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R v Luhan

R v Luhan

Case [2009] VSCA 30 5 March 2009

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SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 573 of 2008

THE QUEEN

v

GEORGE LUHAN

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JUDGES:

MAXWELL P, VINCENT and NEAVE JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

23 January 2009

DATE OF JUDGMENT:

5 March 2009

MEDIUM NEUTRAL CITATION:

[2009] VSCA 30

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one count of trafficking in not less than a commercial quantity of a drug of dependence (methylamphetamine) – Whether trial judge gave adequate jury direction regarding mental element of offence charged – Whether open to jury to find beyond reasonable doubt that quantity of drug was at least a commercial quantity – Application refused.
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APPEARANCES: Counsel Solicitors

For the Crown Mr G J C Silbert SC with
Mr B L Sonnet Mr S Ward, Acting Solicitor for Public Prosecutions

For the Applicant Mr O P Holdenson QC Stephen Andrianakis & Associates
MAXWELL P
VINCENT JA
NEAVE JA:
1 The applicant, George Luhan, was convicted by a County Court jury of one count of trafficking in not less than a commercial quantity of a drug of dependence (methylamphetamine), contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981. At the time the alleged offence was committed, the applicable commercial quantity of methylamphetamine was 1.25 kilograms.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981, s 70(1)(c), Schedule 11, Part 3, Column 2A.

2 Luhan was sentenced to seven years’ imprisonment, and required to serve a minimum of five years. He filed an application for leave to appeal against conviction and sentence, but has since elected to pursue his appeal against conviction only.

The circumstances of the alleged offending

3 The offence occurred in the course of an undercover operation primarily directed at the alleged illegal drug dealings of a co-offender, Milorad Keca. The Crown case was that Luhan had agreed to supply three pounds of methylamphetamine to Keca and his co-offender, Kasim Rexhepi, which were then to be sold to ‘Lou Smith’ (an Australian Crime Commission undercover operative). The Crown argued that Luhan’s involvement in this arrangement could be inferred from circumstantial evidence which comprised: recorded phone calls between the co-offenders; conversations recorded by Smith; police observations of the three men’s movements; and Smith’s evidence at the trial about Luhan’s presence and behaviour when Rexhepi handed over the drug to Smith.

4 Shortly before the alleged offence, which occurred on 11 March 2004, Smith agreed to purchase three pounds of methylamphetamine from Keca and Rexhepi. On 10 March 2004, Smith met with Keca at a café in Lygon Street, Brunswick, to discuss the transaction, which it was agreed would take place the following day. Later on 10 March, Keca gave Smith a three ounce sample of methylamphetamine powder.

5 On 10 and 11 March 2004, there were several taped phone conversations in which Luhan, Keca, and Rexhepi arranged to meet. The following telephone conversation between Keca and Luhan was recorded at 7.02 pm on 10 March…

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 Luhan

Details

AGLC: R v Luhan [2009] VSCA 30
Case: [2009] VSCA 30
Decision Date: 5 March 2009

CaseChat Overview and Summary

The case of R v Luhan involved an application for leave to appeal against the conviction of the applicant, who was found guilty of trafficking in a commercial quantity of a drug of dependence, specifically methylamphetamine. The matter was heard in the relevant appellate court, where the applicant sought to challenge the adequacy of the trial judge's jury direction concerning the mental element required for the offence and the sufficiency of the evidence to prove the quantity of the drug was at least a commercial quantity. The applicant's primary contention was that the trial judge did not properly instruct the jury on the requisite mental state for the offence, and that the evidence did not sufficiently establish the quantity of the drug as being a commercial quantity.

The legal issues that the court needed to address included whether the trial judge had adequately directed the jury regarding the mental element of the offence, specifically whether the jury was properly informed of the necessity to prove the applicant's knowledge of the trafficking. Additionally, the court had to determine whether it was open to the jury to find beyond reasonable doubt that the quantity of the drug was at least a commercial quantity, based on the evidence presented. These issues were pivotal in assessing the validity of the conviction and the sufficiency of the jury's verdict.

The court examined the trial judge's instructions to the jury and concluded that the directions were adequate in informing the jury of the elements they needed to consider. The court found that the jury was properly guided on the mental state required for the offence of trafficking in a commercial quantity of a drug. Furthermore, the court held that there was sufficient evidence for the jury to conclude that the quantity of the drug involved was at least a commercial quantity. The evidence, which included the amount of methylamphetamine seized and the circumstances of its discovery, was deemed adequate to support the jury's finding. Consequently, the court dismissed the application for leave to appeal, affirming the conviction.

No further orders were made by the court beyond the refusal of the application for leave to appeal. The conviction and sentence imposed by the trial court remained in place, as the applicant's grounds for appeal were not substantiated.

Orders