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Saricayir v The Queen

Saricayir v The Queen

Case [2018] VSCA 319 30 November 2018

Admissibility of Evidence

Counsel's Incompetence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0260

AKIN SARICAYIR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE, T FORREST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2018
DATE OF JUDGMENT:	30 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 319
JUDGMENT APPEALED FROM:	DPP v Saricayir (Unreported, County Court of Victoria, Judge Ryan, 29 June 2017)

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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Appeal against conviction – Trafficking in a drug of dependence in a quantity not less than commercial quantity – Theft – Total effective sentence 5 years and 9 months’ imprisonment – Non-parole period 4 years’ imprisonment – Whether substantial miscarriage of justice a result of inadmissible and prejudicial material placed before jury – Material not excised from record of interview placed before jury – Whether substantial miscarriage of justice occurred as result of counsels’ incompetence at trial – Consideration of Criminal Procedure Act 2009 s 276 – Consideration of ‘proviso’ cases – Consideration of rarity of cases where ‘serious departure from the prescribed processes for trial’ where ‘no trial at all’ – Consideration of rarity of cases where counsel’s incompetence causes substantial miscarriage of justice – Obligations of prosecution regarding inadmissible evidence – No substantial miscarriage of justice – Conviction was inevitable – No fundamental irregularity in conduct of trial – No fundamental failure of process – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with	Theo Magazis & Associates
Mr Michael Allen
For the Respondent	Mr Patrick Doyle	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA
ASHLEY JA:

Akin Saricayir (‘the applicant’) stood trial on charges of trafficking in a drug of dependence in not less than a commercial quantity (Charge 1), cultivation of a narcotic plant in a quantity not less than a commercial quantity (Charge 2) and theft (Charge 3).[1] He was found guilty on Charges 1 and 3 and, following a plea, he was sentenced on 29 June 2017 to five years and six months’ imprisonment on Charge 1, and to six months’ imprisonment on Charge 3. The Judge directed that three months of the sentence imposed on Charge 3 be served cumulatively on the sentence on Charge 1. The total effective sentence was thus five years and nine months’ imprisonment. The Judge fixed a non-parole period of four years’ imprisonment.
[1]The trafficking charge was advanced as one of possession for sale. Charge 2 was treated as an alternative.

Proposed grounds

Now the applicant seeks leave to appeal against his conviction; and, if his application is granted, that his appeal be allowed and that an order be made for a retrial. By his amended application for leave to appeal, he relies upon these proposed Grounds:[2]

(1)A substantial miscarriage of justice was occasioned by a failure properly to edit the Applicant’s record of interview, with the result that inadmissible and prejudicial material was placed before 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 Saricayir v The Queen

Details

AGLC: Saricayir v The Queen [2018] VSCA 319
Case: [2018] VSCA 319
Decision Date: 30 November 2018

CaseChat Overview and Summary

The applicant in this case sought leave to appeal against his conviction for trafficking in a drug of dependence in a quantity not less than commercial, and for theft. The case was heard in the High Court of Australia. The primary issue was whether a substantial miscarriage of justice had occurred due to the inadmissible and prejudicial material being placed before the jury, and whether the trial was conducted with fundamental failures or irregularities that warranted an appeal against the conviction.

The court examined whether the inclusion of inadmissible and prejudicial material in the jury's consideration constituted a substantial miscarriage of justice. It also assessed whether the applicant's counsel's incompetence at trial resulted in a substantial miscarriage of justice. The court considered the provisions of the Criminal Procedure Act 2009, particularly section 276, which deals with the circumstances in which leave to appeal may be granted. The court also reviewed relevant precedents where appeals were allowed due to serious departures from prescribed processes, and instances where counsel's incompetence led to a substantial miscarriage of justice.

The High Court found that while the inadmissible and prejudicial material should not have been presented to the jury, the applicant’s conviction was inevitable due to the overwhelming evidence against him. The court held that there was no fundamental irregularity in the conduct of the trial, nor a fundamental failure of process. Consequently, the leave to appeal was granted; however, the appeal itself was dismissed as there was no substantial miscarriage of justice.

The final orders of the court were that leave to appeal was granted, but the appeal against the conviction was dismissed. The total effective sentence of five years and nine months' imprisonment, with a non-parole period of four years, was upheld.

Orders