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D'Agostino v Regina

D'Agostino v Regina

Case [2019] NSWCCA 259 31 October 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: D’Agostino v Regina [2019] NSWCCA 259
Hearing dates: 17 May 2019
Date of orders: 31 October 2019
Decision date: 31 October 2019
Before: Bathurst CJ at [1]
Hamill J at [2]
N Adams J at [10]
Decision:
(1) Refuse leave to appeal against conviction on ground 1.
(2) Grant leave to appeal against conviction on grounds 2 and 3.
(3) Dismiss the appeal.

Catchwords: CRIMINAL LAW — appeals — conviction appeal — three drug offences and two drug-related offences — whether misdirection on circumstantial evidence — applicant’s knowledge drugs and money in roof cavity — whether Shepherd direction required when not a “links in a chain” case — whether jury’s verdict was unreasonable
Legislation Cited: Crimes Act 1900 (NSW), s 193B
Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Criminal Appeal Rules 1952 (NSW), r 4
Drug Misuse and Trafficking Act 1985, s 25(1), s 25(2)
Cases Cited: Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
ARS v R [2011] NSWCCA 266
Burrell v Regina [2009] NSWCCA 163
Burrell v Regina [2009] NSWCCA 163
Carlton v The Queen [2008] NSWCCA 244
Davidson v R [2009] NSWCCA 150
Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
Greenhalgh v R [2017] NSWCCA 94
Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Minniti v R [2006] NSWCCA 30
Picken v R [2007] NSWCCA 319
Quach v Regina (2002) 137 A Crim R 345
Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95
R v Carey (1990) 20 NSWLR 292
R v Davidson (2009) 75 NSWLR 150
R v Hillier (2007) 228 CLR 618; [2007] HCA 13
R v Keenan [2009] HCA 1; (2009) 83 ALJR 243
R v Merritt [1999] NSWCCA 29
Shepherd v R (1990) 170 CLR 573
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846
Yacoub v R [2008] NSWCCA 164
Category: Principal judgment
Parties: Joseph Rocky D’Agostino (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms M Gerace (Applicant)
Ms K Jeffreys (Respondent)
Solicitors:
Mitchell & Co. Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/249268
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

17 June 2015

Before:

Woodburne SC DCJ

File Number(s):

2011/249268

Judgment

BATHURST CJ: I agree with the orders proposed by N Adams J and with her Honour’s reasons.
HAMILL J: I have read the judgment of N Adams J in draft.…

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 D'Agostino v Regina

Details

AGLC: D'Agostino v Regina [2019] NSWCCA 259
Case: [2019] NSWCCA 259
Decision Date: 31 October 2019

CaseChat Overview and Summary

The case of D'Agostino v Regina involves an appeal by the applicant against his conviction for three drug offences and two drug-related offences. The applicant was found guilty by a jury of possessing a commercial quantity of a prohibited drug, possessing a large quantity of a prohibited drug, possessing a precursor to a prohibited drug, possessing a large quantity of a precursor to a prohibited drug, and possessing money believed to be the proceeds of crime. The appeal concerns whether the trial judge misdirected the jury on the topic of circumstantial evidence, specifically regarding the applicant's knowledge of drugs and money in a roof cavity. Additionally, the appeal questions whether a Shepherd direction was necessary when the case did not fit the "links in a chain" scenario and whether the jury's verdict was unreasonable.

The court had to determine whether the trial judge erred in not giving a Shepherd direction to the jury, which is a direction to consider whether the evidence presented formed a chain of inferences that were inconsistent with the applicant's innocence. The applicant argued that the case did not fit the "links in a chain" scenario and therefore, a Shepherd direction was necessary. The court also considered whether the trial judge misdirected the jury on the topic of circumstantial evidence, specifically regarding the applicant's knowledge of drugs and money in a roof cavity. The applicant contended that the trial judge did not adequately explain to the jury how to approach the issue of circumstantial evidence and the applicant's knowledge of the drugs and money in the roof cavity.

The court found that the trial judge did not err in not giving a Shepherd direction to the jury as the evidence did not form an inconsistent chain of inferences that were incompatible with the applicant's innocence. The court also found that the trial judge did not misdirect the jury on the topic of circumstantial evidence, specifically regarding the applicant's knowledge of drugs and money in a roof cavity. The court held that the trial judge adequately explained to the jury how to approach the issue of circumstantial evidence and the applicant's knowledge of the drugs and money in the roof cavity. The court concluded that the jury's verdict was not unreasonable and affirmed the applicant's conviction.

The court dismissed the appeal and affirmed the applicant's conviction for all five offences. The court held that the trial judge did not err in not giving a Shepherd direction to the jury and that the trial judge adequately explained to the jury how to approach the issue of circumstantial evidence. The court found that the jury's verdict was not unreasonable and therefore, the applicant's appeal was dismissed.

Orders