R v Fischetti (No. 1)

[2016] ACTSC 104

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

 R v Fischetti (No. 1)

Citation:

[2016] ACTSC 104

Hearing Dates:

11 May 2016, 12 May 2016

DecisionDates:

12 May 2016, 18 May 2016

Before:

Robinson AJ

Decision:

The application to discharge the jury is dismissed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by jury – application to discharge jury – whether any prejudice will flow to the accused from Crown opening

Parties:

The Queen (Crown)

Frank John Fischetti (Accused)

Representation:

Counsel

Ms M Jones (Crown)

Mr R McCrudden (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Macquarie Lawyers Burwood (Accused)

File Number(s):

SCC 95 of 2015

ROBINSON AJ:

On the further application to discharge the jury

1. The accused applied on the 25^th hearing day of the trial to discharge the jury. That application was based upon the Crown Prosecutor’s opening remarks to the jury. I heard the application on 11 and 12 May 2016.

1. On 12 May 2016, I dismissed the application. I did not give reasons at that time.

Reasons

1. The accused faces 12 counts but it is only necessary to set out one count to place the application in context.

1. Count 1 alleges that between 20 November 2013 and 15 December 2013 the accused, by deception, dishonestly obtained property, namely $80,000.00 belonging to Catherall Pty Ltd with the intention of permanently depriving Catherall Pty Ltd of that property.

1. In very general terms, Mr Catherall arranged for $80,000.00 of his company’s money to be transferred on 13 or 14 December 2013 to a bank account controlled by the accused in relation to a “project at Sorrento”.

1. In her opening to the jury, the Crown Prosecutor said, on this count, that there was, in fact, no genuine project at Sorrento. The flavour of her opening, on this point, can be indicated by the following:-

(T83)

“But the prosecution case is that the money was used – well, that it certainly wasn’t used on the Sorrento project, and the prosecution case is that there was no Sorrento project”.

(T84)

“The Crown case is that the money was dissipated in 4 days. It’s not used on the Sorrento project. There is no Sorrento project. That was a lie by the accused.”

1. Mr Catherall gave evidence (T202-T205) that he was told by the accused, amongst other matters:

(a)Of the existence of the property at Sorrento;

(b)That the accused was looking to purchase it;

(c)After the purchase, the accused would subdivide it;

(d)After the subdivision, it would be sold to a builder;

(e)That the particular builder had already been organised;

(f)That the vendor was a rich man who wanted to get rid of the property;

(g)That the three blocks of land could be subdivided into six or nine and would sell for $2 million each so that the builder would make money; and

(h)A real estate agent was not going to be involved. 

1. It is the Crown case that after these representations were made, Martin Green then made the…