PARTIES: FRANCO CARNESI
v
PETER WILLIAM HALES
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING
TERRITORY JURISDICTION
FILE NO: JA67 OF 2000
#DATE 15:12:2000
DELIVERED: 15 DECEMBER 2000
HEARING DATES: 11 DECEMBER 2000
JUDGMENT OF: RILEY J
Criminal law -Misuse of Drugs Act - sentence - appeal.
Appeals allowed.
Counsel:
Appellant: P. Elliott
Respondent: T. Austin
Solicitors:
Appellant: Withnall Maley & Co.
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: ril0031
Number of pages: 13
ril0031
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No. JA67 OF 2000
IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal against sentence handed down in the
Court of Summary Jurisdiction at Darwin
BETWEEN:
FRANCO CARNESI
Appellant
AND:
PETER WILLIAM HALES
Respondent
CORAM: RILEY J
(Delivered 15 December 2000)
[2] During the search of a bedroom in the house the police located
testosterone enanthate and stanozolol in a refrigerator and a commercial
quantity of cannabis secreted under a bed. The appellant was subsequently
charged with possession of each of those items contrary to s 9 of the
Misuse of Drugs Act.
[3] The matter proceeded before the Court of Summary Jurisdiction by way of a
defended hearing at the conclusion of which the appellant was found guilty on
those counts and was convicted. He was fined $350 in relation to the unlawful
possession of testosterone enanthate, $350 in respect of the possession of
stanozolol and he was sentenced to 12 months imprisonment, fully suspended, for
possession of a commercial quantity of cannabis.
[4] The appellant has appealed to this Court against conviction and against the
fines imposed in respect of the possession of testosterone enanthate and
stanozolol. There is no appeal in respect of the sentence relating to
possession of a commercial quantity of cannabis.
[5] The grounds of appeal against conviction are identified as follows: 2. (Abandoned in the course of the hearing).
3. Having found that the drugs referred to in charges 1 and 3 were lawfully
purchased and owned by others the Magistrate erred in law in finding that the
defendant was in possession of them.
4. The Magistrate wrongly inferred that the defendant had to be aware of the
drugs in counts 1 and 3 and by implication the drugs the subject of count 4.
5. The Magistrate erred in finding the evidence of the defendant did not
satisfy the requirements of s 40(c) of the Misuse of Drugs Act."
6. The Magistrate erred in his interpretation of s 40(c) of the
Misuse of Drugs Act."
Section 40(c) of the Misuse of Drugs Act
[6] There was a measure of agreement between the appellant and the respondent
as to the correct interpretation of s 40(c) of the Misuse of Drugs
Act. The complaint of the appellant was that his Worship did not
appropriately apply that section at all times.
[7] Section 40 is in the following terms: (a) it is not necessary to particularize the dangerous drug in respect of
which the offence is alleged to have been committed;
(b) that person is liable to be found guilty as charged notwithstanding that
the identity of the dangerous drug to which the charge relates is not proved to
the satisfaction of the court that hears the charge if the court is satisfied
that the thing to which the charge relates was at the material time a dangerous
drug;
(c) proof that a dangerous drug was at the material time in or on a place of
which the person was -
(i) the occupier; or
(ii) concerned in the management or control,
is evidence that the drug was then in the person's possession unless it is
shown that the person then neither knew nor had reason to suspect that the drug
was in or on that place;
(d) the operation of section 32 of the Criminal Code is excluded unless that
person shows his or her honest and reasonable belief in the existence of a
state of things material to the charge; and
(e) the burden of proving an authorization to do an act or make an omission
lies on the person."
[8] Section 40(c) differs from similar provisions in other
jurisdictions in that it provides that the fact that the person was an occupier
or concerned in the management or control of a place where a drug was located
"is evidence" that the drug was in the possession of the person. In other
jurisdictions expressions such as "is conclusive evidence" that the drug was
then in the person's possession or that the substance "shall be deemed to be in
the possession of the person" appear. In this jurisdiction the effect of
s 40(c) is that a finding that the drug was in a place occupied by the
person or a place in relation to which the person was concerned in the
management or control provides some evidence of possession but does not make
that evidence conclusive. Section 40(c) of the Act is an evidentiary
provision. It raises a presumption that in the prescribed circumstances there
is evidence that the drug was then in the person's possession. The
presumption, if not rebutted in the manner described in the section, amounts to
an item of evidence which must be considered along with all of the other
relevant evidence in the case when determining whether the drug was unlawfully
in the possession of the person.
Testosterone Enanthate
[9] The appellant was convicted of unlawfully possessing a dangerous drug
namely testosterone enanthate. Ms Austin who appeared on behalf of the
Crown frankly conceded that the conviction could not stand upon a correct
interpretation of the relevant legislation, an interpretation that seems not to
have been raised with the learned Magistrate.
[10] Under the Misuse of Drugs Act it is an offence to unlawfully
possess a "dangerous drug". A dangerous drug is defined to mean a substance or
thing specified in Schedule 1 or Schedule 2 of the Act. Reference to Schedule
2 reveals that testosterone enanthate is an anabolic steroid which is contained
within the Schedule. However excluded from the category of anabolic steroids
for the purposes of the Schedule are those which are "in products packaged for
ovulation control or in quantities which can lawfully be prescribed in
accordance with Schedule 4 of the Poisons and Dangerous Drugs Act."
Reference to Schedule 4 of the Poisons and Dangerous Drugs Act reveals a
list of poisons that "should, in the public interest, be restricted to medical,
dental or veterinary prescription or supply". Schedule 4 includes testosterone
as a poison that should be available only upon prescription but in so doing it
excepts testosterone where it has been included in Schedule 6 of the Act.
[11] Reference to Schedule 6 of the Act identifies a list of poisons "that must
be available to the public but are of a more hazardous or poisonous nature than
those classified in Schedule 5". Under the heading testosterone is included
the following: [12] Ms Austin took me to Exhibit 10 in the proceedings in the
Court of Summary Jurisdiction and, in particular, to photograph 8. That
photograph identifies what was seized by reference to the label as being a
"prescription animal remedy" and as "liquid testosterone" which was "for the
prevention and treatment of external ulceration and sheath rot in wethers".
[13] In view of that information it is clear that any possession of the
testosterone enanthate which was seized from the premises of the appellant was
not unlawful. It is lawfully available without prescription. The evidence
accepted by his Worship was that the brothers of the appellant had
purchased it over the counter. The appeal in relation to that count must
succeed.
Stanozolol
[14] Stanozolol is an anabolic steroid identified in Schedule 2 of the
Misuse of Drugs Act as a dangerous drug. Again it is subject to the
exception that applies to "products packaged for ovulation control or in
quantities which can lawfully be prescribed in accordance with Schedule 4 of
the Poisons and Dangerous Drugs Act."
[15] Reference to Schedule 4 of the Poisons and Dangerous Drugs Act
reveals that stanozolol is a poison "that should, in the public interest, be
restricted to medical, dental or veterinary prescription or supply". There is
no exception of the kind applicable to testosterone enanthate in relation to
stanozolol. It follows that stanozolol is only available on prescription.
[16] In relation to the possession of stanozolol the learned Magistrate found
that the drug had been lawfully obtained. He had before him evidence from the
two brothers of the appellant, the combined effect of which was that they
engaged in hunting pigs and for that purpose used dogs which sometimes became
injured. Their evidence, which was accepted by his Worship, was that they
obtained the anabolic steroids (in particular stanozolol) upon prescription
from a veterinarian.
[17] The further effect of their evidence, which was also accepted by
his Worship, was that it was through them that the steroids came to be on
the premises. His Worship was not able to find that either of the
brothers had physical custody or physical control of the steroids in the sense
contemplated by s 40(c) of the Misuse of Drugs Act. However the
evidence accepted by his Worship indicated that the steroids were on the
premises because "from time to time, or on occasions, they (ie the brothers)
attended the subject premises to treat the dogs." It follows from that
evidence that the prescription drugs were at the premises for the purposes of
the two brothers and were used by them at that location on occasion. The fact
that the steroids were stored in a refrigerator that may have been used by the
appellant does not mean that the drugs were in his possession. The situation
is not dissimilar from that which applies in the normal family home where one
person within a family may have a need for prescription medicines which are
stored in a common location such as the family refrigerator. It cannot be the
intention of the legislature that other members of the family commit an offence
because the prescription medicine, which is a "dangerous drug" as defined but
lawfully obtained by one member of the family, is kept in the communal
refrigerator. So it is with the prescription drug stanozolol in this case.
The drug was lawfully obtained by the brothers and kept in a refrigerator for
use by the brothers. The fact that the appellant had access to that
refrigerator and, indeed, the refrigerator was in a room in which he sometimes
slept does not mean that the drugs were in his possession.
[18] Although s 40(c) of the Misuse of Drugs Act provides that it
"is evidence" that the drug was in the person's possession if the place in
which it was found was a place in relation to which the person was the occupier
or concerned in its management or control that does not necessarily lead to a
conclusion that the drug was in his possession. It is only some evidence that
this was the case.
[19] In the present case the appellant sought to demonstrate that he neither
knew nor had reason to suspect that the drug was in that place and, in this
regard, his evidence was not accepted by his Worship. That non acceptance
does not lead to a finding of guilt of possession but rather leads to the
position that, for the purposes of the proceedings, there was evidence that the
drug was in the possession of the appellant. That evidence then had to be
considered in light of all of the available evidence including the claims by
the brothers that the drugs were placed where they were by them. There was no
evidence that the appellant exercised any control over the drugs or has custody
of them and his Worship made no finding to that effect.
[20] In his reasons for decision the learned Magistrate made the following
observations: So at the end of the day, again predicated upon the Court's view that the
onus is on the defendant, the Court is not reasonably satisfied that the
defendant neither knew nor had reason to suspect the drugs were in or on that
place."
[21] His Worship then went on to exclude the operation of s 42
of the Misuse of Drugs Act and, without further discussion, declared
that he was satisfied that the offences had been proved. In so doing
his Worship treated the product of the application of s 40(c) of the
Misuse of Drugs Act as conclusive evidence that the dangerous drug was
in the possession of the appellant. He did not consider that evidence in light
of the whole of the evidence in the case including the evidence that he
accepted from the brothers of the appellant. To proceed in that way was in
error.
[22] Having determined that the appellant had not satisfied him that he
"neither knew nor had reason to suspect that the drug was in or on that place"
his Worship should then have proceeded to consider whether the prosecution
had established the offence of unlawful possession beyond reasonable doubt. In
so doing it was necessary to take into account the evidence of possession
provided by the operation of s 40(c) of the Misuse of Drugs Act
along with all of the other evidence in the proceedings and determine whether
the appellant "unlawfully possessed" that drug. The standard of proof required
in that process was proof beyond reasonable doubt. For the reasons I have
identified above there must be a reasonable doubt whether the appellant did
unlawfully possess the drug and he was entitled to be acquitted.
The Cannabis
[23] In searching the room in which the refrigerator was located the police
located a trafficable quantity of cannabis. That cannabis can be seen in
various photographs contained in Exhibit P10. It was located under a bed in
that room. The evidence was that the appellant slept in the room on occasions.
[24] His Worship found that the evidence the appellant gave in relation to
his use and occupation of the room was unsatisfactory. His Worship thought
that the evidence of the appellant, which he regarded as being at odds with the
information obtained from the record of interview, as to which was the primary
room occupied by the appellant and which was the spare room may have been an
attempt by the appellant "to put himself as far as possible away from the room
within which the incriminating evidence was found."
[25] His Worship also found it difficult to accept that the appellant was not
aware of the presence of some electronic scales and some clipseal bags in the
room. Those items are shown on a shelf within the room in photographs
contained in Exhibit P10. His Worship concluded that: [26] The learned Magistrate accepted the evidence of the two
brothers of the appellant, part of which was that they had nothing to do with
the cannabis.
[27] As with the steroids his Worship determined that the appellant had
not satisfied him that he "neither knew nor had reason to suspect the drugs
were in or on that place". Again his Worship should then have proceeded
to consider whether the prosecution had established the offence of unlawful
possession of cannabis beyond reasonable doubt. Rather than doing so he
treated the failure of the appellant to satisfy him under s 40(c) of the
Misuse of Drugs Act as conclusive evidence that the cannabis was in the
possession of the appellant. As has been observed above it is only some
evidence of possession. It is not conclusive. His Worship failed to proceed to
consider that evidence in light of the whole of the evidence in the case and
then to determine whether the Crown case had been established beyond reasonable
doubt. This was in error.
[28] In relation to the cannabis there was no evidence as to when it was placed
in the position in which police found it. It is known that the appellant was
not at home when the police arrived to search the premises. The appellant
remained in the company of police from the moment of his arrival until the
cannabis was located.
[29] The evidence was that others had access to the room in which the cannabis
was located. Put another way there was no evidence that the appellant
exclusively used the room. His Worship found that the two brothers had
access to the room. Other residents of the house included the appellant's
mother, father and sister. Whilst his Worship accepted that the brothers
had nothing to do with the placement of the cannabis in the location in which
it was found there were other possibilities than the appellant for it having
been placed there. Included amongst those were the family members of the
appellant. His Worship did not consider whether his general acceptance of the
evidence of the brothers was sufficient to exclude their involvement in the
cannabis being present in that location beyond reasonable doubt. Whilst
his Worship did not accept that the appellant had discharged the onus
imposed upon him by s 40(c) of the Misuse of Drugs Act of
establishing, on the balance of probabilities, that he neither knew nor had
reason to suspect that the drug was in the place at which it was located, it
does not follow that his Worship could then conclude beyond reasonable
doubt that the appellant was in possession of the cannabis. His Worship
did not find that the appellant lied and he expressly acknowledged that to be
the case. In the circumstances of this matter the finding that the appellant
had not discharged an onus imposed upon him under s 40(c) of the Misuse
of Drugs Act cannot, without more, be converted into a finding of guilt
beyond reasonable doubt. Others may have been in possession of the cannabis to
the exclusion of the appellant. His Worship did not proceed to consider
whether in light of all the evidence he could be satisfied beyond reasonable
doubt that the appellant knew or had reason to suspect that the cannabis was
present at that location. He did not consider whether the appellant had
physical control or custody of the cannabis.
[30] Although the operation of s 40(c) of the Misuse of Drugs Act
meant that there was evidence that the cannabis was in the possession of the
appellant, a consideration of the whole of the evidence must have led to a
reasonable doubt whether the appellant did unlawfully possess the drug. That
being so he was entitled to be acquitted. His Worship did not consider this
question and the appeal ought to be allowed.
[31] The appeals against conviction are allowed. The convictions and the orders
of his Worship are set aside.
"1. The finding of guilt was against the weight of the evidence.
"In respect of a charge against a person of having committed an
offence against this Act -
"(a) testosterone cyprionate, dipropionate, enanthate and
Propionate in preparations labelled for treatment and prevention of pizzle
(sheath) rot in wethers".
"So at the end of the day, the Court has to be reasonably satisfied
on the balance of probabilities that the defendant neither knew, nor had reason
to suspect the drug was in or on that place. I don't believe that the evidence
called in the defence case is sufficiently cogent for the Court to reach that
state of reasonable satisfaction. The Court has difficulties, real difficulties
in accepting the defendant's evidence because of the discrepancy that I've
mentioned. Furthermore, the Court is of the view that it defies belief that he
wasn't aware of the steroids and it defies belief that he simply has not known
about, or has suspected the existence of the steroids, cannabis and the
electronic scales and the clipseal bags.
"It just defies belief that he simply has not known about, or has
suspected the existence of the steroids, the cannabis and the electronic scales
and the clipseal bags."