Pope (a Pseudonym) v The Queen - [2017] VSCA 324

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0227

EMANUEL POPE (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 a pseudonym in place of the name of the applicant.

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 November 2017
DATE OF JUDGMENT:	2 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 324
JUDGMENT APPEALED FROM:	R v [Pope (a Pseudonym)] Ruling [No 2] (County Court of Victoria, 30 October 2017)

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CRIMINAL LAW – Interlocutory appeal – Application to review decision by County Court judge refusing certification under s 295(3) of the Criminal Procedure Act 2009 – Applicant charged with importation of a border controlled drug (methamphetamine) ‘by proxy’ – Coincidence evidence – Whether trial judge erred in finding that probative value of evidence substantially outweighs prejudicial effect – Reasonably open to find evidence admissible – Application for review dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B J Saunders	Valos Black & Associates
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WEINBERG JA
PRIEST JA
BEACH JA:

This is an application by Emanuel Pope (a pseudonym) for review of a decision by a judge of the County Court, who had refused certification under s 295(3) of the Criminal Procedure Act 2009 (‘the CPA’). The review of such a decision necessarily entails consideration of whether leave to appeal against an interlocutory decision in a criminal matter should be granted.

Background facts

The applicant is presently standing trial in the County Court, charged with having, on 24 and 25 December 2013, imported a commercial quantity of methamphetamine into this country from South Africa. Importation of a border controlled drug is an offence contrary to s 307.1(1) of the Criminal Code (Cth) (‘the Code’).

The Crown alleges that the importation in this case involved the use of a ruse by which three women, LR, DN and HM, were recruited in Australia to travel to South Africa, ostensibly to carry out event promotion work there. The Crown says that the applicant and a co-offender, HE, planned to conceal a substantial quantity of methamphetamine in the luggage that the women were to bring back to Australia on their return flight. As we understand the position, and it has been confirmed this morning, it is not suggested that any of the women had knowledge of this plan. They were simply being used as dupes.

In late November 2013, the women were flown to Johannesburg. There, the applicant and HE organised for them to distribute flyers for what the Crown alleges was an entirely fictitious promotional event.

On 12 December 2013, HE left South Africa and flew back to Australia. His departure was sudden and unanticipated and, according to the applicant, unwelcome.

Several days later on 18 December 2013, a critical event, so far as the coincidence ruling under challenge in this application was concerned,…

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 Pope (a Pseudonym) v The Queen

Details

AGLC: Pope (a Pseudonym) v The Queen [2017] VSCA 324
Case: [2017] VSCA 324
Decision Date: 2 November 2017

CaseChat Overview and Summary

The applicant, known pseudonymously as Pope, sought to appeal against a decision by the County Court judge who refused to certify the matter under section 295(3) of the Criminal Procedure Act 2009. The applicant was charged with the importation of a border controlled drug, specifically methamphetamine, through a 'by proxy' method. The crux of the dispute involved the admissibility of coincidence evidence presented during the trial, and whether the trial judge was correct in determining that the probative value of this evidence substantially outweighed its prejudicial effect.

The legal issues central to this case were whether the trial judge's decision to admit the coincidence evidence was reasonable and if it could be considered open to the trial judge to find that the probative value substantially outweighed any prejudicial effect. The focus was on whether the admission of the coincidence evidence was permissible under the relevant statutory provisions and whether there was an error in the trial judge's assessment.

The court examined the trial judge's reasoning and concluded that the judge's findings were well-founded and reasonable. The coincidence evidence, which included the timing and method of the importation, was deemed to have substantial probative value in establishing the applicant's guilt. The court held that it was open to the trial judge to determine that the probative value of the evidence substantially outweighed any prejudicial effect, and therefore, the trial judge's decision to admit the evidence was not erroneous. The application for review was dismissed as the findings of the trial judge were upheld.

Orders