R v Holden - [2001] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 14 of 1999

THE QUEEN

XAVIER DAVID HOLDEN

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JUDGES:	TADGELL, ORMISTON and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	21, 22 February 2001
DATE OF JUDGMENT:	16 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 63

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CRIMINAL LAW - Giretti count of drug trafficking – Validity of presentment – What constitutes “making” presentment under s.353(1) of Crimes Act 1958 – Constitutionality of Commonwealth law allowing Commonwealth prosecutor to prosecute for State offences – Application of Jones v. Dunkel principle to criminal trials – Trial judge not bound to give direction concerning failure by the Crown to call witnesses – Whether trial judge misdirected jury – Sentencing – Parity – Whether trial judge erred in failing to take into account delay between arrest and trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. N.T. Robinson and Ms L.A. Taylor	Solicitor for the Commonwealth Director of Public Prosecutions
For the Applicant	Mr. D.C. Dealehr	Issac Brott & Co.

TADGELL, J.A.:

I agree with Chernov, J.A., whose draft reasons I have had the advantage of reading, that for the reasons he has assigned each of the applications should be dismissed.

ORMISTON, J.A.:

These applications should each be dismissed for the reasons stated by Chernov, J.A. in his reasons for judgment which I have had the benefit of reading in draft form. I also agree with his reasons for rejecting the foreshadowed alternative ground for attacking the validity of the presentment.

I wish only to add the following. The presentment signed by Mr Pedley as a Crown Prosecutor for the State of Victoria contained the misleading endorsements set out in paragraph [25] and footnote 21 of his Honour’s judgment. They were misleading because they did not truly reflect the nature of the document or how it came to be filed. On the face of it those endorsements suggested that the “presentment” was being treated as an indictment and filed by the Commonwealth Director of Public Prosecutions on his own behalf. If in fact that was what had occurred, there may arguably have been some difficulty, given that both “filing”, as well as signing, the presentment had to be carried out by a Victorian Crown Prosecutor. (For the present I shall ignore the precise effect of s.17 of the Director of Public Prosecutions Act (C’th) and to what extent that section authorises the Commonwealth Director’s staff to act in aid of a state prosecution.) In my opinion the filing to which the authorities refer, especially R. v. Parker[1], is not a mere filing by depositing the piece of paper on the counter of a court registry. It is more than apparent, especially from the judgments of Young, C.J. and Murphy, J. in that case, that the filing of a presentment involves an element of publicity which is why the filing takes place in open court in the sense that, when presentment is made, the

signed presentment is handed up to judge or associate…

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 Holden

Details

AGLC: R v Holden [2001] VSCA 63
Case: [2001] VSCA 63
Decision Date: 16 May 2001

CaseChat Overview and Summary

In the case of R v Holden, the appellant, Holden, was convicted of various offences, including drug trafficking, and appealed against his conviction and sentence. The dispute centred around the validity of the presentment, the constitutionality of the Commonwealth law allowing a Commonwealth prosecutor to prosecute for State offences, the trial judge's direction to the jury concerning the Crown's failure to call witnesses, and the sentencing. The matter was heard in the High Court of Australia.

The primary legal issue was whether the presentment for drug trafficking was validly made under s.353(1) of the Crimes Act 1958, and if the Commonwealth law permitting a Commonwealth prosecutor to prosecute for State offences was constitutional. Additionally, the court examined whether the trial judge misdirected the jury by not giving a direction concerning the Crown's failure to call witnesses, and whether the trial judge erred in sentencing by not taking into account the delay between the appellant's arrest and trial.

The court held that the presentment was validly made as it complied with the requirements of s.353(1) of the Crimes Act 1958. Regarding the constitutionality of the Commonwealth law, the court found that it was constitutional, as it did not infringe upon the States' powers under the Australian Constitution. The court also held that the trial judge was not bound to give a direction to the jury concerning the Crown's failure to call witnesses, and therefore, there was no misdirection. Lastly, the court found that the trial judge did not err in sentencing by failing to take into account the delay between arrest and trial, as there was no basis for such a consideration in the sentencing principles.

Consequently, the appeal was dismissed, and the convictions and sentences imposed by the trial judge were upheld.

Orders