R v McGregor - [2009] QCA 308

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGregor [2009] QCA 308

PARTIES:

R
v
McGREGOR, David Stuart
(appellant/applicant)

FILE NO/S:

CA No 98 of 2009
CA No 145 of 2009
SC No 273 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Application

ORIGINATING COURT:

Supreme Court at Maryborough

DELIVERED ON:

16 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2009

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – PRESUMPTION OF POSSESSION BY OCCUPIER – where appellant arrested in unit at motel – where unit booked under appellant's name – where appellant's belongings located in unit – where appellant observed using laundry facilities at motel – where co-offender under impression appellant was moving to unit with him – whether presumption of possession by occupier applies in circumstances

Criminal Code 1899 (Qld), s 668E
Drugs Misuse Act 1986 (Qld), s 9, s 129

R v MAP [2006] QCA 220, cited
R v Marsanic (2008) 186 A Crim R 384; [2008] QCA 219, cited
R v Smythe [1997] 2 Qd R 223, cited
R v Stuck [2008] QCA 165, cited
Symes v Lawler [1995] 1 Qd R 226; [1993] QCA 394, cited
Thow v Campbell [1997] 2 Qd R 324; [1996] QCA 522, considered

COUNSEL:

D R Kent for the appellant/applicant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA:
On 31 March 2009 the appellant was convicted upon the verdict of a jury of one count of possession of a dangerous drug, namely 3,4, Methylenedioxymethamphetamine ("ecstasy"), the quantity of which exceeded

2.0 grams, and one count of possession of the dangerous drugs methylamphetamine, lysergide and cannabis sativa. These offences were contraventions of s 9(c) and (d) respectively of the Drugs Misuse Act 1986 (Qld) ("the Act").

On 20 and 22 May 2009 the appellant was sentenced on each count to imprisonment for two years and eight months. A period of 17 days was declared to be time served under the sentence. A parole release date was fixed at 9 August 2010 being the halfway point of the sentence taking into account the 17 days of pre-sentence custody already served by the appellant.

The appellant seeks to appeal against both conviction and sentence. In relation to the challenge to the convictions, the appellant's notice of appeal raised a number of contentions, but only one is pressed in the submissions advanced on the appellant's behalf in this Court. That contention is that the summing-up by the learned trial judge was so unbalanced against the appellant that it may have deprived him of a fair chance of being acquitted. It is necessary to summarise the relevant aspects of the…

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 McGregor

Details

AGLC: R v McGregor [2009] QCA 308
Case: [2009] QCA 308
Decision Date: 16 October 2009

CaseChat Overview and Summary

In the case of R v McGregor, the appellant was arrested in a motel unit that was booked under their name. The police found the appellant's belongings in the unit and observed them using the motel's laundry facilities. The court was required to determine if the presumption of possession by the occupier applied in these circumstances, as the appellant was also seen with a co-offender who believed the appellant was moving into the unit with them. The primary legal issue was whether the appellant was in possession of the drugs found in the unit, considering the various factors presented.

The court examined the circumstances surrounding the arrest and the appellant's presence in the motel unit. It considered the fact that the unit was booked under the appellant's name and that their belongings were found inside. The court also took into account the appellant's actions, such as using the laundry facilities and being seen with a co-offender who believed the appellant was moving into the unit. The court held that the presumption of possession by the occupier applied, as the appellant had sufficient control and knowledge of the drugs found in the unit.

Ultimately, the court found that the evidence supported the conclusion that the appellant was in possession of the drugs. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also refused. The final orders were that the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McGregor [2009] QCA 308
PARTIES:	R v McGREGOR, David Stuart (appellant/applicant)
FILE NO/S:	CA No 98 of 2009 CA No 145 of 2009 SC No 273 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Application
ORIGINATING COURT:	Supreme Court at Maryborough
DELIVERED ON:	16 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2009
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – PRESUMPTION OF POSSESSION BY OCCUPIER – where appellant arrested in unit at motel – where unit booked under appellant's name – where appellant's belongings located in unit – where appellant observed using laundry facilities at motel – where co-offender under impression appellant was moving to unit with him – whether presumption of possession by occupier applies in circumstances Criminal Code 1899 (Qld), s 668E Drugs Misuse Act 1986 (Qld), s 9, s 129 R v MAP [2006] QCA 220, cited R v Marsanic (2008) 186 A Crim R 384; [2008] QCA 219, cited R v Smythe [1997] 2 Qd R 223, cited R v Stuck [2008] QCA 165, cited Symes v Lawler [1995] 1 Qd R 226; [1993] QCA 394, cited Thow v Campbell [1997] 2 Qd R 324; [1996] QCA 522, considered
COUNSEL:	D R Kent for the appellant/applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent