SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0016
| YAN VYATER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| 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…
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- AGLC
- Yan Vyater v The Queen [2020] VSCA 32
- Case
- [2020] VSCA 32
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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