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Visser, John (Jan) v Director of Public Prosecutions [DPP] (Cth) [2020] VSCA 327

Victorian Court of Appeal
McLeish, Emerton and Osborn JJA

Visser, John (Jan) v Director of Public Prosecutions [DPP] (Cth)

Judgment Date: 
18 December 2020

CRIMINAL LAW - Petition of Mercy - Referral to Court of Appeal - Appellant convicted of conspiracy to possess a commercial quantity of unlawfully imported border controlled drug - Drugs found in tomato tins in shipping container - Appellant's defence that he believed shipping container contained tobacco - Barrister provided bill of lading for shipping container to police while acting for co-conspirator - Bill of lading facilitated identification of shipping container - Whether failure by prosecuting authorities to disclose to appellant that barrister provided bill of lading to police resulted in substantial miscarriage of justice - Whether evidence of bill of lading inadmissible - Whether conduct of barrister and police required permanent stay of proceeding - Whether prosecution malicious -New affidavits from co-conspirators - Whether fresh or new evidence - Appeal dismissed - R v Farquharson (2009) 26 VR 410, R v Forrest (2016) 125 SASR 319, Roberts v The Queen (2020) 60 VR 431, Roberts v The Queen [2020] VSCA 277, R v Mallard (2005) 224 CLR 125, considered; R v Butler [2010] 1 Qd R 325, followed; Criminal Procedure Act 2009 ss 110, 111, 327, 416; Evidence Act 2008 s 138.