Abbott v Till - [2006] QCA 275

SUPREME COURT OF QUEENSLAND

CITATION: Abbott v Till; Canniffe v Till [2006] QCA 275
PARTIES: ABBOTT, Natalie
(respondent)
v
TILL, Peter
(applicant)
CANNIFFE, Christopher
(respondent)
v
TILL, Peter
(applicant)
FILE NO/S: CA No 73 of 2006 CA No 74 of 2006 DC No 4 of 2005 DC No 7 of 2005
DIVISION: Court of Appeal
PROCEEDING: Applications for Leave s118 DCA Criminal
ORIGINATING
COURT: District Court at Mackay
DELIVERED EX
TEMPORE ON: 3 August 2006
DELIVERED AT: Brisbane
HEARING DATE: 3 August 2006
JUDGES: McMurdo P, Holmes JA and Mullins J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: In respect of CA No 73 of 2006 application for leave to
appeal refused
In respect of CA No 74 of 2006 application for leave to
appeal refused
CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES - where applicant claimed his religious belief gave him an entitlement to eat cannabis sativa and that the Drugs Misuse Act 1986 (Qld) was invalid as it prevented the practice of his religious beliefs – where applicant had been unsuccessful previously in making that claim in other proceedings – where there was no error in the rejection by the District Court of the same claim made in these proceedings
Commonwealth of Australia Constitution Act 1900 (Cth)
Drugs Misuse Act 1986 (Qld)
Till v Johns [2004] QCA 451
COUNSEL: The applicant appeared on his own behalf
P F Rutledge for the respondents
SOLICITORS: The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondents

THE PRESIDENT: Justice Mullins will deliver her reasons first.

MULLINS J: The applicant Mr Peter Till seeks leave to appeal against two orders of the District Court made on 15 March 2006. The applicant was charged with possessing and producing the dangerous drug cannabis sativa and possessing things used in the commission of the crime of producing dangerous drugs. He was granted bail on his own undertaking.

He was due to appear in the Magistrates Court at Mackay on 7 Magistrate's notation on the bench charge sheet shows that the applicant appeared in person. The applicant then failed to appear on 7 July 2005. A warrant issued for his arrest and the applicant was brought before the Magistrates Court on 11 July 2005.

July 2005. That date was set at a hearing before the

The applicant was charged with breach of bail undertaking. On 11 July 2005 he was convicted of that offence, fined $200, in default imprisonment for three days, and given three months to pay.

The drug charges were adjourned until 19 July 2005. On that day the applicant made an application for the drug charges to be tried by jury and the Magistrate refused that application.

The applicant appealed to the District Court against his conviction for breach…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott v Till

Details

AGLC: Abbott v Till [2006] QCA 275
Case: [2006] QCA 275
Decision Date: 3/08/2006

CaseChat Overview and Summary

The appellant, Abbott, sought leave to appeal against his conviction and sentence for possession of cannabis sativa, arguing that his religious beliefs entitled him to consume the substance and that the Drugs Misuse Act 1986 (Qld) was invalid for preventing the practice of his religious beliefs. The Court of Appeal was tasked with determining whether the District Court erred in rejecting Abbott's claims. Abbott had previously made the same argument in other proceedings without success, and the Court of Appeal needed to consider whether the District Court's rejection of the claim in these proceedings was correct.

The Court of Appeal examined the District Court's handling of Abbott's argument, noting that the District Court had previously rejected the same claim. The court was required to determine whether the District Court had erred in dismissing the argument and whether there was a substantial miscarriage of justice that warranted allowing the appeal. The Court of Appeal held that there was no error in the District Court's rejection of Abbott's claim, as the argument had been previously considered and rejected. Consequently, there was no substantial miscarriage of justice that would justify allowing the appeal.

Given that there was no error in the District Court's handling of Abbott's claims and no substantial miscarriage of justice, the Court of Appeal dismissed the application for leave to appeal. The Court of Appeal concluded that the District Court's decision was correct and that there were no grounds for allowing the appeal. The final orders were that the application for leave to appeal in both CA No 73 of 2006 and CA No 74 of 2006 was refused.

Orders

Orders of the court

In respect of CA No 73 of 2006 application for leave to

appeal refused

In respect of CA No 74 of 2006 application for leave to

appeal refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Abbott v Till; Canniffe v Till [2006] QCA 275
PARTIES:	ABBOTT, Natalie (respondent) v TILL, Peter (applicant)
CANNIFFE, Christopher (respondent) v TILL, Peter (applicant)
FILE NO/S:	CA No 73 of 2006 CA No 74 of 2006 DC No 4 of 2005 DC No 7 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Applications for Leave s118 DCA Criminal
ORIGINATING COURT:	District Court at Mackay
DELIVERED EX
TEMPORE ON:	3 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2006
JUDGES:	McMurdo P, Holmes JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	In respect of CA No 73 of 2006 application for leave to appeal refused In respect of CA No 74 of 2006 application for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES - where applicant claimed his religious belief gave him an entitlement to eat cannabis sativa and that the Drugs Misuse Act 1986 (Qld) was invalid as it prevented the practice of his religious beliefs – where applicant had been unsuccessful previously in making that claim in other proceedings – where there was no error in the rejection by the District Court of the same claim made in these proceedings
Commonwealth of Australia Constitution Act 1900 (Cth) Drugs Misuse Act 1986 (Qld) Till v Johns [2004] QCA 451
COUNSEL:	The applicant appeared on his own behalf P F Rutledge for the respondents
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondents