Pantorno v The Queen - [1989] HCATrans 9

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml2 of 1988
B e t w e e n -
JOSEPH JOHN PANTORNO

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ

BRENNAN' J

Pantorno

DEANE J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 FEBRUARY 1989, AT 10.22 AM:

C2T2/ 1 /MB

9/2/89

MR R. RICHTER, QC:

May it please the Court, I appear with

my learned friend, MR J.H. BARNETT, for the applicant.
(instructed by Grace and XacGregor)

MR L.W. FLANAGAN, QC:

May it please the Court, I appear

with my learned friend, MR G.J.C. SILBERT, for the respondent. ( instructed by the Director of
Public Prosecutions)

~SON CJ:	Yes, Mr Richter.
MR RICHTER:	If the Court pleases, I hand summaries of

the applicant's submissions to the Court.

MASON CJ:	Thank you.
MR RICHTER:	If the Court pleases, this is an application

to extend time for an application for special leave

to appeal. The application to extend time is
not opposed and in those circumstances if the Court
desires me to make submissions about it I will.

MASON CJ:

You might explain the length of time that is

involved, Mr Richter?

MR RICHTER:

If the Court pleases.

The length of time which

elapsed in the lodging of the application is not
minimal but it is not as long as in some applications.
It is explained in the affidavit of Mr Grace, which
is to be found at page 33 of the appeal book. The
judgment of the Court of Criminal Appeal, as is set
out at page 34, was delivered on 8 September 1987.
The applicant thereafter applied for legal aid seeking
special leave to appeal to this Court.

MASON CJ:

Yes, we need not trouble you further on that aspect

of the case, Mr Richter.

MR RICHTER:

If the Court pleases.

The grounds for appeal are

set out at page 43 of the appeal book and we might indicate to the Court, as we have indicated to our learned friends on Tuesday,that ground 1 is not
sought to be argued and that, in fact, the crux of
the special leave application is contained in
grounds 4 and 5.
(Continued on page 3)

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Pantorno

~1R RICHTER (continuing): These grounds, in effect, purpcrt

to set out the situation in which the applicant
was at all stages of the process against him,
in effect, denied the right to discharge a burden
of proof which section 7J(l)(b) of the DRUGS,
POISONS AND CONTROLLED SUBSTANCES ACT had cast
on him to establish a mitigating factor in relaticn
to sentence.

MASON CJ:

You now accept the interpretation placed upon

the statute by the Court of Criminal Appeal?

MR RICHTER:

I do, if the Court pleases.

That interpretation.

in our respectful submission, is clearly correct
in terms of the categorization of the
subsection (l)(b). That is…

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] HCATrans 9
Decision Date

CaseChat Overview and Summary

The case of *Pantorno v The Queen* came before the High Court of Australia by way of an application for special leave to appeal. The applicant, Pantorno, sought to appeal a decision of the Court of Criminal Appeal. The respondent was The Queen. The application to extend time for lodging the special leave application was not opposed.

The primary legal issues before the High Court concerned the applicant's right to know the maximum sentence to which he was exposed upon entering a plea of guilty. Specifically, the applicant argued that he was denied the opportunity to discharge a burden of proof, imposed by section 7J(1)(b) of the *Drugs, Poisons and Controlled Substances Act*, to establish a mitigating factor. The applicant also contended that the Court of Criminal Appeal, in altering the understanding of the law and dismissing the appeal, compounded the problem by not allowing him the opportunity to give evidence that the drugs were for his own use.

The applicant accepted the interpretation of the statute previously placed upon it by the Court of Criminal Appeal, acknowledging that this interpretation was clearly correct for the purposes of the appeal. However, the applicant argued that, as a matter of elementary fairness, an accused person is entitled to know the maximum sentence they face. The applicant asserted that at first instance, he had a right to know whether the prosecution was asserting a maximum sentence of five years under paragraph (c) or one year under paragraph (b) of the relevant section. The applicant's contention was that the Court of Criminal Appeal's decision, by not allowing him to go on oath to claim the drugs were for his own use, compounded the issue.

Orders