Pellicciotti v The Queen
[2004] WASCA 10
•22 JANUARY 2004
PELLICCIOTTI -v- THE QUEEN [2004] WASCA 10
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 10 | |
| COURT OF CRIMINAL APPEAL | 22/01/2004 | ||
| Case No: | CCA:124/2003 | 11 DECEMBER 2003 | |
| Coram: | TEMPLEMAN J MILLER J WALLWORK AJ | 11/12/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction allowed Retrial ordered | ||
| B | |||
| PDF Version |
| 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
- CCA 137 of 2003
- 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 of the second count was ephedrine.
2 The appellant appealed against his conviction. He also applied for leave to appeal against sentences of imprisonment totalling 4 years, with eligibility for parole, imposed on him in respect of the two offences.
3 At the hearing of the appeals on 11 December 2003, the Court allowed the appellant's appeal against conviction and ordered a retrial. Reasons were to be provided in due course.
4 The Court did not deal with the application for leave to appeal against sentence, which had become irrelevant.
5 I now set out my reasons for allowing the appeal against conviction.
6 The prosecution case against the appellant was that he was in possession of various quantities of drugs found on 4 July 2001 in the execution of a search warrant at a house which he and various others had occupied from time to time.
7 In an upstairs television room at the house, police officers found a plastic bag containing 11 boxes of ephedrine tablets and a small plastic tube containing further ephedrine tablets. In the appellant's bedroom, police officers found a clip-seal bag containing 5.48 grams of methylamphetamine. They found also another clip-seal bag containing an ecstasy tablet and a third clip-seal bag containing other bags and a set of electronic scales. In a wardrobe in the bedroom, police officers found 15.3 grams of ephedrine in some cardboard containers and a clip-seal bag containing other bags. A further quantity of ephedrine was found on a bedside table in the bedroom and a plastic jar containing five ecstasy tablets was found in the bedroom air conditioner. Four further ephedrine tablets in a screw-top plastic jar were found in a lower lounge room of the house.
8 The charges brought against the appellant related to the 5.48 grams of methylamphetamine and the four quantities of ephedrine. The appellant was not charged with any offence relating to the six ecstasy tablets located in the bedroom and the air conditioner respectively.
(Page 4)
9 The evidence against the appellant included recordings of telephone conversations which had been intercepted pursuant to an appropriate warrant. Two conversations recorded on 10 June 2001 were between the appellant and his brother. They were said to relate to trade in cannabis.
10 A third conversation, between the appellant and his girlfriend, was recorded on 12 June 2001. The conversation was said to relate to two ounces of cannabis and scales which had been hidden in a sofa at the appellant's house.
11 A fourth conversation was between the appellant and his ex-partner, who was known as "Deb". That conversation was recorded in the early hours of 5 July 2001, shortly after the appellant's house was searched and the various drugs and other items seized.
12 In that conversation, Deb made the statement: "I thought you weren't doing that any more", to which the appellant replied, "Hey, I'm not".
13 At the trial, counsel for the Crown, in his closing address to the jury, made reference to the telephone conversations and the fact that they disclosed various drug offences not the subject of any charge against the appellant. Counsel said:
"He has an interest, doesn't he, in amphetamine? We know he was a taker at the time, of amphetamine. Methylamphetamine is a type of amphetamine. On his own admissions he was a user of it. He has an attitude one might expect of someone who is involved in the selling or dealing in, selling or supplying of prohibited drugs. He has no problem with his brother dealing in marijuana, being prepared to supply it to Sam, he is prepared to assist in all of that, he understands what is going on and he's prepared to help, even out of his own mouth." (AB 425)
14 Later in his address to the jury, counsel for the Crown referred to the conversation between the appellant and Deb in the following way:
"She clearly knows what his involvement has been in the drug scene in the past and it's her who says - and you have to listen very carefully because her voice is so soft, but you will be able to get close enough I think to that machine to be able to do that, to listen very carefully and you will hear her say 'I thought you weren't doing that any more' and he says 'Hey, I'm not.' …
(Page 5)
- She says 'I thought you weren't doing that any more' and he says 'Hey I'm not.' She knows of his involvement and he is clearly putting over the convenient line in case there's anybody else who's listening … " (AB 438)
15 In dealing with these matters in his charge to the jury, the learned trial Judge first referred to the fact that counsel for the Crown relied on the conversation between the appellant and his brother which was said to disclose the appellant's interest in methylamphetamine, his "attitude about drugs" and the fact that the appellant "had no problem with his brother dealing with Sam". That was a reference to a dealing in cannabis.
16 Then, in relation to the conversation between the appellant and Deb, his Honour told the jury: "You will have to listen to the tape and decide for yourselves what, in effect, she is saying." (AB 465-7)
17 In his notice of appeal, the appellant relies on grounds 2, 3 and 4 (ground 1 having been abandoned). They are as follows:
"Ground 2:
… The Trial Judge failed to direct the jury adequately, or at all, as to the limits of the use to which it (sic: they) might put the evidence of the Applicant's bad character or propensity, thereby giving rise to a substantial miscarriage of justice.
Ground 3:
The Learned Trial Judge erred in law by failing to exclude the part of the recording of a telephone conversation between the Applicant and 'Deb' occurring on 5 July 2001 at 2.15am wherein 'Deb' said to the Applicant 'I thought you weren't doing that anymore', where that assertion was either inadmissible (i) as infringing the prohibition on hearsay, or (ii) irrelevant original evidence of her state of knowledge, thereby giving rise to a substantial miscarriage of justice.
Ground 4:
In the alternative to Ground 2, The Learned Trial Judge failed to direct the jury, adequately or at all, as to the limits of the use to which it might out the evidence of 'Deb's' assertion 'I thought you weren't doing that anymore', thereby giving rise to a substantial miscarriage of justice."
(Page 6)
18 Taking grounds 2 and 4 together, it is the fact that the learned trial Judge did not give the jury any direction about the way in which they might make use of the prejudicial evidence against the appellant arising from the telephone conversations he had with his brother and his girlfriend. Neither did his Honour give the jury any direction about the use which might be made of the appellant's response to Deb's assertion "I thought you weren't doing that any more".
19 I assume for present purposes that those were the words used by Deb. There was apparently some difficulty in discerning from the recording precisely what she had said.
20 The telephone intercept evidence fell into two overlapping categories. First, that the appellant had committed criminal acts in relation to which he had not been charged; and secondly, that he was of bad character, having (at least previously) dealt in drugs. Thus the evidence could have been admitted only as propensity evidence. But having been admitted on that basis, a clear direction was required to ensure that the jury did not engage in the "simple, but beguiling", reasoning that because the appellant had dealt in drugs previously, he was a kind of person who is likely to be guilty of the offences charged: see R v Best [1998] 4 VR 603 at 614 - 5 per Callaway JA, and the authorities there cited.
21 It is true that the appellant's trial counsel (who was not counsel on the appeal) did not ask the learned trial Judge to give any direction about the use which might be made of propensity evidence. However, that omission did not relieve the Judge from the obligation to deal with the matter in a proper manner: BRS v The Queen (1997) 191 CLR 275 at 295 and 302.
22 In this appeal, the Crown relied on the decision of this Court in Atholwood (2000) 110 A Crim R 417. There, at [9], Malcolm CJ, with whom Wallwork and Anderson JJ agreed, said:
"Where the issue at a trial is whether a person found in possession of a drug possessed it for sale or supply, the fact that the person is currently engaged in the business of a drug dealer is a fact relevant to the issue. It is not mere evidence of propensity to commit crimes. In such a case the prosecution is entitled to lead evidence on the finding of both the drugs which were found in the clothes and the paraphernalia to which reference was made for two purposes. First, the evidence is
(Page 7)
- admissible as relevant to the prosecution case that, contrary to his denials, the appellant was caught in possession of the drugs. Secondly, the evidence is admissible to rebut any defence that the appellant had with regard to not having access to those drugs freely."
23 That passage distinguishes Atholwood from the present case. There, the evidence was that the accused was currently engaged in the business of a drug dealer. Here, the evidence is propensity evidence only. It therefore required the appropriate warning. Because this was not given, it was open to the jury to convict the appellant on the basis of his propensity to commit the offences charged.
24 In my view, this resulted in a substantial miscarriage of justice. For that reason I considered it appropriate to allow the appeal and order a retrial.
25 Ground 3 raises the question whether the statement made by Deb "I thought you weren't doing that any more" was admissible.
26 The learned trial Judge appeared to have been of the view that the statement alone would not have been admissible but that it became admissible by reason of the appellant's response: "Hey, I'm not".
27 The difficulty with that approach, in my view, is that the appellant's response was a denial. That being so, a combination of Deb's statement and his response could not have amounted to evidence against him.
28 Apparently, the Crown took the view that the appellant was lying when he made his denial. That view was based on the appellant's own admissions that he had told some lies during the course of the telephone conversation with Deb in which the critical statement was made. However, the appellant did not admit he had lied when responding to Deb's statement.
29 In my view, therefore, it was impermissible to assert, as the Crown did, that the appellant's response was a lie.
30 The Crown's alternative submission is that the appellant's response "Hey, I'm not", although amounting to a denial of current drug dealing, was, by implication, an acceptance of past drug dealing. This, it is said, went to the issue of intent.
(Page 8)
31 However, the statement was, at best, equivocal. The response was equally consistent with a denial of any drug dealing.
32 For these reasons, I am not persuaded that the combination of Deb's statement and the appellant's response constituted any evidence against him. The exchange was therefore inadmissible.
33 MILLER J: I have had the benefit of reading in draft the reasons for judgment of Templeman J. I agree with those reasons as the basis upon which, on 11 December 2003, the Court allowed the appellant's appeal and ordered a retrial. There is nothing I wish to add.
34 WALLWORK AJ: I agree with the reasons for judgment and conclusions of Templeman J.
35 There is nothing I wish to add.
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