Christiansen v Queensland Police Service [2017] QDC 301

DISTRICT COURT OF QUEENSLAND CITATION: Christiansen v Queensland Police Service [2017] QDC 301 PARTIES: CYDNEY JANE CHRISTIANSEN (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: D 2015/17 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 of Justices Act 1886 ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 10 November 2017 (ex tempore) DELIVERED AT: Brisbane District Court HEARING DATE: 10 November 2017 JUDGE: Horneman-Wren SC DCJ ORDER: 1. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – where appellant convicted after summary trial of one charge of possession of a dangerous drug and one charge of possessing utensils or pipes – where the appellant submits that prosecutions failed to prove beyond a reasonable doubt that she had the requisite knowledge and control of the drugs and utensils – where the appellant contends that the search conducted by police was illegal – where the learned Magistrate properly applied the extended definition of possession under s129(1)(c) of the Drugs Misuse Act – whether the police conducted a search without warrant correctly under s609 and s160 of the Police Powers and Responsibilities Act – where appeal dismissed COUNSEL: The appellant appeared in person Ms E J Jary for the respondent SOLICITORS: Office of the Director of Public Prosecutions for the respondent -- 1 of 7 -- 2 [1] HIS HONOUR: On 10 May 2017 a Magistrate sitting in the Brisbane Magistrates Court convicted the appellant Cydney Jane Christiansen of one charge of possession of a dangerous drug, being cannabis, and one charge of possessing utensils or pipes. The appellant appeals against her conviction for those offences. She was, on the same occasion, convicted of one charge of assault or obstruct a police officer which occurred on a later occasion. She does not appeal that conviction. [2] She was fined $900 which was referred to the State Penalties Enforcement Registry. The grounds of Ms Christiansen’s appeal are that the prosecution failed to prove that she was guilty of knowledge and control of the drugs and the utensils beyond a reasonable doubt and that the search which led to their discovery was illegal. [3] The drug-related offences of which Ms Christiansen was convicted, and from which she appeals, were alleged to have occurred on 10 June 2016. Senior Constable Gavin Scaggiante gave evidence that on the morning of 10 June 2016, at about 3.30 am, he and other police attended at property, being unit 3, number 4 Nicol Street, in Stafford. He gave evidence that the police had been assigned to attend at that time and place by the Queensland Ambulance Service to assist them in relation to a phone call that they had received to attend to Ms Christiansen, allegations having been made to the ambulance by an informant that she may have overdosed on a drug. It was for reasons due to the safety of the ambulance officers that police were requested to attend. [4] The Senior Constable gave evidence that when police attended and, having spoken to the defendant, broken glass was observed and, that there was mention of a possible assault, in the description of the job which they had been assigned he gave evidence that the police then assumed that domestic violence may have occurred and, due to that, announced that they were going to investigate a domestic violence matter as well. He gave evidence of having entered the apartment and said that he conducted a search: Just for the chance of finding other persons involved in domestic violence to be in the unit possibly hiding anywhere. [5] He said that at the address at the time it was just the defendant. He then gave the following evidence: We searched the unit. I – when I entered the – her bedroom – or the sole bedroom of the unit, I opened a large built-in wardrobe, as I have had previous occasions where people have hidden it in there, and I observed to be a homemade waterpipe and a bowl next to it. I was also being followed by the defendant saying that – asking me to get out of the room as no one was hiding in the room. I could also smell a smell consistent to be what I believed to be burnt cannabis. We then went to the lounge – loungeroom area and continued the investigation in domestic violence and also for Queensland Ambulance to assess the defendant. [6] A recording of the events described in evidence by the Senior Constable, recorded on a body camera worn by him at the time, was then played to the court. That recording has also been played in the course of the appeal proceedings. Indeed, a further recording taken later in the morning when police were seizing the various items has also been played, although, it was not played before the learned Magistrate. Whilst section 223(1) of the Justices Act 1886 provides an appeal under section 222 is by way of a rehearing on the evidence, given in a proceeding before Justices, subsection -- 2 of 7 -- 3 (2) provides that the District Court may give leave to adduce fresh additional or substituted evidence if the court is satisfied there is special grounds for giving leave. [7] The appellant, Ms Christiansen, wished the second recording to be played because it contained, amongst other things, a statement made by another of the police officers in the course of recording where that officer said: Here you are in pretty major trouble taking the wrap, possibly, for his shit. [8] The appellant’s contention is that that remark leads to the reasonable conclusion that the police themselves had doubts that the items in the wardrobe belonged to the defendant. The items are the utensils and the drugs found in the wardrobe. Ms Jary, who appears for the respondent police service, did not oppose the application for leave to adduce that further evidence or the evidence contained in an affidavit filed by Ms Christiansen. Whilst dealing with the issue of additional or further evidence I should observe that Ms Christiansen also sought leave to adduce evidence by way of an affidavit from her boyfriend at the time in which she has informed me he makes certain admissions. I refused leave to adduce that evidence. [9] The evidence would have been available to have been called by Ms Christiansen at the time of the hearing of the summary trial before the learned Magistrate. The evidence was not called. Ms Christiansen represented herself in that hearing, as she has on this appeal, however, I am not of the view that special grounds for giving leave to adduce that evidence exist. For that reason that application was refused. It should also be noted that nowhere in her appeal notice or her affidavit, or her outline of submissions, did Ms Christiansen give any notice that additional evidence of that kind would be sought to be adduced. [10] Having viewed the bodycam recording in the course of the appeal I am of the view that the description of events as given by the Senior Constable is accurate. [11] From the video recording it is apparent that police entered the premises and, having spoken with the appellant, did notice glass. It is apparent that police then commenced exercising powers in relation to the investigation of a domestic violence incident. They stated that they were doing so. Having done so, Senior Constable Scaggiante can be seen moving about the unit, including walking into the appellant’s bedroom and at one point opening a cupboard. He then returns to the loungeroom and for several minutes the discussion between ambulance service officers and the appellant is recorded on the recording. Seemingly satisfied that there was no further need for their involvement the ambulance service officers leave. [12] Shortly after that Senior Constable Scaggiante can be heard saying something to the effect of, “What about the elephant in the room”, and when asked to what he was referring he said, “The bowl and bong in the cupboard.” He also then referred to what he thought to be a smell of burnt cannabis being in the unit. Following that, he returns to the bedroom. Other officers also enter the room, as does the appellant, and the items were then pointed out. The appellant claimed not to have knowledge of them, although, she said that she had used the pipe to smoke tobacco. In his evidence Senior Constable Scaggiante referred to having obtained on the 27th of July 2016 a post- search approval from a Magistrate. That post-search approval order was not placed -- 3 of 7 -- 4 in evidence before his Honour, seemingly, because his Honour thought that it was not evidence of anything that was relevant. [13] At the time that his Honour made that observation there had been no challenge at all to the lawfulness of the search, therefore, his Honour remark that it wasn’t relevant seems correct. However, on this appeal the lawfulness of the search has been challenged. Ms Christiansen has exhibited a copy of the post-search approval order to her affidavit and it is, therefore, in evidence before me. It should be noted that the date upon which it was made was in fact the 27th of June 2016. Not the 27th of July as the officer said in his evidence. Ms Christiansen gave evidence before the learned Magistrate. In respect of the possession charges her evidence was brief. It warrants setting out in full: In relation to the drug possession charges I would just like to say that what I recall from that night I was sleeping and I was woken by my boyfriend at the time. He had a key and he was living with me at the time. We had a domestic argument – a domestic violence dispute – and he tried to call the ambulance to get me to – me – to get rid of me, like, get me out of my home. When the ambulance and the police came they found something in the cupboard but I didn’t – I didn’t know it was there – it was in there. I – when me and my boyfriend had the argument I suspected that he was under the influence of drugs but I did not know that there were drugs there. I did not know that they were there – in there and I did not know where they had come from. I had not seen them until the police found – had found them and at that point I just didn’t know – I didn’t know – I was confused and I didn’t know where they had come from and my partner had left. That’s all I can say about that. [14] When cross-examined the appellant agreed that she was the sole resident of the unit and that she admitted to police in attendance that it was her bedroom. When asked: And you agree that you told police that the bong was yours? [15] She said: It wasn’t mine but, yeah, I had used it for tobacco. [16] When asked in cross-examination to explain the smell of cannabis when the officers first attended her address Ms Christiansen said: I don’t think there was any smell. I didn’t smell anything. [17] The learned Magistrate commenced his decision by observing that the onus was on the prosecution to prove each charge beyond reasonable doubt and that even though the defendant went into evidence she did not bare any evidential onus. His Honour then referred to the definition of possession as including having things – or having them under control in any place whatever, whether for the use or benefit of the person of whom the term is used or another person, and although another person has actual possession or custody of the thing in question. His Honour then went on to say that he accepted the evidence of Senior Constable Scaggiante that he found the bong, bowl and cannabis, together with scissors and scales, on a shelf inside the defendant’s closet in her bedroom. Indeed, on the bodycam recording evidence, no other -- 4 of 7 -- 5 conclusion was open. His Honour referred to the photographs of those items in situ and observed that: They are all very neatly lined up next to each other. [18] His Honour referred to the defendant’s version being that at the time she had said that it was only used for smoking tobacco but referred to Constable Scaggiante’s evidence of having smelt burnt cannabis in the premises. His Honour then referred to the defendant having said at the time that she admitted ownership of the bong and the bowl to which the defendant then interjected: But I didn’t admit ownership of it. [19] His Honour also, however, referred to her having disclaimed knowledge of those things. His Honour went on to find that he did not accept the evidence that she did not know they were there, observing: They were in plain view in the closet and every time the closet was opened they would have been visible. That, in conjunction with the smell of cannabis in the premises, in my view, puts the lie to the explanation given by the defendant and brings the possession within the definition contained within the code. I accept the evidence of Senior Constable Scaggiante and I do not accept the evidence given by the defendant in relation to that issues. Therefore, I find each of the elements of those two offences, the possession of dangerous drugs and the possession of utensils, are proven beyond reasonable doubt and I find the defendant guilty. [20] Section 129(1)(c) of the Drugs Misuse Act provides: 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 at that place. [21] As I have already said, the Magistrate referred to the extended definition of possession in the Criminal Code at the commencement of his reasons. [22] In her submissions on the appeal the appellant takes issues with his Honour’s finding that the items would have been in plain sight. She says that she does not agree that it was in plain sight at all. In my view, on the evidence before his Honour, that finding was indeed open to him. It was, in my view, a conclusion readily reached on the basis of the bodycam video footage. That footage showed the items on a particular shelf within the cupboard and located towards the front of that shelf. Also in evidence before his Honour was a certificate of analysis conducted by a NATA accredited laboratory in which the green plant material seized from the appellant’s premises was analysed to be cannabis. [23] In concluding that he did not accept the appellant’s evidence as to her lack of knowledge of the presence of the items in her cupboard his Honour was entitled to consider the presence of cannabis, the evidence of the officer concerning the smell of cannabis, and the appellant’s evidence of only having smoked tobacco with the waterpipe, in rejecting that evidence of her. Inferentially, the presence of cannabis, -- 5 of 7 -- 6 together with or near the waterpipe and the bowl, left open the conclusion that the pipe had been used for the smoking of something other than tobacco. In my submission, his Honour was entitled to conclude, in those circumstances, that the appellant’s evidence of a lack of knowledge of the items ought be rejected. [24] In those circumstances, as to the matters of possession, his Honour was in a situation where, by the extended definition of possession under the Criminal Code and the presumption in relation to possession of the dangerous drug created by section 129(1)(c) which had not been rebutted, that the possession charges had been made out. [25] In my view, having conducted a full review of the proceedings below, it has not been demonstrated that his Honour erred in reaching his conclusion and state of satisfaction that the possession charges had been made out beyond reasonable doubt. [26] That leaves the issue of the search being illegal. In my view, it is apparent from the evidence as recorded on the police bodycam that the search was precipitated by a reasonable belief held by the police officers, upon attending at the appellant’s house that domestic violence may have occurred in the premises on that night. [27] Indeed, the matters to which the appellant admitted would establish that domestic violence had occurred on that occasion, she having admitted in the course of a fight with her then boyfriend throwing a glass against a wall and shattering it. [28] Section 609 of the Police Powers and Responsibilities Act 2000 applies if a police officer reasonably suspects, relevantly, that domestic violence is occurring, or has occurred, before the officer’s arrival at a place. By section 609(2) it is lawful for the police officer to enter the place and stay on it for the time reasonably necessary to establish whether their reason for entry exists and to ensure that, in the officer’s opinion, an imminent risk of injury, damage or domestic violence does not exist in the place and to give or arrange for reasonable help to any person at the place. [29] By subsection (4), if the police officer is reasonably satisfied a reason for the entry exists the police officer may, amongst other things, search the place for anyone who may be at risk of being injured or subject to domestic violence or associated domestic violence and for anything that may be, or has been, used to cause the injury or damage or for domestic violence or associated domestic violence. In my view, the police officers made plain at the time of commencing the search that those were the powers under which they were conducting the search. I am satisfied on the evidence that the items the subject of the two possession charges were located in the course of that search. [30] Section 160 of the Police Powers and Responsibilities Act 2000 applies in circumstances in which a police officer reasonably suspects a thing at or about a place, or in the possession of a person at or about a place, is evidence of the commission of a Part 2 offence and the evidence may be concealed or destroyed unless the place is immediately entered and searched. A Part 2 offence is defined by section 159 to include an indictable offence. Section 160(3) provides that a police officer may enter the place and exercise search warrant powers, other than a power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant. In my view, the powers of seizure which were then exercised by the police after the discovery of the items in the cupboard were authorised by section 160. -- 6 of 7 -- 7 [31] Approval for that search was subsequently provided by the post-search approval order made by a Magistrate on the 27th of June 2016. That order, in its terms, approved the search which was conducted and ordered the police officer to retain the things seized. In my view, having discovered the items in the cupboard, there was grounds for reasonably suspecting that at the place, or within the possession of the appellant, there was evidence of the commission of an indictable offence, being the possession of dangerous drugs and utensils, and that there was also a reasonable basis for suspicion that the evidence may be concealed or destroyed unless those steps were immediately taken. [32] The challenge, therefore, to the search as being illegal, in my view, must fail. The appellant, having been unsuccessful in respect of each of the grounds raised on the notice of appeal, the appeal should be dismissed and the decision below confirmed. -- 7 of 7 --