R v Gapper & Mazzeo - [2007] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GAPPER & MAZZEO
[2007] SASC 119
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Sulan)
5 April 2007
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
Mr Gapper and Mr Mazzeo were tried before a Judge in the District Court on counts arising from the appellants' attendance at the homes of men whom they believed were responsible for the theft of "mag wheels" belonging to Mr Gapper - the appellants attended at the houses with a can of petrol, two firearms, knives and a baseball bat - Mr Gapper was convicted on 14 counts and Mr Mazzeo on 12 counts - relevantly, the appellants were convicted of two counts each of aggravated serious criminal trespass in a place of residence, one count of serious criminal trespass in a non-residential building, one count of unlawfully discharging a firearm, one count of threatening a victim with a firearm, one count of assault, one count of theft and one count of unlawful imprisonment - it cannot be said that the jury's verdict of guilty in respect of the count of serious criminal trespass in a non-residential building with the intention to commit the offence of theft is safe for the reason that they found the appellants not guilty of theft - the verdicts of guilty of aggravated serious criminal trespass in a non-residential building must be set aside - the appellants complain that the conviction for assault is unsafe because the prosecution put to the jury an inconsistent case as to the conduct they relied on to constitute the assault - the verdicts of assault must be set aside - the verdicts of guilty of unlawfully discharging a firearm must be set aside for the reason that the Judge directed the jury that they could convict the appellants on two counts of unlawfully discharging a firearm even if only one discharge was proved - Mr Gapper alone was charged with two counts of possessing a firearm without a licence - this point was not proved in the prosecution case although it emerged in cross-examination that firearms in his possession were unlicensed - whether the Judge erred by failing to rule in relation to the error in the presentation of the prosecution case as to the count of possessing an unlicensed firearm that there was no case to answer - whether the Judge was bound to intervene to overrule the question, or whether the question improperly deprived the appellant of a chance of acquittal…

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 Gapper & Mazzeo

Details

AGLC: R v Gapper & Mazzeo [2007] SASC 119
Case: [2007] SASC 119
Decision Date: 5 April 2007

CaseChat Overview and Summary

In the case of R v Gapper & Mazzeo, Mr Gapper and Mr Mazzeo appealed against their convictions on multiple criminal charges following their attendance at the homes of individuals they believed were responsible for the theft of Mr Gapper's "mag wheels". The appellants were armed with a can of petrol, two firearms, knives, and a baseball bat during these visits. Mr Gapper was convicted on 14 counts, and Mr Mazzeo on 12 counts, including aggravated serious criminal trespass, serious criminal trespass, unlawfully discharging a firearm, threatening a victim with a firearm, assault, theft, and unlawful imprisonment. The appeal raised issues concerning the Judge's directions, the course of the trial, and the admissibility of evidence.

The court was required to determine whether certain convictions were safe and whether any miscarriage of justice occurred due to the improper admission or rejection of evidence, misdirection, or non-direction by the Judge. The appellants argued that the verdicts were unreasonable or insupportable, particularly regarding the counts of serious criminal trespass in a non-residential building, assault, and unlawfully discharging a firearm. They also contended that the Judge failed to rule on the error in the prosecution's case regarding the count of possessing an unlicensed firearm, and that the prosecutor's cross-examination of Mr Gapper was unfair.

The court examined the evidence and the trial's proceedings, concluding that the case against both appellants was compelling and their guilt was proven beyond reasonable doubt. The court found that the irregularities in the trial process did not result in any substantial miscarriage of justice. However, the convictions on count 10 (unlawful discharge of a firearm) and count 11 (assault) were set aside, and a retrial was ordered. The conviction on count 14 (aggravated serious trespass in a non-residential building) was also set aside, and a verdict of acquittal was substituted. The appeal in respect of the other counts was dismissed, and the sentences imposed on Mr Gapper and Mr Mazzeo were set aside pending the retrial on the specified counts.

Orders

Orders of the court

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Background

Background to the litigation

The appeal raises a number of issues. The appellants complain about the Judge’s directions on several counts. Other grounds of complaint relate to the course of the trial. I propose to summarise the facts, providing a background to the issues that arise. I will then deal with the grounds of appeal.Facts What follows is a simplified summary of the relevant events. In early 2004 Mr Goss came into possession of a stolen car. Fitted to this car were “mag wheels” belonging to Mr Gapper. Mr Gapper said that the mag wheels were worth about $3,500. Sometime later Mr Gapper received information that Mr Goss might have his wheels. He and Mr Mazzeo went to Mr Goss’s home. Mr Goss denied knowledge of the stolen car, and said that Mr Jaeger might have the mag wheels. Mr Gapper and Mr Mazzeo then went to Mr Jaeger’s home. They arrived early in the evening. Mr Jaeger was not there. Mr Burt, who lived there also, was home. He did not know the men. He told Mr Gapper and Mr Mazzeo that Mr Jaeger should be home fairly soon. After a while the men left. Mr Jaeger had left the house on an errand. He received a phone call telling him that there were people at his house looking for the stolen car. He was warned that he should not return to his home. He stayed away until about 11.00 pm. Meantime, Mr Gapper had contacted two friends, who became co‑accused in the case. He told them that he knew where his wheels were. Mr Gapper went to his home and got two firearms, a tin of petrol and a baseball bat. The two friends joined him, armed with knives. Mr Gapper fitted a trailer to his car. About 10.00 pm the four men returned to Mr Jaeger’s home. Mr Jaeger was still not there, but Mr Burt was. Mr Burt gave evidence that at about 10.00 pm the door of the house burst open, and Mr Gapper, Mr Mazzeo and two other men entered. One of the men had a .22 rifle that he pointed at Mr Burt. Another one held a rifle across his chest, and pushed him on to a sofa. One of the men (not one of the appellants) smashed the television set with a baseball bat. One man was wielding a knife. There were demands for information about the car. A rifle was fired close to Mr Burt’s head. He gave evidence that he was very scared. One of the men stood guard over him, and the other three men began to ransack Mr Jaeger’s room. Items of property were taken from the house and were put in the trailer. This went on for about 30 minutes. Mr Burt could smell petrol coming from one of the rooms. Mr Burt said that he was then marched out of the house at gunpoint to a car. The men then drove off with Mr Burt, apparently looking for Mr Jaeger. I will refer to the events during this visit to Mr Jaeger’s house as “the first incident”. The men drove to a nearby town, looking for Mr Jaeger’s van. They did not find it. They returned to the house about 11.00 pm. Mr Jaeger had returned to the house meantime with Ms Northey. His room had been ransacked. The mattress of his bed was soaked in petrol. Not much later four men burst into the house. They were Mr Gapper, Mr Mazzeo and the other two men. They had guns, a baseball bat and a knife. Mr Gapper pointed a gun at Mr Jaeger and someone else pointed a gun at Ms Northey. They demanded to know where the stolen car was. A shot was fired from one of the guns near Mr Jaeger’s head. One of the men hit Mr Jaeger on the leg with a baseball bat. Mr Jaeger told the men that the car was at Mr Goss’s house. The men told Mr Jaeger that he was coming with them. Mr Jaeger and the men went outside and got into a car.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to these irregularities, I have considered all of the evidence. The case against both appellants was compelling. I am satisfied that the evidence proved the guilt of the accused beyond reasonable doubt. I consider that the irregularities to which I have referred did not result in any substantial miscarriage of justice, and to the extent that the appellant relies upon these matters, the appeal should be dismissed.Conclusion The convictions recorded on count 10 (unlawful discharge of a firearm) and count 11 (assault) should be set aside, and a retrial should be ordered. The conviction on count 14 (aggravated serious criminal trespass) should be set aside, and a verdict of acquittal should be substituted. Apart from that, the appeal should be dismissed. In the light of that it will be necessary further to order that the sentence imposed on Mr Gapper and Mr Mazzeo be set aside, and that they be re‑sentenced. However, the re-sentencing should await the disposition of the two counts on which a retrial has been ordered. DEBELLE J: I agree with the substance of the reasons of the Chief Justice and with the orders he proposes. SULAN J: I agree with the reasons of Doyle CJ. I agree that the convictions recorded on count 10 and count 11 should be set aside and a re-trial should be ordered. I agree that the conviction on count 14 should be set aside and a verdict of acquittal should be substituted. As to the appeal by Mr Gapper and Mr Mazzeo in respect of other counts, the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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