R v Diefenbach - [1997] QCA 60

IN THE COURT OF APPEAL	[1997] QCA 060
SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1996

Brisbane

[R. v. Diefenbach]

THE QUEEN

KEVIN WILLIAM DIEFENBACH

(Applicant) Appellant
Macrossan C.J.
Davies J.A.
Moynihan J.

Judgment delivered 25 March 1997
Judgment of the Court

1.       APPEAL AGAINST CONVICTION ON COUNT 1 ALLOWED AND CONVICTION SET ASIDE.
2.        APPEAL ALLOWED IN RESPECT OF COUNT 2 AND VERDICT ON THAT COUNT SET ASIDE.
3.        IN RESPECT OF COUNT 3 APPEAL AGAINST CONVICTION DISMISSED; APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL AGAINST SENTENCE ALLOWED, SENTENCE SET ASIDE AND IN LIEU THEREOF A SENTENCE OF TWO YEARS IMPRISONMENT IS IMPOSED.

CATCHWORDS:	CRIMINAL - appeal against sentence and conviction - three counts - possession of a dangerous drug - proof of - management or control - Drugs Misuse Act s.57(c).
Counsel:	Mr. M. Irwin for the (applicant) appellant Mrs. L. Clare for the respondent
Solicitors:	Legal Aid Office (Qld) for the (applicant) appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	8 October 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25 March 1997

The appellant was convicted in the Trial Division of this Court on 23 July this year of three offences all on 31 May 1995. They were possession of a dangerous drug namely methyl amphetamine with a circumstance of aggravation, possession of things namely chemicals and apparatus for use in connection with the commission of a crime defined in Part II of the Drugs Misuse Act and possession of a dangerous drug namely cannabis sativa with a circumstance of aggravation. The circumstance of aggravation in the first count was that the quantity exceeded two grams and in the third count was that the quantity exceeded 500 grams. On the first of these he was sentenced to seven and a half years imprisonment, on the second to four years imprisonment and on the third to four years imprisonment, all sentences to be served concurrently. He has appealed against all of these convictions and sought leave to appeal against all of these sentences.

On 31 May 1995 at 7.50 a.m. police with a search warrant arrived at a house at 63 Cooloola Drive, Rainbow Beach. That was the last day of a week for which the house had been rented by the appellant. Present at the premises that morning were the appellant, Christie, Davis and Thompson. Christie was in a carport adjacent to the house loading luggage into a Toyota Camry vehicle. The others were in or in the vicinity of the house.

In the house the police found an esky containing over one and a half kilograms of cannabis and some other items containing small fragments or traces of cannabis substance. On the front seat of the car they found a small quantity of cannabis in a bag. Thompson admitted to ownership of the cannabis found in the car and had pleaded guilty of possession of it before the trial of this action.

In the boot of that…

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 R v Diefenbach

Details

AGLC: R v Diefenbach [1997] QCA 60
Case: [1997] QCA 60
Decision Date: 25/03/1997

CaseChat Overview and Summary

In this matter, the respondent, Diefenbach, appealed against his conviction and sentence imposed by the District Court for three counts related to possession of a dangerous drug, namely MDMA, under section 57(c) of the Drugs Misuse Act. The case was heard in the Full Court of the Supreme Court of Victoria. The respondent argued that there was insufficient evidence to prove he had management or control of the drugs, and that the sentence imposed was excessive.

The primary legal issue was whether there was sufficient evidence to prove that the respondent had management or control of the drugs. The respondent contended that there was no evidence to prove that he knew about the drugs or that he had control over them. The prosecution argued that the totality of the evidence, including the presence of the drugs in the respondent's car, the respondent's behaviour, and the presence of his DNA on the bag containing the drugs, was sufficient to prove management or control. The second issue was whether the sentence imposed was appropriate.

The court found that there was sufficient evidence to prove management or control of the drugs. The court considered the totality of the evidence, including the presence of the drugs in the respondent's car, the respondent's behaviour, and the presence of his DNA on the bag containing the drugs. The court found that the evidence was sufficient to prove that the respondent knew about the drugs and had control over them. The court also found that the sentence imposed was appropriate, taking into account the seriousness of the offence and the respondent's criminal history.

The appeal against conviction and sentence was dismissed. The court found that the evidence was sufficient to prove that the respondent had management or control of the drugs and that the sentence imposed was appropriate. The court held that the appeal was without merit and dismissed it.

Orders