R v Villaflor

[1994] QCA 261

IN THE COURT OF APPEAL [1994] QCA 261

SUPREME COURT OF QUEENSLAND

C.A. No. 127 of 1994

Brisbane
[Stewart v. Villaflor]

BETWEEN:

S.P. STEWART

v.

YVONE BRONWYN VILLAFLOR Appellant

Fitzgerald P. McPherson JA. Demack J.

Judgment delivered 15.07.94

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:CRIMINAL LAW - drugs - possession of a dangerous drug - application of s.57 Drugs Misuse Act 1986 - marijuana discovered in the appellant's bedroom - other possible explanations for the drugs presence raised on the evidence - whether the Magistrate properly considered the other possibilities raised

Counsel:Mr. S. Herbert Q.C. for the appellant
Mr. P. Bidgway for the respondent
Solicitors:Michael Powell for the appellant
Director of Prosecutions for the respondent
Hearing Date:22/06/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15/07/94

The appellant has appealed against her conviction in the Magistrates Court at Cairns on 3 March 1984 of unlawful possession of a dangerous drug, cannabis sativa, on 2 December 1993. She was fined $400.00 and no conviction was recorded.

On 2 December 1993, a team of police executed a search warrant at the appellant's residence and found small quantities of material alleged to be marijuana and, at least in the case of two small amounts found in the appellant's bedroom, proved to be so. The appellant's written submissions to this Court assume that the other material alleged to be marijuana found at the house was marijuana, and the proceedings in the Magistrates Court appear to have been generally conducted on that footing. A few flakes of marijuana were also discovered in a filing cabinet at the office of the appellant, who is the administrator of the Tharpuntoo Legal Service.
The appellant's conviction related only to the two small amounts of marijuana found in her bedroom, some in a box on a dressing table and some in an inside pocket of a coat belonging to the appellant which was hanging in a wardrobe.

Much of the time spent on hearing this appeal concerned an attack directed to the evidence of the police officer who found the drug in the appellant's bedroom. Basically, the submission was that his evidence should have been rejected because of asserted inconsistencies with the evidence of a second police officer who videotaped aspects of the search. The magistrate accepted that the police officers' evidence did not correspond in all respects, but found no conflict in critical respects. His findings were clearly open to him, and there was cogent evidence to support his conclusion that the drug was at the material time in a place of which the appellant was the occupier. Accordingly, by subsection 57(c) of the Drugs Misuse Act 1986, there was conclusive evidence that the drug was in her possession unless she showed that she then neither knew nor had reason to suspect that the drug was in that place.

In the circumstances, this necessitated evidence from the appellant, and put her credibility in issue. Except on one matter, this did not give rise to a conflict between the evidence of the appellant and the evidence of all or any of the police officers ; the prosecution case did not seek to establish that the appellant knew or had reason to suspect that the drug was in her premises except in the sense that, quite apart from subsection 57(c) of the Drugs Misuse Act, that inference might have been able to be drawn from the finding of the drug in her bedroom.

By cross-examination, the appellant sought to establish that the police officer who found the drug in her bedroom bore ill-will towards her because of her activities in connection with the Tharpuntoo Legal Service. It is unnecessary to go into details. There was also evidence that the appellant had been kept out of her bedroom for a period while police officers were in there with the door locked. The magistrate regarded the purpose of these matters as an attempt by the appellant to suggest that the drug had been brought to her premises by the police officer who said he found it and placed by him in the box and coat pocket. There is no doubt but that, in such circumstances, the appellant would not have been guilty, either by virtue of subsection 57(c) of the Drugs Misuse Act or otherwise. However, the magistrate rejected the proposition that the police officer had "planted" the drug in the appellant's bedroom as, on the evidence, he was fully entitled to do.

This rejection did not necessarily cast doubt on the appellant's credibility. It meant no more than that one possible hypothesis consistent with her innocence had not been established; or, perhaps more accurately, that hypothesis was rejected. It is unnecessary to discuss the operation of subsection 57(c) of the Drugs Misuse Act in relation to such a possible explanation for the presence of drugs in a place occupied by an accused. On this occasion, the magistrate was satisfied beyond reasonable doubt that the police officer had not "planted" the drug in the appellant's bedroom.

The appellant gave evidence that she neither knew nor had reason to suspect the presence of the drug which was found in her bedroom. Theoretically, at least, her evidence needed to go no further. If she was believed, she was entitled to be acquitted. However, her case went further and involved evidence, from her and other witnesses, which the magistrate considered raised possible explanations for the presence of the drug in her bedroom without her knowledge and without her having any reason to suspect that it was there. He was criticised before this Court for following that approach, and it was said that some or all of these matters were not explanations relied on by the appellant. We see no substance in this criticism. The magistrate understandably and correctly took account of every possible explanation for the presence of the drug which was raised by the evidence.

The other aspect of the course adopted by the magistrate which was complained of by the appellant is the basis for the real point in the appeal. The magistrate rejected the appellant's denial of knowledge or reason for suspicion of the presence of the drug in her bedroom for a number of reasons, including some related to his opinion of the other possible explanations which emerged on the evidence. It was submitted that not all the reasons given by the Magistrate rationally supported his conclusion.
One matter referred to by the magistrate was the demeanour of the witnesses, although he did no more than mention, in general terms, that demeanour had played a part in his deliberations.

Later, he said:

"At the home, drugs were located in the rubbish bin in a Winfield red cigarette packet, in the kitchen, in a Capstan packet, in two places in the defendant's bedroom and in a handbag in one bedroom. The drugs, located in the kitchen and in the handbag in the bedroom were stated by Wilson to be hers. Wilson did not admit ownership of the drugs in the rubbish bin.

. . .

The defendant and Twist both gave evidence they had returned to the defendant's house and found a burnt spoon and water. And on at least one other occasion, Twist had found a burnt spoon in the lavatory area. The defendant says this happened on three or four occasions. Under cross- examination, both Twist and the defendant said both did nothing about their findings.

The defendant further states the house was not lockable and had been so for three or four months previously. The sliding door had been fixed five days after the police had been there.

The defendant further alleges she had lent the red coat to another person. At some stage, she had had that coat dry cleaned.
Under cross-examination, she said she would have lent the coat only to someone she trusted, as the coat was special to her. She cannot remember if she had lent the coat before, or after, dry cleaning. Certainly, she never named the supposed person the coat was lent to. If the coat were to be loaned only to 'someone special', then why can't she remember who?
Mr Herbert, in his submission, says it is only common sense. Why would a person, such as the defendant, with her knowledge and background, keep drugs there,in the coat ? But that is a two-way submission. It could also go to say, because of that, why not? That submission takes us nowhere.
What I have to look at is the defendant's assertions, in the light of the whole of the evidence, as to whether I accept, on the balance of probabilities, her narrative of no knowledge.
Now, I look at the circumstances in what I would call a common sense angle. Here I have a woman at home with two children. Spoons et cetera have been found at the house which, the defendant would have me believe, someone had put in there. I have threats against her, since the Mabo claim.
Why was this not reported to the police? Why didn't the defendant or her husband have the door repaired, so that the house was lockable? Certainly, the crime intelligence officer from Cairns was not aware of any break-ins or other suspicious matters reported by the defendant.
I find it hard to accept or believe these strange things occurring. And why a person, so worried about it, would not have had the door repaired as soon as possible.
The explanation of, 'I just didn't have time' is a time honoured excuse but I, as a common man, would take steps as soon as possible to stop any of this happening again.

It appears to me the defendant was not overly concerned with anyone coming in and supposedly planting the drugs. No, her evidence just does not carry the ring of truth to it.

Now, the defendant states she was not aware of Wilson using drugs. Yet, here are drugs found on the kitchen bench and in the bedroom used by Wilson. Also, in two locations in the defendant's bedroom. Not only that, butts with fragments in the rubbish bin. No-one claimed that butts in the bin, so am I to assume that those were planted there too?

To add to this, drug fragments were located in the filing cabinet in the defendant's office. Now, the defendant is not supposed to use that cabinet but certainly, under cross-examination, she could have, if she wished to. Certainly, many other people used that cabinet but then why were these fragments found in the defendant's office?
Suggestions were made of an office girl, who was sacked, had something to do with it, but then, any of the persons at the office could have had drugs there, including the defendant.
The defendant gave evidence and was subjected to a lengthy

cross-examination.

I am not satisfied her explanation in relation to the lending of the coat is very satisfactory. Neither is the fact someone could have come in the door and planted it.
Senior Sergeant Hartwell located package wrapping in the kitchen drawer, that is, the brown paper packet and clip-seal bags, which are very similar to the bags used to wrap the drugs found in the red jacket. There is no actual denial that these items were very similar. This is certainly very persuasive against the defendant.
No, I do not believe the defendant is being truthful, either in her evidence in Court or at any stage in her denial of knowledge of these drugs. Her evidence and explanations did not carry the ring of truth when tested under cross- examination and for my reasoning above.
If, as Mr Herbert says, if drugs are found in a person's home and you are the occupier, then under section 57(c), you are in possession. And the usual answer is, 'They are not mine. I don't know anything about it', is more than likely an answer given by a truthful person, if that is the case.
The defendant went further here and raised possibilities. Not

just one, but two or three possibilities.

I am not saying that you are not entitled to raise all the possibilities in the world but, to me, her explanations are improbable, especially after being probed under cross- examination.

I am satisfied all the elements of the case have been proved beyond reasonable doubt and I do find the defendant guilty."

The magistrate's reasoning is not entirely clear, and some of the matters which drew his attention seem not to have much to do with the appellant's veracity. Nonetheless, there were a variety of factors which were directly relevant.

What was probably more marijuana was found in the rubbish bin at the appellant's home and in the filing cabinet in the defendant's office. The defence case raised explanations which were mere possibilities.
It was also possible that a stranger had entered the appellant's home, which on the evidence could not be locked, and put the marijuana found in her bedroom in the box and in the coat pocket, or that someone who had borrowed or cleaned the coat had put the marijuana there.
However, none of the possible explanations was especially plausible, and the number of matters requiring but receiving only unconvincing explanation collectively made it less likely that all, or any, of the explanations were correct.
Ultimately, the magistrate found, and in our opinion was justified in finding, that he did not accept the appellant's evidence that she did not know and had no reason to suspect that the marijuana was in her bedroom. That finding effectively necessitated her conviction by reason of section 57(c) of the Drugs Misuse Act.

There is no basis for interference by this Court, and the appeal must be dismissed.