Booysen v The Queen [2014] VSCA 150

1 Following a trial in the County Court, the applicant was convicted on one charge of importing a marketable quantity of a border controlled drug (cocaine) contrary to s 307.2(1) of the Commonwealth Criminal Code.[1] He was sentenced to a total effective sentence of eight years' imprisonment, with a non-parole period of five years.

2 In brief, the circumstances of the offending were as follows. The applicant was detained on 4 March 2012 by Australian Customs and Border Protection Service ('Customs') officers after arriving at Melbourne airport from Los Angeles, United States of America. The applicant was wearing a plastic leg brace (a moon boot) and when questioned was unable to provide any details as to the nature of his injury or his treating doctor. The applicant was conveyed to hospital by Customs and Australian Federal Police ('AFP') officers, where the brace was removed. Two packages were discovered within the brace. This procedure was recorded on video by AFP officers. The applicant, and the packages and other property seized, were taken to the AFP office in Melbourne. There, the AFP officers performed a presumptive Narcotic Identification Kit ('NIK') test upon the powder in the packages, which revealed the presence of cocaine. This procedure was recorded on video by an AFP officer, but the video recording was accidentally erased. The fact that the procedure had been recorded only emerged during the course of the trial. The packages were held overnight in a night safe at the AFP office. The next day, the packages were further examined by AFP forensics, who concluded that they contained 777.4 grams of pure cocaine. A marketable quantity of pure cocaine is 250 grams.[2] At trial, the prosecution also relied on evidence obtained from the applicant's computer, in particular Google searches of search terms apparently related to the transportation of drugs in casts and the evasion of security at airports and a Skype conversation with another person apparently discussing the penalties for drug trafficking.

3 On 19 March 2014, Priest JA refused the applicant leave to appeal against his conviction. The applicant has elected, pursuant to s 315 of the Criminal Procedure Act 2009 (Vic), to have his application determined by this Court.

4 For the reasons that follow, we would refuse leave to appeal.

5 The applicant, who was not represented by counsel either in his initial leave application before Priest JA or before this Court, filed a notice of appeal against conviction and an initial written case on 16 September 2013. The respondent filed its written case on 11 December 2013. The applicant filed a revised written case on 30 January 2014. The applicant did not request an oral hearing, and his leave application before Priest JA was determined on the papers.

6 The applicant seeks leave to appeal against his conviction on several grounds. The proposed grounds are set out in the applicant's revised written case as follows:[3]

Ground 1: under [s 568.5] of the Crimes Act 1958; the verdict of the jury is unsafe.

Ground 2: under [s 568.5.1] of the Crimes Act 1958; verdict not supported by evidence.

Ground 3: under [s 568.70] of the Crimes Act 1958; similar fact evidence.

Ground 4: under [s 568.90] of the Crimes Act 1958; duty of prosecution to disclose information.

Ground 5: under [s 568.85.1] of the Crimes Act 1958; duty of prosecutions to call witness.

Ground 6: aggregation of defects.

7 As Priest JA observed,[4] the references in the grounds to s 568 of the Crimes Act 1958 should properly be read as references to s 276 of the Criminal Procedure Act 2009 (Vic).

8 No additional written materials were filed before this Court by either party. In particular, no materials were filed to address Priest JA's reasons for refusing leave.

9 The renewal of the application for leave to appeal is a rehearing. Nonetheless, where the initial refusal of leave is supported by detailed reasons, it will ordinarily be necessary for the applicant on the rehearing to demonstrate by reference to those reasons why there would be error if the initial conclusion, that the ground or grounds were not reasonably arguable, were allowed to stand. That is to say, this Court would need to be persuaded that, contrary to the reasoning of the single judge, one or more grounds are reasonably arguable.

10 Each of the proposed grounds of appeal was examined and evaluated by Priest JA in comprehensive reasons, so as to show that the grounds are without substance. For those reasons and the additional reasons which follow, we agree.

11 Priest JA identified four complaints that emerge from the proposed grounds, which appear to have been drawn without legal assistance, as follows:[5] (i) that the verdict is unsafe and unsatisfactory; (ii) that a substantial miscarriage of justice was occasioned by the failure of the prosecution to disclose evidence; (iii) that a substantial miscarriage of justice occurred by virtue of the prosecution's failure to call a material witness; and (iv) that an aggregate of errors caused a substantial miscarriage of justice. We will briefly address each of the complaints and certain alleged deficiencies in the trial and in Priest JA's reasons referred to by the applicant in his oral submissions.

12 In proposed grounds 1, 2 and 3, the applicant submits that his conviction was unsafe and unsatisfactory on several bases. In particular, he argues that there was insufficient evidence to prove that the packages found in the applicant's leg brace at the hospital contained cocaine and that the applicant possessed the requisite intent to commit the offence. For the reasons outlined by Priest JA,[6] the applicant's submissions on these grounds must fail. In oral submissions, the applicant pointed in particular to alleged uncertainty created by conflicting evidence as to the handling of the moon boot in the hospital, the absence of the moon boot from certain evidence transfer forms and the disappearance of the video of the presumptive NIK test. Notwithstanding these alleged defects, it is clear that there was sufficient evidence as to continuity of the exhibits to permit the jury to reach the verdict that it did. Further, the evidence of the Google searches and the Skype conversation, combined with the circumstances of the offending, was sufficient to found a conclusion that the applicant had the relevant intent.

13 The applicant makes several further submissions that may be considered under this complaint. The applicant submits that the evidence of the Google searches and Skype conversation ought to have been excluded because of their limited evidentiary value and prejudicial effect. In oral submissions, the applicant argued that the prosecution's use of the computer evidence was overly speculative and, the prosecution not having proved beyond reasonable doubt that the applicant had conducted the searches and conversations, it ought to have been excluded as prejudicial. This submission is unsustainable. It was certainly open to the jury to conclude that the applicant had conducted the relevant searches and conversation on his computer secured by a password that contained the initials of his name. The evidence was highly probative. The applicant did not identify any prejudice that would have warranted the exclusion of the evidence. The trial judge did not err in permitting its admission.

14 In oral submissions, the applicant complained that he was not subject to a medical examination when he was taken to the hospital. For the reasons outlined by Priest JA,[7] this proposition, though true, does not render the verdict unsafe.

15 Finally, in his written case and in oral submissions, the applicant argued that the jury's verdict was contrary to the trial judge's charge, which was said to contain a direction that the jury find the applicant not guilty. The extract of the charge pointed to by the applicant was a summary of the defence case, not a finding by the judge or a directed verdict. As such, this submission fails.

16 We would refuse leave to appeal on proposed ground 1, 2 and 3.

17 Under proposed ground 4, the applicant submits that the prosecution's failure to disclose evidence occasioned a substantial miscarriage of justice. This complaint relates to the video taken by an AFP officer of the presumptive NIK test on the powder contained in the packages. Its existence was not disclosed to the defence (or the prosecution) until trial. The prosecution was not aware that the NIK test had been recorded. There was no deliberate non-disclosure. The evidence was that the video of the test was accidentally deleted.

18 For the reasons given by Priest JA,[8] the non-production of the video did not occasion any substantial miscarriage of justice. Defence counsel made no application to discharge the jury at trial. It was not suggested that the conduct of the defence had been prejudiced as a result of the non-disclosure. Instead the defence used the evidence of the video's deletion to gain a tactical advantage during cross-examination. Further, the applicant is bound by counsel's forensic decisions at the time the matter was disclosed.[9]

19 We would refuse leave to appeal on proposed ground 4.

20 In proposed ground 5, the applicant submits that a substantial miscarriage of justice was occasioned by the prosecution's failure to call Federal Agent Dean Santolin. Mr Santolin was one of three AFP officers who attended the hospital where the applicant's leg brace was removed, witnessed the discovery of the packages in the brace and arrested the applicant. Upon the transfer of the property and the applicant to the AFP office, the other two officers left to conduct the NIK test, while Mr Santolin remained with the applicant. Each of the other two officers gave evidence at trial. The applicant submits that Mr Santolin could have shed light on the continuity of evidence and the circumstances surrounding the missing video. As Priest JA observed,[10] where the other AFP officers had given evidence and been cross-examined, this is a speculative submission that does not identify any relevant evidence that Mr Santolin could have provided in addition to that given by others. In particular, Mr Santolin was not present for the recording of the video of the NIK test, and therefore could provide no direct evidence in relation to that issue.

21 The applicant further submitted that the defence had asked for Mr Santolin to be called as a witness. The Crown states that the defence did not request that Mr Santolin be called. There is no indication in the material before this Court that such a request was made. Even if the assertion, now made, were true, we would not consider there to have been a substantial miscarriage of justice. The applicant was unable to demonstrate that Mr Santolin's testimony could have advanced the defence case in any material respect.

22 For these reasons, we would refuse leave to appeal on proposed ground 5.

23 As the applicant is unable to show any error on any of the grounds relied upon this ground cannot be made out.

[1] Schedule to the Criminal Code Act 1995 (Cth).

[2] Criminal Code Regulations 2002 (Cth) sch 3 item 67.

[3] Spelling, syntax and grammar, as well as square brackets, appear as in the revised written case.

[4] Booysen v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 19 March 2014) [6] ('Reasons').

[9] See Haddara v The Queen [2014] VSCA 100; Velkoski v The Queen [2014] VSCA 121.