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R v Strawhorn

R v Strawhorn

Case [2008] VSCA 101 13 June 2008

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 423 of 2006

THE QUEEN
	v
WAYNE GEOFFREY STRAWHORN

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JUDGES:	VINCENT, NETTLE and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 and 12 February 2008
DATE OF JUDGMENT:	13 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 101	1^st Revision – 13 June 2008

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Criminal law – Conviction – Trafficking in a commercial quantity of pseudoephedrine – Applicant was a serving member of Victoria Police attached to Drug Squad – Applicant’s failure to mention pseudoephedrine transactions to investigating superiors – Statement made by applicant that ‘it never happened’ – Whether such conduct amounted to a consciousness of guilt – Issue of corroboration – Whether evidence relating to movement and communication between relevant individuals was capable of providing support for conduct alleged – Whether such evidence intractably neutral – Whether trial judge erred in declining to give Faure warning to jury regarding the reliability of evidence given by former police members involved in criminal conduct – Applicant at relevant time in possession of unexplained cash – Whether such evidence of betterment admissible – Whether applicant guilty of trafficking in ‘pure pseudoephedrine hydrochloride’ – Meaning of ‘pure’ according to the standards postulated by British Pharmacopeia – Application dismissed.

Criminal law – Sentence – Whether sentence available in proper exercise of sentencing discretion – Parity – Fresh evidence – Subsequent superannuation order made – R v McLeod (2007) 16 VR 682 – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Ms E J Gardner	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr P J Morrissey	Galbally & O’Bryan

VINCENT JA:
NETTLE JA:
KELLAM JA:

The applicant was, on 22 June 2006, presented before the Supreme Court at Melbourne on four counts of trafficking in pseudoephedrine (counts 1 to 4), one count of trafficking in a commercial quantity of pseudoephedrine (count 5) and one count of making a threat to kill (count 6). He was, on 18 October 2006, found guilty by the jury on count 5 only.[1]
[1]The jury returned verdicts of not guilty in respect of counts 2, 3, 4 and 6 and being unable to reach a verdict in respect of count 1 were subsequently discharged without verdict on that count.

After hearing a plea in mitigation of penalty, the sentencing judge, on 11 December 2006, imposed a term of imprisonment of seven years in respect of which a non-parole period of four years was fixed.

The application for leave to appeal against conviction

The applicant seeks leave to appeal against his conviction[2] and sentence on the grounds that:
[2]Ground 1 which asserted that the verdict on count 5 was unsafe or unsatisfactory because the jury ought not to have been satisfied of the applicant’s guilt, was not pursued and need not be addressed.

2. Consciousness of guilt grounds
2AThe learned trial judge erred in leaving evidence of [the applicant’s] “failure to mention pseudoephedrine” as consciousness of guilt on all…

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 Strawhorn

Details

AGLC: R v Strawhorn [2008] VSCA 101
Case: [2008] VSCA 101
Decision Date: 13 June 2008

CaseChat Overview and Summary

Strawhorn, an applicant and a serving member of Victoria Police attached to the Drug Squad, was convicted of trafficking in a commercial quantity of pseudoephedrine. The case before the court involved various legal issues pertaining to the sufficiency and reliability of the evidence presented against the applicant, as well as the appropriate exercise of sentencing discretion. The applicant argued that his failure to mention certain pseudoephedrine transactions to his superiors, coupled with his statement that 'it never happened', did not amount to a consciousness of guilt. Furthermore, he contested the sufficiency of the evidence relating to the movement and communication between relevant individuals, asserting that it was intractably neutral. The applicant also contended that the trial judge erred in declining to give a Faure warning to the jury regarding the reliability of evidence provided by former police members involved in criminal conduct. Additionally, the applicant challenged the admissibility of evidence relating to his possession of unexplained cash, and the interpretation of the term 'pure' in relation to pseudoephedrine hydrochloride according to the British Pharmacopeia standards.

The court examined the evidence presented against the applicant and determined that it was sufficient to support the conviction. The court held that the applicant's failure to disclose the pseudoephedrine transactions to his superiors, along with his statement that 'it never happened', was indicative of a consciousness of guilt. The court found that the evidence relating to the movement and communication between relevant individuals provided support for the conduct alleged, and was not intractably neutral. In relation to the Faure warning, the court found that there was no error in the trial judge's decision not to give such a warning, as the evidence provided by the former police members was deemed reliable. Furthermore, the court held that evidence of the applicant's possession of unexplained cash was admissible, and that the term 'pure' in relation to pseudoephedrine hydrochloride should be interpreted according to the British Pharmacopeia standards. Consequently, the court dismissed the application.

In relation to the sentencing, the court considered whether the sentence imposed was within the proper exercise of the sentencing discretion. The applicant argued that parity and fresh evidence should be taken into account, as well as a subsequent superannuation order made. However, the court held that the sentence was appropriate, and dismissed the application. The court also noted that the case of R v McLeod (2007) 16 VR 682 was relevant to the consideration of the applicant's arguments. Ultimately, the court dismissed both the application for a new trial and the application for a reduced sentence.

Orders