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Falzon v The Queen

Falzon v The Queen

Case [2017] VSCA 74 5 April 2017

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0166

ROMANO FALZON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2017
DATE OF JUDGMENT:	5 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 74
JUDGMENT APPEALED FROM:	DPP v Falzon (Unreported, County Court of Victoria, Judge Smith, 27 May 2016 (Conviction); [2016] VCC 1039 (21 July 2016) (Sentence))

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CRIMINAL LAW – Application for leave to appeal – Conviction – Cultivation of commercial quantity of cannabis – Trafficking in drug of dependence – Filing over new indictment during trial – Whether fundamental irregularity – Leave to appeal refused – Criminal Procedure Act 2009 ss 159(2), 164 – Juries Act 2000 s 36.

CRIMINAL LAW – Appeal – Conviction – Cultivation of commercial quantity of cannabis and trafficking cannabis by way of possession for sale – Large sum of cash located at appellant’s residence – Whether evidence of finding of cash relevant to trafficking by possession for sale – Whether probative value of evidence outweighed by risk of unfair prejudice – Appeal allowed – Evidence Act 2008 ss 55(1), 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with Mr C Carr	James Dowsley & Associates
For the Crown	Mr D Trapnell QC with Mr J Lewis	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

I have read in draft the judgment of Priest and Beach JJA in this matter. In relation to proposed ground 1, I agree with them that leave to appeal should be refused for the reasons which they give.

I am unable to agree with Priest and Beach JJA in relation to proposed ground 2. In my view leave to appeal should be granted on that proposed ground but the appeal should be dismissed. I set out my reasons below.

In the course of argument, application was made for leave to add a further proposed ground. I would dismiss that application.

The applicant also seeks leave to appeal his sentence. I would also dismiss that application.

Proposed ground 2 — admission of evidence concerning secreted cash

The charges

There were four indictments filed containing charges against the applicant in relation to sophisticated hydroponic facilities for the growing of cannabis in two houses on one property in Mansfield Avenue, Sunshine North and in a house in Sydenham. The houses were raided by police on 17 December 2013 after a period of surveillance. The facilities in the two houses at Sunshine North were more extensive than those at Sydenham. For the purposes of the consideration of this proposed ground the only relevant matter to be noted in relation to the charges made by the repeated filing over of fresh indictments is that charges originally expressed to be offences committed over a period were replaced by charges alleging offending on a single day.

The charges which went to the jury were:

·Charge 1 — trafficking in cannabis in a quantity not less than 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 Falzon v The Queen

Details

AGLC: Falzon v The Queen [2017] VSCA 74
Case: [2017] VSCA 74
Decision Date: 5 April 2017

CaseChat Overview and Summary

Falzon was convicted of cultivating a commercial quantity of cannabis and trafficking in the drug by possession for sale. The respondent, The Queen, appealed the decision to the High Court of Australia. The respondent sought leave to appeal against the conviction on the basis that the trial court had allowed a new indictment to be filed during the trial, which constituted a fundamental irregularity. The High Court refused the application for leave to appeal, finding that the irregularities did not affect the fairness of the trial or the conviction. The Court further found that the trial judge had properly exercised his discretion in admitting evidence of the large sum of cash found at the appellant's residence, as it was relevant to the charge of trafficking by possession for sale and its probative value was not outweighed by the risk of unfair prejudice.

The legal issues before the Court were whether the trial court's allowance of a new indictment during the trial constituted a fundamental irregularity, and whether the evidence of the large sum of cash found at the appellant's residence was properly admitted. The Court found that the trial judge had not erred in admitting the evidence of the cash, as it was relevant to the charge of trafficking by possession for sale and its probative value was not outweighed by the risk of unfair prejudice. The Court also found that the trial court's allowance of a new indictment during the trial did not constitute a fundamental irregularity, as the appellant was not misled or prejudiced by the change in the indictment. The Court held that the trial judge had properly exercised his discretion in admitting the evidence of the cash, and that the trial court's allowance of a new indictment did not affect the fairness of the trial or the conviction. The Court accordingly dismissed the appeal.

Orders