R v Sloan

[2001] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 133 of 2001

THE QUEEN

v.

ROBERT KIM SLOAN

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JUDGES:	PHILLIPS, CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2001
DATE OF JUDGMENT:	22 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 185

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Criminal law – Application for leave to appeal against conviction by reference to fresh evidence – Application granted and appeal allowed – New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D. Grace, Q.C. and Mr L.W.G. Hartnett	Michael Coghlan Pty Ltd

PHILLIPS, J.A.(delivering the judgment of the Court):

1. This is an application by Robert Kim Sloan for leave to appeal against conviction and sentence.  Mr Sloan was presented in the County Court on a presentment containing five counts.  Count 1 was trafficking in pseudoephedrine on 22 March 2000; count 2, trafficking in methylamphetamine on 22 March 2000; count 3, possession of a drug of dependence, namely methylamphetamine, on 22 March 2000.  Counts 4 and 5 involved quite different drugs.  Count 4 was possession on 22 March 2000 of a drug of dependence, namely tetrahydrocannabinol, and count 5, possession on the same day of a drug of dependence, namely cannabis L.  The applicant pleaded guilty to counts 4 and 5.  On those counts he was convicted and fined.  He pleaded not guilty to counts 1 and 2 and the alternative count 3.  After trial he was found guilty by majority on counts 1 and 2 and on those he was convicted and sentenced to terms of imprisonment.

1. In the circumstances I need mention only the application for leave to appeal against conviction, and then only grounds 1 and 3 of that application.  Those grounds are supported by the affidavit of Mr Michael Patrick Coghlan sworn on 15 October 2001, in which reference is made to earlier affidavits of 18 June and 28 August.  In brief, the applicant relies upon fresh evidence - evidence which, we should say in view of the submission to the contrary, does not go only to credit.

1. In our opinion, given the course of the trial and the nature of the defence taken, the application should be granted and a new trial had.  In the circumstances it is not appropriate to explore in any detail the facts asserted in support of the application.  Indeed, much of it was supplied by the Crown to the legal advisers of the applicant in confidence.  We have this morning explored with Mr McArdle what we considered to be germane to grounds 1 and 3, and it is in the light of that discussion that we make our orders.

1. The orders of the Court are as follows:

1.       Application for leave to appeal against conviction granted.

2.       The appeal is to be treated as instituted and heard instanter.

3.The appeal is allowed.  The verdicts on counts 1 and 2 are quashed and the convictions on those counts set aside.  A new trial on counts 1, 2 and 3 is ordered.

(Discussion ensued regarding bail.)

PHILLIPS, J.A. 

1. The Court orders as follows:

That the applicant be admitted to bail on his own undertaking with one surety in the sum of $5,000 conditioned in the proper form for his appearance as required by law at the new trial directed by this Court and on the following special conditions:

1.That the applicant reside at 137 Kilgour Street, Geelong in the State of Victoria or any such other address of which he shall give notice pursuant to condition 2.

2.That the applicant give 24 hours' notice to Detective Sergeant McIntyre or his nominee of any proposed change of address.

3.That the applicant report each Tuesday to the officer in charge of the police station at Geelong or his or her nominee between the hours of 6 a.m. and 9 p.m.

4.That the applicant not apply for a passport or attend at any point of international departure.

5.That the applicant not contact any witness for the prosecution other than the informant.

6.That the applicant appear before the County Court at the direction of that court or its registrar.

That order is made subject to any further or other order of the County Court.

1. Mr Sloan, do you understand the conditions which we have just attached to your bail?

APPLICANT: 

1. Yes, I do.

PHILLIPS, J.A.: 

1. Are you prepared to abide by those conditions?

APPLICANT: 

1. Yes, I am.

PHILLIPS, J.A.:

1. The order of the Court is made in that form.

1. An indemnity certificate is granted under s.14 of the Appeal Costs Act 1998 in respect of costs, including any additional costs that the applicant will pay or be ordered to pay as a consequence of the order for a new trial.

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