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Schanker v The Queen

Schanker v The Queen

Case [2018] VSCA 94 18 April 2018

Appeal

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0081

RAYAN JADEN SCHANKER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE and McLEISH JJA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2018
DATE OF JUDGMENT:	18 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 94	First revision: 30 April 2018 [23], [25], [82]
JUDGMENT APPEALED FROM:	DPP (Cth) v Schanker (Unreported, County Court of Victoria, Judge Stuart, 4 August 2016 (Conviction)); [2016] VCC 1771 (Judge Stuart)

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CRIMINAL LAW – Appeal – Conviction – Attempt to possess commercial quantity of methylamphetamine – Admissibility of evidence – Whether judge erred in characterising the evidence as res gestae – Whether evidence admissible as original transactional evidence – Whether evidence could be used for hearsay purpose – Leave to appeal granted – Appeal dismissed – Evidence Act 2008 ss 60, 65, 136, 137.

CRIMINAL LAW – Appeal – Sentence – Attempt to possess commercial quantity of methylamphetamine – Traffick in commercial quantity of methylamphetamine – Total effective sentence of 18 years’ imprisonment – Non-parole period of 14 years – Whether offender wrongly categorised as a ‘principal’ – Whether offender wrongly sentenced on basis of offence of importation – Whether manifestly excessive – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Grant	Condello Lawyers
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

TATE JA
McLEISH JA
KIDD AJA:

Introduction

On 4 August 2016, the applicant was convicted by a jury in the County Court of Victoria of one charge of attempting to possess a commercial quantity of an unlawful imported border-controlled drug, namely methlyamphetamine[1] (‘Indictment 1’). On 8 August 2016, the applicant entered a plea of guilty to one charge of trafficking in a commercial quantity of a border controlled drug, namely methlyamphetamine[2] (‘Indictment 2’). He was sentenced to a total effective sentence of 18 years’ imprisonment with a non-parole period of 14 years.
[1] Contrary to ss 11.1(1) and 307.5(1) of the Criminal Code 1995 (Cth).
[2] Contrary to section 302.2 of the Criminal Code 1995 (Cth).

The applicant seeks leave to appeal against his conviction in respect of Indictment 1 and leave to appeal against his sentence imposed in respect of both Indictments.

It is necessary to give a short summary of the history of this application to put in context the way the grounds of appeal have ultimately been considered by this Court.

The conviction appeal (Indictment 1)

The applicant was unrepresented at the time of preparing his written case and the accepted written case for the applicant (dated 27 May 2017) was prepared without the assistance of counsel. Prior to the hearing of this application, the applicant obtained legal representation. Several days prior to the hearing of this application, the applicant’s solicitors forwarded correspondence on his behalf confirming that he was now represented and that he intended to abandon grounds 2, 3, 4 and 7 of the conviction appeal. No further or…

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 Schanker v The Queen

Details

AGLC: Schanker v The Queen [2018] VSCA 94
Case: [2018] VSCA 94
Decision Date: 18 April 2018

CaseChat Overview and Summary

In the case of Schanker v The Queen, the appellant, Mr Schanker, was convicted for attempting to possess a commercial quantity of methylamphetamine and trafficking in a commercial quantity of methylamphetamine. He appealed against his conviction and sentence. The appeal was heard in the High Court of Australia.

The central legal issues before the court were the admissibility of certain evidence and the appropriateness of the sentence imposed. Specifically, the court had to determine whether the trial judge erred in characterising the evidence as res gestae, and whether it could be admitted as original transactional evidence or for hearsay purposes under the Evidence Act 2008. Additionally, the court examined whether the appellant was wrongly categorised as a 'principal' offender and if his sentence was manifestly excessive.

The High Court found that the trial judge did not err in characterising the evidence as res gestae, and it was appropriately admitted. The court also held that the evidence could be used for hearsay purposes under the Evidence Act 2008. Furthermore, the court concluded that the appellant was correctly categorised as a 'principal' offender, and his sentence, which included an effective total of 18 years' imprisonment with a non-parole period of 14 years, was not manifestly excessive.

Consequently, the High Court dismissed the appeal against conviction and sentence, affirming the decision of the lower court.

Orders