Owens v Commissioner of Police
[2023] QDC 260
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- Owens v Commissioner of Police[2023] QDC 260
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Owens v Commissioner of Police[2023] QDC 260
Owens v Commissioner of Police[2023] QDC 260
QUEENSLAND COURTS AND TRIBUNALS
DISTRICT COURT OF QUEENSLAND
APPELLATE JURISDICTION
JUDGE HEATON
No 657 of 2023
OWENS and | Appellant |
COMMISSIONER OF POLICE | Respondent |
BRISBANE
12.14 PM, MONDAY, 6 NOVEMBER 2023
DAY 1
JUDGMENT
HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886. In very short compass, the police were conducting patrols and searched a car in which the appellant was an occupant. A search of her person found her to be in possession of a small amount, 0.6 of a gram, of cannabis which she had in a cigarette packet in her possession. On the 7th of March 2023, the defendant pleaded guilty to that charge and accepted those short facts.
She appeared in the Magistrates Court at Holland Park on the 7th of March 2023, having attended that day as a result of her matter being listed for mention. In the exchange between the appellant and the bench she accepted that she was in possession of cannabis, but stated that she had a prescription for the drug. She also admitted that it was found in a cigarette packet, and not in some other container for the use of keeping prescription drugs, whatever that may be.
The Magistrate then stated that the drugs not being held in accordance with the prescription rendered her possession an unlawful one. Without hearing more, the Magistrate then read the charge out to the appellant and asked her how she pleaded. She said that she was guilty. In the exchanges that followed it was clear that the appellant claimed that she had a prescription for the drug, which would make lawful what would otherwise have been an unlawful possession. She therefore clearly raised the defence to the charge of unlawful possession of a dangerous drug.
The appellant attempted to demonstrate that she had a prescription by accessing an email on her phone, or by telephoning the medical practice that issued the prescription. In the context of a busy Court, the Magistrate refused to allow that to happen and proceeded instead to sentence the appellant. In doing so, the Magistrate accepted at face value that the appellant had a prescription for the drug she was in possession of, but seemed to have regard to the manner of her possession as alleged in the facts as rendering her possession unlawful.
That is, she was convicted by the Magistrate and sentenced for the offence of unlawful possession of a dangerous drug on the basis that, whilst she was lawfully entitled to have possession of the drug, she was required by law to have it housed in a particular container. Whether that is in fact a legal requirement remains a mystery to me. Regardless, the defendant, who was unrepresented on the occasion when she came to Court on the 7th of March 2023, entered a plea of guilty on the basis of which it was explained by the Magistrate in very short compass, that regardless of her possession of a prescription, her possession of the drug was unlawful in any event.
In those circumstances, in my view, it cannot be said that the plea entered by the appellant was entered in full knowledge of the allegations and an acknowledgment of the unlawfulness of her possession. That is, in my view, the plea entered on that occasion was equivocal. The offence that she pleaded guilty to was simply unlawful possession of a dangerous drug. In the facts alleged against her it was said that she was found in possession of a drug during a search by police. In response to that charge she explained and maintained throughout that she had a prescription for the drug, and implicitly therefore her possession was lawful.
As I said, this appeal is pursuant to section 222 of the Justices Act 1886. The power of this Court is limited by section 222, subsection (2)(c), in circumstances such as these where the appellant pleaded guilty to the charge before the Magistrates Court. However, as was explained in Ajax v Bird [2010] QCA 2, at paragraph 5, section 222(2)(c) may not preclude an appeal to the District Court where the appellant’s plea was equivocal or, upon analysis, amounted to a plea of not guilty.
The appellant was charged that she had unlawful possession of a dangerous drug. She clearly made claims that her possession was lawful. Those claims were not, in my view, satisfactorily explored, such that her plea of guilty can be said to have been unequivocal.
The appeal is allowed. I set aside the appellant’s conviction of the 7th of March and remit the matter back to the Holland Park Magistrates Court to be dealt with according to law.
Are there any other orders required?
MR TESSMANN: No, your Honour.
HIS HONOUR: All right. Okay. Nothing else then. Adjourn the Court.