R v Nicholas - [2000] VSCA 49

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 17 of 1999

THE QUEEN

DAVID MICHAEL NICHOLAS

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JUDGES:	PHILLIPS, C.J., ORMISTON and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25-28 October 1999; 4 November 1999
DATE OF JUDGMENT:	7 April 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 49

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CRIMINAL LAW – Drug offences – Appeal against conviction – Possession of trafficable quantity of heroin – Attempt to obtain possession of commercial quantity of heroin.

COURTS and JUDGES – Judges – Disqualification for bias – Reasonable apprehension of bias – Where judge previously advised applicant in unrelated matter – Application refused.

EVIDENCE – Importation of heroin – Controlled operation – Admissibility – Whether preconditions in s.15X Crimes Act 1914 satisfied – Ministerial agreement – Request for exemption from detailed Customs scrutiny – Meaning of “the control of the Customs” in Customs Act 1901 – Goben Pty.Ltd, v. The Chief Executive Officer of Customs (No.2) (1996) 68 F.C.R. 301

EVIDENCE – Warrant – Use of a listening device - Validity – Whether warrant complied with requirements of s.219B Customs Act 1901 – Meaning of “a particular person” in s.219B(5) Customs Act 1901 - Whether want of compliance or illegality required exclusion of evidence for reasons of public policy or unfairness.

EVIDENCE – Admissibility of out of court conversation – Whether reasonable evidence of preconcert.

EVIDENCE – Admissibility of police interview of third party.

EVIDENCE – Application of rule in Browne v. Dunn [1893] 6 R. 67

CRIMINAL LAW – Sentencing - Whether too much weight attached by trial judge to prior convictions – Role of the applicant – R. v. Olbrich (1999) 73 A.L.J.R. 1550

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. J.G. Morrish And Ms. L.A. Taylor	Commonwealth Director of Public Prosecutions
For the Applicant	Mr. R. Richter QC Mr. O.P. Holdenson QC And Mr. S.A. Shirrefs	Galbally & O’Bryan

PHILLIPS, C.J.:

ORMISTON, J.A.:
CHERNOV, J.A.:

The applicant, who is aged 59, was convicted in the County Court at Melbourne in November, 1998, of one count of possession of a trafficable quantity of heroin (count 1 on the indictment) and one count of attempting to obtain possession of a commercial quantity of heroin (count 2). These offences, which carried maximum penalties of 25 years’ imprisonment and or a fine of $100,000 (subject to s.235(3) of the Customs Act 1901) and life imprisonment respectively, were alleged to have been committed at Melbourne on 24 September, 1994. The reason why the counts were pleaded as they were was that they related to a “controlled delivery” of heroin imported from Thailand. Upon its arrival in Melbourne the Australian Federal Police (“the AFP”) removed from 24 compressed blocks of powder containing heroin and with a nett weight of 8,389.6 grams, 51.6 grams as a sample. 490.2 grams was repacked for the purpose of the controlled delivery and the balance, 7,847.8 grams was retained by the police. Count 2 related to the entire amount of powder which was found to be…

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 Nicholas

Details

AGLC: R v Nicholas [2000] VSCA 49
Case: [2000] VSCA 49
Decision Date: 7 April 2000

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Nicholas, the appellant brought forward an appeal against his conviction and sentence for drug offences. The appellant was convicted of possession of a trafficable quantity of heroin and the attempt to obtain possession of a commercial quantity of heroin. The appeal was heard in the High Court of Australia. The legal issues central to this case revolved around the admissibility of certain pieces of evidence obtained through a controlled operation, the validity of a warrant issued for the use of a listening device, and the role of prior convictions in sentencing.

The court had to determine whether the preconditions under s.15X of the Crimes Act 1914 were satisfied for the importation of heroin, considering the ministerial agreement and the meaning of "the control of the Customs" as discussed in Goben Pty. Ltd v. The Chief Executive Officer of Customs (No.2). Additionally, the court assessed whether the warrant for the listening device complied with s.219B of the Customs Act 1901 and the implications of non-compliance on the admissibility of evidence. The court also evaluated the admissibility of out-of-court conversations and police interviews of third parties, including the application of the rule in Browne v. Dunn.

The court ruled that the evidence obtained from the controlled operation was admissible as the necessary preconditions were met, and the warrant for the listening device was valid. The court found no reasonable apprehension of bias despite the judge's previous advisory role in an unrelated matter. Regarding the sentencing, the court concluded that the trial judge did not place excessive weight on the appellant's prior convictions. The appeal was ultimately dismissed.

Orders