JUDGES:	REDLICH, WEINBERG and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF JUDGMENT:	13 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 132
JUDGMENT APPEALED FROM:	DPP (Cth) v Singh (Unreported, County Court of Victoria, Judge Howard, 24 July 2015)

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APPLICATION FOR EXTENSION OF TIME TO APPEAL AGAINST CONVICTION AND
ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Conviction – Extension of time application – Delay – Bowling v The Queen [2013] VSCA 87; Kumar v The Queen [2014] VSCA 102; Kentwell v The Queen (2014) 252 CLR 601 applied – Trafficking large commercial quantity of drug of dependence, namely ephedrine – Whether verdict unsafe and unsatisfactory – Circumstantial evidence of intention to possess ephedrine for sale – Kural v The Queen (1987) 162 CLR 502 referred to.

CRIMINAL LAW – Appeal – Sentence – Election to renew application for leave – Applicant’s role in criminal enterprise – Whether sentence of 15 years’ imprisonment with non-parole period of 10 years for trafficking 27 times large commercial quantity of ephedrine manifestly excessive – Leave refused.

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APPEARANCES:	Counsel	Solicitors
No oral hearing. By consent the matter was decided having regard to the written materials filed by the parties.

REDLICH JA
WEINBERG JA
McLEISH JA:

The applicant, a Canadian national, stood trial (along with two co-accused, Amneet Singh and Arvinder Singh) in the County Court and was found guilty of trafficking a large commercial quantity of a drug of dependence, namely ephedrine, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’). He was sentenced on 24 July 2015 to 15 years’ imprisonment with a non-parole period of 10 years.

On 28 September 2015 the applicant sought leave to appeal against sentence but did not require an oral hearing. On 17 February 2016 leave was refused by Osborn JA.[1] According to the applicant’s affidavit in support of his application for an extension of time in which to appeal against conviction, his solicitors, Victoria Legal Aid (‘VLA’), refused to provide further funding. The applicant, then self‑represented, filed an election to renew his application for leave to appeal against sentence before two Judges of Appeal, again on the papers.
[1]Mueller v The Queen (Unreported, Victorian Court of Appeal, Osborn JA, 17 February 2016) (‘Mueller’).
Extension of time within which to apply for leave to appeal against conviction
Prior to the hearing of his further application for leave to appeal against sentence, the applicant indicated to the Court of Appeal registry that he wished to also appeal against his conviction. Two hearing dates for his sentence appeal, in April and August 2016, were vacated and an application for leave to appeal…

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 Wilhelm Bruno Mueller v The Queen

Details

AGLC: Wilhelm Bruno Mueller v The Queen [2017] VSCA 132
Case: [2017] VSCA 132
Decision Date: 13 June 2017

CaseChat Overview and Summary

The respondent, Wilhelm Bruno Mueller, appealed against his conviction and sentence for trafficking in a large commercial quantity of a drug of dependence, namely ephedrine. The appeal was heard in the Victorian Court of Appeal. The primary issue before the court was whether the trial judge erred in law by refusing to extend the time for the respondent to apply for leave to appeal against his conviction and sentence. The respondent argued that the delay in making the application was due to his ill health and the time it took to arrange legal representation.

The court considered the principles established in Bowling v The Queen [2013] VSCA 87, Kumar v The Queen [2014] VSCA 102, and Kentwell v The Queen (2014) 252 CLR 601, which outlined the factors to be considered in determining whether an extension of time should be granted. The court noted that the respondent had failed to establish any exceptional circumstances that warranted an extension of time. The court also considered the evidence presented at the trial, which established that the respondent was knowingly involved in the trafficking of ephedrine and had acted with others in a conspiracy to traffic the drug.

The court held that the trial judge was correct in refusing to extend the time for the respondent to apply for leave to appeal. The court found that the respondent had failed to establish any exceptional circumstances that warranted an extension of time. The court also found that the evidence presented at the trial established that the respondent was knowingly involved in the trafficking of ephedrine and had acted with others in a conspiracy to traffic the drug. The court held that the verdict was safe and satisfactory, and that the sentence imposed was not manifestly excessive.

The appeal was dismissed, and the conviction and sentence were upheld. The court refused the respondent’s application for leave to appeal against the decision.

Orders