SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  The appellant was convicted on 25 August 2010 after a one day trial of possessing the dangerous drug 3,4 Methylenedioxymethamphetamine (“MDMA”) in a quantity exceeding 2 grams.  He appeals against his conviction on the grounds that the trial judge erred in law by instructing the jury that s 129(1)(c) of the Drugs Misuse Act 1986 (“the Act”) operated so as to deem the appellant to be in possession of the drug. 

[2] The prosecution case was brief and the appellant did not give or call evidence in his case.  Detective Constable Scanlon gave evidence that at about 2.40pm on 4 June 2009 he was with Detective Sergeant Lawler in Kangaroo Point, when they saw a person, subsequently identified as Cameron Stenzil, acting suspiciously.  Sergeant Lawler got back into a police car whilst Detective Scanlon followed the suspect on foot.  They maintained mobile phone contact.  Detective Scanlon saw a car turn into the street in which Stenzil was walking, execute a U-turn and then stop.  Stenzil then got into the front passenger side of the car. 

[3] Detective Scanlon got back into the police car which had driven into a nearby driveway.  The police car, with flashing lights activated, drove in front of the other vehicle, blocking it.  The two police officers, with guns drawn, approached the other car and detained the driver and occupant.  Stenzil had only been in the vehicle about 30 seconds before being detained and, after the decision was made to approach the appellant’s vehicle, Detective Scanlon lost sight of its occupants, “probably for about 10 seconds”.  Sergeant Lawler drew Detective Scanlon’s attention to a small clip sealed bag containing white pills in the middle of the centre console of the vehicle’s back seat.  Analysis subsequently established that the pills weighed 24.4 grams and contained 4.594 grams of pure MDMA. 

[4] When searched, Stenzil was found to have $1,400 in cash on his person.  The appellant had $35 in cash on him.  Sergeant Lawler said that he found the concealed bag of white pills “leaning against the centre console ... more on the rear passenger side of the vehicle.”  In cross-examination, Sergeant Lawler confirmed that the bag was “ … on the hump, just more over to the passenger side … but leaning against the centre console itself.” 

[5] Section 129 of the Drugs Misuse Act 1986 relevantly provided:

“Drugs Misuse Act 1986

129 Evidentiary provisions

(1) In respect of a charge against a person of having committed an offence defined in part 2—

…

(c) proof that a dangerous drug was at the material time in or on a place of which that person was ... 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;

…”

[6] There was no doubt that the appellant was concerned in the management or control of his motor vehicle and that the drug was in the motor vehicle when the appellant was apprehended.  The appellant thus had the onus of proving that he “neither knew nor had reason to suspect that the drug was in [the motor vehicle]”.  The appellant did not give evidence and there was no particular reason for the jury to conclude that the appellant “neither knew nor had reason to suspect” the presence of the drugs.

[7] It was plain enough from the evidence that the appellant and Stenzil had met by prior arrangement.  Stenzil, who was acting suspiciously, had a substantial sum of money in his possession and an obvious inference was that Stenzil had met the appellant with a view to purchasing the drugs, or some of them, from him. 

[8] In Lawler v Prideaux[1] Macrossan CJ stated:

“[T]he intended operation of s 57(c) [now s 129(1)(c)] of the Drugs Misuse Act is confined to cases where there is no immediate relationship of physical possession demonstrated by a person in proximity to the item, that is where there is no immediately obvious possessor, and the legislature has thought it necessary or desirable to attribute possession to someone.”

[9] Stenzil was not obviously in possession of the drugs:  they were in someone else’s car.  If Stenzil had brought the drugs with him and had thrown them into the back of the car, they were then “in … a place of which [the appellant] was … concerned in the management or control of”.  The drugs were then deemed to be in the appellant’s possession unless the appellant proved that he “neither knew nor had reason to suspect” that the drugs were in the car.  But the evidence did not support, on the balance of probabilities, the conclusion that Stenzil was the possessor.  If he had attempted to distance himself from the drugs when first seeing the police car’s lights, it was unlikely that they would have ended up resting on the centre console.  More importantly, the movements and behaviour of the appellant and Stenzil, coupled with the presence and packaging of the drugs and the money found on Stenzil, suggested a drug deal:  a deal in which the appellant was the supplier.  That is what the trial judge found when sentencing.  It was plainly open to the jury to reach the same conclusion.

[10]  The appellant indicated that he also wished to argue that the summing up was biased, but did not develop any argument to that effect.  No misdirection by the trial judge was identified.  The summing up was careful, conventional and fair to the appellant.  The grounds of appeal were not made out, and I would order that the appeal against conviction be dismissed. 

[11]  MARGARET WILSON AJA:   The appeal against conviction should be dismissed for the reasons given by Muir JA. 

[12]  PETER LYONS J:  I have had the advantage of reading in draft the reasons of Muir JA, with which I agree.  I also agree with the order proposed by his Honour.