Dec. 8. The following written judgments were delivered: - GIBBS AND MASON JJ. This is an application for special leave to appeal from a decision of the Queensland Court of Criminal Appeal dismissing an appeal by the applicant against his conviction by a magistrate on two charges under the provisions of the Health Act 1937 (Q.), as amended ("the Health Act"). The applicant was convicted on a charge of having on 16th July 1977 in his possession a prohibited plant, namely Indian hemp (cannabis sativa), not being licensed or authorized by, or under, the Health Act so to do, and it is from this conviction that he seeks to appeal. He was also convicted on a charge of having on the same date in his possession one bamboo pipe which he had used in connexion with the smoking of Indian hemp. The applicant does not seek to appeal against this conviction. (at p594)
2. The point of the case, and it is an important point, is that the quantity of the drug found in the applicant's possession was minute, so small that it was not measured, the applicant's case being that a person must be in possession of a measurable quantity of a prohibited plant before he can commit the offence of having possession of that plant. (at p594)
3. The relevant evidence for the Crown was given by Constable Guild and Mr. Kleinschmidt, a botanist. Constable Guild found fragments of green leaf material in the pockets of two coats belonging to the applicant. When asked, "What is the green leaf material?" the applicant replied, "Probably cannabis." In response to the further question, "Is it yours?", he said, "If it's cannabis, it would be." The pockets of the coats were subsequently examined microscopically by Mr. Kleinschmidt and found to contain cannabis sativa (Indian hemp). He said that there were fragments adhering to the bottom of the pockets. He gave the following evidence: "Q. Now, you've examined that material microscopically? - Yes. Q. Are you able to say what quantity of the offending material is there, cannabis sativa? - No. With small quantities, I never bother to weigh them. Q. Are you able to say whether the . . . the grain or the fine material there, is that substance alone or is it combined with dirt and dust? - There is a lot of other debris there. Yes. Q. Would you agree with me that perhaps the amount of pure cannabis there might be of the order micrograms? - Yes. Q. Do you agree that both those pockets have sufficiently rumpled linings so that the material can easily be lost between the folds of the . . . the pockets, themselves? - Yes. Yes. Q. Would you agree that from 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.
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Details
AGLC
Williams v The Queen [1978] HCA 49
Case
[1978] HCA 49
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Williams against a conviction for murder. The appellant had been found guilty of the murder of his wife and sentenced to life imprisonment.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to determine if the evidence presented at trial was capable of supporting a finding of provocation, and if so, whether the jury had been properly instructed on the elements of this defence, including the requirement that the provocation must be such as to make an ordinary person act in the way the accused did.
The High Court, in a majority decision, found that there was sufficient evidence of provocation to warrant a direction to the jury. The judges reasoned that the defence of provocation, if established, could reduce a charge of murder to manslaughter. They applied the principles established in previous cases concerning the objective and subjective elements of provocation, emphasizing that the jury must consider whether the provocation was sufficient to cause an ordinary person to lose self-control and act as the accused did, and whether the accused was in fact provoked. The court held that the trial judge's directions were inadequate as they did not sufficiently explain these elements to the jury.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.