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…
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- AGLC
- Higgs v The Queen [2015] VSCA 223
- Case
- [2015] VSCA 223
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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