Akin Saricayir v The Queen
[2022] VSCA 133
•12 July 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0076 |
| AKIN SARICAYIR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| 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) |
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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.
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| 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
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.
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’).
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’.
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.
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.
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.
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 combined force of the circumstances relied on by the prosecution pointed unequivocally to a guilty verdict. … There was a mountain of evidence proclaiming the applicant’s guilt.[2]
[2]Ibid [97].
As the respondent pointed out on the present application, the factual matters to which the applicant now draws attention were, for the most part, litigated in his trial and/or in the conviction appeal. To give the necessary context, therefore, we begin by setting out the prosecution case against the applicant, his response to it and the essential parts of the reasoning of the first Court. What follows in paras 9–22 is taken directly (with minor modification) from those reasons.
The circumstantial case[3]
[3]Ibid [11]–[18] (Kaye, T Forrest and Ashley JJA).
The prosecution case was that the applicant was party to a joint criminal enterprise to cultivate and traffick in cannabis L. It was alleged that he, with others, possessed for sale a cannabis crop at premises at the Heathmont premises.
When police executed a search warrant at the Heathmont premises on 11 July 2015 there was found at that premises 111 cannabis plants weighing some 47 kilograms, the dried useable parts of the plants being in the order of 31 kilograms. A commercial quantity of cannabis L is not less than 25 kilograms.
The plants were being grown hydroponically in a number of rooms in the premises, including the kitchen. The set-up was of a kind encountered often enough. It included, as the trial Judge said when sentencing the applicant, ‘the ubiquitous electricity bypass’. The bypass was the mechanism by which the theft of electricity alleged by Charge 3 was effected.
The cannabis crop found at the premises included plants at various stages of maturity. This allowed, as the Judge said, ‘for the inference that the cultivation was a continuing enterprise’.
The parties to the joint criminal enterprise were said by the prosecution to be Yitican Gunal (‘Gunal’), Fatima Traljesic (‘Traljesic’), her husband Enis Ebricic, and the applicant. As the trial progressed, the applicant’s complicity with Gunal dominated the evidence and the prosecution case against him.
According to the indictment, the period of trafficking alleged was 17 March 2015 to 11 July 2015. The earlier date was the date upon which, on the prosecution case, the applicant entered into a contract with an electricity company for the supply of electricity to the premises. The latter date was the date upon which police executed a search warrant at the premises.
Gunal was at the premises when the search warrant was executed. He was arrested, interviewed and remanded in custody. The applicant was interviewed in November 2015. A lengthy record of interview was compiled. There was no eyewitness evidence that the applicant ever attended the Heathmont premises.
The first Court summarised the elements of the circumstantial case in the following terms:
‘(1)There was a lease of the Heathmont premises, with a commencement date of 1 April 2015, in which Traljesic was described as the lessor and the applicant as lessee.
(2)The name of the customer to whom electricity was supplied at the Heathmont premises as from 17 March 2015 was a person whose name was almost identical in spelling to that of the applicant. Moreover, the company’s records noted the customer’s date of birth. It was the applicant’s date of birth. The records also noted a contact telephone number. It was the applicant’s mobile telephone number.
(3)Telephone calls were made to the electricity supplier for the purposes of also connecting gas to the Heathmont premises, by a man who used the applicant’s name and telephone number to identify himself.
(4)Several documents in the applicant’s name were found by police in a refuse bin at the Heathmont address on the day that the search warrant was executed. There was a traffic infringement notice which indicated that there had been personal service upon the applicant. The notice referred to an offence allegedly committed on 26 April 2015 at Yering. Call records showed that the applicant’s vehicle was in the vicinity of the Heathmont premises on 26 April 2015, and that he communicated with Gunal on that day. There was also an environmental protection reminder notice, which had apparently been sent to the applicant’s previous Oak Park address, but had been re-directed to his then-current Kyabram address.
(5)Although the applicant lived in Kyabram in the period of the alleged offending, there were call records (many of them late in the charge period) and Eastlink records which demonstrated the applicant’s frequent presence in the vicinity of the Heathmont premises in that period. The latter showed that he both left and entered Eastlink in the vicinity of those premises.
(6)DNA extracted from items found within the premises bespoke the applicant’s attendance inside the premises. The applicant’s DNA was extracted from all these items: (1) a coffee cup lid found in grow room 3; (2) a second coffee cup lid found in the kitchen; (3) cigarette butts in an ashtray on the kitchen table. It will be remembered that cannabis plants were being grown, inter alia, in the kitchen; (4) a drinking straw in a coffee cup in the lounge room of the premises, where Gunal was apparently living; and (5) a cigarette packet, found in grow room 2. It connected with a particular cigarette butt found in the ashtray in the kitchen. We have used the language of certainty only because it was not contended at trial that the DNA evidence was equivocal as to the applicant’s contribution.
(7)There were text messages between the applicant and Gunal, prior to the latter’s arrest, which, in part, related to the growing of cannabis. [Text of messages not reproduced.]
(8)The applicant was found to be in possession of documents, at the time of his arrest on 18 November 2015, which linked him to Gunal and Traljesic.
(9)Telephone calls between the applicant and Gunal, whilst the latter was on remand, demonstrated the applicant’s knowledge of the criminal combination, contained admissions as to his involvement therein, and laid the foundation for an argument that he had told lies going to his credit in the record of interview.
(10)The applicant engaged in post-offence incriminating conduct. Specifically, he lied in the record of interview when he said that he did not know the Heathmont area; that he had never heard of the particular address in Heathmont; and that he had never been to the Heathmont premises. He also told other lies, which were relied upon by the prosecution as going to his credit.’
The applicant’s answer to the circumstantial case[4]
[4]Ibid [19]–[25].
In very large measure, the circumstances relied upon by the prosecution were not in dispute. The defence case at trial was broadly that the applicant knew Gunal and had assisted him in various ways which had nothing to do with the commission of the charged offences. He had met Gunal in the vicinity of the Heathmont premises from time to time, but simply as a friend. He had not been inside the premises. He had been the ‘fall guy’ for others.
The first Court took the view there was ‘an obvious tension’ between that general picture and things both said and denied by the applicant in the record of interview. In the course of the closing address, the applicant’s counsel in effect attributed a number of what were said to be inaccuracies in the interview to the applicant’s understandable reluctance, knowing that Gunal had been arrested, to concede that he had much to do with the other man.
A second broad aspect of the closing address, the Court said, was to highlight what were said to be evidentiary deficiencies in the prosecution case, and to contend that particular items of evidence were ambiguous, or led nowhere. Counsel repeatedly submitted that the prosecution case could not be established in reliance upon this or that particular piece of evidence alone — notwithstanding that the prosecutor had repeatedly and correctly stated that the prosecution did not rely upon any particular piece of evidence to prove the case, but upon the cumulative effect of all the evidence.
The Court summarised the defence submission in these terms:
(1)There was a question as to the provenance of the lease. The evidence was deficient in establishing that the applicant had signed it.
(2)As to the evidence of call charge records which, on their face, identified calls frequently connected between the applicant’s mobile phone and Gunal’s phone via the Heathmont and Heathmont East mobile phone towers, such records did not necessarily indicate his client’s presence in that vicinity.
(3)Whilst the applicant did not deny that he had been in the Heathmont area at various times during the charge period, and that it was likely that he had then been in Gunal’s company, what of it?
(4)What could not be said was how often the applicant actually attended the premises; nor whether he went into the property when the cannabis was actually in situ.
(5)The applicant did not deny that the electricity and gas accounts had been established in his name, or in a name similar to his. But there was no evidence as to who set up those accounts.
(6)In establishing the gas and electricity accounts for the Heathmont property, the applicant had simply contacted the provider in the course of assisting Gunal; just as he assisted Gunal to secure accommodation in Euroa.
(7)Gunal having no family in Australia, the applicant had simply acted as a conduit between Gunal and his family overseas when receiving money to assist the latter in his defence of charges brought against him.
(8)True it was that documents belonging to Gunal and Traljesic had been found in a box in the applicant’s vehicle at Kyabram. But what was there to say that he knew of the contents of the box?
(9)The DNA evidence did not necessarily assist the jury to reach a conclusion that his client ever entered the Heathmont premises, let alone that the cannabis crop was there. The crime scene examiner had not seized the coffee cups — that is, as distinct from the lids — nor a container that a drink had been in. The cigarette butts had been found in an ashtray, which could be moved, for example, from the garden into the interior of the house. Further, the DNA could not be dated.
(10)The documents found in the garbage bin ‘could have been thrown out by Gunal’.
(11)There was no evidence as to what the text and iCloud messages between the applicant and Gunal might actually mean. The prosecution was inviting speculation.
(12)With respect to the record of interview, more often than not the applicant had not been evasive or difficult, but rather he was trying to understand what was being put to him. As to his alleged lies, well before being interviewed the applicant knew what was alleged against Gunal and knew that his relationship with Gunal was dangerous. Thus could be explained what he had initially said about the infrequency of his contact with Gunal.
The appeal decision
The first Court accepted that certain evidence which had been led before the jury was inadmissible. The argument for the applicant was that, absent the inadmissible material, the jury may have entertained a doubt as to his guilt.
The Court rejected that contention, in these terms:
In our opinion, excluding the inadmissible evidence, the prosecution case was overwhelming. In our opinion, a guilty verdict was inevitable. Applicant’s counsel below did all that he could in closing address to sow a seed of doubt. He sought to proffer an innocent explanation for each of the individual items of evidence which made up the circumstantial case. But the united and combined force of the circumstances relied upon by the prosecution pointed unequivocally to a guilty verdict. In reality, applicant’s counsel had nothing to work with. There was a mountain of evidence proclaiming his client’s guilt. Perhaps most persuasively, there was the DNA evidence and evidence of communications between the applicant and Gunal in the charge period.
The DNA evidence showed clearly that the applicant had been inside the premises. There was nothing to suggest that he had been in the premises before mid-March 2015, as might explain the DNA evidence. The several lids of coffee cups were found in different areas of the house where the crop was grown. A cigarette butt was found in one room and a related cigarette packet in another room. A drinking straw and other cigarette butts were found in the house. The different ages of the plants found at the time when the search warrant was executed was indicative of a rolling operation, the relevant electricity supply having been connected in mid-March 2017. The idea that the applicant might have been in the house for some innocent purpose in the charge period and that a crop was not then being grown (except when the bypass was being installed, which would be no better for the applicant) was fanciful in the extreme.
It might be said, even if the applicant did enter the house, and even if cannabis was then growing there, and assuming the applicant saw it, that these circumstances did not necessarily bespeak his involvement in the charged offending. But such an argument would have stretched credulity to breaking point, and understandably it was not advanced by applicant’s counsel below. Moreover, such an argument would inevitably have been met by the content of messages passing between the applicant and Gunal in the charge period. We have earlier set out some of those messages. They were, in our opinion, absolutely damning.[5]
[5]Ibid [97]–[99].
Second and subsequent appeal: the statutory scheme
The power to grant leave to appeal is contingent upon the satisfaction of a series of strict statutory requirements. Sections 326A, 326C and 326D of the Criminal Procedure Act 2009 provide as follows:
326A Right of second or subsequent appeal against conviction
(1)A person convicted of an indictable offence by an originating court who—
(a)has exhausted the person's right to appeal against conviction under Division 1 of Part 6.3; or
(b)has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part—
may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal.
(2)An appeal under subsection (1) may also include an appeal against a conviction for a related summary offence.
326C Determination of application for leave to appeal under section 326A
(1)The Court of Appeal may grant leave to appeal under section 326A if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2)The Court of Appeal may grant leave to appeal under section 326A against a conviction for a related summary offence only if it grants leave to appeal under subsection (1) in relation to the indictable offence.
(3)In this section, evidence relating to an offence of which a person is convicted is—
(a)fresh if—
(i)it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b)compelling if—
(i)it is reliable; and
(ii)it is substantial; and
(iii)either—
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
(4)Evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial of the offence that resulted in the conviction.
326D Determination of second or subsequent appeal against conviction
(1)On an appeal under section 326A, the Court of Appeal must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 326A.
In Roberts v The Queen, this Court said:
The question whether a proposed ground of appeal is reasonably arguable may demonstrate that it is in the interests of justice that leave be granted. Nonetheless, the concept of the interests of justice is not to be conflated with the ultimate issue of a substantial miscarriage of justice.[6]
[6](2020) 60 VR 431, 443 [51]; [2020] VSCA 58 (Osborn, T Forrest JJA and Taylor AJA) (citations omitted).
We turn now to deal with the individual matters on which the applicant relies.
The lease of the premises
As noted in the appeal judgment, one of the pieces of circumstantial evidence was a lease of the premises with a commencement date of 1 April 2015. The document relied on by the prosecution was a standard form residential tenancy agreement, apparently filled out by hand, naming Traljesic as landlord and the applicant as tenant. The document appears to have been signed by both of them.
In his written case, the applicant says:
The Applicant recalls that during the police interrogation that he was presented with a lease document that was alleged to have been formed between himself and Traljesic. However, the signature clearly did not bear his true signature and the Applicant repeatedly denied it. S/C Fereday then required [him] to scribe several samples of his signature on a supplied pad which was provided. The Applicant then confronted S/C Fereday to compare the signatures with that which appeared on his driver’s licence. At that juncture of the interrogation it became obvious that the document was a false document and the alleged signature was a forgery.
Given the obvious discrepancy, S/C Fereday failed in his duties in having the signatures verified by an expert and obscured this dispute by misleading the court by inference that the signature were correct and not in dispute. However, it was conceded by the prosecution that the document was checked and confirmed not to have been registered with Consumer Affairs Victoria as it ought to.
The issue of the accuracy of the lease document was overlooked by the Applicant’s trial counsel. The irregularity of this piece of evidence was magnified in that S/C Fereday was unable to produce the original of this document and alleged in his testimony that it went ‘missing’. Only a photocopy of this document was relied upon and tendered in evidence.
In oral argument, the applicant referred to a statement made by Gunal, in his interview with police, that the lease was a fake. He also submitted that the purported signature on the lease agreement was ‘totally different’ from the signature on his driver’s licence. Although he had told police that this was ‘not a real rental agreement’, the prosecution nevertheless relied on it at the trial.
Plainly enough, this is not ‘fresh’ evidence. As appears from the appeal reasons, the question of the provenance of the lease document was an issue in the trial. The fact that the signature had not been positively identified as belonging to the applicant was addressed by his counsel in closing. The final address also drew attention to the fact that police had taken a sample of the applicant’s handwriting, which had been lost, and that police also had samples of his handwriting on other forms.
As the respondent points out, the applicant’s principal point here seems to be that the question of the lease should now be re-examined in the light of the other matters relied on.
Gunal’s ‘recant and remorse’
Gunal did not give evidence at the applicant’s trial, because he had by then been deported to Turkey following the completion of his sentence. As described below, the trial judge refused an application by the prosecution to rely on Gunal’s police statement, which implicated the applicant.
In December 2015, while he was serving his own sentence, Gunal wrote a letter of apology to the applicant, expressing regret for having implicated him in the cannabis operation. Following his release and deportation, Gunal sent another message to the applicant, by email, on the first day of his trial (23 May 2017).
On the present application, the applicant read out the following part of that message:
I know you have a court and hopefully you went well. I didn’t want it to be like this. Again, I apologise. I didn’t want to put you or your family in this kind of situation. I didn’t think it was going to drag on this long. I’ve gone through bad day as well. They treat me very badly by [sic] psychologically and physically. During my interview with police, I was still bleeding from the head. I gave your name because you had a visa because I was very scared and I was … afraid for my family. I didn’t anticipate to drag on this long. Because you had a visa, I didn’t think they were going to … do anything to you. I hope for your court case goes well, brother, and I hope you will be saved.
Once again, in our view, the communications between Gunal and the applicant in 2015 and again in 2017 cannot possibly be viewed as fresh evidence. The 2015 letter was referred to at the applicant’s committal, and was adopted by Gunal during cross-examination. The 2017 email arrived on the first day of the applicant’s trial and was therefore available to those representing him.
What is of particular significance, in our view, is that the applicant’s trial counsel successfully opposed a pre-trial application by the prosecution to rely – in the absence of Gunal himself - on his police statement and his evidence at the committal. In support of his contention that the prosecution had not taken all reasonable steps to secure Gunal’s attendance, counsel relied on the importance of Gunal’s evidence to the prosecution case. Agreeing with the trial judge that Gunal was ‘an important witness’, counsel submitted that his evidence was ‘fundamental to the police case’.
It is not, of course, possible for us to speculate as to the view taken by the applicant’s representatives of Gunal’s purported ‘recantation’. What is perfectly clear, from the record, is that a forensic decision was made on the applicant’s behalf that his interests would not be served by having Gunal as a witness in the trial.
If, as would appear to be the case, the applicant’s real complaint here is the failure of his own representatives to make better use of these communications from Gunal, we agree with the respondent that that complaint could have been raised under the ground advanced in the conviction appeal, namely, that a miscarriage of justice resulted from the alleged incompetence of those representatives. Moreover, since these communications were in the applicant’s own possession, what was done — or not done — by his representatives cannot in any way reflect on the conduct of the police investigation.
The AGL accounts
In the applicant’s trial, the prosecution used recordings of two telephone calls made to AGL on 17 March 2015. The calls were made to facilitate the connection of both gas and electricity to the Heathmont property. The person recorded as making those calls used the applicant’s name and his date of birth.
It was apparent from those recordings that an earlier call had been made, the previous day, to request the connection of the services. The two calls on 17 March involved the provision of further details which AGL required before the connection could be made. The recording of the 16 March call was not before the jury.
In his written case, the applicant accepts that he was the person speaking with AGL during the second and third taped conversations. He asserts, however, that he did not make the initial call on 16 March to set up the connection, and he did not open the account. He maintains that he only made the second and third calls ‘after I was duped by the second co-accused, Mr Gunal, to call them and sort out connection problems’.
The applicant asserts that he ‘specifically instructed’ his trial counsel to contest the assertion that he had opened the account, and to demand the production of the tape of the first call. Those instructions were, he says, ignored.
According to the applicant’s written case, he has since conducted his own enquiries with AGL and with the Energy Ombudsman, as a result of which he has established that the first tape was not lost or destroyed and had in fact been archived by AGL only recently. He had obtained a copy of the tape from the Ombudsman and now asserts that:
The person who spoke to AGL on tape [the first time] was clearly not me. I therefore did not enter into a contract with AGL for the supply of power over that property (thus my connection here severed).
The applicant accepts that the person who spoke to AGL in that first conversation used his name but says that the person:
was mistaken about its proper spelling. My name is Akin with an ‘n’, but he misspelled it as Akim with an ‘m’. To make his mistake more obvious, he spelt it ‘m for Mary’ on tape.
The applicant contends that the informant ‘alleged that he made enquiries with AGL and that they advised they either lost or destroyed the essential first setup tape. This turns out to be a lie.’ As the respondent points out, however, that was not the evidence which the informant gave. His only evidence about this issue was as follows:
Q:And were there any voicemail recordings of any person seeking to connect the electricity to the premises that you were able to obtain from AGL?
A:Not the actual connection but in relation to that account, there is.
The informant confirmed that he had ‘obtained some voice recordings from AGL regarding that account number’. The recordings of the two calls were then played to the jury. The prosecutor confirmed that the mobile telephone number mentioned by the caller was the applicant’s. The informant was not cross-examined on that issue.
The applicant’s other complaint is that the informant ‘deliberately concealed’ the fact that:
The number identified by AGL for the creation of the power account … is recorded in the police brief as belonging to a ‘Lee Byunggeol’, a phone found in the possession of the co-accused Mr Gunal.
Assuming in the applicant’s favour that the first AGL call did originate from the Byunggeol handset, what seems to us to be of much greater significance is that the maker of the first AGL call correctly identified the applicant’s own mobile number during the call.
In any event, as the respondent correctly points out, the evidence constituted by the first AGL recording is not ‘fresh evidence’. As the applicant himself acknowledges, he was aware from the recordings of the second and third calls that there was a previous call and he instructed his counsel to demand its production. The applicant’s own subsequent enquiries have confirmed that it was in existence at that time and that it could, had the appropriate enquiry been made, have been obtained.
There was no obstacle to the applicant’s trial counsel pointing out to the judge that there was no recording of the first conversation, or submitting that, as a matter of fairness, the prosecution should obtain it. Once again, given what the applicant says about the instructions he gave, a forensic judgment was evidently made by his trial counsel not to pursue that issue.
Given the content of the second and third calls, that decision seems unsurprising. As the respondent points out, in his two recorded conversations with AGL the applicant appeared to be familiar with the content of the first call and on each occasion said, ‘I got your message to ring back’.
The garbage collector
According to the applicant, the informant falsely stated that equipment for the hydroponic manufacture of cannabis was found disposed of in a dumpster bin at a property near Euroa at which Gunal resided. This was said to have been ascertained through enquiries made of the rubbish removal company. The applicant asserts that he subsequently made enquiries
with the skip company responsible for servicing the area who denied servicing that property during that relevant time or receiving any police enquiries in this regard.
As the respondent points out, this complaint appears to relate not to any evidence given at the trial but to a section of the applicant’s record of interview which was the subject of detailed consideration in the conviction appeal. In the interview, the applicant confirmed that he had cleaned out the Euroa premises occupied by Gunal. He said that he had called a ‘rubbish collector’ and had asked, ‘What I need to do with this stuff?’
The interviewer then asked the applicant:
Did you empty out all the hydroponic gear that was in the house as well, the lampshades and the lights and …
A: What’s mean hydroponic?
Subsequently, the interviewer said to the applicant, ‘The garbage collector says that when he collected the bin it was full of all hydroponic lights, shades.’ The applicant denied that he had seen anything of that kind and offered to provide the interviewer with the number for the rubbish collector. The interviewer then said, ‘The police who are investigating all of this have already spoken to him. That’s how I know that you emptied all the unit.’
In the conviction appeal, the Court upheld the applicant’s complaint that the question set out above — asserting that there was ‘hydroponic gear’ in the house — was seriously prejudicial. It should ‘definitely have been excised as irrelevant and prejudicial before the record of interview was put into evidence’.[7] But, as noted earlier, the Court concluded that the inadvertent failure to excise the question did not give rise to a miscarriage of justice, given the powerful circumstantial case.[8]
[7]Saricayir [2018] VSCA 319, [58].
[8]Ibid [10].
Once again, this is not fresh evidence. The record of interview is dated November 2015, more than 18 months before the trial, and the defence could readily have investigated the circumstances of the attendance by ‘the garbage collector’ at the Euroa premises. On the material now available, there is no foundation for the assertion of improper conduct.
Confiscation application
The applicant has ascertained that the Heathmont property was subject to a successful application for confiscation. The confiscation order was made on the basis that the property was ‘tainted’ within the meaning of s 3 of the Confiscation Act 1997.
As the property was owned by Traljesic, she was the respondent to the confiscation application. This circumstance appears to have led the applicant to infer that the property was tainted ‘because of her own independent conduct and not mine.’ He saw this as evidence of the police having falsely portrayed him as being involved in the operation at the Heathmont property because, as he further inferred, by applying to confiscate Trajelsic’s property the police must have believed that she had conducted that operation.
This is, with respect, a misconception. What is required to show that property is ‘tainted’ is that it was ‘used in connection with’ the commission of an offence. The evidence clearly established that the Heathmont property had been used in connection with the cannabis cultivation operation. The bringing of the application against Traljesic, as the legal owner of the property, said nothing about the identity of the co-offenders.
Conclusion
For the reasons we have given, none of the points relied on is capable of constituting ‘fresh and compelling’ evidence. The application for leave to appeal must be refused.
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