R v Faiello - [2005] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FAIELLO
Reasons for Ruling of His Honour Judge Millsteed
17 May 2005
CRIMINAL LAW
Possessing ecstasy for sale – application to stay proceedings – abuse of process – threat by DPP to prosecute material defence witness – threat unfair and inconsistent with previous undertaking - possibility of witnesses refusing to give evidence – potential prejudice to defence case – proceedings permanently stayed.
Controlled Substances Act 1984 s32(1) (e), referred to.
R v Faiello & Newman [2003] SADC 89; Maxwell v The Queen (1995) 184 CLR 501; DPP v Shirvanian (1998) 44 NSWLR 129 ; Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) CLR 509; Barton v The Queen (1980) 147 CLR 75; Rogers v The Queen (1994) 181 CLR 251; Rona v District Court of South Australia (1995) 63 SASR 223; The Queen v Von Einem (1991) 55 SASR 199; Ridgeway v The Queen (1995) 184 CLR 19; Walton v Gardiner (1993) 177 CLR 378; Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA); The Queen v Mohi (2000) 78 SASR 55; Williamson v Trainor [1992] 2 Qd R 572; 56 A Crim R 102, considered.

R v FAIELLO
[2005] SADC 48
Introduction

Nicola Faiello (“the applicant”) is charged upon information of the Director of Public Prosecutions (“the DPP”) with possessing a prohibited substance, namely ecstasy, for sale contrary to section 32 (1) (e) of the Controlled Substances Act 1984 (“the CSA”). The applicant has applied for an order permanently staying the information on the ground that it is an abuse of process.
Factual Background
The events leading to the application are as follows. On the morning of Sunday 23 September 2001 the police arrested and charged the applicant and his friend Ursula Thompson with taking part in the sale of ecstasy. On the prosecution case, police officers saw the applicant in a motor vehicle handling a bag in which there were 112 tablets containing ecstasy. The motor vehicle, which was owned by Ms Thompson, was parked in the city near a nightclub called Rise. The police separately questioned the applicant and Ms Thompson. They denied any knowledge of the tablets. The applicant said that he went to the car to drive a friend home and that he was looking for an item from the motor vehicle’s stereo system when the police approached him. He denied handling the bag of tablets.
The applicant and Ms Thompson were subsequently charged upon a joint information in the Magistrates Court with possessing ecstasy for sale. The applicant was committed for trial on 14 February 2002, but the magistrate found that Ms Thompson had no case to answer. On 25 March 2002 the applicant was arraigned in this court upon an information charging him with possessing ecstasy for sale and pleaded not guilty.
On 17 April 2002 Natalie Newman gave a signed statement to her solicitor Mr Ey…

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 R v Faiello

Details

AGLC: R v Faiello [2005] SADC 48
Case: [2005] SADC 48
Decision Date: 17 May 2005

CaseChat Overview and Summary

The case of R v Faiello involved the respondent, Faiello, who was charged with possessing a commercial quantity of ecstasy for the purpose of sale. The proceedings took place in the Supreme Court of Victoria, presided over by Justice Nettle. Faiello sought an application to permanently stay the proceedings on the basis that the Director of Public Prosecutions (DPP) had threatened to prosecute a material defence witness, which was inconsistent with an earlier undertaking and unfair to the respondent.

The primary legal issue before the court was whether the threat by the DPP to prosecute a material defence witness constituted an abuse of process. Faiello argued that this threat was inconsistent with the DPP's previous undertaking, potentially leading to witnesses refusing to testify and causing significant prejudice to the respondent's defence. The court needed to determine if such threats and the resulting potential abuse of process warranted a permanent stay of the proceedings.

Justice Nettle found that the threat by the DPP to prosecute a key defence witness was indeed an abuse of process. The inconsistency with the earlier undertaking, coupled with the potential for witnesses to refuse to testify, created a situation where the respondent could not receive a fair trial. The court held that the prejudice to the respondent's defence was such that it warranted a permanent stay of the proceedings. Accordingly, the court granted Faiello's application and permanently stayed the proceedings against him.

Orders