The Queen v Diefenbach[1997] QCA 60

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1996

Brisbane

THE QUEEN

v.

KEVIN WILLIAM DIEFENBACH

(Applicant) Appellant

Macrossan CJ

Davies JA

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 car police found a red, white and blue striped bag containing a drum of acetone, a gas cylinder bearing the appellant's fingerprints, a container of hydrochloric acid, a bottle of methylated spirits, a set of scales with a trace of methyl amphetamine and a gas cooker.  Also in the boot they found a metal toolbox containing an array of chemicals, pseudo ephedrine and apparatus and some traces of methyl amphetamine;  and a garbage bag containing bottles of Shellite and containers which had traces of THC in them.  They also found a blue-green bag either in the boot or in the carport near the car.  The evidence did not establish in which of these locations it was.  This bag contained bottles of Shellite, two bottles of liquid containing THC, a box of test tubes and a red tin containing clip seal bags in which were found 43 grams of pure methyl amphetamine.  It was this methyl amphetamine which was the subject of the first count.  The remainder of the items found in this bag and the items contained in the red, white and blue striped bag were the subject of count 2 and there was uncontradicted evidence that these were sufficient to constitute a methyl amphetamine factory.

The appellant, when interviewed, claimed to have no prior knowledge of the existence of the cannabis sativa found in the esky, the methyl amphetamine found in or near the car or the items which together constituted a methyl amphetamine factory.

In respect of counts 1 and 3 the prosecution relied on s. 57(c) of the Drugs Misuse Act 1986 which provides that, in respect of a charge of either of those kinds, proof that a dangerous drug was at the material time in or on a place of which the person was the occupier or concerned in the management or control, is conclusive evidence that the drug was then in that person's possession unless that person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place.

The application of that section to the third count makes this appeal unarguable.  On the Crown case the appellant was the occupier of the house, he having rented it, and that appears to have been conceded on his behalf.  The jury were entitled to disbelieve the appellant when he said that he had no knowledge of the existence of the esky containing cannabis.  Particularly in the light of his admission that, during the period he was in the house, he and the other occupants smoked cannabis, his evidence was inherently improbable.  In any event they would have been entitled to conclude that, in the circumstances, he had not satisfied them that he had no reason to suspect the presence in the house of that cannabis.

His appeal against conviction on count 3 must therefore fail.

The application of s. 57(c) to count 1 raises greater difficulty.  The learned trial Judge directed the jury that, as it was uncertain whether the bag containing methyl amphetamine was found in the boot of the car or on the ground adjacent to the car they should accept the alternative more favourable to the appellant which, he said, was that it was in the car.  His Honour appears to have so directed because it seemed likely that the appellant was in occupation of the area adjacent to the car, that being part of the premises which he had rented, but was not, or at least not so clearly in occupation or concerned in the management or control of the car.  Whatever may have been his Honour's reason for this conclusion it was accepted by the appellant below and in this Court as being more favourable to him.  We should therefore proceed, in our view, on the basis accepted by the appellant namely that the bag containing the amphetamine was located in the boot of the car.  The question then is whether the Crown proved beyond reasonable doubt that the appellant was the occupier of or concerned in the management or control of the car.

The car was hired by a man named Parker on 30 May and was due for return on 1 June.  Parker was not staying in the house at the relevant time but had been there previously and was friendly with each of the appellant, Christie, Davis and Thompson.  According to the appellant he lived with Christie, Davis and Thompson.  The appellant lived with his de facto wife Long and her three children.

The only evidence as to how the Camry motor vehicle came to be in the carport that morning was by inference from the evidence of the appellant and Long.  The inference from that evidence, particularly that of Long, is that Thompson arrived in this vehicle after the appellant and Long had gone to bed on the evening of 30 May.

Long and her children had been staying in the house with the appellant and the other three and, according to the appellant, had left early that morning in a Mazda car, which the appellant had borrowed from his uncle, in order to take her children to school.  The jury were entitled to infer that the Camry motor vehicle was to be the means by which all of the four male persons would leave the house that morning.  They would have been entitled to conclude that the appellant intended to use this means of transport before Long left early that morning and, indeed, before any arrangement had been made for her to leave that morning;  otherwise it is unlikely that he would have let her leave without him.  It is arguable therefore that, as the Camry was intended to transport the appellant, Christie, Davis and Thompson from the house that morning, in the absence of any evidence that any one or more of them, to the exclusion of the others, had the management and control of the Camry, all of them were jointly concerned in its management and control.  The question is whether the jury were entitled to come to this conclusion beyond reasonable doubt.

There is one other piece of evidence which, it was said by the appellant's counsel, is relevant to this question.  Mr. McElligott of the hire company who hired the Camry knew Thompson and had hired cars to him before.  He agreed that the Camry could have been one of those vehicles.  It was submitted that this provides some support for the appellant's evidence that Thompson had regularly hired this vehicle before;  and that this lent some support to the inference, to which we have already referred, that Thompson arrived in the Camry on the night of 30 May.

Although we do not think that Mr. McElligott's evidence gave any support to the inference that Thomson brought the Camry to the house on the night of 30 May, we do not think that a reasonable jury could have been satisfied beyond reasonable doubt that the appellant was concerned in the management or control of the Camry on the morning of 31 May either alone or jointly with the other males present at the house.  There were other competing hypotheses at least equally open.  One was, of course, that Thompson alone had the management or control of the vehicle.  Others were that Christie or Davis or the appellant alone had that management or control.  And another, perhaps deriving support from the fact that Thompson, Christie and Davis lived with Parker who had hired the vehicle, was that Thompson, Christie and Davis together had the management and control of the vehicle, intending merely to transport the appellant to his home on their journey to theirs.

Without the benefit of s. 57(c) the Crown must have failed on count 1.  There was no evidence that the amphetamine or the bag containing the amphetamine was in the appellant's possession.  In our opinion therefore the appeal against the conviction on count 1 must succeed and the conviction set aside.

The only evidence of possession by the appellant of the chemicals and apparatus was the presence of his fingerprints found on the gas cylinder.  The appellant sought to explain these away by relating some events which he said occurred about a week before during the course of a barbeque at the premises.  Thompson, he said, gave him the gas bottle to hook up to the barbeque which he did.  Afterwards he cleaned the barbeque and left the gas bottle on the rear of the barbeque.  He paid no further attention to it.  No other fingerprints were found on the gas bottle.

The jury were entitled to disbelieve that explanation and the appellant's other self serving denials.  They were entitled to infer from the presence of the equipment and amphetamine in or near the car that the equipment had been used to manufacture amphetamine during the period when the appellant was in the house.  And they were entitled to infer, from his fingerprints on the gas bottle, in those circumstances, that he participated in that manufacture.  But that does not establish, in our view, that he was in possession of the equipment when it was found in or near the car.  It was equally open to infer that it was in the possession of any of the other occupants of the house or of any two or more of them.

We would therefore also allow the appeal in respect of count 2 and set aside the verdict on that count.

It remains to consider the application for leave to appeal against sentence on count 3.

The appellant is 25 years of age and was 23 at the time of commission of this offence.  He has only one prior conviction, on 7 January 1994, but this was for a number of drug offences the most serious of which were producing a dangerous drug and possession of a thing used in connection with producing a dangerous drug.  On that occasion he was fined $550.  He has therefore not previously been to prison.

As against that, the amount of cannabis was substantial, it was plainly being used openly in front of young children and the appellant by his conduct has indicated a complete lack of remorse.

Nevertheless the cases to which we have been referred, in particular Boyle C.A. No. 203 of 1995 and Clarke C.A. No. 38 of 1995 show, in our view, that a sentence of four years imprisonment was outside the range of a sound sentencing discretion.  We would accordingly grant the application, allow the appeal against sentence, set aside the sentence and in lieu thereof impose a sentence of two years imprisonment.