R v Van Den Hoorn - [2003] QCA 364

SUPREME COURT OF QUEENSLAND

CITATION: R v Van Den Hoorn [2003] QCA 364
PARTIES: R
v
VAN DEN HOORN, Johan Hendrick
(appellant)
FILE NO/S: CA No 183 of 2003 SC No 335 of 2002 SC No 570 of 2002 SC No 207 of 2003
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED EX 26 August 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 26 August 2003
JUDGES: Williams and Jerrard JJA and Dutney J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Appeal dismissed
CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – IDENTITY OF PROHIBITED SUBSTANCES – where appellant convicted of production and possession of cannabis sativa – where appellant contends the plants he was growing were cannabis indica – where was evidence at trial that the plants were cannabis sativa – whether plants were categorised correctly as cannabis sativa – whether learned trial judge interfered unjustifiably in presentation of defence – whether any basis for overturning convictions
COUNSEL: The appellant appeared on his own behalf
C W Heaton for the respondent
SOLICITORS: The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent

WILLIAMS JA: Indictment 335 of 2002 presented against the appellant alleged production of cannabis sativa on or about 30th of January 2002 and possession of cannabis sativa on or about that date. Indictment 570 of 2002 alleged production of cannabis sativa on the 9th of August 2002. The matters went to trial in May 2003.

The first trial was concerned with the Indictment 335 of 2002. The evidence before the Court on that occasion included a police raid on the appellant's property and an analyst's certificate certifying that plants seized on that occasion were cannabis sativa. The jury returned verdicts of guilty of both counts.

That trial was immediately followed by the trial of the charge in Indictment 570 of 2002. On that occasion, in addition to evidence as to the seizure of plants, evidence was called from a botanist to supplement the analyst's certificate certifying that the plants were cannabis sativa. The botanist confirmed that the plants in question were cannabis sativa. In light of that evidence a conviction was recorded by the jury.

In the course of giving evidence at the second trial the it came to sentence he was legally represented. On that occasion he pleaded guilty to the charges on the ex officio indictment. The most severe sentence imposed was on the second indictment, where he was imprisoned for 12 months, but that was suspended after two months with an operational period of 12 months. For present purposes that can be said to be the operative sentence. The appellant has served his two months and this is an appeal against his convictions only.

appellant referred to plants growing at that time on his
property and that resulted in a police raid which uncovered
further cannabis plants. An ex officio…

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 Van Den Hoorn

Details

AGLC: R v Van Den Hoorn [2003] QCA 364
Case: [2003] QCA 364
Decision Date: 26/08/2003

CaseChat Overview and Summary

The appellant, Van Den Hoorn, was convicted of producing and possessing cannabis sativa. Van Den Hoorn argued that the plants he cultivated were not cannabis sativa but rather cannabis indica, a different variety of cannabis that is not prohibited under Australian law. The High Court of Australia was tasked with determining whether the trial judge had correctly categorised the plants as cannabis sativa and whether there was any justification for overturning the convictions.

The legal issues central to the case were whether the trial judge had properly assessed the evidence presented regarding the type of cannabis and if there was any interference with the presentation of the defence. Van Den Hoorn contended that the trial judge had not given adequate weight to the evidence suggesting the plants were cannabis indica and that this constituted a miscarriage of justice. Furthermore, Van Den Hoorn argued that the judge had overstepped by interfering in the presentation of the defence, which prejudiced the outcome of the trial.

In its judgment, the High Court of Australia found that the trial judge had correctly categorised the plants as cannabis sativa based on the evidence presented. The court held that there was no basis for overturning the convictions. The Court concluded that the trial judge had not unjustifiably interfered with the defence's presentation and had correctly applied the law to the facts of the case.

The appeal was dismissed, and the convictions for producing and possessing cannabis sativa were upheld. The court did not find any errors in the trial judge's handling of the case, nor did it find any grounds for overturning the convictions.

Orders

Orders of the court

Appeal dismissed

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:	R v Van Den Hoorn [2003] QCA 364
PARTIES:	R v VAN DEN HOORN, Johan Hendrick (appellant)
FILE NO/S:	CA No 183 of 2003 SC No 335 of 2002 SC No 570 of 2002 SC No 207 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX	26 August 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2003
JUDGES:	Williams and Jerrard JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – IDENTITY OF PROHIBITED SUBSTANCES – where appellant convicted of production and possession of cannabis sativa – where appellant contends the plants he was growing were cannabis indica – where was evidence at trial that the plants were cannabis sativa – whether plants were categorised correctly as cannabis sativa – whether learned trial judge interfered unjustifiably in presentation of defence – whether any basis for overturning convictions
COUNSEL:	The appellant appeared on his own behalf C W Heaton for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent