Grams v Commissioner of Police
[2017] QDC 287
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- Unreported Judgment
- Grams v Commissioner of Police[2017] QDC 287
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Grams v Commissioner of Police[2017] QDC 287
Grams v Commissioner of Police[2017] QDC 287
DISTRICT COURT OF QUEENSLAND
CITATION: | Grams v Commissioner of Police [2017] QDC 287 |
PARTIES: | JOSHUA DENNIS GRAMS (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 2154/2017 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 6 December 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 November 2017 |
JUDGE: | Richards DCJ |
ORDER: | Appeal allowed. Conviction set aside. Verdict of acquittal entered. |
CATCHWORDS: | CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – IN MINOR QUANTITIES OR FOR PERSONAL USE – where the appellant was convicted of possession of a dangerous drug – where the substance was not weighed – where the purity of the substance was not analysed – whether possession of a dangerous drug can be proved beyond a reasonable doubt |
SOLICITORS: | Go To Court Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
- [1]The appellant was charged with one charge of a possession of a dangerous drug namely methylamphetamine. He pleaded not guilty to the offence and was convicted on 24 May 2017. He was convicted and fined $800. The prosecution evidence was limited to a picture of the seized item which was a clip seal bag containing a small but visible quantity of white crystalline powder and a certificate of analysis which stated that the exhibit was examined and methylamphetamine was detected. There was no weight given in relation to the amount of methtylamphetamine that was present in the substance or the purity, however, evidence was given that the powder (which was not weighed) appeared to be the equivalent of a point (0.1 gram).
- [2]Section 9(1)(d) of the Drugs Misuse Act 1986 provides:
“A person who unlawfully has possession of dangerous drug is guilty of a crime … in any other case where the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 2 – 15 years imprisonment.”
- [3]The submission advanced by the defence was that where the prosecution failed to prove any weight of the offending material, the court could not find beyond reasonable doubt that the accused was in possession of a dangerous drug. In making this submission the defence relied on the test in Williams v The Queen (1978) 140 CLR 591 where the court held:
“A consideration of the situation confirms us in thinking that when the act creates the offence of having possession of a dangerous drug or a prohibited plant, without adverting to quantity, it contemplates possession, not of a minute quantity and capable of discernment by the naked eye and detectable only by scientific means but a possession of such a quantity as makes it reasonable to say as a matter of common sense in reality that it is the prohibited plant or drug of which the person is presently in possession.”[1]
- [4]This analysis was adopted in the case of Donnelly v Rose [1995] 1 Qd R 148. The appellant was charged with possession of heroin found in a white powder. The white powder weighed 26mg but the amount of pure heroin was unable to be stated because there was an insufficient sample. The Court of Appeal held:
“It is our opinion that Williams should be read as requiring application of a “common sense and reality” test. If it appears that the amount of heroin found would, if extracted, not be visible to the naked eye, then no offence has been committed. But it does not follow that proof that a minute speck would then be visible results in a conviction. It is our opinion that for a prosecution of this kind to succeed it must be proved that there was “possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession”: (Williams at 600).
It is not absolutely clear to us what sort of evidence would, in a marginal case, prove that. Here, the prosecution proved no more than that the quantity of heroin was so small that the analyst could not determine the quantity of it. That evidence is plainly not enough, whatever the test, and the appeal must be allowed. There was no conviction recorded but a probation order was made and that should be set aside.”[2]
- [5]This test was again considered in Loweke v Queensland Police Service [2005] QDC 187 where his Honour followed the reasoning in Donnelly v Rose.[3]
- [6]The learned magistrate made a finding in her decision as follows:
“The powder in which the methylamphetamine was detected was more than a miniscule quantity. It is not imperceptible. It is not a mere trace. I would not describe it as very small. It is clearly visible to the naked eye. That is the observation of the analysist who analysed the drug, from the two arresting officers, and from the photograph I can clearly observe it, and also the detective sergeant called could as well. It is not a case where there is some residual or former use in the bag. Applying the Williams test, it is visible and of such quantity as to make reason to say, as a matter of common sense and reality, that it is a prohibited drug of which he was in possession of. I am therefore satisfied beyond reasonable doubt that the defendant was in possession of a small quantity of methylamphetamine on the 4th of October 2016.”[4]
- [7]An observation of the photograph shows that the assessment of the magistrate is correct. The powder or crystalline substance was visible to the naked eye. However the magistrate has misunderstood the test in Williams. The test is whether the drug itself would be visible to the naked eye or at least be of such a quantity as to make it reasonable to say as a matter of common sense and reality that it is the drug of which the person is presently in possession. The certificate of analysis does not indicate the purity of the substance nor the weight of the crystal. It was suggested that the forensic laboratory does not weigh or analyse the purity of drugs under one gram in weight. As a practical reality that may be sensible but it does not assist in proving possession of a dangerous drug when the amount of the substance is small.
- [8]Without knowing the percentage or weight of methylamphetamine in the substance it is impossible for the crown to prove beyond reasonable doubt or to apply the common sense and reality test in Williams.
- [9]The appeal has been conceded by the Crown.
- [10]In my view the appeal must be allowed and the conviction quashed.