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R v Perrier

R v Perrier

Case [2008] VSCA 97 6 June 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

Nos 160 of 2005
158 of 2005
259 of 2005

THE QUEEN
	v
MURRAY JAMES PERRIER (DECEASED), VOICU POP AND PETER ALAN TILLEY

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JUDGES:	MAXWELL P, VINCENT and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 June 2007
DATE OF JUDGMENT:	6 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 97

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CRIMINAL LAW – Sentencing – Drugs – Conspiracy to import trafficable quantity of heroin – Whether sentencing judge took into account relative harmfulness of heroin – R v Pidoto & O’Dea (2006) 14 VR 169, Adams v The Queen (2008) 244 ALR 270 considered – Error immaterial to sentence.

CRIMINAL LAW – Conviction – Appeal – Separate trials – No application for separate trial made to trial judge – Whether substantial miscarriage of justice arose by reason of joint trial – R v Alexander and McKenzie (2002) 6 VR 53 applied.

CRIMINAL LAW – Conviction – Co-conspirator evidence – Whether trial judge failed to confine rule in Ahern’s case to evidence of acts and declarations after accused allegedly joined conspiracy - Ahern v R (1988) 165 CLR 87.

CRIMINAL LAW – Conviction – Allegation conduct of defence counsel caused trial to miscarry – No miscarriage of justice – TKWJ v The Queen (2002) 212 CLR 124, R v Miletic [1997] 1 VR 593 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown For the Applicant (Perrier)	Ms W Abraham QC Mr M J Croucher	Ms A Cannon, Solicitor for Public Prosecutions Victorian Legal Aid
For the Applicant (Pop)	Mr C B Boyce	Theo Magazis & Associates
For the Applicant (Tilley)	Mr D Grace QC	Office of David Grace QC

MAXWELL P,
VINCENT JA
ASHLEY JA:

On 12 March 2003, Andrew Caddaye arrived at Melbourne Airport from Nepal. He was carrying 340 grams of heroin. Its purity ranged from 60.5 per cent to 64.2 per cent, yielding a total net weight of 208.4 grams. The wholesale value of the heroin was approximately $70 000, its street value approximately $500 000.

On 24 March 2005, after a trial before a County Court jury at which Caddaye gave evidence for the Crown, each of the applicants (Murray Perrier, Voicu Pop and Peter Tilley) was found guilty – together with Peter Malman – of one count of conspiracy to import not less than the trafficable quantity of heroin.[1] On 31 March 2005, Perrier was sentenced to life imprisonment; Pop to seven years and six months’ imprisonment, with a non-parole period of five years and six months; and Malman to six years and six months’ imprisonment, with a non-parole period of four years and four months. On 23 August 2005, Tilley was sentenced to seven years’ imprisonment, with a non-parole period of five years.
[1]Criminal CodeAct 1995 (Cth), s 11.5; Customs Act 1901 (Cth), s 233B(1)(b).

Perrier, Pop and Tilley subsequently filed applications for leave to appeal against conviction. In the event, Tilley alone pursued a conviction appeal, Perrier and Pop…

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 Perrier

Details

AGLC: R v Perrier [2008] VSCA 97
Case: [2008] VSCA 97
Decision Date: 6 June 2008

CaseChat Overview and Summary

The appeal in R v Perrier involved the respondent, who was convicted and sentenced for conspiracy to import a trafficable quantity of heroin. The appeal raised multiple issues concerning the sentencing process and the conduct of the trial. The primary concern was whether the sentencing judge had adequately considered the relative harmfulness of heroin in determining the sentence. This issue was considered in light of the cases R v Pidoto & O’Dea and Adams v The Queen, which highlight the importance of considering drug harmfulness in sentencing.

Additionally, the appeal addressed whether the trial judge's decision to conduct a joint trial without a request for a separate trial constituted a substantial miscarriage of justice. This was evaluated using the principles established in R v Alexander and McKenzie. Furthermore, the appeal questioned whether the trial judge correctly applied the rule from Ahern v R regarding evidence from co-conspirators, specifically whether the judge properly limited this evidence to acts and declarations occurring after the respondent allegedly joined the conspiracy.

The court also assessed whether the conduct of the respondent’s defence counsel was so improper that it led to a miscarriage of justice. This consideration was guided by the precedents set in TKWJ v The Queen and R v Miletic. The court found that despite some procedural issues, these did not result in a miscarriage of justice. The appeal was ultimately dismissed, with the court concluding that any errors in the sentencing process and trial conduct did not materially affect the outcome.

Orders