The Queen v Straker[1997] QCA 113

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 33 of 1997

Brisbane

THE QUEEN

v.

GRAHAM VAUGHN STRAKER

Appellant

Fitzgerald P

Davies JA

McPherson JA

Judgment delivered 9 May 1997

Joint reasons for judgment of Davies and McPherson JJ.A.; separate reasons of Fitzgerald P. concurring as to the orders made.

APPEAL ALLOWED, CONVICTION SET ASIDE AND A NEW TRIAL ORDERED.

REASONS FOR JUDGMENT - FITZGERALD P

Judgment delivered 9 May 1997

The circumstances giving rise to this appeal are set out in the joint reasons for judgment of Davies and McPherson JJA.

It might not have been necessary for the prosecution to rely upon sub-s. 57(c) of the Drugs Misuse Act 1986 if the appellant had not been asleep when police officers entered the room where he lay near the cannabis sativa.  If he had been awake, it might have been inferred from all the circumstances that he knew that the green leafy material was cannabis,^[1] and, in that event, that he was in fact in possession of the drug.  However, it could not be inferred that he knew of the presence of the cannabis sativa when he was asleep at the material time.

Further, in the circumstances referred to, it could not be concluded that he was concerned in the management or control of the room in which he and the drug were present, or that he was the occupier of that room in any sense other than that he was the only person physically present.  That is insufficient.^[2]  Accordingly, sub-s. 57(c) was unavailable to remedy the deficiency in the prosecution case.

In my opinion, therefore, the magistrate erred in finding that the appellant had a case to answer.

While the appellant gave evidence, no attempt was made to establish that he was “the occupier or concerned in the management or control of” the room where he and the cannabis were found.  Sub-section 57(c) of the Drugs Misuse Act was accordingly unavailable to the prosecution.

The question for the magistrate’s decision then became not whether the appellant had shown that he neither knew nor had reason to suspect the presence of the drug, but whether the prosecution had proved beyond reasonable doubt that he did have that knowledge.  Plainly, it failed in that task.  I agree with Davies and McPherson JJ.A. that, while the magistrate must have disbelieved the appellant’s evidence, it does not follow that the prosecution case had been proved to the requisite standard.  On the contrary, all that was proven concerning what the appellant knew or had reason to suspect, was that the cannabis was near his body while he was asleep until he was woken by police.

I therefore agree that the appropriate course is to allow the appeal, and set aside the conviction.  Because it is possible that the prosecution might prove either that the appellant was at the time “the occupier or concerned in the management or control of” the room where the cannabis was found, or that no other person who might have placed it near where he was asleep had done so, I also agree that a new trial should be ordered.

JOINT REASONS FOR JUDGMENT - DAVIES AND McPHERSON JJA

Judgment delivered 9 May 1997

On 21 January last the appellant was convicted in the Magistrates Court at Brisbane of unlawful possession of a dangerous drug namely cannabis sativa on 27 September 1996.  He appeals against that conviction, the sole ground being that the prosecutor could not prove that he was in possession of the drug.

The appellant was convicted in reliance on s. 57(c) of the Drugs Misuse Act 1986.  That section relevantly provides:

"In respect of a charge against a person of having committed an offence defined in Part 2 -

...

3. 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's 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 evidence on which, in reliance on that provision, the Magistrate convicted the appellant was as follows.  Two police officers arrived at residential premises at Greenslopes at about 3.45 p.m. on 27 September 1996.  The residence was a boarding house in which the residents rented separate bedrooms but shared other facilities.  The appellant said in his evidence that there were ten bedrooms and, as best he could recall, there were six residents of the premises at the time.

When the police officers arrived at the front of the house they could hear faint music.  One of them knocked hard on the front door and, when there was no response, they both went to the rear of the premises and up some side stairs.  There they called out but no-one came.  They then walked in.  They detected the smell of burnt cannabis and saw the appellant asleep in the lounge room of the premises.  In front of him was a small coffee table, near his knee, on which was a water pipe and a saucer containing what appeared to be green leafy material.  There was also an ice cream bucket on the ground near his leg in which there was a clip seal bag containing green leafy material.  They woke the appellant and he appeared groggy.  He refused to answer any questions but showed the police to his room where they searched but found nothing incriminating.  The green leafy material to which we have referred was later identified as cannabis sativa.  One of the police officers said that he could detect a strong smell of cannabis from the appellant's clothing but conceded it possible that that came from being in a room where cannabis had recently been smoked.  No-one else was discovered in the house but one of the police officers conceded the possibility that someone had left after they had knocked on the front door but before they entered the house.  One of the police officers described the appellant's eyes as bloodshot and his gait as unsteady but said that he could not be sure whether these conditions were caused by alcohol or drugs or some disability.

At the end of the Crown case, which consisted of the evidence of the two police officers to whom we have referred and a certificate of an analyst identifying the cannabis sativa, a submission was made that there was no case to answer.  Upon rejection of that submission the appellant then gave evidence.

He said that on that morning he was with a friend at the latter's flat where they drank between them a carton of beer.  He said he was feeling a bit intoxicated after that and arrived home at 1.00 p.m.  He entered by the front stairs, went into the lounge room and fell asleep on the sofa.  He said that when he went to sleep there were no dangerous drugs or water pipes on the coffee table or nearby but he agreed that they, or some of them could have been there, but due to his intoxication, he did not see them.

The Magistrate said that, on his own evidence, the appellant was the occupier of the premises and that he had not discharged the onus under s. 57(c) of proving that he neither knew nor had reason to suspect that the cannabis was where the police found it.  His Worship's reasons do not explain how, on the appellant's evidence, he concluded that the appellant was an occupier (his Worship did not use the phrase "the occupier" used in the section) of that part of the premises where he was found.

The precise basis on which the appellant occupied the subject premises is not clear.  It may be inferred from his answers to questions put to him by his counsel that the landlord to whom he paid rent was not an occupier of the premises, that each of the occupants paid the landlord separately on a weekly basis and that each had exclusive possession of his or her room but shared possession of the common areas which included the lounge room.  However none of this was clear and was not explored in detail by either side.  It may have been the case, for example, that the person whom the appellant described as the landlord was in fact the lessee of the premises who took in boarders including the appellant.  Or it may be that one or more of the other residents was the lessee of the premises.  In short we think it was impossible to be satisfied beyond reasonable doubt that the appellant was the occupier of the lounge room of the residence either alone or jointly with others at the relevant time.  The evidence did not suggest that the appellant had or purported to exercise a right to exclude anyone from the lounge room of the premises or that he exercised any other sort of control over it.  See Thow v. Campbell C.A. No. 341 of 1996, judgment delivered 17 December 1996.  Consequently it was not open, in our view, to the Magistrate to convict the appellant in reliance on s. 57(c).

Nevertheless the case against the appellant was a very strong one.  It would not have been unreasonable to infer, from the prosecution evidence, that the appellant had possession of the cannabis sativa.  However, at the end of the prosecution case an application that there was no case to answer was made and rejected by the Magistrate.  It was only then that the appellant elected to give evidence.  The Magistrate then considered the appellant's evidence, it would seem, only in the light of the onus which, on the view which the Magistrate took, rested on the appellant, on the balance of probabilities, to show that he neither knew nor had reason to suspect that the drug was in that room.  His Worship's statement that he was satisfied that the appellant had not discharged that onus may mean that he disbelieved the appellant's evidence.  That would not be at all surprising because it seems improbable.  However it does not follow that, if the Magistrate had been considering the question whether the prosecution had proved beyond reasonable doubt that the cannabis sativa was in the appellant's possession at the relevant time he would inevitably have concluded that it was.  In those circumstances we do not think that this is an appropriate case in which we can be satisfied that no substantial miscarriage of justice occurred in convicting the appellant.  In those circumstances the appropriate course is to allow the appeal, set aside the conviction but order a new trial.