R v Sellwood - [2011] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sellwood [2011] QCA 70

PARTIES:

R
v
SELLWOOD, Darren Lewis
(appellant)

FILE NO/S:

CA No 220 of 2010
SC No 84 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where appellant was convicted of one count of possessing a dangerous drug, the quantity of which exceeded 2.0 grams –where the drug was found resting on the centre console on the back seat of the appellant’s car – where appellant alleged that the drugs belonged to another person who was in the car for approximately 30 seconds before being detained by police – where appellant did not give evidence at trial that he did not know that the drug was in the car at the relevant time – whether the learned trial judge misdirected the jury as to the proper operation of s 129(1)(c) of the Drugs Misuse Act 1986 (Qld)

Drugs Misuse Act 1986 (Qld), s 129(1)(c)

Lawler v Prideaux [1995] 1 Qd R 186; [1993] QCA 395, applied

COUNSEL:

The appellant appeared on his own behalf
V Loury for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA: The appellant was convicted on 25 August 2010 after a one day trial of possessing the dangerous drug 3,4 Methylenedioxymethamphetamine (“MDMA”) in a quantity exceeding 2 grams. He appeals against his conviction on the grounds that the trial judge erred in law by instructing the jury that s 129(1)(c) of the Drugs Misuse Act 1986 (“the Act”) operated so as to deem the appellant to be in possession of the drug.

[2] The prosecution case was brief and the appellant did not give or call evidence in his case. Detective Constable Scanlon gave evidence that at about 2.40pm on 4 June 2009 he was with Detective Sergeant Lawler in Kangaroo Point, when they saw a person, subsequently identified as Cameron Stenzil, acting suspiciously. Sergeant Lawler got back into a police car whilst Detective Scanlon followed the suspect on foot. They maintained mobile phone contact. Detective Scanlon saw a car turn into the street in which Stenzil was walking, execute a U-turn and then stop. Stenzil then got into the front passenger side of the car.

[3] Detective Scanlon got back into the police car which had driven into a nearby driveway. The police car, with flashing lights activated, drove in front of the other vehicle, blocking it. The two police officers, with guns drawn, approached the other car and detained the driver and occupant. Stenzil…

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 Sellwood

Details

AGLC: R v Sellwood [2011] QCA 70
Case: [2011] QCA 70
Decision Date: 15 April 2011

CaseChat Overview and Summary

The appeal was brought by the appellant against a conviction of possessing a dangerous drug, with the quantity exceeding 2.0 grams, under section 129(1)(c) of the Drugs Misuse Act 1986 (Qld). The drug was found on the centre console on the back seat of the appellant's car. The appellant claimed that the drug belonged to another person who was briefly in the car. However, the appellant did not testify at the trial that he was unaware of the drug's presence at the relevant time. The appeal was heard in the Court of Appeal.

The court was required to decide whether the learned trial judge misdirected the jury concerning the proper application of section 129(1)(c) of the Drugs Misuse Act 1986 (Qld). The appellant's argument was that the trial judge failed to properly instruct the jury on the necessary elements of the offence, particularly in relation to the requirement of knowledge of the presence of the drug. The court considered whether the trial judge's directions adequately covered the necessary principles for the jury to determine the appellant's knowledge and possession of the drug.

The court found that the trial judge had given comprehensive directions to the jury on the elements of the offence, including knowledge and possession. The court held that the trial judge's directions were sufficient and did not contain any misdirections or omissions that could have prejudiced the appellant's case. The court dismissed the appeal, finding that there were no grounds for setting aside the conviction. The appeal was dismissed, and the conviction stood as decided by the trial court.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Sellwood [2011] QCA 70
PARTIES:	R v SELLWOOD, Darren Lewis (appellant)
FILE NO/S:	CA No 220 of 2010 SC No 84 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2011
JUDGES:	Muir JA, Margaret Wilson AJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where appellant was convicted of one count of possessing a dangerous drug, the quantity of which exceeded 2.0 grams –where the drug was found resting on the centre console on the back seat of the appellant’s car – where appellant alleged that the drugs belonged to another person who was in the car for approximately 30 seconds before being detained by police – where appellant did not give evidence at trial that he did not know that the drug was in the car at the relevant time – whether the learned trial judge misdirected the jury as to the proper operation of s 129(1)(c) of the Drugs Misuse Act 1986 (Qld) Drugs Misuse Act 1986 (Qld), s 129(1)(c) Lawler v Prideaux [1995] 1 Qd R 186; [1993] QCA 395, applied
COUNSEL:	The appellant appeared on his own behalf V Loury for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent