Visser v The King

Case [2023] VSCA 10


SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0112

JAN VISSER Applicant
v
THE KING Respondent

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JUDGES: EMERTON P, PRIEST, McLEISH, T FORREST and KENNEDY JJA
WHERE HELD: Melbourne
DATE OF HEARING: 25 November 2022 
DATE OF JUDGMENT: 9 February 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 10
JUDGMENT APPEALED FROM: R v Falanga and Visser [2014] VSC 306

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CRIMINAL LAW – Appeal – Sentence – Practice and procedure – Second or subsequent appeal against sentence based on fresh evidence – Court of Appeal has no power to entertain further application for leave to appeal against sentence after previous application has been refused on the merits – Criminal Procedure Act 2009, Part 6.3, ss 278, 280, 281 – R v GAM (No 2) (2004) 9 VR 640, Grierson v The King (1938) 60 CLR 431, Postiglione v The Queen (1997) 189 CLR 295, Lowe v The Queen (2015) 249 A Crim R 362 considered.

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Counsel

Applicant: In person
Respondent: Ms R Sharp SC with Mr M Wilson
Amici curiae: Mr J Gullaci SC with Mr J Murphy

Solicitors

Applicant:
Respondent: Commonwealth Director of Public Prosecutions

THE COURT:

Introduction

  1. On 9 April 2014, the applicant was found guilty of conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug, MDMA (‘ecstasy’).[1] After a plea in mitigation, the trial judge sentenced the applicant to 11 years’ imprisonment, and fixed a non-parole period of eight years.

    [1]Criminal Code (Cth), ss 11.5(1) and 307.5(1).

  2. By notices accepted for filing on 15 and 16 July 2014 respectively, the applicant sought leave to appeal against both his conviction and sentence. This Court heard both those applications on 25 May 2015 — the applicant chose to be unrepresented by a legal practitioner — and, after a full hearing on the merits, refused them both on 26 June 2015.[2]  The High Court refused an application for an extension of time to bring an application for special leave to appeal on 17 June 2016.[3]

    [2]Visser v The Queen [2015] VSCA 168 (Weinberg, Priest and Beach JJA). By a signed Notification of Result of Appeal or Application, dated 29 June 2015, given in accordance with r 2.39 of the Supreme Court (Criminal Procedure) Rules 2008, the Registrar gave notice to the applicant that his applications for leave to appeal against conviction and sentence had been refused by the Court. 

    [3]Visser v The Queen [2016] HCASL 139 (Bell and Gageler JJ). The Court’s reasons were:

    The applicant requires an extension of time in order to bring his application for special leave to appeal. To grant an extension would be futile. No question of law suitable for the grant of special leave is raised by the application. There is no reason to doubt the correctness of the decision below. Special leave is refused.

  3. On 22 September 2016, the applicant lodged a petition for mercy with the Attorney-General for the Commonwealth, which the Attorney-General referred to…

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Visser v The King [2023] VSCA 10
Case
[2023] VSCA 10
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CaseChat Overview and Summary

The appellant, Visser, appealed against his sentence in the Supreme Court of Victoria, arguing that the sentence was manifestly inadequate. The case involved a dispute over the appropriateness of the sentence imposed on the appellant following his conviction for various criminal offences. The Court of Appeal was tasked with determining whether it had the jurisdiction to entertain the appellant's second application for leave to appeal against his sentence, given that a previous application had been refused on the merits.

The central legal issue was whether the Court of Appeal had the authority to consider a second application for leave to appeal against a sentence after a previous application had been rejected. The appellant contended that the Court of Appeal should exercise its discretion to entertain the application based on the fresh evidence presented. The Crown argued that the Court of Appeal was without jurisdiction to entertain the application under the provisions of the Criminal Procedure Act 2009.

The Court of Appeal held that it did not have the jurisdiction to entertain the appellant's second application for leave to appeal against his sentence, as the previous application had already been refused on the merits. The Court found that the statutory provisions of the Criminal Procedure Act 2009, particularly sections 278, 280, and 281, did not allow for further applications for leave to appeal against a sentence after a previous application had been dismissed. The Court referenced authorities such as R v GAM (No 2), Grierson v The King, Postiglione v The Queen, and Lowe v The Queen to support its conclusion that the Court of Appeal was precluded from considering the appellant's second application for leave to appeal. As a result, the Court of Appeal dismissed the appellant's application for leave to appeal against his sentence.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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