Renton v Queensland Police Service
[2001] QDC 246
•31/08/2001
DISTRICT COURT OF QUEENSLAND
[2001] QDC 246
REGISTRY: ROCKHAMPTON
NUMBER: APPEAL 11 OF 2000
APPELLANT: NICHOLAS ALEXANDER RENTON
AND
RESPONDENT: JOSEPH CRENNAN ABOUD
REASONS FOR DECISION
HIS HONOUR JUDGE G. T. BRITTON S.C.
DELIVERED the 31 day of August 2001
This is an appeal under the provision of section 222 of the Justices Act 1886 by the defendant Nicholas Alexander Renton (“the appellant”) against the order made on the 6th October 2000 at the Magistrates Court at Rockhampton by Ms Hennessy SM whereby he was found guilty of an offence under the Drugs Misuse Act 1986 (“the Act”) of possession of a dangerous drug namely heroin. No Conviction was recorded and the appellant was fined the sum of $800 in default 19 days imprisonment.
The facts briefly are as follows. There is no dispute in relation to these facts.
Sandra Lee Kennedy worked at the BP Service Station Duaringa. On the 22nd May 2000 she opened a letter addressed to the appellant which had been delivered to the service station. It contained a card, electrical tape with glad wrap and a powder substance within. The envelope was opened accidentally. There was no evidence that the appellant knew of the existence of the card and the enclosed package or that he was expecting it. Ms Kennedy, whose husband is a policeman, reported the finding to the police. Senior Constable Aboud executed a search warrant on the roadhouse seizing the envelope and contents. On the following day the 23rd May 2000 Senior Constable Aboud returned to Duaringa having substituted talcum powder for the heroin which he had found in the package. Thereafter there was no dangerous drug in fact in the package. The appellant resided in a caravan park within easy walking distance of the roadhouse. On the 23rd May 2000 Ms Kennedy as prearranged with the police delivered the package then containing no drugs to the appellant at his residence in the caravan park. He accepted the envelope and placed it in the sink within his donga. The appellant opened the envelope and placed the small package within a cassette tape holder. He placed the envelope in one area of the donga and the package in another area.
A few minutes later Senior Constable Aboud arrived at the appellant’s residence and executed a search warrant. On a small coffee table opposite the door with a lot of papers and things he located the envelope and card. He located the cassette case containing the package (of talcum powder) in a shelf near the door of the residence where there was a number of CD cases and cassette cases (T 27).
It is clear on the evidence that there is no basis for any finding that the appellant was ever in possession of a dangerous drug. The Magistrate’s decision seems to have been based upon the fact that she misdirected herself as to the application of section 57(c) of the Drugs Misuse Act 1986. That section provides relevantly:
“In respect of a charge against a person of having committed an offence defined in part 2 –
(a) …;
(b) …;
(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 the person possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place; …”
The charge against the appellant was in respect of an offence defined in part 2 of the Act.
On the evidence it is clear that there was no dangerous drug at any material time in or on a place of which the appellant was the occupier or concerned in the management or control of and therefore section 57(c) had no application. However, the Magistrate having misdirected herself as to the applicability to section 57(c) then goes on to consider the evidence of the appellant on the basis of the reversal of the onus of proof provided for by that subsection. It is clear from her reasons that she did not find the appellant’s evidence to be particularly credible and she said that she was consequently prepared to draw an inference that the appellant knew or believed that the package contained a dangerous drug at the time that it was in his possession and on that basis (it appears) she found him guilty of the charge of possession of a dangerous drug.
Prior to her referring to section 57(c) and considering the evidence given by the appellant in the light of the reversal of the onus of proof she made findings which were not adverse the appellant. At page 3 of her decision:
“It is true, on the facts before me, that in all likelihood the defendant could not be said to have been in possession of the envelope, card and package enclosed in it, until the point of its delivery to him by Mrs Kennedy. To that point, there is no evidence that he knew of the existence of the card and enclosed package or that he was expecting it.”
In the outline of argument filed on behalf of the respondent the respondent accepts that the appellant may not have been in possession of a dangerous drug and that consideration of section 57(c) of the Act was not required. However the respondent argues that the appellant is still guilty of an offence under section 9 of the Act because of the provision of section 44A of the Act which provides:
“(1) In lieu of the Criminal Code, section 536 the following provision shall apply –
“a person who attempts to commit a crime defined in part 2 is deemed to be guilty of the intended crime and is liable to the same punishment and forfeiture as a person who commits the intended crime.”
(2) Where a person is charged summarily with a crime defined in part 2 that person may be convicted in those summary proceedings of attempting to commit that crime.
Section 4 of the Criminal Code provides as follows:
“(1) When a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender’s part for completing the commission of the offence, or whether the complete fulfilment of the offender’s intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender’s intention.
(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. …”
One of the necessary elements of a charge of attempting to commit an offence which must be proved beyond reasonable doubt by the prosecution is intention. There is no direct evidence that the appellant intended to possess a dangerous drug. The respondent therefore relies upon circumstantial and other evidence from which it is argued that an inference should be drawn that the appellant intended to commit the offence of possession of a dangerous drug that intention being manifested by what he did with the envelope and its contents. The evidence relied upon by the respondent is:
“(a) The fact that the envelope was addressed to “Mick Renton”;
(b) The fact that the appellant knew of no other person in Duaringa by the name of Renton;
(c) The fact that the appellant accepted the envelope from Mrs Kennedy;
(d) That he placed the small package in a cassette holder;
(e) That he placed the card and envelope in one part of the donga and the small package in the cassette holder which he placed elsewhere.
The respondent refers to the decision of the High Court of Australia in Warren v. Coombs (1979) 23 ALR 405. In that case it was held that the established principles which define the duty of an appellate court after questions of credibility have been decided and when the matter which remains for decision is what inferences should be drawn from facts which have been found and are no longer in contest are that, in general, an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial Judge, but, once having reached its own conclusion will not shrink from giving effect to it.
Section 223 of the Justices Act 1886 provides that:
“An appeal under section 222 is by way of re-hearing on the evidence (“original evidence”) given in the proceeding before the Justices.”
Under section 225 it is provided that upon the hearing of any appeal the Judge may by the Judge’s order confirm, quash, set aside, vary, increase or reduce the conviction order sentence or adjudication appealed against or make such other order in the matter as the Judge may think just and made by such order exercise any power which the Justices might have exercised and such order shall have the like effect and maybe enforced in the like manner as if it had been made by Justices.
I have already referred to the finding by the Magistrate (decision page 3) that there was no evidence that the appellant knew of the existence of the card and enclosed package or that he was expecting it. She presumably was referring to the fact that there was no direct evidence of those matters. She apparently did not consider whether or not she should draw any inferences as to his intention.
Because section 57(c) has no application the onus of proof rests on the prosecution of proving the necessary element of intention of the part of the appellant and must do so beyond reasonable doubt. Even ignoring the fact that the appellant’s name was not “Mick” as the card was addressed, the mere fact that mail is addressed to a person provides no basis for drawing an inference beyond reasonable doubt that the addressee intended to possess the contents.
Even the other evidence to which I have referred is not necessarily consistent with an intention to possess the drug which had previously been in the envelope. When the appellant discovered what the envelope contained he might well have suspected that it was a dangerous drug without necessarily having any intention to possess a drug. If the letter was unsolicited, he could well have decided to hide the substance until he could dispose of it or he may have wished to hide it until he could contact the sender to find out what it in fact was. He could have had other rational reasons for hiding it. However it is the case that his evidence was only that he put the object which had fallen out of the envelope into a cassette case to stop whatever it was from blowing away because there was wind coming through the door (T105). There is no evidence the appellant knew the sender. Indeed, the evidence of the appellant was to the contrary.
In all of the circumstances I am not prepared to draw an inference from the fact found by the Magistrate or otherwise established that the appellant did intend to possess a dangerous drug. I am therefore not satisfied that the appellant was guilty of an attempt to commit an offence against section 9 of the Act. The conviction cannot stand.
I order that the conviction be quashed and the order of the Magistrate be set aside. I order that the charge be dismissed.
The appellant has argued that in the event that the conviction is quashed there should be an order that the respondent pay the appellant’s costs of the appeal or alternatively an order under the Appeal Costs Fund Act.
In making that application Mr Godsall on behalf of the appellant drew my attention to section 55 of the Act which provides:
“No costs shall be awarded with respect to any proceedings arising out of a charge of having committed an offence defined in this Act.”
Neither Mr Godsall nor Mr McGrath who appeared for the respondent was aware at the time of arguing the appeal of any authority as to whether this section applies to proceedings by way of appeal from the decision of the Magistrates Court in relation to a charge for an offence defined in the Act. Since I reserved my decision, Mr McGrath has provided to me a copy of Gordon v. Whybrow (1999) 2 QdR 362 in which the Court of Appeal held that that Court had no power to award the costs of an appeal to it by leave from a decision of the District Court in appellate jurisdiction, with respect to a sentence following a summary conviction of an offence defined in the Drugs Misuse Act.
It will be seen that section 55 is quite general in its terms and on a literal reading of it there seems to be no reason why it should not be seen to have application to an appeal to the District Court against a conviction on a charge of having committed an offence defined in the Act. The section refers to “any proceedings arising out of a charge”.
The word “proceedings” is not defined in the definition section of the Act (section 4). However, in section 56(2) the word is defined so far as section 56(1) is concerned but that definition is unhelpful for the present purpose. Interestingly, section 56(1) refers to “any proceedings for an offence defined in this Act” rather than “any proceedings arising out of a charge of having committed an offence defined this Act” which is the wording used in section 55. It seems to me on a plain reading of section 55 that it should be construed as having application to proceedings by way of an appeal which the present proceedings are where the appeal arises out of a charge of having committed an offence defined in the Act. I am cognizant of the fact that section 226 of the Justices Act 1886 provides that the Judge may make such order as to costs to be paid by either party as the Judge may think just. However, the Drugs Misuse Act is of course a later enactment.
Other sections in part 6 of the Act refer to proceedings in other ways. For example, section 45(1) refers to “proceedings with a view to the summary conviction of a person upon a charge of an offence defined in this Act”. It seems to me that those sections of part 6 which are intended to refer to proceedings in the Magistrates Court are worded in such a way as to show that that was the clear intention. Section 55 being worded so generally as it is seems to me to demonstrate that the legislature intended that the prohibition against an award of costs should relate to proceedings other than the summary trial or the trial upon indictment of a charge of having committed an offence defined in the Act and therefore to include proceedings in relation to an appeal.
In all of the circumstances then it seems to me that there is no power to award costs in favour of the appellant against the respondent.
There remains to be considered then the question as to whether an order can be made under the Appeal Costs Fund Act 1973. Section 17 of that Act provides relevantly:
“Where – (a) there is an appeal against the decision of a Magistrates Court to the Supreme Court or the District Court on a question of law; and
(b) the respondent to the appeal did not appear in the proceedings before the Magistrates Court and does not appear on the appeal; and
(c)the appeal succeeds but the Supreme Court or the District Court, as the case maybe refuses to order the respondent to pay the appellant’s costs of the appeal; The Supreme Court or the District Court may upon application made in that behalf, grant to any appellant in the appeal an indemnity certificate in respect of the appeal. ”
However that section has no application to the present situation because the respondent did appear.
It seems to me that there is no provision of the Appeal Costs Fund Act which would enable me to make any order for an indemnity certificate in favour of the appellant. I therefore make no order in respect of the costs of the appeal.
G. T. BRITTON S.C. DCJ
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