JUDGES:	KYROU, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2022
DATE OF JUDGMENT:	9 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 271
JUDGMENT APPEALED FROM:	[2010] VSC 433 (Whelan J)

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CRIMINAL LAW – Appeal – Second appeal – Trafficking commercial quantity of methylamphetamine – Evidence flowing from discovery that former barrister acted as police informer in respect of clients – Whether evidence fresh and compelling – Evidence fresh but not compelling – Barrister retained to appear for applicant at filing hearing four years before trial – Barrister appeared contrary to police instructions – Barrister did not communicate with applicant immediately before or during hearing – No impropriety in barrister conveying to police evidence of criminal activity obtained outside retainer – Any duty of loyalty to applicant did not require keeping secret evidence obtained after retainer concluded – No impropriety in barrister encouraging witness to cooperate with police – Prosecution contravened duty of disclosure by failing to disclose evidence of payments to witness – Evidence of payments reliable and substantial – Evidence neither highly probative nor capable of substantially weakening prosecution case – Evidence of witness of limited relevance – Credibility and reliability of witness already comprehensively challenged – Abundant alternative evidence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Possession of substances and equipment with intention to use for purpose of trafficking methylamphetamine – Whether prosecution’s failure to disclose payments to witness caused substantial miscarriage of justice – Crown case overwhelming – Conviction inevitable – Appeal dismissed.

Criminal Procedure Act 2009, s 326A.

Baini v The Queen (2012) 246 CLR 469, Van Beelen v The Queen (2017) 262 CLR 565, Roberts v The Queen (2020) 60 VR 431, Roberts v The Queen [2020] VSCA 277, applied; Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, discussed; Cvetanovski v The Queen [2020] VSCA 272, Szabo v The Queen [2001] Qd R 214, distinguished.

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Counsel
Applicant:		Ms C Boston, with Mr J Murphy
Respondent:		Ms R Sharp SC, with Mr J McWilliams
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
MCLEISH JA
KENNEDY JA:

Introduction and summary

The applicant and Mohammed Khodr were jointly tried on three charges in the Supreme Court in 2010. Charge 1 alleged a conspiracy with Horty Mokbel between 1 May and 9 October 2006 to traffic a large commercial quantity of methylamphetamine. It was alleged that the three parties had entered into an agreement to traffic the drug, which was to be manufactured by a method referred to at trial as the ‘P2P method’, in a quantity not less than a large commercial quantity, namely 2.5 kilograms.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981, ss 70 (definition of ‘large commercial quantity’), 71, sch 11 pt 3. The relevant…

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 Gavanas v The King

Details

AGLC: Gavanas v The King [2022] VSCA 271
Case: [2022] VSCA 271
Decision Date: 9 December 2022

CaseChat Overview and Summary

The case of Gavanas v The King involved an appeal against the conviction and sentence of the appellant, who was found guilty of possessing substances and equipment with the intention to use them for trafficking methylamphetamine. The appeal raised issues concerning the failure of the prosecution to disclose evidence of payments made to a witness and the alleged misconduct of the appellant's former barrister, who had acted as a police informer. The court had to determine whether the prosecution's failure to disclose caused a substantial miscarriage of justice and whether the former barrister's conduct warranted any action.

The court considered whether the prosecution's failure to disclose payments to a witness constituted a breach of their duty of disclosure and whether this breach caused a substantial miscarriage of justice. The court found that while the prosecution had indeed failed to disclose the payments, this did not result in a substantial miscarriage of justice because the evidence was neither highly probative nor capable of substantially weakening the prosecution case. The reliability and credibility of the witness were already comprehensively challenged, and the evidence was of limited relevance compared to the abundant alternative evidence available. Additionally, the court examined the conduct of the former barrister and determined that there was no impropriety in their actions, as any duty of loyalty to the appellant did not require keeping secret evidence obtained after the retainer concluded.

The appeal was dismissed, and leave to appeal was refused. The court held that the Crown's case was overwhelming and that a conviction was inevitable, regardless of the undisclosed evidence. The misconduct of the former barrister did not affect the fairness of the trial or the appellant's conviction. The court relied on several precedents, including Baini v The Queen, Van Beelen v The Queen, Roberts v The Queen, and Spincode Pty Ltd v Look Software Pty Ltd, to support its findings.

Orders