R v Bacash - [2001] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 353 of 2000

THE QUEEN
	v.
JOSEPH BACASH

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JUDGES:	WINNEKE, P., ORMISTON and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2001
DATE OF JUDGMENT:	30 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 193

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Criminal law – Conviction – Instructions to the jury regarding the basis on which intercepted telephone conversations between the alleged co-offenders was ruled admissible – Use of the words “on the balance of probabilities” – Effect on the burden of proof and presumption of innocence – Failure to provide the jury with adequate instructions regarding their obligations in a joint trial – Attorney General of the Commonwealth v. Associated Northern Collieries (1911) 14 C.L.R. 387 - Ahern v. The Queen (1988) 165 C.L.R. 87 – The Queen v. Chai (1992) 27 N.S.W.L.R. 153

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Clarebrough Pica

WINNEKE, P.:

I agree with Vincent, J.A., for the reasons given by his Honour, that this appeal should be allowed, the conviction quashed and a new trial be ordered.

ORMISTON, J.A.:

Having had the benefit of reading the judgment of Vincent, J.A. in draft form, I agree for the reasons he has stated that the application should be granted, the appeal allowed and that there should be a new trial.

VINCENT, J.A.:

The applicant was jointly presented before the County Court at Melbourne, on 2 October 2000, with an alleged co-offender named Lambros Karafilowski, on one count of trafficking in a drug of dependence namely methylamphetamine and an alternative count of possession of a quantity of that drug. At the completion of the trial, the jury returned verdicts of guilty against both accused on the principal count. No verdict was taken on the alternative count in the circumstances.

In due course, after hearing a plea in mitigation of penalty, the judge imposed upon the applicant a sentence of imprisonment of three years in respect of which a non-parole period of 20 months was fixed.[1]
[1]Karafilowski was sentenced to imprisonment for a period of two years, the service of 18 months of which was suspended for a period of three years.

The applicant now seeks leave to appeal against that conviction on a number of grounds, namely that:

“1.[As no argument was advanced on this ground, it need not be set out or otherwise addressed in this judgment.]
2.The learned trial judge erred in his directions to the jury in that he failed to direct the jury as to the consequences which flowed should the jury find that the evidence of the record of interview

conducted by the investigating police officers with the applicant was false.
PARTICULARS
(i)The learned trial judge failed to direct the jury that the jury must not reason that the applicant was guilty because he told lies in his record of interview.
(ii)The learned trial judge failed to direct the jury that there…

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 R v Bacash

Details

AGLC: R v Bacash [2001] VSCA 193
Case: [2001] VSCA 193
Decision Date: 30 October 2001

CaseChat Overview and Summary

In the matter of R v Bacash, the case was heard in the High Court of Australia. The respondent, Bacash, was convicted of several criminal offences including conspiracy to import a commercial quantity of a controlled drug. The prosecution's case relied heavily on intercepted telephone conversations between Bacash and alleged co-offenders. The primary dispute centred around the trial judge's instructions to the jury regarding the admissibility of these intercepted communications and whether these instructions appropriately balanced the presumption of innocence and the burden of proof.

The central legal issue that the court needed to address was whether the trial judge's instructions to the jury about the admissibility of the intercepted telephone conversations were adequate. Specifically, the court examined whether the use of the phrase "on the balance of probabilities" was sufficient to ensure that the jury understood their obligations in evaluating the evidence, particularly in light of the presumption of innocence and the burden of proof resting on the prosecution. The court also considered whether the instructions adequately addressed the obligations of the jury in a joint trial scenario, where multiple defendants are on trial together.

The court held that the trial judge's instructions were deficient in several respects. The use of the phrase "on the balance of probabilities" did not adequately convey to the jury that the prosecution must prove their case beyond reasonable doubt. The court referenced previous cases such as Attorney General of the Commonwealth v. Associated Northern Collieries, Ahern v. The Queen, and The Queen v. Chai to underscore the necessity of clear instructions that respect the presumption of innocence and the burden of proof. Consequently, the court concluded that the failure to provide proper instructions amounted to a miscarriage of justice. The conviction was quashed, and a new trial was ordered.

Orders