R v Formica - [2024] QSCPR 10

SUPREME COURT OF QUEENSLAND

CITATION: R v Formica [2024] QSCPR 10
PARTIES: R
v
SALVATORE FORMICA
and
AIDEN ANIS KHODHER
and
GEORGE MACHEM
and
PIERINO FORNI
(Defendants)
FILE NO/S: SC 106 of 2023
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING Supreme Court of Queensland
COURT:
DELIVERED EX 28 March 2024
TEMPORE ON:
DELIVERED AT: Cairns
HEARING DATE: 27 March 2024
JUDGE: Henry J
ORDER: In respect of each defendant’s application: application
dismissed.
CATCHWORDS: CRIMINAL LAW – PROCEDURE – PROSECUTION – where the defendants are charged with conspiracy to import cocaine from Papua New Guinea into Australia rather than substantive importation and attempted importation offences – where the defendants seek exercise of the power in s 11.5(6) Commonwealth Criminal Code to dismiss the conspiracy charges – whether prosecutorial discretion should be overridden by the Court’s power – whether dismissing the conspiracy charge is required in the interest of justice
Commonwealth Criminal Code 1995 (Cth) s 11.5(6)
Ahern v R (1988) 165 CLR 87, cited
Commonwealth DPP v Knopp and Ledesma [2023] VSCA
315, cited
R v Hoar (1981) 148 CLR 32, discussed Tripodi v R (1961) 104 CLR 1, discussed
COUNSEL: GF Mahony SC with D Caruana for Crown
M Weinman for Defendant Formica
M Gumbleton with N Freijah for Defendant Khodher
SJ Tovey for Defendant Machem
D Cronin for Defendant Forni
SOLICITORS: Commonwealth Director of Public Prosecutions for Crown
Stephen Andrianakis & Associates for Defendant Formica
Emma Turnbull Lawyers for Defendant Khodher
Theo Magazis & Associates for Defendant Machem
Anthony Isaacs Criminal Lawyers for Defendant Forni

The defendants, Formica and Khodher, were allegedly involved in arranging an importation of cocaine from Papua New Guinea into Australia by light aircraft flown by Cutmore, a pilot, from Far North Queensland to Papua New Guinea and back again on the 30th of August 2018.
Those three were also allegedly involved in a subsequent attempt to do the same thing, by the same means, with the defendants Forni and Machem also allegedly involved. On 26 July 2020, however, after being loaded with the cocaine in Papua New Guinea, the plane piloted by Cutmore crashed on take-off from Papua New Guinea on its return flight. Cutmore remains in custody in Papua New Guinea.
The defendants face prosecution on two indictments in Queensland: one against Formica and Khodher pertaining to the first of these alleged criminal ventures and the other pertaining to all four of them for the second alleged criminal venture.
The evidence presenting itself to the Prosecution can apparently call in aid the principle discussed in Tripodi v R (1961) 104 CLR 1, that the prima facie evidence of the relevant defendants’ combination, or “pre-concert”, to commit an unlawful importation in each case implies an authority to act and speak on the other’s behalf, rendering the words and actions of each in furtherance of the pre-concert admissible against all.
Tripodi was a larceny case but the application of its principle is of no presently material difference in proof of a criminal…

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 Formica

Details

AGLC: R v Formica [2024] QSCPR 10
Case: [2024] QSCPR 10
Decision Date: 28 March 2024

CaseChat Overview and Summary

The case of R v Formica involved multiple defendants charged with conspiracy to import cocaine from Papua New Guinea into Australia, rather than with the substantive importation and attempted importation offences. The defendants sought the exercise of the power under section 11.5(6) of the Commonwealth Criminal Code to dismiss the conspiracy charges. The central issue before the court was whether the prosecutorial discretion should be overridden by the court's power to dismiss charges, and if such dismissal was required in the interest of justice.

The court considered the principles of prosecutorial discretion and the circumstances in which a court should intervene. It examined whether the charges against the defendants were in the public interest and whether dismissing the conspiracy charges would be in the interest of justice. The court held that the prosecutorial discretion should not be overridden and that the dismissal of the conspiracy charges was not required in the interest of justice. The court found that the charges were warranted based on the evidence and the public interest in prosecuting drug importation conspiracies.

The court dismissed each defendant's application to have the conspiracy charges dismissed. The reasoning was that the charges appropriately reflected the seriousness of the alleged criminal activity and the public interest in prosecuting such offences. The court concluded that the exercise of prosecutorial discretion was appropriate and that there was no compelling reason to intervene and dismiss the conspiracy charges.

Orders

Orders of the court

In respect of each defendant’s application: application

dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Formica [2024] QSCPR 10
PARTIES:	R v SALVATORE FORMICA and AIDEN ANIS KHODHER and GEORGE MACHEM and PIERINO FORNI (Defendants)
FILE NO/S:	SC 106 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING	Supreme Court of Queensland
COURT:
DELIVERED EX	28 March 2024
TEMPORE ON:
DELIVERED AT:	Cairns
HEARING DATE:	27 March 2024
JUDGE:	Henry J
ORDER:	In respect of each defendant’s application: application dismissed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – PROSECUTION – where the defendants are charged with conspiracy to import cocaine from Papua New Guinea into Australia rather than substantive importation and attempted importation offences – where the defendants seek exercise of the power in s 11.5(6) Commonwealth Criminal Code to dismiss the conspiracy charges – whether prosecutorial discretion should be overridden by the Court’s power – whether dismissing the conspiracy charge is required in the interest of justice
Commonwealth Criminal Code 1995 (Cth) s 11.5(6)
Ahern v R (1988) 165 CLR 87, cited
Commonwealth DPP v Knopp and Ledesma [2023] VSCA 315, cited
R v Hoar (1981) 148 CLR 32, discussed Tripodi v R (1961) 104 CLR 1, discussed
COUNSEL:	GF Mahony SC with D Caruana for Crown M Weinman for Defendant Formica M Gumbleton with N Freijah for Defendant Khodher SJ Tovey for Defendant Machem D Cronin for Defendant Forni
SOLICITORS:	Commonwealth Director of Public Prosecutions for Crown Stephen Andrianakis & Associates for Defendant Formica Emma Turnbull Lawyers for Defendant Khodher Theo Magazis & Associates for Defendant Machem Anthony Isaacs Criminal Lawyers for Defendant Forni