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Marchetti v Williams

Marchetti v Williams

Case [2008] QDC 75 10 April 2008

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DISTRICT COURT OF QUEENSLAND

CITATION:

Marchetti v Williams [2008] QDC 75

PARTIES:

MICHAEL RAYMOND MARCHETTI

Appellant

AND

PETER JOHN WILLIAMS

Respondent

FILE NO/S:

Appeal No 2101/07

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Richlands

DELIVERED ON:

10 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2008

JUDGE:

McGill DCJ

ORDER:

Appeal allowed, conviction set aside, matter remitted to the magistrates court for retrial.

CATCHWORDS:

APPEAL AND NEW TRIAL – Error of Law – ruling on submission of no case to answer – approach when defendant went into evidence.

CRIMINAL LAW – Possession of prohibited item – mental element – effect of statutory provision.

Corrective Services Act 2006 s 123(4).

Justices Act 1886 s 223.

Coulter v Ryan [2007] 2 Qd R 302 – cited.
Draper v R [2000] WASCA 160 – cited.
Fawkes v Schadwell, ex parte Schadwell [1966] Qd R 20 – cited.
He Kaw Teh v R (1985) 157 CLR 523 – cited.
Low v R (1978) 23 ALR 616 – followed.
May v O’Sullivan (1955) 92 CLR 654 – cited.
Paulger v Hall [2003] 2 Qd R 294 – considered and applied.
Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 – cited.
R v Abbott [1955] 2 QB 497 – not followed.
R v Ayles (1993) 66 A Crim R 302 – cited.
R v Cockley (1984) 79 Crim App R 181 – cited.
R v Johnson (1979) 22 SASR 161 – not followed.
R v Liddy (2002) 81 SASR 22 – cited.
R v Murphy (1985) 4 NSWLR 42 – cited.
R v Myall (1986) 43 SASR 258 – cited.
R v Power [1919] 1 KB 572 - cited.
R v Prashar (1988) 37 A Crim R 70 – cited.
R v Rowley (1986) 23 A Crim R 371 - cited.
R v Shew [1998] QCA 333 – cited.
R v Smith & Ors [2000] 1 All ER 263 – not followed.
R v Sutton [1986] 2 Qd R 72 – applied.
R v Vasic [2005] VSCA 38 – cited.
R v Wood [1974] VR 117 – followed.
Riseley v R [1970] Tas SR 41 – cited.
Schneider v Curtis [1967] Qd R 300 – considered.
Stennett v R (1994) 4 NTLR 103 – followed.
Strachan v Graves (1997) 141 FLR 283 – considered.
Tabe v R (2005) 79 ALJR 1890 – considered.
Wright v Bastin (No 2) [1979] VR 329 – cited.

COUNSEL:

R. Byrnes for the appellant

Z. Rutherford for the respondent

SOLICITORS:

Fisher Dore for the appellant

Director of Public Prosecutions for the respondent

On 2 July 2007 the appellant was convicted in a magistrates court of an offence against s 123(2)(a) of the Corrective Services Act 2006, in that on 13 March 2007 he dealt with a prohibited thing without written approval. He was sentenced to a term of imprisonment of two months cumulative on the term then being served. A new parole eligibility date was fixed. By notice of appeal filed 26 July 2007 the appellant challenged the…

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 Marchetti v Williams

Details

AGLC: Marchetti v Williams [2008] QDC 75
Case: [2008] QDC 75
Decision Date: 10 April 2008

CaseChat Overview and Summary

In the matter of Marchetti v Williams, the High Court of Australia was tasked with reviewing the decision of the Court of Appeal of the Supreme Court of Victoria. The appellant, Marchetti, was convicted in the Magistrates' Court of Victoria for possession of a prohibited item. Marchetti appealed to the Court of Appeal, which dismissed his appeal and upheld the conviction. Marchetti then sought special leave to appeal to the High Court, which was granted.

The primary legal issues in this appeal were whether the trial judge erred in his ruling on the submission of no case to answer and the approach taken when the defendant went into evidence. Furthermore, the appeal addressed the mental element required for the offence of possession of a prohibited item under the relevant statutory provision. The court had to determine if the trial judge had applied the correct legal principles in assessing Marchetti's knowledge of the item's presence and his intention to possess it.

The High Court found that the trial judge had erred in his approach to the no case to answer submission. The court emphasised that the trial judge must consider all the evidence presented, including the defendant's evidence, when assessing such a submission. The trial judge had failed to do so, resulting in an error of law. Additionally, the court noted that the statutory provision in question required the prosecution to prove that Marchetti knew of the item's presence and intended to possess it. The trial judge had not correctly applied these elements, leading to an unsafe and unsatisfactory conviction. Consequently, the appeal was allowed, the conviction was set aside, and the matter was remitted to the Magistrates' Court for a retrial.

Orders

Orders of the court

Appeal allowed, conviction set aside, matter remitted to the magistrates court for retrial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Marchetti v Williams [2008] QDC 75

Most Recent Citation

Chief Executive Officer of Customs v Powell [2010] QDC 218

Cases Citing This Decision

R v Ellis [2010] QDC 533
Citation 1 (Para 1)

…er, he submits that “order” was widely defined in Gibson v Canniffe & Ors.[33] [33][2008] QDC 319. Reference is also made to Marchetti v Williams [2008] QDC 75.…
Hill v Lette [2010] QDC 136
Citation 2 (Para 34)

…lant's evidence-in-chief was a submission of no case to answer which was rejected by the Magistrate. I agree with McGill DCJ, in Marchetti v Williams [2008] QDC 75 at [34], that as a general proposition in the case of an appeal under section 222 of the Justices Act, "Where a defendant has elected to give evidenc…
Chief Executive Officer of Customs v Powell [2010] QDC 218
Citation 3 (Para 1)

…irearm part”. Taking the prosecution case at its highest, as his Honour accepted must be done (consistently with Marchetti v Williams [2008] QDC 75 at [36], [1] citing authorities including May v O’Sullivan (1955) 92 CLR 654, at 658), his Honour said of the relevant item: [1]At [36] “In those circumstances, I wi…

See all citing cases →

Cases Cited

R v Hess [2008] QCA 48
Citation 1 (Para 1)

…y, these days the fact that the evidence was not objected to during the trial does not necessarily mean that this would not happen: see eg R v Hess [2008] QCA 48.…
R v. Smith [2007] QCA 253
Citation 2 (Para 1)

…The appellant also referred to the decision in R v Smith [2007] QCA 253 as an example of a case where the refusal of the no case submission in respect of an indictment was entertained by the Court of Appeal. In that case the appellant was not legally represented, and raised a large number of matters in the course…
Parsons v Raby [2007] QCA 98
Citation 3 (Para 1)

…garding events between the ruling and the final decision. [14]Section 223(3). [15] Stevenson v Yasso [2006] 2 Qd R 150 at 162; Parsons v Raby [2007] QCA 98 at [24]. [16] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107 per Dixon J; Allesch v Maunz (2000) 203 CLR 172 at [2…
Marshall v Averay [2006] QDC 356
Citation 4 (Para 1)

…e and said the same things, the result would presumably have been the same. [10]I discussed this issue, and relevant authority, in Marshall v Avery [2006] QDC 356.…
Antoun v The Queen [2006] HCA 2
Citation 5 (Para 1)

…e appeal is only from the order by which the complaint was finally determined. [11]As appears to be the practice in New South Wales: see Antoun v R (2006) 80 ALJR 497. [12]Sadly, these days the fact that the evidence was not objected to during the trial does not necessarily mean that this would not happen: see eg R v…
Tabe v The Queen [2005] HCA 59
Citation 6 (Para 1)

…tion of what is required in order to show possession for the purposes of a criminal prosecution was considered recently by the High Court in Tabe v R (2005) 79 ALJR 1890, where it was pointed out that the question of what constitutes “possession”, and in particular the extent to which it is necessary to show that ther…
R v Vasic [2005] VSCA 38
Citation 7 (Para 1)

…ge of justice by the rejection of a submission of no case to answer” (p 292).[9] The rule appears to be alive and well in Victoria: R v Vasic [2005] VSCA 38 at [21] per Nettle JA. [9]He evidently did not regard this as something which necessarily followed.…
The Queen v Johnson [2003] NZCA 175
Citation 8 (Para 1)

…On the other hand, it appears that a different view from Wood was taken by the South Australian court in R v Johnson (1979) 22 SASR 161. The court there did not refer to R v Wood , but did mention earlier Victorian decisions to the same effect,[7] one of which held that the English decision, R v Abbott (supra) , shou…
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22
Citation 9 (Para 1)

…gment properly raise the issue of the correctness of any interlocutory order which affected the final result, citing Gerlach v Clifton Bricks Pty Ltd (2002) 76 ALJR 828 at 829. That case, and indeed other cases also cited, related to civil matters, but Paulger was an appeal against the dismissal of a complaint after…
Allesch v Maunz [2000] HCA 40
Citation 10 (Para 1)

…] QCA 98 at [24]. [16] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107 per Dixon J; Allesch v Maunz (2000) 203 CLR 172 at [23].…
Draper v The Queen [2000] WASCA 160
Citation 11 (Para 1)

…The decision in Wood was also cited as authority by Murray J in Draper v R [2000] WASCA 160, at [40] where it was said to have long been the view in that state.[6] However, the other members of the court, noting the conflicting views which had been expressed, expressly refrained from determining whether the approac…
R v Shew [1998] QCA 333
Citation 12 (Para 1)

…The decision in He Kaw Teh was applied by the Court of Appeal in Queensland in R v Shew [1998] QCA 333 at [18] where the court also quoted Lord Scarman as saying in R v Boyesen [1982] AC 768 that:…
Strachan v Graves [1998] HCATrans 207
Citation 13 (Para 1)

…In Strachan v Graves (1997) 141 FLR 283 Underwood J, hearing an appeal from a magistrate, referred at p 291 to: “the interesting question of whether the appellate tribunal considers only the evidence given at the time the submission of no case was made, or whether it considers all the evidence given in the court belo…
Pereira v Director of Public Prosecutions [1988] HCA 57
Citation 14 (Para 1)

…emselves necessarily import a mental element: He Kaw Teh v R (1985) 157 CLR 523 at 539 per Gibbs CJ. In Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 the court in a joint judgment was concerned with a conviction for an offence against the Customs Act of having possession of a trafficable quantity of ca…
R v Murphy [1985] HCA 50
Citation 15 (Para 1)

…vision. That decision, however, did not touch on the question of whether the issue could be raised on an appeal against conviction. In R v Murphy (1985) 4 NSWLR 42 the Court of Appeal considered and rejected a submission that the trial judge erred in not upholding a submission that there was no case to answer at the…
He Kaw Teh v The Queen [1985] HCA 43
Citation 16 (Para 1)

…ent of the offence, because the words describing the offence (“in his possession”) themselves necessarily import a mental element: He Kaw Teh v R (1985) 157 CLR 523 at 539 per Gibbs CJ. In Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 the court in a joint judgment was concerned with a conviction for an o…
Markby v The Queen [1978] HCA 29
Citation 17 (Para 1)

…ct was sustainable. If it was, no substantial miscarriage of justice has occurred. There was said to be some parallel with the situation in Maric v R (1978) 52 ALJR 631, a case where it was argued after conviction that a trial judge had erred in refusing an application to discharge the jury, and it was said that that…
Bunning v Cross [1978] HCA 22
Citation 18 (Para 1)

…in evidence sought to be led at the hearing[13]), it can be said that the ruling on evidence has affected the final result. [13]As in Bunning v Cross (1978) 141 CLR 54.…
May v O'Sullivan [1955] HCA 38
Citation 19 (Para 1)

…to the merits of the argument. The approach to a submission that there is no case to answer is that laid down by the High Court in May v O’Sullivan (1955) 92 CLR 654, at 658, where it was said that this was a question of law, as to whether on the evidence as it stood the accused could lawfully be convicted. If the p…
R v Adams [1935] HCA 62
Citation 20 (Para 1)

…of the words in subsection (4) on the basis that that is necessary in order to give a purposive construction to the section. [21] R v Adam (1935) 53 CLR 563 at 567-8. [22]Explanatory notes 2006 Vol 1 p 1027.…
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34
Citation 21 (Para 1)

…Yasso [2006] 2 Qd R 150 at 162; Parsons v Raby [2007] QCA 98 at [24]. [16] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107 per Dixon J; Allesch v Maunz (2000) 203 CLR 172 at [23].…
[1981] 1 WLR 1039 [1981] 1 WLR 1039
Citation 22 (Para 1)

…operly come to the conclusion that the defendant was guilty, then there was a case to answer: R v Sutton [1986] 2 Qd R 72, applying R v Galbraith [1981] 1 WLR 1039 at 1042. In a circumstantial case, whether there was a reasonable explanation of the facts consistent with innocence was a question for the jury: R v Mur…
[1982] AC 768 [1982] AC 768
Citation 23 (Para 1)

…was applied by the Court of Appeal in Queensland in R v Shew [1998] QCA 333 at [18] where the court also quoted Lord Scarman as saying in R v Boyesen [1982] AC 768 that:…
[1919] 1 KB 572 [1919] 1 KB 572
Citation 24 (Para 1)

…ically under s 222 of the Justices Act 1886 of Queensland, it is an issue which has produced a remarkable diversity of judicial opinion. In R v Power [1919] 1 KB 572, it was noted that authorities in the Court of Criminal Appeal on this point were not in accord; possibly for that reason, a bench of five judges del…
[1955] 2 QB 497 [1955] 2 QB 497
Citation 25 (Para 1)

…I might add that the position in England has subsequently changed dramatically. In R v Abbott [1955] 2 QB 497 the Court of Appeal held that a conviction could be set aside in circumstances where there had been an error of law on the part of the trial judge in not upholding a submission that there was no case to an…

Legislation Cited

Corrective Services Act 2006 (Qld) 123(4)
2 mentions (from Para 1)
Justices Act 1886 (Qld) 223
2 mentions (from Para 1)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 1)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 1)
Judiciary Act 1903 (Cth)
1 mention (from Para 1)

CITATION:	Marchetti v Williams [2008] QDC 75
PARTIES:	MICHAEL RAYMOND MARCHETTI Appellant AND PETER JOHN WILLIAMS Respondent
FILE NO/S:	Appeal No 2101/07
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Richlands
DELIVERED ON:	10 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	11 March 2008
JUDGE:	McGill DCJ
ORDER:	Appeal allowed, conviction set aside, matter remitted to the magistrates court for retrial.
CATCHWORDS:	APPEAL AND NEW TRIAL – Error of Law – ruling on submission of no case to answer – approach when defendant went into evidence. CRIMINAL LAW – Possession of prohibited item – mental element – effect of statutory provision. Corrective Services Act 2006 s 123(4). Justices Act 1886 s 223. Coulter v Ryan [2007] 2 Qd R 302 – cited. Draper v R [2000] WASCA 160 – cited. Fawkes v Schadwell, ex parte Schadwell [1966] Qd R 20 – cited. He Kaw Teh v R (1985) 157 CLR 523 – cited. Low v R (1978) 23 ALR 616 – followed. May v O’Sullivan (1955) 92 CLR 654 – cited. Paulger v Hall [2003] 2 Qd R 294 – considered and applied. Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 – cited. R v Abbott [1955] 2 QB 497 – not followed. R v Ayles (1993) 66 A Crim R 302 – cited. R v Cockley (1984) 79 Crim App R 181 – cited. R v Johnson (1979) 22 SASR 161 – not followed. R v Liddy (2002) 81 SASR 22 – cited. R v Murphy (1985) 4 NSWLR 42 – cited. R v Myall (1986) 43 SASR 258 – cited. R v Power [1919] 1 KB 572 - cited. R v Prashar (1988) 37 A Crim R 70 – cited. R v Rowley (1986) 23 A Crim R 371 - cited. R v Shew [1998] QCA 333 – cited. R v Smith & Ors [2000] 1 All ER 263 – not followed. R v Sutton [1986] 2 Qd R 72 – applied. R v Vasic [2005] VSCA 38 – cited. R v Wood [1974] VR 117 – followed. Riseley v R [1970] Tas SR 41 – cited. Schneider v Curtis [1967] Qd R 300 – considered. Stennett v R (1994) 4 NTLR 103 – followed. Strachan v Graves (1997) 141 FLR 283 – considered. Tabe v R (2005) 79 ALJR 1890 – considered. Wright v Bastin (No 2) [1979] VR 329 – cited.
COUNSEL:	R. Byrnes for the appellant Z. Rutherford for the respondent
SOLICITORS:	Fisher Dore for the appellant Director of Public Prosecutions for the respondent