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Pantorno v The Queen

Pantorno v The Queen

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Case Copied 7 March 1989 33 min read

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HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.

PANTORNO v. THE QUEEN

(1989) 166 CLR 466

7 March 1989

Criminal Law—High Court

Criminal Law—Sentencing—Possession of drugs—Penalty higher where possession for purpose of trafficking—Plea of guilty—Proceedings conducted at trial on basis of possession not for trafficking—Sentence on basis of possession for trafficking—No opportunity for accused to negate that purpose—Drugs, Poisons and Controlled Substances Act 1981 (Vict.), s. 73(1)(b), (c). High Court—Appeal—Ground raised for first time before High Court.

Decisions

MASON C.J. AND BRENNAN J. The applicant for special leave to appeal was convicted before the County Court of Victoria on his plea of guilty to a charge that, on 28 June 1984, "without being authorised by or licensed under the Drugs Poisons and Controlled Substances Act 1981 or the regulations to do so had in his possession a drug of dependence namely diacetylmorphine (heroin)." The applicant then admitted a number of previous convictions for offences which were not drug offences. The prosecutor did not recite the facts of the drug offence in open court but, we were informed, the facts were contained in the depositions taken on committal and the judge had a copy of the depositions. The propriety of this procedure does not arise for consideration but it is curious that it was followed in this case. The applicant had been committed for trial or sentence on other charges but he had been discharged on the drug offence to which he ultimately pleaded guilty. Counsel for the applicant informed the judge that the police had found a small amount of heroin in the applicant's car when they were searching it for evidence in connection with other offences. He said:

" The amount of heroin that was found was a very small amount. It was 1.3 grams of white powder, and Your Honour will no doubt know that at the committal proceedings, when the gentleman who analysed the powder was cross-examined, he indicated it was about 10 to 15 per cent pure, which would make it a 10.123 gram (sic) of pure heroin, so it is on the bottom scale, and I think he indicated it was a very small amount of heroin. I am instructed further, Your Honour, that at that stage he was an intravenous drug user, particularly with heroin, and it was for his own personal use, and it would be further my submission that the amount that was discovered by the police would confirm that view."

2. Counsel sought a custodial sentence to be served concurrently with a sentence imposed some months earlier in respect of other offences. Counsel referred to the penalty prescribed by s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) as the relevant penalty "where it is not a traffickable amount, and the Crown doesn't suggest for one moment that this is a traffickable amount". The prosecutor did not challenge this submission. Indeed, the prosecutor made no submissions on sentence. Section 73(1)(b) prescribes a penalty for…

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.

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Details

Case: [1989] HCA 18
Decision Date: 7 March 1989

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Pantorno, against his conviction for armed robbery. The applicant had been found guilty by a jury in the Supreme Court of Victoria and subsequently appealed to the Full Court of the Supreme Court of Victoria, which dismissed his appeal. The central dispute concerned the admissibility of certain evidence obtained during the investigation of the offence.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior convictions of a co-accused, which had been presented to the jury. The applicant argued that this evidence was unfairly prejudicial and should have been excluded under the rules of evidence, particularly concerning the tendency of such evidence to suggest that the applicant had a propensity to commit criminal acts.

The High Court, in allowing the appeal, held that the admission of the evidence of prior convictions was an error. The Court reasoned that the evidence of prior convictions of the applicant and his co-accused was not relevant to any issue in dispute in the trial for armed robbery, other than to suggest that the applicant had a disposition to commit offences of that kind. Such evidence, the Court stated, was highly prejudicial and its admission deprived the applicant of a fair trial. The legal principle applied was that evidence of prior convictions is generally inadmissible unless it has a specific relevance to an issue in the current proceedings, beyond merely showing a propensity to commit crime.

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

Orders