Appeal - Application for leave to appeal against conviction - Conspiracy to possess heroin with intent to sell or supply - Evidence - Intercepted telephone conversations - Admissibility - Whether earlier conversations related to heroin or some other drug - Propensity evidence - Whether probative value outweighed prejudicial effect - Relevance showing context and content of conspiratorial agreement

Criminal law and procedure - Offence - Conspiracy - Whether agreement about heroin or some other drug - Whether agreement that conspirators jointly possess with intent to sell or supply or that only the applicant possess with that intent

Legislation:

Nil

Result:

Application for leave to appeal dismissed

Category: A

Representation:

Counsel:

Applicant: Mr G Trasczyk
Respondent: Mr D Dempster

Solicitors:

Applicant: G A Lacerenza & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Buck v The Queen [1983] WAR 372
Carter v The Queen (1997) 19 WAR 8
Director of Public Prosecutions Reference under s 693A of the Criminal Code; Re Y & Ors (1998) 19 WAR 47
Donaldson v The State of Western Australia (2005) 31 WAR 122
Fursman v The Queen, unreported; CCA SCt of WA; Library No 7414; 5 December 1988
Harriman v The Queen (1989) 167 CLR 590
House v The King (1936) 55 CLR 499
Krakouer v The Queen (1998) 194 CLR 202
Markby v The Queen (1978) 140 CLR 108
O'Brien v The Queen [1963] WAR 70
O'Leary v The King (1946) 73 CLR 566
R v Cobden (1862) 3 F & F 833
R v Garner [1964] NSWR 1131
R v Makin (1893) 14 LR (NSW) 1
R v Marinovich & Ors (1990) 46 A Crim R 282
R v Rhodes [1899] 1 QB 77
R v Trudgeon (1988) 39 A Crim R 252
Silvestro v The Queen, unreported; CCA SCt of WA; Library No 970468; 7 August 1997
The State of Western Australia v Marchesi & Anor (2005) 30 WAR 359
VIM v The State of Western Australia (2005) 31 WAR 1

Case(s) also cited:

R v Atholwood (2000) 110 A Crim R 417
R v Norris (2001) 121 A Crim R 227

ROBERTS-SMITH JA: Following trial before her Honour Judge Kennedy (now Chief Judge Kennedy) and a jury in the District Court of Perth between 12 and 21 August 2002, the applicant was convicted of an offence that between 16 and 27 May 2000 he conspired with Justin Paul Vodanovich, Dimi Pande Delovski and Saso Delovski to possess a quantity of a prohibited drug, namely heroin, with intent to sell or…

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 Musarri v The Queen

Details

AGLC: Musarri v The Queen [2006] WASCA 92
Case: [2006] WASCA 92
Decision Date: 29 MAY 2006

CaseChat Overview and Summary

The appeal involved the applicant, Musarri, who sought leave to appeal against his conviction for conspiracy to possess heroin with intent to sell or supply. The case was heard in the High Court of Australia. The applicant's primary contention was that intercepted telephone conversations were inadmissible as evidence. Specifically, he argued that the conversations were ambiguous, not clearly related to heroin, and had a prejudicial effect that outweighed their probative value.

The court needed to determine whether the intercepted conversations could be used as evidence in the case, focusing on their relevance and context. The central legal issues were whether the intercepted conversations related to heroin or some other drug, and whether the probative value of the evidence outweighed its prejudicial effect. Additionally, the court had to decide whether the conversations demonstrated an agreement among the conspirators to jointly possess the heroin with intent to sell or supply, or if the applicant alone had such an intent.

The court examined the content and context of the intercepted conversations and concluded that they were sufficiently probative to be admitted as evidence. The conversations provided context and content to the conspiratorial agreement, indicating an intent to jointly possess the heroin for sale or supply. The court held that the probative value of the evidence outweighed any prejudicial effect, and the evidence was relevant in showing the nature of the conspiratorial agreement. The appeal was dismissed, and leave to appeal against the conviction was refused.

Orders