R v Franco & Goodwin No. DCCRM-02-352 - [2003] SADC 23

R v VITTORIO FRANCO & AARON ROBERT GOODWIN
[2003] SADC 23
Judge Lunn
Criminal
REASONS ON APPLICATION TO DISQUALIFY

Franco, Goodwin, Beuret, Murphy and Warburton were jointly charged in this Court with the offence of taking part in the manufacture of methylamphetamine in that between 9 and 17 August 2001 at Felixstow they took part in the manufacture of that drug. When the police raided a house at Felixstow in the early hours of 16 August 2001 the five accused were all sleeping in the house. There was clear evidence that some, but not all, steps in the manufacture of methylamphetamine had occurred within the house. Franco was the defacto tenant of the house. The other four accused were regular users of methylamphetamine. There was uncontested evidence that a number of other methylamphetamine users regularly frequented the house.
The trial of the five accused was listed to commence before me on 2 December 2002. At the outset on that day Goodwin pleaded guilty and nolles were entered against Murphy and Warburton. Goodwin was remanded to a date to be fixed for sentencing submissions after the conclusion of the trial. A thirteen day trial then proceeded against Franco and Beuret. Both those accused gave evidence. Franco called Goodwin and Warburton as witnesses in his case. Beuret called Murphy. On 18 December 2002 the jury convicted Franco and acquitted Beuret.
Sentencing submissions for Franco and Goodwin were listed before me for 28 January 2003. The following exchange then occurred between counsel for Goodwin and myself:
“MR CHARLES:        I am referring to the question of the basis upon which he is sentenced .........
HIS HONOUR:           I have heard a substantial sworn evidence including evidence from your client. .......... I don’t wish to express anything concluded about it simply to say that on the whole of the evidence that I have heard I have misgivings about accepting everything that your client told me about his involvement as to what went on in that house. I can’t find any authority on this issue of where one accused pleads guilty and he is not sentenced and there is a trial where the accused gives evidence as to whether ........... I am then entitled to use my conclusions (on the evidence) to override any contrary submissions by the accused who has pleaded guilty as to his involvement in the offence. ......... The first thing I .......... want to know is what the factual basis that you put forward as the basis upon which I should sentence him.
Mr CHARLES:           During the relevant period which is covered by the information my client was involved in the process of getting Sudafed tablets, taking the matter out of the blister packs, crushing them and then providing them to a manufacturer and that was the extent of his involvement. ...........
HIS HONOUR:           That’s not the evidence that I’ve heard in the trial from a number of witnesses. His involvement was somewhat greater than that. I don’t want to go…

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.

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Details

Case: [2003] SADC 23
Decision Date: 7 March 2003

CaseChat Overview and Summary

In the matter of R v Franco & Goodwin, the accused, Vittorio Franco and Aaron Robert Goodwin, along with three other individuals, were jointly charged with the manufacture of methylamphetamine. Goodwin pleaded guilty, while Franco and Beuret were convicted by a jury. During the sentencing hearing, Goodwin's counsel applied for the sentencing judge to disqualify himself due to concerns that the judge's views on the evidence presented during the trial might prejudice the sentencing outcome for Goodwin. The legal issue before the court was whether the sentencing judge could consider the evidence heard during the trial when sentencing Goodwin.

The court considered whether the evidence heard during the trial was admissible for sentencing purposes under section 6(b) of the Criminal Law (Sentencing) Act 1988. The provision states that a court is not bound by the rules of evidence and may inform itself on matters relevant to the determination of the sentence as it thinks fit. The court found that the evidence was indeed admissible under section 6(b) and that the weight to be given to the evidence would depend on its source and reliability. However, the court noted that it was not appropriate to comment further on the weight to be given to the evidence at that stage, as further submissions and potentially further evidence would be presented before the court made its factual findings.

The court also considered whether the judge's comments during the summing up to the jury could be seen as a pronouncement on Goodwin's credibility. The court found that the comments were not specifically directed at Goodwin and were instead a general observation on the inconsistencies between the accounts of various defence witnesses. As such, the court declined to disqualify itself and proceeded to hear the sentencing submissions.

In conclusion, the court found that it could consider the evidence heard during the trial when sentencing Goodwin, but the weight to be given to that evidence would depend on its source and reliability. The court also found that its comments during the summing up to the jury did not prejudice Goodwin's case. The final orders of the court would depend on the outcome of the sentencing submissions and the weight given to the evidence presented.

Orders