R v Stevenson

[1994] QCA 373

IN THE COURT OF APPEAL [1994] QCA 373

SUPREME COURT OF QUEENSLAND	C.A. No. 273 of 1994
Brisbane [R. v. Stevenson]

T H E Q U E E N
v.
WENDY ANNE STEVENSON

(Appellant)

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McPherson JA.
Davies JA.

Mackenzie J.

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Judgment delivered 21/09/1994
Judgment of the Court

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APPEAL DISMISSED.

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CATCHWORDS:

CRIMINAL LAW - CONVICTION - DRUGS - appellant convicted of unlawfully having possession of dangerous drug, heroin - powder carefully wrapped and secreted in slot in appellant's purse - total heroin 0.009 of a gram - whether reasonable to conclude that, as a matter of common sense and reality, it was heroin of which the appellant was in possession

Counsel:Mr J. Jerrard Q.C. for the appellant

Mr B. Butler for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Date of Hearing:14/09/1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/09/1994

The appellant was, on 20 June 1994, convicted in the Magistrates Court at Cairns of unlawfully having possession of a dangerous drug namely heroin. She appeals against that conviction. The notice of appeal contains two grounds, only one of which was pursued. It was that the learned Magistrate erred in finding beyond reasonable doubt that the quantity of heroin the subject of the charge was such that, as a matter of commonsense and reality, it was the drug heroin in circumstances where there was no evidence that .009 of a gram of heroin would be visible to the naked eye.

On 17 November 1993 police officers executed a search warrant on premises at 11 Craig Street, Cairns at which the appellant and other persons resided. During the course of the search a quantity of white powder was found in a small paper packet wrapped in plastic inserted in a slot of a purse belonging to the appellant. The purse contained a number of other items with the appellant's name on it and the appellant acknowledged that the purse was hers. It was found between the two front seats of her car.

Whilst acknowledging that the purse was hers, the appellant, when asked if she knew about the powder in it, said that she did not. The total weight of the powder was .054 grams. Upon analysis it was found that the powder contained 18.1 per cent heroin; that is that the weight of heroin in the powder was .009 of a gram.

The question before the learned magistrate and before this Court is whether the prosecution proved that that quantity of heroin was such as to make it reasonable to say, as a matter of common sense and reality, that it was heroin of which the appellant was in possession: Williams v. The Queen (1978) 140 C.L.R. 591; Donnelly v. Rose, C.A. No. 106 of 1993, judgment delivered 16 June 1993.

As pointed out in Donnelly, there is room for argument as to what proposition Williams is authority for because, at one point in the joint judgment of Gibbs and Mason JJ., their Honours seem

to imply that where the quantity of the prohibited drug was so minute as to be invisible to the naked eye no offence was committed (at 599); whereas, as Murphy J. pointed out, some substances are powerful and can be used in minute amounts, invisible to the naked eye. But in the end the test referred to in the preceding paragraph was adopted by Gibbs and Mason JJ. and Jacobs J. who agreed with their reasons.

This is not a case like Donnelly where the quantity of heroin was not measurable. Nor is it a case like Williams where what was found was plainly not being kept by the accused for future use but was no more than the residue from former use. Here the substance containing the heroin was in an apparently carefully wrapped parcel in the appellant's purse. The learned magistrate drew the inference from this, as he was in our view entitled to, that the substance was being kept by the appellant for later use.

There was no evidence as to whether the quantity was sufficient to have any effect noticeable by a user if ingested. The only evidence which the Crown sought to give which might have borne on this question was that of a police officer who sought to give his opinion that the amount seized was a useable quantity. That evidence was the subject of a successful objection. It is unnecessary to consider the correctness of the ruling on the objection. In our view the learned magistrate was justified in inferring from his observation of the amount of the substance left after a portion had been taken for analysis and the proportion of heroin in that substance that the quantity of heroin involved was more than a minute quantity; and in inferring from its careful secretion by the appellant that it was a quantity worth keeping for future use. From these facts it was reasonable to conclude that, as a matter of common sense and reality, it was heroin of which the appellant was in possession.

The appeal must therefore be dismissed.