Mali v The King - [2025] VSCA 91

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0003

MARK MALI	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, McLEISH and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2025
DATE OF JUDGMENT:	1 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 91
JUDGMENT APPEALED FROM:	CDPP v Mali [2023] VCC 2256 (Judge Gaynor)

---

CRIMINAL LAW – Appeal – Conviction – Attempting to possess a border controlled drug – Prosecution did not rely on alternative bases for guilt – Direction to jury following jury question left alternative basis of guilt not initially relied on by prosecution – Whether direction resulted in impermissible enlargement of prosecution case – Appeal allowed.

King v The Queen (1986) 161 CLR 423; R v GAS [1998] 3 VR 862, applied.

---

Counsel
Applicant		Mr DA Dann KC with Mr S Andrianakis
Respondent		Mr M Stanton SC with Mr P Botros
Solicitors
Applicant	Stephen Andrianakis & Associates
Respondent	Mr M de Crespigny, Solicitor for Public Prosecutions (Cth)

PRIEST JA
McLEISH JA
ORR JA:

Introduction

After a five day trial, on 13 June 2023 a jury in the County Court found the applicant guilty of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, cocaine.[1]
[1]Criminal Code (Cth), ss 11.1(1), 307.5(1) and 311.1(1). The maximum penalty is life imprisonment.
Subsequently, on 30 November 2023, the trial judge sentenced the applicant to seven years’ imprisonment, with a non-parole period of five years.
The applicant seeks leave to appeal against his conviction on a single ground that contends that a substantial miscarriage of justice occurred as a result of the trial judge ‘allowing the prosecution to expand its case after final addresses’.
In our view, the ground must succeed. For the reasons that follow, leave to appeal should be granted; the appeal allowed; the conviction set aside; and a new trial ordered.

The evidence at trial

Evidence at the trial revealed that, on 19 January 2021, two postal consignments arrived in Australia. The first was addressed to ‘Angel Rogosic’ and the second to ‘Jessica Rogosic’, at 13 Elysium Crescent, Oakleigh East. Nobody of those names lived at that address. Both consignments listed a telephone number subscribed using false details.
Australian Border Force officers examined the consignments the following day, 20 January 2021. Each contained small duct-taped packages containing 2.9 kilograms of pure cocaine, concealed amongst a variety of personal items, including clothing, health grills, wallpaper and towels.
On 1 February 2021, an undercover police officer, ‘CO331’, sent two messages to the mobile number listed on the consignments stating that the packages — now containing a substituted substance in two blocks, coated with a ‘thief trap paste’ substance that police had applied — would be delivered between 10.00 am and 1.00 pm that day. The applicant was observed in the vicinity of 13 Elysium Crescent throughout the morning, between 9.15 am and 10.55 am, before returning home. When another undercover officer, ‘CO332’, went to the premises posing as 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 Mali v The King

Details

AGLC: Mali v The King [2025] VSCA 91
Case: [2025] VSCA 91
Decision Date: 1 May 2025

CaseChat Overview and Summary

The case of Mali v The King involved an appeal against a conviction for attempting to possess a border controlled drug. The appellant was convicted in the County Court of Victoria and brought the appeal to the Supreme Court of Victoria, Court of Appeal. The central issue in the appeal was whether the trial judge's direction to the jury following a question from the jury resulted in an impermissible enlargement of the prosecution case, which did not rely on an alternative basis for guilt.

The court was required to determine if the trial judge's direction to the jury, which included an alternative basis of guilt not initially relied on by the prosecution, constituted an enlargement of the prosecution case. The appellant argued that such a direction was prejudicial and led to a miscarriage of justice. The court examined the relevant authorities, including King v The Queen and R v GAS, to assess whether the direction amounted to an impermissible enlargement of the prosecution case. The court found that the direction did indeed result in such an enlargement and that this was prejudicial to the appellant's case.

In light of the court's findings, the appeal was allowed, and the conviction was quashed. The court determined that the error in the trial judge's direction was significant and could not be considered harmless. As a result, the appellant's conviction was set aside, and the case was remitted to the County Court for a new trial. This outcome underscores the importance of ensuring that jury directions do not inadvertently introduce alternative bases of guilt not initially relied upon by the prosecution.

Orders