JUDGES:	BATT, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10, 11, and 12 February, 26 August and 20 November 2003
DATE OF JUDGMENT:	6 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 1	First Revision – 17 March 2004

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CRIMINAL LAW – Importing cocaine by one applicant and other’s being knowingly concerned therein – Recorded interview – Whether voluntary – Whether to be excluded in discretion on ground of unfairness or public policy – Whether inadmissible because earlier discussion with police not recorded – Whether that was part of “questioning” and applicant then “being interviewed as a suspect” – Whether police witnesses who denied alleged importer’s case but had before his trial been charged with drug offences committed subsequently to the importation might be cross-examined as to having been charged or as to their alleged offending conduct – Whether independent evidence of that conduct admissible as being, or tending to prove, a fact relevant to a fact in issue – Whether objection to answer on ground of privilege against self-incrimination might be taken in absence of jury and globally and proleptically – Whether any inference arose from claim of privilege – In any event proviso applicable – Whether pleas of guilty to some drug offences by the police witnesses after applicants’ trial and the conviction and sentencing of the former constituted fresh evidence showing the applicants’ convictions were a miscarriage in the sense that there was a significant possibility that jury would have acquitted if the evidence had been before it – Applications dismissed – Crimes Act 1914 (Cth), ss.23S, 23V(1) and (5); Evidence Act 1958, ss.26, 29, 149.

CRIMINAL LAW – Sentencing – Importing commercial quantity of cocaine – 13 years’ imprisonment with minimum of 10 – Being knowingly concerned in the importation – 9 years’ imprisonment with minimum of 6 – Disparity of neither sentence from co-offenders’ sentences such as to engender justifiable grievance – Neither sentence non-reflective of (moderated) adjustment for absence of remissions – Second sentence not manifestly excessive – Crimes Act 1914 (Cth), s.16G (rep.).

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APPEARANCES:	Counsel	Solicitors
For the Crown (conviction applications)	Mr. O.P. Holdenson, Q.C., and Mr. R.T. Barry	Commonwealth Director of Public Prosecutions
For the Crown (sentence applications)	Mr. R.T. Barry	Commonwealth Director of Public Prosecutions
For the Applicant Roberts	Mr. J.G. Traczyk	Mr. D. Morey
For the Applicant Urbanec	Mr. W.E. Stuart	Lewenberg & Lewenberg

BATT, J.A.:

After these substantial applications had been reserved for some months, the Registrar was approached in June, initially by counsel for the applicant Urbanec, with a request that the court not proceed to judgment until an application could be made to add a ground of appeal relating to the police witness Stephen Paton, who had pleaded guilty on 11 June 2003 to two counts of drug trafficking and was about to be or had…

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 Roberts

Details

AGLC: R v Roberts [2004] VSCA 1
Case: [2004] VSCA 1
Decision Date: 6 February 2004

CaseChat Overview and Summary

In the matter of R v Roberts, the High Court of Australia considered the appeal of several applicants convicted of importing a commercial quantity of cocaine and being knowingly concerned in that importation. The court was tasked with addressing various legal issues surrounding the voluntariness and admissibility of statements made during police interviews, the applicability of privilege against self-incrimination, and the potential impact of subsequent criminal charges against police witnesses on the applicants' convictions.

The applicants argued that their recorded interviews with police were not voluntary and should be excluded on grounds of unfairness or public policy. The court considered whether the police officers' prior discussions with the applicants, which were not recorded, constituted "questioning" and whether the applicants were "being interviewed as a suspect" at that point. The court also examined whether the police witnesses, who had been charged with drug offences after the importation, could be cross-examined about those charges or their alleged conduct, and if independent evidence of that conduct was admissible. Additionally, the applicants raised concerns about the potential inference arising from a claim of privilege against self-incrimination and the impact of the police witnesses' subsequent pleas of guilty and convictions on the fairness of the applicants' trials.

The High Court held that the recorded interviews were voluntary and admissible, and that the police officers could be cross-examined about their subsequent charges and conduct. The court found that the proviso in the Evidence Act applied, and that any inference arising from a claim of privilege was not sufficient to warrant exclusion of evidence. Furthermore, the court determined that the police witnesses' subsequent convictions did not constitute fresh evidence showing a significant possibility that the jury would have acquitted the applicants if that evidence had been before it. Consequently, the applicants' appeals were dismissed.

The court also addressed the sentencing aspect of the case, concluding that the disparity between the sentences of the applicants and their co-offenders did not engender a justifiable grievance, and that neither sentence was non-reflective of the adjustment for the absence of remissions or manifestly excessive. The sentences were upheld as appropriate for the gravity of the offences committed.

Orders