[1]To ensure that there is no possibility of identification of the individuals concerned, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	MAXWELL P, WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 & 22 October 2014
DATE OF JUDGMENT:	22 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 350
JUDGMENT APPEALED FROM:	DPP v [Bass] (Unreported, County Court of Victoria, Judge Maidment, 9 July 2013)

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CRIMINAL LAW – Appeal – Conviction – Trafficking in commercial quantity of methylamphetamine – Crown witness had undertaken to give evidence against appellant – Witness received substantial discount – Defence counsel cross-examined on factors affecting discount – Jury learnt that witness in protection and family to be relocated – No forensic advantage – Serious forensic disadvantage – Appellant had pleaded guilty to separate trafficking charge – Defence counsel informed jury of guilty plea – No forensic advantage – Serious forensic disadvantage – Serious errors by counsel – Whether ‘flagrant incompetence’ – Whether substantial miscarriage of justice – Conviction inevitable – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Trafficking in commercial quantity of methylamphetamine – Convicted after trial – Sentenced for trafficking large commercial quantity – Crown concession of error – Appeal allowed – Re-sentenced – Total effective sentence 10y 6m, non-parole period 6y 8m.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms J Dixon QC with Mr M D Stanton	Randles, Cooper & Co Pty Ltd
For the Respondent	Mr D Gurvich	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA

SANTAMARIA JA:

Summary

The appellant was convicted, after a trial, of one charge of trafficking in a commercial quantity of a drug of dependence. He had earlier pleaded guilty to another charge of trafficking in the same drug.

He was granted leave to appeal against conviction on three grounds. A further ground was added by leave. The first two grounds rested on complaints about the judge’s directions to the jury. For reasons which follow, those grounds are without foundation and must be dismissed.

The other two grounds contended that, because of erroneous decisions by counsel who acted for the appellant at trial, prejudicial information was placed before the jury which was damaging to the defence. The relevant ground is expressed in the language of ‘flagrant incompetence’, that phrase being taken from the judgment of Gleeson CJ in R v Birks.[2]
[2](1990) 19 NSWLR 677, 685 (‘Birks’).

Argument on the appeal was confined to two of the complaints of error on the part of defence counsel. The first related to the cross-examination of a Crown witness (SA), who had given an undertaking to give evidence for the prosecution and had received a sentencing discount in return. The effect of the cross-examination was to bring to the jury’s attention that, as a…

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 Bass (a pseudonym) v The Queen

Details

AGLC: Bass (a pseudonym) v The Queen [2014] VSCA 350
Case: [2014] VSCA 350
Decision Date: 22 December 2014

CaseChat Overview and Summary

The appellant, referred to as Bass, appealed against his conviction and sentence for trafficking in a commercial quantity of methylamphetamine. The appeal was heard in the High Court of Australia. Bass argued that there was a substantial miscarriage of justice due to serious errors made by his defence counsel during the trial. Specifically, the counsel cross-examined a witness about factors affecting the discount on the witness's sentence, which informed the jury that the witness was in a protection program and that their family was to be relocated. Bass also claimed that his counsel informed the jury of his guilty plea to a separate trafficking charge, both of which he argued created a serious forensic disadvantage without any forensic advantage. Additionally, Bass claimed that these errors constituted flagrant incompetence on the part of his counsel.

The court examined whether the errors made by defence counsel were so serious as to amount to a substantial miscarriage of justice, and if they rendered the conviction inevitable. The court considered the impact of the errors on the trial and whether they could have affected the jury's verdict. The court also reviewed the totality of the evidence and the circumstances of the case to determine if the conviction was inevitable despite the errors.

The court concluded that the errors made by defence counsel were serious, but they did not result in a substantial miscarriage of justice. The court found that the conviction was inevitable given the overwhelming evidence against Bass. Consequently, the appeal against the conviction was dismissed. Regarding the sentence, the court accepted the Crown's concession of error and allowed the appeal. The court re-sentenced Bass to a total effective sentence of 10 years and 6 months, with a non-parole period of 6 years and 8 months.

Orders