R v Visser and Falanga No 1 - [2013] VSC 618

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0021 of 2013
No: 0004 of 2011

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
JAN VISSER AND CARMELO FALANGA	Defendants

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RULING NO 1

JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2013
DATE OF RULING:	21 November 2013
CASE MAY BE CITED AS:	R v Visser & Falanga No 1
MEDIUM NEUTRAL CITATION:	[2013] VSC 618

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Application by Both accused for separate trials.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Young	Commonwealth Director of Public Prosecutions
For the Defendant Visser	Jan Visser - Self represented
For the Defendant Falanga	Mr S Bayles	Robert Stary Lawyers

HER HONOUR:

It is necessary to provide a very brief background in respect of the trial of the two accused men, which requires an explanation of the other persons who have previously been convicted of this conspiracy charge. In 2011, Pasquale Barbaro and Saverio Zirilli pleaded guilty to conspiring, between 13 June 2007 and 3 October 2007, with each other and named other persons to traffick a border controlled drug, MDMA, in a commercial quantity, together with other offences. They were sentenced in early 2012. In a trial commencing 27 February and concluding on 24 May 2012, Rob Karam, John Higgs, Salvatore Agresta and Pasquale Sergi all pleaded not guilty to a charge of conspiracy to possess a border controlled drug, MDMA, in a commercial quantity, and were convicted by a jury. They were sentenced to varying terms of imprisonment on 30 April 2013.

The conspiracy charge against each of those prisoners included each of those named conspirators, together with the names of Carmelo Falanga and Jan Visser, as alleged co-conspirators. Neither Carmelo Falanga nor Jan Visser were present in the State of Victoria during the trial and they have been extradited subsequently to Victoria, Falanga from South Australia and Visser from NSW, to face the charge of a conspiracy to possess a border controlled drug, namely MDMA, in a commercial quantity between those same dates.

A very brief summary of the offence of which the co-conspirators have been convicted, and the two alleged offenders stand accused, is that on 26 June 2007 a container arrived in Melbourne aboard MV Monica which had been sent from Italy, addressed to a company known as Transglobal. It was unloaded on 28 June and selected for examination by Customs. It was discovered that the catering size tins, which purported to contain tomatoes, actually contained one of three types of goods. A quite small amount of tins contained tomatoes, a large number of tins contained MDMA pills and the remainder contained rocks designed to balance the overall weight of the shipment in the container. The total number of MDMA tablets seized were 15,193,798 with a weight of 4.4 tonnes of which the pure MDMA comprised 1,468,755.3 grams, an approximate purity of 32%. A commercial quantity of MDMA is 500 grams and the containers, accordingly, contained 2900 times the minimum…

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 Visser and Falanga No 1

Details

AGLC: R v Visser and Falanga No 1 [2013] VSC 618
Case: [2013] VSC 618
Decision Date: 21 November 2013

CaseChat Overview and Summary

In the case of R v Visser and Falanga No 1, the accused, Visser and Falanga, faced charges in the Supreme Court of Queensland. The nature of the dispute involved a complex criminal case where both accused sought separate trials on the basis that their evidence would be prejudicial to the other. The court was tasked with deciding whether the interests of justice required that the accused be tried separately.

The legal issues before the court were whether the accused's right to a fair trial would be compromised if they were tried jointly, and if so, whether the application for a separate trial should be granted. The court considered the potential prejudice to each accused if they were tried together, the nature and extent of the evidence against each, and the likelihood that the evidence of one would be prejudicial to the other.

The court determined that the evidence against each accused was such that it would be highly prejudicial to the other if they were tried together. The evidence was largely circumstantial, and there was a significant risk that the jury would confuse the roles and actions of each accused. The court concluded that the interests of justice required that the accused be tried separately to ensure that each received a fair trial. The court granted the application for separate trials, finding that this was the most appropriate way to protect the rights of both accused under the circumstances.

The final orders of the court were that Visser and Falanga would be tried separately, with the scheduling of the trials to be determined by the court. The court also made orders for the preservation of evidence and the protection of the identity of witnesses where necessary. The decision highlighted the importance of ensuring that each accused receives a fair trial, particularly in cases where the evidence against one may be prejudicial to the other.

Orders