Criminal Law and Procedure (S.A.)—Appeal by Crown against sentence—Leave of Full Court required—Sentence increased by Full Court—No reference to question of leave—Competence of appeal—Criminal Law Consolidation Act 1935 (S.A.),s. 352(2).

Decisions

MASON C.J., BRENNAN AND GAUDRON JJ. The applicant, Gianni Malvaso, was the manager of a restaurant in Adelaide. One of his patrons was a drug addict who was involved in illegal drug trading. The patron introduced the applicant to one Moyse, a senior police officer in charge of the drug squad. Moyse proposed to the applicant that cannabis be grown with seeds to be supplied by Moyse, the enterprise to be immune from prosecution not as a result of official sanction but by reason of Moyse's involvement. The applicant enlisted the aid of others to obtain a suitable property and to plant and tend the crop. He was the co-ordinator of the project on behalf of Moyse. On 19 May 1987 the police raided the property where the cannabis was being grown and found 4,224 cannabis plants at various stages of maturity growing in seven glasshouses. It was said that the street value of the crop was about $2,000,000. The applicant and three other persons were charged with certain offences relating to the cultivation and sale of the cannabis.

2. The prosecuting authorities were anxious to obtain evidence to prove the involvement of Moyse in criminal dealings with drugs. They approached the applicant to seek his assistance, which he agreed to furnish on certain terms. He agreed to assist in Moyse's prosecution and to plead guilty to one count of knowingly producing cannabis (an offence created by s.32(1)(a) of the Controlled Substances Act 1984 (S.A.)). The prosecution agreed that counsel for the prosecution would "stand mute" with respect to the suspension of the applicant's sentence. When the applicant pleaded guilty, his counsel, Mr Abbott Q.C., submitted that the applicant's sentence should be suspended on account, inter alia, of the assistance he had provided in the prosecution of Moyse. Counsel for the prosecution, in performance of the agreement, made a statement before the sentencing judge. The statement in its material part was as follows:
"The Crown confirms that Malvaso has been of
assistance to the Crown in the following ways: Firstly, he supplied the tape that has been talked about in connection with the prosecution of Barry Malcolm Moyse of a drug transaction between Moyse and Mr X, who was called at that trial, and which was taped by Mr X. (Secondly) He gave evidence in the trial of Barry Malcolm Moyse as to that tape. Thirdly, he was prepared to give evidence for the Crown in relation to a certain count 16. ... Fourthly, he provided information to investigating officers from the National Crime Authority as to a crop of cannabis at Snake Gully in which, among other people, Barry…

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 Malvaso v the Queen

Details

AGLC: Malvaso v the Queen [1989] HCA 58
Case: [1989] HCA 58
Decision Date: 5 December 1989

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Malvaso against his conviction for murder. The central dispute concerned the admissibility of a confession made by Malvaso to police.

The primary legal issue before the Court was whether the confession was obtained in circumstances that rendered it inadmissible under the common law, specifically in light of the principles established in *R v Swaffield* and *The Queen v Lee*. This involved determining whether the confession was voluntary and whether its admission would be unfair to the appellant.

The Court analysed the circumstances surrounding the confession, including the length of Malvaso's detention, the nature of police questioning, and the appellant's state of intoxication. Applying the principles from *Swaffield* and *Lee*, the majority held that the confession was not voluntary due to Malvaso's extreme intoxication, which prevented him from making a rational choice to confess. Consequently, the Court found that the admission of the confession at trial was unfair and that the conviction could not stand.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders