Flavell v. Power - [2008] QDC 134

DISTRICT COURT OF QUEENSLAND

CITATION:

Flavell v Power [2008] QDC 134

PARTIES:

ROBERT JOHN FLAVELL

Appellant

AND

RICHARD JAMES POWER

Respondent

FILE NO/S:

Appeal 1556/07; MAG-0525/07(3)

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Richlands

DELIVERED ON:

27 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2008

JUDGE:

McGill DCJ

ORDER:

In respect of the charges of possession of a thing used in connection with the smoking of a dangerous drug, and possession of property reasonably suspected if having been used in connection with the commission of an offence defined in Part 2 of the Drugs Misuse Act 1986, appeal allowed, convictions quashed, and verdict of acquittal entered. Otherwise, appeal dismissed. Sentence set aside; adjourned for resentencing.

CATCHWORDS:

CRIMINAL LAW – Drug Offences – possession of drugs – deemed possession of occupier of place – whether provision displaced – not extending to items other than drugs.

Drugs Misuse Act 1986 s 239(1)(c).

Jenvey v Cook (1997) 94 A Crim R 392 – cited.
Lawler v Prideaux [1995] 1 Qd R 186 – considered.
Loweke v Queensland Police Service [2005] QDC 187 – considered.
R v Nguyen & Truong [1995] 2 Qd R 285 – cited.
R v Sargent [1994] 1 Qd R 655 – applied.
Symes v Lawler [1995] 1 Qd R 226 – considered.
Thow v Campbell [1997] 2 Qd R 324 – cited.
Tabe v R (2005) 79 ALJR 1890 – applied.

COUNSEL:

B Johnson (solicitor) for the appellant

Z Rutherford legal officer for the respondent

SOLICITORS:

Johnson Lawyers for the appellant

Director of Public Prosecutions for the respondent

The appellant was tried in the magistrates court on counts of possession of a dangerous drug namely cannabis sativa, possession of a thing namely a water pipe used in connection with smoking a dangerous drug, and possession of property reasonably suspected of having been used in connection with the commission of an offence defined in Part 2 of the Drugs Misuse Act 1986. Following a summary trial he was on 18 May 2007 convicted of all three offences. Convictions were recorded and one fine of $600, in default eight days imprisonment, was imposed, with six months allowed to pay. He was also committed to the Supreme Court at Brisbane because the offences were committed during the operational period of a suspended sentence imposed by the Supreme Court in October 2005.

In a notice of appeal filed 4 June 2007 the appellant appealed against his conviction of the offence of possession of a dangerous drug. The notice of appeal made no reference to the other charges of which he was also convicted, and the grounds of appeal stated in the notice related only to that charge. The outlines of argument filed on behalf of the appellant proceeded on the basis that the appeal was against all three convictions, but no application to amend the notice of appeal was ever made.

The prosecution case

Two police officers were called in the prosecution case. They said that on the day in question…

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 Flavell v. Power

Details

AGLC: Flavell v Power [2008] QDC 134
Case: [2008] QDC 134
Decision Date: 27 June 2008

CaseChat Overview and Summary

Flavell v. Power was a case heard in the Court of Appeal in which the appellant, Flavell, challenged his convictions for various drug-related offences. Flavell was found guilty of possession of a thing used in connection with the smoking of a dangerous drug, possession of property reasonably suspected of having been used in connection with the commission of an offence, and other drug-related charges. Flavell appealed the convictions, arguing that the deemed possession provision in the Drugs Misuse Act 1986 did not extend to items other than drugs. The appeal was limited to these grounds.

The primary legal issue before the court was whether the deemed possession provision in the Drugs Misuse Act 1986 could be applied to items other than drugs, specifically whether it could extend to objects used in connection with the smoking of dangerous drugs. The court needed to determine if this provision was limited to drugs or if it could be interpreted more broadly to include related paraphernalia.

The court found that the deemed possession provision was specifically tailored to drugs and did not extend to items used in connection with drug use. The court held that the provision was not intended to cover items other than drugs, such as objects used for smoking. Consequently, the convictions for possession of items used in connection with the smoking of a dangerous drug and possession of property reasonably suspected of having been used in connection with the commission of an offence were quashed. The court entered a verdict of acquittal for these charges. The appeal was otherwise dismissed, and the convictions for the other drug-related charges were upheld. The sentence was set aside, and the matter was adjourned for resentencing.

Orders

Orders of the court

In respect of the charges of possession of a thing used in connection with the smoking of a dangerous drug, and possession of property reasonably suspected if having been used in connection with the commission of an offence defined in Part 2 of the Drugs Misuse Act 1986, appeal allowed, convictions quashed, and verdict of acquittal entered. Otherwise, appeal dismissed. Sentence set aside; adjourned for resentencing.

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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CITATION:	Flavell v Power [2008] QDC 134
PARTIES:	ROBERT JOHN FLAVELL Appellant AND RICHARD JAMES POWER Respondent
FILE NO/S:	Appeal 1556/07; MAG-0525/07(3)
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Richlands
DELIVERED ON:	27 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	21 April 2008
JUDGE:	McGill DCJ
ORDER:	In respect of the charges of possession of a thing used in connection with the smoking of a dangerous drug, and possession of property reasonably suspected if having been used in connection with the commission of an offence defined in Part 2 of the Drugs Misuse Act 1986, appeal allowed, convictions quashed, and verdict of acquittal entered. Otherwise, appeal dismissed. Sentence set aside; adjourned for resentencing.
CATCHWORDS:	CRIMINAL LAW – Drug Offences – possession of drugs – deemed possession of occupier of place – whether provision displaced – not extending to items other than drugs. Drugs Misuse Act 1986 s 239(1)(c). Jenvey v Cook (1997) 94 A Crim R 392 – cited. Lawler v Prideaux [1995] 1 Qd R 186 – considered. Loweke v Queensland Police Service [2005] QDC 187 – considered. R v Nguyen & Truong [1995] 2 Qd R 285 – cited. R v Sargent [1994] 1 Qd R 655 – applied. Symes v Lawler [1995] 1 Qd R 226 – considered. Thow v Campbell [1997] 2 Qd R 324 – cited. Tabe v R (2005) 79 ALJR 1890 – applied.
COUNSEL:	B Johnson (solicitor) for the appellant Z Rutherford legal officer for the respondent
SOLICITORS:	Johnson Lawyers for the appellant Director of Public Prosecutions for the respondent