R v Schaefer, Schiworski & Brown - [2004] SADC 185

District Court of South Australia
(Criminal)
R v SCHAEFER, SCHIWORSKI & BROWN
Reasons for Ruling of His Honour Judge Millsteed
17 December 2004
CRIMINAL LAW
Controlled Substances Act 1984; Criminal Law (Under Cover Operations) Act 1995; Criminal Law Consolidation Act 1985, referred to.
Bunning v Cross (1978) 141 CLR 54; Karina Fisheries P/L v Mitson (1990) 26 FCR 473; Lego Aust P/L & Ors v Paraggio & Ors (1993) 44 FCR 151; Lego Aust P/L v Paraggio (1994) 52 FCR 542; Crowley v Murphy (1981) 52 FLR 123; R v Macleod [1990] Tas R 144; R v DeBot (1990) 52 CCC (3d); R v Hosie (1996) 107 CCC (3d) 385; R v Martelli (1995) 83 A Crim R 550, discussed.
Ridgeway v The Queen (1995) 184 CLR 19; R v Ridgeway (1998) 72 SASR 73; Ridgeway (1998) SASR 73; Question of Law Reserved on Acquittal (No. 5 of 1999) (2000) 76 SASR 356; R v Sloane (1990) 49 A Crim R 270; R v Vuckov & Romeo (1986) 22 A Crim R 10; The Queen v Veneman & Leigh [1970] SASR 506; R v Martelli (1995) 83 A Crim R 550; R v Stefan (1993) 30 NSWLR 633; R v Albu (1995) 65 SASR 439; R v Giaccio (1997) 68 SASR 484; R v Rowe (1998) 71 SASR 389; R v Karam (1995) 83 A Crim R 416; R v Bozatkis & Spanakakis (1997) 97 A Crim R 296; Johns v The Queen (1980) 143 CLR 108; Osland v The Queen (1998) 197 CLR 316; George v Rockett (1990) 170 CLR 104; Coghill v McDermott [1983] 1 VR 751; Hoobin v Samuels (1971) 2 SASR 238; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; Propend Finance P/L v Commissioner of Australian Federal Police (1995) 128 ALR 657; Flanagan v Commissioner of Australian Federal Police (1996) 134 ALR 495; Carmody v MacKellar (1997) 148 ALR 210; Malubel P/L v Elder (1998) 88 FCR 242; Roman v The Commonwealth of Australia [2004] NTSC 9; R v Rondo (2001) 126 A Crim R 562; Hoobin v Samuels (1971) 2 SASR 238; Feldman v Buck [1966] SASR 236; Bowden v Box [1916] GLR (NZ) 443; R v Tillett ExParte Newton (1969) 14 FLR 101; Weston v Smith [1963] Tas SR 27; R v Romeo (1987) 45 SASR 212, considered.

R v SCHAEFER, SCHIWORSKI & BROWN
[2004] SADC 185
Introduction

The accused Klaus Dieter Schaefer, Arthur Gordon Schiworski and Daniel Craig Brown are jointly charged on information with two counts of taking part in the manufacture of methylamphetamine contrary to s.32 (1)(b) of the Controlled Substances Act 1984 (CSA). The offences are alleged to have been committed between 30 May 2001 and 5 June 2001 (count 1) and 5 July 2001 and 3 August 2001 (count 2).
The prosecution contends that the three accused…

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.

Keep reading for free

Create a free CaseChat account to read R v Schaefer, Schiworski & Brown and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] SADC 185
Decision Date: 17 December 2004

CaseChat Overview and Summary

The defendants Schaefer, Schiworski and Brown appealed the decision to deny their application for exclusion of the evidence and for a permanent stay of proceedings on the basis that the police undercover operation was tainted by illegality and impropriety. The court found that the undercover operation was lawful and that the defendants were not entrapped by the police. The court held that the approval under the Criminal Law (Undercover Operations) Act 1995 was valid and that the police did not engage in improper conduct during the operation. The court also rejected the argument that the defendants were selective prosecuted, and found that the police did not fail to adequately instruct or monitor the informant. The court refused the applications for exclusion of the prosecution evidence and for a permanent stay of proceedings.

Orders