_Marchetti v Williams_

**[1] On 2 July 2007 the appellant was convicted in a magistrates court of an offence against s 123(2)(a) of the Corrective Services Act 2006, in that on 13 March 2007 he dealt with a prohibited thing without written approval. He was sentenced to a term of imprisonment of two months cumulative on the term then being served. A new parole eligibility date was fixed. By notice of appeal filed 26 July 2007 the appellant challenged the conviction on four grounds:

1. The magistrate erred in finding there was a case to answer.

2. The magistrate erred in finding that the item found was a prohibited item as defined by s 20 of the Corrective Services Regulation 2006.

3. The magistrate erred in finding that subsection 123(4) of the Act applied.

4. The magistrate erred in holding that the effect of that subsection was to create an offence of strict liability.

[2] Section 123(2)(a) of the Corrective Services Act makes it an offence for a prisoner in a corrective services facility to deal or attempt to deal with a prohibited thing. By subsection (5) "deal with a thing means make, possess, conceal or knowingly consume the thing." Subsection (3) excludes the operation of the provision if the prisoner has the Chief Executive's written approval. The prosecution case was that the appellant had dealt with a prohibited thing, namely a syringe, by possessing it.

[3] It is also relevant to have regard to subsection (4) which provides:**

"The finding of a prohibited thing in a prisoner's room that is not shared with another prisoner, or on the person of a prisoner, in a corrective services facility is evidence that the thing was in the prisoner's possession when it was found."

[4] In relation to the first ground, the respondent submitted that an appeal on this basis was not available under s 222 of the Justices Act 1886, relying on the decision of Schneider v Curtis [1967] Qd R 300. In that case, it was held that no appeal under s 222 lay, prior to the determination of a prosecution for a summary offence, from the decision on an application for a ruling that there was no case to answer. In that case, after the ruling that there was a case to answer, the defence obtained an adjournment to enable that ruling to be challenged on appeal. The appeal was unsuccessful but the then chairman of the District Courts who heard the appeal stated a special case for the Full Court under the District Courts Act 1958 s 156 as to whether an appeal under s 222 was available in such circumstances.

[5] Gibbs J with whom the other members of the court agreed said at p 303:**

"The ruling of the magistrate that there was a case to answer was a ruling of an interlocutory nature; it decided nothing except that the appellant had to enter upon his defence and was thus deprived of the advantage of having the complaint against him summarily dismissed."

[6] His Honour went on to say that this amounted to a refusal to dismiss the complaint at that stage. His Honour then considered a number of matters touching on the scope of an appeal under s 222, and to some extent contrasting that position with the alternative avenue of appeal then available by way of order to review under s 209 of the Justices Act, before concluding at p 306:

"In my opinion the legislature did not intend that the wide powers of control over the proceedings of magistrates which this court may exercise by way of order to review should also be available on an appeal under s 222. Such an appeal in my opinion only lies from an order which disposes of a complaint, for example by dismissing it, or by entering a conviction and imposing a penalty.[1] It does not lie from a magistrate's ruling, given at the close of the complainant's case, that there is a case for the defendant to answer, for although such a ruling may amount to the refusal of an application, and may be regarded as an order within the definition in s 4, it is made upon an incidental application during the hearing of the complaint, and is not an order made upon the complaint."

**[7] That the decision on a submission that there was no case to answer could be reviewed on an appeal by way of order to review under s 209 of the Justices' Act was shown by the decision in the Full Court in Fawkes v Schadwell, ex parte Schadwell [1966] Qd R 20. In that case the appellant had submitted that there was no case to answer, on which the magistrate declined to rule, and then called no evidence, and after hearing further addresses the magistrate convicted. The Full Court held that on the evidence there was a case to answer, but that the appellant was entitled to a ruling on that application and for that reason the conviction would be set aside and a new trial ordered. The decision is authority for the point that if such an application is made at the close of the Crown case the court must rule on the application without requiring the defence to elect whether to call evidence or not; this approach previously laid down by the High Court in relation to jury trials[2] applied to magistrates court trials as well.

[8] In the present case, however, there was a conviction and a penalty was imposed, so clearly the magistrate at that time made an order disposing of the complaint. The appellant is entitled to appeal under s 222 against that order. Schneider v Curtis does not deal with that situation, except in the sense that it confirms that such an appeal is available; it says nothing about the real issue, which is whether, in circumstances where an application has been made for a ruling that there is no case to answer and has been unsuccessful, and the defendant has elected to give evidence, and is convicted, it is open to challenge the conviction on the ground that the ruling that there was a case to answer was wrong, or whether it is necessary to show that the conviction was wrong.

[9] Looking at that question in the broader sense of criminal appeals generally, and not appeals specifically under s 222 of the Justices Act 1886 of Queensland, it is an issue which has produced a remarkable diversity of judicial opinion. In R v Power [1919] 1 KB 572, it was noted that authorities in the Court of Criminal Appeal on this point were not in accord; possibly for that reason, a bench of five judges delivered a unanimous opinion that, where the objection was unsuccessful and the defendant then called evidence the court was not bound to disregard the effect of that evidence in determining whether there was a sufficient case against the appellant to sustain the verdict of the jury.

[10] That decision was followed in Australia by the Full Court of Victoria in R v Wood [1974] VicRp 16; [1974] VR 117 where Winneke CJ in delivering the judgment of the court said at p 119:**

"There are two answers to this submission. In the first place, even if it be assumed that the learned trial judge wrongly ruled that there was a case to answer at the stage when the submission was made, the defence nevertheless elected to make the unsworn statement, and if on the whole of the evidence the verdict was supportable, it cannot, in our opinion, be said that any substantial miscarriage of justice has occurred. If the defence was confident in its submission that there was no evidence at that stage to support a conviction, it was open to it, if it chose to take the risk, to refrain from adducing further material of an evidentiary nature, and if convicted to challenge the verdict; but if in such circumstances the defence elects to adduce, and does adduce additional evidentiary material, the court may have regard thereto in considering the validity of the verdict, and if the verdict is sustainable on the whole of the evidence the court, in our opinion, may refuse to set it aside."

**[11] The decision in Power (supra) was also followed in Riseley v R [1970] Tas SR 41,[3] and in Wright v Bastin (No 2) [1979] VicRp 35; [1979] VR 329 at 331, an appeal from the decision of a magistrate. Wood was followed in Victoria in R v Rowley (1986) 23 A Crim R 371 at 375, where the matter was put on the basis that the appeal is not against the refusal of the application, but against the conviction, and the question on the appeal is not whether the ruling on the no case submission was wrong in law, but whether upon the whole of the evidence the verdict was sustainable. If it was, no substantial miscarriage of justice has occurred. There was said to be some parallel with the situation in Maric v R (1978) 52 ALJR 631, a case where it was argued after conviction that a trial judge had erred in refusing an application to discharge the jury, and it was said that that the appeal was not against the failure to discharge the jury but against the conviction, so that it was relevant to consider whether a substantial miscarriage of justice had occurred: p 634-5.

[12] I might add that the position in England has subsequently changed dramatically. In R v Abbott [1955] 2 QB 497 the Court of Appeal held that a conviction could be set aside in circumstances where there had been an error of law on the part of the trial judge in not upholding a submission that there was no case to answer, in circumstances where it was said that there was in the Crown case no evidence against the appellant, and where subsequently both the appellant and a co-accused gave evidence. The appellant denied having committed the offence and it was said that nothing in his evidence could have supplied any evidence against him of the offence. When the co-offender gave evidence she placed the whole blame for the offence on him. R v Power was dealt with[4] partly by saying that the actual decision in that case turned on a defect in the summing up, which led to the appeal being allowed, partly on the basis that there was in any case some evidence in the Crown case against the appellant, and partly on the basis that it did not decide that if there was no evidence against a man who was indicted together with another person, it was right to allow the case to go to the jury against that man or that, if there was no evidence against him, it was other than a wrong decision in law: p 503. It was said that Power decided that if the Court of Appeal was asked to quash a conviction it might take the whole of the evidence into account, though it was said at p 505: "They did not say that the court must do so, but that this court might do so."

[13] The decision in Abbott was ex tempore, and does not clearly identify the principle on which it proceeds, or the limits of any such principle. Nevertheless, the decision was treated subsequently in England, in R v Cockley (1984) 79 Crim App R 181, as having overturned the rule in R v Power, although the point was obiter, since it was held in that case that it was unnecessary to decide whether the no case submission ought to have been upheld, since it was based on the proposition that certain evidence admitted by the trial judge ought to have been excluded, which proposition was rejected on appeal. Bristow J delivering the judgment of the court referred to R v Power and R v Abbott, and at p 183 said:**

"In our judgment it is not the law that if, on appeal to this court, it is established that a trial judge has erred in law by not upholding a submission of no case to go to the jury, it is open to this court nevertheless to look at the whole of the evidence given below in deciding whether or not to quash the conviction which followed the judge's error of law. Had he not gone wrong in law the judge would have been bound to tell the jury there and then, whether or not he immediately directed them to acquit, that they were no longer concerned with the case against Defendant X ..."[5]

[14] In R v Smith & Ors [2000] 1 All ER 263 it was said by the Court of Appeal that on appeal against conviction if the appeal court concluded that the trial judge wrongly rejected a submission of no case to answer, the court should not consider evidence submitted thereafter, but should simply allow the appeal. Indeed, at p 266 Mantell LJ in delivering the judgment of the court said:

"What if a submission is wrongly rejected but the defendant is cross-examined into admitting his guilt? Should the conviction be said to be unsafe? We think it should. The defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the end of the prosecution case would be an abuse of process and fundamentally unfair. So even in the extreme case the conviction should be regarded as unsafe; the more so in the present."

**[15] I must say frankly that it seems to me that that conclusion is a triumph for proceduralism, and completely loses touch with reality. I doubt if anyone in the community, with the exception of criminals and their lawyers, would find it appealing.

[16] The same conclusion as in Wood was reached by the Court of Criminal Appeal of Western Australia in Low v R (1978) 23 ALR 616 at 624, although citing only Riseley and Power. Brinsden J with whom Burt CJ and Lavan SPJ concurred, held that the court is entitled on an appeal to take into account evidence given by the appellant, and the question of whether the jury could reasonably have convicted would be considered on the whole of the evidence. On the other hand, in R v Prashar (1988) 37 A Crim R 70, Rowland J at p 78 expressed a preference for the English approach, although he did note that the Court of Criminal Appeal could look at subsequent evidence for the purpose of considering whether the proviso should apply; the other members of the court dealt with the appeal on different grounds and did not mention this issue.

[17] The decision in Wood was also cited as authority by Murray J in Draper v R [2000] WASCA 160, at [40] where it was said to have long been the view in that state.[6] However, the other members of the court, noting the conflicting views which had been expressed, expressly refrained from determining whether the approach in Wood should be adopted, in circumstances where the issue was not determinative of that decision. Wood was also followed by the Supreme Court in the Northern Territory in Stennett v R (1994) 4 NTLR 103 at 105. The report notes that special leave to appeal was subsequently refused by the High Court.

[18] On the other hand, it appears that a different view from Wood was taken by the South Australian court in R v Johnson (1979) 22 SASR 161. The court there did not refer to R v Wood, but did mention earlier Victorian decisions to the same effect,[7] one of which held that the English decision, R v Abbott (supra), should not be followed in Victoria. Abbott was also not followed in Wood (supra) but it was decided in Johnson that it should be followed in South Australia. This and later English decisions[8] appear to have been subsequently treated in South Australia as authority to abandon the approach in Power and Wood: R v Ayles [1993] SASC 3987; (1993) 66 A Crim R 302 at 321; R v Myall (1986) 43 SASR 258 at 262; R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at 102-3.

[19] In Strachan v Graves (1997) 141 FLR 283 Underwood J, hearing an appeal from a magistrate, referred at p 291 to: "the interesting question of whether the appellate tribunal considers only the evidence given at the time the submission of no case was made, or whether it considers all the evidence given in the court below and upholds the ground only if the ruling on the submission of no case to answer resulted in a miscarriage of justice." He referred to various decisions which I have also mentioned, and Durovic v R [1994] TASSC 23; (1994) 4 Tas R 113 at 132 where the point was said to have been left open, and said that it was unnecessary to decide the point, but "I incline to the view that there is no hard and fast rule and that each case should be approached by considering whether, in all the circumstances, there was a miscarriage of justice by the rejection of a submission of no case to answer" (p 292).[9] The rule appears to be alive and well in Victoria: R v Vasic [2005] VSCA 38 at [21] per Nettle JA.

[20] In R v Wood (supra) the decision in R v Abbott was held not to be applicable in Victoria, although that appears to have been on the basis that what occurred in that case could not have happened in Victoria, because in Victoria the practice was that if there was a no case submission on behalf of one accused the ruling on that submission, and that accused's election, would be postponed until the other accused had given any evidence to be given on behalf of that other accused, so that the no case submission would then be decided on the basis of the evidence given by the co-accused as well as the evidence given in the Crown case. That is a sensible practice, but it does not really provide an answer as to what the situation ought to be if there is only one accused.

[21] I have not been able to find reference to any New South Wales authority on the point. In R v Lethlean (1995) 83 A Crim R 197 the Court of Criminal Appeal held that there was no right to appeal in an interlocutory way under s 5F of the Criminal Appeal Act 1912 of New South Wales from a ruling that there was a case to answer, on the basis that such a ruling was not "an interlocutory judgment or order" for the purposes of that provision. That decision, however, did not touch on the question of whether the issue could be raised on an appeal against conviction. In R v Murphy (1985) 4 NSWLR 42 the Court of Appeal considered and rejected a submission that the trial judge erred in not upholding a submission that there was no case to answer at the end of the Crown case; however, in that matter the appeal proceeded in a somewhat unusual way, on questions of law reserved pursuant to s 72 of the Judiciary Act 1903. I can see no reference in the decision to the question of whether such ground could have been pursued in an ordinary appeal.

[22] The appellant relied on the decision of the Court of Appeal in Paulger v Hall [2002] QCA 353; [2003] 2 Qd R 294, as authority for the proposition that the correctness of the no case ruling could be challenged on appeal against the conviction, on the basis that the ruling affected the final result. In that case, it was stated that as a general proposition an appellant may in an appeal against a final judgment properly raise the issue of the correctness of any interlocutory order which affected the final result, citing Gerlach v Clifton Bricks Pty Ltd (2002) 76 ALJR 828 at 829. That case, and indeed other cases also cited, related to civil matters, but Paulger was an appeal against the dismissal of a complaint after a magistrate had refused to amend the complaint in relation to the time at which the offence was alleged to have been committed. On an appeal under s 222, it was held that it was open to challenge the correctness of the decision to refuse the amendment, and that that decision was wrong, and that the dismissal should be set aside because of that. An appeal to the Court of Appeal was dismissed.

[23] Holmes J as her Honour then was said at p 301:**

"An appellant may in an appeal against a final judgment properly raise the issue of the correctness of an interlocutory order 'which affected the final result': Gerlach v Clifton Brinks Pty Ltd. Thus, an appeal from a ruling before any evidence had been put before the court on the voir dire or called in the case might well be doomed to failure, because of the impossibility of saying whether it had affected the final result. On the other hand, it does not follow in a case such as the present that every piece of evidence available to the prosecution must be called before it can be said that an interlocutory ruling has affected the outcome."

**[24] McMurdo P agreed with Holmes J, and Mackenzie J at p 298 also said that the appeal could be brought under s 222 against the dismissal of the complaint on the basis that the refusal of the amendment affected the final result.

[25] I am of course bound by the decision in Paulger, but the question is how it applies. The appellant submitted that the decision affected the final outcome because if the submission that there was no case to answer had been successful the result would have been that the complaint would have been dismissed, which was different from the ultimate outcome. But the position is not necessarily as straightforward as that. The prosecutor was not called on by the magistrate to reply to the submission that there was no case to answer, so it is unknown whether, had the submission been upheld, the prosecution would have responded by seeking leave to reopen the prosecution case, and whether if that leave had been sought it would have been given. If there has been a failure to lead evidence on some specific technical point which could have been led from the witnesses called, and which can be led from a witness or witnesses readily available, it may well be an appropriate exercise of a magistrate's discretion to give leave to reopen the prosecution case for the purpose of enabling that evidence to be called.[10] If the evidence was then called and the gap in the prosecution case was filled, a no case submission made after the prosecution case had again closed would be unsuccessful, and, assuming that the defendant went into evidence and said the same things, the result would presumably have been the same.

[26] I think that that highlights the point that the question of whether something affects the final result really needs to be decided on the basis of the situation at the time of the final decision (as was done in Paulger). Consider a case where there is at the end of the prosecution case only one piece of evidence dealing with a particular element of the offence, to which objection was taken but which was held to be admissible. At that stage there was a case to answer, the defendant went into evidence, and in effect admitted that element of the charge. By the time the final decision was made, therefore, that element of the charge is not in dispute. Could it be said therefore that the decision admitting the evidence in the prosecution case which covered that element affected the final result, so that the decision to admit that evidence could be challenged on appeal against conviction?

[27] I would have thought that the test in Paulger was not satisfied in that situation, but what if at the close of the prosecution case there had been a no case submission. On the basis of the ruling already given, there would plainly be a case to answer, and the application would be a waste of time, but it could then be said on appeal that if the earlier ruling on evidence had been different the no case submission would have succeeded, and therefore the defendant would not have gone into evidence and would not have admitted that element of the offence, so that the final result was affected in this way.

[28] If that approach enables the case to be brought within the rule in Paulger v Hall, it would seem to have a highly undesirable consequence, namely that any well-advised legal adviser for a defendant should always make a no case submission, even if there is plainly evidence to cover all of the elements of the offence,[11] in case on appeal it may be possible to show that the evidence in relation to one or more of the elements ought to have been ruled inadmissible.[12] I doubt very much whether that was the intention behind the rule; the decision was clearly based on the proposition that the appeal is only from the order by which the complaint was finally determined.

[29] It seems to me therefore that it is necessary to keep clearly in mind that the appeal is from the final decision, and to assess the question of whether the decision or ruling affected that final decision. That necessarily must be decided in the light of the position that prevailed at that time. If at that time the defendant had in the course of evidence admitted one of the elements of the offence, then a ruling in relation to evidence sought to prove that element was not one that affected the final result, in the sense that it affects the final decision. On the other hand, if the decision was based at least in part on evidence which on appeal was shown to have been wrongly admitted (or to have been influenced by the incorrect exclusion of certain evidence sought to be led at the hearing[13]), it can be said that the ruling on evidence has affected the final result.

[30] In the same way, in my opinion the question of whether the ruling on the no case to answer submission affected the final result has to be decided in the light of the situation at the time of the final result, that is to say in the light of the fact that the defendant has gone into evidence, and what followed as a result of that. If in the light of all the evidence the respondent was properly convicted of the offence, then in my opinion the ruling on the no case submission was not one which affected the final result, and therefore the test in Paulger was not satisfied.

[31] That is consistent with the nature of an appeal under s 222: by s 223(1) it is an appeal "by way of rehearing on the evidence (original evidence) given in the proceeding before the justices." That is subject to the power in subsection (2) to adduced fresh, additional or substituted evidence, in which case the appeal is "by way of rehearing on the original evidence and on the new evidence adduced."[14] In an appeal by way of rehearing, the appellate court has to make up its own mind on the evidence before the court,[15] which on the face of s 223 means all of the evidence given in the proceeding before the justices. There is no reason why that should be confined to the evidence given only in the prosecution case, and the evidence given in the defence case disregarded. Furthermore, as a general proposition the court hearing the appeal by way of rehearing can have regard to events that occurred between the time of the decision under appeal and the time of the rehearing.[16] That makes it difficult to justify disregarding events between the ruling and the final decision.

[32] It seems to me that to say that there is an entitlement to have a conviction set aside on the basis of an incorrect ruling that there was a case to answer, in circumstances where the defendant has gone into evidence, notwithstanding that the defendant's evidence overcomes any deficiency on the prosecution case, would be to give a different appeal from the appeal given by the statute, which is specifically an appeal by way of rehearing from the decision by which the complaint was finally determined. An appeal is a creature of statute, and there is only the right of appeal given by the statute. There is the further consideration that the legislature has deliberately repealed the alternative and wider right of appeal under s 209 of the Justices' Act by which formerly a ruling on a decision that there was a case to answer could be directly challenged.

[33] The appellant also referred to the decision in R v Smith [2007] QCA 253 as an example of a case where the refusal of the no case submission in respect of an indictment was entertained by the Court of Appeal. In that case the appellant was not legally represented, and raised a large number of matters in the course of the appeal, including that a submission that there was no case to answer ought to have been upheld; the court without considering this issue simply dealt with the submission on its merits, which in that case was not difficult. I do not think it involved any deliberate determination that such a ground was properly available.

[34] It may well be that in a particular case the ruling can be shown to have affected the final result, though it seems to me that ordinarily if a defendant goes into evidence it will not be possible to do that. In my opinion, as a general proposition, in the case of an appeal under s 222 of the Justices' Act where a defendant has elected to give evidence, the question of whether the final result was correct is to be decided by reference to all of the evidence properly before the court at the end of the case, and the defendant is not entitled to have a conviction quashed on the basis that a no case submission ought to have succeeded if any deficiency in the prosecution case was made good by the evidence subsequently given.

[35] I adopt this approach for the following reasons:

(a) It appears to be consistent with a proper understanding of the decision in Paulger v Hall (supra), which did not deal specifically with the situation where the ruling in question was one on a submission of no case to answer.

(b) For the reasons given earlier, it appears to me to be more consistent with the true nature of an appeal under s 222, in accordance with s 223 of the Act.

(c) It is the approach which has the support of the majority of appellate courts in Australia which have considered the point, so far as my researches have been able to discover; that is to say, it is clearly the rule in Victoria, and it has been supported by decisions of appellate courts in Western Australia, Tasmania and the Northern Territory.

(d) I find the reasoning of those Australian appellate courts which have supported this approach[17] more persuasive than the reasoning in the appellate decisions to the contrary in South Australia and England.

(e) The contrary rule, as adopted in England, seems to me to lead logically to an absurd result, namely the one exemplified in the passage quoted from R v Smith and ors (supra), and to produce the undesirable outcome identified earlier.

[36] In those circumstances, I will not allow the appeal on the first ground raised in the notice of appeal. In case a different view may be taken elsewhere, however, I will briefly express my view as to the merits of the argument. The approach to a submission that there is no case to answer is that laid down by the High Court in May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, at 658, where it was said that this was a question of law, as to whether on the evidence as it stood the accused could lawfully be convicted. If the prosecution evidence, taken at its highest, was such that a jury properly directed could not properly convict upon it, there was no case to answer; where, however, the strength or weakness of a prosecution case depended on the view to be taken of a witness's reliability or on other matters which are in a jury trial regarded as within the province of a jury, and where on one possible view of the facts there was evidence upon which a jury could properly come to the conclusion that the defendant was guilty, then there was a case to answer: R v Sutton [1986] 2 Qd R 72, applying R v Galbraith [1981] 1 WLR 1039 at 1042. In a circumstantial case, whether there was a reasonable explanation of the facts consistent with innocence was a question for the jury: R v Murphy (1985) 4 NSWLR 42 at 69. The court in Sutton added that a trial judge in deciding such a submission does not have to be satisfied beyond reasonable doubt in respect of each element.[18]

[37] The prosecution evidence was that the appellant's cell was searched and what was described as a syringe or cut down syringe was found in it. One prison officer gave evidence that on the relevant date the defendant was "secured in his cell" (p 2) which was identified on the following page as being Cell 1 in Unit A3. He drew a diagram of the cell which became Exhibit 1, which has something identified as a "bed" and on its face looks like the drawing of the layout of a single cell. After he had received information from another prison officer, he went with another prison officer to Cell 1 where he unlocked the door and they searched and found the item which he described as a syringe or cut down syringe (p 5) in the cell wrapped in toilet paper at the bottom of a paper bag being used as a rubbish bag under the desk, under some rubbish: p 4. The appellant denied that he had seen it before.

[38] Photographs of the item became Exhibit 2: p 6. Under cross-examination, while speaking about the search of the cell, he described it as having taken place "in the presence of the inmate".[19] He conceded that he did not test to see whether the syringe worked, but said it appeared to be a syringe: p 8. Another prison officer said that on the day in question he saw another prisoner's hand go through the window of Cell 1; he then went with the first prison officer to Cell 1 which was searched and they found what he described as a cut down syringe. Under cross-examination he conceded that it had no needle in it.

[39] The no case submission was based on two propositions: that there was no evidence that the appellant's cell was one "not shared with another prisoner", and that there was no evidence that the thing in question actually was a syringe, merely some evidence that it looked like a syringe or cut down syringe. As to the former point, although this was not directly stated to be the case by either of the prison officers, the references to its being "his cell" and the fact that the appellant was the only person referred to as being locked in it at the relevant time, and the only person who was present at the time of the search, in my opinion amounted to some evidence from which an inference would be open that it was at the relevant time a room not shared with another prisoner. In relation to the question of drawing inferences, the question of whether any alternative hypothesis is reasonably open is a jury question, and therefore not something that ought to be decided on a no case submission.

[40] Even if s 123(4) could not be relied on, however, it seems to me that there was prima facie evidence of possession, on the basis that it was found in a cell which was described as the appellant's cell. Authority that this is enough to make a case sufficient for the purposes of a no case submission is actually found in Paulger v Hall (supra), in the judgment of Mackenzie J who said at p 297 that there was some evidence that the defendant was the owner for the purposes of a charge where owner was defined as including a person in possession of an animal on the following basis:**

"There was unchallenged evidence that the horse was confined in a paddock on land described as "Mr Paulger's property" and "the defendant's property". In the absence of anything to the contrary there was some evidence that he had possession, custody, control or charge of the animal ..."

**[41] If finding a horse in the defendant's paddock when he is not there is some evidence of its possession by him, finding a syringe in the defendant's cell when he is there is some evidence of its possession by him. The fact that it was found just after something had been passed into the cell by another prisoner, and where the inference was fairly open that nothing else of a suspicious nature was found in the search were also relevant. It seems to me that there plainly was on the face of it some evidence sufficient to defeat a no case submission that the appellant had possession, indeed knowing possession, of the syringe.

[42] As to the question of whether the syringe was a syringe, again it was described as a syringe by the witnesses, and the photographs, though not particularly clear, so far as they go are consistent with that description. It must be borne in mind that a needle is not a necessary part of a syringe as such, the needle being something different from the syringe, which is strictly speaking simply the tube with a nozzle and the plunger, and that is what this item looks like to me. In my opinion there was also sufficient evidence that the item in question was a syringe to defeat a no case submission. In my opinion therefore the no case submission was properly rejected by the magistrate and there was no error of law in this regard.

[43] The next point argued was that it was not shown that the item in question was a syringe. This is not a question of whether there was some evidence, but a question of whether there was evidence on which the appellant was properly convicted. On an appeal by way of rehearing, that requires me to make up my own mind, bearing in mind that the magistrate obviously accepted the evidence of the prosecution witnesses. Indeed, their evidence was not challenged in cross-examination in this regard. Although the actual device was not in evidence, and the photographs are not particularly clear, in my opinion there was sufficient evidence to be satisfied beyond reasonable doubt that the item in question was a syringe, and therefore a prohibited item for the purpose of s 123, and therefore the magistrate's decision in this regard has not been shown to be wrong.

[44] The fact that it was described as a "cut down" syringe does not alter its essential nature, in circumstances where it has been cut down only in the sense of shortening it. That would mean that its capacity would have been reduced, but there was nothing to indicate that the process of cutting down had the effect of preventing what was left of the syringe from functioning as a syringe, albeit with a lower capacity. In those circumstances, ground 2 has not been made out.

[45] The next ground was that there was an error in applying s 123(4), which was related to the matter referred to earlier. Of course, for the purpose of deciding whether the charge was proved it was relevant to have regard to the defendant's evidence, in the course of which he admitted that it was his cell and he did not share it with any other prisoner: p 21. It was proved by appropriate certificates (Exhibit 3 and 4) that at the relevant time he was a prisoner and that he was at a corrective services facility. The evidence of the two prison officers showed that the item in question was found in his cell.[20] In those circumstances, in my opinion, it is clear that subsection (4) did apply and the magistrate did not err in concluding that it did.

[46] The final ground was that the magistrate erred in holding that the effect of s 123(4) was to create an offence of strict liability. At p 3 of the decision the magistrate said that "This particular provision of legislation in my view is a strict liability situation and that is that when a person does have possession of a prohibited item in their possession, well it is a strict liability provision and it does not matter at the end of the day then to say, 'Well, look, I do not know how the item got there.' ... It is a strict liability provision when a person does have a deemed possession of an time and I am satisfied the deemed possession application has application to the present circumstances." There was then a finding that the appellant had possession.

[47] It was submitted for the appellant that this involved a misconstruction of the statutory provision, which simply made the finding of something in the cell evidence of possession, but not conclusive evidence of possession, as was necessary to make it an offence of strict liability; that the magistrate had erred in treating subsection (4) as if it had provided that a prohibited thing found in a prisoner's cell or on a prisoner's person was deemed to be in the prisoner's possession when it was found. On its true construction, the subsection merely made the finding evidence of possession, but it was still necessary for the magistrate to make a finding that there was possession within the ordinary meaning of that term in order to convict the appellant of the charge. Because the magistrate misunderstood the effect of subsection (4) there was no consideration given to the question of whether the ordinary requirements for a finding of possession were satisfied, and the conviction should therefore be set aside.

[48] For the respondent, it was submitted that the effect of subsection (4) when it applied was to render the offence in s 123(2) one of strict liability. It was submitted that subsection (4) was a deeming provision, and that there had been no error on the part of the magistrate in interpreting it in this way. No authority was relied on in support of that interpretation of the subsection.

[49] In these circumstances there was no issue between parties as to the approach in fact adopted by the magistrate, and the question is simply whether that approach was correct on the true interpretation of the statute. In my opinion it was not. Subsection (4) is not expressed as a deeming provision, and ordinary principles of statutory construction would be against giving the words any wider operation than they necessarily carry.[21] The explanatory note to the Corrective Services Bill 2006, which became the Act, said at clause 123(4) that it "provides that a prohibited thing found in a prisoner's room, or on a prisoner, is evidence that the thing was in the prisoner's possession when it was found. This provision is provided to clarify the intent of sub-clause (2)."[22] It is not immediately clear to me how it has the effect of clarifying subsection (2), but it was not said to be a deeming provision, or to extend the operation of subsection (2). In those circumstances, it provides no justification for extending the meaning of the words in subsection (4) on the basis that that is necessary in order to give a purposive construction to the section.

[50] The provisions of s 123(4) may be contrasted with s 129(1)(c) of the Drugs Misuse Act 1986 which provides[23]:**

"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 unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place."

**[51] Even that is not a provision of strict liability; its effect is merely to reverse the onus of proof in relation to this issue.[24] Clearly, however, that provision goes much further than subsection (4). If s 129(1)(c) does not create an offence of strict liability, it is difficult to see how subsection (4) could. There may well be an argument for the imposition of a deeming provision in this section, but that does not mean the legislature has taken that step.

[52] Because of the way in which the prosecution case proceeded, the essential question for the magistrate was whether the prosecution had proved beyond reasonable doubt that the item in question was in the possession of the appellant. The question of what is required in order to show possession for the purposes of a criminal prosecution was considered recently by the High Court in Tabe v R [2005] HCA 59; (2005) 79 ALJR 1890, where it was pointed out that the question of what constitutes "possession", and in particular the extent to which it is necessary to show that there was knowing possession, is a matter which has given rise to some difficulties over the years.

[53] In some circumstances, it is sufficient to show that the defendant had physical possession of the item in question, and that he knew that he had physical possession of that item, without going further and showing that he knew it was an item possession of which was made a criminal offence: that was the conclusion in relation to a substance which was in fact a dangerous drug in R v Clare [1994] 2 Qd R 619.[25] Ordinarily, however, in the absence of some statutory modification, possession involves an element of awareness or at least constructive knowledge of the thing possessed: Tabe (supra) at [143] per Callinan and Haydon JJ. The actual determination of that matter, however, turned on the particular provisions of the Drugs Misuse Act, which are not reproduced in the Corrective Services Act. There are, indeed, no relevant evidentiary provisions in the Corrective Services Act.

[54] As a general proposition and in the absence of sufficient indication of a contrary intention, where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will be a necessary ingredient of the offence, because the words describing the offence ("in his possession") themselves necessarily import a mental element: He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 at 539 per Gibbs CJ. In Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 the court in a joint judgment was concerned with a conviction for an offence against the Customs Act of having possession of a trafficable quantity of cannabis resin. It was proved that a parcel containing a number of items within which cannabis resin was packed was received by the applicant but she had not opened it at the time when the premises were subsequently raided by the police. Clearly she knew she had possession of the parcel, but the court said at p 3 that the charge required proof of knowledge that the cannabis resin was or was likely to be secreted in the parcel, referring to He Kaw Teh.

[55] The decision in He Kaw Teh was applied by the Court of Appeal in Queensland in R v Shew [1998] QCA 333 at [18] where the court also quoted Lord Scarman as saying in R v Boyesen [1982] AC 768 that:

"Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature; but you do not possess it unless you know you have it." (pp 733-4)

[56] In these circumstances, the magistrate has not made a necessary finding, namely a finding that the appellant had whatever knowledge was necessary in order to be in possession for the purposes of the offence. Strictly speaking, it is not necessary for me to decide just what it is that the prosecution has to prove the appellant knew. As is apparent even from the brief survey that I have undertaken, the question of what must be known is one on which different views have been taken, largely depending on the terms of particular legislation. There are in principle a number of possibilities: it was sufficient to show that he knew that he was in possession of something, even if he did not know what it was; or, it was necessary to show that he knew he was in possession of a prohibited thing, without necessarily knowing what particular prohibited thing; or, it was necessary to show that he knew that what he had was the syringe. There may be other possibilities.

[57] I did not hear full argument on this, and indeed it was probably not necessary for me to do so, since the issue before me was whether the magistrate was wrong in concluding that the effect of subsection (4) where it applied was to make the offence one of strict liability. The respondent submitted that the magistrate was correct in that proposition, but in my opinion that was an error, and (subject to the question of whether there should be a new trial) the question of what has to be shown by way of knowledge in order to show that he was at the relevant time in knowing possession of the item can be debated at that trial.

[58] I dislike sending a matter back on the basis that it is necessary to make an additional finding, without being able to be precise as to just what that finding has to be, and I appreciate that that is unhelpful from the point of view of the magistrate who has to conduct the retrial. Unfortunately, in circumstances where I have not heard detailed argument as to what the magistrate should have decided, it would not be appropriate for me to arrive at any definite conclusion upon that point, and in any case it may be that any such conclusion would be mere obiter.

[59] Obviously there was a conflict of evidence before the magistrate, which it seems to me ultimately the magistrate did not resolve. On the evidence before the magistrate, however, it would have been open to the magistrate to find that the syringe had been passed to the appellant by another prisoner and that the appellant, having found out what it was, then proceeded to hide it as best he could, an action which itself suggests some knowledge that it was a prohibited item, and one might well expect that that knowledge would be obtained only by seeing what it actually was. On the evidence before the magistrate it would have been open to the magistrate to convict, though that would have depended on the magistrate's rejecting the evidence of the appellant. It also occurs to me that the approach to subsection (4) may have affected the extent of the evidence led, and more evidence may have been led if it had been appreciated by the respondent that it was necessary to show more than just that the item was found in the appellant's cell.

[60] Accordingly the appeal is allowed, the conviction is set aside, and the matter is remitted to the magistrates court for retrial.**

[1] This conclusion was confirmed by the Court of Appeal in Coulter v Ryan [2006] QCA 567; [2007] 2 Qd R 302.

[2] Evgeniou v The Queen (1964) 37 ALRJ 508.

[3] By Neasey J at pp 60-1; Crisp J expressed the same rule without citing Power at p 62, but dissented on other grounds. Crawford J considered and rejected the submission that there was no case to answer.

[4] Cross on Evidence (Australian Edition) describes this as an unsuccessful endeavour to distinguish Power: [11,095] n 12.

[5] The judgement on the following page noted that counsel for the prosecution made no attempt to defend what was said in R v Power.

[6] Reference was not made to the comment in Prashar (supra).

[8] R v Aston and Hadley (1970) 55 Crim App R 48; R v Cockley (1984) 79 Crim App R 181. The former case did not raise the issue at all, as there was apparently no evidence led after the no case submission failed, and the point was not mentioned by the court.

[9] He evidently did not regard this as something which necessarily followed.

[10] I discussed this issue, and relevant authority, in Marshall v Avery [2006] QDC 356.

[11] As appears to be the practice in New South Wales: see Antoun v R [2006] HCA 2; (2006) 80 ALJR 497.

[12] Sadly, these days the fact that the evidence was not objected to during the trial does not necessarily mean that this would not happen: see eg R v Hess [2008] QCA 48.

[13] As in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

[15] Stevenson v Yasso [2006] 2 Qd R 150 at 162; Parsons v Raby [2007] QCA 98 at [24].

[16] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 107 per Dixon J; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23].

[17] In particular, the reasoning of Winneke CJ in Wood quoted at [8].

[18] R v Sutton was decided on a case stated under s 669A of the Code; unfortunately, from my point of view, the court declined to go on and decide whether it was correct in law that the defence evidence could not be taken into account to determine if there was a case to answer, on the ground that the question did not arise in the trial and was hypothetical: p 79.

[20] That also appears to have been admitted by the appellant at p 21.

[21] R v Adam [1935] HCA 62; (1935) 53 CLR 563 at 567-8.

[22] Explanatory notes 2006 Vol 1 p 1027.

[23] This was formerly s 57(c) and is referred to by that number in Tabe.

[25] This view, however, was rejected by Hayne J, one of the dissenting judges, in Tabe: [103].

Corrective Services Regulation 2006

District Courts Act 1958s 156

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (131 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (19)