R v Maksimovic - [2007] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 359 of 2006

THE QUEEN
	v
DEJAN MAKSIMOVIC

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JUDGES:	BUCHANAN and CHERNOV JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2007
DATE OF JUDGMENT:	30 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 248	1^st Revision - 7 December 2007

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CRIMINAL LAW – Directions to jury – Adequacy – Importation of prohibited import – Crown case based solely on applicant being sole importer – Judge directed jury in terms that involvement of another person would be no defence to the applicant – Whether judge impermissibly expanded Crown case – Burden of proof – Use of term ‘not innocent’ – Whether judge diluted standard of proof – Evidence – Whether admission of evidence of applicant’s financial circumstances relevant – Whether risk of propensity reasoning – Whether admission of evidence productive of miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G F Meredith	Director of Public Prosecutions (Cth)
For the Applicant	Mr T Kassimatis	Patrick W Dwyer

BUCHANAN JA:

I will ask Chernov JA to deliver the first judgment.

CHERNOV JA:

On 5 September 2006, the applicant, Dejan Maksimovic, who is now aged 33 years, was found guilty by a jury in the County Court of importing a prohibited import (cocaine) contrary to s 233B(1) of the Customs Act1901 (Cth) (‘the Act’). The applicant was also found guilty of attempting to possess a prohibited import, being cocaine. The applicant’s trial in relation to those offences commenced on 28 August 2006. The applicant had prior convictions for trafficking in cannabis and cultivating a narcotic plant and for theft. He also had prior convictions for road traffic offences. On 3 November 2006 the applicant was sentenced to a total effective sentence of seven years’ imprisonment with a non-parole period of four years. He now seeks leave to appeal on grounds which include grounds 1A and 3A, in respect of which an application was made for leave to add them to the existing grounds. The Court gave the applicant leave to argue the proposed grounds, deferring the resolution of the application for amendment until the determination of the application.

Before dealing with the grounds, it is necessary to set out briefly the background circumstances of the offending. The Crown case was that the applicant imported into Australia 794.4 grams of pure cocaine concealed in a parcel which arrived in Australia by post on 1 March 2005 from a person or person unknown from an address in Costa Rica, in Central America. The package was detected by customs officials at Melbourne Airport. It consisted of a brown cardboard box inside which were two boxes of commercially packaged chocolates. When opened by police, the boxes were found to contain white powder which, on later testing, was found to be cocaine. The authorities removed the white powder and replaced it with a substance that gave the appearance of cocaine. The powder taken from the ‘chocolate’ boxes weighed 1,002 grams and…

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 Maksimovic

Details

AGLC: R v Maksimovic [2007] VSCA 248
Case: [2007] VSCA 248
Decision Date: 30 October 2007

CaseChat Overview and Summary

In the case of R v Maksimovic, the appellant was convicted of importing a prohibited drug and faced trial in the Supreme Court of Victoria. The central dispute in this matter revolved around the adequacy of the judge's directions to the jury and the potential for the judge to have expanded the Crown's case, diluted the standard of proof, and improperly admitted evidence. The appellant challenged the conviction on these grounds, arguing that the judge's instructions may have misled the jury and that certain pieces of evidence were inadmissible and prejudicial.

The court was tasked with determining whether the trial judge's directions to the jury were adequate and whether they impermissibly expanded the Crown's case by suggesting that the involvement of another person would not be a defence to the appellant. Additionally, the court had to assess whether the judge diluted the standard of proof by using the term 'not innocent' and whether the admission of evidence regarding the appellant's financial circumstances was relevant or productive of a miscarriage of justice. Furthermore, the court needed to consider whether there was a risk of propensity reasoning and whether such evidence should have been excluded.

The Supreme Court held that the judge's directions to the jury did not impermissibly expand the Crown's case. The court found that the judge's use of the term 'not innocent' did not dilute the standard of proof, as it was clear from the context of the summing up that the appellant had to be proven guilty beyond reasonable doubt. Additionally, the court found that the evidence of the appellant's financial circumstances was relevant and not likely to result in a propensity argument or a miscarriage of justice. Consequently, the appeal was dismissed.

The court did not make any specific orders beyond dismissing the appeal.

Orders