Magro v The King

Case [2022] SASCA 100

Supreme Court of South Australia

(Court of Appeal: Criminal)

MAGRO v THE KING

[2022] SASCA 100

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)

29 September 2022

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES

Following a trial by judge alone, the appellant was convicted of the following offences: trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Count 1); aggravated possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA) (‘Firearms Act’) (Count 2); possessing an unregistered firearm, contrary to s 27(1) of the Firearms Act (Count 3); and money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) (Count 4).

The appellant appeals against his convictions.

In relation to Count 1, the appellant complains that the trial Judge erred in his directions as to his finding that the appellant had sold methylamphetamine in the past. Aligned with this complaint, the appellant also contends that the evidence of past sales or ‘tick lists’ was inadmissible under s 34P(2) of the Evidence Act 1929 (SA) (‘Evidence Act’) (Ground 3).

In relation to Counts 2 and 3, the appellant complains that the trial Judge erred in his directions as to the permissible and impermissible use of prior conversations about a firearm that were not referable to the firearm the subject of the charges (the intercept evidence). The appellant also contends the trial Judge erroneously found that the intercept evidence was admissible under both limbs of s 34P(2) of the Evidence Act (Ground 1).

The appellant further complains the verdict on each count is unreasonable (Grounds 5, 6 and 7).

Held, per the Court, granting permission to appeal on Grounds 5 and 6 but dismissing the appeal:

1.As to Count 1 (and Ground 3), the impugned evidence satisfied both limbs of s 34P(2) of the Evidence Act. The trial Judge’s directions correctly identified the permissible and impermissible uses of the evidence. The discreditable conduct evidence was not used for an impermissible purpose.

2.As to Counts 2 and 3 (and Ground 1), the intercept evidence was admissible under both limbs of s 34P(2) of the Evidence Act. There was no error by the trial Judge in relying on the…

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Magro v The King [2022] SASCA 100
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[2022] SASCA 100
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CaseChat Overview and Summary

The case of *Magro v The King* concerned an appeal against a conviction for drug trafficking. The appellant, Mr Magro, was the sole resident of a property where police found him with several other individuals. Upon police entry, some of these individuals were observed discarding items, and drugs were subsequently found in the vicinity of the property and within a vehicle present. The prosecution alleged that shortly before police arrival, the appellant and others were engaged in a drug transaction.

The legal issues before the Court of Appeal included the admissibility and relevance of propensity evidence, particularly concerning the prior convictions of individuals found at the premises, and whether the verdict was unreasonable or unsupported by the evidence. The appellant also raised grounds concerning misdirection and non-direction by the trial judge.

The Court of Appeal conducted an independent review of the evidence. It considered the circumstances of the police attendance at the premises, the presence of the appellant and other individuals, and the discovery of drugs. The Court determined that it was open to the trial judge to find the appellant guilty of Count 4, which related to drug trafficking. The Court dismissed the ground of appeal concerning this conviction.

Permission to appeal was granted on specific grounds (Grounds 5 and 6), but ultimately, the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Permission to appeal was granted on Ground 7. The question of permission to appeal with respect to Grounds 5 and 6 were referred to this Court for consideration. Grounds 1 and 3 raise questions of law. Background On 20 September 2018, at about 2:20pm, police attended a property in Modbury Heights owned by the appellant (the ‘Premises’). The Premises constituted a house, a carport, and a front and backyard and was fenced on all sides. When police arrived, the front gate was locked, and they forced entry to the Premises. There was an intercom at the front gate and a security camera which showed the area outside of the gate. That security camera was capable of transmitting both notifications and images to the appellant’s mobile telephone and images to a television in the lounge room of the house. At the time police attended the Premises, the television was showing CCTV images from at least one security camera. At the Premises, police located five persons: the appellant, Mr Joseph Daly, Mr Daniel Dobrucki, Mr Dominic Wojniak, and Ms Tracey Halling. The appellant was the only person who lived at the Premises. A police officer (PH1) observed the appellant standing about 1 m away from the kitchen sink. The tap was running. He observed a crystal-like substance in the bottom of the sink. Another officer observed the appellant standing ‘in the kitchen area’ and hot water coming out of the tap very fast and splashing off the sink. A third police officer (LS) said he observed the appellant sitting on a lounge chair after other officers had entered the Premises, which was about 4 m from the kitchen sink. On the prosecution case, shortly before the police entered the front door of the Premises, the appellant and others were involved in a drug transaction. After the arrival of police, Mr Daly, Mr Dobrucki, and Mr Wojniak exited the house from the kitchen or dining area towards the rear yard, where they were located by police. While Mr Wojniak was in the front yard, police saw a plastic resealable bag on the ground next to him containing a white crystalline substance. This was not the subject of forensic analysis. Mr Wojniak had recent prior convictions relating to drugs and trafficking drugs. Outside of the house was a Holden sedan. Within the console of the vehicle was a wallet containing identification in the name of Mr Dobrucki. Also within the console were two resealable bags containing cannabis, two pipes suitable for smoking methylamphetamine, and a small amount of liquid which might have been gamma hydroxybutyrate (‘GHB’). Mr Daly has prior convictions for drug and firearm offences. In particular, in 2015, Mr Daly was convicted of two offences of possessing a firearm without a licence, two offences of possessing an unregistered firearm, two offences of failing to properly secure a firearm, possession of a prohibited weapon, and other offences. At trial, the appellant asserted that as of 20 September 2018, other persons present at the Premises had an interest in methylamphetamine and Mr Daly also had an interest in and propensity for possessing unlicenced firearms.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Upon an independent review of the evidence, it was open to the trial Judge to find the appellant guilty of Count 4. We dismiss this ground of appeal. Conclusion We grant permission to appeal on Grounds 5 and 6 but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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