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Awad v The Queen

Awad v The Queen

Case [2021] VSCA 285 15 October 2021

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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…

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 Awad v The Queen

Details

AGLC: Awad v The Queen; Tambakakis v The Queen [2021] VSCA 285
Case: [2021] VSCA 285
Decision Date: 15 October 2021

CaseChat Overview and Summary

The appellant, Awad, was convicted by a jury in the County Court of Victoria of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, specifically cocaine. He appealed against his conviction and sentence to the Court of Appeal. The central issue was whether the trial judge erred in directing the jury regarding evidence of the accused. Specifically, the court needed to determine whether the judge's direction contravened section 44J of the Jury Directions Act 2015 and whether this constituted a substantial miscarriage of justice. The court also had to consider whether the error was material and whether it was necessary to examine whether the verdict of guilt was inevitable, unreasonable, and unsupported by the evidence.

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