JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2015
DATE OF JUDGMENT:	26 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 168	1^st Revision, 26 June 2015 paras [190] ff
JUDGMENT APPEALED FROM:	R v Falanga and Visser [2014] VSC 306 (King J)

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CRIMINAL LAW – Conviction – Conspiracy to possess over 15 million tablets containing 1.4 tonnes of pure MDMA – Drugs seized by police before conspirators could take possession of them – Multiple conspirators some of whom previously convicted and sentenced – Two applicants (A1 and A2) tried together – A1’s application – A1 self-represented – Whether verdict unsafe and unsatisfactory – Whether trial judge erred in excluding certain defence evidence as hearsay – Whether trial judge erred in admitting evidence of accused’s association with other conspirators post-conspiracy period – Whether unfair prejudice as a result of failure to order separate trial – Whether substantial miscarriage of justice as a result of conduct of prosecutor and trial judge – Whether unfair prejudice as a result of non-disclosure by Crown of particular listening device transcript – No substance to any of the proposed grounds – Leave to appeal refused.

CRIMINAL LAW – Conviction – Applicants’ defence at trial was that they thought contents of shipment was illicit tobacco not MDMA – A2’s application – Whether trial judge erred in failing to direct jury that Crown must establish applicants knew shipment contained a border controlled drug as opposed to some drug or drug related substance – No error established – Leave to appeal refused.

CRIMINAL LAW – Sentence – A1 sentenced to 11 years with non-parole period of 8 years – Had completed lengthy term of imprisonment in New South Wales for unrelated offending immediately prior to present sentence being imposed – Whether insufficient weight given to prior New South Wales sentence – Whether sentencing judge made impermissible use of A1’s prior convictions – Whether unjustifiable disparity with sentence of 10 years previously imposed on a different co-conspirator – Whether sentence manifestly excessive – Leave to appeal refused.

CRIMINAL LAW – Sentence – A2 sentenced to 23 years with non-parole period of 16 years – Whether sentence manifestly excessive – Whether unjustifiable disparity with sentence of 20 years previously imposed on a different co-conspirator – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Visser	Mr Visser appeared in person
For the Applicant Falanga	Mr S Bayles	Robert Stary Lawyers
For the Crown	Mr D J Lane	Commonwealth Director of Public Prosecutions

WEINBERG JA
PRIEST JA
BEACH JA:

After a trial lasting the better part of two months, the applicants, Jan Visser and Carmelo Falanga, were each convicted of one charge of conspiracy to possess a commercial quantity of MDMA (commonly known as ‘ecstasy’).

Visser was sentenced as follows:

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 The Queen

Details

AGLC: Jan (John) Visser v The Queen [2015] VSCA 168
Case: [2015] VSCA 168
Decision Date: 26 June 2015

CaseChat Overview and Summary

In the case of Visser v The Queen, the applicants, A1 and A2, sought leave to appeal against their convictions and sentences for conspiracy to possess over 15 million tablets containing 1.4 tonnes of pure MDMA. The matter was heard in the High Court of Australia. A1 and A2 were part of a conspiracy that intended to import a large quantity of MDMA, but the drugs were seized by police before the conspirators could take possession of them. Several individuals involved in the conspiracy had been previously convicted and sentenced.

The applicants raised multiple grounds for their applications for leave to appeal. A1 argued that the verdict was unsafe and unsatisfactory, that the trial judge erred in excluding certain defence evidence as hearsay, and that the judge erred in admitting evidence of A1’s association with other conspirators post-conspiracy period. A1 also contended that there was unfair prejudice as a result of the failure to order a separate trial and that there was a substantial miscarriage of justice due to the conduct of the prosecutor and the trial judge. A further contention was that there was unfair prejudice from the non-disclosure by the Crown of a particular listening device transcript. A2’s application focused on the trial judge’s failure to direct the jury that the Crown must establish that the applicants knew the shipment contained a border controlled drug rather than some drug or drug-related substance. Both applicants also challenged the severity of their sentences.

The High Court found no substance in any of the proposed grounds for appeal. The Court held that the trial judge’s decisions were correct, and there was no error in the trial or sentencing processes. Consequently, the Court refused leave to appeal for both A1 and A2.

Orders