R v Harman - [2009] VSCA 78

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 784 of 2008

THE QUEEN
	v
ANTHONY HARMAN

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JUDGES:	KELLAM and DODDS-STREETON JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2009
DATE OF JUDGMENT:	28 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 78

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CRIMINAL LAW – Application for leave to appeal against conviction – Trafficking and possession of drugs of dependence – Adequacy of charge – Whether ‘nutshell’ summary of defence evidence omitted material matters – Whether miscarriage of justice – R v Thompson [2008] VSCA 144 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Rainer Martini & Associates

KELLAM JA:

This application for leave to appeal came on for hearing before us on 17 March 2009. At the commencement of the hearing, Mr Trapnell of Senior Counsel who appeared for the respondent, conceded that the Court could not be satisfied upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the Giretti trafficking count charge in count 1. This concession was made properly.

Accordingly and upon the date of the hearing of the application, the following orders were made:

(a) Application for leave to appeal against conviction on count 1 granted;
(b)Appeal against conviction on count 1 is treated as instituted and heard instanter and is allowed;
(c)The conviction sustained on count 1 below is quashed and the sentence passed thereon is set aside;
(d)The Court directs a judgment and verdict of acquittal to be entered on count 1.

Aside from the above orders the matter of the application for leave to appeal, the conviction and sentence upon count 4 was reserved for judgment.

For the reasons expressed by Dodds-Streeton JA in her judgment, I agree that the application for leave to appeal conviction on count 4 should be allowed.

That raises the question of whether any order should be made for the retrial of the appellant upon counts 2, 3 and 5 which were alternatives to count 1 and upon count 4.

Counsel for the respondent conceded before us that it was open to the Court in the proper exercise of its discretion not to order a retrial of counts 2, 3 and 5. That concession was likewise properly made. He made no such concession in relation to count 4, his contention being that the application for leave to appeal conviction should be refused.

The appellant has served all of the nine months’ imprisonment imposed by the sentencing judge on count 1. Indeed the pre-sentence detention of 322 days which the sentencing judge took into account under s 18 of the Sentencing Act 1993 exceeded the sentence imposed. The sentence imposed on count 4 was that the appellant was convicted and discharged. In the circumstances, the interests of justice are not served by an order for retrial on any alternative…

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 Harman

Details

AGLC: R v Harman [2009] VSCA 78
Case: [2009] VSCA 78
Decision Date: 28 April 2009

CaseChat Overview and Summary

In the matter of R v Harman, the respondent sought leave to appeal against his conviction for drug trafficking and possession. The Court of Appeal was tasked with considering the adequacy of the charge, specifically whether the summary provided to the jury omitted material matters. The defence argued that the summary of their evidence did not accurately reflect the critical aspects of their case, potentially leading to a miscarriage of justice. The court was required to determine whether the charge was sufficiently detailed to allow the jury to properly consider the defence's arguments.

The primary legal issue before the court was whether the charge provided to the jury accurately reflected the defence's evidence, and if the omission of certain details constituted a miscarriage of justice. The court considered whether the summary was so deficient that it prevented the jury from making a fair assessment of the evidence, as established in R v Thompson [2008] VSCA 144. The respondent contended that the omission of specific details from the defence evidence was material and could have led to an unjust outcome. The court had to weigh the importance of the omitted details against the overall fairness of the trial process.

After careful consideration of the arguments and the principles established in R v Thompson, the court found that the charge was adequate and did not omit any material matters. The court determined that the jury was provided with sufficient information to properly assess the evidence and reach a fair verdict. The court concluded that there was no miscarriage of justice and dismissed the application for leave to appeal. The respondent's conviction and sentence were upheld, and the appeal was not granted.

Orders