q CATCHWORDS. Criminal Law - possession of heroin and possession of methaqualone - appeals against convictions - whether search warrant issued by Clerk of Petty Sessions under Public Health (Prohibited Drugs) Ordinance valid - meaning of "possession" in s.4(1) Public Health (Prohibited Drugs) Ordinance ~ meaning dependant on context - nature of necessary mental element considered ~- whether methaqualone declared a "narcotic drug" for purposes of s.35 Poisons and Dangerous Drugs Ordinance. Practice and Procedure - evidence obtained pursuant to execution of search warrant - if search warrant invalid, whether discretion of trial judge properly exercised in admitting evidence obtained upon its execution. Practice and Procedure - whether evidence supported finding that tablets contained methaqualone. Criminal Law_ = possession of heroin and possession of methaqualone - appeals against custodial sentences on grounds of excessiveness. Public Health (Prohibited Drugs) Ordinance, 1957 (A.C.T.) ss.4(1), 5. Poisons and Dangerous Drugs Ordinance, 1933 (A.C.T.) ss.5(2), 35. Court of Petty Sessions Ordinance, 1930 (A.C.T.) ss.5(1), 12. ROBERT FRANCIS SEE v. ROBIN VICTOR EDWIN MILNER. F.C. No. 10 of 1979 F.C. No. 11 of 1979. FRANKI, NORTHROP & LOCKHART JJ. 4 DECEMBER 1980 CANBERRA. IN THE FEDERAL COURT OF AUSTRALIA) ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) n - 10 of 1979 ) ) Cc ° .C. No. 11 of 1979 GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : ROBERT FRANCIS SEE Appellant (Defendant) AND: ROBIN VICTOR EDWIN MILNER Respondent (Informant. ) ORDER JUDGES : FRANKI, NORTHROP & LOCKHART JJ. WHERE MADE : CANBERRA ory DATE OF ORDER 4 DECEMBER 1980. THE COURT ORDERS THAT: 1. Each appeal is dismissed. 2. The convictions, sentences and orders of the trial judge are confirmed. 3. The sentences are to be served concurrently and are to date from today. IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY ) F.C. NO. 10 OF 1979 F.C. NO. 11 OF 1979 DISTRICT REGISTRY ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ROBERT FRANCIS SEE Appellant (Defendant) AND: ROBIN VICTOR EDWIN MILNER Respondent (Informant ) CORAM: FRANKI, NORTHROP, LOCKHART JJ. 4 DECEMBER 1980. REASONS FOR JUDGMENT THE COURT: - Robert Francis See, ("the appellant"), appeals against two judgments and orders of a single judge given and made on 18 and 20 April 1979 in the Supreme Court of the Australian Capital Territory, in two appeals from convictions and orders entered and imposed upon the appellant by the Court of Petty Sessions. The appeals to the judge of the Supreme Court were by way of hearings de novo. By consent the two appeals were heard concurrently. In the first matter the appellant was convicted of an offence under s.4(1) of the Public Health (Prohibited Drugs) Ordinance -2- 1957-1975, ("the Prohibited Drugs Ordinance") in that in the Australian Capital Territory on the 19th day of October 1977 "he did have in his possession a prohibited drug to wit, Diacetylmorphine", which drug 1s hereinafter called "heroin" , and he was sentenced to six months' imprisonment with hard labour and ordered to pay the costs of Robin Victor Edwin Milner, ("the respondent"). In the second matter the appellant was convicted of an offence under s.35 of the Poisons and Dangerous Drugs Ordinance 1933-1976 ("the Poisons Ordinance") in that in the Australian Capital Territory on the 19th day of October 1977 he did "have in his possession without lawful authority a narcotic drug, to wit Methaqualone", and he was sentenced to three months imprisonment with hard labour. No order for costs was made in respect of the charge. The two sentences were ordered to be served concurrently and to date from 20 April 1979. The facts are not in dispute and the credibility of the respondent and the other police witnesses is not challenged. We set out the facts. On 18 October 1977 Peter Pavid Kent, a Clerk of the Court of Petty Sessions, issued a document in the following form: SEARCH WARRANT AUSTRALIAN CAPITAL TERRITORY PUBLIC HEALTH (PROHIBITED DRUGS) ORDINANCE 1957-1975 -3- TO: Robin Victor Edwin MILNER, a member of the Australian Capital Territory Police Force, stationed at Canberra Police Headquarters, Canberra in the Australian Capital Territory. WHEREAS I, PETER DAVID KENT, a Clerk of the Court of Petty Sessions at Canberra in the Australian Capital Territory within the meaning of Section 5 of the Public Health (Prohibited Drugs) Ordinance 1957-1975 of the Australian Capital Territory being satisfied by information on oath placed before me this day that there are reasonable grounds for suspecting that there is on premises situated at Block 5 Section 27 HUGHES in the Australian Capital Territory and known as 8 Wisdom Place, Hughes in the said Territory, a prohibited drug pursuant to the Public Health (Prohibited Drugs) Ordinance 19357-1975 of the Australian Capital Territory namely heroin. YOU ARE HEREBY AUTHORISED with such assistance as you think necessary to enter the said premises situated at Block 5 Section 27, Hughes in the Australian Capital Territory and Known as 8 Wisdom Place, Hughes in the said Territory if need, by force, at any time or times within ONE MONTH from the date of this warrant, and search the said premises and any person on the said premises and to seize and carry away prohibited drugs pursuant to the said Ordinance which you may find on the said premises situated as aforesaid or in the possession of any person on the said premises and for so doing this shall be your sufficient warrant. GIVEN UNDER MY HAND at Canberra in the said Territory this 18th day of October, 1977. Clerk of the Court of Petty Sessions in and for the Australian Capital Territory." The document was signed by Mr. Kent and was sealed with the seal of the Court of Petty Sessions, Canberra. ~4- At about 9.30p.m. on Wednesday, 19 October 1977 the respondent, a Detective Sergeant of Police attached to the Drug Squad of the Criminal Investigation Division and a member of the Police Force of the Australian Capital Territory, armed with the search warrant, was on duty in a parked motor vehicle in Wisdom Place, Hughes. A Holden motor car entered Wisdom Place and was driven into the driveway of the house at No.8. A male and a female alighted from the Holden motor car and entered the front door of the house. A short time later the respondent, accompanied by two police constables, went to the front door of the house and two other constables went to the rear door. The respondent could see through a frosted plate glass window the shape of a male person, who in fact was the appellant, who appeared to be kneeling on the floor of the hallway and talking on the telephone near the front door. The police constable knocked on the door and the appellant said something. A short time later the front door was opened by the appellant and the police were invited to enter. The respondent identified himself and said that he had a warrant to search the premises. On entering the house the respondent saw the female, a Miss Oag, sitting on the floor of the lounge room near a lounge chair. The appellant completed his telephone conversation and entered the lounge room. He was shown the search warrant and read ut. The police used no force and there was no threat of force, but the police acted as if the search warrant was valid and effective and as if it could be relied upon to enable them to carry out the search effectively irrespective of what was done by the -5- appellant. The appellant said that he and Miss Oag, but no-one else, occupied the house which was owned by the appellant's great uncle. A large number of bank notes were on the floor of the lounge room. These totalled the sum of $1586 and were largely divided into piles of $35 or $70 and comprised notes of different small denominations. $400 was in $50 notes, $660 was in $20 notes, $430 was in $10 notes, $65 was in $5 notes, $28 was in $2 notes and $3 was in $1 notes. The appellant said that the money belonged to him and that he had got it from a bank that day to buy a new car but that he had no particular vehicle in mind. When asked to explain how the money "was divided into lots that appeared to be divided by 35" the appellant said, "That is the way it came from the bank". When asked from which bank did he get the money the appellant said "I do not have to tell you that". The appellant was searched. A search was made of the dining room. On a table in the centre of that room the police found, amongst other things, a bowl containing a white powdery substance, a razor blade, scissors, aluminium foil, a key ring, and some cassettes. Evidence established that the white substance comprised 5.028 grams of powder consisting of 603% heroin, ie. 3 grams of heroin. The respondent said to the appellant: "What 1s the powder in the bowl?". The appellant said: "I do not have to answer that, do 1T?". The respondent said: "No, you do not" and the appellant replied: "Then I will not." The respondent said: "Can you tell me how the bowl and the powder came to be on the table?". The appellant replied: "No". Photographs were tendered in evidence of the articles as -6- they were on the table. All of the articles were quite obvious. The respondent then said: "As you and Caroline were the only occupants of the house, I believe the substance to be yours, therefore IT am placing you under arrest for the possession of heroin. Do you understand that?" The appellant replied: "Yes". "Caroline" referred to Miss Oag. The appellant was warned that he was not obliged to answer any questions or say anything further unless he wished to do so and that anything he did say would be noted and used as evidence should he be charged with any offence. The search of the house was continued and a bottle containing six white tablets, which were said to be Mandrax tablets, was found under the telephone table in the hallway. The appellant was then told "that the bottle which contained six Mandrax tablets" was found under a telephone table in the hall. He was asked: "What can you tell me about those tablets?". He replied: "No comment". He was asked: "Do you own them?". fe replied: "No". He was then asked: "Have you seen them before?". He replied: "No comment". He was then asked: "lave you obtained Mandrax recently on your doctor's prescription?". He replied: "No comment". Three disposable syringes with needle and needle covers attached and a cigarette filter were found in a bag under the telephone table. When asked: "Who owns the syringes and filter?" the appellant replied: "No comment". In the presence -7~ of the appellant Miss Oag said that the cassettes belonged to the University and were on loan to her. The appellant was then asked: "Can you tell me anything about these items found on the table?". He replied: "No.". He was then asked: "Who owns these keys?", indicating the three keys and the wooden tag which had been found on the table near the bowl. He replied: "They are mine.". He was next asked: "Who put them on the table?". He replied: "I did.". He was next asked: "What are the keys for?". He replied: "The car and the house.". He was next asked: "Do you have a spare set?". He replied: "Yes, Caroline has.". The respondent then arrested Miss Oag also and extended the arrest of the appellant to "Possession of heroin and other drugs found in the house" and took them both to the police station. The razor blade and the three syringes each bore traces of heroin. Traces of an unidentified white powder adhered to the scissors. The search of the house disclosed that one room with a double bed appeared to be in use as a common bedroom and contained both male and female clothing. The other two bedrooms appeared to be in use as store rooms. During further questioning at the police station, after further warning, the appellant said that his great uncle was in an old people's home at Campbell, where he had been for about three months, and that the appellant had been living at the house at Wisdom Place for about five weeks and that he was supposed to fix it up so that it could be sold. -8- At the police station the appellant was again asked: "Do you own the heroin that we located at your house?" and he replied: "No comment.". After further warning an interview took place with the appellant. A record of this interview was tendered in evidence but it was rejected. The appellant was later taken to the charge room and charged with the possession of heroin and methaqualone but made no answer to the charge. The grounds of appeal argued were as follows: 1. In relation to the charge of possession of heroin. (a) That the search warrant was not valid. (b) Because the search warrant was invalid the trial judge ought to have exercised his discretion to exclude evidence obtained and objects seized as a result of the search. (c) That the trial judge erred in finding that the appellant was in possession of the heroin within the terms of s.4(1) of the Prohibited Drugs Ordinance. (d) That the penalty was excessive. 2. %In relation to the charge of possession of methaqualone. (a) and (b). In addition to the same grounds as in the other charge, that the search warrant did not extend to methaqualone. -9- (c) That the trial judge erred in admitting evidence on which he based his finding that the tablets were "a narcotic drug to wit methaqualone" and that such finding was against the evidence and the weight of the evidence. (ad) That the penalty was excessive. As to grounds l(a) and 2(a). Section 5 of the Prohibited Drugs Ordinance gives power to a magistrate to issue a search warrant in these terms: "If a Magistrate is satisfied by information on oath that there 1s reasonable ground for suspecting that a prohibited drug is on any premises or at any place, he may grant a search warrant authorizing a member of the Police Force of the Territory named in the warrant, with such assistance as he thinks necessary, to enter, 1f need be by force, at any time or times within one month from the date of the warrant, upon the premises or place named or described in the warrant, and to search the premises or place and any person found on the premises or place, and to seize and carry away any prohibited drugs found on the premises or place or in the possession of any person on the premises or place." Heroin 1s a prohibited drug under the Prohibited Drugs Ordinance. The definition section of that Ordinance provides that, unless the contrary intention appears, ""magistrate" has the same meaning as in the Court of Petty Sessions Ordinance 1930-53. Section 5(1) of that Ordinance provides, unless the contrary untent1on appears: ~10- "'Magistrate' means a stipendiary magistrate or special magistrate appointed under this Ordinance and includes any magistrate of a State who is performing the duties of a magistrate in the Territory in pursuance of an arrangement made under section seventy-eight of the Commonwealth Public Service Act 1922 - 1930, and, where any power or function of a magistrate 1s exercisable by a clerk, includes a clerk;" In the same section "clerk" means a Clerk of the Court of Petty Sessions. The appellant claimed that the search warrant was not valid under the Prohibited Drugs Ordinance as it was not granted by a magistrate. It will be seen that the definition includes a clerk "where any power or function 18 exercisable by a clerk". The search warrant was issued under the power in s.5 of the Prohibited Drugs Ordinance. Senior counsel for the respondent argued that the scheme of the Court of Petty Sessions Ordinance was to permit clerks to do all things prior to and after a hearing but not to take any part in the hearing unless some specific provision exists, as for example the power to adjourn in s.88. The argument then proceeded to rely on s.12 as a section which vests power in a clerk to issue a search warrant. Because of the view we take on grounds 1(b) and 2(b) it 1s not necessary to deal with grounds 1{a) and 2(a). However, as at present advised we consider that s.12 does not of itself -ll- include the power to issue a search warrant. It seems to us that the acts authorised under s.12 are acts and matters preliminary to the hearing. We do not consider that the issue of search warrants is such a matter. Reference was also made to s.49 but that seems only to permit a magistrate to issue a search warrant on a Sunday and proceeds upon the basis that he is elsewhere authorised to issue it on other days. In our opinion the sections relied upon should not be construed in such a way as to impinge upon any common law right unless the legislation clearly has that effect. We do not think this is such legislation. It is not even entirely clear that the interpretation section of the Court of Petty Sessions Ordinance is the relevant section to which reference should be made to determine the scope of the word "magistrate" in s.5 of the Prohibited Drugs Ordinance. As to grounds 1(b) and 2(b). The appellant argued that the entry, search and seizure of the articles by the respondent was unlawful. Despite objection by the appellant, the trial judge admitted evidence relating to the search of the house, to what was found in the house, to the content and nature of the white powdery substance and the nature and the constitution of the white tablets. -12- If the warrant was not properly signed the respondent acted in good faith in executing it. When the warrant was executed an arrest was made and the goods which were seized, namely the heroin, scissors, razor blade, syringes and white tablets were reasonably believed to be material to the charge the subject of the arrest. (See generally Dillon v. O'Brien (1887) 16 Cox C.C. 245.) In Ghani v. Jones [1970] 10Q.B. 693 Lord Denning M.R., at p-706 with whom Edmund Davies L.J. and Sir Gordon Willmer agreed, said: "I would start by considering the law where police officers enter a man's house by virtue of a warrant, or arrest a man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be amplicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford L.C. in Pringle v. Bremner and Stirling (1867) 5 Macph. H.L. 55, 60 and Chic Fashions (West Wales) Ltd. v. Jones (1968) 2 Q.B. 299." Passing to the question of discretion, 1n Reg. v. Conley (1979) 21 S.A.S.R. 166 the Full Court of the Supreme Court of South Australia held that notwithstanding that an entry and -13- search of a house had been made pursuant to a defective authority, there were no grounds upon which the trial judge should have excluded evidence obtained at the time of the search. The appellant in that case had been convicted upon a charge of having Indian hemp in his possession contrary to the provisions of an Act. The evidence sought to be excluded was that obtained where premises were searched and the drug was found in the possession of the appellant. The Court applied the decision of the High Court in Bunning v. Cross (1978) 141 C.L.R. 54. In the appeals before us, since the trial judge was exercising a discretion, this Court can only interfere with the exercise of that discretion on very limited grounds. However, we are of the opinion that the trial judge was clearly correct in admitting the evidence obtained at the time of the search. In Bunning v. Cross (supra) Stephen and Aickin JJ., with whom Barwick C.J. agreed, considered in detail the principles upon which evidence which had been unlawfully obtained ought to be admitted in criminal proceedings. A number of factors should be considered but in general the matter turns upon what was said by Barwick C.J. in R. v. Ireland (1970) 126 C.L.R. 321 at p.335. The following passage from that judgment was cited at p.72 by Stephen and Aickin JJ. and said to represent the law un Australia: -14- ""*'whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion'". The matter is further considered, in particular, at pp.74 and 75 where it is said that the Court is "concerned with broader questions of high public policy, unfairness to the accused being only one factor, which, if present, will play its part in the whole process of consideration". One of the matters for consideration which is referred to at p.79 is whether the illegality arises from mistake and is neither deliberate nor reckless. In the case we are considering there was no deliberate "cutting of corners" which was said at p.-79 to "tend against the admissibility of evidence illegally obtained". In our opinion in these appeals the balance of the considerations must clearly come down in favour of the admission of the evidence. As to ground l(c). We think it is appropriate to approach the matter of possession by posing and answering the following questions: lL. Does the meaning of "possession" depend on the context in which the word appears? -15- 2. Is mens rea strictly so called a necessary element in possession? 3. If the answer to question 2 is "no", can one be in possession of an article without some mental element being involved? 4. If the answer to question 3 is "no" what is the extent and nature of the mental element? 5. Where possession is established can there be any defence based on the state of mind of the accused? 6. The following questions then arise: (a) Did the prosecution establish that the appellant had the requisite mental element? (b) If so, did the prosecution establish that the appellant had possession of the heroin? Question 1. This question should be answered "Yes". The meaning of possession depends upon the context. See R. v._Bush (1975) 1 N.S.W.L.R. 298 at p.311lE, where Nagle J. in delivering the judgment of the Court of Criminal Appeal said: ) "Before adverting to these decisions, it must be borne in mind that, in the numerous decisions in which the meaning of this word has been considered, it has repeatedly been affirmed that its use in statutory provisions has given rise to constant difficulty, and that 1ts meaning must ultimately depend on its context, that 1s to say, upon the proper interpretation of the provisions in which it occurs. It was said by Lord Parker C.J. in Towers & Co. Ltd v. Gray [1961] 20.B8.351, at mo -16- p.361: 'The term "possession" is always giving rise to trouble. As Earl Jowitt said in United States of America & Republic of France Vv. Dollfus Mieg et Cie S.A & Bank of England [1952] A.c. 582, at p.605: "The person having the right to immediate possession 1s, however, frequently referred to in English law as being the 'possessor'-in truth, the English law has never worked out a completely logical and exhaustive definition of 'possession'." For my part I approach this case on the basis that the meaning of "possession" depends on the context in which it is used'" And see Reg. v. Warner (1969) 2A.C. 256 at p.299. Question 2. The answer to this question 1s "No". In R. v. Warner (supra) the House of Lords was considering s.1 of the Drugs (Prevention of Misuse) Act 1964 (U.K.). That Act was similar to the Ordinance now under consideration. See generally pp.297 and 308. That Act provided in s.1(1): "Subject to any exemption for which provision may be made by regulations made by the Secretary of State and to the following provisions of this section, 1t shall not be lawful for a person to have in his possession a substance for the time being specified in the Schedule to this Act unless -...". Broadly, the possession there permitted of such a substance was possession pursuant to prescription by a duly qualified medical practitioner, dental practitioner, or veterinary surgeon and possession by a registered manufacturer or dealer in bulk in the substance or possession by medical -17- practitioners, dental practitioners, veterinary surgeons, authorised sellers and certain other persons. Section 6A(1) of the Prohibited Drugs Ordinance provides: "The Commissioner may, by instrument in writing, authorize a person who is engaged in scientific or medical research to have in his possession a specific prohibited drug for the purposes of research". In our opinion the legislation considered in R. v. Warner is similar to the Ordinance under consideration and provides an appropriate guide for ascertaining the meaning of possession in the relevant Ordinance. R. v. Warner (supra) has been distinguished in R. v. Bush (supra), R. v. Rawcliffe (1977) 1 N.S.W.L.R. 219, R. v. McGrath (1971) 2 N.S.W.L.R. 181 and R. v. Kennedy (1979) 25 A.L.R. 367. Special leave to appeal was refused by the High Court on 21 February 1980 from the judgment of the Court of Criminal Appeal in R. v. Kennedy. In Williams v. The Queen (1978) 53 A.L.J.R. 101, R. v. Warner was referred to by Gibbs and Mason JJ., with whom Jacobs J. agreed, by Murphy J. at p-105 and by Aicken J. at p. 109 apparently with approval and certainly without any comment indicating any significant disagreement. In R. v. Warner (supra) each member of the House of Lords, except Lord Reid, expressed views that the Act there under -18- consideration came within the class of Acts in which the offence was absolute. Lord Morris of Borth-y-Gest at pp. 292 to 293 said: "The cases show, in my view, that what always has to be decided is the meaning of the particular statutory enactment. While recognizing that mens rea is a prerequisite of a criminal conviction the question always is whether Parliament in a particular instance has enacted that on proof of certain facts strict or absolute liability is to follow." and at p. 296: "The intention of Parliament is revealed by the words used in their context in an Act which, with the object of preventing the misuse of certain drugs, penalises their very possession except in strictly limited and carefully defined cases." Lord Guest at p.301 said that he came unhesitatingly to the conclusion that the offence in the legislation there under consideration was absolute. Lord Pearce proceeded on the same basis and Lord Wilberforce expressed the view that there was no seperate requirement of mens rea (p.312). The majority of the House, with Lord Morris of Borth-y-Gest and Lord Guest dissenting, held that a mental element was involved in establishing possession under the relevant Act. It is appropriate to cite the following passages. Lord Reid said at p.282: -19- "If this case is to be decided on this narrower ground I accept the view of my noble and learned friends, Lord Pearce and Lord Wilberforce. It enables justice to be done in all cases which resemble this case. But at still leaves subject to injustice persons who in innocent circumstances take into their possession what they genuinely and reasonably believe to be an ordinary medicine, if in fact the substance turns out to be a prohibited drug. Nevertheless this ground is sufficient to show that the learmed trial judge must be held to have misdirected the jury in the present case." Lord Pearce said at p.305: "If one goes to the extreme length of requiring the prosecution to prove that 'possession' implies a full knowledge of the name and nature of the drug concerned, the efficacy of the Act is seriously impaired, since many drug pedlars may in truth be unaware of this. I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word 'possess'. Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin T am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty. The situation with regard to containers presents further problems. If a man 1s in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents." ~20- and p.307 to p.308: "The direction to which the accused was entitled would, in my opinion be approximately as follows. 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 that he has the thing. But you do not (within the meaning of the Act) possess things of whose existence you are unaware. The prosecution have here proved that he possessed the parcel, but have they proved that he possessed its contents also? There is a very strong inference of fact in any normal case that a man who possesses a parcel also possesses its contents, an inference on which a jury would in a normal case be justified in finding possession. A man who accepts possession of a parcel normally accepts possession of the contents. But that inference can be disproved or shaken by evidence that, although a man was in possession of a parcel, he was completely mistaken as to its contents and would not have accepted possession had he known what kind of thing the contents were. A mistake as to the qualities of the contents, however, does not negative possession. Many people possess things of whose exact qualities they are unaware. If the accused knew that the contents were drugs or were tablets, he was in possession of them, though he was mistaken as to their qualities. Again if, though unaware of the contents, he did not open them at the first opportunity to ascertain (as he was entitled to do in his case) what they were, the proper inference is that he was accepting possession of them. (It would be otherwise if he had no right to open the parcel.) Again, if he suspected that there was anything wrong about the contents when he received the parcel, the proper inference is that he was accepting possession of the contents by not immediately verifying them. (This would, in my opinion, apply also to a bailee.) -21- In the present case you may think that the difference between scent and tablets is a sufficient difference in kind to entitle the accused to an acquittal if on the whole of the evidence it appears that he may have genuinely believed that the parcel contained scent, and that he may not have had any suspicions that there was anything illicit in the parcel, and that he had no opportunity of verifying its contents. For in that case it 1s not proved that he was in possession of the contents of the parcel. The accused has, therefore, been deprived of the chance of putting before the jury a defence which was in theory open to him on the facts of this case. But the evidence against him was so strong that no jury properly directed would have acquitted him." Lord Wilberforce said at pp.310 to 311: "On such matters as these (not exhaustively stated) they must make the decision whether, in addition to physical control, he has, or ought to have imputed to him the intention to possess, or knowledge that he does possess, what 1s in fact a prohibited substance. If he has this intention or knowledge, it is not additionally necessary that he should know the nature of the substance. I see no difficulty in making clear to the jury what is required in order to establish possession and on this point I desire to associate myself with the observations of my noble and learned friend Lord Pearce." and at p. 312: "In all such cases, the starting point will be that the accused had physical control of something - a package, a bottle, a container - found to contain the substance. This is evidence - generally strong evidence - of possession. It calls for an explanation: the explanation will be heard and the jury must decide whether there is genuine ignorance of the presence of the substance, or such an -22- acceptance of the package with all that it might contain, or with such opportunity to ascertain what it did contain or such guilty knowledge with regard to it as to make up the statutory possession. Of course it would not be right, or consistent with the terms of the Act, to say that the onus of showing innocent custody rests upon the accused. The prosecution must prove the offence, and establish its ingredients. But one starts from the point that the Act itself has exempted the great majority of cases of innocent possession, so that once the prosecution has proved the fact of physical control in circumstances not covered by an exemption and something of the circumstances in which this was acquired or held, this, in the absence of explanation, may be sufficient to enable a finding of possession to be made. On the other hand, the duty to submit the question of possession to the jury in this way does give the opportunity of acquittal to innocent carriers and custodians, who can put forward an explanation of the physical fact which a jury accepts." In Sweet _v. Parsley (1970) A.C. 132 Lord Pearce at p.158 explained what he had said in R. v. Warner: "By the term 'absolute' I mean an offence to which the normal assumption of mens rea does not apply, but in which the actual words of the offence (without any additional implication of mens rea) may well import some degree of knowledge, as, for example, the word "possession' as in Warner's case (1969) 2 A.C. 256. In saying that the section relating to possession (which was there under discussion) was absolute, I was using it (as the context was intended to show) in that loose and convenient sense which had been used in the argument." Lord Diplock in the Last mentioned case at p.]62 said: -~23- "Thus, where the prohibited conduct consists in permitting a particular thing to be done the word 'permit' connotes at least knowledge or reasonable grounds for suspicion on the part of the permittor that the thing will be done and an unwillingness to use means available to him to prevent it and, to take a recent example, to have in one's 'possession' a prohibited substance connotes some degree of awareness of that which was within the possessor's physical control: Reg v. Warner (1969) 2 A.c. 256." In D.P.P. v. Brooks (1974) 2 W.L.R. 899 at p.901 Lord Diplock said of R. v. Warner: "The question of what are the mental elements required to constitute a criminal offence of having in one's possession a prohibited substance is a finely balanced one, as Warner's case itself shows. It turns on a consideration not only of the particular provision creating the offence but also of the policy of the Act disclosed by its provisions taken as a whole." The New South Wales Court of Criminal Appeal in R. v. Bush (supra) in considering s.233B (1)(c) of the Customs Act 190] said at p.324: "We consider, therefore, that, in the context in which it is found, and having regard to the purposes already mentioned which the legislative provision is intended to effect, possession in s.233B (1)(c) means no more than de facto possession of the narcotic goods concerned in the sense in which we have considered that expression, and that the mental element involved extends no further than the intention inherent in de facto possession of such goods, namely, the intention to have exclusive physical control of some article which is in fact narcotic -24- goods or of some article or some place wherein such goods are in fact carried or contained or located. It is not inherent in that mental element that an accused should know, or suspect, or have reason to suspect, that an item in his de facto possession is narcotic goods. Accordingly, if narcotic goods are found in some bag or garment, or in some package or container, or i1n some room or place, over which he has the exclusive physical control appropriate to de facto possession, he has them in his possession for the purposes of s.233B(1)(c). A claim by him that those goods were slipped into his bag or garment or were inserted into the package or container or planted in his room or other place without his knowledge, or suspicion, or reason for suspicion, are matters which he may establish to the tribunal of fact as, according to the circumstances, providing a reasonable excuse for such possession." The section of the Customs Act there under consideration provided that it was an offence for the accused to be in possession of any prohibited imports "without reasonable excuse (proof whereof shall lie upon him)". Section 233B(1)(c) of the Customs Act which was under consideration by the New South Wales Court of Criminal Appeal in R. v. Rawcliff (supra) also contains "without reasonable excuse". The broad considerations imported by the words "without reasonable excuse" lead us to the conclusion that these words distinguish that legislation from the Ordinance we have under consideration and from the legislation considered in R. v. Warner. Notwithstanding Zeccola v. Barr (1978) 19 A.c.T.R. 1, in our opinion the test of the knowledge required set out in R. v. Bush is not an appropriate test to apply to the legislation which we are considering. considering s.130 of the Health Act 1937 person, -25- In Williams v. The Queen (supra) the High Court was without authority, having in his possession (Q) which prohibits a certain prohibated plants. Aicken J. at p.108 considered what was involved in the concept of "possession" and said: "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 the inference of knowledge may often be properly drawn from surrounding circumstances. Thus both X and Y may be charged with possession of cannabis, because on being searched, each had in his pocket a cigarette packet containing, not ordinary cigarettes as marked on the packet,but 'reefers'. In each case that fact may well be prima facie evidence of possession, that is, of physical custody or control with knowledge of what is in the cigarette packet, and, if no more appeared, there would be sufficient evidence to support a conviction in each case. Suppose, however, there were evidence that the packet which was found in the pocket of Y had been given to him by X with a request that Y should hand them to 2%, because Z had, by mistake, left them on X's desk, and suppose that Y did not know they were not ordinary cigarettes. If such evidence were accepted or if it raised a reasonable doubt as to Y's knowledge of the contents, there would be no basis upon which he could be convicted." It is clear from the cases cited that some mental element 1s 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. -26- Question 3. It will be seen from what we have said already that some mental element is necessary to establish possession. Question 4. It will be seen from what we have said already that the nature of the mental element varies according to the context. Question 5. In dealing with this question we will only refer to Proudman v. Dayman (1943) 67 C.L.R. 536 at pp.540 to 541 which was referred to in Sweet _v. Parsley (supra) by Lord Reid at p.150 and Lord Diplock at p.164. However, in the case before us this question does not arise because the appellant called no evidence that he had or had not any relevant belief as to the nature of the substance in the bowl. Question 6._ It is clear from what was said by the members of the House of Lords in R. v. Warner and by Aicken J. in Williams v. The Queen that custody of an article by the accused may be sufficient evidence of possession, including the necessary mental element. It is then for the accused to ensure that there is ' -27- evidence to raise a reasonable doubt as to his knowledge of the contents of the article of which he has custody. It is not sufficient merely to show that there is a speculative hypothesis upon which the accused relies but that hypothesis must be reasonable (see Williams v. Douglas (1949) 78 C.L.R. 521 at 527). In the case before us the apvellant was at least a licensee of the premises in which the heroin was found. It seems clear that he had power to exclude any article belonging to Miss OQag or any person other than his licensor. In our opinion it is quite unreal to conclude that the appellant did not know of the presence of the bowl containing heroin and the other articles contaminated with heroin. The presence of the syringes under the telephone table is also unexplained. We are also of the opinion that he must have known that heroin was involved or at least that some drug was involved necessary to satisfy any appropriate mental requirement which the prosecution had to. prove. Notwithstanding every opportunity the apvellant has offered no explanation at all at any time. In our opinion any other conclusion would be the result not of applying a reasonable hypothesis, but of applying a completely speculative hypothesis. It 1s necessary to bear in mind the nature of the Legislation. (See generally the passages cited from D.P.P. v. Brooks and from p.305 of R. v. Warner.) -28- As to ground 2(c). The question of possession does not arise in the methaqualone charge because it is laid under the Poisons Ordinance, s.5(2) of which provides: "without restricting the meaning of the word 'possession', a substance shall, for the purposes of this Ordinance, be deemed to be in the possession of any person so long as it remains or is upon any land or premises occupied by him, or 1s used, enjoyed or controlled by him in any place whatever, unless it 1s shown that he had no knowledge thereof." The first issue raised under this ground is whether Methaqualone was a narcotic drug within the meaning of s.35 of the Poisons Ordinance 1933-1976. appears: Under that Ordinance, unless the contrary Narcotic drug' means any drug the continued use of which 18 liable to induce the formation of the habit of addiction, and includes any substance declared by the Minister by notice in the Gazette to be for the purposes of this Ordinance a narcotic drug;". Under s.12: "The Minister may, by notice in the Gazette, declare what drugs, chemicals, compounds ... are for the purposes of this Ordinance ... intention -29- (c) narcotic drugs; and may in any such notice define the substances so declared." By notice in Gazette No. 7 of 21 January 1965, the Minister, in pursuance of that section and all other powers thereunto enabling declared: ",.-that each of the drugs, chemicals and compounds specified in the Schedule to this Notice is, for the purposes of that Ordinance, a narcotic drug;" Methaqualone was not specified in that Schedule. By notice in Gazette No. $134 of 28 July 1976 the Minister, in pursuance of the same section, amended the previous declaration in the following way: "...the notice under that section published in the Gazette on 21 January 1965, as amended by the notice published in the Gazette on 4 June 1970, declaring certain drugs, chemicals and compounds to be for the purposes of that Ordinance, narcotic drugs. (g) by inserting after Item 46 in the Schedule the following item: '46 AA Methaqualone.';" The appellant contends that Methaqualone has not been declared a narcotic drug under the Poisons Ordinance. -30- There is no substance in this contention. The declaration in the Gazette of 28 July 1976 itself constituted a declaration of methaqualone as a narcotic drug. The fact that the declaration in the Gazette in terms amended the previous notice published in the Gazette of 21 January 1965, by inserting as item 46 AA methaqualone, rather than saying in specific language that methaqualone is for the purposes of the Ordinance a narcotic drug, does not mean that the 1976 Gazette notice has not declared methaqualone to be a narcotic drug for the purposes of the Ordinance. Plainly it has. The other issue raised under this ground is whether the evidence, applying the appropriate standard of proof, supports the finding that the white tablets were Mandrax tablets and that they contained methaqualone. The expert witness, Mr Duck, called to give evidence identifying the methaqualone did not carry out an analysis of the white tablets or of their contents. By looking at the colour, shape and size of the tablets and the markings impressed on them and relying upon his special knowledge gained from his educational qualifications, his occupation as a chemist and an analyst, and his experience in drug identification, he gave evidence that in his opinion the tablets were Mandrax tablets. The markings impressed on the tablets were "Mx" on one side and - aS "on the other. From this he concluded that the Mandrax tablets were manufactured by Roussel. The markings were those he -31- had known on Mandrax tablets. From his knowledge he said that Mandrax tablets contained Methaqualone. His opinion, he said, was supported by reference to the Australian Drug Compendium, a publication which describes various drugs and tablets, including Mandrax tablets, and the proportion of different drugs contained in tablets. The publication normally is to be found in any scientific library dealing with drugs and in the libraries of most doctors. He said it was a publication which he referred to while making analysis of drugs. Mr Duck said he did not carry out an analysis because this would have destroyed a whole tablet. While it would have been much more satisfactory had an analysis been carried out we consider that the evidence is sufficient to support the conclusion that the tablets were Mandrax tablets which contained Methaqualone according to the appropriate onus. Although nothing was made of it in argument, s.52 of the Poisons Ordinance reads: "In every prosecution for an offence against this Ordinance the averment of the prosecutor contained in the information shall, in the absence of proof to the contrary, be deemed to be proved." In the proceedings before the magistrate the charge sheet showed that "Robin Edwin Victor Milner", the informant, "avers that the said substance is a narcotic". ' -32- As to ground 1(d) and 2(d). Having reached these conclusions we are to have regard to evidence which we have not previously been able to consider. The appellant must satisfy us that there are proper grounds for interfering with a discretionary sentence. Recently, in a judgment delivered on 13 November 1980 the Full Court of this Court in The Queen v. Antony Valentini has again stated that the relevant principles are those expressed in Cranssen_ v. R. (1936) 55 C.L.R. 509 and Harris v. R. (1954) 90 C.L.R. 652 followed by this Court in Kovac v. R. (1977) 15 A.L.R. 637. The trial judge carefully considered all aspects. The appellant had a previous conviction on 18 August 1976 for using cocain. On that occasion sentence was deferred on his entering into a recognisance to be of good behaviour for two years and to come up for sentence 1f called upon . The present offences were committed within that period. The trial judge referred to the prevalence of convictions for possession or use of heroin and of the serious problems heroin posed for the community. The trial judge fixed a lesser sentence for possession of the methaqualone but in any event the sentences were concurrent. -33- The trial judge considered carefully the situation of the appellant and the general level of penalties for similar offences in relation to heroin. No ground has been established to cause us to interfere with either sentence. In the result we would dismiss both appeals. In the course of the appeal we said (transcript pp.157 and 339) that if we decided the sentences were ones which we should review we would permit argument upon whether any further material should be admitted on the question of sentence. In view of our decision that question does not now arise, The appellant has been on bail pending the determination of these appeals. The sentences of the trial judge are confirmed. We will permit any submissions to be made now as to the date from which the sentences are to commence and as to any other relevant question. I certify that this and the 3 2 preceding pages are a true copy of the Feasons for Judgment herein of hasHonour Me—Sustiaee THE COU RT Re lca Cre : Ass rates? q pated: & Decemacr 198C