

The appellant gave evidence before the jury concerning his occupation of the property and the discovery there of cannabis by the police on 26 June 1992. He testified that his son was living there at the time, and that his son was addicted to cannabis. As well as his son, the applicant himself sometimes smoked cannabis but in small quantities, all of which he said explained why those "bits and pieces" of cannabis had been found in and around the house. The appellant, however, emphatically denied any knowledge of the presence of the 6 kgs. of cannabis in the drum in the shed. The inference he invited was that it was not he but his son who was responsible for the cannabis in the drum.

It is plain that the jury did not believe the appellant or accept his evidence. That is shown by the fact that they found him guilty of the circumstance of aggravation involving possession of more than 500 grams of cannabis. It was submitted by the appellant that the verdict of the jury was unsafe and unsatisfactory, and that it could not be supported having regard to the evidence. This was said to be confirmed by his Honour's direction to the jury that there was no evidence that the appellant knew anything about the 6 kgs. of cannabis in the drum. There was no countervailing evidence from the Crown.

These submissions entirely ignore the impact of the provisions of s.57(c) of the Drugs Misuse Act, which provide that in respect of a charge like this:

"(c) proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in his possession unless he shows that he then neither knew nor had reason to suspect that the drug was in or on that place."

Under this provision the onus rested on the appellant as an admitted occupier of the property to prove on a balance of probabilities that he neither knew nor had reason to suspect that the 6 kgs. of cannabis were on the property Sunny Acres. Plainly he failed to discharge that onus, which meant that he was unable to rebut the presumption raised by s.57(c). It therefore does not matter to the result of this appeal that there was no evidence that the appellant knew anything about the cannabis in the drum. The statutory provision operated in favour of the Crown, and its operation was not displaced by any evidence adduced at the hearing.

This leaves for consideration the only other point relied on by the appellant. It arises from a circumstance not previously mentioned in tracing the course of this matter. It is that the appellant was charged together with his son Erroll Joseph McDonald in respect of each of the counts in a single indictment presented against both of them. When originally arraigned, the son pleaded guilty to each of the two charges as well as the circumstance of aggravation, while the appellant at first pleaded not guilty to each. Because all of these pleas were, with the assent of both accused (who were represented by the same counsel), taken in the presence of the jury, it became necessary for his Honour to instruct the jury that, in considering whether the appellant had possession of the drum of cannabis, they were to disregard the son's pleas of guilty. What he told them was, or included, a direction that -

"to the extent that the son admitted that he and his father produced, or that he and his father had possession of, 6 kilograms you simply put that out of mind".

We do not understand this form of instruction to the jury to be the subject of challenge by the appellant before us. It is, in any event, plainly correct. The real matter of complaint concerns other statements by his Honour that imply that the charge against father and son of possessing cannabis was a joint charge, and that their possession was joint. For example, in explaining the effect of the appellant's plea of guilty to the count of possession and his plea of not guilty to the circumstance of aggravation, his Honour remarked that it was as if the appellant was saying:

"I admit that my son and I had possession of the bits and pieces - 9 grams or whatever they were - found around the house; but I deny that I had with my son possession of the 6 kgs. found in the drum."

It was submitted that a direction in those terms was wrong, and would have been confusing to the jury because father and son were not charged with possessing the cannabis jointly. It is true that the charges were laid in a single indictment; but, although in that sense the accused were charged jointly or together, in law each of them was charged with a separate or independent (and not joint) possession of the whole of the cannabis.

Not surprisingly, counsel for the appellant had some difficulty in clarifying the point at issue. It is plainly one that must gather its support from the law rather than the merits of the matter. In a sense it is the converse of R. v. Baynes [1989] 2 Qd.R. 43, to which it may owe its inspiration. There two young men were jointly charged in a single count with only one act of rape, although each of them had individually had sexual intercourse with the complainant. The Court held that independent acts of rape committed severally by two or more persons ought not to be included in one count as a single joint charge of rape. Williams J. said he found it "impossible to regard two separate acts of penetration by two separate males as constituting the one transaction of rape" ([1989] 2 Qd.R. 431, 438). Despite this defect in the indictment, the Court concluded that there had been no miscarriage of justice, and affirmed the conviction of the only one of the accused who had been found guilty.

The present case is far removed from any difficulty of the kind considered by the Court in R. v. Baynes. Here it is true that father and son were not charged with being jointly in possession of any of the cannabis. Count 2 simply charged each of them with unlawful possession of cannabis at Miles on 26 June 1992 without affecting to say whether the possession of either of them was alleged to be several or joint with the other accused. In fact and in law, if each of them was in possession of the large quantity of cannabis in the drum, it is difficult to conceive of circumstances in which their possession would not have been joint. The learned trial judge approached the matter in that way. When the present question was raised on the application for redirections, his Honour said he had taken the charge to be joint, in that the two accused "were really co- offenders; they were really principals, one assisting the other ... it was a true joint offence; they were joint occupiers, and so on". It was on that basis, he said, that he had instructed the jury as he did.

In this, his Honour was in the circumstances of the case plainly correct. It may be assumed that in theory it might have been possible for each of the accused to have had a separate possession of the cannabis in the drum without his being in possession of it jointly with the other accused. That would presumably have been the position if either of them had not realised that the other was also in possession of that cannabis.

Such a possibility has, however, only to be stated in order to reveal its unreality in a case like this. His Honour was plainly correct in directing the jury as he did, and there has been no miscarriage of justice.

The appeal fails and should be dismissed. The sentence imposed on the appellant was imprisonment for six months. The printed form of notice of appeal contains an application for leave to appeal against sentence which has not been crossed out in this instance. No separate submission on the matter of sentence was addressed to us. In the circumstances we are justified in refusing that application.