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Harris v The Queen

Harris v The Queen

Case [2017] VSCA 316 31 October 2017

Appeal

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0217

SHAUN HARRIS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and certain other people.

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JUDGES:	MAXWELL P, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2017
DATE OF ORDERS:	16 October 2017
DATE OF REASONS:	31 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 316
JUDGMENT APPEALED FROM:	R v [Harris] (Unreported, County Court of Victoria, Judge Chettle, 11 October 2017)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Admissibility – Circumstantial case – Relevance – Probative value – Whether danger of unfair prejudice outweighed probative value – Judge refused to exclude evidence – No error – Routine evidentiary ruling – Matter not appropriate for interlocutory appeal – Leave to appeal refused – Paulino v The Queen [2010] VSCA 294 referred to – Evidence Act 2008 s 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Morrissey SC	Grigor Lawyers
For the Respondent	Mr B M Young QC	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
PRIEST JA
KYROU JA:

Introduction

An indictment filed in the County Court charges that, contrary to s 307.1(1) of the Criminal Code (Cth), the applicant ‘at Melbourne in Victoria on the 18^th day of October 2015 did import a substance, the substance being a border controlled drug, namely heroin and methamphetamine contained within three suitcases, and the quantity imported being a commercial quantity’.

Prior to empanelment of a jury, counsel for the applicant sought the exclusion of prosecution evidence concerning, first, evidence relating to Australian visa applications — linked to a Malaysian travel agent — tending to show a connection between the applicant’s co-offenders and an individual, ‘Karthigesan Kuppan’ (‘Kuppan’); secondly, evidence of a ‘pattern of phone calls’ involving the applicant, Kuppan and an unknown user of an Indian telephone number; and, thirdly, evidence of intercepted telephone calls on 19, 21 and 23 November 2015, evidencing conversations between the applicant and another or others, relating (amongst other things) to ‘stock’ and ‘mistakes’ that have been made.

On 11 October 2017, the trial judge ruled the impugned evidence to be admissible, and refused to exclude it (‘the ruling’ or ‘the interlocutory decision’).

Pursuant to s 295 of the Criminal Procedure Act 2009 — the trial judge having certified under s 295(3)(a) that ‘the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’ — the applicant sought leave to appeal against the interlocutory decision

to admit into evidence the following three sets of evidentiary material chiefly relating to a certain [Karthigesan] Kuppan, namely:
— evidence of an alleged ‘connection/link between the Accused’ (SPO^[[2]] 51-54) that the visa applications dated of the three co-accused [‘JS’, ‘SS’ and ‘KR’] provided contact details (2 phone numbers apparently…

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 Harris v The Queen

Details

AGLC: Shaun Harris (a pseudonym)[1] v The Queen [2017] VSCA 316
Case: [2017] VSCA 316
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the matter of Harris v The Queen, the appellant, Harris, sought an interlocutory appeal against the trial judge's decision to admit certain evidence in the case against him. The nature of the dispute was whether the evidence, which was highly prejudicial but also had some probative value, should have been excluded under section 137 of the Evidence Act 2008 due to the danger of unfair prejudice outweighing its probative value. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court had to address was whether the trial judge erred in admitting the evidence in question. Specifically, the court had to consider if the judge should have excluded the evidence under section 137 of the Evidence Act 2008, which allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice to a party. The appellant argued that the evidence was too prejudicial and should not have been admitted. The Crown contended that the evidence was relevant and its probative value outweighed any prejudicial effect.

The court found that the trial judge did not err in admitting the evidence. It was held that the judge's decision was a routine evidentiary ruling, and such decisions are generally not subject to interlocutory appeal unless there is a clear error of law. The court further held that the matter was not appropriate for an interlocutory appeal, as the appellant had not demonstrated that the trial judge made an error of law in admitting the evidence. The decision in Paulino v The Queen [2010] VSCA 294 was referred to in support of this conclusion. Consequently, the leave to appeal was refused.

The court did not make any further orders, as the primary focus of the appeal was on the admissibility of the evidence, and the court found no error in the judge's decision.

Orders