SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0154
| JAN (JOHN) VISSER | Applicant |
| v | |
| THE QUEEN | Respondent |
AND
S APCR 2014 0171
| CARMELO FALANGA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| 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 | 1st 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:
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- AGLC
- Jan (John) Visser v The Queen [2015] VSCA 168
- Case
- [2015] VSCA 168
- Decision Date
CaseChat Overview and Summary
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
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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
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