Queensland Judgments


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Walton v Butler


[2004] QCA 456






Court of Appeal


Application for leave s 118 DCA (criminal)



26 November 2004




18 November 2004


McPherson JA, Williams JA, Philippides J

Separate reasons for judgment of each member of the court, each concurring as to the order made


Application for leave to appeal dismissed with costs


ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI RECORD -  ISSUE ESTOPPEL – where in a search of applicant’s house police located a quantity of cannabis and a sum of $15,555 nearby – where applicant charged with possession of tainted property in magistrates court -  whether the prosecution was estopped from relying on the presence of the cannabis to prove that the money was tainted property, by reason of the fact that in prior proceedings in the Supreme Court, at which the applicant pleaded guilty to possession of drugs, it was accepted by the prosecution in an agreed statement of facts that the cannabis was for personal use

Evidence Act 1977 (Qld), s 132C

Brown v Robinson [1960] SR (NSW) 297, cited

Director of Public Prosecutions v Humphrys [1977] AC 1, cited

Mraz v R (No 2) (1956) 96 CLR 62, considered

Rogers v R (1994) 181 CLR 251, considered

R v Jerome [1964] Qd R 595, cited


M J Byrne QC for the applicant

R G Martin SC for the respondent


Ruddy Tomlins & Baxter for the applicant

Director of Public Prosecutions (Qld) for the respondent

[1]  McPHERSON JA: On 23 July 2002, police accompanied by a “sniffer” dog carried out a search of a house at 24 Poole Street, Bowen, where the applicant Michael John Walton lived with his family.  In the kitchen they located a receptacle and two bags containing cannabis.  In the main bedroom they found several similarly marked clipseal bags containing money in amounts totalling $15,555.  A cone or pipe was also found in the house.  The quantity of cannabis seized amounted in all to 632 grams.

[2]  The applicant was charged on three separate complaints in the Magistrates Court with offences against the Drugs Misuse Act 1986 of (1) possessing a dangerous drug, and (2) possessing a cone; (3) possession of $15,555 that might reasonably be suspected of being tainted property under s 92(1) of the Crimes (Confiscation) Act 1989.  Because the quantity of cannabis exceeded 500 grams, an ex officio indictment no SCR 7103 was presented in the Supreme Court at Townsville charging the applicant with the first two of these three counts under the Drugs Misuse Act.  It came before Cullinane J on 27 February 2003, whereupon the applicant on being arraigned pleaded guilty to both charges.  In sentencing him to perform a period of community service, his Honour said:

“… it is common ground that I am to deal with you upon the basis that you had possession of 638 grams of cannabis sativa for your personal use.  Given that is so, it is, I think, appropriate that I make a non-custodial order, as has been proposed by your counsel, and I propose to do so.”

[3]  The indictment in the Supreme Court said nothing about the money located in the house at Poole Street, which remained the subject of the third complaint in the magistrates court at Bowen.  When it came to a hearing in March this year, the acting magistrate acceded to a written submission by counsel for the applicant to the effect that the character of the applicant's possession of the cannabis had been determined by his Honour's sentencing decision in the Supreme Court on 27 February 2003.  The written submission is not contained in the appeal record before us; but it sufficiently appears that the applicant was relying on the decision in Mraz v The Queen (No 2) (1956) 96 CLR 62, to argue that an issue estoppel arose in favour of the applicant. It was said to prevent the prosecution in the proceedings in the magistrates court from relying on evidence about the cannabis seized in the applicant's house to prove the charge in the third complaint that the sum of $15,555 also found there in the applicant's possession might reasonably be suspected of being tainted property.  Confronted by the ruling in favour of the applicant that the decision in Mraz gave rise to the issue estoppel contended for, the police prosecutor confessed his inability to offer evidence in support of the charge in the third complaint, which was accordingly struck out with costs against the complainant.  In reliance on the decision of this Court in Andrews v Henderson [2004] QCA 145, the complainant instituted an appeal under s 222 of the Justices Act 1886 against dismissal of the complaint.  The appeal came before Wall DCJ in the District Court in Townsville where his Honour allowed the appeal and set aside the decision of the magistrate.  The applicant now seeks leave of this Court under s 118(3) of the District Court Act 1967 to appeal against the decision allowing that appeal.

[4]  The decision of the High Court in Mraz v The Queen (No 2) (1956) 96 CLR 62 recognising that an issue estoppel is capable of arising in criminal as in civil proceedings has not met with universal acclaim. In England the House of Lords declined to follow it in Director of Public Prosecutions v Humphrys [1977] AC 1, and even in Australia it may be doubted whether it has survived the strictures of Mason CJ, Deane and Gaudron JJ in their judgments in Rogers v The Queen (1994) 181 CLR 251.  Rather than presuming to join these lists, it seems better to meet the submission on its merits, as did the learned judge below.

[5]  On behalf of the applicant, Mr Byrne QC submitted that all three requirements for an issue estoppel were present here: the parties, the issues and the facts are all the same. But, with respect, that is not so.  The applicant, it is true, was or is a defendant party to the proceedings in both the Supreme Court and the Magistrates Court. However, the sentencing order was made by Cullinane J in proceedings on indictment in which the Queen in right of the State was the moving party; whereas in the magistrates court the protagonist is Aaron Butler, the respondent to this application, who is the complainant in that court presumably because he was the arresting officer.

[6]  The parties to the two proceedings are therefore not the same.  Nor are the issues identical.  The averment, and therefore the issue, in the Supreme Court was, to quote the words of the indictment, whether on 23 July 2002 at Bowen the applicant “unlawfully had possession of the danger drug cannabis sativa And the quantity of the said dangerous drug exceeded 500 grams”. The issue on the complaint in the magistrates court was and is whether at that time and place the applicant “possessed property namely $15,555 that may reasonably be suspected of being tainted property”.  The issues, as Mr Martin SC for the respondent submitted, are therefore different.  The expression “tainted property” is defined in s 13(1)(a) of the Crimes (Confiscation) Act 1989 in relation to a serious offence to mean property “used or intended to be used by a person in, or in connection with, the commission of the serious offence”; and in s 13(1)(b) to mean: “or (b) derived by a person mentioned in (a)”.  The property, that is the money the subject of the third complaint, was and is different from the property the subject of the indictment, which was cannabis.  The applicant may have intended to use the money to buy cannabis in the future; or he may have derived it from past sales of other cannabis. But in either case, it was not and could not have been the 632 grams of cannabis of which he was found in possession on 23 July 2002. In addition, s 92(2) of the Act transfers to the person who is charged with the offence the burden of satisfying the court that he had no reasonable ground for suspecting that the property was tainted or was derived from an unlawful activity.

[7]  The issues in the two are therefore different, which in Brown v Robinson [1960] SR (NSW) 297 was held to exclude the operation of the doctrine of issue estoppel in criminal proceedings.  In Mraz v The Queen (No 2) (1956) 96 CLR 62, at 69, it was said that, to constitute an issue estoppel, “it is enough that an issue or issues have been distinctly raised and found”; and (at 70) that the principle “treats an issue of fact or law as settled once for all between the parties if it is distinctly raised and if the judgment pronounced implies its determination necessarily as a matter of law”. It may be accepted that a sentence is a “judgment” of the court within the meaning of this principle. On a plea of guilty, the processes of conviction and sentence tend to merge, but they are in law, properly speaking, quite distinct: see R v Jerome [1964] Qd R 595, 602-603. At one time it was common to speak of a convicted person who was being sentenced as appearing to receive the judgment of the court.  I think it safe for present purposes to assume that a sentence is itself sufficiently a judgment such that the doctrine of issue estoppel applies to it, if it does so at all, in criminal proceedings.

[8]  The question here is, however, whether in sentencing the applicant on 27 February 2003 Cullinane J made a finding or determination of the or a fact in the issue, which was whether the applicant had the quantity of 632 grams of cannabis in his possession, to which he pleaded guilty on the indictment; and in such a character as to prevent its ever being used as evidence to found a contrary inference against him in the proceedings in the magistrates court about the purpose for which it was intended to use the money located in the house, or as to the source from which it was derived.  There is a difficulty in stating it satisfactorily, which is inherent in the proposition itself; but in substance it involves a submission that, once it had been stamped in the sentencing proceedings with a particular quality or character, evidence of possession of the cannabis could never again be used to establish any purpose “inconsistent” with that quality or character. The submission sought a footing in Rogers v The Queen (1994) 181 CLR 251, where it was held that a judicial finding or ruling about the involuntariness of certain confessions at one trial could not be revisited at a later trial or occasion.

[9]  Rogers v The Queen is authority that such a finding constituted a final judicial determination of the issue of voluntariness of the disputed confessions, so as to make it an abuse of process for the Crown to seek to contradict that finding at a subsequent hearing where the same issue arose (181 CLR 251, at 278-281).  Leaving aside other matters, such as the identity of the parties, already considered, the question is whether a similar final judicial determination was made here. In my opinion it was not. It is not part of the statement of the offence charged under the Drugs Misuse Act of being in possession of dangerous drugs that the possession averred was accompanied by any particular purpose or intention on the part of the offender. The offence is constituted by possession alone and, if of more than 500 grams, it falls to be dealt with in the Supreme Court. In that Court, the applicant pleaded guilty to that offence.  In sentencing offenders for such offences, the courts have tended to adopt the approach of regarding such offences as more serious, and as meriting heavier punishment, if the possession is shown to have as its motivation a “commercial” purpose of buying and selling drugs, rather than of simply using the drugs for the offender's own consumption. The possession of amounts as large as 500 grams in the case of cannabis may, or may not, be an indication of such a motive or intention.  There is, however, no statutory provision requiring any such inference to be drawn, or not to be drawn.  It is simply one factor among others that a court may take into account in deciding whether a higher or lower penalty is to be imposed in the circumstances of a particular case.  Possession for “personal” or for “private” or for “commercial” purposes does not exhaust the range of possibilities, and those concepts are not necessarily always mutually exclusive.

[10]  In the present case Cullinane J in sentencing the applicant did not determine that he had possession of the 638 grams of cannabis for personal use.  As his sentencing remarks show, he accepted that it was “common ground” between the parties that he was to deal with the applicant on the basis that possession of that cannabis sativa was “for your personal use”.  “Given that is so”, his Honour continued, it was, he thought, appropriate to make a non-custodial order, which he proceeded to do.  He made no determination one way or the other on that issue, but simply assumed as correct the basis on which he was asked to sentence the applicant.  It would, of course, have been open to his Honour to refuse to make that assumption; in which event evidence, or at least argument, would have ensued about the proper inference to be drawn from all the circumstances of the applicant’s possession of the cannabis.  If that course had been adopted, it would or might have been followed by a judicial determination of that issue. Whether it would have been sufficient to create an issue estoppel in any sense of that expression I need not stay to see. No such finding or determination took place, or was sought, in this case.

[11]  The familiar and convenient procedure by which the facts in sentencing are arrived at, if properly carried out, ordinarily involves the Crown stating the facts on which it relies and the defence in either accepting or rejecting them, or such of them as are identified.  If the prosecution does not allege a fact that is unfavourable to the accused, there is no occasion for the defence to controvert it.  Equally, if the defence puts forward a fact, the prosecution may either accept or reject it, or require evidence be adduced to establish it. The procedure depends on a process of express or implied admissions which has now received a measure of statutory authority in s 132C of the Evidence Act 1977. In this instance, the prosecution refrained from averring that the applicant's possession of the cannabis was for a purpose other than personal use. Indeed, it was “common ground” that it was in fact possessed for such a purpose.

[12]  Convenient though the procedure is, it can sometimes lead to misunderstandings or misconceptions about what the sentencing facts are alleged to be, or which of them are in dispute.  This is especially liable to happen when the accused declares his willingness to plead to an ex officio indictment without the safeguard of prior committal proceedings of any kind. To avoid problems like these, the Chief Justice on 16 February 2000 issued a Practice Direction No 2 of 2000 directed to ex officio indictments.  It refers in para 3 to the convenience of proceeding on such indictments without committal proceedings “provided the defence accepts that there is evidence to support the counts, and the Crown and defence agree upon the factual basis of the plea”.  With a view to avoiding waste of the court resources where those conditions are not met, para 4 states that no matter will be listed for sentence upon ex officio indictment unless there has been delivered to the criminal list clerk a draft of the intended indictment, and a certificate signed by the Director of Public Prosecutions and by the accused's legal representatives “confirming that the factual basis for an intended plea of guilty has been agreed upon”.

[13]  The agreement envisaged in para 4 is not required to be in writing, but it must be certified as stated.  We have not seen the certificate but there is no reason to doubt that it was delivered as required.  Unless there is specific statutory authority for making them, practice directions like No 2 of 2000 operate simply as guidelines suggesting a course that is in future likely to be followed by the court in particular circumstances: see, generally, E A Campbell, Rules of Court, 40-44 (1985).  In this instance, the Practice Direction supplements s 132C of the Evidence Act 1977, which provides:

132C  Fact finding on sentencing

(1)  This section applies to any sentencing procedure in a criminal proceeding.

(2)  The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

(3)  If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

(4)  For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.


[14]  In this instance, it is evident that Cullinane J in sentencing the applicant was in terms of s 132C(2) acting on an allegation of fact that was admitted by the Crown in those proceedings; namely, that the applicant had possession of the 638 grams of cannabis for his personal use. It was agreed upon by the representatives of the parties as the factual basis for the applicant's plea of guilty that followed.  What it demonstrates is that there was here no judicial finding or determination of the fact that the applicant's possession of the cannabis was for his personal use. The making or existence of an agreement to that effect is quite inconsistent with the notion that any finding or determination about it was made judicially. The learned judge simply acted, as s 132C(2) authorises him to do, on an allegation to that effect that was admitted by being agreed to by the Crown as the factual basis of the plea or agreement. Such an admission cannot be regarded as operating or extending beyond the sentencing proceeding or indictment no SCR 7103 in The Queen v Michael John Walton in the Supreme Court at Townsville. In particular, it does not prevent or estop the complainant Aaron Butler in the proceedings upon the third complaint before the magistrate at Bowen from adducing evidence about the discovery of the cannabis in the applicant's house in order, if he can, to support  an inference that the amount of $15,555 also found there on 23 July 2002 might reasonably be suspected of being tainted property within the meaning of s 92(1) of the Crimes (Confiscation) Act 1989.

[15]  His Honour Judge Wall QC reached a similar conclusion in the reasons he gave in support of the decision now sought to be appealed from.  In doing so, he also relied on the decision of this Court in R v K; ex p Attorney-General [2002] QCA 260, where a somewhat similar point was advanced, although perhaps after a rather less complete analysis than has been undertaken here. In my opinion the learned judge’s decision was correct.  No basis for appealing against it has been shown. It follows that the application for leave to appeal should be dismissed with costs.

[16]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of McPherson JA and agree with all that is said therein.

[17]  However there is one additional observation I would make. 

[18]  The argument on behalf of the applicant assumed that if the basis upon which the applicant was sentenced for possession of cannabis, namely that it was for his own personal use, prevented the respondent from asserting to the contrary in the proceedings relating to “tainted property”, the evidence of possession of the cannabis was inadmissible in those proceedings.  That is not so.  The cannabis and the money were located in approximately the same position and each was in a plastic bag apparently similarly marked.  In my view, in a proceeding seeking a finding that the money was reasonably suspected of being tainted property the location of the cannabis, even if it be for the applicant’s own private use, was material and admissible.  At the end of the day, if that be the evidence, it may be that the court would not be satisfied to the appropriate standard that the money was tainted property; but that would be a matter for the court to determine in the light of all the evidence including the fact that located near the money was a significant quantity of cannabis for the applicant’s own use.

[19]  It follows, in my view, that the magistrate erred in holding that the evidence was inadmissible even if the possession of the cannabis had to be treated as possession for the applicant’s own personal use.

[20]  But, as is amply demonstrated by the reasoning of McPherson JA, there was no such restriction attaching to the evidence.

[21]  It follows that the decision of the learned District Court judge on appeal from the magistrate was correct, and this application for leave to appeal should be dismissed with costs.

[22] PHILIPPIDES J:  I agree for the reasons stated in the judgment of McPherson JA that the application for leave to appeal be dismissed with costs.


Editorial Notes

  • Published Case Name:

    Walton v Butler

  • Shortened Case Name:

    Walton v Butler

  • MNC:

    [2004] QCA 456

  • Court:


  • Judge(s):

    McPherson JA, Williams JA, Philippides J

  • Date:

    26 Nov 2004

  • White Star Case:


Litigation History

No Litigation History

Appeal Status

No Status