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Samuels-Orunmwense v The Queen

Samuels-Orunmwense v The Queen

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Case Copied 19 June 2015 61 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0208

EFE SAMUELS-ORUNMWENSE	Applicant
v
THE QUEEN	Respondent
S APCR 2014 0222
JOHN OMORUYI OSIFO	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2015 and 14 May 2015
DATE OF ORDERS:	19 June 2015
DATE OF JUDGMENT:	19 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 152
JUDGMENT APPEALED FROM:	DPP v John Osifo & Efe Samuels-Orunmwense (Unreported, County Court of Victoria, Judge Campton; 23 April 2014 (Conviction); 25 August 2014 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Attempting to possess a marketable quantity of a border controlled drug (heroin) – One offender aiding and abetting the other – Claimed prejudice from joint trial – Refusal to order separate trial – Relevant considerations – No error in refusing separate trial.

CRIMINAL LAW – Appeal – Conviction – Claimed failure to adhere to conditions of search warrant – Whether evidence improperly or illegally obtained – Discretion to admit evidence – Evidence Act 2008, s 138.

CRIMINAL LAW – Appeal – Conviction – Continuity of drugs – Whether verdict unsafe and unsatisfactory.

CRIMINAL LAW – Appeal – Sentence – Attempting to possess a marketable quantity of a border controlled drug (heroin) – Individual sentences of 5 years and 9 months’ imprisonment – Parity – Totality – Findings as to roles of offenders – Whether failure to apply Verdins principles – R v Verdins (2007) 16 VR 269 – Whether sentences manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Efe Samuels-Orunmwense	Mr J Sutton	Chester Metcalfe & Company
For the Applicant John Omoruyi Osifo	Mr C B Boyce SC with Ms G F Connelly	Stephen Andrianakis & Associates
For the Crown	Mr J Dickie	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL ACJ:

I have had the considerable advantage of reading in draft the reasons for judgment of Priest JA in both appeals. I would make the orders as his Honour proposes, for the reasons which he gives.

REDLICH JA:

I agree.

PRIEST JA:

Introduction

After an eight week joint trial in the County Court, in which some 32 witnesses gave evidence in the prosecution case, on 23 April 2014 a jury convicted both the applicant Efe Samuels-Orunmwense (for convenience, ‘ESO’) and the applicant John Omoruyi Osifo (‘JO’) of attempting to possess a marketable quantity of a border controlled drug, heroin.[1]^, [2]
[1]Criminal Code (Cth) s 307.6(1), s 11.1(1). The maximum penalty is 25 years’ imprisonment (or 5000 penalty units, or both).
[2]The prosecution’s case was that JO had aided and abetted ESO in the commission of the offence.

Following a plea, on 25 August 2014 both applicants were sentenced to a total effective sentence of five (5) years and nine (9) months’ imprisonment. In ESO’s case, a non-parole period of three (3) years was fixed. JO’s sentencing was more complicated. He was already undergoing sentence, imposed in the County Court on 28 October…

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.

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Details

Case: [2015] VSCA 152
Decision Date: 19 June 2015

CaseChat Overview and Summary

The appeal before the court was brought by two defendants, challenging their convictions and sentences for attempting to possess a marketable quantity of heroin. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The primary contentions were the refusal to order a separate trial, the admission of evidence obtained during a search, the continuity of the heroin, and the fairness and proportionality of their respective sentences.

The legal issues before the court encompassed several critical aspects of the criminal justice process. The defendants argued that the trial judge erred in declining their request for separate trials, claiming prejudice from a joint trial. They further contended that the evidence obtained during the search was improperly or illegally obtained and should not have been admitted under the Evidence Act 2008. Additionally, the defendants questioned the sufficiency of the evidence concerning the continuity of the drugs, asserting that the verdict was unsafe and unsatisfactory. Finally, they challenged the appropriateness of their sentences, arguing that they were manifestly excessive and did not properly consider the roles each played in the offence.

In its reasoning, the court found no error in the trial judge's decision to deny a separate trial, as the defendants failed to demonstrate how they would be prejudiced. The court also upheld the admissibility of the evidence obtained during the search, determining that the trial judge had correctly exercised his discretion under the Evidence Act 2008. Regarding the continuity of the drugs, the court concluded that the evidence was sufficient to support the verdict. The court further found that the sentences, while severe, were not manifestly excessive and appropriately reflected the roles and culpability of each offender, thereby adhering to the principles established in R v Verdins.

The final orders of the court upheld the convictions and sentences of the appellants. The appeal was dismissed in its entirety, with the court finding no grounds for interference with the trial judge's decisions.

Orders