Trio Brothers Trading Pty Ltd v Maskill
[2020] QCA 235
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- Unreported Judgment
- Appeal Determined (QCA)
- Trio Brothers Trading Pty Ltd v Maskill[2020] QCA 235
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Trio Brothers Trading Pty Ltd v Maskill[2020] QCA 235
Trio Brothers Trading Pty Ltd v Maskill[2020] QCA 235
SUPREME COURT OF QUEENSLAND
CITATION: | Trio Brothers Trading Pty Ltd v Maskill [2020] QCA 235 |
PARTIES: | TRIO BROTHERS TRADING PTY LTD ACN 079 259 279 (applicant) v MICHELLE AMIE MASKILL (respondent) |
FILE NOS: | CA No 115 of 2020 DC No 2493 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2020] QDC 62 (Byrne QC DCJ) |
DELIVERED EX TEMPORE ON: | 28 October 2020 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 October 2020 |
JUDGES: | Sofronoff P and Fraser and Mullins JJA |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED - where the applicant was charged in the Magistrates Court with five offences against s 26ZPF(1) of the Tobacco and Other Smoking Products Act 1998 (Qld), being the sale of ice pipes – where at the trial the substantial issue was whether the items which were the subject of the charges fell within the statutory description – where the item was a glass tube with a bulbous end and a cone piece – where the learned acting magistrate found the applicant guilty on all counts after a trial – where the applicant then appealed to the District Court of Queensland – where the applicant submitted that the pipe was not proven to be capable of use to smoke methylamphetamine “in its crystal, powder, oil or base form” because there was no evidence that the glass from which the pipe was made could withstand the heat of combustion – where the learned appeal judge affirmed the convictions – where the applicant seeks leave to appeal that decision – where the applicant submits that there was a substantial injustice because the applicant was convicted upon circumstantial evidence that did not meet the standard of proof, that the learned appeal judge applied the wrong standard of review so the case raises an important issue of principle which will affect the manner of appeals heard under s 222 and s 223 of the Justices Act 1886 (Qld) and that this case raises the first opportunity for the Court to consider the meaning of “ice pipe” and the meaning of “capable of being used” – whether leave to appeal ought to be granted or dismissed Justices Act 1886 (Qld), s 222, s 223 |
COUNSEL: | S C Holt QC for the applicant S Keim QC for the respondent |
SOLICITORS: | Gibbs Wright Litigation Lawyers for the applicant McCullough Robertson for the respondent |
- [1]SOFRONOFF P: The applicant was charged in the Magistrates Court with five offences against s 26ZPF(1) of the Tobacco and Other Smoking Products Act 1998 (Qld). After a trial, the learned acting magistrate found the applicant guilty on all counts. Section 26ZPF(1) provides relevantly that “[a] person must not … sell an ice pipe…” and a person must not “…supply an ice pipe.”
- [2]The expression “ice pipe” is defined by the provision to mean:
“…a device capable of being used for administering a dangerous drug by the drawing of smoke or fumes resulting from heating or burning the drug, in the device, in the drug’s crystal, powder, oil or base form.”
- [3]The term “component” is defined in the provision to mean:
“…a device that –
- (a)is apparently intended to be part of an ice pipe; and
- (b)is not capable of being used for administering a dangerous drug in the way described in the definition ice pipe without an adjustment, modification or addition.”
- [4]Since many objects might be capable of being used for administering a dangerous drug by the drawing of smoke or fumes resulting of heating or burning the drug, including, for example, traditional pipes used for smoking tobacco, s 26ZPF(2) provides that:
“It is a defence for the person to prove that an ice pipe, or a component of an ice pipe, is designed primarily to be used for a purpose other than administering a dangerous drug.
Examples of devices designed primarily to be used for another purpose–
aluminium foil, spoons, test tubes”.
- [5]At the trial, the substantial issue was whether the item which was the subject of the charges fell within the statutory description. That item was a glass tube with a bulbous end and a cone piece. Like any such object, there can be no doubt whatsoever that this object could be used to burn a substance in one end to enable a person to suck the fumes of the burning substance from the other end and it hardly required any evidence to prove such an obvious thing.
- [6]However, the prosecution nevertheless called some witnesses, among whom was Detective Sergeant Clay Butler, who is attached to the Queensland Drug Squad. He gave evidence about his long experience in dealing with drugs and drug paraphernalia in the course of his duties.
- [7]The learned acting magistrate accepted that Detective Sergeant Butler has expertise that qualified him to express an opinion about whether the pipes were capable of being used in the way described in the statute. Unsurprisingly, Detective Sergeant Butler said that they could and he described how they could. The learned acting magistrate accepted his evidence, as he was entitled to do. And indeed, in my respectful opinion, as he was bound to do if he was not to act perversely.
- [8]The applicant’s counsel, Mr Morris QC, raised an argument that in the form in which the item was delivered to a customer it was not capable of being used to smoke methamphetamine. Before that could happen, it was said that the cone attached to the pipe by sticky tape, and which Detective Sergeant Butler said was handy for smoking cannabis, had to be removed by the user. It was not, said Mr Morris QC, an ice pipe until the user dismantled it, and so it was not capable of being used. Not surprisingly, the learned acting magistrate rejected this submission as an absurdity.
- [9]The defence called no evidence. However, two representatives of the applicant were questioned by officers and asserted, among other things, that the pipes were designed for smoking tobacco. The learned acting magistrate was entitled to reject those unsworn assertions and did so. The applicant was found guilty on all charges.
- [10]After the evidence had closed and after the parties had made their closing submissions, the applicant’s junior counsel sent a set of submissions to the learned acting magistrate without the knowledge or consent of the prosecution. After sending the material to the Court, the applicant’s counsel then sent a copy to the prosecution. This conduct was an attempt to reopen the hearing of the case without first seeking leave to do so. The communication was in breach of the Bar’s rules, and the prosecutor rightly complained about it in his own submissions in response.
- [11]Nevertheless, the learned acting magistrate dealt with the late submissions in his reasons. The learned acting magistrate referred to the evidence of Detective Sergeant Butler that the items in question were ice pipes, namely, a device to smoke methamphetamine or similar powder drug. The learned acting magistrate referred to evidence that one of the pipes that had been seized actually contained residue of methamphetamine showing that it had actually been used for the purpose defined.
- [12]The learned acting magistrate referred to some of the statements of the applicant’s representatives when they were questioned, which actually conceded that the pipes were to be used for smoking methamphetamine. The learned acting magistrate said that even the officers of the applicant conceded the capability of the subject pipes to be used for the administration of the relevant dangerous drug. The learned magistrate found that the capability of the item had been proved beyond a reasonable doubt.
- [13]The applicant appealed to the District Court and the convictions were affirmed by Judge Byrne QC. The applicant accepted that it was common ground that the pipes were capable of being used to smoke cannabis. However, the applicant submitted to the learned judge that the pipes were not proven to be capable of use to smoke methamphetamine in its crystal, powder, oil or base form. This was because there was no evidence that the glass from which the pipe was made could withstand the heat of combustion. This was an attempt to rehash the later factual argument that had failed before the learned acting magistrate. After an exhaustive process of reasoning, Judge Byrne QC rightly dismissed the appeal.
- [14]The applicant now seeks leave to appeal to the Court of Appeal. Generally, leave will only be granted if there is a substantial injustice that should be corrected and that there is a reasonable argument that there is an error to be corrected.
- [15]The applicant’s grounds for seeking leave are, first, that there was substantial injustice because the applicant was convicted upon circumstantial evidence that did not meet the standard of proof. The second ground is that Judge Byrne QC applied the wrong standard of review, and so the case raises an important issue of principle which will affect the manner of appeals heard under sections 222 and 223 of the Justices Act 1886 (Qld). Finally, it was submitted that the case raises the first opportunity for the Court to consider the meaning of “ice pipe” and the meaning of “capable of being used”.
- [16]The first ground for seeking leave can be dealt with shortly. The applicant has had the benefit of a trial in the Magistrates Court and a second hearing on the merits before the District Court, and there have been concurrent findings of guilt. To justify yet another re-agitation of the same arguments requires more than asserting that there has been an error. This ground fails.
- [17]The third ground can also be dismissed. There is no reason to think that there is any ambiguity in or difficulty in understanding the meaning of the provision. Both the learned acting magistrate and Judge Byrne QC interpreted it correctly.
- [18]As to the second ground, Judge Byrne QC was cognisant of the relevant standard of review. His Honour referred to that standard by reference to case authority in paragraph [6] of his reasons.
- [19]The only pleaded ground of appeal before him, however, was that the verdicts were unreasonable. A ground expressed in that way does not connote an argument that the appellate Court ought to conduct a rehearing but connotes an argument that the evidence led at first instance was incapable of supporting a guilty verdict. That is how his Honour understood the ground, and in my respectful opinion, his Honour was correct to do so.
- [20]That was also how the applicant’s counsel ran the case before his Honour. The case was a rerun of the argument put forward by junior counsel after the trial in the Magistrates Court had finished. The argument was, again, that there was no evidence that the glass from which the pipe had been manufactured could withstand the heat of use so as to be “capable” of being used to smoke the drug. It was submitted that, for example, glass used for an ordinary windowpane could not withstand use in an aircraft that flies under conditions that exist at 35,000 feet.
- [21]There was evidence which proved the capability of the pipes. Thus, for example, and apart from the evidence already mentioned from Detective Sergeant Butler and the residue found on one of the pipes, there is this evidence from the record of interview of one of the officers of the applicant:
“And another thing why these have not been deemed as an ice pipe by Customs, what I explained to them is the ice, when they put them in, they have to have a round bulb, because they burn from here, one point. And these don’t have a point to burn. So for them to smoke the same ice they lose more than half the ice or more. They may as well just buy that.”
- [22]Question:
“Are they still capable of being used?”
- [23]Answer:
“Design – whether that product is designed to smoke ice or not, that’s the key here. Like, light bulb is capable of smoking ice. All – you have to take the top off and the alfoil can do it too. But if it’s designed to smoke pot or – sorry, smoking tobacco – my apologies, I used the wrong word here – then it’s a different story then. Because to smoke ice out of these costs you three times more compared to these. Because the ice is just here, a tiny bit. It costs a lot of money.”
- [24]In summary, as I understood that evidence, it was represented on behalf of the applicant that the design of the pipe was such that it would be uneconomical to smoke methamphetamine in it, and a different pipe ought to be used. There was certainly a suggestion, and, in my view, there was an acceptance, that the pipe could be used to smoke methamphetamine, although it would be wasteful to do so.
- [25]Judge Byrne QC naturally concentrated mainly upon the applicant’s argument as framed by it. However, he did not overlook the final question that he had to answer, namely, whether the evidence did prove the case. In paragraph [103] of his reasons, his Honour found that it did.
- [26]In any event, if the learned judge applied the wrong standard of review, then, the application of the right standard could have made no difference for the reasons given by the learned acting magistrate and by Judge Byrne QC. In my view, the application should be dismissed.
- [27]FRASER JA: I agree.
- [28]MULLINS JA: I agree.
- [29]SOFRONOFF P: The applicant should pay the respondent’s costs of the application.