Re Warren Stephen Foster v R [1983] FCA 49 (23 March 1983)

FEDERAL COURT OF AUSTRALIA

Re: WARREN STEPHEN FOSTER
And: THE QUEEN
No. G68 of 1982
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
McGregor J.
Lockhart J.

CATCHWORDS

Criminal Law - Appeal against conviction - Whether Ordinance valid - Whether trial Judge misdirected jury - Whether grounds of appeal raised questions of law.

Poisons and Narcotic Drugs Ordinance 1978, s.4(3).

HEARING

CANBERRA
23:3:1983

ORDER

1. The appeal be dismissed.

2. The matter be remitted to the Supreme Court for the question of sentence to be dealt with.

DECISION

Warren Stephen Foster appeals to this Court against his conviction by the Supreme Court of the Australian Capital Territory and a jury on 1 September 1982 of the offence of having a controlled substance, namely cannabis, in his possession on 4 January 1980 for the purpose of supplying it to another person.

The offence is created by sub-section 4(3) of the Poisons and Narcotic Drugs Ordinance 1978 ("the Ordinance"). After recording a conviction on the jury's verdict of guilty on 1 September 1982, the learned trial Judge adjourned the further hearing of the matter to 1 December 1982 and deferred passing sentence upon the appellant in the meantime. His Honour ordered that the appellant be released upon his own recognizance in the sum of $500 on condition that he appear in court on 1 December. The appellant filed a notice of appeal against his conviction on 22 September 1982 before sentence was passed.

The matter has a rather lengthy curial history. This was a retrial of the charge against the appellant. At his first trial, he was convicted and the learned sentencing Judge ordered that he be released on his own recognizance in the sum of $1,000 to be of good behaviour and on condition that he pay to the Commonwealth a penalty of $500 by fortnightly instalments of $10 each. The appellant appealed against that conviction to this Court, which was heard on 11 January 1982 by a differently constituted bench.

The Court allowed the appeal, set aside the verdict and remitted the matter to the Supreme Court for a new trial. The judgment is reported in [1982] FCA 2; 38 A.L.R. 599. It is from his conviction at the second trial that the appellant appeals. The appellant was unrepresented at both trials, the first appeal and this appeal.

The Crown case was basically that on 4 January 1980, a policewoman and five detectives of the drug squad visited the appellant's residence in Narrabundah, where they found cannabis and cannabis seeds in a number of bags in different rooms of the house and 132 plants growing in the rear yard, some under hot-house conditions. The appellant was said to be in possession of about 20 kilograms, 20,058 grams, of cannabis.

There was little dispute at the trial about the facts. There was ample evidence that the appellant had cannabis in his possession; indeed he did not dispute it. The principal question in issue was whether he had it in his possession for the purpose of supply to other persons. The evidence against the appellant included that of the police officers who visited his house, found cannabis there and had conversations with him both at the house and later at the police station.

No case has been established that the evidence of the conversations was wrongly admitted, and the effect of the conversations was in essence to establish that the cannabis in the possession of the appellant was for supply to other persons.

Turning to the specific grounds of appeal relied on by the appellant in this appeal, of which there are twelve in all, it is convenient to consider first ground 4, where the appellant alleges that the trial Judge erred in law in holding that the Ordinance was a law for the peace, order and good government of the Territory, pursuant to the Seat of Government Administration Act 1910.

The ordinance concerns poisons and narcotic drugs, including their use, possession and supply. Plainly this is a law for the peace, order and good government of the Territory, pursuant to sub-section 12(1) of the Seat of Government Administration Act 1910.

Grounds 7 and 8 may be conveniently considered together. Ground 7 reads that:-

"The Trial Judge erred in law in directing the jury in respect of their duty to convict".

Ground 8 :-

"The Trial Judge erred in law in directing the jury that the views of the accused were wrong".

There were essentially two submissions made by the appellant falling within the broad ambit of these grounds, namely, first that his Honour directed the jury that if they were satisfied beyond reasonable doubt that the appellant was guilty, then they should convict him. This direction has not been shown to be in error.

Second, it was submitted by the appellant that a direction of the trial Judge to the jury in these terms was erroneous, namely:-

"The accused has had a lot to say to you about his response or how you should view any directions of that nature that I make to you and he has tried to persuade you that you are not bound to convict, that you can return any verdict, if you think that the law is unjust or immoral, that this is victimless crime with which he has been charged, and he does not feel like a criminal. He has not done anything evil or harmful to other people, he has got no guilty state of mind and therefore he is not a criminal and therefore you cannot convict him; well, ladies and gentlemen, that is a completely wrong approach.

The legislature has made this an offence. It may be that there are all sorts of movements to have the politicians change the law in the ordinary legislature of the territory and in accordance with the ordinary legislative processes".

That is taken from page 260 of the appeal book. Plainly his Honour was not in error in this direction. Ground 9 of the grounds of appeal is that:-

"The Trial Judge erred in law in directing the jury to disregard authoritive (sic) opinion on matters of law".

It appears that the appellant cited to his Honour a passage from a work by Karl Oliver Kroner, Law as Fact. It does not appear to the Court from a reading of his Honour's charge to the jury that his Honour referred to this work at all, and nor of course was he required to do so. It is for the Judge to instruct the jury on matters of law. What he says about the law and what authorities, if any, he cites are matters for him, provided that he does not stray into impermissible fields. His Honour did not err in this respect.

Ground 11 which is relied on by the appellant is that:-

"The Trial Judge erred in law in failing to recognize the Ordinance repugnant to the free practice of religion guaranteed by Australian Constitution".

The appellant submitted that such guarantees of religious freedom as are afforded by the Constitution - see s.116 - extend to freedom of expression and practice of morals, ethics or philosophies. The belief that cannabis is a harmless substance to smoke, consume, possess or supply is not a religious belief for the purposes of s.116; there is no substance in this submission.

The appellant conducted his own appeal before us. We have examined the appeal book closely to see if there is any substance in any of the grounds of appeal, but we find none. The trial was conducted fairly; indeed, the trial Judge was careful to safeguard the interests of the appellant who conducted his own defence. We see nothing to suggest that the trial miscarried.

The real attack made by the appellant against his conviction is expressed in grounds of appeal numbered 1,2,3,5,6,10 and 12, which we need not set out in terms. In substance, the appellant asserts that the law prohibiting the possession of cannabis for the purpose of supply is outdated, wrong and based on erroneous assumptions, namely that cannabis is harmful to human beings and inimical to social order.

Different views, of course, are held in our community on the question of the dangers, if any, of cannabis and whether its possession should be legalized, but these are essentially matters for the legislature to consider. The arguments of the appellant raise no question of law.

Accordingly, the Court would dismiss the appeal and remit the matter to the Supreme Court for the question of sentence to be dealt with.