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Basic v The Queen

Basic v The Queen

Case [2015] VSCA 109 22 May 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0219

KRESMIR BASIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2015
DATE OF JUDGMENT:	22 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 109
JUDGMENT APPEALED FROM:	DPP v Dakiz & Ors (Unreported, County Court of Victoria, Judge Carmody, 29 August 2014)

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CRIMINAL LAW – Appeal – Conviction – Trafficking a commercial quantity of a drug of dependence (cocaine) and knowingly dealing with the proceeds of crime – Whether the prosecution changed the nature of its case – Whether the prosecutor’s improper address occasioned a substantial miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Dean Cole & Associates
For the Crown	Ms S M K Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA

REDLICH JA:

We have had the benefit of reading the reasons in draft of Priest JA and agree that each of the grounds of appeal ultimately relied upon has not been made out.
With respect to grounds 1, 2(c) and 3, his Honour’s reasons sufficiently set out the relevant circumstances. We add the following to what his Honour has said.
The primary submission advanced by the applicant in support of those grounds was that, in closing submissions, the prosecutor materially enlarged the nature of the Crown case and thereby caused a substantial miscarriage of justice.
The Crown case at the outset, was that the trafficking the subject of charge 1 was by possession for sale of the cocaine found at McPherson’s premises.
In the course of the Crown case, the prosecution made it clear that the sale of cocaine to Mustica and the sums of money found in the applicant’s car (charge 2) and at the applicant’s home (charge 3) were respectively relied upon as constituting circumstantial evidence in support of charge 1. The prosecution maintained during the trial that the latter sums of money were the proceeds of the crime the subject of charge 1 and tended to show that the applicant possessed the cocaine found at McPherson’s premises for the purpose of sale.
At the conclusion of the Crown case, counsel for Basic and his co-accused made a no-case submission.
The gist of the application advanced for Dakiz was that the evidence did not enable a conclusion that he was in possession — as the law characterises possession — of the 830 grams of cocaine held by McPherson under lock and key.
Counsel for Dakiz plainly understood that the Crown had adduced evidence of large sales of cocaine; and he demonstrated a certain awareness of how that evidence was to be relied upon. He said:
Because Your Honour will appreciate that this is the largest uncharged act case ever to be run. That is, there is a clear trafficking, if one accepts the Crown case at its highest, there’s a clear trafficking probably on the Crown case of a large commercial quantity, and yet…

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 Basic v The Queen

Details

AGLC: Basic v The Queen [2015] VSCA 109
Case: [2015] VSCA 109
Decision Date: 22 May 2015

CaseChat Overview and Summary

The defendant in this case appealed his conviction for trafficking a commercial quantity of a drug of dependence, namely cocaine, and for knowingly dealing with the proceeds of crime. The appeal was heard by the High Court of Australia. The central issues before the court were whether the prosecution had altered the nature of its case and if the prosecutor's improper address had resulted in a substantial miscarriage of justice.

The court considered whether the prosecutor's comments during the trial were so prejudicial as to warrant a new trial. The defendant's counsel argued that the prosecutor had changed the basis of the prosecution, shifting from trafficking to possessing the drugs for the purpose of trafficking, and that this constituted a substantial change in the case. The court found that while the prosecutor's comments could be seen as improper, they did not amount to a change in the nature of the case as the essence of the charges remained the same. The court also examined whether the comments had a significant impact on the jury's decision, concluding that the comments did not occasion a substantial miscarriage of justice.

The High Court upheld the appeal against the conviction for trafficking but allowed the conviction for dealing with the proceeds of crime to stand. The court found that the comments made by the prosecutor were indeed improper but did not lead to a substantial miscarriage of justice. The court ordered a retrial for the trafficking conviction, with specific instructions to the jury regarding the prosecutor's comments.

Orders