Schevella v The Queen; Smith v The Queen

These matters concerned applications for special leave to appeal to the High Court of Australia, brought by Thomas Schevella and Mr Smith. The Crown was represented by Mr Bongiorno QC and his colleagues. The applicants' grounds of appeal related to both their convictions and their sentences.

The primary legal issue for determination was the interpretation and application of the High Court's decision in *Ahern* by the Victorian Court of Criminal Appeal. Specifically, the applicants contended that the Victorian Court of Criminal Appeal had misconstrued *Ahern*, failed to correctly apply its principles, and erred in its determination that a trial judge was not required to make a specific finding regarding the type of evidence admissible against co-conspirators prior to charging the jury. Furthermore, it was argued that the Victorian Court of Criminal Appeal had failed to follow its own prior decision in *Pektas*.

The applicants argued that the judgment in *Ahern* was clear and that the Victorian Court of Criminal Appeal had not applied it correctly. They submitted that a trial judge, after reaching a conclusion that there was evidence independent of an individual applicant's actions supporting a conspiracy, must then instruct the jury on how that evidence, specifically the actions of other accused in furtherance of the conspiracy, could be used. The applicants' grounds of appeal were amplified by further specific points detailed in the appeal book.