A9/1985 – Lowe v Goodluck
Supreme Court (Underwood J)
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Serial No. 9/1985
List “A”
File No. LCA 4/1985
ROBERT JAMES LOWE v. GOODLUCK
REASONS FOR JUDGMENT
UNDERWOOD J.
13th March 1985
The respondent was charged with having had in her possession on 22nd November 1984 a
prohibited substance, namely cannabis, contrary to s.55(1)(c) of the Poisons Act 1971. At the
close of the case for the prosecution counsel for the defendant submitted to the magistrate that
there was no case to answer. The magistrate upheld that decision and dismissed the complaint.
The complainant seeks to review that decision upon the grounds that the learned magistrate erred
in fact and in law in upholding the submission and dismissing the complaint.
The submission of no case to answer.
Counsel for the applicant argued that the learned magistrate erred in holding that he had a
discretion to dismiss the complaint upon the submission of no case to answer even if there was
evidence upon which the defendant
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could be lawfully convicted.
It was conceded that the learned magistrate was correct when he said:–
“The test is succinctly stated time and again that the question is not
whether the person charged could be convicted, should be convicted,
rather, but whether on the evidence a tribunal, properly directing itself, or
a jury properly directed, could convict the person of the charge brought
against them.”
That is a question of law. Whether, at the end of all the evidence the tribunal is satisfied to the
requisite degree of the guilt of the defendant is a question of fact.
However, later in his reasons the learned magistrate referred to Wilson v. Kuhl (1979) V.R. 315
and adopted, as a correct statement of the law upon a submission of no case to answer, the
following passage:–
“In a case where there is evidence which, if accepted, would provide
evidence of each element of the charge, a magistrate may still, in some
cases, be entitled to exercise a discretion to dismiss the information
without calling on the defendant. Where, technically, there is evidence
on which the defendant could lawfully be convicted but the magistrate
concludes that there is a mere scintilla of evidence, although the evidence
is so lacking in weight or reliability that no reasonable tribunal could
safely convict on it he may dismiss the information.”
Counsel for the applicant submitted that the learned magistrate thereby fell into error. In Wilson
v. Kuhl (supra) Mr. Justice McGarvie held that in appropriate cases there were
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two steps open to the magistrate upon a submission of no case to answer. The first was a matter
of law as stated by the High Court in May v. O‘Sullivan (1955) 92 C.L.R., 654 and Zanetti v. Hill
(1962) 108 C.L.R., 433. The second was a matter of discretion for the magistrate to exercise. In
holding that a magistrate had a discretion to dismiss a complaint in the circumstances set out in
the passage cited by the learned magistrate (supra), his Honour relied upon the decision of R. v.
Mansfield (1977) 65 Cr.App.R., 276. Subsequent to the decision in Wilson v. Kuhl (supra), R. v.
Mansfield was considered by the Court of Appeal in R. v. Galbraith (1981) 1 W.L.R., 1039, and
the proposition that there existed a discretion to hold that there was no case to answer, even if
there was evidence upon which the defendant could lawfully be convicted was not accepted.
Lord Lane C.J. said, at p.1042:–
“How then should a judge approach a submission of ’no case‘? (1) If
there has been no evidence that the crime alleged has been committed by
the defendant, there is no difficulty. The judge will of course stop the
case. (2) The difficulty arises where there is some evidence but it is of a
tenuous character, for example, because of inherent weakness or
vagueness or because it is inconsistent with other evidence. (a) Where
the judge comes to the conclusion that the prosecution evidence, taken at
its highest, is such that a jury properly directed could not properly
convict upon it, it is his duty, upon a submission being made, to stop the
case. (b) Where however the prosecution evidence is such that its
strength or weakness depends on the view to be taken of a witness’
reliability, or other matters which are generally speaking within the
province of the jury and where on one possible view of the facts there is
evidence upon which a jury could properly come to the conclusion that
the defendant is guilty, then the judge should allow the matter to be tried
by the jury ... There will of course, as always in this branch of the law, be
borderline cases. They can safely be left to the discretion of the judge.”
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This question was considered by the South Australian Supreme Court in R. v. Prasad (1979) 23
S.A.S.R., 161, and by this Court of Criminal Appeal in Ling v. R., Tas. unreported, Serial No.
521981. In both cases it was held that the law applicable upon a submission of no case to answer
was that laid down by Lord Lane C.J. in R. v. Galbraith, and cited above. At p.4 of his reasons
for judgment in Ling v. R. (supra), Green C.J., said:–
“In my view the law in this State is as laid down in The Queen v. Prasad
(supra) and R. v. Galbraith (supra) provided that the statement in the
passage from the Lord Chief Justice‘s judgment in the latter case set out
above that ’borderline cases ... can safely be left to the discretion of the
judge‘ is understood as referring to the determination of the question of
into which category a particular case falls and not read as meaning that in
borderline cases a judge has a discretion whether or not to withdraw the
case from the jury. The latter construction would, I think, be inconsistent
with the tenor of the rest of the judgment.”
Thus, the finding by the learned magistrate that he had a discretion to uphold the submission of
no case to answer, even if there was evidence upon which the respondent could be convicted was
erroneous, but such error does not determine this motion to review. It is necessary to go further
and consider the evidence that was before the learned magistrate to ascertain if it was such that
he could have, as a question of law, convicted the respondent.
The evidence.
At about 8.40 p.m. on the 22nd of November 1984 several police officers, having first obtained a
search warrant, visited premises at 32 Federal Street, Hobart. It was a five bedroom
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house. The respondent was not present when the police arrived at the house but two other
persons were. One of the rooms contained a mattress and some belongings with the respondent’s
name on them. In this room there were found two plastic bags containing cannabis. One was
found inside a “leather–type handbag” which also contained a number of other items including a
bottle of antibiotic tablets with the respondent‘s name on the label; the other was found in the
side pocket of a “brown leather–type carry–bag”. Not long after the finding the respondent, in
company with four other females, arrived at the house. The respondent and another were taken to
the police station where, according to the evidence of Detective Jones, the following
conversation occurred:–
“Det. Jones: ... at the office I spoke to the defendant in the presence of
Constable Cowling. After cautioning her, I said ’As I explained to you
earlier, these bags of cannabis were found in these two bags in your
bedroom‘. I indicated which bags of cannabis were found in which bags.
I said ’Who does the cannabis belong to Melanie?‘ She said, ’I‘d rather
not answer that’. ... I said ‘Are these two bags yours?’ She replied ‘Yes’.
I said ‘Has anybody else used these bags?’ And she said ‘No’. I said
‘Does anybody else use your bedroom?’ She said ‘I don’t want to answer
any more questions.‘”
Thereafter the respondent was charged and subsequently released on bail. The bail bond
document was completed by a police officer from particulars supplied by the respondent and
signed by her. In that document she was described as “Melanie Jane Goodluck of 32 Federal
Street, Hobart.”
There was no other evidence which tended to prove that the respondent lived at 32 Federal Street
or occupied the room where the cannabis was found apart from that contained in the following
exchange:–
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“Mr. Hodgman: No. And bluntly I put it to you, you don’t claim that Miss Goodluck slept
or resided at 32 Federal Street on either the 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th,
15th, 16th, 17th, 18th, 19th, 20th or 21st of November?
Det. Jones:
I just know that at some time during the search I was told that she was
living there.
Mr. Hodgman: But you know about hearsay, you‘ve done law, you know the laws of
evidence don’t you? I‘m not concerned about what somebody else might have said. I’m
concerned about what she said. Now at any time did she say to you, Miss Jones, that she
had been living at 32 Federal Street?
Det. Jones:
I can‘t recall. I’m sorry.”
Counsel for the respondent submitted that Detective Jones‘ first answer was not responsive to his
question, was hearsay and therefore should not be taken into account when considering whether
there was a case to answer. Irrespective of whether the answer was responsive to the question, I
do not think that the answer given by Detective Jones does any more than establish that she held
a belief that the respondent resided at the premises and that belief was based upon information
she had received from a person or persons other than the respondent. The answer is irrelevant to
the issues and does not tend to establish the fact of the respondent’s residence at 32 Federal
Street. See Hughes v. Nat. Trustee, Executors and Agency Co. (1979) 143 C.L.R., 134.
It was common ground that there was no evidence upon which the learned magistrate could have
found that the respondent had knowledge of the existence of the two bags of cannabis.
Consequently, counsel for the respondent contended that there
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was no evidence upon which it could be found that the respondent was in possession of a
prohibited substance as knowledge of the existence of the substance was an essential ingredient
in the offence of being in possession of such a substance. Counsel for the applicant sought to rely
upon the provisions of s.3(3) of the Poisons Act 1971, and submitted that evidence of knowledge
of a prohibited substance was not required.
The extent of the operation of s.3(3).
Deeming provisions are not uncommon in statutes designed to control the use of drugs. There is
a striking similarity between the provisions of s.3(3) of the Poisons Act 1971 (Tas.) and s.5 of the
Drugs, Poisons and Controlled Substances Act 1981 (Victoria). The Tasmanian section may well
owe its existence to the now repealed s.28 of the Poisons Act 1962 (Vic.). See also s.5(2) of the
Poisons and Dangerous Drugs Ordinance 1933 (A.C.T.)
S.3(3) of the Poisons Act (Tas.) provides:–
“Without restricting the generality of the expression ‘possession’, a
substance or plant shall, for the purposes of this Act, be deemed to be in
the possession of a person so long as it is on any land or premises
occupied by him or is enjoyed or controlled by him in any place or is in
his order and disposition unless he proves that he had no knowledge of
the substance or plant.”
The ambit of the subsection has been adverted to by Neasey J. in Barrett v. Broughton (1978)
Tas. S.R., 39 and Cosgrove J. in Munday v. Lowe, Tas. unreported, Serial No. 191980, p.8, but
its full meaning and effect have not yet received judicial consideration.
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The subsection is not expressed to be confined in its operation to those sections of the Act which
make it an offence to be in possession of a specified substance. The breadth of operation of
deeming provisions was considered by the Full Court of South Australia in R. v. Billick and
Starke, unreported, 21st February 1984. The court held that s.5(5) of the Narcotic and
Psychotropic Drugs Act 1934 (South Australia) which provided:–
“A person shall be deemed to have a drug to which this Act applies in his
possession if the drug is in the disposition of that person.”
was confined in its operation to charges of being in possession of a drug. King C.J. said, at
p.11:–
“The word ‘deemed’ is used in statutes in more than one sense. In the
subsection under consideration it is used to create a rebuttal statutory
presumption of the existence of a fact irrespective of the existence of that
fact in reality. The result may be a statutory fiction. In construing a
provision of that kind, ‘it is very important to consider the purpose for
which the statutory fiction is introduced’ Muller v. Dalgety & Co. Ltd.
(1909) 9 C.L.R., 693 per Griffits C.J. at 696. In Re Coal Economising
Gas Company (Gover‘s case) (1875) 1 Ch. 182 at 189; Beale on Cordil
(sic) Rules of Statutory Interpretation, 3rd edn., p.479. Where, as here,
the fact which is deemed to exist, is a criminal state of mind, it is
particularly necessary, in my view, to ascertain the purpose for which the
presumption was created, and to construe the statutory provision in a way
which confines the operation of the presumption, to the attainment of that
purpose.”
And at p.14:–
“Because deeming provisions are of many kinds and appear in a variety
of guises and contexts, it is unsafe to generalise about their application.
No doubt many deeming provisions, particularly those
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relating to formalities, are intended to have and ought to be given a
general application. Generally speaking, however, where a fact which
constitutes an ingredient of an offence, being an ingredient which is not
merely formal but which is the gist of the criminality aimed at is deemed,
either presumptively or conclusively, to be true, there are great dangers
in extending the application of the presumption beyond the facilitation of
the proof of the particular offence.”
The Narcotic and Psychotropic Drugs Act (S.A.) is distinguishable from the Poisons Act (Tas.)
in that the deeming provision in the former and referred to in Billick v. Starke forms part of a
section that creates a number of different offences and contains different deeming provisions.
Whereas s.3(3) of the Poisons Act forms part of a section which is exclusively devoted to
providing definitions having a general application to all the provisions in the Act. In my view
s.3(3) applies to the word “possession” wherever appearing in the Act. For instance, it applies to
s.47(7) which provides that, upon a charge of trafficking in narcotics, possession of more than a
specified amount of a narcotic is deemed to be evidence of possession for the purpose of
trafficking and s.3(3) applies so that such possession is deemed to exist in the circumstances set
out in that subsection. In considering the effect of the then equivalent sections in the Poisons Act
1962 (Vic.), the Full Court in R. v. Elem (1982) V.R. 295 said, at p.299:–
“The combination of section 28 [s.3(3)(Tas)] and 32 [s.47(7) (Tas.)] can
thus be seen to be Draconian legislation. They have been introduced into
the Poisons Act in order to attempt to deal with a particularly dangerous
type of offence and one which it is no doubt felt demands Draconian
treatment. It behoves the courts, however, to be astute to see that
provisions of this kind are strictly construed and fairly applied. It is
contrary to the traditional concepts of our criminal law that a person
should upon his trial be required to answer a charge proved by deeming
provisions such as are found in s.28, but it is undoubtedly within the
power of Parliament to reverse the onus of proof in criminal proceedings.
That is the effect of s.28. But the deeming provisions should be allowed
no greater operation or effect than Parliament has expressed. The form of
s.32(5) differs from that of s.28, but it has a similar effect. Although it is
properly described as an evidentiary provision, it has the effect of
attaching a particular quality
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to an accused’s possession of a specified drug or of requiring him to
show by evidence that his possession was not for the stated purpose.”
However, for the purpose of this appeal it is unnecessary to do more than examine the
application of s.3(3) of the Poisons Act (Tas.) to the provisions of s.55(1)(c) with reference to the
evidence given upon the hearing of the complaint against this applicant.
Physical elements of possession.
In Towers & Co. Ltd. v. Gray (1961) 2 Q.B. 351, Lord Parker C.J. said, at p.361:–
“The term ‘possession’ is always giving trouble.” [That is no doubt due
to the proposition stated by Viscount Jowitt in United States of America
and the Republic of France v. Dollfus Mieg et Cie S.A. and Bank of
England (1952) A.C. 582 at 605;] “The English law has never worked
out a completely logical and exhaustive definition of possession ... In
each case the meaning must depend ... on the context in which the word
is used.”
Pollock and Wright, “An Essay on Possession in the Common Law” in the chapter dealing with
possession and trespass generally in relation to the law of theft at p.118 et seq, state that
possession of movable objects involves three different concepts.
Firstly, possession is used to describe physical possession, a fact which will exist when:–
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“a person is in such a relation to a thing that, so far as regards the thing,
he can assume, exercise or resume manual control of it at pleasure, and
so far as regards other persons, the thing is under the protection of his
personal presence, or in or on a house or land occupied by him, or in
some receptacle belonging to him and under his control.”
Secondly, possession is used to describe a legal relationship of a person to a movable object with
respect to other persons. This legal possession may or may not exist without physical possession.
It is a legal concept and not a fact.
Thirdly, possession is used to describe a right to possession. Such a right is often, but not
necessarily, synonymous with ownership.
Moore v. Burke (1919) 26 C.L.R., 265 was a decision concerning the expression “actual
possession” in the Police Offences Act (Victoria). The judgment of the Court referred to the
definition of physical possession set out in Pollock and Wright and held that the words “actual
possession” while including circumstances where the accused had the object in his immediate
possession extended to include circumstances where the accused had a right or power to place
his hands upon the object provided that such right was exercisable to the exclusion of all others,
except those acting in concert with him.
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In Williams v. Douglas (1949) 78 C.L.R. 521 it was held that “possession” was a reference to de
facto possession and did not extend to constructive possession. In the joint judgment of three of
the Justices at p.526, it was said:–
“... but de facto possession is a conception which is itself much more
extensive than that of physical custody. It is wide enough to include any
case where the person alleged to be in possession has hidden the thing
effectively so that he can take it into his physical custody when he
wishes and where others are unlikely to discover it except by accident.”
This proposition was approved in R. v. Bush (1975) 1 N.S.W.R., 298.
S.3(3) of the Poisons Act preserves the generality of the expression “possession” which means
actual or de facto possession including not only immediate control of the thing said to be
possessed but also a capacity to assume or exercise control at will, provided such capacity to
assume or exercise control is to the exclusion of all others except those acting in concert with the
alleged possessor. This is a question of fact. Whether or not the requisite relationship between
the alleged possessor and the thing said to be possessed is such that de facto possession exists
will depend upon the circumstances of each case.
Mental elements of possession.
The criminal law is often faced with the difficulty of defining the degree of knowledge required
to be proved before possession is established. It seems to be clear that in the absence of special
legislative provisions such
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as s.3(3), possession cannot be said to exist regardless of the physical relationship between the
alleged possessor and the thing said to be possessed, unless it is shown that the possessor had
knowledge of the existence of the thing possessed. In Lockyer v. Gibb (1967) 2 Q.B., 243 at 248
it was said:–
“In my judgment it is quite clear that a person cannot be said to be in
possession of some article which he or she does not realise is, for
example, in her handbag, in her room, or in some other place over which
she has control. That I should have thought is elementary; if something
was slipped into your basket and you had not the vaguest notion it was
there at all, you could not possibly be said to be in possession of it.”
In Williams v. R. (1979) 53 A.L.J.R., 101, Aickin J. said, at p.108:–
“It is necessary to bear in mind that in possession there is a necessary
mental element of intention, involving a sufficient knowledge of the
presence of the drug by the accused. No doubt in many cases custody of
an object may supply sufficient evidence of possession, including the
necessary mental element, but that is because inference of knowledge
may often be properly drawn from surrounding circumstances.”
Even in cases involving strict liability, where mens rea is not required to establish the offence of
possession, knowledge of the existence of the substance must be proved before possession can be
said to exist. See R. v. Warner (1969) 2 A.C. 256 and R. v. Bush (supra). The required
knowledge or belief is knowledge or belief of the existence of the thing said to be possessed.
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It might be said that for the purposes of the criminal law there are three different categories of de
facto possession:–
(1)
Possession without knowledge of the existence of the substance.
(2) Possession with knowledge of the existence of the substance but without knowledge
of the nature or characteristics of the substance.
(3) Possession with knowledge of both the existence of the substance and its nature and
characteristics.
Sometimes the legislation will raise the additional question of whether possession requires proof
not only of knowledge of the existence and nature of the substance but proof that such possession
was accompanied with mens rea. This was considered by the court in R. v. Warner (supra). The
majority view was that upon the proper construction of the Drugs (Prevention of Misuse) Act
1974 mens rea was not an ingredient in the offence of unauthorised possession. Proof of de facto
possession with knowledge of the existence of the substance was sufficient to sustain a
conviction. At p.295 Lord Morris said:–
“I think that before the prosecution can succeed they must prove that a
person knowingly had in his possession something which in fact was a
prohibited substance. In my view, the prosecution has discharged that
onus in this case. Was it, however, for the prosecution to prove that the
appellant knew the nature and quality of that which he had? In my view,
it was not. The evidence proved what the appellant had in his possession
was B–aminopropylbenzine or a salt of that substance. I cannot think,
and indeed it could hardly be suggested, that the intention of Parliament
as shown by the words of the enactment was that it had to be proved by
the
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prosecution that the appellant, being consciously in possession of
something was in fact consciously in possession of what he knew to be a
salt of B–aminopropylbenzine.”
At p.307 Lord Pearce said:–
“The act forbids possession of these drugs. Whether he possessed them
with an innocent or guilty mind or for a laudable or improper purpose is
immaterial since he is not allowed to possess them. If he possessed them
he is guilty. If a man has physical control or possession of a thing that is
sufficient possession under the Act provided that he knows he has the
thing.”
The meaning of “possession” will depend upon the statutory context in which it appears. See
Webb v. Baker (1916) 2 K.B., 753; Towers & Co. Ltd. v. Gray (supra).
R. v. Rawcliffe (1977) 1 N.S.W.R., 219 was a decision of the Court of Appeal of New South
Wales specifically convened to construe the provisions of s.233B of the Customs Act 1901–1975
which provided (inter alia):–
“Any person who without any reasonable excuse (proof whereof shall lie
upon him) has in his possession ... any prohibited imports to which this
section applies shall be guilty of an offence.”
The Court held that in the context of the statute in which the word appeared, “possession” was
determined by an objective state of affairs. If the accused had a prohibited substance in his
control [in the extended sense
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of that word] he was in possession of it for the purposes of s.233B. The Court approved its
earlier decision in R. v. Bush (supra), and R. v. Aouad (1977) 1 N.S.W.R. 248.
At p.231 O‘Brien J. said:–
“It is, I think, clear from the judgment in Boucher’s case and the
authorities there cited that the meaning of the word ‘possession’ in
statutory provisions, especially those creating criminal offences, often
give rise to difficulty, but must ultimately depend on its context, that is to
say, upon the proper interpretation of the provision in which it occurs. In
its ordinary use in relation to movable things it refers to what Pollock
and Wright in their work ‘Possession in the Common Law’ (1888)
describe as physical possession or what the High Court in Williams v.
Douglas describe as de facto possession or exclusive physical control. In
order that a person should have exclusive physical control of an article,
some knowledge or intention in him is necessary to associate him with
control of the article, but this mental element extends no further than that
inherent in such control, namely, the intention to have exclusive physical
control of the article itself, or some other article, or some place wherein
it is in fact carried or contained or located. It is not inherent in that
mental element that the person should know or suspect, or have reason to
suspect, just what the article is or that it is in fact carried or contained or
located in some other article or place over which he has by intention the
exclusive physical control.”
His Honour then went on to review the English cases such as Sweet v. Parsley (1970) A.C. 132
and R. v. Warner (supra) and the Australian cases such as Meagher v. Musson (1934) 52 C.L.R.,
100 and Thomas v. R. (1937) 59 C.L.R., 279. Turning to R. v. Aouad (supra) and R. v. McGrath
(1971) 2 N.S.W.R., 181 his Honour set out in some detail the relevant provisions of the Poisons
Act (N.S.W.) and at p.241 said this:–
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“A general consideration of the provisions of the Act and of the fact that
where it specifically provides any matter of exception or defence, it
provides also that the burden of proving any such matters shall lie on the
defendant, leads me to the view that while s.9(1)(b) of the Act as
properly interpreted, displaces the presumption that the prosecution must
prove that the person charged had knowledge of the facts which
constitute the offence, it does not, expressly or by implication, exclude
the exculpatory principle by which the person charged may, by way of
defence prove an honest belief on reasonable grounds in the existence of
circumstances which, if true, would make innocent that with which he is
charged. He may, therefore, in an appropriate case exculpate himself for
example, by proving that he neither in fact knew or ought to have known,
that what he was supplying was a restricted substance.”
The correctness of R. v. Bush and R. v. Rawcliffe was affirmed in R. v. Kennedy (1979) 25 A.L.R.
317. On the 6th December 1984 in He Kaw Teh v. R. the High Court reserved its decision upon
the question of the degree of knowledge required to be proved and whether mens rea was an
ingredient in offences against s.233B of the Customs Act. At the time of writing these reasons
that decision has not been handed down.
S.3(3) of the Poisons Act (Tas.) has the effect of deeming a person to be in possession of a
prohibited substance if that substance is, at the relevant time, in one or more of the physical
relationships to that person set out in the subsection. Those physical relationships are more
extensive than those which constitute de facto possession as defined in cases such as Moore v.
Burke and R. v. Williams where the legislation being considered contained no deeming
provisions. By virtue of s.3(3) in cases where the relationship between the person and the
substance is other than one of immediate custody, possession will be deemed to exist
notwithstanding that the capacity to assume or exercise
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control may be inhibited in some way or is not exercisable by the alleged possessor to the
exclusion of all others. Upon proof of the existence of a prohibited substance in one or more of
the places specified in the subsection, the deeming provision will operate to establish possession
unless the defendant proves, on the balance of probabilities, that he had no knowledge of the
substance. If he establishes merely that the relationship between him and the substance did not
exist to the exclusion of all others except those acting in concert with him, possession will still be
deemed to exist by virtue of s.3(3). Cf. Moore v. Burke. It is to be noted that since amending Act
No. 10002 of 1983 the position in Victoria is no longer the same as it is in Tasmania. The
Victorian Act now provides:–
“Without restricting the meaning of the word ‘possession’, any substance
shall be deemed for the purposes of this Act to be in the possession of a
person so long as it is upon any land or premises occupied by him or is
used, enjoyed or controlled by him in any place whatsoever, unless the
person satisfies the court to the contrary.”
All reference to knowledge has been deleted from the section.
In See v. Milner (1980) 2 Aust. Crim.R., 210 the Full Court of the Federal Court considered the
Public Health (Prohibited Drugs) Ordinance 1957 (A.C.T.) and the Poisons and Dangerous
Drugs Ordinance 1933 (A.C.T.). The former Ordinance created an offence of being in
possession of a prohibited substance but contained no deeming provision. The latter Ordinance
created a similar offence and contained a deeming provision (s.5(2)) which is for all practical
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purposes identical in its terms to s.3(3) of the Poisons Act (Tas.).
In a joint judgment, after restating the proposition that interpretation of the word “possession”
depends upon the statutory context within which it appears, the Court considered what, if any,
mental element was involved in the word “possession” in both Ordinances. As in R. v. Rawcliffe
the Court canvassed the English and Australian cases and came to the conclusion that the A.C.T.
Ordinance which contained no deeming provision bore greater similarity to the legislation before
the Court in R. v. Warner than that which was before the Court in both R. v. Bush and R. v.
Rawcliffe. The Court held that the offence of possession in that Ordinance was an absolute
offence but acknowledged the correctness of the principle set out in Lockyer v. Gibb that
possession in the criminal law must (in the absence of a deeming provision to the contrary)
involve some element of knowledge and said in conclusion on this point, at p.222:–
“It is clear from the cases cited that some mental element is necessary to
establish possession but the extent of that element depends upon the
particular legislation under consideration and upon the circumstances
surrounding the alleged offence.”
Turning to the question of a charge of possession laid under the Ordinance which contained a
provision similar in terms to s.3(3) of the Poisons Act (Tas.) the Court dealt with all aspects of
knowledge by saying, at p.223:–
“The question of possession does not arise in the methaqualone charge
because it is laid under the Poisons and Dangerous Drugs Ordinance
1933, s.5(2) of which provides ... ”[and the words of the section were
there set out].
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S.3(3) of the Poisons Act (Tas.) has the effect of establishing possession upon proof of one or
more of the factual matters set out in the subsection unless the defendant proves, upon the
balance of probabilities, he had no knowledge of the existence of the substance.
The difficulties involved in distinguishing between mens rea and the degree of knowledge
required to be proved before possession is made out, which troubled the Court in R. v. Warner,
do not arise in the Poisons Act (Tas.). The distinction between these two mental elements is not
always readily apparent and often becomes blurred. See “The Mental Elements of Possession” by
John de Meyrick (1984) 58 A.L.J., 202.
If there is sufficient evidence of the objective facts to prove one or more of the factual matters set
out in s.3(3) and the defendant fails to prove lack of knowledge of the existence of the substance
then possession is deemed to exist by virtue of the operation of the subsection. Mens rea
becomes irrelevant.
If the defendant establishes on the balance of probabilities, lack of knowledge of the existence of
the substance, the deeming provision will not apply and obviously there can be no mens rea in
the absence of such knowledge.
In the present case, while there may be some doubt as to whether there was sufficient evidence
upon which the learned magistrate could have found that the applicant occupied the house in
which the prohibited substance was found, it is clear that there was sufficient evidence upon
which he could have found
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that it was controlled by her or in her order and disposition. The prohibited substance was found
in two plastic bags. One of those plastic bags was in a handbag and the other in an overnight bag.
These two bags were owned and used exclusively by the applicant, and from such facts the
learned magistrate could have inferred that the prohibited substance was in her control or in her
order and disposition. For so long as it remained in the bags which were owned and used only by
the applicant it was open to the learned magistrate to draw the inference, in the absence of
evidence to the contrary, that the prohibited substance was in her possession within the meaning
of s.3(3) of the Poisons Act. Accordingly, there was a case for the applicant to answer.
Conclusion.
I am of the opinion that the learned magistrate erred in law:–
(1) in holding that there was a discretion to uphold a submission of no case to answer
even though there was evidence upon which a tribunal of fact could have found the matter
of complaint proved; and
(2)
in holding that there was no case to answer.
The appeal is allowed, the order dismissing the complaint will be quashed and the matter of
complaint remitted to another magistrate for determination.