Reid v Queensland Police Service
[2007] QDC 21
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- Unreported Judgment
- Reid v Queensland Police Service[2007] QDC 21
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Reid v Queensland Police Service[2007] QDC 21
Reid v Queensland Police Service[2007] QDC 21
DISTRICT COURT OF QUEENSLAND
CITATION: | Reid v Queensland Police Service [2007] QDC 021 |
PARTIES: | ADAM DAVID REID (Appellant) V QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 1706; 06/06 |
DIVISION: | Appeal |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | District Court, Beenleigh |
DELIVERED ON: | 2 March 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 November 2006 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – appeal – where police found hydroponic equipment in appellant’s possession – whether appellant had hydroponic growing equipment and chemical fertilisers to grow marijuana – where police found and identified cannabis sativa seeds in appellant’s possession – relevant principles to be applied. Justices Act 1886 (Qld) ss 222, 223 and 225. Drugs Misuse Act 1986 (Qld). Whisprun Pty Limited v Dixon [2003] HCA 48 Warren v Coombes (1979) 142 CLR 531 Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59 |
COUNSEL: | Ms R. Christensen for the respondent. |
SOLICITORS: | The appellant appeared on his own behalf. Office of the Director of Public Prosecutions for the respondent. |
Introduction:
- [1]This is an appeal pursuant to s 222 of the Justices Act 1886 against the decision of the learned magistrate at Beenleigh on 21 December 2005 whereby Adam David Reid (“the appellant”) was convicted of the offence that he “… had in his possession property namely a quantity of hydroponic growing equipment and chemical fertilisers reasonably suspected of having been used in connection with the commission of an offence defined in Part 2 of the ‘Drugs Misuse Act 1986’.”[1]
Background:
- [2]The appellant appeared before the Magistrates Court on 21 December 2005 in answer to three charges under the “Drugs Misuse Act 1986” including the above charge and was convicted of all three offences, entering a plea of guilty to two charges but pleading not guilty to the charge the subject of this appeal, of which he was found guilty by the learned magistrate on that date.
- [3]His Honour imposed one penalty for all three offences, namely the appellant was fined $750.00 in default 15 days imprisonment with no conviction being recorded, and it was further ordered that the original order be suspended conditional upon the appellant performing 50 hours of unpaid community service.
- [4]The appellant was represented by Counsel at the trial hearing but was self-represented at the Appeal hearing and the grounds of his appeal are essentially contained in his outline of argument filed 31 July 2006, and appear to be as follows:
- (a)His disagreement with the verdict;
- (b)“The manner in which the decision was reached”; and
- (c)“The apparent lack of interest in any evidence I offered in the case”.
- [5]Interpolating those grounds the appellant’s argument is that the learned magistrate erred in finding him guilty of the offence on the basis that although he admitted that he had “… in his possession … the hydroponic equipment” (namely) … transformers, lights, shades, other items similar to that … and a quantity of fertilisers …”[2] as discovered on the execution of a search warrant of his premises he maintained that he was “never going” to be using the equipment for the cultivation of unlawful drugs, but that he has “… a genuine interest in cultivation and garden maintenance …” and his interest lay in growing “some orchids.”[3]
Law:
- [6]This court's power in respect of an appeal under s 222 of the Justices Act is that the appeal is by way of rehearing on the evidence given in the proceedings before the Justices (see s 223 of the Act) and that the court has a wide discretion in the order it makes (see s 225).
- [7]The general principles upon which an appellate court must operate are well established:
“An appellate court will not readily overturn a trial judge’s primary findings of fact where those findings are based on his or her assessment of the credibility of witnesses. As Kirby J said recently in Whisprun Pty Limited v Dixon [2003] HCA 48:-
“However, normally, to secure reversal of a primary judge’s credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge’s decision was erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (‘SRA’). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge’s conclusion. Such was also the case in Fox v Percy where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge’s conclusion.”
In Warren v Coombes (1979) 142 CLR 531 at 551 the majority of the High Court said of an appellate court’s role in drawing of inferences from proved or uncontested facts –
“‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’”[4]
- [8]In respect of appeals from Justices the principle to be followed by an appellate tribunal would seem to be encapsulated in the statement by Andrews SPJ (as he then was) in Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59 at 67 where he said after a comprehensive review of a number of authorities[5]:
“I am of the view that where findings are so expressed as to demonstrate mistake in the understanding of evidence or where findings as expressed have demonstrated a misunderstanding of the law applicable then this court may interfere with the decision.”
The evidence:
Prosecution witnesses:
- [9]At the hearing of the charge before the learned magistrate, the prosecutor called evidence from the investigating police officers Quinn and Peacock, both of whom gave evidence that they “executed a search warrant” on the appellant’s premises and in respect of the charge the subject of appeal “… located … the hydroponic equipment …” and other items referred to in paragraph [5] above.[6]In addition to that equipment, they “… located a blue plastic container that contained a quantity of seeds, which were consistent with the appearance of cannabis … the seeds have all since been analysed and confirmed to be cannabis sativa seeds. And spread out on the shelf throughout the fertiliser equipment was also a quantity of seeds that were consistent with the appearance of cannabis.”[7]
- [10]Constable Quinn gave further evidence that he found “… on the shelf, there was a quantity of four pots, little seedling pots, that had a root substance in the bottom of those - in the bottom of one of those seedling containers”.[8]
- [11]The investigating officers further stated that they located other items including “a black plastic container …” (and) “… two empty packets depicting cannabis leaf … (and)… trays …” in other parts of the appellant’s premises.[9]
- [12]Senior Constable Peacock corroborated the evidence of Senior Constable Quinn with respect to the location of the equipment; the nature of the equipment; the various packets and seeds found on the appellant’s premises[10]and …“definitely formed the opinion that there’s a reasonable suspicion that the property we had located namely the hydroponic equipment had been used in connection with a crime against the Drugs Misuse Act, namely the production of a dangerous drug.”[11]He also confirmed that there was no evidence of any orchids or flower seeds “… to suggest that the defendant had been involved in attempting to grow orchids.”[12]
Appellant’s evidence:
- [13]The appellant gave evidence that he was a student of “horticulture and conservation and management” at the Logan TAFE,[13]and that he had also studied horticulture “at the Ryde TAFE in Sydney”[14]. The appellant conceded that he had smoked cannabis “… in the past … [for] pain relief …”[15]and that he had purchased the “hydroponic equipment … just to muck around with hydroponic gardening … focus on orchids specifically you know.”[16]
- [14]Further the appellant was asked in examination in chief “Now Mr Reid, when you purchased the hydroponic equipment, did you ever intend to use it for growing anything illicit – any illicit drugs? Answer: No, I didn’t purchase it just to grow cannabis, no. I just ----- Question: Did you purchase it to grow cannabis at all? Answer: Well, no.”[17]
- [15]In cross‑examination the appellant conceded that he commenced the course at the Logan TAFE subsequent to the search warrant being executed upon his premises.[18]
Appellant’s submissions:
- [16]The appellant did not elaborate greatly upon his written outline of argument other than to reiterate that he maintains an interest in horticulture and that his “main reason” in pursuing the appeal was “… to have my hydroponics returned to me if I can.”[19]
Respondent’s submissions:
- [17]The respondent submits that “the learned magistrate considered the relevant test to be applied in order to be satisfied that the prosecution established that the defendant had in his possession a quantity of hydroponic growing equipment and chemical fertilisers reasonably suspected of having been used in connection with the commission of a drug offence.”[20]
- [18]The respondent further submits that “the learned magistrate correctly determined that there was no dispute that the defendant had possession of the property….considered the second element of the charge that there is reasonable suspicion that the property was used for the commission of a drug offence” and in reaching his decision, properly applied “… the correct onus and standards of proof. Refer to Gough v Braden (1993) 1 Qd R 100 recently applied in King v De Villiers unreported QCA 5904 of 1997.”[21]
Magistrate’s findings:
- [19]In his written findings on 21 December 2005, the learned magistrate correctly analysed and enunciated the issues to be established by the prosecution in respect of the offence; correctly set out the law to be applied in respect of the onus of proof by the prosecution in establishing “a reasonable suspicion” under the legislation and the onus then falling to the appellant to satisfy the court that he was in possession of the property for lawful purposes. Having heard the evidence learned magistrate was satisfied that all elements of the offence had been established and duly found the appellant guilty of the offence charged.
- [20]It would seem to me that there was overwhelming evidence for the magistrate to make the findings he did, and he would appear to have reached his decision in an objective and balanced way with full regard to the law to be applied and I agree with his findings.
Appeal findings:
- [21]It follows therefore that the appeal should be dismissed.
- [22]The respondent further submitted that pursuant to s 225 of the Justices Act 1886, which provides the appellate court with “wide powers” in its consideration of any appeal, I should review the sentence imposed upon the appellant by the learned magistrate on the basis that the learned magistrate was not apprised of full and accurate information in respect of the appellant’s criminal history before imposing the penalty he did. While accepting that this further submission is no doubt accurate, I am not persuaded at this time that I should interfere with the penalty imposed and I decline to do so.
- [23]My orders are therefore as follows:
- (a)The appeal against the appellant’s conviction on 21 December 2005 be dismissed; and
- (b)The appellant pay the respondent’s costs of and incidental to the appeal to be agreed or assessed on the standard basis under the District Court scale.
Footnotes
[1] Certificate of Order from Beenleigh Magistrates Court 13 March 2006.
[2] Magistrates Court transcript page 3 lines 10 – 15.
[3] Pages 1-2 of appellant’s outline of argument.
[4] See paragraph [6] of Walker v Durham & Anor [2003] QCA 531.
[5] Including Smith v Smith, ex parte Smith [1950] Qd R 113 at 120; R v Robertson (1980) 2 A Crim R 369; and R v Free [1983] 2 Qd R 183. See also the comments by Thomas J at pp 79 and 81 of the judgment, and in particular the dicta of Gibbs J (as he then was) in Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378, 381.
[6] Magistrates Court transcript page 3 lines 10-15.
[7] Ibid lines 15-22.
[8] Magistrates Court transcript page 5 lines 39-42.
[9] Ibid page 6 lines 1-20.
[10] Ibid pages 11-12.
[11] Ibid page 11 lines 44-49.
[12] Magistrates Court transcript page 12 line 57.
[13] Ibid page 16 line 45.
[14] Ibid line 8.
[15] Ibid page 17 line 18.
[16] Ibid lines 35-40.
[17] Ibid page 20 lines 15-21.
[18] Magistrates Court transcript page 21 lines 55-57.
[19] Appeal Transcript page 14 lines 1-3.
[20] Paragraph 3.1 of respondent’s outline of submissions.
[21] Paragraph 3.1.1 of respondent’s submissions.