Zerna v The Queen; Johnson v The Queen

[2011] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0807 

BRIAN DAVID ZERNA

v

THE QUEEN

and

S APCR 2008 0812

LANCE CRAIG JOHNSON

v

THE QUEEN

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JUDGES:	BUCHANAN, REDLICH and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2011
DATE OF JUDGMENT:	8 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 29
JUDGMENT APPEALED FROM:	DPP v Johnson, Zerna & anor [2008] VSC 330, Bell J

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CRIMINAL LAW – Conspiracy to traffic in not less than a commercial quantity of methylamphetamine – Prosecutor misled jury as to reason why defence counsel did not challenge particular evidence – Conviction set aside.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Zerna	Mr P J Hannebery	Patrick W Dwyer & Associates
For the Applicant Johnson	Mr C Metcalfe (solicitor)	Chester Metcalfe & Co
For the Crown	Mr D A Trapnell S C	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA
REDLICH JA
MANDIE JA:

1. The applicants seek to reinstate applications for leave to appeal against their convictions on a count of conspiracy to traffic in not less than a commercial quantity of methylamphetamine and for leave to appeal.  The applicants were found guilty on 20 December 2007 after a trial in the Supreme Court.  They sought leave to appeal against their convictions.  Victoria Legal Aid, however, refused legal aid and the applications lapsed.

1. A co-offender prosecuted his application for leave to appeal against his conviction.  On 26 November 2010, the Court of Appeal granted leave and allowed the appeal and quashed the conviction.  The basis upon which the application succeeded was that the prosecutor misled the jury as to a material matter, namely whether a particular meeting occurred.  That meeting was crucial to the establishment of conspiracy.  The prosecutor suggested to the jury that the fact that defence counsel did not put to a witness that the meeting did not take place supported the conclusion that there was a meeting.  In fact, counsel knew that the Crown had threatened to reveal to the jury that one of the alleged conspirators had stolen chemicals suitable for manufacturing methylamphetamine if the fact of the meeting was challenged. 

1. The same ground is available to the present applicants.  Unsurprisingly, the Crown concedes that the applicants' convictions should be set aside.  We regard that concession as one properly made.

1. Accordingly the Court will order as follows in each case:

1.        The application for leave to appeal against conviction is reinstated.

2.        The application for leave to appeal against conviction is granted.

3.        The appeal is treated as instituted and heard instanter and is allowed.

4.        The conviction sustained by the appellant in the court below is quashed and the sentence passed thereon is set aside.

5.        There shall be a new trial.

6.        Pending the commencement of the new trial, the appellant is remanded in custody to appear before the criminal division of the Supreme Court on 22 February 2011 but without prejudice to any application for bail which may be made hereafter.

7. The Court grants the appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998 and directs that there be included in the certificate any additional costs the appellant will pay or will be ordered to pay as a consequence of the order for a new trial.

(Submissions re setting aside sentence)

8.        In the case of Johnson, the Court will also order that the order made on 26 November 2010 dismissing the application for leave to appeal against sentence is recalled and set aside.

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