Craig Anthony Excell v Anne Louise Dellaca Sca [1987] ACTSC 49 (15 July 1987)

SUPREME COURT OF THE ACT

CRAIG ANTHONY EXCELL v. ANNE LOUISE DELLACA
S.C.A. No. 8 of 1987
Possession of Cannabis

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Possession of cannabis - Held for safekeeping on behalf of owner with intent to return - Whether possession amounted to possession for purpose of supply - Meaning of "supply" considered.

Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.), ss.4(2) and (3), Schedule 12.

Dempsey v. R. (1985) 82 CrAppR 291

Delgado v. R. (1984) 1 All ER 449

R. v. Maginnis [1961] UKHL 6; (1986) 2 All ER 110 (C.A.)

R. v. Maginnis (1987) 2 WLR 765 (House of Lords)

HEARING

CANBERRA
15:7:1987

ORDER

The appeal be dismissed.

The findings, conviction and orders of the learned Magistrate be confirmed except that the appellant be allowed six months from today's date to pay the fine of $400.00.

DECISION

On 5 August 1986 Craig Anthony Excell, the appellant, was charged under s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 (the Ordinance) that on that day he had in his possession the controlled substance, cannabis, for the purpose of supplying it to another person. He pleaded not guilty but on 26 February 1987 was convicted in the Magistrates Court and fined $400. The learned Magistrate ordered that in default of payment he be imprisoned for 16 days. He allowed six months to pay the fine. The appellant appeals against conviction to this Court.

2. The facts are straight forward and not now in dispute.

3. On 5 August 1986 the appellant and one Scott McGregor were at the Woden Bus Interchange. The appellant had 67 grams of cannabis in his possession done up in 13 separate parcels, three in his pocket, the remainder in a brown plastic bag wrapped up in his coat which was hidden under a seat in a shelter at the Interchange. He admitted possession of the cannabis but claimed that he had been given it that morning by one "Scrounger" McMullin who, fearing that the police were hot on his trail, had asked the appellant to mind it for him for the day. McMullin said he would pick it up again from the appellant at 7 p.m. at the Interchange. The appellant agreed to the proposed arrangement. The learned Magistrate summarised the situation as follows:-

"The (appellant) admitted that he agreed to

take possession of it, and to become bailee
of it for the required purpose, and to supply
it back to 'Scrounger' as requested."

4. It should be noted that the learned Magistrate was not altogether convinced by the appellant's version of events but proceeded on the assumption that his basic story concerning the cannabis was true.

5. Thereafter he said that he had no doubt that the appellant possessed the cannabis for the purpose of supplying it to McMullin.

6. It is convenient to set out the relevant passage from the learned Magistrate's judgment:-

"I have been referred to a number of
decisions of the (English) Court of Appeal,
culminating in Maginnis (1986) CrimLR
237. That case resolved a conflict between
decisions of that Court, viz Delgado 78
CrimAppR175, and Dempsey 82 CrimAppR
291. The former held that, in similar
circumstances to those in this case,
Delgado's possession of cannabis was for the
purposes of supply, the latter case came to
the opposite conclusion. Maginnis held that
the decision in Dempsey was correct, in
Delgado was wrong.

I prefer the reasoning in Delgado.

By definition under the Poisons and Narcotic
Drugs Ordinance, 'supply' includes sale and
sell (but is not limited to these), and does
not include 'administer' (by virtue of
s.4(10)). Apart from the foregoing, 'supply'
therefore, as I understand it, has its
ordinary meaning in the English language. It
generally means to furnish or provide, or
give. The (appellant) possessed the cannabis
for one reason, and one reason only: to
provide, give, furnish or supply it to
McMullin.

It matters not that McMullin was the one who
supplied it to him; that the (appellant) was
minding it for McMullin; that the (appellant)
was the bailee of the cannabis. He possessed
it in order to supply it to McMullin."

7. By s.4(3) of the Ordinance, a person who has a controlled substance (cannabis is a controlled substance under the Ordinance) in his possession for the purpose of supplying it to another person or to other persons is guilty of an offence. As the learned Magistrate remarked, the word "supply" is defined in the Ordinance (s.3(1)) as including, unless the contrary intention appears, "sell" and "sale". No further definition of the word is given in the Ordinance.

8. As the Court of Appeal pointed out in Dempsey v. R. (1985) 82 CrAppR 291 at p 293, the word is defined in the Shorter Oxford Dictionary in the two definitions which seem to be relevant to the circumstances as follows:-

". . . to fulfil, satisfy (a need or want) by
furnishing what is wanted. To furnish,
provide, afford (something needed, desired or
used) . . ."

The seventh edition (1982) of the Concise Oxford Dictionary defines the word as "providing what is needed". It defines the word as a verb as follows:-

"furnish, provide (thing needed, or person,
receptacle. etc., with or with thing needed);
. . . Make up for, meet, serve to obviate,
(deficiency, need, loss); . . ."

9. The Macquarie Dictionary defines the verb "supply" as:-

"to furnish (a person, establishment, place,
etc.) with what is lacking or requisite. To
furnish or provide (something wanting or
requisite): . . . to satisfy (a need, demand,
etc.)"

10. Although none of the works just referred to shows the word to have the meaning "give" or "gift", yet Webster's Dictionary, 2nd Edn. (1966) does and I have no doubt that the word "supply" as used in the Ordinance can, depending upon the circumstances, have that meaning in an appropriate case.

11. In Dempsey's case the Court of Appeal said, again at p 293, speaking of the word "supply":-

"It is an act, so it seems, which is designed
to benefit the recipient. It does not seem
to us that it is apt to describe the deposit
of an article with another person for safe
keeping, as was the case here. The example
was canvassed in argument of a person who
hands his coat to a cloakroom attendant for
safe keeping during the show in a theatre or
cinema. It could hardly be said that the
person handing the coat supplies it to the
cloakroom attendant. Nor do we think it
makes any difference that the cloakroom
attendant wishes in one sense to get the
coat, thinking that he may get a tip at the
end of the evening. That is not the sort of
wish or need which is envisaged by the
definition of the offence. That sort of
transfer is a transfer for the benefit of the
transferor rather than the transferee."

12. In Delgado v. R. (1984) 1 All ER 449, the police had found the appellant in the process of transporting a substantial quantity of cannabis. At the trial his evidence was that he had been given the cannabis by two friends for safe-keeping and when apprehended he was on his way to deliver the drug back to them. He pleaded not guilty to a charge of possessing the drug with the intent of supplying it to another but was found guilty, the learned trial Judge ruling that on that evidence he had no defence. On appeal he submitted that since his two friends were in possession of the cannabis because by the relevant section the things which a person had in his possession should be taken to include anything subject to his control which was in the custody of another, he had committed no offence because the word "supply" meant the act of providing drugs to a person who had no ownership or control over them. The meaning of the word "supply" which commended itself to the Court of Appeal in Dempsey's case appears not to have been considered.

13. In R. v. Maginnis [1961] UKHL 6; (1986) 2 All ER 110, the appellant claimed that a friend had left a package containing cannabis resin in his car and that he expected the friend to collect it from him. He appealed against conviction on the ground that he did not intend to "supply" the drug. The Court of Appeal considered that the decisions in Delgado and Dempsey could not be reconciled. (It should be noted that in Dempsey's case the Court of Appeal gave consideration to Delgado.) In R. v. Maginnis the Court preferred to follow the approach in Dempsey that for there to be a "supply" there must be a transfer of physical control which is for the benefit of the recipient of the article. The Crown had contended that a transferee obtains a benefit when he receives back an article which he has placed in another's custody. The Court did not accept that the resumption of actual possession, which was the only discernible benefit, was sufficient to constitute the return an act of supply. It would be unacceptable, it said, to hold that A., in possession of a controlled drug, did not "supply it to B." when he handed it to B. for safe-keeping, e.g. while A. made a telephone call but that B. in returning it did "supply" it to A."

14. Counsel for the Crown had warned that it would be easy for a defendant charged with an offence contrary to s.5(3) of the 1971 Act (the equivalent of s.4(3) of the Ordinance) to contend that he was a mere bailee. The Court observed first that if the bailor could be identified he could be prosecuted under s.5(3) by virtue of s.37(3) of the 1971 Act. That section provided for the purposes of the English Act that the things which a person has in his possession shall be taken to include anything subject to his control which is in the custody of another; secondly, that the plausibility of such a contention obviously depended upon the circumstances of the case; thirdly, in appropriate circumstances, e.g., where there is a large quantity of drug and the defendant is a "minder" it will be open to charge conspiracy to supply and, fourthly, the circumstances of possession affect the penalty for that offence.

15. Any conflict between the three decisions was resolved by the House of Lords to which the Crown appealed successfully in Maginnis' case. R. v. Maginnis (1987) 2 WLR 765 (5 March 1987). The question which the House posed for itself, a question somewhat different from that which the Court of Appeal had certified, was:-

"Whether a person in unlawful possession of a
controlled drug which has been deposited with
him for safe keeping has the intent to supply
that drug to another if his intention is to
return the drug to the person who deposited
it with him."

16. By a majority (Lord Keith, with whom Lords Brandon, Mackay and Oliver concurred), Lord Goff dissenting, the House answered the question in the affirmative.

17. Despite what I describe with the greatest respect as the attractive reasoning of Lord Goff, I am, I think, constrained to follow the decision of the House. That being the case the only question is whether the appellant was in unlawful possession of the cannabis. That he had it in his possession cannot be disputed. Possession of cannabis is unlawful by virtue of the combination of s.4(2) of and Schedule 12 to the Ordinance. No explanation inconsistent with the illegality of his possession of the cannabis was tendered by the appellant in an attempt to dislodge the presumption of guilt in that regard raised by the prima facie case. No facts to dislodge that case appear.

18. The appeal is dismissed. The finding of guilt made and the conviction recorded by the learned Magistrate are confirmed as is the penalty imposed by him.

19. I will hear argument on the question of costs.