and William Christos v The Queen - [2013] VSCA 202

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0117
WILLIAM CHRISTOS	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 August 2013
DATE OF JUDGMENT	6 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 202
JUDGMENT APPEALED FROM	R v Christos and Tsambos (Unreported, County Court of Victoria, Judge Taft, 23 March 2011)

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CRIMINAL LAW – Conviction – Attempt to possess commercial quantity of border controlled drug (heroin) – Transcript and recording of covertly recorded conversation between appellant and co-accused – Whether, because transcript obtained from poor quality recording, it would be highly prejudicial to appellant – Whether judge erred in directions as to use jury could make of transcript – R v Giovannone (2002) 140 A Crim R 1; Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180; R v O’Neill [2001] VSCA 227, applied.

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Appearances:	Counsel	Solicitors
For the Appellant	Ms S F Thomas	Robert Stary Lawyers
For the Respondent	Mr D D Gurvich	Commonwealth Director of Public Prosecutions

NETTLE JA:

Following a nine-day trial in the County Court, on 7 April 2011, the appellant (now aged 60) was convicted of one charge of attempting to possess a commercial quantity of a border controlled drug (namely heroin) and sentenced therefor to nine years’ imprisonment with a non-parole period of six years and three months. One of his two co-accused, Peter Tsambos, was acquitted of one charge of attempting to possess a commercial quantity of a border controlled drug (heroin) and the other co-accused, Zaheen Azizi, pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled drug (heroin).

Grounds of appeal

On 23 November 2012, Tate JA granted the appellant leave to appeal against conviction on two grounds:

1)Ground 1: The trial judge erred in ruling that the recording and transcripts of the applicant and Azizi at Kennards Self-Storage be admitted into evidence.
2)Ground 3: The trial judge erred in his directions about the evidence referred to in Ground 1.

Her Honour refused leave to appeal on two other grounds and the application for leave to appeal on those grounds has not been renewed.
The Crown case at trial

The Crown case at trial was that the offending occurred between 18 February and 8 March 2009, during the course of an Australian Federal Police ('AFP') investigation into a heroin shipment from Afghanistan to Australia. As part of that case, the Crown adduced uncontradicted evidence of the following facts:

1)On 18 February 2009 the appellant attended Kennards Self-Storage in Preston and reserved a storage unit and on 28 February 2009 he enquired about a second unit.
2)On 28 February 2009 Pakistani authorities identified a consignment of 10 bundles of carpet comprised of four carpets per bundle. Upon examination, it was discovered that 'straws' containing heroin were sewn into one carpet in each bundle.
3)The consignment was addressed to the co-accused Peter Tsambos.
4)On 1 March…

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 and William Christos v The Queen

Details

AGLC: Christos v The Queen [2013] VSCA 202
Case: [2013] VSCA 202
Decision Date: 6 August 2013

CaseChat Overview and Summary

The appellant, William Christos, was convicted in the Supreme Court of Victoria for attempting to possess a commercial quantity of heroin. The appeal was brought before the Victorian Court of Appeal. The case involved the interpretation and admissibility of a transcript from a covertly recorded conversation between Christos and a co-accused. The central legal issues were whether the poor quality of the recording would result in significant prejudice to the appellant and if the trial judge made any errors in directing the jury on the use of the transcript.

The court examined the quality of the recording and whether it was sufficiently reliable for the jury to rely on the transcript. The decision referenced previous cases such as R v Giovannone, Butera v Director of Public Prosecutions, and R v O’Neill. The court held that the transcript, despite its poor quality, was not so prejudicial as to warrant exclusion. The judge’s directions to the jury were deemed adequate, as they did not compel the jury to accept the transcript as entirely reliable. The court concluded that the transcript could still be useful to the jury in understanding the context of the conversation, even if it was not entirely clear.

The appeal was ultimately dismissed, with the court reaffirming the trial judge's decision to admit the transcript with appropriate caveats regarding its reliability. The court recognised that the jury was properly directed to consider the limitations of the transcript in their deliberations.

Orders