R v Evans - [1998] SASC 6798

R v EVANS
[1998] SASC 6798

Court of Criminal Appeal
Coram: Millhouse, Perry and Nyland JJ

Perry J

This is an appeal against both conviction and sentence following the appellant’s trial in the District Court sitting at Mount Gambier before a judge and jury on an information which alleged two drug counts, namely, possessing amphetamine for sale and possessing lysergide (LSD) for sale.[1]
[1] Both offences are contrary to s32(1)(e) of the Controlled Substances Act 1984.
The appellant was convicted on both counts. The learned trial judge imposed one sentence covering both offences,[2] namely, imprisonment for 56 calendar months with a non-parole period of 36 calendar months, both to commence from the date upon which the appellant had been taken into custody, that is, 15 August 1997.
[2] Pursuant to s18A of the Criminal Law (Sentencing) Act 1988.
At about 7.00 pm on Friday 15 August 1997, police officers observed the appellant driving his car in a supermarket car park at Millicent. His son, said to be 14 or 15 years of age, was a passenger in the car. As they approached the car, the appellant was seen to hand to his son his wallet and a small mobile phone. They arrested the appellant and took him to the Millicent police station, together with the car.
While he was being taken into custody at the police station, property which the appellant was carrying on his person was taken from him. It included a small note book which was seen by the police officers to contain a number of telephone numbers.
Soon after being taken into custody, the appellant asked for the return of the book, saying that he wanted to ring a solicitor at one of the telephone numbers recorded in it. The book was given to him, and he was allowed access to a room with a telephone in it. He then tore some pages out of the book and was observed appearing to chew them up in his mouth. Police officers struggled with him and retrieved a number of the torn pages.
In the meantime, the car was searched. Some bedding and clothes were seen lying across the rear seat. On that material, the police officers found a clear plastic container in which there were two small plastic phials. When opened and examined, they were found to contain four strips of paper, each divided into fifty small squares which, on analysis, were found to contain LSD. A police officer who was an experienced member of the Drug Task Force gave evidence that the small squares of paper, which come in sheets, was a common method of packaging LSD for sale.
Located with the LSD was a small amount of powder in a plastic snap-seal bag, along with two syringes, a number of empty plastic press-seal bags, a sponge, and an empty plastic phial. The bags were of a kind commonly used for the packaging of LSD for sale. When analysed, the powder was found to contain amphetamine…

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 Evans

Details

AGLC: R v Evans [1998] SASC 6798
Case: [1998] SASC 6798
Decision Date: 20 August 1998

CaseChat Overview and Summary

The case of R v Evans involved an appeal against both conviction and sentence by the appellant, who had been convicted of possessing amphetamine and lysergide (LSD) for sale. The appeal was heard by the Court of Criminal Appeal, consisting of Millhouse, Perry, and Nyland JJ. The primary issue for the court was whether the evidence was sufficient to support the conviction and if the sentence imposed was manifestly excessive.

The legal issues addressed by the court included whether the jury could infer the appellant's possession of the drugs found in the car he owned and drove, and if the verdict could be supported by the evidence presented. The court also considered whether the trial judge erred in giving a direction to the jury based on the case of R v Weissensteiner and whether allowing a particular exhibit into the jury room was prejudicial.

The court found that there was ample evidence to support the conviction, as the drugs were found concealed in the car owned and driven by the appellant, and his actions of attempting to destroy a notebook containing telephone numbers further supported the inference of his possession and connection to a trading activity involving the drugs. The court rejected the argument that the verdict could not be supported by the evidence, especially considering the appellant's admission to a forensic psychologist that the drugs were for his personal use.

Regarding the sentence, the court determined that while the penalty was substantial, it was within the appropriate range and not manifestly excessive given the nature of the offences and the appellant's criminal history.

Ultimately, the Court of Criminal Appeal dismissed both the appeal against conviction and the appeal against sentence, affirming the lower court's decision.

Orders