Akin Saricayir v The Queen

[2022] VSCA 133

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0076

AKIN SARICAYIR	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, NIALL and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2022
DATE OF JUDGMENT:	12 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 133
JUDGMENT APPEALED FROM:	[2017] VCC 1058 (Judge Ryan)

---

CRIMINAL LAW – Appeal – Conviction – Second and subsequent appeal – Trafficking commercial quantity of cannabis – Whether fresh and compelling evidence – Factual matters were in existence – Matters relied on not fresh or compelling – Whether informant acted improperly – No evidence of impropriety – Leave to appeal refused – Criminal Procedure Act 2009 ss 326A, 326C.

---

Counsel
Applicant:		In person
Respondent:		Mr J McWilliams
Solicitors
Applicant:	In Person
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA
MACAULAY JA:

Summary

1. In June 2017, after a jury trial, the applicant was convicted of trafficking a commercial quantity of cannabis and theft of electricity. The offending conduct took place between March and July 2015. The charges were laid following the discovery by police of a cannabis crop being cultivated at premises in Heathmont.

2. The applicant was sentenced to 5 years and 9 months’ imprisonment, with a non-parole period of 4 years. (He has now been released from custody following the completion of the non-parole period.) His appeal against conviction was dismissed by this Court in November 2018.[1]

   [1]Saricayir v The Queen [2018] VSCA 319 (‘Saricayir’).

3. The applicant now seeks leave under s 326A of the Criminal Procedure Act 2009 to bring a second appeal against his conviction. Under s 326C(1), this Court may grant that leave if satisfied that ‘there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.

4. The proposed ground of appeal is in these terms:

   Fresh and compelling evidence has been adduced to strongly suggest manipulative and misleading conduct leading to false evidence and caused by the police informant Senior Constable Grant Fereday. The intervention was of such a degree that it would have caused a substantial miscarriage of justice if not properly weighed and considered by the jury.

5. The matters on which the applicant now relies are said to have emerged from ‘his own enquiries concerning several of the main items that formed the strong circumstantial evidence that supported the finding of the convictions’. Each matter is said to demonstrate ‘manipulative and misleading conduct’ on the part of the informant.

6. For reasons which follow, we would refuse leave to appeal. Properly understood, none of the matters now relied on can be said to be either ‘fresh’ or ‘compelling’ within the statutory definitions of those terms in s 326C(3). Nothing to which we have been referred suggests impropriety of any kind on the part of the informant.

7. In dismissing the appeal against conviction, this Court (‘the first Court’) described the circumstantial case against the applicant as ‘overwhelming’. In the Court’s view

   the united and…