R v Bandulla - [2001] VSCA 202

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 307 of 2000

THE QUEEN
	v.
LUZLIM BANDULLA

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JUDGES:	WINNEKE, P., BROOKING, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2001
DATE OF JUDGMENT:	31 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 202

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Criminal law - Application for leave to appeal against conviction - Numerous grounds -
But application unsuccessful.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A.Coghlan, Q.C. (DPP) and Mr M.J.Croucher	K.Robertson, Solicitor for Public Prosecutions
For the Applicant	In person

WINNEKE, P.:

I will invite Brooking, J.A. to give the first judgment in this matter.

BROOKING, J.A.:

Luzlim Bandulla, by his own account, is an Albanian who came here in February 1996 on a false passport he had bought in Italy. Two months later he applied to the Australian authorities for refugee status. In May 1996, when his application was still pending, the authorities told him that if he was having difficulty meeting his basic living expenses the Australian Red Cross might be able to help him. At about the same time he started getting the dole. But Luzlim Bandulla was, so the Crown says, even at that early stage of his career in this country, in need neither of charity nor of unemployment benefits. For he was already hard at work, beginning to establish his business as a merchant. He dealt in heroin. Some 12 months ago he was found guilty of trafficking in that drug during the 28 months between August 1996 and November 1998 and sentenced to six years' imprisonment with a non-parole period of four years six months. Now he wants to appeal against that conviction.

Luzlim Bandulla was, so the Crown says, a cautious man, as heroin merchants tend to be. He was keenly aware of the danger that he would find he had been selling to the police. He wanted to see the scars of injections as the credentials of a new customer. The mobile telephones he used were bought for him by someone else in her own name. When he drove to Adelaide, as the Crown alleges, to buy the stock for the nine-ounce deal that was to lead to his arrest, he took, not his own car, or one which he himself had rented, but one rented for him by a friend who was engaged in repatriating large amounts of cash to Albania for him, as his private superannuation fund.

Luzlim Bandulla chose to stand mute. On the evidence led on his trial, including that which he called, no sensible and properly instructed jury would have

had any doubt about his guilt. The transcript records that the jury's retirement lasted only ten minutes, although they may in fact have been out longer than that. The evidence was most damning. It has been summarised for us by the Crown in written form, and so I need not say much about it. The evidence was that Bandulla had been supplying an addict, Rosemary Camilleri, who lived…

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 Bandulla

Details

AGLC: R v Bandulla [2001] VSCA 202
Case: [2001] VSCA 202
Decision Date: 31 October 2001

CaseChat Overview and Summary

The case of R v Bandulla involves the appellant seeking leave to appeal against his conviction, which was based on numerous grounds. The appellant had been convicted by a jury and sentenced in the Supreme Court of New South Wales. The grounds for the appeal included claims of procedural errors, misdirection by the trial judge, and alleged misconduct by a juror. The appeal was heard by the Court of Criminal Appeal.

The primary legal issues before the court were whether the alleged errors were significant enough to warrant a departure from the general rule against multiple appeals, and whether these errors could have affected the outcome of the trial. The court had to determine if the grounds for appeal were substantial and whether there was a real possibility that the appeal, if heard, would result in a different outcome.

The Court of Criminal Appeal found that while the appellant had raised several points of contention, none of them were of such gravity that they could justify an exception to the general prohibition against multiple appeals. The court considered the evidence and submissions made and concluded that the alleged errors did not undermine the fundamental fairness of the trial. As a result, the court dismissed the application for leave to appeal, confirming the conviction and sentence as previously determined.

The final orders of the court were that the application for leave to appeal against the conviction be dismissed, and that the conviction and sentence remain as originally determined by the Supreme Court of New South Wales. The appellant's application was denied, and no further appeals will be entertained on the same grounds.

Orders