Wilson v Malogorski (No 2) [2011] NTSC 88

 

PARTIES:                                         DONNA MARIE WILSON

 

                                                         v

 

                                                         MARK ANTHONY MALOGORSKI

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          JA 56 of 2010 (21010499)

 

DELIVERED:                                   21 October 2011

 

HEARING DATES:                           28 February and 19 July 2011

 

JUDGMENT OF:                              BARR J

 

APPEAL FROM:                               FONG LIM SM

 

CATCHWORDS:

 

APPEALS – Justices Act – Application to dispense with compliance with condition precedent - recognizance on appeal – whether appeal was validly instituted despite appellant not having entered into a recognizance or made payment into court.

 

APPEALS – Justices Act – Application to dispense with compliance with condition precedent – recognizance on appeal – whether a recognizance on appeal entered out of time triggers court’s power to dispense with recognizance – whether recognizance entered out of time was “insufficiently entered into” and/or “otherwise defective or invalid”.

 

 

 

APPEALS – Justices Act – Application to dispense with compliance with condition precedent - recognizance on appeal – whether s 167(6) Justices Act contains a “separate and general power” to dispense with requirement to enter into a recognizance on appeal.

 

APPEAL – Misuse of Drugs Act – possession – application of evidentiary presumption of occupiers or persons concerned in management or control of premises – whether Magistrate was in error by conclusion that evidentiary presumption relieved prosecution of onus of proving knowledge of possession.

 

APPEAL – whether finding of guilt unsafe and unreasonable – circumstantial evidence – whether evidence was incapable of excluding rational inferences consistent with innocence – whether Magistrate was in error by rejecting reasonable inference that drug was in possession of another person to the exclusion of the appellant.

 

Justices Act s 49, s 49(b), s 167, s 167(1), s 167(5), s 167(6), s 167(7), s 167(7)(b), s 169(1), s 169(1)(a), s 169(1)(b), s 171, s 171(1), s 177(1), s 177(2)(e)

Misuse of Drugs Act s 9(1), 9(2)(f)(ii), s 13, s 40, s 40(c)

Sentencing Act s 88, s 89, s 91

 

Justices Ordinance 1961 s 99, s 167

Justices Regulations Reg 3

 

Justices (Amendment Bill), Second Reading Speech, Northern Territory Legislative Council, 29 November 1960

 

Wilson v Malogorski [2011] NTSC 27, referred to

 

Carnesi v Hales [2000] NTSC 98; He Kaw The v R (1985) 157 CLR 523

Tabe v R (2005) 225 CLR 418, considered

 

Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd (1987) 47 NTR 8, approved

 

 

 

 

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     J Brock

    Respondent:                                  M Aust

 

Solicitors:

    Appellant:                                     North Australian Aboriginal Justice Agency

    Respondent:                                  Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       Bar1110

Number of pages:                             25


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Wilson v Malogorski (No 2) [2011] NTSC 88

No. JA of 2010 (21010499)

 

 

                                                     BETWEEN:

 

                                                     DONNA MARIE WILSON

                                                         Appellant:

 

                                                     AND:

 

                                                     MARK ANTHONY MALOGORSKI

                                                         Respondent:

 

CORAM:     BARR J

 

REASONS FOR JUDGMENT

 

(Delivered 21 October 2011)

 

Introduction

[1]      On 22 October 2010, the appellant was found guilty by the Darwin Court of Summary Jurisdiction of a charge of unlawfully possessing a quantity of cannabis plant material.[1]

[2]      She took steps to institute an appeal under the Justices Act in respect of her conviction and sentence, but did not enter into a recognizance on appeal.  She then failed in her application to the Supreme Court for an order that her non-compliance be dispensed with, because she was unable to establish that she had done "whatever (was) reasonably practicable to comply with the Act".[2]

[3]      I granted leave to the parties to make application for consequential orders following the unsuccessful preliminary application by the appellant.  The appellant now seeks to argue several further preliminary matters in order to establish that her appeal has been validly instituted.

Appellant’s further preliminary argument – recognizance was not required

[4]      The first further matter argued by the appellant is that that the effect of s 167(7) Justices Act is that she was not required by law to enter into a recognizance on appeal and hence the entry into a recognizance was not a condition precedent to the appeal.

[5]      This argument is inconsistent with the application made previously that the Supreme Court dispense with the failure by the appellant to enter into a recognizance on appeal and the concession made in February 2011 that a condition precedent to the valid institution of the appeal had not been satisfied.[3]  Nothing has been shown which would establish that, in the interests of justice, the appellant should be permitted to rely at this stage on a matter which might have been raised on the earlier hearing.  Nonetheless, counsel for the respondent did not object and I shall therefore in the exercise of my discretion deal with the appellant’s argument.

[6]      I set out s 167(7) Justices Act:- 

“(7) When any fine or sum of money is adjudged to be paid by a conviction or order, a person appealing against the conviction or order may, at his option:

(a)     enter into a recognizance on appeal; or

(b)     pay into Court:

(i)      the amount of the fine or sum of money adjudged to be paid; and

(ii)     the amount of $20, to abide the order of the Supreme Court on the appeal.”

[7]      The appellant argues that, because the sentence imposed on her was a fine, she had the option at her election to either pay the fine and the $20 fee or to enter into a recognizance on appeal.  She agrees that she did neither within a month of her conviction.  However, she argues that s 167 did not require entry into a recognizance, because the optional alternative was always open.  She therefore argues that under s 171(1) of the Act, which I set out below with underline emphasis added, no recognizance on appeal was required:-

“The appeal shall be instituted by notice in accordance with section 172, by entering into such recognizance on appeal as is required under sections 167 and 168 and by payment of the fee specified in section 172.”

As a result, the argument proceeds, the appeal was validly instituted even though the appellant had neither entered into a recognizance on appeal nor made the payment into Court referred to in s 167(7)(b) of the Act.

[8]      If the appellant's argument is correct, then in all cases of appeal against a conviction or order under which a fine or sum of money is payable, the appeal would be validly instituted even though the appellant had not complied with either of the alternatives in s 167(7) of the Act.  An appeal which complied with neither option would still be validly instituted.

[9]      In my opinion the appellant’s argument is misconceived. 

[10]  Notwithstanding that the legislature has given an intending appellant in certain cases the option of paying money into court rather than entering into a recognizance, the presumed legislative intent is still that the appellant do some act to demonstrate a bona fide commitment to the appeal.  Entry into a recognizance binds an appellant (by agreement to financial consequences in default) to prosecute the appeal and pay any costs which might be ordered. Payment of a fine or other monetary payment ordered is a demonstration that the appeal is not simply an attempt to avoid or delay financial responsibility.

[11]  My researches disclose that sub-sections (5), (6), (7) and (8) were inserted into s 167 of the Justices Ordinance 1928-1957 by the Justices Ordinance 1961.[4]  The Crown Law Officer’s second reading speech for the amending Act indicated an intent on the part of the Legislative Council to strengthen the pre-existing recognizance provisions:- 

“A further major revision which this Bill achieves is in the matter of appeals against convictions, and appeals against dismissals.  Insofar as appeals against convictions are concerned, we found that a great number of people being convicted of offences took advantage of the existing law and appealed and entered into a recognizance conditioned on their surrender if the appeal was unsuccessful and thereupon left the Territory and never prosecuted the appeal.  When we attempted to find them to do something about enforcing the recognizance, the difficulty and the cost of doing so did not justify it being done.  This practice, of course, is most undesirable and therefore in this Bill the opportunity has been taken to strengthen the provisions relating to the taking out of a recognizance by a person who has been convicted and who desires to appeal to the Supreme Court.”[5] 

[12]  Although one might question the effectiveness of the measures adopted in the amending Act, the clear intent of the legislature was to ensure a greater degree of commitment by appellants than had previously been the case.

[13]  In my opinion, s 167(7) should be interpreted so to require, where the sentence imposed is a fine, that an intending appellant enter into a recognizance on appeal unless he or she makes payment into Court under s 167(7)(b).  Entry into a recognizance is the default obligation.  Consistent with that, s 171(1) requires entry into a recognizance as a condition precedent to the valid institution of an appeal, subject to the concession that a recognizance may not be required under s 167. 

[14]  In conclusion on this ground, I reject the appellant’s arguments.  I find that entry into the recognizance was required under s 167 of the Act because the appellant had not made payment into Court under s 167(7)(b).  Entry into a recognizance was therefore a condition precedent to the valid institution of an appeal.  The fact that a recognizance was not entered into meant that a condition precedent to the valid institution of the appeal was not satisfied.

The April 2011 recognizance and its validity  

[15]  The appellant argues a second further preliminary matter.  She contends that her late entry into a recognizance triggers this Court’s power to dispense with a recognizance.

[16]  Subsequent to the unsuccessful application to this Court, the appellant entered into a recognizance, headed "Recognizance to Prosecute Appeal", at Batchelor, on 21 April 2011.  Counsel for the appellant argues that this recognizance was "insufficiently entered into" and/or "otherwise defective or invalid" within s 169(1) of the Act; that this Court should therefore make a finding to that effect and then make an order dispensing with the recognizance under s 169(1)(b) ) Justices Act.

[17]  The recognizance read as follows:-

“NORTHERN TERRITORY OF AUSTRALIA

Justices Act

Sections 172

Case No 21010499

RECOGNIZANCE TO PROSECUTE APPEAL

The Appellant: Donna Marie Wilson

of: 10/10 Mardango Crescent, BATCHELOR NT 0845

acknowledges himself/herself to owe to the Territory the sum of $1000.00

if the appellant shall fail to duly prosecute without delay his appeal against the determination of the Court of Summary Jurisdiction at Darwin on 22 October 2010 where Donna Marie Wilson was found guilty of the offence of:

1.       Unlawfully possessing a dangerous drug, namely cannabis plant seeds.

the determination of that court being that the defendant was convicted and sentenced.

And to submit to the judgment of the Supreme Court thereon, and pay such costs as may be awarded by that Court.

Acknowledged on 21 day of  April 2011 (sgd) D Wilson

At Batchelor

Before me: (sgd) Sue O’Hagan JP”

[end]

[18]  The statutory requirements in relation to the entry into and conditions of recognizances on appeal are contained in s 167(1) Justices Act.  The recognizance is required to be entered into before a Justice.  It appears from the face of the recognizance that that requirement is satisfied.  The necessary conditions for the recognizance are (1) to duly prosecute the appeal, (2) to abide the order of the Supreme Court thereon and (3) to pay such costs as may be awarded by the Supreme Court.

[19]  There is no specific agreement or undertaking on the part of the appellant to duly prosecute the appeal.  However, the recognizance contains an acknowledgement of contingent indebtedness in the event the appellant fails to duly prosecute the appeal without delay.  In my view the recognizance is "conditioned duly to prosecute the appeal".

[20]  Compliance with the statutory requirement that the appellant abide the order of the Supreme Court on the appeal is made out by the agreement on the part of the appellant "to submit to the judgment of the Supreme Court" on the appeal.  The agreement to pay costs is express. 

[21]  The recognizance does not strictly comply with Form 62 in the Justices Regulations, but there has been substantial compliance, and that is sufficient.[6]

[22]  The recognizance is thus not defective or invalid in relation to its content.  However, the recognizance was entered into at a time well after the period of one month derived by reference to s 171(1) and (2) Justices Act.  The question therefore arises as to whether the recognizance was "insufficiently entered into" or "otherwise defective or invalid" because it was not entered into until 21 April 2011 whereas, for the purposes of valid institution of the appeal, the recognizance should have been entered into within one month of 22 October 2010, that is by 22 November 2010.

[23]  In my view, the recognizance was not "insufficiently entered into" or "otherwise defective or invalid" within s 169(1) of the Act.  True, the recognizance was not entered into within sufficient time to enable an appeal to be validly instituted under s 171 Justices Act.  However, the question of insufficiency etc. must be decided with reference to the statutory purpose for which the recognizance is required to be entered into, namely to bind an appellant to financial consequences if the appellant does not duly prosecute the appeal or if the appeal is unsuccessful.  In my view, the recognizance achieves that purpose.  It is not defective or invalid. 

[24]  My view as to the meaning of "insufficiently entered into" and "otherwise defective or invalid" is reinforced by the fact that s 169(1)(a) Justices Act permits the Supreme Court to substitute "a new and sufficient recognizance to be entered into before it, in the place of the insufficient, defective or invalid recognizance...".  This strongly suggests that the recognizance must be insufficient, defective or invalid for reasons other than for the fact that the recognizance was not entered into in time to enable the appeal to be validly instituted.  If the first recognizance were "insufficiently entered into" only because entered into out of time, then any new recognizance permitted by the Supreme Court still later in time would be immediately similarly insufficient, defective or invalid.

[25]  The Court is therefore unable to make an order dispensing with a recognizance under s 169(1)(b) Justices Act.

General power to dispense with recognizance 

[26]  The appellant argues, as a third further preliminary matter, that s 167(6) Justices Act contains a “separate and general power” to dispense with the requirement to enter into a recognizance on appeal.

[27]  In carefully argued submissions, Mr Brock acknowledges that the reference to “the Court” in s 167(6) is a reference to the Court of Summary Jurisdiction, not to the Supreme Court, but contends that the Supreme Court could assume the powers of the Court of Summary Jurisdiction under s 177(1) or under s 177(2)(e) to make an order that no recognizance be entered into.[7] 

[28]  The appellant’s argument as to there being a separate and general power of dispensation in s 167(6) requires a conclusion that s 167(5) and s 167(6) are separate and distinct.  I set out those sub-sections below:-

“(5)    In relation to an order dismissing a complaint, not being a complaint of any offence, the Court making the order may order that if the decision is appealed against no recognizance shall be entered into.

(6)     Where the court so orders no recognizance on appeal shall be entered into.”

[29]  In Federal Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd,[8] Asche J considered whether s 167(6) Justices Act provided a general power of dispensation and concluded that it did not.  His Honour decided that s 167(6) followed on from and related only to the discrete factual situation described in s 167(5).

[30]  The appellant argues that the remarks of Asche J in Arnhem Aircraft Engineering were obiter and that they were wrong: “the interpretation appears to render s 167(6) Justices Act entirely redundant” and that s 167(6) “would merely repeat what s 167(5) Justices Act has clearly and plainly stated.”[9] 

[31]  I do not accept the appellant’s argument.

[32]  At the time sub-sections (5) and (6) were inserted into s 167 of the Justices Ordinance 1928-1957 by the Justices Ordinance 1961, s 49 of the Principal Ordinance was in almost identical terms to the present s 49 Justices Act, so that then, as now, it was possible to institute summary proceedings on complaint not only where the commission of a simple offence was alleged, but also where a Justice or Justices had “authority by law to make any order for the payment of money or otherwise” – see s 49(b) Justices Act.

[33]  One specific power of a Court of Summary Jurisdiction in 1961 was to “adjudge a defendant to enter into a recognizance, and find sureties to keep the peace, or be of good behaviour towards” a complainant, pursuant to s 99 Justices Ordinance 1928-1957.  This power remained until s 99 was repealed in 2007.[10]  The s 99 complaint, often referred to as a “peace complaint”, was not “a complaint of any offence” since it was not necessary for the complainant to prove an offence but rather to justify his or her apprehension as to threatened harm or a breach of the peace.  Because a s 99 complaint was not a “complaint of any offence”, s 167(5) enabled the Court on the occasion of dismissal of such a complaint to order that, if the decision were appealed against, no recognizance should be entered into.

[34]  There remain today other types of summary proceedings instituted on complaint where no offence is alleged, and where a Justice or Justices have “authority by law to make any order for the payment of money or otherwise” under s 49(b) Justices Act. A complaint may still be made under s 49(b) Justices Act read with s 53D Summary Offences Act alleging undue noise affecting occupied premises, and the Court of Summary Jurisdiction may make a cessation or abatement order on such complaint.

[35]  The circumstances in which a complaint may still be made under s 49(b) Justices Act arguably also include an application by a prosecutor under s 91 Sentencing Act for an order for restitution, compensation, or costs of restoring or rehabilitating property under s 88 and s 89 Sentencing Act.

[36]  Therefore, there were and still are situations in which a complaint to a Justice is, to use the words of s 167(5) “… a complaint, not being a complaint of any offence”.  

[37]  Counsel for the appellant submits that s 167(5) Justices Act deals with “a very specific and, presumably extremely rare, circumstance where relief is sought against the dismissal of a complaint that does not disclose an offence”.  However, that misconstrues the sub-section.  The words “not being a complaint of any offence” in s 167(5) refer to and describe the complaint, and its subject matter, not to any deficiency that may be found by the court. 

[38]  In s 167(5), the legislature has identified certain categories of complaint matters where the Court of Summary Jurisdiction may make an order, in anticipation of a possible appeal, that no recognizance is to be entered into.  The consequence of such an order is made clear by s 167(6), which applies at a later stage, at the point of institution of any appeal which may be instituted. 

[39]  I therefore reject the appellant’s argument that the interpretation of s 167(6) by Asche J in Arnhem Aircraft Engineering renders 167(6) “entirely redundant” and that s 167(6) “would merely repeat what s 167(5) Justices Act has clearly and plainly stated”.

[40]  In my opinion, s 167(6) Justices Act does not contain the “separate and general power” argued for by counsel for the appellant.  I agree, with respect, with the conclusion of Asche J (as he then was) in Arnhem Aircraft Engineering.

[41]  I therefore find that s 167(6) Justices Act does not permit this Court in the present case to dispense with the requirement that the appellant enter into a recognizance on appeal.

Conclusion

[42]  The appeal has not been validly instituted. It follows that the appeal proceeding, such as it is, must be dismissed.

[43]  However, in the event that I have erred in my findings and conclusions to this point, and in deference to the arguments of counsel, I will now proceed to consider the substantive issues argued on the appeal.

Consideration of substantive grounds of appeal  

[44]  The offending conduct, which took place on 27 March 2010, gave rise to two charges against the appellant which were dealt with by the Darwin Court of Summary Jurisdiction in October 2010.  The appellant pleaded guilty to a charge contrary to s 13 of the Misuse of Drugs Act that she administered cannabis to herself on 27 March 2010.  She pleaded not guilty to the charge of unlawful possession of cannabis plant material on the same day.  The "cannabis plant material" was a quantity of cannabis seed contained in a small plastic bag.

[45]  There was no contest before the court that the appellant was the occupier and "a lawful tenant" of the residential premises in which the cannabis plant material was found. Moreover there was no contest that the cannabis plant material was found on an open bench top in very close proximity to the appellant. 

[46]  On 27 March 2010, Brevet Sergeant Paul Maccioni was called out from the Batchelor Police Station to attend a domestic disturbance at the appellant’s residence in Mardango Crescent, Batchelor.  He arrived at the appellant’s residence at about 10.00 pm.  He went to the front door and looked through a window to the side of the door.  He observed the appellant and her boyfriend, Justin Roarke, standing at a kitchen bench or breakfast bar.  The couple were standing side by side, facing side-on to the police officer.  Justin Roarke picked up a red cone piece, a bottle top with a brass cone piece in it, rubbed vegetable matter between his fingers and then placed it in the cone piece.  He then screwed it into a plastic soft drink bottle, put it into a bucket and lit it.  He handed it to the appellant who inhaled the contents of the cone piece.

[47]  The police officer also observed at that time a small bag on the kitchen bench or breakfast bar, in front of the appellant and her boyfriend.  He said in evidence that the small bag was "right in front of them".[11]  After having a conversation with the appellant, the police officer went inside the residence, picked up the bong, which was still warm and smoking, and also picked up the small bag.  He said that the small bag contained what looked like cannabis seeds.[12]

[48]  Relevant to unlawful possession, there was an issue at the hearing as to whether the appellant saw or was otherwise aware of the presence of the bag of cannabis seeds, and in relation to that issue there was evidence as to how obvious its presence would have been to the appellant.  On the defence case there were a number of other objects on the breakfast bar competing with the small bag of cannabis seeds for the appellant’s attention.  The appellant said that she did not bring the cannabis seeds into her house, that she did not see them on the bench and did not know they were there. 

[49]  Brevet Sergeant Maccioni initially said in cross-examination that there was nothing on the breakfast bar apart from the bong and a small bag, but qualified that to say that there was nothing else on the breakfast bar where the appellant and her boyfriend were standing.  Sergeant Maccioni agreed that there was a microwave on the breakfast bar, but said that it was not directly in front of the appellant and her boyfriend.  He did not see any kettle, coffee-making items, dishes, food, handbag or other personal items on the breakfast bar where the appellant and her boyfriend were standing.  In reference to the breakfast bar he said: "It is not that long, probably hold about two stools if you had them there, and the bench was bare, it possibly had items at the end, but not where they were standing, not the end where I was looking."[13]

[50]  There was another male person in the house, later identified as the appellant’s cousin Timothy Johnson, standing at the stove some two metres away from where the appellant and her boyfriend were standing.  He appeared to be cooking a meal.  He told the police sergeant that he was only at the house "to cook a feed".[14]  The appellant gave evidence that her cousin was at her house cooking because he had just moved into his own flat and did not have pots or pans to cook with.[15]

[51]  The appellant said in her evidence that when she got home that evening, she sat around talking to "that mob in the kitchen area", a reference to her boyfriend Justin and her cousin Timothy.  Justin then called her over to the kitchen bench where she "pulled that cone" (smoked some cannabis) and then heard the knock of Sergeant Maccioni on the door.[16]

[52]  I set out below a number of relevant questions and answers given by the appellant in examination in chief:-

"Did Sergeant Maccioni show you some seeds at some point?  …… .  

Before he showed you those seeds had you seen them before? - - - No. 

Do you know how those seeds got into the house? - - - No.

Did you take those seeds into the house? - - - No.

Did those seeds belong to you? - - - No.

Do you know what you use cannabis seeds for? - - - Yes.

What do you use them for? - - - For growing, I suppose, I don’t know what people – maybe they crush it up and smoke it, I don’t know.

Were you growing any cannabis in your house at … that time? - - - No."[17]

[53]  In cross examination the appellant was asked whether, when she came over to the bench and inhaled from the bong, she had noticed "what was sitting there as well", a reference to the small bag of cannabis seeds.  She answered, "I didn’t take notice, it was just heaps of stuff around everywhere."[18] 

[54]  Further cross examination took place as follows:-

"Those seeds sitting in that packet, they were on that bench when you were smoking that bong, weren’t they? - - - (no audible response).

They’re not yours, I’m not saying they’re yours, but that packet was there? - - - I did not see the packet of seeds, gunja or anything on that bench."[19]

[55]  The appellant said that she first saw the bag containing cannabis seeds as she was walking out with Sergeant Maccioni and he was telling her what he was going to charge her with.[20] 

Conviction and reasons

[56]  The magistrate found the appellant guilty of the possession charge. Her Honour’s concluding remarks were as follows:-

"I am satisfied beyond reasonable doubt that she was, alone or in counsel with her partner, in the custody or control of those drugs to the exclusion of others and she will be found guilty of the charge".

First substantive ground of appeal

[57]  The applicant’s first ground of appeal is that the learned Magistrate erred in her interpretation of s 40(c) Misuse of Drugs Act and applied that subsection incorrectly.   Section 40 of the Act provides, relevantly:-

"40     Evidentiary

In respect of a charge against a person of having committed an offence against this Act:

………….

(c)     proof that a dangerous drug or precursor was at the material time in or on a place of which the person was –

the occupier; or

concerned in the management or control

is evidence that the drug or precursor 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 or precursor was in or on that place."

[58]  For the purposes of the first ground of appeal, it is important to follow the process of reasoning which led the magistrate to find the appellant guilty.  Her Honour commenced her decision in the following introductory passages:-[21]

"The prosecution must prove beyond reasonable doubt that the defendant has possessed seeds and … negate any positive defence the defendant may raise.  There is no dispute that the defendant was a lawful tenant of the premises where the seeds were found.  Nor that the seeds that were found were cannabis seeds, a Schedule 2 drug.  The issue is whether it can be satisfied beyond reasonable doubt that the defendant had possession of the seeds, in light of the operation of section 40(c) of the Misuse of Drugs Act and the other evidence produced to the court.

Section 40(c) of the Misuse of Drugs Act provides that if the prosecution proves … that the defendant was the occupier of a premises and the drugs were found on that premises, then that is evidence that the person was in possession of the drugs, unless a person can show that she neither knew or suspected that the drugs were there. Prosecution relies heavily on section 40(c).  However it is clear from Carnesi v Hales that the evidence established by the operation of that section, there is only one piece of evidence in possession, then the court must consider all other evidence.  It is not conclusive of possession." 

[59]  Her Honour correctly identified that s 40(c) Misuse of Drugs Act (NT) creates an evidentiary presumption as to possession if a person was, at the relevant time, the occupier or concerned in the management or control of premises in which drugs were located.  Her Honour’s reference to Carnesi v Hales[22] and her statement to the effect that the presumption created by the subsection is ‘evidence’ (as distinct from ‘conclusive evidence’) of possession correctly reflects the law in the Northern Territory.[23]

[60]  A defendant against whom the presumption applies is able to rebut the presumption by satisfying the court on the balance of probabilities that he or she neither knew, nor had reason to suspect, that drugs were present.  However, even if the defendant fails to rebut the presumption, the prosecution must still prove possession beyond reasonable doubt.  As Riley J (as he then was) said in Carnesi v Hales:-

"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."[24] 

[61]  After the opening remarks referred to, the magistrate went on to summarise the evidence, making a number of credit findings adverse to the appellant, for example: "I found her evidence to be unbelievable and unreliable.  She was inconsistent in her evidence and clearly inventing as she went along."

[62]  In relation to whether the appellant had rebutted the presumption in s 40(c) Misuse of Drugs Act (NT), the magistrate found as follows:-

"I am not satisfied that the defendant did not know, nor had reason to suspect the seeds were present in her place.  In all the circumstances of the case, it is highly unlikely the defendant did not know or (did not have) reason to suspect the seeds were there.  She knew that there was cannabis used for smoking.  She, in fact, participated in that smoking.  She knew also that seeds were often mixed up with the leaf.  She was in close proximity to where the seeds were and when the cannabis was prepared for her to consume.

She has not in my view rebutted the operation of section 40(c) and the operation of section 40(c) produced evidence to the court that the cannabis seeds were in her possession."[25]

[63]  To this point the magistrate’s reasoning was unobjectionable.  She correctly concluded that s 40(c) provided some evidence of possession.  However, her Honour then made the following remark as to the effect of the appellant having failed to rebut the presumption:-

"There is, of course, a dual purpose in section 40, which is succinctly described in Tabe v R by their Honours Callinan and Heydon JJ, that is, a provision such as section  57(c) and (d) of the Drug Misuse Act, Queensland, which is the one that they were considering, similar to our section 40, relieves the prosecution of proving knowledge.  It has the operation to reverse the onus and, in my view, of knowledge, and the defendant in this case has not discharged that onus."

[64]  The passage from the joint judgement of Callinan and Heydon JJ in Tabe  to which the magistrate was apparently referring was as follows:-

"Section 57(c) needs further examination but for present purposes it suffices to say that it reverses the onus of proof, and also makes clear that “reason to suspect” is to be treated as if it were knowledge. Section 57(d) qualifies the operation of s 24 of the Code.  Its practical effect is to require that an accused show, on the balance of probabilities only, that he or she is entitled to be acquitted on the basis of an honest and reasonable belief in the existence of any state of things material to the charge, rather than that which the Code would otherwise require, that the prosecution negative such a belief beyond reasonable doubt."

[65]  It would appear that the magistrate cited and relied on what was said by Callinan and Heydon JJ in Tabe as being applicable to s 40 of the Misuse of Drugs Act (NT), without taking into account that Tabe dealt with a statutory provision under which the presence of a dangerous drug was conclusive evidence of possession against the occupier of the place where the drug was found (unless the presumption were rebutted).  Her Honour overlooked the significant difference between the Misuse of Drugs Act (NT) and its Queensland counterpart dealt with by the High Court in Tabe.  In concluding that s 40(c) relieved the prosecution from the onus of proving knowledge, the magistrate erred in law.  Knowledge by a defendant that drugs are in his or her custody is an element which the prosecution must prove beyond reasonable doubt in a prosecution of an offence contrary to s 9(1) Misuse of Drugs Act (NT)[26], even where a defendant fails to rebut the presumption in s 40(c) Misuse of Drugs Act.

[66]  The learned magistrate therefore erred in law in her consideration and application of s 40(c) Misuse of Drugs Act, as indicated by her statements as to reversal of onus. Her deliberations from that point on were contaminated by the error.

[67]  I would have upheld the first ground of appeal.  

Second substantive ground of appeal 

[68]  The appellant further contends that the finding of guilt is unsafe and unreasonable as the evidence was incapable of excluding rational inferences consistent with innocence.

[69]  This contention is based upon the learned magistrate’s failure to provide reasons as to the basis upon which she excluded various other inferences, said by defence counsel to be inferences consistent with innocence.

[70]  These inferences can be summarised as follows:-

1.   The cannabis plant material was in the possession of Mr Roarke to the exclusion of the appellant;

 

2.   The cannabis plant material was in the possession of the appellant’s cousin, to the exclusion of the appellant; and

 

3.   The cannabis plant material was in the possession of other persons present at the house on earlier occasions, to the exclusion of the appellant.

 

[71]  The case against the appellant could properly be described as circumstantial, and it is well established that in such cases, the magistrate could not properly return a verdict of guilty unless no other rational inference consistent with the innocence of the appellant could be drawn.[27]  As Mildren J said in Jaeger-Stienberger v O’Niell [2011] NTSC 42:

“To enable the learned magistrate to be satisfied beyond reasonable doubt of the guilt of the accused it was necessary not only that her guilt should be a rational inference, but that it should be the only rational inference that the circumstances would enable him to draw.

However, relevantly for the present case, his Honour continued:

 

“An inference to be rational must rest upon something more than mere conjecture. The bare possibility of innocence does not prevent the magistrate from finding the appellant guilty if the inference of guilt is the only inference open to a reasonable magistrate upon a consideration of all the facts in evidence.”

[72]  The fundamental question is whether there ought to have been a reasonable doubt on the part of the learned magistrate that the cannabis seeds were in the possession of either Mr Roarke, or of the appellant’s cousin, or of one or more of those persons who had attended the house at some earlier time, in the case of them all to the exclusion of the appellant.  In my view, her Honour would not have been in error, in reasonably considering all the facts in evidence, to exclude each of the above three inferences as unreasonable in the circumstances.  The evidence did not compel the acceptance of any inference consistent with the appellant’s innocence.

 

[73]  It follows that I would have rejected the second ground of appeal.

Conclusion on alternative consideration  

[74]  If an appeal had been validly instituted, I would have upheld the first ground and quashed the appellant’s conviction on the possession charge.  However, I would not have entered a verdict of not guilty; rather I would have remitted the matter for a re-hearing before the Court of Summary Jurisdiction.  Circumstantial evidence in the prosecution case included the appellant’s participation in the smoking of cannabis in very close proximity to the cannabis plant material the subject of the charge, and the magistrate made significant credit findings adverse to the appellant.  The cannabis plant material was very visible, on the prosecution case.  A proper consideration of all the evidence, unaffected by legal error, could well have resulted in a finding of guilty on the possession charge.  In those circumstances, I would have ordered a re-hearing.    

Orders

[75]  For the reasons given in par [42], the proceeding is dismissed.

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[1]     Contrary to s 9(1) and (2)(f)(ii) Misuse of Drugs Act (NT).

[2]     Wilson v Malogorski [2011] NTSC 27, delivered 1 April 2011.

[3]     Wilson v Malogorski [2011] NTSC 27 at [6] to [9].

[4]     Justices Ordinance 1961, No. 31 of 1961, assented to 13th September, 1961.

[5]     Justices (Amendment Bill), Second Reading Speech, Northern Territory Legislative Council, 29th November 1960.

[6]     Justices Regulations, reg 3: “ … substantial compliance shall suffice for the purpose of these Regulations.”

[7]     Mr Brock acknowledged that this use of s 177(2)(e) had been suggested by Asche J (as he then was) in Federal    Commissioner of Taxation v Arnhem Aircraft Engineering Pty Ltd (1987) 47 NTR 8 at 13. 

[8]     (1987) 47 NTR 8 at 13.40.

[9]     Appellant’s written submissions dated 11 April 2011, par 22.

[10]    No 34 of 2007, s 145.

[11]    Transcript 14/10/2010, p 8.2.

[12]    Transcript 14/10/2010, p 9.7.

[13]    Transcript 14/10/2010, p 15.7.

[14]    Transcript 14/10/2010, p 19.6.

[15]    Transcript 14/10/2010, p 36.4.

[16]    Transcript 14/10/2010, p 36.6.

[17]    Transcript 14/10/2010, p 38.6 - 39.2.

[18]    Transcript 14/10/2010, p 43.7.

[19]    Transcript 14/10/2010, p 47.5.

[20]  Transcript 14/10/2010, p 49.

[21]    Transcript 22/10/2010, p 2.

[22]    Carnesi v Hales [2000]  NTSC 98; (2000) 117 A Crim R 363.

[23]    In contrast, s 57(c) Drugs Misuse Act (Queensland) provides that  “proof that a dangerous drug was at the material               time in or on a place of which that person was the occupier or concerned in the management or control of is            conclusive evidence that the drug was then in the person’s possession  ”.  See Tabe v R (2005) 225 CLR 418 at 441           per Hayne J.  

[24]    Carnesi v Hales  (2000) 117 A Crim R 363 at 365.5.

[25]    Transcript 22/10/2010, p 4.2,

[26]    He Kaw Teh v R (1985) 157 CLR 523 at 539 per Gibbs CJ. 

[27]    Shepard v R (1990) 97 ALR 161 at 163-165, per Dawson J.