Exercise caution with possession of your meds

CITATION:	QPS v  Price  & Anor [2014] QMC 31
PARTIES:	QPS (Prosecution) v Glen  Price  (First Defendant) Deborah Sells (Second Defendant)
FILE NO/S:	MAG-00213354/13 MAG-00213850/13
DIVISION:	Magistrates Courts
PROCEEDING:	Trial
ORIGINATING COURT:	Innisfail
DELIVERED ON:	6 June 2014
DELIVERED AT:	Innisfail
HEARING DATE:	16 May 2014
MAGISTRATE:	J Brassington
ORDER:	I find Defendant Sells guilty and I find Defendant  Price  guilty of the supply charge and not guilty of failing to keep a drug in his possession
LEGISLATION:	Drugs Misuse Act 1986 – Supply Health (Drugs and Poisons) Regulation 1996

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QMC/2014/31.html?stem=0&synonyms=0&query=title(price%20)

On the 31 October 2013 Deborah Sells and Glen  Price  were living together. Ms Sells was then 55 years old and Mr  Price  64 years old. They were not then in a relationship (although they had been previously) but were old and trusted friends. They had known each other for 21 years. At a time between 10.30am and 11am Ms Sells drove Mr  Price  to an appointment to see his solicitor with respect to pending charges. Mr  Price  had at that time in his possession two sheets of drugs: Diazepam (five tablets) and 4 tablets of Tramalon Hydrochloride (“Tramadol”). Mr  Price  was lawfully prescribed both these drugs. Before going into his solicitor he handed both drugs to Ms Sells. In evidence he explained this was because he was delivering papers to his solicitor and did not have any pockets to store the drugs. He further testified he had not left the drugs at home because he was concerned some other persons in the house would have unlawfully taken the drugs. This had happened previously. Ms Sells took the drugs for safe-keeping. She arranged to pick up Mr  Price  after the meeting.
[2] After dropping off Mr  Price  Ms Sells drove to their home. She then recalled she had a medical appointment. She travelled to that appointment. At about 11.55am she was intercepted by police. She consented to a search of her vehicle saying “you won’t find anything”. Police did find the following items:

• The two sheets of Tramadol and Diazepam handed to her by Mr  Price  (she declared these items to police); and
• A box of Tramadol under the driver’s seat with 18 tablets. The box was labelled “Glen  Price ”.

[3] Ms Sells denied all knowledge of the box of Tramadol. She stated to police that  Price  had given her the two slides earlier in the morning to “hold onto” while he visited his solicitor. She admitted she did not hold a prescription for either drug.
[4] Ms Sells was charged with the following offences:

On the 31st of October 2013 at Innisfail in the State of Queensland Deborah Ann Sells unlawfully had possession of a dangerous drug namely Diazepam (s 9 of the Drugs Misuse Act)

That on the 31st day of October 2013 at Innisfail in the State of Queensland Deborah Ann Sells had in her possession a restricted drug Tramadol Hydrochloride without being endorsed under the Health (Drugs and Poisons) Regulation 1996 to have possession of the said restricted drug (s 146(1) of the Health (Drugs and Poisons) Regulation 1996.

[5] The second charge only related to the Tramadol she held for Mr  Price . The prosecution disclaimed reliance on s 129(1)(c) of the Drugs Misuse Act and accepted Ms Sells did not have knowledge of the pack of 18 Tramadol nor any reason to suspect their presence.
[6] Police then located Mr  Price  at his residence. He had walked home after Ms Sells had failed to pick him up. He spoke to police and told them he had given Ms Sells two slides of drugs before he went to his solicitor because he was scared they would fall out of his pocket. He further stated that he had lost the box of Tramadol in the last few days and they must have fallen out of his pocket when he was doing work on Ms Sell’s vehicle.
[7] Mr  Price  was charged:

On the 31st of October 2013 at Innisfail in the State of Qld Glenn  Price  did unlawfully supply a dangerous drug namely Diazepam to another person namely Deborah Ann Sells (s 6 of theDrugs Misuse Act)

That on the 31st day of October 2013 at Innisfail in the State of Queensland Glenn  Price  being in possession of a restricted drug Tramadol Hydrochloride pursuant to subsection 1 of s 205 the Health (Drugs and Poisons) Regulation 1996 failed to keep the said restricted drug in his possession until it was used (s 205(2)(a) of the Health (Drugs and Poisons) Regulation 1996).

[8] Both defendants pleaded not guilty to the charges. A trial of the matter was held before me on 16 May 2014. Both defendants were represented by Mr Blischen. There was little dispute as to the facts. The prosecution evidence was admitted by the defendants.’[1] Both defendant’s gave evidence and were cross-examined. Their evidence was substantially unchanged from what they told the police on the day. By giving evidence they assumed no burden of proof. The burden rests on the prosecution to prove their guilt. They are both entitled to the presumption of innocence. There is no burden on them to establish any fact, let alone their innocence. They may only be convicted if the prosecution establishes that they are guilty of the offences charged. For the prosecution to discharge its burden of proving their guilt they are required to prove beyond reasonable doubt they are guilty. This means that in order to convict them I must be satisfied beyond reasonable doubt of every element that goes to make up the offences charged. Each case of course has to be considered separately and the defendants tried solely on the evidence admissible in their case.
[9] The primary issue in the trial is whether the possession and supply of the dangerous drugs was unlawful. That is was the possession of dangerous drugs authorised, justified or excused by law? Mr Blischen’s submission were:

• Provisions of the Health (Drugs and Poisons) Regulation 1996 excused Ms Sells.
• The passing of the tablets from Mr  Price  to Ms Sells was not a supply (R v Casey (1990) NSWLR 292).
• The loss of the tablets was an accident.
• In all the circumstances it would be unjust to convict as both did not appreciate the conduct was unlawful.

[10] The prosecution submits that because of the potential for abuse the regulatory regime for the possession and control of restricted and dangerous drugs is necessarily strict. The statutory regime regulating the possession of restricted drugs does not provide an excuse to either Ms Sells or Mr  Price  and the consequent supply and possession are unlawful.

[26]Any belief that Ms Sells and Mr  Price  might have had that they were permitted to pass the drug for safekeeping to another for a period could afford no protection. Such a belief would be a mistake of law not of fact and ignorance of the law is no excuse.[8]

[56] I am satisfied that the prosecution have proved both the supply of the diazepam and the possession of diazepam was unlawful: it was not authorised, justified or excused by law.
[57] It follows that the prosecution have proved their case beyond a reasonable doubt and I find the defendants guilty and convict the defendants.
[58] It follows also from my findings that Ms Sells then possessed the drug tramadol without endorsement. She is convicted.
[59] That leaves for consideration the remaining charge that the defendant  Price , by losing his Tramadol in Ms Sell’s motor vehicle failed to keep the drug in his possession until used. The loss of the drug was described as accidental. It occurred probably when he was fixing Ms Sell’s motor vehicle and it fell out of his pocket. The drugs were then not in his possession because he had essentially misplaced them. The question then is the offence a strict liability offence? Is there any excuse? I am satisfied that s 23 of the Criminal Code is not excluded. To find otherwise would mean that if a burglar came in and stole the drugs then the victim of the burglary would then commit the offence. That section provides that a person is not criminally responsible for an act or omission that occurs independently of the exercise of the person’s will. That is the defendant did not by any conscious act not keep the drugs in his possession. Section 23(1)(a) of course incorporates as a primary element of every offence that there be an act which results from the exercise of his will (see Benchbook and Kapronovski). It is for the prosecution to prove the willed act once it is raised. While one might entertain some scepticism given the evidence of the defendant as to his living circumstances (i.e. he might have been hiding it) the prosecution have simply not satisfied me beyond reasonable doubt that the act did not occur independently of the exercise of the defendant’s will. The charge does not import any particular requirement that there be notification of the lost drugs. It is strictly a matter of whether or not they were in his possession.