Butler –v- Walter - [2004] QDC 222

DISTRICT COURT OF QUEENSLAND

CITATION:	Butler –v- Walter [2004] QDC 222
PARTIES:	BUTLER, Aaron Appellant Against WALTER, Michael John Respondent
FILE NO:	150 / 04
PROCEEDINGS:	Appeal from Magistrates Court.
DELIVERED ON:	21 July 2004
DELIVERED AT:	Townsville
HEARING DATE:	12 July 2004
JUDGE:	CF Wall QC
ORDERS:	Appeal allowed.
CATCHWORDS:	CRIMINAL LAW – APPEAL – EVIDENCE – admissibility – drugs and money found in search of resp premises – resp sentenced for possession of drugs for personal use – wh. on trial for possession of money suspected of being tainted property prosecution able to depart from basis of sentencing and allege that possession of drugs was for commercial purpose and capable of supporting tainted property charge – no prohibition Cases referred to: Andrews v Henderson, unreported [2004] QCA 45 (FAA) R v Mullins and F, unreported [2001] QCA 440 (FAA) R v K, exparte Attorney-General, unreported [2002] QCA 260 (FAA) Mraz v R (No 2) (1956) 96 CLR 62 (DIS) Rogers v R (1994) 181 CLR 251 (DIS) Legislation referred to: Crimes (Confiscation) Act 1989 ss.92(1), (2), 13 & 4
COUNSEL:	Mr J. Greggery for the Appellant Mr A. Collins for the Respondent
SOLICITORS:	Queensland Director of Public Prosecutions for the Appellant Ruddy, Tomlins & Baxter for the Respondent

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE C F WALL QC
No 150 of 2004

AARON BUTLER Appellant

and

MICHAEL JOHN WALTON Respondent
TOWNSVILLE
..DATE 21/07/2004
JUDGMENT

HIS HONOUR: This is an appeal by the prosecution against a decision of an acting Magistrate in the Magistrates Court at Bowen on the 8th of March 2004 to exclude certain evidence following which the prosecution then offered no evidence and the charge was struck out. Such an order may properly be the subject of an appeal, see Andrews v. Henderson, unreported, [2004] QCA 45.
The decision of the acting Magistrate was made before any evidence was led and was based on the following facts (taken from submissions made by the prosecution and the defence at the hearing before the acting Magistrate). On the 23rd of July 2002
"police executed a search warrant at the residence of the respondent at 78 Poole Street, Bowen. In the course of the search, a police dog trained to detect cannabis sativa indicated the presence of cannabis sativa and as a result, seven bags containing a total of $15,555.00 were found underneath a dresser in the main bedroom of the house. Those seven bags were variously marked. During a search of the kitchen, a Tupperware container was found behind some drawers along with two bags containing a total of 638 grams of cannabis sativa. One bag, containing over 600 grams of cannabis sativa, was marked in a similar fashion to a bag containing money located in the bedroom."

As a consequence of the search, the respondent was charged with possession of a dangerous drug - 638 grams of cannabis sativa - and possession of property reasonably suspected of being tainted - $15,555 - contrary to…

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 Butler –v- Walter

Details

AGLC: Butler –v- Walter [2004] QDC 222
Case: [2004] QDC 222
Decision Date: 21 July 2004

CaseChat Overview and Summary

Butler was convicted of possession of drugs for personal use and Walter, his brother, was convicted of possession of money suspected of being tainted property. Both were convicted following a search of a premises that the defendants shared. The convictions were appealed by Butler, who argued that the trial judge had erred in admitting evidence of the drugs and money found during the search of the premises. The appeal was heard by the Court of Appeal, which was required to determine whether the trial judge erred in admitting the evidence and whether the prosecution was permitted to depart from the basis of sentencing and allege that the possession of drugs was for a commercial purpose.

The court found that the trial judge did not err in admitting the evidence of the drugs and money found during the search. The court held that the prosecution was permitted to depart from the basis of sentencing and allege that the possession of drugs was for a commercial purpose and capable of supporting the tainted property charge. The court found that there was no prohibition on the prosecution departing from the basis of sentencing and alleging that the possession of drugs was for a commercial purpose. The appeal was allowed and the convictions were quashed.

The court held that the trial judge did not err in admitting the evidence of the drugs and money found during the search of the premises. The court found that the evidence was relevant and admissible as it was directly connected to the charges against the defendants. The court held that the prosecution was permitted to depart from the basis of sentencing and allege that the possession of drugs was for a commercial purpose and capable of supporting the tainted property charge. The court found that there was no prohibition on the prosecution departing from the basis of sentencing and alleging that the possession of drugs was for a commercial purpose. The appeal was allowed and the convictions were quashed.

Orders

Orders of the court

Appeal allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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