JUDGES:	MAXWELL P, TATE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2019, 25 February 2020
DATE OF JUDGMENT:	27 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 32
JUDGMENT APPEALED FROM:	[2019] VCC 2192 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Trafficking methylamphetamine, trafficking ephedrine, possession of substances, materials and equipment for the purpose of manufacturing drug of dependence – Circumstantial case – Expert evidence – DNA evidence on glove – Low likelihood ratio – Presentation of DNA evidence – Juror understanding of probabilistic evidence – Whether probative value of evidence outweighed by risk of unfair prejudice – Probative value high – Any risk of prejudice cured by jury directions – No error by trial judge in ruling evidence admissible – R v Doheny and Adams [1997] 1 Cr App R 369, R v Berry (2007) 17 VR 153, [2007] VSCA 202, R v Guingab [2010] VSC 256 considered – Evidence Act 2008 s 137.

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of trafficking ephedrine by preparing it for manufacture of methylamphetamine – Whether charge invalid at law – Extended definition of ‘trafficking’ – ‘Preparation’ form of trafficking confined to preparation of drug for trafficking in that drug – Appeal allowed – Conviction set aside – Substituted conviction for possession of substance for purpose of trafficking – Drugs, Poisons and Controlled Substances Act 1981 ss 70, 71AA, 71AC, 71A.

CRIMINAL LAW – Appeal – Conviction – Evidence – Police interview – Applicant gave address prior to caution – Obligation to administer caution before ‘questioning’ – No error in admitting evidence – Crimes Act 1958 s 464A, Evidence Act 2008 s 139.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC with Mr L Richter	Slades & Parsons Solicitors
For the Respondent	Mr J McWilliams with Mr T Bourbon	Mr J Cain, Solicitor for Public Prosecutions

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MAXWELL P
TATE JA
WEINBERG JA:

Summary

The applicant was convicted by a County Court jury of three drug-related offences, as follows:

·trafficking in methylamphetamine (by manufacture);[1]
·trafficking in a commercial quantity of ephedrine (by preparing it for use in the manufacture of methylamphetamine);[2] and
·being in possession of substances, materials and equipment for the purpose of manufacturing a drug of dependence.[3]

A total effective sentence of 7 years and 6 months’ imprisonment was imposed, with a non-parole period of 4 years.[4]

[1]Drugs, Poisons and Controlled Substances Act 1981 s 71AC (‘DPCS Act’).

[2]Ibid s 71AA.

[3]Ibid s 71A.

[4]DPP v Vyater [2019] VCC 2192 (‘Reasons’).

The applicant now seeks leave to appeal against both conviction and sentence. The principal grounds of appeal against conviction concern the admissibility of certain DNA evidence and the validity in law of the charge of trafficking in ephedrine. For reasons which follow, we would dismiss the challenge to the DNA evidence but uphold…

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 Vyater v The Queen

Details

AGLC: Yan Vyater v The Queen [2020] VSCA 32
Case: [2020] VSCA 32
Decision Date: 27 March 2020

CaseChat Overview and Summary

In the case of Vyater v The Queen, the appellant appealed against his conviction and sentence for various drug-related offences. The trial involved the trafficking of methylamphetamine and ephedrine, possession of substances for the purpose of manufacturing a drug of dependence, and possession of materials and equipment for the same purpose. The decision was made in the Court of Appeal of the Supreme Court of Victoria.

The central legal issues addressed by the court involved the admissibility and probative value of DNA evidence, the interpretation of the statutory definition of ‘trafficking’ in the context of the preparation of a drug, and the procedural correctness of the evidence obtained during a police interview. The court examined whether the evidence presented was admissible under the Evidence Act 2008 and whether there was any procedural error in obtaining the evidence that could have affected the fairness of the trial.

The court found that the trial judge did not err in admitting the DNA evidence, despite its low likelihood ratio, as its probative value was not outweighed by the risk of unfair prejudice, particularly after appropriate jury directions. Regarding the charge of trafficking ephedrine by preparing it for the manufacture of methylamphetamine, the court held that the charge was invalid as the statutory definition of trafficking was limited to trafficking in the drug itself. Consequently, the conviction was set aside, and a substituted conviction for possession of a substance for the purpose of trafficking was entered. The court also ruled that there was no procedural error in the admission of the police interview evidence, as the caution was administered in a timely manner.

The final orders of the court included setting aside the original conviction for trafficking ephedrine by preparing it for the manufacture of methylamphetamine, entering a conviction for possession of a substance for the purpose of trafficking, and affirming the rest of the convictions and sentences.

Orders