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Visser v DPP (Cth)

Visser v DPP (Cth)

Case [2020] VSCA 327 18 December 2020

Criminal Liability

Admissibility of Evidence

Sentencing

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0100
S EAPCR 2019 0213

JOHN (JAN) VISSER	Appellant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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JUDGES:	McLEISH, EMERTON and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28–29 July 2020
DATE OF JUDGMENT:	18 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 327
JUDGMENT APPEALED FROM:	[2014] VSC 306 (King J)

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CRIMINAL LAW – Petition of Mercy – Referral to Court of Appeal – Appellant convicted of conspiracy to possess a commercial quantity of unlawfully imported border controlled drug – Drugs found in tomato tins in shipping container – Appellant’s defence that he believed shipping container contained tobacco – Barrister provided bill of lading for shipping container to police while acting for co-conspirator – Bill of lading facilitated identification of shipping container – Whether failure by prosecuting authorities to disclose to appellant that barrister provided bill of lading to police resulted in substantial miscarriage of justice – Whether evidence of bill of lading inadmissible – Whether conduct of barrister and police required permanent stay of proceeding – Whether prosecution malicious – New affidavits from co-conspirators – Whether fresh or new evidence – Appeal dismissed – R v Farquharson (2009) 26 VR 410, R v Forrest (2016) 125 SASR 319, Roberts v The Queen (2020) 60 VR 431, Roberts v The Queen [2020] VSCA 277, R v Mallard (2005) 224 CLR 125, considered; R v Butler [2010] 1 Qd R 325, followed; Criminal Procedure Act 2009 ss 110, 111, 327, 416; Evidence Act 2008 s 138.

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APPEARANCES:	Counsel	Solicitors
Appellant	In person
Respondent	Ms R Orr QC with Mr M Wilson	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

TABLE OF CONTENTS

Introduction...............................................................................................................

1

Statutory context......................................................................................................

9

Grounds of appeal.....................................................................................................

10

Ground 1: Substantial miscarriage of justice.......................................................

11

Appellant’s submissions..................................................................................

14

Respondent’s submissions...............................................................................

23

Was there an obligation to disclose?................................................................

27

Would the appellant have succeeded in excluding evidence at trial?..............

33

Was there impropriety?....................................................................

34

The balancing exercise......................................................................

44

Would evidence obtained from the warrants have been excluded? .................

45

Additional evidence..........................................................................................

47

Would a stay have been granted?....................................................................

48

Would there have been a change to the period of the conspiracy?...................

55

Conclusion on ground 1..................................................................................

55

Ground 2: Malicious prosecution...........................................................................

56

Ground 3: Fresh or new evidence...........................................................................

57

Analysis...........................................................................................................

63

Disposition................................................................................................................

69

Appendix.....................................................................................................................

70

McLEISH JA
EMERTON JA
OSBORN JA:

Introduction

On 9 April 2014, following a trial by jury jointly with his co-accused, Carmelo Falanga, the appellant was convicted of one count of conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug contrary to ss 11.5(1) and 307.5(1) of the Criminal Code (Cth).

The indictment alleged that between 13 June and 3 October 2007, the appellant and Falanga conspired with each other, and with Pasquale Barbaro, Saverio Zirilli, John Higgs, Rob Karam, Salvatore Agresta, Pasquale Sergi, and others, to possess a commercial quantity of an…

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 Visser v DPP (Cth)

Details

AGLC: John (Jan) Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327
Case: [2020] VSCA 327
Decision Date: 18 December 2020

CaseChat Overview and Summary

The appeal by the appellant, Visser, against his conviction and sentence for conspiracy to possess a commercial quantity of unlawfully imported border controlled drugs was dismissed by the Supreme Court of South Australia. The appellant was one of several individuals involved in the importation of drugs concealed within tomato tins in a shipping container. The primary issue before the Court was whether the failure by the prosecuting authorities to disclose to the appellant that a barrister acting for a co-conspirator provided the bill of lading for the shipping container to the police resulted in a substantial miscarriage of justice. A further issue was whether the evidence of the bill of lading was inadmissible, and whether the conduct of the barrister and the police required a permanent stay of proceedings. The Court also considered whether the prosecution was malicious, and whether new affidavits from co-conspirators constituted fresh or new evidence.

The Court found that the failure to disclose the provision of the bill of lading did not result in a substantial miscarriage of justice. The Court held that the appellant's defence that he believed the shipping container contained tobacco, not drugs, was not undermined by the fact that a barrister had provided the bill of lading to the police. The evidence of the bill of lading was deemed admissible as it did not arise from any impropriety by the police or the barrister. The Court also found that the conduct of the barrister and the police did not require a permanent stay of proceedings, and that there was no evidence of a malicious prosecution. Finally, the Court held that the new affidavits from co-conspirators did not constitute fresh or new evidence as they did not alter the essential facts of the case.

The Court dismissed the appeal and upheld the conviction and sentence of the appellant. The Court found that the evidence against the appellant was overwhelming, and that the failure to disclose the provision of the bill of lading did not affect the outcome of the trial. The Court also held that the prosecution was not malicious, and that the new affidavits from co-conspirators did not change the essential facts of the case. The conviction and sentence of the appellant were therefore affirmed.

Orders