JUDGES:	WEINBERG, OSBORN and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 April 2017
DATE OF JUDGMENT:	15 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 112	First revision: 17 June 2019, footnote 18.
JUDGMENT APPEALED FROM:	[2016] VCC 401 (Judge Hampel)

---

CRIMINAL LAW – Practice and procedure – Jury empanelment – Whether jury empanelment miscarried – Whether reasonable opportunity to view the faces of prospective jurors – Theodoropoulos v The Queen [2015] VSCA 354 distinguished – Whether procedure otherwise unacceptable – Leave granted – Appeal dismissed.

EVIDENCE – Admissibility – Evidence Act 2008 (Vic) s 87 – Whether assertions admissible as having been made in furtherance of joint criminal enterprise – Whether probative value outweighed by prejudicial effect – Whether admissions resulted in an unfair trial – Leave granted – Appeal dismissed.

CRIMINAL LAW – Application for leave to appeal – Conviction – Directions to counsel by trial judge – Rule in Shepherd v The Queen (1999) 170 CLR 573 – Jury Directions Act 2015 (Vic) ss 61, 62 – No error by trial judge – Leave refused.

CRIMINAL LAW – Application for leave to appeal – Conviction – Refusal by trial judge to give further direction with respect to prosecutor’s final address – No error by trial judge – Leave refused.

CRIMINAL LAW – Application for leave to appeal – Sentences – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug – Relevance of role in joint criminal enterprise to sentencing – Whether sentences manifestly excessive – Leave refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant Besim Beqiri	Mr M A Tovey QC	Melasecca Kelly & Zayler
For the Applicant Bruno Hajko	Mr O P Holdenson QC	Melasecca Kelly & Zayler
For the Respondent to each application	Mr D G Gurvich QC with Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WEINBERG JA:
OSBORN JA:
WHELAN JA:

The applicants, Besim Beqiri and Bruno Hajko, seek leave to appeal against convictions and sentences arising out of a joint trial involving both applicants and a third man, Jacinto Rodriguez-Conejo (‘Rodriguez’). The trial concerned the importation of 29,252.2 grams of methamphetamine (23,040.4 grams of pure methamphetamine) into Australia. The drugs were imported from the USA within the body of a Chevrolet motor car.

All three men were charged with attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine.

Rodriguez was also charged with possession of a marketable quantity of a border controlled drug, comprising 374 grams of pure cocaine.

All three accused pleaded not guilty to the charges.

A jury was empanelled on 10 February 2016 and verdicts of guilty on all charges were returned on 8 March 2016.

The applicants were sentenced in relation to all charges on 8 April 2016 by Judge Hampel, as follows:

Besim Beqiri

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 Beqiri v The Queen

Details

AGLC: Beqiri v The Queen [2017] VSCA 112
Case: [2017] VSCA 112
Decision Date: 15 May 2017

CaseChat Overview and Summary

The case of Beqiri v The Queen involved the appellant appealing against his conviction and sentence for various drug-related offences. The appeal raised several issues including the manner of jury empanelment, the admissibility of certain evidence, and the fairness of the trial and sentencing process. The Court of Appeal of Victoria heard the appeal and provided rulings on each of the issues raised.

The first issue considered was whether the jury empanelment process was flawed, denying the appellant a reasonable opportunity to view the faces of prospective jurors. The Court examined the procedure against the principles established in Theodoropoulos v The Queen and found no miscarriage in the process, thus distinguishing the case from Theodoropoulos. The second issue addressed the admissibility of certain assertions under s 87 of the Evidence Act 2008 (Vic). The Court concluded that the probative value of the evidence outweighed any prejudicial effect, and therefore, the appellant's right to a fair trial was not infringed.

The third and fourth issues involved the trial judge’s directions to counsel and the refusal to give further directions with respect to the prosecutor's final address. The Court held that there was no error in the trial judge's conduct in accordance with the principles established in Shepherd v The Queen and the Jury Directions Act 2015 (Vic). Finally, the appeal regarding the sentencing was assessed, but the Court found that the sentences were not manifestly excessive given the appellant's role in the joint criminal enterprise.

In summary, the Court of Appeal dismissed the appeal in its entirety. The jury empanelment process was deemed proper, the evidence was admissible, and there was no error in the trial judge's directions or the refusal to provide further directions. The sentences imposed were considered appropriate, and no manifestly excessive sentences were found.

Orders