SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0114
S EAPCR 2021 0102
| DANNY AWAD | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2020 0240
| JOHN MICHAEL TAMBAKAKIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, McLEISH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 August 2021 |
| DATE OF JUDGMENT: | 15 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 285 |
| JUDGMENT APPEALED FROM: | DPP v Tambakakis & Awad (Unreported, County Court of Victoria, Judge Dean, 12 September 2019) (Conviction); [2019] VCC 1835 (Sentence) |
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CRIMINAL LAW — Appeal — Conviction — Attempting to possess a commercial quantity of an unlawfully imported border-controlled drug – Whether judge erred in directing the jury about evidence of accused – Whether contravention of s 44J of the Jury Directions Act 2015 constituted a substantial miscarriage of justice – Whether error material – Whether necessary to consider whether verdict of guilt inevitable - Whether verdict unreasonable – Whether the verdict cannot be supported having regard to the evidence – Jury Directions Act 2015 ss 44H, 44J, 44K – Baini v The Queen (2012) 246 CLR 469, Kalbasi v Western Australia (2018) 264 CLR 62 and R v Buckley (2004) 10 VR 215 considered – Leave to appeal granted –Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Whether trial judge erred in characterising the applicants as senior members of an organisation – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Extension of time – Whether sentence offends principle of parity having regard to co-offender’s sentence and role played by co-offender – Application for extension of time not opposed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Awad: | Mr B Walker SC with Mr O P Holdenson QC and Dr M Gumbleton | Milides Lawyers |
| For the Applicant Tambakakis: | Mr D A Dann QC with Mr P Smallwood | Stephen Andrianakis & Associates |
| For the Respondent: | Mr P Doyle and Ms S Bruhn | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
Convictions, sentences and grounds of appeal
Following a 26 day trial, on 12 September 2019 a jury empanelled in the County Court found the applicants Danny Awad and John Michael Tambakakis (for convenience, ‘Awad’ and ‘Tambakakis’) guilty of one charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, cocaine.[1] The jury were unable to agree on a verdict with respect to a co-accused, Charbel Kanati (‘Kanati’). A fourth accused, Jacob Rohen (‘Rohen’) is yet to be tried.
[1]Criminal Code (Cth), ss 11.1(1) and 307.5(1). The maximum penalty is life imprisonment.
On 12 November 2019, after a plea in mitigation conducted on 8 November 2019, the trial judge sentenced each of Awad and Tambakakis to 15 years’ imprisonment, and fixed a non-parole period of 10 years.
Both Awad and Tambakakis seek leave to appeal against conviction and sentence.[2]
[2]Awad required an extension of time to seek leave to appeal…
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- AGLC
- Awad v The Queen; Tambakakis v The Queen [2021] VSCA 285
- Case
- [2021] VSCA 285
- Decision Date
CaseChat Overview and Summary
The Court of Appeal examined the relevant provisions of the Jury Directions Act 2015 and relevant case law, including Baini v The Queen, Kalbasi v Western Australia, and R v Buckley. The court found that the trial judge did not err in directing the jury and that there was no contravention of section 44J. The court concluded that the verdict of guilt was not inevitable or unreasonable, and it was supported by the evidence. The appeal against the conviction was dismissed. The court also refused the application for leave to appeal against the sentence and the application for an extension of time, finding that the trial judge did not err in characterising the applicants as senior members of an organisation or in considering the principle of parity in sentencing.
The final orders of the Court of Appeal were to dismiss the appeal against conviction and sentence, and to refuse the application for leave to appeal against sentence and the application for an extension of time. The appellant's conviction and sentence were upheld, and no further appeals were permitted.
Orders
Orders of the court
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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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