Booysen v The Queen - [2014] VSCA 150

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0145

SABASTIAN BOOYSEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH JA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 June 2014
DATE OF JUDGMENT:	23 July 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 150
JUDGMENT APPEALED FROM:	DPP v Booysen (Unreported, County Court of Victoria, Judge Lawson, 24 April 2013)

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CRIMINAL LAW – Importing a marketable quantity of a border controlled drug (cocaine) – Whether conviction unsafe and unsatisfactory – Whether substantial miscarriage of justice occasioned by failure to disclose evidence, failure to call material witness or an aggregation of errors – No errors demonstrated – Leave to appeal refused.

CRIMINAL PROCEDURE – Election to renew application for leave – Applicant should demonstrate by reference to reasons in initial refusal of leave why there would be error if the initial reasons and conclusion were allowed to stand.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondent	Mr J Gullaci	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
ALMOND AJA:

Following a trial in the County Court, the applicant was convicted on one charge of importing a marketable quantity of a border controlled drug (cocaine) contrary to s 307.2(1) of the Commonwealth Criminal Code.[1] He was sentenced to a total effective sentence of eight years’ imprisonment, with a non-parole period of five years.
[1]Schedule to the Criminal Code Act 1995 (Cth).

In brief, the circumstances of the offending were as follows. The applicant was detained on 4 March 2012 by Australian Customs and Border Protection Service (‘Customs’) officers after arriving at Melbourne airport from Los Angeles, United States of America. The applicant was wearing a plastic leg brace (a moon boot) and when questioned was unable to provide any details as to the nature of his injury or his treating doctor. The applicant was conveyed to hospital by Customs and Australian Federal Police (‘AFP’) officers, where the brace was removed. Two packages were discovered within the brace. This procedure was recorded on video by AFP officers. The applicant, and the packages and other property seized, were taken to the AFP office in Melbourne. There, the AFP officers performed a presumptive Narcotic Identification Kit (‘NIK’) test upon the powder in the packages, which revealed the presence of cocaine. This procedure was recorded on video by an AFP officer, but the video recording was accidentally erased. The fact that the procedure had been recorded only emerged during the course of the trial. The packages were held overnight in a night safe at the AFP office. The next day, the packages were further examined by AFP forensics, who concluded that they contained 777.4 grams of pure cocaine. A marketable quantity of pure cocaine is 250 grams.[2] At trial, the prosecution also relied on evidence obtained from the applicant’s computer, in particular Google searches of search terms apparently related to the transportation of drugs in casts and the evasion of security at airports and a Skype conversation…

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 Booysen v The Queen

Details

AGLC: Booysen v The Queen [2014] VSCA 150
Case: [2014] VSCA 150
Decision Date: 23 July 2014

CaseChat Overview and Summary

The appellant, Booysen, was convicted for importing a marketable quantity of a border controlled drug, specifically cocaine. The case reached the court following Booysen's application for leave to appeal against his conviction and sentence, which was initially refused. Booysen contended that his conviction was unsafe and unsatisfactory, attributing this to alleged failures to disclose evidence, failure to call a material witness, and an accumulation of errors. The central issue for the court was whether these alleged errors warranted a reconsideration of the original decision to refuse leave to appeal.

The court meticulously examined each of the grounds advanced by Booysen. It found that there were no undisclosed or overlooked pieces of evidence that would have altered the outcome of the original trial. Furthermore, the court concluded that the absence of the proposed material witness would not have resulted in a different verdict, as the evidence presented at trial was sufficient to support the conviction. The court also dismissed the argument regarding the aggregation of errors, finding that each individual error, when considered on its own, did not have a significant impact on the overall decision. Therefore, the court held that the original decision to refuse leave to appeal was correct and Booysen's application to renew the leave to appeal was denied.

In summary, Booysen's application for leave to appeal was refused by the court, which found that none of the alleged errors—individually or collectively—warranted a reconsideration of the conviction. The court emphasised the necessity for an applicant to provide compelling reasons, beyond the initial refusal, to justify a renewal of the application for leave to appeal. As a result, Booysen's conviction and sentence remained intact, and no further appeal was permitted.

Orders