RJP v The Queen - [2011] VSCA 204

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0091

RJP	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO and HARPER JJA and MACAULAY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 June 2011
DATE OF JUDGMENT	24 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 204
JUDGMENT APPEALED FROM	R v Roper (Unreported, County Court of Victoria, Judge Gullaci, 4 May 2011)

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CRIMINAL LAW – Interlocutory appeal – Application for leave to appeal against interlocutory decision – Applicant former excise officer with Australian Taxation Office –Involved in investigation of trade in illegal tobacco or ‘chop chop’ – Charged with various offences under Commonwealth Criminal Code – Crown seeking to adduce evidence that applicant formed corrupt relationships with a number of ‘chop chop’ dealers – Trial judge ruled that evidence was admissible as tendency evidence or coincidence evidence – Whether trial judge’s ruling was correct – Relevant tendency was asserted to be tendency to use employment to form corrupt relationships with ‘chop chop’ dealers – Tendency was at such a high level of generality that it constituted a mere propensity to use position for criminal ends – Trial judge’s ruling set aside – Declaration that evidence not admissible as tendency evidence or coincidence evidence – R v Papamitrou (2004) 7 VR 375 – Evidence Act 2008 ss 97 and 98.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr C Thomson	Mr S English
For the Crown	Mr R Pirrie	Mr C Craigie SC, Director of Public Prosecutions (Commonwealth)

BONGIORNO JA:

RJP stands indicted on 12 charges alleging contravention of various provisions of the Commonwealth Criminal Code. The charges allege bribery, corruption, theft and similar criminal activity. At the time the offences were alleged to have been committed, RJP was employed as an excise officer with the Australian Taxation Office (‘ATO’) and was involved in the investigation of the trade in illegal tobacco, known as ‘chop chop’. All of the offences are alleged to have arisen out of RJP’s relationship with four other men, each of whom is alleged to have been involved in the ‘chop chop’ trade.

The Crown case against RJP is that he formed corrupt relationships with these persons and then used his position as an excise officer to obtain favours from them in return for protection from prosecution or other benefits. These favours took the form of gifts of money, alcohol and cigarettes, payment for sexual services at brothels, payment for overseas travel and the provision of information concerning other ‘chop chop’ dealers. It is alleged that he sought this information so that he and others could steal ‘chop chop’ from the other dealers and sell it at a profit.

The first three charges on the indictment as it presently stands involve RJP’s relationship with two men, S and W. The Crown alleges that for about three years, beginning in March 2001, RJP protected S in his ‘chop chop’ dealings, in return for which S paid him between $1,500 and $2,000 per month. S introduced RJP…

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 RJP v The Queen

Details

AGLC: RJP v The Queen [2011] VSCA 204
Case: [2011] VSCA 204
Decision Date: 24 June 2011

CaseChat Overview and Summary

In the case of RJP v The Queen, the applicant, a former excise officer, was charged with various offences under the Commonwealth Criminal Code. The applicant was involved in an investigation into the trade of illegal tobacco, commonly referred to as 'chop chop'. The Crown sought to adduce evidence that the applicant had formed corrupt relationships with a number of 'chop chop' dealers. The trial judge ruled that this evidence was admissible as tendency evidence or coincidence evidence. The applicant sought leave to appeal against this interlocutory decision.

The legal issue before the court was whether the trial judge's ruling that the evidence was admissible was correct. The relevant tendency was said to be the tendency to use the applicant’s employment to form corrupt relationships with 'chop chop' dealers. The court had to determine whether this tendency was at such a high level of generality that it constituted a mere propensity to use the applicant's position for criminal ends. The admissibility of the evidence was also considered under the Evidence Act 2008, specifically sections 97 and 98.

The court found that the tendency was indeed at a high level of generality, amounting to a mere propensity to use the applicant's position for criminal ends. Consequently, the court held that the trial judge's ruling was incorrect. The ruling was set aside, and it was declared that the evidence was not admissible as tendency evidence or coincidence evidence. The court referred to the case of R v Papamitrou to support its decision. The appeal was allowed, and the interlocutory decision of the trial judge was quashed.

Orders