R v Fischetti & Caggiano - [2003] ACTCA 5

THE QUEEN v FRANK FISCHETTI and MARIA CAGGIANO
[2003] ACTCA 5 (31 March 2003)

CATCHWORDS

CRIMINAL LAW – appeal against orders discharging jury from returning a verdict and recording verdict of acquittal – conspiracy to commit an offence against a law of the territory, namely the theft of approximately $150,000 – trial judge found no material capable of supporting actual allegation made hence prosecution on indictment as presented could not possibly succeed.

PRACTICE AND PROCEDURE – application for verdict of acquittal prior to presentation of Crown case and empanelment of jury – cancellation of jury panel summoned for the trial with consent of all counsel – power to direct the entry of a verdict of acquittal – jury must be empanelled for trial judge to validly make an order for acquittal under s 287 Crimes Act 1900.

Supreme Court Act 1933 (ACT), s 68B

Crimes Act 1900 (ACT), ss 261, 281, 287

Evidence Act 1995 (Cth) s 191

R v Dorking Justices; Ex parte Harrington [1983] QB 1076

Davern v Messel (1984) 155 CLR 21

Doylev R (1987) 30 A Crim R 379

Brown v R (1986) 160 CLR 171
Doney v R (1990) 171 CLR 207

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 10 - 2002
No. SCC 162-3 of 1998

Judges: Higgins CJ, Spender and Cooper JJ
Court of Appeal of the Australian Capital Territory
Date: 31 March 2003

IN THE SUPREME COURT OF THE       )          No. ACTCA 10 - 2002
  )          No. SCC 162-3 of 1998
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN
Appellant

AND:FRANK FISCHETTI

AND:MARIA CAGGIANO
Respondents

ORDER

Judges:  Higgins CJ, Spender and Cooper JJ
Date:  31 March 2003
Place:  Canberra

THE COURT ORDERS THAT:

The orders of acquittal are set aside.

The proceedings be remitted to Crispin J, to proceed according to law and having regard to these reasons.

IN THE SUPREME COURT OF THE       )          No. ACTCA 10 of 2002
  )          No. SCC 162-3 of 1998
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN
Appellant

AND:FRANK FISCHETTI

AND:MARIA CAGGIANO
Respondents

Judges:  Higgins CJ, Spender and Cooper JJ
Date:  31 March 2003
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

The respondents were accused of conspiracy to steal $150,000.00 from the St George Bank Ltd.

The appellant (represented by the Director of Public Prosecutions (ACT) (DPP)), on 6 March 2002, presented an indictment to that effect to which the respondents entered a “not guilty” plea.

The respondents, by their counsel (Mr Hart for Mr Fischetti and Mr Corr for Ms Caggiano), then submitted that the facts intended to be proved by the appellant were incapable of establishing the offence alleged. That is, that, whatever the wrongdoing the respondents had allegedly conspired to commit, it…

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 Fischetti & Caggiano

Details

AGLC: R v Fischetti & Caggiano [2003] ACTCA 5
Case: [2003] ACTCA 5
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions (ACT) appealed to the Court of Appeal of the Australian Capital Territory against orders made by a judge of the Supreme Court of the Australian Capital Territory. These orders discharged the jury from returning a verdict and recorded a verdict of acquittal in favour of the respondents, Fischetti and Caggiano. The respondents had been indicted for conspiracy to commit an offence against a law of the Territory, specifically the theft of approximately $150,000 from St George Bank Ltd. The trial judge had found that there was no material capable of supporting the allegation as presented, concluding that the prosecution on the indictment as framed could not possibly succeed.

The central legal issues before the Court of Appeal were whether the trial judge had the power to direct the entry of a verdict of acquittal under section 287 of the Crimes Act 1900 (ACT) when no jury had been empanelled for the trial, and whether the proceedings constituted a hearing "on the merits" despite the absence of a jury. The prosecution contended that the lack of jury empanelment rendered the acquittal invalid, arguing that a jury must be sworn for a judge to validly make such an order.

The Court of Appeal reasoned that a hearing "on the merits" occurs whether an acquittal is based on a finding of law or fact, and that the absence of factual findings did not negate this. The Court affirmed that a jury may be directed to acquit even based on the Crown's opening statement if the case, taken at its highest, could not legally justify a conviction. However, the Court found that the trial judge's power to direct an acquittal under section 287 of the Crimes Act 1900 (ACT) was contingent on the trial process having reached a stage where a jury could be directed to return a verdict. As no jury had been empanelled or sworn, the trial had not commenced in a manner that would permit the judge to exercise the power granted by section 287.

Consequently, the Court of Appeal ordered that the orders of acquittal made by the trial judge be set aside. The proceedings were remitted to the trial judge to proceed according to law, with the understanding that the issue of whether the indictment could be sustained would need to be determined in a manner consistent with the Court of Appeal's reasons, which implied the necessity of a properly empanelled jury for a valid acquittal by direction.

Orders