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R v Amey[2022] QCA 69

SUPREME COURT OF QUEENSLAND

CITATION:

R v Amey [2022] QCA 69

PARTIES:

R

v

AMEY, Wade Richard

(appellant)

FILE NO/S:

CA No 147 of 2021

SC No 351 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 9 June 2021 (Bowskill J)

DELIVERED ON:

10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2022

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of three counts of unlawfully possessing dangerous drugs and one count of unlawfully possessing a category H weapon – where the items were found in two adjoining bedrooms – where, to find occupier’s liability under s 129(1)(c) of the Drugs Misuse Act 1986 (Qld), the jury had to be satisfied that the items were “…in or on a place of which [the appellant] was… concerned in the management or control of” – where the proper interpretation of s 129(1)(c) of the Drugs Misuse Act 1986 (Qld) requires precision in the way in which a jury is instructed about what constitutes the relevant “place” – where, at trial, the two bedrooms were sometimes collectively referred to as a “part” or “wing” of the house – whether the directions of the trial judge made it sufficiently clear that the question of the occupation of each individual bedroom was a separate factual question for the jury’s determination – whether there was a miscarriage of justice

Drugs Misuse Act 1986 (Qld), s 129(1)(c)

R v Smythe [1997] 2 Qd R 223; [1997] QSC 19, cited

R v Straker [1997] QCA 113, cited

Symes v Lawler [1995] 1 Qd R 226; [1993] QCA 394, cited

COUNSEL:

A J Edwards for the appellant

C M Cook for the respondent

SOLICITORS:

Hannay Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of McMurdo JA and with the order proposed by his Honour.
  2. [2]
    McMURDO JA:  After a three day trial, the appellant was convicted by the jury of three offences of the possession of dangerous drugs and an offence of the unlawful possession of a hand gun.
  3. [3]
    He was convicted of all four counts on the indictment which were as follows:

Count1:

the unlawful possession of methylamphetamine in a quantity exceeding 200grams;

Count 2:

the unlawful possession of trenbolone;

Count 3:

the unlawful possession of trenbolone, testosterone and oxymetholone;

Count 4:

the unlawful possession of a category H weapon, namely a hand gun.

  1. [4]
    All of these things were found in the execution of a search warrant at a house at Palmwoods, in which the appellant, at least at some point in time, had lived.  The drugs the subject of counts 1 and 2 were found in a bedroom which was described at the trial as bedroom 1.  The other drugs and hand gun were found in an adjoining room, which was described as bedroom 2.
  2. [5]
    The appellant’s original ground of appeal was that each of the verdicts was unsafe or unsatisfactory.  That ground of appeal has been abandoned, as is the challenge to the convictions on counts 3 and 4.  The convictions on counts 1 and 2 are now challenged upon the basis of a suggested misdirection by the trial judge about the operation of s 129 of the Drugs Misuse Act 1986 (Qld).
  3. [6]
    The house was searched on 28 June 2018, under a warrant which was issued on information relating to the possession of a firearm and methylamphetamine suspected of being in the possession of a man called Turner.  When police arrived at the house, they encountered Turner and another man named Ziebel.  Turner lived in the house but it appeared that Ziebel did not.  Police found Ziebel’s car parked in the driveway with some camping equipment and a mattress in the car, but none of Ziebel’s personal effects were in the house.
  4. [7]
    The jury had a diagram of the house which showed the location of the various rooms.  The building was rectangular in shape.  At one end there was a lounge room and a room described as the master bedroom.  At the other end of the building were the two bedrooms called bedroom 1 and bedroom 2, together with a bathroom and laundry.  The area constituted by those four rooms was described by the trial judge as a wing of the house, with the area at the other end of the building, containing the master bedroom, being the other wing.  There was no ambiguity in that description.  Between the two wings were the kitchen and another lounge room.
  5. [8]
    Personal effects belonging to Turner were found in the master bedroom.  Personal effects, which were readily identifiable as belonging to the appellant, were found in bedroom 2.  In addition to the drugs and gun which were the subject of counts 3 and 4, there was approximately $16,000 of cash and a box of ammunition.
  6. [9]
    In bedroom 1, police found no signs of occupancy.  There was no bed and there were no personal effects within this room.  Bags containing the methylamphetamine, which was the subject of count 1, were found in the wardrobe.  On one of the bags, there was a mixed DNA profile, to which the appellant’s DNA had almost certainly contributed.  However there was no way of telling how long the DNA had been on the item or whether it was the product of direct touching or a transfer from someone else.
  7. [10]
    When police returned to the house on 20 July 2018, they again searched bedroom 2, where they found a backpack containing a piece of paper with the appellant’s thumb print on it.
  8. [11]
    At the close of the Crown case, a no case submission was made on counts 1 and 2.  An argument which was then made was that the “place” which was relevant for the purposes of s 129(1)(c) was bedroom 1.  It was submitted that s 129(1)(c) could not be applied by some broader definition of what constituted the relevant place.  The trial judge accepted that the “place” for the application of s 129(1)(c) to counts 1 and 2 “must be in a general sense the place where the drugs were found which, in this case, is what’s been deemed bedroom 1 in the house.”  But her Honour ruled that it was open to the jury to infer that the occupier of bedroom 2 was also the occupier of bedroom 1.
  9. [12]
    The appellant’s counsel makes no complaint about the judge’s ruling.  The complaint which is now made is that her Honour failed to direct the jury consistently with that ruling.  It is said that her Honour directed that it was sufficient for the jury to find that the appellant occupied the “part” or “wing” of the house which contained bedroom 1.  Consequently, it is submitted, the jury may have applied s 129(1)(c) without being satisfied that the appellant occupied bedroom 1.
  10. [13]
    Section 129(1)(c) is as follows:

“129 Evidentiary provisions

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

  1. (c)
    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; …”
  1. [14]
    There was no evidence by the appellant, and more particularly, there was no evidence that he neither knew nor had reason to suspect that drugs were in bedroom 1.  If upon the evidence, the only rational conclusion was that the appellant was the occupier of bedroom 1, counts 1 and 2 were proved.
  2. [15]
    The relevant directions to the jury were as follows:

“You know that the Prosecution contends that the defendant possessed the drugs and the handgun on two bases. The first is essentially that they were his drugs and his gun, and he knowingly had physical custody of or control over them. I’ll call this actual possession. The second is that he was the occupier of the part of the house where the drugs and the gun were found. As I will remind you in a minute, under our law an occupier of a place where drugs or weapons are found is deemed or presumed as a matter of law to have possession of them. So this is called deemed possession.

Focusing on that second, alternative, basis for a minute, deemed possession as an occupier. If you are satisfied the Prosecution has proved that the defendant possessed the drugs and/or the gun because he was the occupier of the part of the house where they were found, it is a Defence to the charge if he can prove, on the balance of probabilities, that he did not know of and had no reason to suspect the presence of dangerous drugs or a gun in the house. …

Now, as you know, in this case the Crown relies on what is referred to as circumstantial evidence. Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly, but instead as pointing to its existence. So in this case, the circumstances relied upon by the Crown include: that personal effects belonging to the defendant were found in bedroom two, the official paperwork with his name on it, the photographs which you are asked to infer are photographs of him, a photo album with photographs of people which include someone you are asked to infer is him; in addition, the writing on the base of the bedside drawer, ‘Wade for Shanae for life’; that the layout of the house is such that there were effectively two wings to it with bedroom one and bedroom two being in one wing and the master bedroom being in another; that there was a bed only in bedroom two and none in bedroom one, which is said to support the inference that the same person was occupying those two rooms; the evidence in relation to the probability of the defendant having contributed DNA to the samples obtained from the latex glove found in the backpack in bedroom two and on the freezer bags of the drugs in bedroom one; and the evidence, about a month later, of the piece of paper found in the backpack in bedroom two, which had the defendant’s fingerprints on it.

The Crown’s case is that you would infer, as the only rational inference, that the defendant did have the requisite control or custody over the drugs found in bedroom 1 and in bedroom 2 and the gun found in bedroom 2 because you would infer, the Crown submits, that the defendant was living in this wing of the house comprising bedrooms 1 and 2 and that the property found in those bedrooms, including the drugs and the gun, belonged to him. You are invited to infer that having regard to the layout of the rooms in the context of the house overall, from the fact that there was a bed in bedroom 2 but not in bedroom 1 from which you are invited to infer the same person occupied those rooms, the fact of the personal effects belonging to the defendant found in bedroom 2, the writing on the base of the bedside drawer in bedroom 2, the evidence of the likelihood of DNA contribution to the latex glove and the bags of methylamphetamine and the piece of paper found in the backpack in bedroom 2 a month later, with the defendant’s fingerprint on it.

Now, for both of those provisions, that is the Drugs Act provision and the Weapons Act provision, the occupier of a place is someone who is in occupation of it. It is a question of fact for you. To be the occupier of a place such as a house means you live in or stay at the house. It is more than mere presence at the house, for example, as a visitor. And occupation also involves being able to exercise some degree of control over or management of the place you occupy. For example, by being able to tell others to leave. A person can jointly occupy a place with another or other people. In this case, on the Crown’s case, the place is the part of the Palmwoods house comprising the wing where bedroom 1 and bedroom 2 are located.

For the Crown it is contended you would be satisfied the defendant was an occupier of this part of the house, having regard to the evidence I have already referred to. You are invited to infer, as the only rational inference, that the defendant was living in or staying at the Palmwoods house, in particular, in the wing comprising bedrooms 1 and 2. The fact that Aaron Turner also occupied the house, in particular, the main bedroom, is not inconsistent with that.

For the defendant it is contended, keeping in mind he does not bear any onus on this issue, that you would not be satisfied beyond reasonable doubt that he was an occupier of this part of the house because he was not present on either occasion when the police went to the house – that is, 28 June and later on 20 July 2018; Aaron Turner was named on the search warrant as the occupier and was present on 28 June; and there were a number of other people also either at the house or who came to the house on the two days the police were there; and further, the possibility that the personal items found in that bedroom 2 had been there from an earlier time, having regard to the dates on them.

It is for you to say if you are satisfied beyond reasonable doubt on the evidence before you that the defendant’s relationship with this part of the house where the drugs and the gun were found was such that he was an occupier of that part of the house. …”

(Emphasis added.)

  1. [16]
    The trial judge provided the jury with a document entitled “possible course of deliberations”.  It suggested, for each of counts 1 and 2, that the jury consider first the question of whether the drug was found “in bedroom 1 of the Palmwoods house”.  The second suggested question was whether the defendant had possession of the drug “found in bedroom 1 of the house”, in the sense that he had physical custody of the drug or control over the drug.  The jury was then directed to question three, if question two was answered in the negative, under which they were to consider whether the defendant was an occupier “of the part of the Palmwoods house where the [drug] was found.”  The other question, for each count, was whether the jury was satisfied that the defendant did not know of, and had no reason to suspect, the presence of any dangerous drugs “in the part of the Palmwoods house he occupied”.
  2. [17]
    It is submitted that the judge’s use of the words “part” or “wing” of the house would have confirmed the jury’s understanding from the prosecutor’s arguments which had not specified any particular room, but which referred to the wing of the house.
  3. [18]
    It is submitted that the effect of these directions was to create a risk that the jury would reason that if the appellant occupied bedroom 2, that proved that he was in occupation of bedroom 1.  In other words, there was a risk that the jury might find that he occupied bedroom 1 because it was in the part or wing of the house which contained bedroom 2.
  4. [19]
    The appellant’s submission cites the judgments of this Court in Symes v Lawler,[1] R v Smythe[2] and R v Straker.[3]  In R v Smythe, Thomas J, referring to Symes v Lawler, said:[4]

“It seems to me that the reasoning in that case recognises that within the one property there may be a place that is occupied, managed and controlled by an accused and another part that is not occupied, managed or controlled by that accused.”

  1. [20]
    The proper interpretation of s 129(1)(c) is well established.  It requires precision in the way in which a jury is instructed about what constitutes the relevant “place”.  In this case, as the appellant’s argument acknowledges, the trial judge correctly identified the place for counts 1 and 2 as being bedroom 1.  But that was in the judge’s ruling on the no case submission, and the question is whether this was made clear to the jury.
  2. [21]
    At the trial, the appellant did not accept that he was in occupation of bedroom 2.  His case was that at an earlier time, he had used that bedroom but that he was not in occupation at the relevant time.  He was not present when the warrant was executed and the drugs and gun were found; nor was he present when police returned to the house in the following month.  Nevertheless, the jury had to be instructed, as they were instructed, to consider the charges separately, and this required them to consider separately whether he was the occupier of bedroom 1 even if they were satisfied that he was the occupier of bedroom 2.
  3. [22]
    The point is a short one, and in my conclusion the appellant’s argument cannot be accepted.  The judge made it clear that the jury were to consider as a separate question whether he was in occupation of bedroom 1.  For example, in one of the directions which I have extracted earlier, her Honour referred to the Crown’s argument that:

“The layout of the house is such that there were effectively two wings to it with bedroom one and bedroom two being in one wing and the master bedroom being in another; that there was a bed only in bedroom two and none in bedroom one, which is said to support the inference that the same person was occupying those two rooms…”

As I have set out, that statement was repeated later in the summing up.

  1. [23]
    The question of the occupation of bedroom 1 was thereby left to the jury as a separate factual one for their determination.  The jury could not have understood the judge to be saying that if the appellant was in occupation of bedroom 2, it followed that they would have to find that he was in occupation of bedroom 1.
  2. [24]
    I would order that the appeal be dismissed.
  3. [25]
    BODDICE J:  I agree with McMurdo JA.

Footnotes

[1]  [1993] QCA 394; [1995] 1 Qd R 226.

[2]  [1997] 2 Qd R 223.

[3]  [1997] QCA 113.

[4]  [1997] 2 Qd R 223 at 226.

Close

Editorial Notes

  • Published Case Name:

    R v Amey

  • Shortened Case Name:

    R v Amey

  • MNC:

    [2022] QCA 69

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, McMurdo JA, Boddice J

  • Date:

    10 May 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC351/21 (No citation)09 Jun 2021Date of conviction after trial (Bowskill J and jury) of possessing drugs and weapon found in bedrooms of house; counts 1-2 concerned things in bedroom 1; counts 3-4 related to bedroom 2, which was in same wing of house as bedroom 1; Crown case relied on, inter alia, personal effects belonging to accused in bedroom 2 and inference that occupier of bedroom 2 also occupied bedroom 1 (Drugs Misuse Act 1986 (Qld) s 129(1)(c)); defence case that accused had formerly occupied bedroom 2.
Appeal Determined (QCA)[2022] QCA 6910 May 2022Appeal against convictions on counts 1-2 dismissed; contended that trial judge misdirected jury that it sufficed to find that accused occupied relevant wing of house; her Honour made it clear that jury should consider as a separate factual question whether accused occupied bedroom 1; summing-up could not be understood as suggesting that if accused occupied bedroom 2 it followed that he occupied bedroom 1: McMurdo JA (with whom Sofronoff P and Boddice J agreed).

Appeal Status

Appeal Determined (QCA)

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