Darwen v Smith [2007] QDC 30

DISTRICT COURT OF QUEENSLAND CITATION: Darwen v Smith [2007] QDC 030 PARTIES: STEPHEN DARWEN Appellant v BELINDA CHRISTINA SMITH Respondent FILE NO/S: File No 1143/06 DIVISION: Civil – Applications PROCEEDING: Appeal against conviction ORIGINATING COURT: Magistrates Court DELIVERED ON: 30 January 2007 DELIVERED AT: Brisbane HEARING DATE: 15 January 2007 JUDGE: McLauchlan QC DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – Drug offences – Procedure – Proof and evidence – Whether property reasonably suspected of being used in connection with commission of offence – Onus of proof - Drugs Misuse Act 1986 s10A COUNSEL: Ms J Taylor for the Appellant Mr M Hungerford-Symes for the Respondent SOLICITORS: Fisher Dore Lawyers for the Appellant Director of Public Prosecutions for the Respondent [1] The appellant was convicted on 28 March 2006, in the Magistrate’s Court at Brisbane, of possessing property reasonably suspected of having been used in connection with the commission of an offence defined in Part 2 of the Drugs Misuse Act 1986. He was fined $300.00 and a conviction was recorded. He had also been -- 1 of 5 -- 2 charged with an offence against s. 10(4) of the Act, but that charge was dismissed by the learned magistrate. [2] The appellant relies on four grounds of appeal, namely: 1. There was no sufficiently probative evidence upon which the Court could find that the appellant was in possession of the property at the relevant time/s or at all. 2. Further, and in the alternative, there was no sufficiently probative evidence upon which the Court could find that there were reasonable grounds for suspicion in relation to the property, permitting its search and seizure. 3. Further, and in the alternative, there was no sufficiently probative evidence upon which the Court could find that the property had been used in connection with the commission of an offence under Part 2 of the Drugs Misuse Act 1986. 4. The learned Magistrate erred in fact and law in finding that section 10A(1)(b) of the Drugs Misuse Act 1986 was intended to create an offence punishable by imprisonment for receiving text messages. [3] The evidence established that the appellant was present on premises at 10 Kennedy Terrace Paddington on 22 November, 2005, when a search warrant which had been sought in relation to the possession of dangerous drugs on those premises was executed. The appellant did not reside on the premises, and was unknown to prosecution witnesses before the execution of the warrant. Other persons were also present at the premises at that time, and they and the appellant were arrested and taken to Brisbane City police station, where records of interview were conducted. The appellant was not himself in possession of dangerous drugs when the warrant was executed. He had, however, on his person a mobile telephone which he produced at the request of the police, and this, and other phones produced by the others present were inspected by the police. The phone produced by the appellant had recorded a text message addressed to “Steve”, which could reasonably be seen as a message relating to a proposed supply of drugs to the recipient of the message. There were also other messages, one of which depicted a syringe, which, again, could relate to the use of drugs. Although the appellant said the phone was not his, he conceded that his sim card was in it. -- 2 of 5 -- 3 [4] Section 10A(1)(b) provides, relevantly, that a person who has in his or her possession any property (other than a dangerous drug, hypodermic syringe or needle) reasonably suspected of having been used in connection with the commission of an offence defined in part 2 of the Act, who does not give an account satisfactory to the court of how the person lawfully came by or had such property in the person’s possession, commits an offence against the Act. The effect of this provision is that if property is identified as meeting the description contained in the section an offence is committed by the person in possession of the property, unless the person can satisfy the court that the property was lawfully in his possession, the onus lying on him to do so: Gough v Braden [1993] 1 Qd. R. 100,105. “Lawfully” in this context appears to refer to the use to which the property was put by the person, and refers back to s.10, which makes it a crime for a person to have in his possession anything that the person has used in connection with a crime defined in Part 2, which includes supplying dangerous drugs (s.6) and possessing dangerous drugs (s.9). [5] “Reasonably suspected” means “suspected on reasonable grounds”, which requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104,112. [6] S.10A(1)(b) relates only to a use which has already occurred, and does not have any application to an intended future use, which is the subject of para(1)(a) of the section. Nevertheless, I consider that the section requires only that there be established a reasonable suspicion that a relevant offence has been committed, and a reasonable suspicion that property in the possession of the defendant has been used in connection with the commission of the offence. It is unlikely that the provision -- 3 of 5 -- 4 was intended to operate only in circumstances where the commission of a relevant offence has been established, presumably beyond reasonable doubt. [7] The police officer, who is the respondent to the appeal, gave evidence that she suspected the phone in the possession of the appellant had been used in connection with the offence of the supply or possession of dangerous drugs because the execution of the search warrant revealed a significant amount of drugs on the premises. The message principally relied on was fairly proximate in time to the date the warrant was executed. The magistrate had to be satisfied beyond reasonable doubt that the witness had entertained the suspicion of which she gave evidence, and that it was a reasonable one, in the sense described above. It was not unreasonable to suppose that the phone had been used in connection with the supply of drugs to persons on the premises, although they might not have come into the possession of the appellant. The section, in my opinion, encompasses a situation where a person has in his possession property such as a phone, reasonably suspected of having been used in connection with the supply of drugs, although they may not have been supplied to that person. It was open to the magistrate to find beyond reasonable doubt that the respondent’s suspicion was a reasonable one in the circumstances. His decision to that effect, cannot, in my view, be overturned in this Court. [8] Evidence of the matters referred to establishes an offence, unless the person gives a satisfactory account to the court of how he lawfully had such property in his possession. The evidence shows that the phone, while it may not have been the appellant’s property, was in his possession at the relevant time. It was not lawfully in his possession if it was for use, or had been used, in connection with the commission of a crime under s.10. -- 4 of 5 -- 5 [9] There may be circumstances where the only evidence suggested for the purposes of s10A(1)(b) is the possession of a phone with a record of a received text message concerning a suggested supply of drugs. In the absence of any proved response to such a message, and in the absence of a situation where both the accused and drugs are present, it would be difficult to conclude that a reasonable suspicion in terms of the subsection arose. However, that is not the present case. In the present case, the magistrate was entitled to find, as he did, that the appellant had not given a satisfactory account of how his possession of the mobile phone was lawful. [10] As indicated earlier, I do not think there is any reasonable doubt on the evidence that the mobile phone was in the appellant’s possession at the relevant time. The messages on the phone, when it was inspected by the respondent, provided reasonable grounds for suspicion that it may be evidence of the commission of an offence to which the warrant related, permitting its seizure in terms of the warrant. The production of the phones for inspection at the premises did not, in my opinion, constitute a seizure of those items. And the decision to seize the appellant’s phone was only made after viewing the messages to which reference was made in the evidence. [11] I do not consider there is any substance in any of the other grounds relied on. In the result, the appeal is dismissed. -- 5 of 5 --