Eduardo Chavez Gonzalez v The Queen - [2022] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0205

EDUARDO CHAVEZ GONZALEZ	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2022
DATE OF JUDGMENT:	30 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 41
JUDGMENT APPEALED FROM:	DPP (Cth) v Gonzalez (Unreported, County Court of Victoria, Judge Morrish, 22 November 2019) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Importing a commercial quantity of a border controlled drug, cocaine – Whether police officer wrongly permitted to express opinion as to nature of importation – Evidence Act 2008 ss 76, 79.

CRIMINAL LAW – Appeal – Conviction – Importing a commercial quantity of a border controlled drug, cocaine – Incriminating conduct – Whether demeanour admissible as incriminating conduct – Whether consulting a lawyer admissible as incriminating conduct – Jury Directions Act 2015 s 18 – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Carr SC with Ms G Connelly	Slades & Parsons Solicitors
For the Respondent	Ms K Breckweg and Mr T Crouch	Commonwealth Director of Public Prosecutions

PRIEST JA
KYROU JA
WHELAN JA:

Introduction

An indictment filed in the County Court charged the applicant and Gabriel Altamirano Galindo (‘Galindo’) with importing a commercial quantity of a border controlled drug, cocaine, between 8 and 10 November 2017.[1] On 18 October 2019, the trial judge ordered severance of the indictment. A few days later, a fresh indictment, dated 23 October 2019, was filed.[2]
[1]Criminal Code (Cth), ss 11.2A and 307.1(1). The maximum penalty is life imprisonment.
[2]The new indictment was in the following terms:
The Director of Public Prosecutions, who prosecutes in this behalf for Her Majesty the Queen, charges that EDUARDO CHAVEZ GONZALEZ and GABRIEL ALTAMIRANO GALINDO and unknown others at Melbourne in Victoria and elsewhere, between about the 8th day of November 2017 and the 10th day of November 2017, did import a substance, the substance being a border controlled drug, namely cocaine, and the quantity imported being a commercial quantity.
Statement of Offence — Import a commercial quantity of a border controlled drug contrary to subsection 307.1(1) of the Criminal Code (Cth), by virtue of section 11.2A of the Criminal Code (Cth).

The applicant’s trial, occupying some 16 sitting days, proceeded first. On 22 November 2019, the jury empanelled to try the applicant found him guilty.[3] A year and a half later, on 21 May 2021, Galindo pleaded guilty.[4]
[3]On 4 September 2020, the trial judge sentenced the applicant to be imprisoned for 18 years, and fixed a non-parole period of 12 years.
[4]On 17 August 2021, the judge sentenced Galindo to be imprisoned for 14 years and three months, with a non-parole period of nine years and six months.

By an amended notice dated 1 March 2021, the applicant seeks leave to appeal against his conviction on two grounds. The first ground in essence contends that the prosecution impermissibly adduced opinion evidence from Detective Sergeant Keith John Randall (‘Detective Randall’),…

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.

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Details

Case: [2022] VSCA 41
Decision Date: 30 March 2022

CaseChat Overview and Summary

Eduardo Chavez Gonzalez appealed his conviction for importing a commercial quantity of a border controlled drug, cocaine, against the decision of the Supreme Court of Victoria. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, which comprised of Byrne JA, Maxwell P, and Weinberg J. The central issue before the court was whether the police officer had wrongly expressed an opinion on the nature of the importation and whether the trial judge should have excluded certain incriminating conduct from the jury's consideration.

The court examined whether the police officer's opinion on the nature of the importation was improperly allowed and if this opinion influenced the jury's decision. The court also considered whether the trial judge should have excluded evidence of the appellant's demeanour and consultation with a lawyer as incriminating conduct. The court analysed the application of the Evidence Act 2008, sections 76 and 79, and the Jury Directions Act 2015, section 18. The court found that the trial judge had erred in permitting the police officer to express an opinion on the nature of the importation, which was likely to have influenced the jury. Additionally, the court held that the demeanour and consulting a lawyer were admissible as incriminating conduct.

The court allowed the appeal and quashed the conviction. The reasoning was that the trial judge's error in allowing the police officer to express an opinion on the nature of the importation was significant enough to influence the jury's decision. The court also determined that the demeanour and consulting a lawyer were properly admitted as incriminating conduct. The appeal was allowed, and the conviction was quashed. The court did not order a retrial as it found that the errors were substantial and likely to have influenced the jury's decision.

Orders