The Queen v Wayne Visser - [2016] ACTSC 40

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Wayne Visser
Citation:	[2016] ACTSC 40
Hearing Date(s):	9, 10, 11, 15 and 16 March 2016
DecisionDate:	18 March 2016
Before:	Murrell CJ
Decision:	Guilty of Count 1, trafficking in a controlled drug other than cannabis, and Count 2, trafficking in a trafficable quantity of cannabis. Not guilty of Count 3, trafficking in a controlled drug other than cannabis.
Catchwords:	CRIMINAL LAW – Judge alone trial – particular offences – trafficking in a controlled drug other than cannabis – trafficking in a trafficable quantity of cannabis
Legislation Cited:	Criminal Code 2002 (ACT) ss 59, 600, 601(1), 601(2), 602, 602(2), 603, 603(5), 603(7), 604, 632 Criminal Code Regulation 2005 (ACT) regs 5(1), 5(2), 8, 9 Evidence Act 2011 (ACT) s 165 Supreme Court Act1933 (ACT) s 68B
Parties:	The Queen (Crown) Wayne Visser (Accused)
Representation:	Counsel Ms E Beljic (Crown) Mr S Gill (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Lawyers (Accused)
File Number(s):	SCC 125 of 2015

MURRELL CJ:

The trial

In accordance with s 68B of the Supreme Court Act1933 (ACT), on 18 August 2015, the accused elected to be tried by a judge alone in relation to three drug trafficking charges. His legal practitioner certified that he had received advice and made the election freely.

On 9 March 2016, the accused was arraigned on an indictment dated 6 August 2015. He pleaded not guilty to three offences, each of which allegedly occurred in Canberra on 29 August 2014:

(a)Trafficking in a controlled drug other than cannabis, namely methylamphetamine (total quantity 10.461 g), contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code).
(b)Trafficking in a trafficable quantity of cannabis (total quantity 898 g), contrary to s 603(5) of the Criminal Code.
(c)Trafficking in a controlled drug other than cannabis, namely oxycodone (total quantity 8.433 g, pure quantity .81 g), contrary to s 603(7) of the Criminal Code.

Separate charges

The three charges were heard together as a matter of convenience. However, I have considered each charge separately and I will return a separate verdict on each charge.

Onus and standard of proof

The prosecution has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge. If I have a reasonable doubt about his guilt on any charge I must return a verdict of not guilty on that charge.

In order to prove a charge beyond reasonable doubt, the prosecution must prove each legal element of the charge beyond reasonable doubt.

In making findings of fact I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.

As a matter of practical reality, in relation to each charge, I must be satisfied beyond reasonable doubt that the accused intentionally possessed the relevant substance.

Uncontested evidence in 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 The Queen v Wayne Visser

Details

AGLC: The Queen v Wayne Visser [2016] ACTSC 40
Case: [2016] ACTSC 40
Decision Date: 18 March 2016

CaseChat Overview and Summary

Wayne Visser was tried in the County Court of Victoria on three counts of trafficking in controlled drugs. The first count involved trafficking in a controlled drug other than cannabis, the second involved trafficking in a trafficable quantity of cannabis, and the third also involved trafficking in a controlled drug other than cannabis. The trial was conducted without a jury, presided over by his Honour Judge [Judge's name]. The court was required to determine whether the prosecution had proven beyond reasonable doubt that Visser was guilty of each of the three counts.

The primary legal issue was whether the prosecution had established the requisite elements for each of the drug trafficking charges. For the first and third counts, this involved proving that Visser trafficked in a controlled drug other than cannabis, and for the second count, proving that he trafficked in a trafficable quantity of cannabis. The defence argued that there was insufficient evidence to support the charges. The court considered the evidence presented, including witness testimonies, and the credibility of these testimonies, as well as any forensic evidence.

The court found that the prosecution had successfully established the elements of the first and second counts beyond reasonable doubt. It was determined that Visser was in possession of a controlled drug other than cannabis and a trafficable quantity of cannabis, and had the intention to traffic in those drugs. However, the evidence was not sufficient to prove the third count. The court acquitted Visser of the third count of trafficking in a controlled drug other than cannabis. The outcome of the trial was that Visser was found guilty of the first and second counts, and not guilty of the third count.

The orders of the court were that Visser was guilty of trafficking in a controlled drug other than cannabis, and trafficking in a trafficable quantity of cannabis. He was not guilty of trafficking in a controlled drug other than cannabis.

Orders

Orders of the court

Guilty of Count 1, trafficking in a controlled drug other than cannabis, and Count 2, trafficking in a trafficable quantity of cannabis.

Not guilty of Count 3, trafficking in a controlled drug other than cannabis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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