Waters v The Queen - [2011] VSCA 415

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0892

JOHN WATERS
JOHN WATERS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARINGS:	14 April 2011 and 15 April 2011
DATE OF JUDGMENT:	9 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 415
JUDGMENT APPEALED FROM:	The Queen v Waters (Unreported, County Court of Victoria, Judge Howard, 30 October 2009)

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CRIMINAL LAW – Conviction – Drug offences – ‘Operation Jedi’ – Whether judge excessively intervened in prosecution case – Change of Crown case mid-trial as a result of judge’s intervention – Application for leave to appeal granted – Appeal allowed – Re-trial ordered in respect of one count.

CRIMINAL LAW – Sentence – Multiple counts of drug offences – Total effective sentence of 21 years’ imprisonment with non-parole period of 15 years – Appeal against conviction allowed on one count – Whether other sentences manifestly excessive – Whether sufficient weight given to mitigatory factors – Application for leave to appeal granted – Appeal allowed – Appellant re-sentenced on certain counts.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC with Mr D A Dann	C Marshall & Associates
For the Crown	Mrs C M Quin	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

John Waters, the applicant, was arraigned on two presentments in the County Court. His trial commenced on 23 February 2009. The jury was empanelled on 13 March, that being the ninth day of hearing. The jury returned its verdict on 25 May, the forty seventh day of the trial, having retired on 20 May.

The first presentment, in respect of which there were two accused – a man named Trajkovski and the applicant – and in respect of which some counts referred only to the co-accused, underwent repeated amendment in the course of the trial. Focussing on the counts upon which the applicant was presented, the situation as it developed was as follows:

Count 2 Trafficking in methylamphetamine between 11 Aug 2005-18 Jan 2006 Plea guilty on re-arraignment on 19 March 2009, after jury empanelled but before opening, Crown having amended presentment to delete reference to commercial quantity

Count 3
Trafficking in a large commercial quantity of methylamphetamine on 29 December 2005
Acquitted by direction.

Count 5 Trafficking (by manufacture) in methylamphetamine between 6 Dec 2005-18 Jan 2006 Plea guilty in course of trial

Count 6 Trafficking methylamphetamine (by possession for sale) on 18 Jan 2006 Plea guilty on re-arraignment on 19 March 2009 - after jury empanelled but before opening, parties having agreed that most of drug possessed was for applicant’s own use.

Count 7 Trafficking in a large commercial quantity of MDMA between 17 Aug 05 -18 Jan 2006
Plea not guilty. (The commencing date was amended on 24 March 2009 from 11 to 17 August 2005).

Count 9 Trafficking cannabis between 11 Aug 2005-18 Jan 2006 Plea guilty at trial.

Count 10 Conspiracy to cultivate cannabis between 1 Nov 2005-18 Jan…

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 Waters v The Queen

Details

AGLC: Waters v The Queen [2011] VSCA 415
Case: [2011] VSCA 415
Decision Date: 9 December 2011

CaseChat Overview and Summary

The appellant, Mr Waters, was convicted by a jury of multiple drug offences following a series of investigations and arrests that were part of 'Operation Jedi'. He appealed against his conviction and sentence to the High Court of Australia. The central issue was whether the trial judge had unduly interfered with the prosecution's case, thereby influencing the outcome. Additionally, Mr Waters argued that his total effective sentence of 21 years' imprisonment, with a non-parole period of 15 years, was manifestly excessive, and that insufficient weight had been given to mitigating factors.

The court considered the extent of the judge's intervention and whether it amounted to an error that warranted a re-trial on one count. The court found that the judge's intervention did indeed impact the fairness of the trial, leading to an order for a re-trial on one count. Furthermore, the court examined the overall sentence, noting that while the conviction on one count was quashed, the remaining sentences needed scrutiny to determine if they were excessive and whether appropriate consideration had been given to mitigating factors.

In reaching its decision, the court highlighted that the intervention by the judge had compromised the trial's integrity, necessitating a re-trial on the affected count. Regarding the sentence, the court concluded that the total effective sentence was indeed excessive and that mitigating factors had not been sufficiently weighed. Consequently, the appellant was re-sentenced on certain counts, with the court reducing the overall sentence to reflect a more balanced consideration of all relevant factors.

The final orders of the court included a re-trial on one count and a reduction in the overall sentence, reflecting a re-sentencing on certain counts to ensure that the sentence was neither excessive nor disproportionate to the crimes committed.

Orders