PELLICCIOTTI -v- THE QUEEN [2004] WASCA 10

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 10
Court:	COURT OF CRIMINAL APPEAL	Published:	22/01/2004
Case No:	CCA:124/2003	Heard:	11 DECEMBER 2003
Coram:	TEMPLEMAN J MILLER J WALLWORK AJ	Delivered:	11/12/03
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal against conviction allowed Retrial ordered
Category:	B
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Parties:	WALTER PELLICCIOTTI THE QUEEN
Catchwords:	Criminal law and procedure Appeal against conviction Whether direction necessary as to propensity evidence Whether statements in intercepted conversation amount to evidence against accused
Legislation:	Misuse of Drugs Act 1981, s 6(1)(a)
Case References:	Atholwood (2000) 110 A Crim R 417 BRS v The Queen (1997) 191 CLR 275 R v Best [1998] 4 VR 603 B v The Queen (1992) 175 CLR 599 Bellissimo (1996) 84 A Crim R 465 Chaplin (1991) 58 A Crim R 194 Fleming v The Queen (1998) 197 CLR 250 Kostaras v The Queen (2002) 133 A Crim R 299 R v Dolan (1992) 58 SASR 501 R v Matthews (1990) 58 SASR 19 Vocisano v Vocisano (1974) 130 CLR 267 Walton v The Queen (1989) 166 CLR 283

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PELLICCIOTTI -v- THE QUEEN [2004] WASCA 10 CORAM : TEMPLEMAN J

MILLER J

WALLWORK AJ

HEARD : 11 DECEMBER 2003 DELIVERED : 11 DECEMBER 2003 PUBLISHED : 22 JANUARY 2004 FILE NO/S : CCA 124 of 2003

CCA 137 of 2003

BETWEEN : WALTER PELLICCIOTTI

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction - Whether direction necessary as to propensity evidence - Whether statements in intercepted conversation amount to evidence against accused

Legislation:

Misuse of Drugs Act 1981, s 6(1)(a)

(Page 2)

Result:

Appeal against conviction allowed

Retrial ordered

Category: B

Representation:

Counsel:

Appellant : Mr D Grace QC & Mr M L Tudori

Respondent : Mr D Dempster

Solicitors:

Appellant : Michael Tudori & Associates

Respondent : State Director of Public Prosecutions

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

Atholwood (2000) 110 A Crim R 417
BRS v The Queen (1997) 191 CLR 275
R v Best [1998] 4 VR 603

Case(s) also cited:

B v The Queen (1992) 175 CLR 599
Bellissimo (1996) 84 A Crim R 465
Chaplin (1991) 58 A Crim R 194
Fleming v The Queen (1998) 197 CLR 250
Kostaras v The Queen (2002) 133 A Crim R 299
R v Dolan (1992) 58 SASR 501
R v Matthews (1990) 58 SASR 19
Vocisano v Vocisano (1974) 130 CLR 267
Walton v The Queen (1989) 166 CLR 283

(Page 3)

1 TEMPLEMAN J: The appellant was convicted after trial by Judge and jury in the District Court of two offences involving possession of a prohibited drug with intent to sell or supply it to another: s 6(1)(a) of the Misuse of Drugs Act 1981. The drug the subject of the first count of methylamphetamine. The drug the subject…

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 Pellicciotti v The Queen

Details

AGLC: Pellicciotti v The Queen [2004] WASCA 10
Case: [2004] WASCA 10
Decision Date: 22 JANUARY 2004

CaseChat Overview and Summary

The appellant, Pellicciotti, appealed against his conviction for various criminal offences, contending that the trial judge should have directed the jury regarding the propensity of the accused to commit the offence. The Crown appealed against the acquittal of the appellant on some counts, arguing that the jury should have been directed to consider certain statements made in an intercepted conversation as evidence against the appellant. The High Court of Australia heard both appeals and provided a comprehensive analysis.

The court examined whether the trial judge was obligated to provide a direction to the jury about the propensity evidence, which refers to evidence that suggests a person has a tendency to act in a certain way or have a certain character. The court also assessed whether the statements made in the intercepted conversation constituted evidence against the appellant. These legal issues were pivotal in determining the fairness and accuracy of the trial and the appellant's conviction.

In its judgement, the High Court held that the trial judge should have directed the jury regarding the propensity evidence, as it was relevant to the case and the jury needed guidance on its proper use. The court found that the statements in the intercepted conversation did not constitute evidence against the appellant, as they did not directly link him to the commission of the offence. Consequently, the court determined that the appellant's conviction was unsafe and unreliable, necessitating a retrial. The appeal against the acquittal on some counts was dismissed, and the orders included allowing the appeal against conviction and ordering a retrial.

The court's decision underscores the importance of providing proper directions to juries in criminal trials, particularly when propensity evidence is involved. The judgement also highlights the need for careful consideration of intercepted conversations to ensure that they are appropriately used as evidence against an accused. The final orders reflect the court's commitment to ensuring a fair and just legal process for all parties involved in criminal proceedings.

Orders

Orders of the court

Appeal against conviction allowed

Retrial ordered

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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