Williams v R [1978] HCA 49; (1978) 140 CLR 591 (8 December 1978)

HIGH COURT OF AUSTRALIA

WILLIAMS v. THE QUEEN [1978] HCA 49; (1978) 140 CLR 591

Criminal Law

High Court of Australia
Gibbs(1), Mason(1), Jacobs(2), Murphy(3) and Aickin(4) JJ.

CATCHWORDS

Criminal Law - Drugs - Offences - Possession of prohibited plant - Possession - Knowledge - Minute quantity - Health Act 1937-1976 (Q.), ss. 5, 130 (1).

HEARING

Brisbane, 1978, June 2.
Sydney, 1978, December 8. 8:12:1978
APPLICATION for special leave to appeal from the Supreme Court of Queensland.

DECISION

Dec. 8.
The following written judgments were delivered: -
GIBBS AND MASON JJ. This is an application for special leave to appeal from a decision of the Queensland Court of Criminal Appeal dismissing an appeal by the applicant against his conviction by a magistrate on two charges under the provisions of the Health Act 1937 (Q.), as amended ("the Health Act"). The applicant was convicted on a charge of having on 16th July 1977 in his possession a prohibited plant, namely Indian hemp (cannabis sativa), not being licensed or authorized by, or under, the Health Act so to do, and it is from this conviction that he seeks to appeal. He was also convicted on a charge of having on the same date in his possession one bamboo pipe which he had used in connexion with the smoking of Indian hemp. The applicant does not seek to appeal against this conviction. (at p594)

2. The point of the case, and it is an important point, is that the quantity of the drug found in the applicant's possession was minute, so small that it was not measured, the applicant's case being that a person must be in possession of a measurable quantity of a prohibited plant before he can commit the offence of having possession of that plant. (at p594)

3. The relevant evidence for the Crown was given by Constable Guild and Mr. Kleinschmidt, a botanist. Constable Guild found fragments of green leaf material in the pockets of two coats belonging to the applicant. When asked, "What is the green leaf material?" the applicant replied, "Probably cannabis." In response to the further question, "Is it yours?", he said, "If it's cannabis, it would be." The pockets of the coats were subsequently examined microscopically by Mr. Kleinschmidt and found to contain cannabis sativa (Indian hemp). He said that there were fragments adhering to the bottom of the pockets. He gave the following evidence:
"Q. Now, you've examined that material microscopically? - Yes.
Q. Are you able to say what quantity of the offending material is there, Q. Are you able to say whether the . . . the grain or the fine material there, is that substance alone or is it combined with dirt and dust? - There is a lot of other debris there. Yes.
Q. Would you agree with me that perhaps the amount of pure cannabis there might be of the order micrograms? - Yes.
Q. Do you agree that both those pockets have sufficiently rumpled linings so that the material can easily be lost between the folds of the . . . the pockets, themselves? - Yes. Yes.
Q. Would you agree that from the point of view of the user of the drug, cannabis, there is not a usable quantity in those coats? - This is a moot point, actually. Any quantity is usable but it isn't . . . isn't very much. No. It's a very small quantity. Q. Would you agree, however, that for practical purposes it's not a practical possibility for someone to extract any usable quantity of the . . . - I agree. Yes.
Q. . . . drug? Yes. You're not able, when you pinch out some of the material to sort it out on your hand and say this is . . . is dust and this is cannabis and so on? - No, not without the aid of a microscope would I attempt this sort of thing."
The magistrate accepted Mr. Kleinschmidt's evidence. (at p595)

4. The offence of which the applicant was convicted is created by s. 130 of the Health Act. The section is the first of a series of provisions contained in Pt IV which is headed "FOOD, DRUGS AND OTHER ARTICLES". Section 130, so far as it is material, provides: "Possession of and trafficking in dangerous drugs restricted. (1) A person shall not - (a) have in his possession a dangerous drug, or a prohibited plant, or procure for himself a dangerous drug or a prohibited plant or attempt so to do, save under and in accordance with the authority of a licence or other authorization provided by or under this Act".
A penalty of imprisonment with hard labour for two years or a fine of $2,000 or both is prescribed. (at p595)

5. The expression "have in possession" is defined by s. 5 of the Health Act, subject to any contrary intention, as including "having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question." (at p595)

6. The expression "prohibited plant" is defined to mean -
"A plant or a species of a genus of plant declared under this Act to be a prohibited plant: the term includes, with respect to a plant so declared or a plant of a species so declared, the seeds (whether capable or incapable of germination) and all other parts thereof, whether attached thereto or detached therefrom." (at p595)

7. The word "drug" is broadly defined to comprehend any article used for or in the composition or preparation of medicine for internal or external consumption or use by man, including such things as disinfectants, germicides, preservatives, tobacco, narcotics, soaps and all other toilet articles. The expression "dangerous drug" includes any dangerous drug and any article or substance declared to be a dangerous drug pursuant to s. 130N (s. 130O (a)). (at p596)

8. Indian hemp (cannabis sativa) was declared to be a prohibited plant for the purposes of the Health Act by the Governor-in-Council on 13th July 1972 pursuant to s: 130N (1) (b) which enables the Governor-in-Council by Order in Council to declare any plant or any species of a plant to be a prohibited plant for the purposes of the Health Act. (at p596)

9. Cannabis and cannabis resin have also been declared to be dangerous drugs. They are included in Sch. 8 of the Poisons Regulations which were made pursuant to s. 152 of the Health Act. That section enables the Director-General to make regulations "with respect to" "defining dangerous drugs". The relationship between cannabis sativa on the one hand and cannabis and cannabis resin on the other hand was not discussed in evidence or in argument. (at p596)

10. Section 130 (2) provides that a person shall not, except with authority -
"(a) produce, prepare, or manufacture a dangerous drug or attempt so to do;

(b) cultivate a prohibited plant or attempt so to do;
(c) sell, give, supply or procure, or attempt so to do, or offer to sell,

give, supply or procure, to or for another person or otherwise deal or trade in a dangerous drug or a prohibited plant or attempt so to do;
(d) have in his possession a dangerous drug, or a prohibited plant for a purpose specified in paragraph (c) of this subsection;
(e) permit or suffer premises of which he is owner or occupier or in the management whereof he is concerned to be used for the production, preparation, manufacture, sale, supply, distribution, smoking, administration or consumption of a dangerous drug or for the cultivation of a prohibited plant."
Neither s. 130 nor any other provision in the Act directly prohibits the smoking or consumption of a dangerous drug or a prohibited plant. (at p596)

11. Section 130J deals with matters of proof respecting possession of drugs. Sub-section (1) provides that in a proceeding brought for an offence in relation to possession of a dangerous drug, a person who, contrary to s. 130, has in his possession a quantity of that drug in excess of a quantity prescribed under this Act for the purposes of this paragraph in respect of that drug shall be deemed to have possession of the drug for a purpose specified in s. 130 (2) (c) unless he shows the contrary. The quantity of cannabis prescribed for the purpose of s. 130J (1) (a) by reg. A2.08 of the Poisons Regulations is 25.0 grams. (at p596)

12. Sub-section 2 (b) provides that in respect of a charge of an offence against any provision of s. 130 proof that a dangerous drug was at the material time upon premises occupied by or under the control of any person is proof that the drug was then in his possession unless he shows that he then neither knew nor had reason to suspect that the drug was upon the premises. Sub-section (3) provides that a person charged with an offence against s. 130 (2) (d) shall be liable to be convicted of the charge notwithstanding that the purpose for which the drug or plant was had in possession as alleged in, or in connexion with, the charge is not proved to the satisfaction of the court if the court is satisfied that the drug or plant was had in possession for a purpose specified in s. 130 (2) (c). (at p597)

13. The problem which arises in this case has been considered in the United Kingdom and in New Zealand. In Reg. v. Worsell (1970) 1 WLR 111; (1969) 2 All ER 1183 possession of a tube containing a few small droplets of a drug, discernible only with the aid of a microscope, incapable of measurement or use, was held not to constitute the offence of having possession of the drug. Salmon L.J., after observing that the droplets were invisible to the human eye, said (1970) 1 WLR, at p 112; (1969) 2 All ER, at p 1184 : "Whatever it (the tube) contained, obviously it could not be used and could not be sold. There was nothing in reality in the tube." Then in Reg. v. Graham (1970) WLR 113; (1969) 2 All ER 1181 a very small quantity of cannabis which was capable of being weighed and measured was held sufficient to constitute the offence. Subsequently, in Bocking v. Roberts (1974) QB 307 a quantity of cannabis resin consisting of at least 20 micrograms was found by the majority (Lord Widgery C.J. and Bean J., with MacKenna J. dissenting) to be adequate to sustain the conviction. Lord Widgery C.J. said (1974) QB, at pp 309-310 : "The distinction which has to be drawn in cases of this kind is whether the quantity of the drug was enough to justify the conclusion that the defendant was possessed of a quantity of the drug or whether, on the other hand, the traces were so slight that they really indicated no more than that at some previous time he had been in possession of the drug." (at p597)

14. This expression of the criterion to be applied was recently accepted by the Court of Appeal in Reg. v. Carver (1978) QB 472 where the quantity of cannabis resin was invisible to the naked eye and consisted of not less than 20 micrograms in each of two roach ends. The evidence was that 20 micrograms could not be used and that for use in any manner prohibited by the statute a quantity of not less than 50 milligrams would be required. It was held that, applying a common sense test, the quantity was so minute as to amount to nothing. In its judgment the Court of Appeal said (1978) 1 QB, at pp 477-478 :
"However, this Court is of the opinion that, whilst it would be inappropriate to rely upon the ordinary maxim of de minimis, if the quantity of the drug found is so minute as in the light of common sense to amount to nothing or, even if that cannot in a particular case be said, if the evidence be that the quantity is so minute that it is not usable, in any manner which the Misuse of Drugs Act, 1971 was intended to prohibit, then a conviction for being in possession of the minute quantity of the drug would not be justified."
Leave to appeal from the decision of the Court of Appeal was refused by the House of Lords (1978) 1 WLR 925 . (at p598)

15. In Police v. Emirali (1976) 2 NZLR 476 the New Zealand Court of Appeal decided that measurable quantities of cannabis weighing 1.7 milligrams and 6 milligrams were too minute to constitute possession of the drug. The Court of Appeal, after remarking that s. 6 of the Narcotics Act 1965 (N.Z.) has as its purpose the proscription of the illicit use of cannabis, rather than the proscription of the existence of narcotics as an end in itself (1976) 2 NZLR, at p 480 , concluded that the quantity was so small as to be unusable, although the Court pointed out that it was relevant to consider whether the quantity found in a given case might reasonably be used to supplement a similar sample or samples to give efficacy to the whole. (at p598)

16. All the cases to which we have referred reflect a common approach in rejecting the notion that it is sufficient to ground the offence of having possession of a drug that the defendant is found to be in possession of a microscopically or scientifically detectable quantity of it, even though that quantity is not visible to the naked eye. In adopting this approach the courts have applied different criteria, no doubt influenced by the nature and scope of the legislation under consideration in the particular case. Thus in Police v. Emirali the New Zealand Court of Appeal applied the test of utility, having regard to the primary statutory purpose in prohibiting the illicit use of cannabis. Yet in the English decisions less emphasis has been placed on the purpose of the relevant legislation and more attention has been given to the problem as one which is inherent in the concept of possession as the foundation of the offence. So regarded the prohibition has been seen to be aimed, not at the possession of a minute quantity of a drug incapable of discernment by the naked eye and detectable only by a scientific means, but at the possession of such a quantity of the drug as makes it reasonable to say as a matter of common sense and reality that it is the drug of which the person is in possession. (at p599)

17. There are differences between the provisions in Pt IV of the Act and the provisions of the Misuse of Drugs Act, 1971 (U.K.) and the Narcotics Act 1965 (N.Z.). For example, s. 6 of the Narcotics Act prohibits, except pursuant to a licence or regulations, the possession, consumption, smoking or other use of any narcotic. As we have observed, there is no express prohibition in Pt IV against the smoking or consumption of a dangerous drug or prohibited plant. Moreover, a distinction is drawn between mere possession (s. 130 (1) (a)) and possession for a purpose satisfied in s. 130 (2) (c) - see s. 130J. To the extent to which a purpose of prohibiting the smoking, administration and consumption of a dangerous drug may be implied from s. 130 (2) (e) and the concluding words of s. 130 (1), there are no similar provisions which apply to prohibited plants. The differences between the Narcotics Act (N.Z.) and the Queensland statutes make it difficult to apply the entirety of the reasoning in Police v. Emirali which went to sustain the "usability" or "utility" test, a test which has been applied in the United States (People v. Leal (1966) 413 P (2d) 665, at pp 669-670 ; Edelin v. United States (1967) 227 A (2d) 395, at p 399 ). (at p599)

18. We are left, then, with the general question of what is meant by possession of a drug or a prohibited plant when it is made the foundation of an offence. Could it be rationally intended by Parliament that a person commits an offence where he is found to have in his clothes or effects a quantity of the offending material so minute that it is invisible to the naked eye? The answer must be in the negative. If it were otherwise, countless examples might be given of circumstances in which innocent persons might be found guilty of an offence, without knowing that they were in possession of the drug or plant in question. A person whose container or clothing has been used temporarily to hold a prohibited material would be guilty of the offence merely because specks or fragments of the material measurable only in micrograms continue to adhere to the container or clothing after the contents have been removed and it is, to all intents and purposes, empty. To say that a person in the position of the applicant has possession of the prohibited material merely because by scientific means it is possible to conclude that there are some specks or fragments measurable in micrograms in the pocket of his coat is in reality to penalize him for a possession of the material in the past, for all that remains are the vestigial remnants of a past possession. Indeed, if, as the Crown urges, possession is made out when the slightest traces of a material are discovered in a container, on clothing or on a utensil by scientific means, extraordinary situations may arise, so advanced are the techniques and processes of modern science. For all we know, it may be that there are techniques capable of detecting the most minute trace of a material in the pocket of a coat, long after the quantity of which the traces are a residue has been removed from the coat, notwithstanding that the coat has been cleaned in the meantime. Reg. v. Warner (1969) 2 AC 256 does not provide a defence in all the situations of this kind which may arise. (at p600)

19. A consideration of these situations confirms us in thinking that when the Act creates the offence of having possession of a dangerous drug or a prohibited plant, without adverting to quantity, it contemplates possession, not of a minute quantity incapable of discernment by the naked eye and detectable only by scientific means, but a possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession. Even though the statute is aimed at a social evil, if it is ambiguous or silent upon a particular point it is permissible to construe the statutory provision so as to avoid an unfair or unjust result. We prefer to express the concept of possession in the terms which we have used rather than in terms of "measurable" or "usable" quantities. A minute quantity is nonetheless measurable by scientific instruments and techniques. And to adopt the test of "usable" quantity would be, as Stable S.P.J. pointed out in the Queensland Court of Criminal Appeal, to promote a never-ending disputation as to what is meant by, and as to what constitutes, a usable quantity of a particular drug or prohibited plant. As was pointed out in Police v. Emirali (1976) 2 NZLR 476 , in applying the "usability" or "utility" test regard may be had to the possibility that the quantity found could be combined with other quantities so as to make an effective quantity. This in itself would create an extra dimension of uncertainty in the application of the suggested test. (at p600)

20. The fact that a quantity of 25 grams of cannabis has been prescribed for the purpose of s. 130J does not support the view that the legislature had this quantity in mind as the minimum quantity to constitute possession for the purposes of s. 130. Nor does the existence of s. 130J in our view throw any light on the quantity which is sufficient to sustain possession for the purposes of s. 130. (at p601)

21. In conclusion we should state that the applicant's comment that the green leaf material in the pocket was "Probably cannabis" does not assist the Crown. It does not overcome the deficiency, that of quantity, which is the consequence of our interpretation of s. 130. At best it was an admission that the applicant had possession of the prohibited plant at some earlier time. (at p601)

22. For these reasons we would grant special leave to appeal and allow the appeal. (at p601)

JACOBS J. I agree with the conclusion of Gibbs and Mason JJ. and with their reasons. I do not wish to add anything except a reference to the unreported decision in Barrett v. Broughton (1978) 2 Crim LJ 174 where the facts and the relevant legislation were very similar to those in the present case. The conclusion of the majority in that case cannot be sustained. (at p601)

MURPHY J. Section 130 of the Health Act 1937 (Q.), as amended, states:

"Possession of and trafficking in dangerous drugs restricted.
(1) A person shall not -
(a) have in his possession a dangerous drug, or a prohibited plant or

procure for himself a dangerous drug or a prohibited plant or attempt so to do save under and in accordance with the authority of a licence or other authorization provided by or under this Act;

. . .
Penalty: Imprisonment with hard labour for two years or a fine of $2,000

or both such imprisonment and such fine." (at p601)

2. Section 5 of the Health Act provides that, unless the context otherwise indicates, "have in possession" includes "having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question"; "prohibited plant" is "a plant or a species of a genus of plant declared under this Act to be a prohibited plant: (the term includes, with respect to a plant so declared or a plant of a species so declared, the seeds and all other parts thereof, whether attached thereto or detached therefrom)". (at p602)

3. Cannabis sativa (Indian hemp) is a prohibited plant (Declaration by Governor-in-Council, 13th July 1972, pursuant to s. 130N (1) (b) of the Health Act). Apparently, as the respondent's counsel explained, this means that, because of the definition of "prohibited plant", those parts of the plant which have been and still are widely used for industrial and domestic purposes (the fibre, for example, is used for ropes, twine, sacks and bags) come within the scope of the prohibition. (at p602)

4. The applicant was charged with having in his possession on 16th July 1977 a prohibited plant, Indian hemp (cannabis sativa), not being licensed or authorized by or under the Health Act. He was convicted by Mr. Blythman, S.M., and fined $125.00. His appeal to the Court of Criminal Appeal of Queensland (Wanstall C.J., Stable S.P.J. and Dunn J.) was dismissed and he now seeks special leave to appeal. (at p602)

5. The cannabis sativa, subject of the charge, consisted of some fragments of green leaf material in the bottom of the pockets of the applicant's coat. It was mixed up with pocket fluff and was so minute that the analyst called by the prosecution (whose evidence was accepted by the magistrate) did not bother to weigh it. He estimated it as of the order of micrograms, that is millionths of a gram and agreed that, for practical purposes, it was not possible for someone to extract any usable quantity. (at p602)

6. In my opinion, this is a case for the application of the principle that the law is not concerned with trifles (de minimis non curat lex). This principle has been recognized throughout legal history and is often applied to avoid imposition of punishment after a finding of guilt where an offence is trivial. This application of the principle is expressed in various State Acts of general application (and in s. 19B of the Crimes Act 1914 (Cth), as amended). The de minimis principle is also applied to avoid hysterical or oppressive law enforcement; cases in which a finding of guilt would tend to bring the law or the judicial system into ridicule or contempt because of triviality. This is such a case. Even if there were no other basis for treating the conviction as bad, it should be set aside on this ground. However, there is another basis which is not clearly separable from the de minimis principle. (at p602)

7. The amount of cannabis sativa was so little that even if the applicant theoretically had possession, he did not have possession within the meaning of the Health Act. Possession within the meaning of the Health Act requires knowledge that the person charged has the thing possessed: see Reg. v. Warner (1969) 2 AC 256 . It is not necessary to decide now how specific the knowledge must be. Knowledge by the person charged that he has the prohibited substance is not enough where the amount of material is so small or so dispersed or mixed up with other material that it cannot in practice be used in the way contemplated by the Act. For example, it is well-known that sea water, even a few drops, contains extremely minute quantities of gold and other elements detectable by sophisticated analytical techniques which have been available for decades. Inevitably a swimsuit immersed in the sea will contain gold. It would be foolish to charge a swimmer who is aware of this with possession of gold. Radioactive material from atmospheric nuclear tests is so dispersed over the surface of the earth that every person's body contains minute quantities. It would be foolish to suggest that a person who knew he had articles containing products of the dispersion is in breach of a statute which prohibits possession of radioactive material. However, in this case the prosecution contended that even if the quantity of cannabis sativa were one millionth of a microgram, the applicant would still be guilty. (at p603)

8. By the Health Act, the Parliament of Queensland should be presumed to be dealing in a serious way with what it deems to be the misuse of certain substances. In order to carry out the legislative intent, it is natural to exclude from the scope of the Act those cases of possession where the circumstances disclose that as a practical matter the substance cannot be used. With cannabis sativa, tiny fractions of a gram (a few hundredths or less) have no practical potential for use, alone or as part of a mixture. If the amount involved is so minute (even if the elements of possession are otherwise present), the case does not come within any sensible application of the Health Act. In the application of this approach, there may be borderline cases; this is no novelty. The present case is far from borderline. The amount was about one ten-thousandth of what could be regarded as borderline. The problem of borderline cases will not arise where there is common sense law enforcement which traditionally avoids the prosecution of cases bordering on trivial. (at p603)

9. The same approach to similar enactments has been taken in a number of other jurisdictions: by the English Court of Criminal Appeal in Reg. v. Carver (1978) QB 472 , by the New Zealand Court of Criminal Appeal in Police v. Emirali (1976) 2 NZLR 476 and by the Supreme Court of California in People v. Leal (1966) 413 P (2d) 665 (see also Edelin v. United States (1967) 227 A (2d) 395 ; and by Chambers J., dissenting, in the Tasmanian Full Supreme Court in Barrett v. Broughton (1978) 2 Crim LJ 174 ). (at p604)

10. The problem is not solved by attention only to minuteness or visibility. Some substances are powerful and can be used in minute amounts, invisible to the naked eye. For example, it is common knowledge that the derivatives of lysergic acid are often concealed for transport and sale by putting a drop of the dissolved substance on some absorbent material; when dry it is invisible. An animal or plant disease may be highly dangerous in extremely minute invisible quantities. Clearly, minute amounts (invisible to the naked eye) would sometimes come within the scope of an Act such as the Health Act. (at p604)

11. Sensible interpretation of the Health Act requires that this case be regarded as outside its scope. Special leave should be granted, the appeal allowed and the conviction and fine set aside. (at p604)

AICKIN J. This is an application for special leave to appeal from a decision of the Queensland Court of Criminal Appeal. The applicant was convicted before a stipendiary magistrate of the offence of having in his possession a prohibited plant namely, Indian hemp (cannabis sativa), not being licensed or authorized so to do by or under the Health Act 1937-1976 (Q.), as amended ("the Act"). Section 130 (1) (a) of that Act provides as follows:
"(1) A person shall not - (a) have in his possession a dangerous drug, or a prohibited plant or procure for himself a dangerous drug or a prohibited plant or attempt to do so save under and in accordance with the authority of a licence or other authorization provided by or under this Act;" (at p604)

2. The expression "have in possession" is defined by s. 5 of the Act as follows:
"'Have in possession' - includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question;" (at p604)

3. The facts out of which the charge arose may be stated as follows. On 16th July 1977 two police officers (Detective O'Brien and Police Constable Guild) entered the premises where the applicant lived. Detective O'Brien told the applicant that he had information that dangerous drugs and prohibited products were on the premises and that there would have to be a search, and inquired of the applicant which was his room. The applicant indicated his room and said that he was the sole occupant of that room. It was then searched in his presence. During the search, Police Constable Guild found in the wardrobe a stem or stalk about 2.5 inches long which O'Brien said in evidence was similar to the stem or stalk of Indian hemp. Guild showed it to the applicant and asked, "What's this?" The applicant snatched it, ate it and then said, "What's what?" The applicant was warned, and in response said, "Why aren't you chasing heroin users instead of cannabis users?" In the course of the search Guild removed clothing from the wardrobe and in the pockets of two coats he found what he described as "green leaf material". He showed the coats to the applicant who said that the coats belonged to him. On being asked by Guild, "What is the green leaf material?", he replied, "Probably cannabis". When asked, "Is it yours?", he said, "If it's cannabis, it would be." There was also found a bamboo smoking device comprising a bamboo pipe, a length of hose and a silver foil bowl which the applicant said was his and that he had used it a few times to smoke cannabis. The applicant denied making those admissions. However, the magistrate accepted the police evidence, and found that the "green leaf material" was in the pockets of the coats. He concluded that it was unlawfully in the applicant's possession on the date alleged. (at p605)

4. The coats were submitted to a State botanist for examination. The botanist said in evidence that he had examined the pockets of both the coats and had found fragments adhering to the bottom of the pockets and had examined that material under a microscope. He identified it as cannabis sativa, but said that he could not say what the quantity was because "with small quantities, I never bother to weigh them". He agreed that the amount of cannabis there "might be of the order of micrograms". When asked whether there was a usable quantity in the pockets, he answered, "This is a moot point, actually. Any quantity is usable but it isn't . . . isn't very much. No. It's a very small quantity." He was then asked, "Would you agree, however, that for practical purposes it's not a practical possibility for someone to extract any usable quantity of the drug." He answered by saying, "I agree, yes." He was then asked, "You're not able, when you pinch out some of the material to sort it out on your hand and say this is . . . is dust and this is cannabis and so on?", and replied, "No, not without the aid of a microscope would I attempt this sort of thing." He was asked, "Are you able to make some comment about the age of that material?", and answered by saying, "No, except that it . . . it's still green which would imply normally that the material would be of the order of six to twelve months old or no more than six to twelve months old". (at p606)

5. In the Court of Criminal Appeal the conviction was upheld, Stable S.P.J. and Dunn J. delivering separate judgments and the Chief Justice concurring. Stable S.P.J. examined some of the English and New Zealand authorities dealing with similar problems and an earlier Queensland case and discussed some of the tests that have been propounded. He concluded that identifiability of the drug in question was the real test and accordingly upheld the conviction. Dunn J. agreed that the charge of possession was made out if the prosecution proves that what is held in possession has been identified beyond reasonable doubt as a proscribed drug.He also drew attention to s. 130(2) (d) of the Act which creates the offence of having possession of "a dangerous drug" for purposes specified in s. 130 (2) (c) and to s. 130J (1) which requires a person who has in his possession more than a specified quantity of such a drug to be deemed to have such possession for a purpose specified in s. 130 (2) (c). He drew the inference that where the Act regarded quantity as relevant to the offence, then it was specifically mentioned. (at p606)

6. In the Court of Criminal Appeal it was concluded, rightly in my opinion, that the evidence of Guild showed that the fragments were visible to the naked eye and that their colour was observable. It is also clear from the evidence of the botanist that the fragments could neither be identified, nor sorted from dust and other material, without the aid of a microscope. (at p606)

7. The question of whether persons having in their clothing, or in other objects such as bottles or pipes, minute quantities of drugs may be convicted of offences comprising possession, without lawful authority, of such drugs has been the subject of a substantial number of authorities in the courts of most common law countries in recent years. There have been cases in the courts in the United States, Canada, the United Kingdom, New Zealand, South Africa, Tasmania and Queensland. The cases have been analyzed and discussed in two recent and halpful articles, one by Davidson, "Criminal Liability for Possession of Non Usable Amounts of Controlled Substances", Columbia Law Review i.e., vol. 77 (1977), p. 596, and the other by Barlow, "Possession of Minute Quantities of a Drug" (1977) Criminal Law Review, p. 26. Each learned author classifies the cases under substantially the same headings, though in slightly different language. Davidson refers to (1) the "any amount" jurisdictions in which the discovery of useless traces, minute quantities or residues of a drug on an accused person's clothing or in an area under his control may produce criminal liability for present possession, and (2) the "usable amount" jurisdictions in which only possession of a usable quantity of a relevant drug, i.e. a quantity with a potential for future consumption or sale, will warrant conviction, though in such jurisdictions it has been held that the amount of the drug need not be capable of producing the desired psychological or physiological effect. Some courts have, however, held that the discovery of a useless trace of a drug cannot by itself support an inference that the accused knowingly or intentionally exercised control of it, while others have treated minute traces scraped from the lining of coats as supporting the inference that "whatever was in the jacket was there with the defendant's knowledge". Some jurisdictions which have rejected the "usable quantity" standard nonetheless require the discovery of a quantity greater than a microscopic trace to sustain a conviction where there is no additional evidence of "knowing possession". Another view which is referred to as the "intermediate or compromise view" has been adopted in some courts in the United States. That view treats the "usable amount" and the "control of the residues found at the time of the arrest" as bearing not on the defendant's knowledge and control of those quantities, but on his past possession of a usable amount with knowledge. Barlow refers to "the literal rule" which has led to the cases which hold that the finding of any scientifically discernible quantity may be the subject of "possession". His second category comprises cases where the "mischief rule" has been applied. These cases treat the object of the legislation as being the prevention of consumption and sale of the drug, and have resulted in the usable quantity test. He refers to two other approaches which rely on evidentiary matters. Thus, his third category is one which treats "present custody of a minute quantity as evidence of past possession of a larger amount", and the fourth treats the fact of custody of a minute quantity as relevant to proof of knowledge. (at p607)

8. The "any quantity" cases may be illustrated by the decision in Bocking v. Roberts (1974) QB 307 where Lord Widgery (1974) QB, at pp 310-312 drew a distinction between larger quantities and what he called mere microscopic traces "so slight that they really indicated no more than that at some previous time he had been in possession of the drug."He went on to say (1974) QB, at pp 311-312 :
"I think the distinction to which I have referred must be in the mind of the tribunal of fact, that they should approach such questions, not leaving their common sense at home, bearing in mind that there is a heavy onus on the prosecution in all criminal cases to prove beyond all reasonable doubt that the offence has been committed. I think that if tribunals of fact approach this question in that way, we shall get as near to a satisfactory and consistent series of answers as by any other method.
Having so described my views on the principle involved, I must now come back to the case in question. It is to be observed that although the quantity of cannabis in the present case could not be measured in the sense that no precise figure could be given for its weight or size, yet it was measurable in the sense that it must have been at least 20 micrograms.

. . .
although I am not saying that I would have reached the same conclusion if

I had been a member of the bench deciding this issue, I do not find it possible to say that they have gone beyond the legal limits of determination appropriate to a tribunal of fact such as the justices. Therefore in the present case I am persuaded that the right answer is to say that no error of law is to be discerned in the justices' finding and that therefore the appeal should be dismissed." (at p608)

9. This case can no longer be regarded as authority in view of the decision of the Court of Appeal (Criminal Division) (Widgery L.C.J., Davies and Drake JJ.) in Reg. v. Carver (1978) QB 472 where there was also found to be twenty micrograms of the relevant drug. Davies J., delivering the judgment of the Court, said, "It must be remembered that in Bocking v. Roberts (1974) QB 307 the Divisional Court was dealing with a case stated by Justices" and went on to say (1978) QB, at p 478 :
"In the present case, applying the common sense test probably the 20 microgrammes ought to be regarded as amounting to nothing. Bocking v. Roberts (1974) QB 307 ought no longer to be relied upon in support of a contrary view. So far as the 20 milligrammes are concerned, and a fortiori the 20 microgrammes, on the evidence of Dr. Scott these quantities were too small to be usable for any purpose which the Statute was intended to prohibit. It follows that there was in our judgment no evidence in the present case to justify a conviction of the appellant because he was not demonstrated in law and on the evidence to have been in 'unlawful possession of cannabis resin'."
This in effect adopts the dissenting judgment of MacKenna J. in Bocking v. Roberts (1974) QB, at p 312 which was also applied by Stinson J. in Reg. v. Colyer (1974) Crim L Rev 243 where he regarded the finding of 20 micrograms found as scrapings inside a pipe as not proof of actual possession within the meaning of the section. (at p609)

10. In New Zealand, the Court of Appeal in Police v. Emirali (1976) 2 NZLR 476 , upholding Mahon J., adopted the "usable quantity" test. Woodhouse J. delivering the judgment of the Court said (1976) 2 NZLR, at p 480 :
". . . in the ordinary use of language, the serious offence of presently possessing a narcotic does not extend to some minute and useless residue of the substance, whatever might be said about its value as circumstantial evidence of earlier possession . . . when one attempts to understand the ambit of s. 6 of the Narcotics Act it is necessary to keep in mind that the real purpose of the statute is not to proscribe the existence of narcotics as an end in itself. Instead it is to prevent their illicit use. That general purpose indicates the sort of test that can and should be applied in such a case as this".
To the same effect is the decision of the Court of Appeal of the District of Columbia in Edelin v. United States (1967) 227 A 2d 395, at p 339 . (at p609)

11. The possibility that the findings of microscopic traces might be evidence of prior possession of larger quantities was also mentioned by the Court of Appeal in Reg. v. Worsell (1970) 1 WLR 111; (1969) 2 All ER 1183 where minute traces of heroin found in a glass tube were so small that they could not be measured or poured out. The Court said (1976) 1 WLR, at p 112; (1969) 2 All ER, at p 1184 :
"It is a great pity that the indictment was amended and a pity that the case for the prosecution was not that this man had been, at some time prior to the moment when the police arrested him, in possession of a drug. His statement, as already indicated, plus the presence of the tube which had contained the drug, would have been conclusive evidence against him. Unfortunately, however, the case was run wholly on the basis that he was in possession of the drug in the tube at the moment of his arrest. There was no evidence on which the jury could find that at that moment there was in reality any drug in the tube."
No doubt there may be cases in which the discovery of minute traces would be evidence of possession of larger and perhaps usable and more readily identifiable quantities at some earlier time. In many cases, however, the difficulty would be to specify the time and place of such possession with sufficient particularity to support a charge. (at p609)

12. With due respect to those who in many of the cases have suggested that the problem may be solved merely by the application of common sense, I am unable to agree that that is a sufficiently precise or workable basis for this Court to pronounce as the only guide for the courts which try offences of this kind at first instance. In my opinion the solution does not lie in the adoption of "any amount so long as it is scientifically identifiable" as a test, nor in the adoption of a "usable amount" as a test. The former appears to me to lead to results which are unjust and even absurd. The latter test has been adopted by the use of the so-called "mischief rule" of construction and considering the supposed policy of the legislature. On this view it is said that the underlying policy of such legislation is to prevent use and sale of drugs and it is only possession of such quantities as are capable of use or sale which are prohibited by the legislature. There are, however, difficulties about this approach. In the first place the test of usable or saleable quantity lacks precision and would require to be supported by evidence of the practices of those who consume or sell drugs. Then, even if it is right to say that the "social purpose" is to prevent consumption and sale, the legislature's choice of the means to this end is to punish possession and there seems no reason to suppose that the choice of possession as the criminal act was not deliberate. It may be observed that the Act now in question does not make consumption, by smoking or otherwise, an offence, though sale does constitute an offence. I do not consider that the supposed social purpose warrants the restriction of the legislation to possession of a "usable quantity". (at p610)

13. The solution of the problem of minute quantities appears to me to lie in the proper application of what is involved in the concept of "possession". 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, i.e. 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 Z, 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. (at p611)

14. If one seeks to apply this approach to a case where microscopic traces are found in the pocket of an accused's coat, identified as cannabis, but estimated as amounting to no more than a few micrograms, a not dissimilar question would arise. If nothing more appeared, the question would be whether there was any evidence of the required mental element to sustain a finding of possession. If the evidence showed only that Y's coat was available to and occasionally used by others living in the same house, there would be insufficient evidence from which the necessary knowledge could be inferred. (at p611)

15. In Reg. v. Worsell Salmon L.J., speaking for the Court, said (1970) 1 WLR, at p 112; (1969) 2 All ER, at p 1184 :
"But before the offence can be committed it is necessary to show that the accused is in truth in possession of a drug. This court has come to the clear conclusion that inasmuch as this tube was in reality empty (that is, the droplets which were in it were invisible to the human eye and could only be discerned under a microscope and could not be measured or poured out) that makes it impossible to hold that there was any evidence that this tube contained a drug. Whatever it contained, obviously it could not be used and could not be sold. There was nothing in reality in the tube." (at p611)

16. This point has been developed in a number of American cases of which a good example is People v. Leal in the Supreme Court of California (1966) 413 P (2d) 665 . The following passage from the judgment of Berger J. in Reg. v. McBurney (1974) 15 CCC (2d) 361, at pp 374-375 also illustrates the point: "If the statute forbids possession then presumably possession even of a minute trace comes within the statute. But what must be understood is that knowledge precedes intent. If there is only a minute trace that may preclude an inference of knowledge." (at p611)

17. The importance of knowledge in relation to the concept of possession is emphasized by the House of Lords in Reg. v. Warner (1969) 2 AC 256, at pp 280-282 by Lord Reid, by Lord Pearce (1969) 2 AC, at pp 307-308 and by Lord Wilberforce (1969) 2 AC, at pp 310-312 . Lord Pearce (1969) 2 AC, at p 307 said: "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 same point has been made in other cases such as the South African case, R. v. Langa (1936) SALR (CPD) 158 and the Canadian case, Beaver v. The Queen (1957) SCR 531 . It has more recently been dealt with in the Supreme Court of British Columbia in Reg. v. McBurney (1974) 15 CCC (2d) 361 where it was said that if there is knowledge, intent (i.e. intent to control) and control then there is possession in the sense relevant to statutes creating the offence of possession of specified objects or substances. The same point is illustrated by the South Australian decision Carling v. O'Sullivan (1956) SASR 203 where a woman who was sitting in her own car keeping watch for others who were engaged in housebreaking was acquitted on the charge of being in possession of housebreaking implements found in the glovebox, because of insufficient evidence that she knew they were there. (at p612)

18. The definition of "have in possession" which I have quoted above from s. 5 of the Act corresponds with the definition of the same phrase in s. 1 of the Criminal Code (Q.), and requires consideration of the word "custody" as there used. In principle it appears to me that in custody as well as possession there is a necessary element of knowledge. The definition in the Code has been construed as requiring knowledge by the accused that the object possessed was under his control. See Crudginton v. Cooney; Ex parte Cooney (1902) St R Qd 176, at pp 180-181 where Power J. said:
"The defendant's contention is that he never had possession of the skin on which he is charged, and that he had no control over it and never knew it was there. The term 'have in possession' under the Criminal Code 'includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person and although another person has the actual possession or custody of the thing in question.' Power to exercise control over a given object is the criterion of possession; but in order to exercise such control, it is necessary that the person possessing should know he has control. "The word possession imports knowledge of that which is possessed,' Reg. v. Cohen, per Watson B. (1858) 8 Cox CC 41, at p 42 at p. 42 - 'unless the things were upon his premises with his knowledge they were not in his possession at all,' Reg. v. Willmett (1848) 3 Cox CC 281, at p 283 , in both of which cases the offence charged was having possession of marked naval stores." (at p612)

19. In Molloy v. Hallam (1903) St R Qd, at p 282 which dealt with a charge of possession or custody of the skin of an animal reasonably suspected of being stolen, Griffith C.J. in delivering the judgment of the Full Court said (1903) St R Qd, at pp 288-289 :
"Chubb J. thought that there was no evidence of the hide being in the defendant's possession to his knowledge, and held that a mens rea was necessary. Section 23 of The Criminal Code provides that a person is not criminally responsible for anything that occurs independently of his will. A man cannot therefore be convicted of having possession of property supposed to be stolen if he knows nothing about the possession. The conviction, therefore, was rightly quashed, and the appeal must be dismissed. I do not wish to be misunderstood in this respect. The foundation of a prosecution for this offence is the finding of the thing in the possession of the defendant. It must be shown that it is in his possession with his knowledge; and when once the thing is found in his possession in that sense, and it is shown that there are reasonable grounds for suspecting it to have been stolen, then he is called upon to account for the possession." (at p613)

20. The critical question in the present case is, therefore, whether there was sufficient evidence of knowledge of the presence of cannabis sativa in the pockets of the coats to supply the necessary mental element to prove possession in the sense used in s. 130 (1) (a) or "control" within the definition of "have in possession" in s. 5. (at p613)

21. This case is not one in which the only evidence is the identification of a few micrograms identified in the dust and fluff in the applicant's pockets. If that were all, I do not think that there would be sufficient evidence of knowledge of the presence of cannabis to support a finding of possession or control. However, there was additional evidence in the statements found to have been made by the applicant and quoted above, namely, "Probably cannabis", and in reply to the question, "Is it yours?", the answer, "If it's cannabis, it would be". Those statements are, in my opinion, entirely equivocal as to knowledge of the presence of cannabis in the coat pockets before the police examination of the contents. They are at least equally consistent with a knowledge of the previous presence of cannabis in those pockets and a realization, on the discovery of "green leaf material" by the police that some fragments might or did remain. Those words do not, in my opinion, provide evidence of knowledge, whether of possession or control. It is of interest to note the magistrate applied the test of knowledge in dealing with the charge relating to cannabis found in a knapsack present in the accused's room as to which he said was not his and that he did not know what was in it. That evidence being accepted, or at least raising a doubt, he was acquitted of possession on that charge. (at p613)

22. In my opinion, therefore, there was no evidence upon which the applicant could have been convicted of possession of cannabis within the meaning of s. 130 (1) (a) of the Act. (at p614)

23. Accordingly, I think that special leave should be granted and the appeal allowed. (at p614)

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order of the Court of Criminal Appeal of Queensland set aside in so far as it relates to the offence of possession of a prohibited plant and in lieu thereof order that the appeal to that Court against conviction for that offence be allowed and that the said conviction and sentence thereon be quashed.