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R v Morgan

 

[1979] CCA 127

IN THE COURT OF CRIMINAL APPEAL QUEENSLAND

C.A. No. 147 of 1979

THE QUEEN

V.

JOHN WILLIAM MORGAN

_____________________

D.M. CAMPBELL J.

HOARE J.

KNEIPP J.

_____________________

Reasons for Judgment delivered on the 18th December, 1979 by D.M. Campbell J. and Hoare J., Kneipp J. dissenting.

_____________________

“APPEAL DISMISSED”

_____________________

IN THE COURT OF CRIMINAL APPEAL QUEENSLAND

C.A. No. 147 of 1979

THE QUEEN

v.

JOHN WILLIAM MORGAN

(Appellant)

JUDGMENT - D.M. CAMPBELL J.

This is an application for leave to appeal from a decision of a Stipendiary Magistrate at Cairns on June 6, 1979, convicting the applicant of having in his possession the prohibited plant indian hemp (cannabis sativa) contrary to s. 130 (1)(a) of the Health Act 1937-1976. Particulars of the charge alleged the finding of a match box containing a quantity of green leaf material in a drawer of a dresser in the front verandah section of the residence occupied by him at 533 Mulgrave Road, Cairns, and also the finding of a tupperware container containing money and green leaf material in the lounge of the residence. The green leaf material was identified at the hearing as indian hemp. In convicting the applicant the magistrate found that he had in his possession the match box and its contents as well as the contents of the tupperware container.

The applicant was represented before the magistrate by a solicitor. In the notice of appeal against conviction which was given in time the grounds of appeal are stated to be, “Such grounds as counsel may advise”. An application was made to us to amend the notice by including the following ground:

“That the learned magistrate failed to direct himself properly -

  1. (a)
    on the onus of proof;
  1. (b)
    on the law dealing with the evidence of accomplices;
  1. (c)
    on the law dealing with corroboration;
  1. (d)
    on the law dealing with the credit of the witness Johnstone.”

The right of appeal to this court of a person convicted summarily of an indictable offence is under's. 673 of the Criminal Code. It provides that the person convicted may appeal on the same grounds and on the same conditions as if he had been convicted on indictment. Under s. 671 the person desiring to appeal must give notice of appeal, in the prescribed manner, within 14 days of his conviction or sentence. The nature of his right to appeal against conviction is made to depend by s. 668D on the ground of appeal - on whether it involves a question of law or a question of fact. The form of notice of appeal is set out in Part IX of the Schedule to the Criminal Practice Rules of 1900. The form contains a direction that the grounds of appeal must be filled in before the notice is sent to the Registrar, and contains a further direction couched in these words, “You must here set out the grounds or reasons you allege why your conviction should be quashed.” Order XIV, r. 1 of the Rules provides that when the Forms in the Schedule are used in cases where they are applicable they shall be sufficient. The practice of not notifying the Crown of the grounds of appeal until the last moment is, in my experience, becoming increasingly common. I think that applicants should be told not to count on obtaining an extension of time for appealing in cases where there has been inexcusable delay in giving notice of the grounds.

There would be some justification in this case for the applicant thinking that his conviction was a piece of misfortune. The police officers had no warrant authorising them to search the premises at 533 Mulgrave Road. On arrival there they had no reason to believe that a prohibited plant was upon the premises. The existence of such a belief is a pre-requisite to the obtaining of a search warrant under s. 131A of the Health Act. That section provides that upon complaint on oath before a justice of the peace by a member of the Police Force that such member believes that a prohibited plant is in or upon any premises the justice may grant a warrant to any member of the Police Force to enter and search the premises. The police went to the premises in Mulgrave Road to interview a man in connection with recognizances he had entered into. Their information was that he had left the premises and they called there just to check up. The witness Johnstone met them at the door. Detective Metcalfe said there was something about his demeanour which made him suspicious. He said, “I discussed this nervousness with him and he allowed me into the house to search it”. The entry and search were quite illegal had the police been told to get off the premises: Davis -v- Lislie (1936) 2 K.B. 434. But as they were allowed in their action could not be complained of. Even where an entry and search are illegal, it has been held that a court has a discretion to admit the evidence obtained in the course of the search: Herman King -v- The Queen (1969) 1 A.C. 308.

With reference to the tupperware container, the magistrate said in his reasons:

“Leaving ownership of the container itself aside, I am convinced on the evidence that the money in the container belonged to the defendant and in those circumstances regardless of ownership of the container it would have been very improbable that the defendant would leave it out of his control.”

The sum of money was $54.97 in Australian currency.

The evidence was that the tupperware container belonged to the applicant and that he had used it as a money box at 40 Yarra Street, Bayview Heights, where he had resided with Johnstone and another person, Maxwell, They had shifted house only 24 hours before the police arrived. The plant material was found in the tupperware container on the lounge room floor at 533 Mulgrave Road in a plastic bag. Johnstone who was called by the prosecution gave the following evidence of the search leading up to the discovery of the bag:

“Q.

And what happened after that?

Well we went downstairs and then back upstairs and searched the lounge room and all the boxes up there and then he had a look in the tupperware container

What tupperware container was that?

Just a big round one with heaps of coins in it.

Who owned the container?

John.

Well did you see anything take place when the police searched that container?

He showed me a plastic bag he found in it.

And prior to the officer showing you the plastic bag had you seen it previously?

Yes

When was that?

The night before.

Was that at the same address?

“A.

Yea

What had taken place with this plastic bag the night before?

We had a smoke.

When you say we who do you mean?

John and myself.

That's John Morgan?

Yes

Well just describe to the court what this plastic bag contained?

Green grass.

Well did you believe it to be any particular substance?”

The magistrate then ruled on an objection by Mr. Mellick, the solicitor representing the applicant, and the examination-in-chief proceeded:

“Q.

You said that you had a smoke from the bag the previous night?

Yes.”

The evidence does not disclose who had possession of the plastic bag the night before or where it came from or was kept. The mere fact that the bag was found in the tupperware container the following morning did not establish possession in the applicant. There were two other persons sleeping in the lounge room besides the applicant (assuming that he did sleep there, and there was evidence that he slept on the verandah) any one of whom might have put the bag in the container. The reason given by the magistrate for finding that the applicant was in control of the container and therefore of the plastic bag does not take into account other possibilities. I am of the opinion that the finding was not open on the evidence.

But my opinion is that there was evidence which could have satisfied the magistrate that the applicant had in his possession the match box and its contents, and that, consequently, the conviction should stand. To outline the evidence, the match box was found in the top drawer of a dresser and the applicant's name was on a piece of paper pasted on the mirror. On the top of the dresser was a fishing reel box with a plastic label bearing his name, and a wallet with his photograph inside. In the top drawer where the match box was found was a passport issued to the applicant; the match box was actually standing on the passport. There were other articles in the drawer, for instance, several pipes and a box of Jiffy 7 Peat Pots. The applicant was interviewed by Detective Metcalfe in the presence of his solicitor and despite warnings from Mr. Metcalfe made replies which could be construed as admissions that those articles were his. All this evidence pointed to the fact that the dresser held the applicant's belongings and that he had the control of it. Questioned by Mr. Mellick as to whether there were any papers in the dresser bearing any other person's name, Detective Metcalfe said that he could not remember any.

It was argued by counsel that Johnstone was an accomplice and that the magistrate should have looked for corroboration of his testimony. The question whether a person is an accomplice is one of fact, and there was no evidence, as far as I can see, that the witness was an accomplice in respect of the actual offence charged: Davies -v- Director of Public Prosecutions (1954) A.C. 378 at p. 402. Johnstone gave contradictory evidence. As the magistrate observed, a remarkable change came over him in cross-examination; matters about which he was sure in examination-in-chief suddenly became doubtful. The magistrate obviously regarded him as an unfavourable witness, but it was a question for him whether his evidence was so unreliable that he would not believe any of it. He accepted the evidence he gave in chief. The magistrate rightly rejected a prior statement by the witness which was produced by the prosecutor. This statement was tendered during re-examination presumably on the basis that part of it was inconsistent with some of the witnesses' answers in cross-examination. The only use that could have been made of the statement, in my opinion, would have been on an application to have the witness declared hostile, and such an application was not made while the witness was in the witness box.

In the result I think that the application to add grounds of appeal should be refused and the appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL QUEENSLAND

C.A. No. 147 of 1979

THE QUEEN

v.

JOHN WILLIAM MORGAN

(Appellant)

JUDGMENT - HOARE J.

The appellant was charged before a Stipendiary Magistrate at Cairns “that on the eleventh day of April 1979 at Cairns in the State of Queensland you, not being licensed or authorised by or under The Health Act 1937-1979 so to do had in your possession a prohibited plant namely Indian Hemp. (Cannabis Sativa)” He pleaded not guilty.

In response to a letter seeking particulars of the offence, the following letter was written to the appellant's solicitor:—

“I refer to your letter under date of April 18, 1979 and advise that your client is charged with the following:

‘That on the eleventh day of April, 1979 at Cairns in the State of Queensland one JOHN WILLIAM MORGAN not being licensed or authorised by or under the “Health Act 1937-1978” so to do had in his possession a prohibited plant namely Indian Hemp (Cannabis Sativa.)’

The particulars the prosecution will allege are as follows:

Statute.

“Health Act 1937-1978.”

Section.

130 (1) (a).

Date.

April 11, 1979

Time.

At about 11.45 a.m.

Place.

A dwelling house situated at 533 Mulgrave Road Cairns.

It will be alleged that Police Officer's went to the dwelling house on April 11, 1979 and conducted a search with the consent of the person present.

It will also be alleged that Police Officers found a match box containing a quantity of green leaf material in the top drawer of a dressing table in the front verandah section of the residence which was occupied by your client.

It will also be alleged that the following property was found in the same drawer:

 

 

2 pipes.

 

 

A passport in the name of John William MORGAN.

 

 

A wallet containing papers and a photograph of your client.

 

 

A cardboard carton labelled ‘J.W. MORGAN’ which contained a fishing reel.

 

 

A carton of ‘Jiffy’ compressed peat pots.

It will also be alleged that the green leaf material in the match box was the prohibited plant Indian Hemp (Cannabis Sativa.)

  1.  

It will also be alleged that a tupperware container “containing money and green leaf material was found in the loungeroom room, and that the green leaf material was the prohibited plant Indian Hemp (Cannabis Sativa.)

  1.  

It will also be alleged that the prohibited plant was in the possession of your client and that he was not licensed or authorised by or under the provisions of the ‘Health Act’ to have that prohibited plant in his possession.

  1.  

All other acts and facts as adduced by the evidence.”

It will be noted that the particulars furnished were clear, detailed and obviously adequate for the purpose of informing the appellant of all requisite details of the charge brought against him.

The appellant was interrogated on 17th April 1979 at the police station. He was accompanied by his solicitor. He supplied his name and address and some personal particulars. Detective Metcalfe said to the appellant

“‘John as you are no doubt aware, on the 11th April this year I had occasion to go to a residence at 533 Mulgrave Rd Cairns. At this house I spoke with a man named Spencer Johnstone and he allowed us into the house and Det. Hegarty and I made a search of that house. During this search I found a match box of what I believe to be cannabis in a drawer of a dresser. I also found a plastic bag containing a small quantity of cannabis in a tupperware container in the loungeroom of that residence. I have reason to believe that these small amounts of cannabis were in your possession and I am going to ask you some questions regarding this. Before I do I will warn you that you need not answer any of my questions or say anything to me unless you want to as anything you do so will be taken down and may later he produced in evidence. Do you understand that warning.’ He replied ‘Yes’. Mr. Mellick then said ‘I've advised him not to answer any questions’. The deft, then said ‘I don't want to answer any questions.’ I said to the deft. ‘I appreciate that you have been given certain advice and that you may not wish to answer any of my questions .....’”

Det. Metcalfe said to him “You have already told me that you reside at 533 Mulgrave Road, Cairns. Do you agree that you occupy the front verandah section of that residence and use it for a bedroom.” The appellant said “No answer”. Detective Metcalfe referred to his having made a search of “that dresser” and his having found a match box containing green leaf material “that I identified as cannabis”, (the material was at the trial demonstrated by scientific evidence to have been cannabis sativa) and that the appellant's passport and photographs of the appellant were in the same drawer. The appellant was asked “Do you wish to agree or deny that this box of cannabis (shown to him) was in that drawer with other articles bearing your name.” The appellant replied “No answer”. The appellant gave the same response to questions relating to certain pipes also said to have been contained in the drawer of the dresser. Asked about a box of ‘Jiffy Pots' said to have been found in the same drawer, the appellant replied “They're for a garden at Bayview Heights. They're alright”. The solicitor said “Don't answer” and the appellant said “No answer”. The appellant also gave responses of “No answer” to questions concerning the Tupperware container which contained, inter alia, a plastic bag with a substance proved to have been cannabis sativa. It will be noted that the investigating police officer had continued to question the defendant notwithstanding his obvious intention of not answering questions. In so doing he was acting with complete propriety because generally speaking, an investigating police officer is entitled to put to an accused person all evidence which it is intended to adduce, thereby giving that person an opportunity of explaining any matters which in the absence of explanation, may tend to incriminate him.

P.C 1/C Constable Metcalfe's evidence and that of P.C.C. Hegarty included the finding of a match box containing Cannabis in the drawer of the dresser, that the drawer contained two pipes and they and the match box of Cannabis were “on top of the passport which had been issued in the name of the defendant”. There were also photographs of the defendant contained in the same drawer. Johnstone gave evidence of having moved into the house on 10th April with the defendant and Maxwell. In his evidence-in-chief he said that P.C. Constable Metcalfe had “found a match box with marihuana in it”. Asked as to the contents, Johnstone said “It just looked like green grass”. Asked where did he find that? the answer was “in the drawer of the dresser”. Asked “Are you able to tell the Court whose dresser it was”. His answer was “John's”. John was identified as John Morgan, the appellant. Johnstone also gave evidence of P.C. Constable Metcalfe having found a Tupperware container “in the lounge room”. He said that the container contained “heaps of coins”. He was asked “Who owned the container”. His answer was “John”. He said a plastic hag was contained in the Tupperware container.

Johnstone gave the following evidence:—

Q.

And prior to the officer showing you the plastic bag had you seen it previously.

Yea.

When was that.

The night before.

Was that at the same address.

Yea

What had taken place with this plastic bag the night before.

We had a smoke.

When you say we who do you mean.

John and myself.

That's John Morgan.

Yes

Well just describe to the court what this plastic bag contained.

Green grass.

Well did you believe it to be any particular substance.”

Johnstone's evidence was to the effect that he, Maxwell and the appellant had previously lived at 40 Yarra Street, Bayview Heights for about four or five months and that the Tupperware container “was the property of Mr. Morgan” when they lived at Bayview Heights. He said it was used as a money box.

In cross-examination the witness, Johnstone, answered a number of questions. If accepted, the answers would have detracted enormously from the evidence given in examination-in-chief. In the circumstances I do not deem it necessary to analyse this evidence in detail.

The Magistrate delivered reasons for his decision which contained the following:—

“ The burden of proof is on the prosecution to prove every element of the offence beyond a reasonable doubt. There have been four witnesses called for the prosecution. The evidence of the three policemen I accept without question. The evidence of the witness Johnstone has been called into question and I must decide what part of it, if any, I am going to accept.

Johnstone has given evidence that the defendant owned the dresser in which Detective Metcalfe found the matchbox containing prohibited plant material. “This has not been contradicted. He then gave in evidence in chief an unhesitating account that the defendant was the owner of the Tupperware container and that in their previous residence he had seen the Defendant putting money in it. He also gave a very clear version of how he and the Defendant smoked the green grass substance from the plastic bag on the 10th April; going to the extent of describing even the method of smoking (that is, with cigarette papers). He then went on to tell the Court, when referring to the mattress in the photograph- Exhibit 3- that the Defendant put the mattress and bad clothing down that night. (In the circumstances the question was put I have no hesitation in saying the witness was then indicating that the mattress was placed in the position it was in the photograph).

The facts disclosed by the witnesses' evidence in chief do not, of course, favour his friend, the Defendant. On the sudden, when he starts giving answers to questions in cross-examination, a remarkable change comes over the witness. He becomes very doubtful on a lot of issues. Strangely enough they are all issues important to his friend's case. The fact that doubt existed is not in itself remarkable. What I find hard to accept is that a period of almost three months from the date of the alleged offence has elapsed in which the witness would most certainly have been searching his mind and making sure of his facts in relation to such important matters, and yet he expresses not one suggestion of doubt when giving his evidence in chief.

The ease in which these questions of doubt came to light in cross examination can not be overlooked. It took very little prompting for the witness to say that he knew the Defendant had a container on his dressing room table but he is not now sure whether it is the same one or not. There followed a description of another container by way of evidence consisting of leading questions put to the defendant to which he made brief affirmative replies.

Then, in relation to the smoking episode, the witness claimed that he did not know where the green grass substance came from. At that stage it is clear he accepts that he and the Defendant had been smoking it but he had changed his story as to where it had been obtained. But he goes on to say later that he is not sure he smoked some green grass substance on the night of the 10th April because he had a lot to drink that day. We now have three stories from this witness concerning the smoking, all differing in material points. One in examination in chief and two differing versions in cross examination.

In cross examination the witness changes his story on when the Defendant came to put the matress near the dresser. He said I think he slept in the lounge room with me. He also gave evidence that the Defendant carried the mattress out to the verandah in the morning. He changes that view to the Defendant “must have” put it there when it was established in re-examination that he was still asleep when the Defendant left for work in the morning.

On the whole I find it difficult to accept the evidence given in cross examination by the witness Johnstone. In my view it is suspect. It leaves me with the view that the witness was out to agree with everything put in the statement given to Detective Metcalfe when giving his evidence in chief and “then consciously went about denying and qualifying his story in the Defendant's best interests. I give no weight to the evidence given by the witness in cross examination but I accept his evidence in chief.

I find on the evidence that Det. Metcalfe had authority under Section 130M(1) (b) of the Health Act to search the Defendant's belongings. In my view, he had detained Johnstone under Section 130M(1) (a) on a reasonable suspicion as to the matters contained in that paragraph. This gave him power under paragraph (b) to search the premises. Such power, in my view, would include power to search everything contained in the premises.

I find on the evidence that the Defendant was the owner of the dresser and used the dresser in which to keep his belongings. There may have been property of other persons deposited therein at the time. These other persons were not permanent occupants of the places in which the Defendant resided up to the 11th April. These people were short term residents only and had no control over the dresser. There could have been property of another person in the dresser at the time of Detective Metcalfe's search. I have no doubt, on the evidence, that the Defendant exercised such a degree of control over the dresser that he must have had full knowledge of the contents of the dresser and in fact had that knowledge on the 11th April, 1979. It was in his provence, having knowledge of the nature of the contents of the matchbox, to dispose of it. It was in his complete control. He, in fact had the matchbox and its contents in his possession.

I find on the evidence also that the Defendant had control over the contents of the Tupperware container. Leaving ownership of the container itself aside, I am convinced on the evidence that the money in the container belonged to the Defendant and in those circumstances, regardless of ownership of the container it would have been very improbable that the Defendant would leave it out of his control. I am without doubt that the defendant had the whole of the contents of the Tupperware container in his control; that he knew the prohibited plant was in the container; and that he knew the nature of the prohibited plant......I find that the prosecution has proved its case beyond a reasonable doubt and I convict the defendant. The defendant is convicted and fined $400 and in default fourteen months imprisonment .....”

Morgan appeals to this Court against his conviction. The amended grounds of appeal which are sought to be substituted are as follows:—

That the learned Magistrate failed to direct himself properly

  1. (a)
    on the onus of proof and the legal requirements necessary to constitute possession;
  1. (b)
    on the law dealing with the evidence of accomplices;
  1. (c)
    on the law dealing with corroboration;
  1. (d)
    on the law dealing with the credit of the witness JOHNSTONE.

It is submitted by counsel for the appellant that the reasons for judgment as recorded by the Magistrate indicate that he had misdirected himself in respect of the matters referred to in the amended notice of appeal.

It is submitted inter alia that the Magistrate was not entitled to adopt the approach which he had done and in effect accept the evidence-in-chief of Johnstone and reject substantially his cross-examination.

I see no substance in this contention. The Magistrate was quite entitled to observe the demeanour of the witness and was perfectly entitled, if he were so satisfied, as obviously he was, that the witness was seeking to assist the appellant. There was no reason why the Magistrate should not have concluded that his evidence-in-chief was a correct account of what had happened and that to the extent that his answers in cross-examination varied from this evidence, they were made, not with the intention of revealing the truth but to assist the appellant. It is also argued that the evidence of Johnstone should have been excluded by the Magistrate in the exercise of his discretion. I see nothing in the evidence to establish that there was any unfairness in the police officers' actions in obtaining evidence from Johnstone.

It is also submitted that the inconsistent evidence of Johnstone in cross-examination was such that his whole evidence should have been rejected. Counsel relies on R. v. Rose (1977) Qd. R. 280. It is clear that R. v. Rose was determined on its own facts because it was never the law that because a witness had made inconsistent statements the evidence of that witness must necessarily be rejected. (See R. v. Jackson (1964) Qd. R. 26 at p. 29 and 40 which was applied in R. v. Rose at p. 282 and in Driscoll v. The Queen (1977) 51 A.L.J.R. 731 per Gibbs J. at p. 740, Mason and Jacobs JJ. concurring.) In any event the Evidence Act 1977 (section 102) which became law on 1st January 1978, that is after R. v. Rose (supra) was decided, renders it abundantly clear that it is for the court to determine the weight to be given to inconsistent statements within the section. This states the law as to statements made out of court as it has always applied to inconsistent statements in the course of a witness's evidence at the trial.

It is clear that so far as concerned the actual charge with which the Court was concerned, Johnstone was not an accomplice. (Davies v. D.P.P. (1954) A.C. 378; (1954) All E.R. 507). However, even if in the circumstances it was appropriate to treat him as an accomplice, then there was ample corroborative evidence so far as concerns that part of the charge which related to possession of the Cannabis in the match box, viz. the evidence of the police officer's concerning the presence of the match box in the dresser with the appellant's passport, photographs and other items of property acknowledged by him to be his or under his control. (The Jiffy pots). The presence of the match box (with its contents) in a dresser labelled with the name of the appellant, with the appellant's passport and personal photographs raise a strong inference that the whole of the contents of the drawer were in the possession of the appellant.

The observations of Isaacs J. in Morgan v. Babcock & Wilcox Limited (1929) 43 C.L.R. 163 at p. 178 cited the oft-quoted observation of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at 65

“...all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”

Isaacs J. held that where affirmative evidence raises a strong probability of guilt, the silence of the respondent company and its failure to explain, materially weakened any attempt to suggest in its favour possible hypotheses of innocence.

As stated by the New South Wales Court of Criminal Appeal in R. v. Guiren (1962) N.S.W.R. 1105 at p. 1107

“... even in a criminal case it is legitimate to have regard to the fact that the accused has given no evidence or explanation or satisfactory explanation of the Crown case as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear.”

The court referred to Blatch v. Archer (supra), the judgment of Isaacs J. in Morgan v. Babcock & Wilcox Limited and also to May v. O'Sullivan (1955) 92 C.L.R. 654.

I am satisfied that there was ample evidence on which the Magistrate could conclude that at the relevant time the appellant had been in possession of the Cannabis contained in the match box.

So far as concerns the cannabis in the Tupperware container, different considerations apply. Other persons had ready access to the container and in my opinion it has not been established to the requisite standard of proof that the appellant was in possession of the cannabis in that container. The failure of an accused person to make a satisfactory explanation does not come into consideration unless and until there is a sufficiently strong prima facie case.

There was some discussion at the hearing as to the effect of a conviction being sustained as to possession of one item but rejected as to another item. A case involving unlawful possession of property is analgous to the case of the person who is charged with stealing a number of articles. In the latter type of case, if the Jury is satisfied to the requisite standard of the guilt of the accused as to any one of the articles, the prisoner may be convicted (R. v. Clark (1934) S.R.Q. 23 at p. 26, R. v. Zigenbine) (1935) Q.W.N. 42, R. v. Lindsay (1963) Qd.R. 386 per Hart J. at p. 401, Philp A.C.J. concurring) See also Machent v. Quinn (1970) 2 All E.R. 255 which is in line with earlier English cases before the enactment of The Theft Act 1968.

There was also some discussion at the hearing of the appeal as to whether the fine imposed by the Magistrate would have been appropriate to a finding of guilty only so far as concerned the contents of the match box. There was no evidence of the weight of the respective quantities found in each container. It was pointed out by counsel for the Crown that the appellant had not appealed against sentence and no attempt was made to seek to institute any such appeal.

In my opinion the appeal should be dismissed.

Since writing these reasons for Judgment I have read the draft reasons for Judgment of my brother the Presiding Judge. I agree with his reasoning and I agree with his condemnation of the increasing practice of seeking to add grounds of appeal at the last moment as it were and long after the time for appeal has expired. However we did in fact hear the appeal on the merits and permitted counsel to argue the specific grounds sought to be substituted for the meaningless grounds stated in the notice of appeal. Although it makes no difference to the result of the appeal, in these circumstances I feel that it would be preferable to allow the amendment to the grounds as sought and dismiss the appeal, rather than refuse the amendment.

IN THE COURT OF CRIMINAL APPEAL QUEENSLAND

C.A. No. 147 of 1979

THE QUEEN

-v-

JOHN WILLIAM MORGAN

(Appellant)

JUDGMENT - KNEIPP J.

I have had the advantage of reading the judgments of the other members of the Court. I agree with what has been said by D.M. Campbell J. as to the so called notice of appeal in this matter, and on the subject of notices of appeal generally. I agree with what was said by Hoare J. as to the effect to be given to what was said in R -v- Rose ((1977) Qd. R. 280) in relation to the evidence of a witness who has made inconsistent statements. I agree with both of my brothers that there was not sufficient evidence that the appellant was in possession of the material found in the tupperware container. But I have the misfortune to differ from them in relation to the material contained in the match box. In the circumstances, I think that there is not any point in setting out my reasons at any length.

The match box was found in a dressing table which appears to have been generally in the control of the appellant, together with other articles which would appear to have been his property or in his possession. But the accused and his companions had just moved into the house, and it seems that the place was in some disorder, their respective belongings not having been sorted out; I do not think that it was shown that the accused's use of the dressing table was exclusive, and certainly other persons could easily have had access to it; the accused had been absent from the house for some hours before the police came to it; an occupant of the house during that period was the witness Johnstone, himself a user of cannabis; and I think that Johnstone could only be regarded as an unreliable witness, particularly as he must have considered himself to be a suspect. In these circumstances, I would regard the conviction as dangerous, and would be in favour of allowing the appeal.

Close

Editorial Notes

  • Published Case Name:

    The Queen v John William Morgan

  • Shortened Case Name:

    R v Morgan

  • MNC:

    [1979] CCA 127

  • Court:

    QSC

  • Judge(s):

    D.M. Campbell J., Hoare J. and Kneipp J.

  • Date:

    18 Dec 1979

Litigation History

No Litigation History

Appeal Status

No Status