R v Vrabcenjak - [2008] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 134 of 2007

THE QUEEN
	v
MICHAEL VRABCENJAK

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JUDGES:	ASHLEY and DODDS-STREETON JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 June 2008
DATE OF JUDGMENT:	15 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 143

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Criminal law – Application for leave to appeal against conviction – Importation of heroin contrary to s 233B(1)(b) of the Customs Act 1901 (Cth) – Drugs found in covers of a photograph album carried by applicant – Circumstantial case as to intent – Sufficiency of knowledge – Whether trial judge failed to adequately redirect the jury – Whether verdict unsafe and unsatisfactory – Whether trial miscarried by accumulation of errors – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Meredith	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	Chiodo & Madafferi

ASHLEY JA:

Michael Vrabcenjak was indicted on a single count that, contrary to paragraph 233B(1)(b) of the Customs Act1901 (Cth) he imported into Australia prohibited imports to which s 233B applies, namely not less than a traffickable quantity of heroin. He stood his trial in the County Court in March 2007. The jury found him guilty, and on 4 May 2007, after a plea, he was convicted and sentenced to 6 years’ imprisonment, with a minimum term of 3 years and 8 months. The judge made a declaration under s 21E of the Crimes Act 1914 (Cth) that by reason of Vrabcenjak’s offer to co-operate with law enforcement agencies the non-parole period that would otherwise have been imposed had been reduced by 2 months. His Honour also declared that he had reduced the non-parole period by 2 months by reason of delay in the proceedings.

Vrabcenjak applies for leave to appeal against conviction. The grounds of his application are as follows:

1. The learned trial judge failed to adequately direct the jury as to the mens rea required to be proved.

2. The learned trial judge failed to adequately direct the jury as to the standard of proof.

3. The learned trial judge failed to properly or at all answer a jury question as to the difference between beyond reasonable doubt and the likelihood of an occurrence, in particular, he should have, but failed, to relate the question to the mens rea of the offence so as to make it clear that proof of guilt was proof beyond reasonable doubt.

4. The verdict is unsafe and unsatisfactory in that it was not possible for the jury, properly directed, to have rejected an hypothesis, open on the evidence, consistent with innocence, in particular that the application was “set up” to import heroin without the requisite mens rea of having it in his possession.

Vrabcenjak also applies for leave to amend his grounds of appeal by adding:

6.The trial miscarried by reason of the trial judge’s having failed properly or at all to direct the jury on its use of the applicant’s lies.
7.The…

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 Vrabcenjak

Details

AGLC: R v Vrabcenjak [2008] VSCA 143
Case: [2008] VSCA 143
Decision Date: 15 August 2008

CaseChat Overview and Summary

In the case of R v Vrabcenjak, the applicant appealed against his conviction for the importation of heroin, a violation of section 233B(1)(b) of the Customs Act 1901 (Cth). The heroin was discovered concealed within the covers of a photograph album that the applicant was carrying. The applicant contested the conviction on several grounds, including the sufficiency of the evidence regarding his knowledge and intent, the adequacy of the trial judge's instructions to the jury, and the overall fairness of the trial process.

The primary legal issues before the court were whether the circumstantial evidence was sufficient to establish the applicant's knowledge and intent to import heroin, whether the trial judge's instructions to the jury were adequate, and if the verdict was unsafe and unsatisfactory. Additionally, the court examined whether the trial was compromised by a series of errors.

The court found that the circumstantial evidence was sufficient to establish the applicant's knowledge and intent to import the heroin. The court also determined that the trial judge's instructions to the jury were adequate and that the verdict was not unsafe and unsatisfactory. Furthermore, the court concluded that the trial did not miscarry due to any accumulation of errors. Consequently, the application for leave to appeal against the conviction was refused.

There were no further orders made by the court beyond the refusal of the application.

Orders