Mannella v R

[2010] VSCA 357

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0792A

GUISEPPE MANNELLA	Applicant
v.
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, BUCHANAN AND MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2010
DATE OF JUDGMENT:	22 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 357
JUDGMENT APPEALED FROM:	R v Guiseppe Mannella (Unreported, County Court of Victoria, Judge Gaynor, 7 June 2007).

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EVIDENCE – Circumstantial evidence – applicant charged with attempting to possess commercial quantity of drugs – prosecution case principally dependent on audio and video surveillance of applicant and co-accused – manner in which inferences could be drawn from circumstantial evidence to meet standard of proof – whether trial judge erred in directing jury that applicant’s alternative explanation of circumstantial evidence had to be of ‘equal strength’ to displace inference of guilt – whether terms of subsequent redirection sufficient to overcome effect of original misdirection – whether trial judge adequately explained applicant’s direct evidence case to jury – redirection insufficient to address risk that jury misunderstood standard of proof – trial judge failed to properly characterise applicant’s defence case – appeal allowed – retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M. Croucher	C. D. Traill Lawyers
For the Crown	Mr D. J. Lane	Commonwealth Director of Public Prosecutions

WARREN CJ:

1. The applicant seeks leave to appeal his conviction and sentence on one count of attempting to possess a commercial quantity of drugs.

1. The facts out which his conviction arises should first be summarised.

The facts out of which the present appeal arises 

1. On 6 April 2005, a container ship named The Scotia arrived in Sydney. Aboard that ship was a container of eight barbeques. These barbeques had commenced their voyage to Australia from Rotterdam (Netherlands). Hidden within plastic tubes inside them was 91.8 kg (393,341 tablets) of ecstasy tablets containing 43.9 kg of pure ecstasy. On 8 April 2005, the container was selected for random examination by Customs Officers who uncovered the secreted narcotics. They replaced the tablets with an inert substance, two electronic listening devices and a tracking device, before the barbeques were reconstructed and the container resealed.

1. The container itself was consigned to a fictitious person, Tom Johnson. The Bill of Lading contained a false contact address and phone number for Mr Johnson. The freight forwarding agent who took receipt of the container in Sydney made extensive efforts to contact this consignee on the false details provided to him, but was unsuccessful in doing so. However, on 12 April 2005, he was personally contacted by the applicant who told him that he had received instructions from Mr Johnson to arrange transportation of the goods to Melbourne. The applicant was the sole director of Logistic Solutions, a freight forwarding and customs broking business which operated out of Tullamarine.

1. On 13 April 2005, the applicant departed Australia for Hong Kong. At this time, a warrant was obtained by Federal Police authorising the interception of conversations occurring on his mobile phone and various calls…