Higgs v The Queen - [2015] VSCA 223

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0264

JOHN HIGGS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 August 2015
DATE OF JUDGMENT:	26 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 223
JUDGMENT APPEALED FROM:	The Queen v Higgs (Unreported, King J, 24 May 2012 (conviction); 30 April 2013 (sentence))

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CRIMINAL LAW — Appeal — Conviction — Conspiracy to possess a commercial quantity a border controlled drug (MDMA) — Knowledge that drug a border controlled drug — Whether the judge misdirected the jury as to knowledge — Circumstantial evidence — Whether the trial judge misdirected the jury on circumstantial evidence — Whether the verdict of the jury is unreasonable and cannot be supported having regard to the evidence — Application for leave to appeal against conviction refused.

CRIMINAL LAW — Appeal — Sentence — Conspiracy to possess a commercial quantity a border controlled drug (MDMA) — Whether the trial judge erred in assessing the extent of the applicant’s criminality — Whether the applicant sentenced on erroneous view as to nature of a prior conviction — Whether the trial judge erred in determining that the applicant’s co-operation with respect to the conduct of the trial was not a matter that could properly be taken into account in the determination of sentence — Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H Dhanji SC	Stephen Andrianakis & Associates
For the Crown	Mr D J Lane	Commonwealth Director of Public Prosecutions

COURT OF APPEAL

459 Lonsdale Street, Melbourne, VIC 3000

OSBORN JA
PRIEST JA
BEACH JA:

Conviction, sentence and grounds of appeal

Following a trial in the Supreme Court which occupied 54 days,[1] the applicant, who was tried together with Rob Karam (‘Karam’), Salvatore Agresta (‘Agresta’) and Pasquale Sergi (‘Sergi’), was convicted by a jury of conspiring with his co-accused, and with Pasquale Barbaro (‘Barbaro’), Saverio Zirilli (‘Zirilli’), Carmelo Falanga (‘Falanga’), Jan Visser (‘Visser’) and others, to possess a commercial quantity of an unlawfully imported border controlled drug, MDMA (also ‘3,4-Methylenedioxymethamphetamine’ or ‘ecstasy’).
[1]The jury were empanelled on 27 February 2012, retired on 4 May 2012 and returned verdicts on 24 May 2012.

On 30 April 2013, the applicant was sentenced to be imprisoned for 18 years, upon which the trial judge fixed a non-parole period of 14 years.

The applicant has sought leave to appeal against both his conviction and sentence.

With respect to conviction, ultimately the applicant relied on three grounds[2] as follows:

1. The learned trial judge erred in failing to properly direct the jury that the Crown had to prove that the applicant knew that the substance, the subject of the conspiracy, was a border controlled drug or border controlled plant within the meaning of s 300.2 of the Criminal Code, resulting in a substantial miscarriage of justice.
2. The learned trial judge erred in her directions on circumstantial evidence resulting in a substantial…

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 Higgs v The Queen

Details

AGLC: Higgs v The Queen [2015] VSCA 223
Case: [2015] VSCA 223
Decision Date: 26 August 2015

CaseChat Overview and Summary

The appellant, Higgs, appealed against both his conviction and sentence following his involvement in a conspiracy to possess a commercial quantity of the border controlled drug, MDMA. Higgs was convicted and sentenced in the Supreme Court of Victoria, and the matter was heard by the Court of Appeal in Victoria.

The court considered several legal issues in relation to the conviction. The first was whether the trial judge misdirected the jury regarding the knowledge required for the offence. The second issue was whether the trial judge misdirected the jury on the use of circumstantial evidence. Finally, the court assessed whether the verdict was unreasonable and could not be supported by the evidence. The court found that the trial judge did not misdirect the jury, that the jury was properly instructed on the use of circumstantial evidence, and that the verdict was supported by the evidence.

The court also considered the issues raised in relation to the sentence. The first was whether the trial judge erred in assessing the extent of the appellant’s criminality. The second was whether the appellant was sentenced on the erroneous view as to the nature of a prior conviction. The third was whether the trial judge erred in determining that the appellant’s cooperation in respect of the conduct of the trial was not a matter that could properly be taken into account in the determination of sentence. The court found that the trial judge did not err in any of these respects.

The court ultimately refused the appellant leave to appeal against both his conviction and sentence. The appeal was dismissed.

Orders