Kerse v Hackett[2010] QDC 184

[2010] QDC 184

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE KOPPENOL

Appeal No 2435 of 2009

BRISBANE

DATE 19/04/2010

ORDER

HIS HONOUR: On 1 July 2009, after a summary trial, the applicant was convicted of an offence under 10A(1)(c) of the Drugs Misuse Act - specifically that he was in possession of a substantial sum of money, some $32,000 which was reasonably suspected of being tainted property, and relevantly that the applicant intended to use that money to purchase drugs. The applicant was fined $1,000 and the $32,000 was forfeited to the Crown.

Mr Walsh of counsel for the applicant drew my attention to various findings by the learned Magistrate: that the sum of $32,000 was in the applicant's possession because $10,000 ofit was borrowed from the applicant's mother to purchase acoffee vending business; that some $16,000 was in his possession because a business friend repaid a loan to him and that some $5,000 was as a result of gambling winnings and that there was evidence to support that.

The learned Magistrate, although not satisfied that that $32,000 was derived from drugs, concluded that she thought the applicant intended to use that money to buy drugs. In paragraph 22 of her Honour's reasons it was said:

"Defence counsel submits that there was no evidence of the defendant's future intention to use the cash seized to purchase drugs. It was the defendant's submission that the prosecution had not adduced evidence of a future intention to purchase drugs using the $32,050 seized from the defendant's wardrobe."

The seizure of that money occurred during a drugs raid by the police. The raid found considerable drugs paraphernalia as well as the sum of $32,000. The learned Magistrate continued:

"In my view the prosecution is not required today to establish a future intention, merely to establish a reasonable suspicion that such an intention exists.”

In King v DeVilliers [1997] QCA 419 the Court of Appeal, indealing with the relevant statutory provision, said as follows (at page 9):

"The question whether the property was 'property that may reasonably be suspected of being tainted property' must be determined not according to the subjective beliefs of the police at the time, but according to an objective criterion determined by the court at the time of the decision. Also, that element must be established beyond reasonable doubt."

Ms Cooper, who appeared for the Director of Public Prosecutions accepted, as I think she had to, that the learned Magistrate did not apply her mind to the test in King v DeVilliers, notwithstanding that that authority and the passage which I've quoted, was expressly drawn to her Honour's attention. On that basis Ms Cooper accepted that paragraph 22 in her Honour's reasons did not comply with that test.

The Magistrate was required to determine this matter objectively and to ensure that if this money were to be forfeited, she was so satisfied beyond reasonable doubt. Unfortunately that necessary test was not applied in the circumstances of the present case.

In those circumstances, and there being no other basis upon which the learned Magistrate's decision could withstand appeal, my orders are that the appeal is allowed and that the orders made by the learned Magistrate with respect to the fine imposed against the applicant, his conviction and the forfeiture of the sum of $32,050 are set aside.

...

HIS HONOUR: I order that the forfeited amount of $32,050 be returned by the respondent to the solicitors for the applicant within 28 days.