Schagen v Draper

[1994] QCA 342

IN THE COURT OF APPEAL [1994] QCA 342

SUPREME COURT OF QUEENSLAND

C.A. No. 204 of 1994

Brisbane
[Schagen v. Draper]

BETWEEN:

P.J. SCHAGEN
v.

JOHN CHARLES DRAPER Appellant

Fitzgerald P. McPherson JA. Ambrose J.

Judgment delivered 06/09/94

Judgment of the Court

Appeal dismissed

CATCHWORDS:CRIMINAL LAW - Evidence - possession of a dangerous drug - appellant seen by police to throw a piece of paper from a car that had been stopped - paper found to contain cannabis sativa - appellant denied knowledge of the paper or its contents - appellant gave no evidence at trial - Magistrate refused to accept tapes of the appellant's record of interview - whether in the circumstances Magistrate could draw adverse inference from the appellant's silence

Counsel:Mr. T. Carmody, with him Mr. B.J. Briggs for the

appellant

Ms. L. Clare for the respondent
Solicitors:Aboriginal Legal Service for the appellant
Director of Prosecutions for the respondent
Hearing Date: 26/08/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 06/09/94

The appellant, John Charles Draper, has appealed against his conviction in the Magistrates Court at Caboolture on 11 May 1994 of an offence of possession of a dangerous drug, cannabis sativa, on 23 March 1994.

The appellant was a passenger in a car which was stopped by police. As police officers approached the car from the front and rear, the applicant was seen to throw a piece of paper out of the window. The paper contained a small quantity of cannabis sativa. Initially, the appellant said that the paper was not his. He gave a false name, and subsequently became aggressive and claimed to know nothing about the matter. He alleged that the police officer was "just trying to pin it on him" and that he did not know what the "stuff" was wrapped in the paper.
The appellant was subsequently interviewed and an attempt was made by the prosecution to tender tapes of the interview at the trial. Counsel representing the appellant raised no objection but, after ascertaining that there were no admissions on the tapes, the magistrate refused to accept them. At that point, the appellant's counsel thanked the magistrate.

No information concerning the contents of the tapes was placed before this Court, and there is nothing to suggest, for example, that the appellant said anything different to the police officers in the course of the interview from his statements shortly after the car was pulled over. Nonetheless, the submission was made that the magistrate made an error in refusing to admit the tapes of the interview because they might have recorded some statement which would have caused the magistrate to have a reasonable doubt whether the appellant knew that the paper contained the drug.

This speculation does not persuade me that there was anything unsafe or unsatisfactory in the appellant's conviction.

The magistrate had before him evidence clearly establishing the appellant's possession of a piece of paper containing cannabis sativa. The only remaining issue was whether it had been established beyond reasonable doubt that the appellant knew that the drug was in the paper. The magistrate plainly was not obliged to accept the appellant's denials or other statements to the police. It was open to the magistrate to infer from the appellant's possession and attempted disposal of the paper and its contents as the police approached that he knew the nature of the contents. While the appellant's silence at his trial could not fill in any gaps in the prosecution case, there were no gaps. The appellant's silence was available to the magistrate to strengthen the inference of knowledge which was otherwise open.

The appellant's attempt to rely upon the absence of the record of interview is without substance. As already stated, there is nothing to indicate that it contained any material of the slightest value to the appellant. No attempt was made by the appellant's counsel at his trial to have the tapes retained for identification and ultimate production on appeal if required, nor did the appellant by his counsel seek himself to tender the tapes or ask any questions of the police officers in cross-examination to suggest that the appellant had made statements which could operate to his benefit.

The appeals should be dismissed.