R v Garilli - [2009] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GARILLI
[2009] SASC 228
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
6 August 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
Appeal against conviction - appellant charged with two counts of knowingly taking part in production of cannabis - whether Judge misdirected jury with respect to an element of the offence - whether Judge misdirected jury with respect to use of cross admissible evidence - whether verdicts unsafe and satisfactory - whether miscarriage of justice occurred.
Held: appeal dismissed - Judge misdirected jury with respect to element of knowledge - no misdirection the use of cross admissible evidence - no real risk of a miscarriage of justice arising as a result of Judge's misdirection - appropriate case for application of the proviso.
Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358, considered.

R v GARILLI
[2009] SASC 228
Court of Criminal Appeal: Gray, Vanstone and Kourakis JJ
GRAY J:

This is an appeal against conviction.
Maurice Garilli, the defendant and appellant, was charged on Information with two counts of taking part in the production of cannabis, contrary to section 32(1)(b) of the Controlled Substances Act 1984 (SA). The particulars with respect to both counts alleged that the defendant knowingly took part in the production of cannabis between 1 and 15 March 2007.
On 16 March 2009, following a trial in the District Court, the jury returned a majority verdict of guilty on both counts.
On appeal it was complained that the Judge misdirected the jury with respect to the elements of the offence and the use to be made of similar fact evidence. It was said that the guilty verdicts were unsafe and unsatisfactory and should be set aside.
The prosecution case
Both counts were the result of searches conducted by police on 14 May 2007. The cannabis the subject of the first count was found at a residential property at Brahma Lodge. Police discovered 37 cannabis plants growing hydroponically. There were no signs of anyone living at the property. Further, this was not the first cannabis crop grown at the property. Police officers gave evidence that root balls, stripped plants and remnants of cannabis were found. Electricity records arguably established that up to six crops had been grown at the property since 2004.
The cannabis the subject of the second count was found at another residential property at Wingfield. The circumstances were similar to those of the first count. Police found five plants…

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 Garilli

Details

AGLC: R v Garilli [2009] SASC 228
Case: [2009] SASC 228
Decision Date: 6 August 2009

CaseChat Overview and Summary

In the case of R v Garilli, the appellant, Maurice Garilli, appealed against his convictions for two counts of taking part in the production of cannabis. The appeal was heard in the court, and the key issues revolved around the trial judge's directions to the jury on the elements of the offence, specifically the requirement of knowledge, and the permissible use of evidence from one count in relation to another. Additionally, Garilli argued that the convictions were unsafe and unsatisfactory, primarily based on the alleged misdirections. The court granted permission to appeal.

The primary legal issue was whether the trial judge misdirected the jury regarding the element of knowledge in the offence of taking part in the production of cannabis. Another issue was whether the trial judge correctly instructed the jury on the use of cross-admissible evidence. Furthermore, the court considered whether the verdicts were unsafe and unsatisfactory, leading to a miscarriage of justice.

The court found that the trial judge had indeed misdirected the jury concerning the element of knowledge, as it was necessary for the jury to establish beyond reasonable doubt that the appellant knew his premises were being used for the production of cannabis. However, the court concluded that this misdirection did not result in a real risk of a miscarriage of justice, as the jury's verdict demonstrated that they had found beyond reasonable doubt that the appellant knew cannabis was being produced at his premises. The court also found no error in the judge's direction on the use of cross-admissible evidence. Consequently, the court dismissed the appeal, as there was no substantial miscarriage of justice.

The court dismissed the appeal against Maurice Garilli's convictions, finding no substantial miscarriage of justice despite the misdirection concerning the element of knowledge.

Orders

Orders of the court

Full text does not contain this section.

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

For reasons discussed earlier, the jury must have been aware that knowledge on the part of the defendant that his premises were being used for the production of cannabis had to be established beyond reasonable doubt. It is fanciful to suggest that if the defendant was aware that cannabis was the substance being produced, that he was unaware that his premises were being used to produce cannabis. The verdict of the jury demonstrates that the jury must have found beyond reasonable doubt that the defendant knew that the cannabis was being produced at his premises. It can also be concluded that a properly instructed jury would have returned the same verdicts.[3] The defendant must have at least suffered or permitted the growing of cannabis at the two properties at relevant times. [3] Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358 per French CJ at [97].Conclusion I would dismiss the appeal. VANSTONE J: Maurice Garilli appeals against his convictions, by verdicts of a jury, for two counts of taking part in the production of cannabis. His principal argument is as to the trial judge’s directions to the jury on the elements of the offence, in particular the contentious element of knowledge. He also raises a complaint about the direction given on the permissible use of evidence of one count in respect of another. Finally, he argues that the convictions are unsafe and unsatisfactory. That last ground relies principally on the two asserted misdirections. Permission to appeal was granted by a judge of this court.Background Count 1 on the information alleged an offence occurring between 1 March and 15 May 2007 at Brahma Lodge. There was no dispute that police found 37 cannabis plants growing in a house at Park Terrace, Brahma Lodge, that house being the property of Garilla Investments Pty Ltd, a company of which the appellant was the sole director and a shareholder. Count 2 alleged an offence committed between the same dates, this one at Ninth Avenue, Wingfield, in a house which was similarly owned by Garilla Investments. There, police found five plants and loose material. No-one appeared to be living at either house. The accused denied any knowledge of the growing of cannabis at either premises. In evidence before the jury, he asserted that both premises were let, the first to a person called Peter Marcone, and the Wingfield property to one Joe Jesco. The accused said he had met Marcone through a friend, Paulin Lusha, at the Glynde Gelati Bar. He claimed that Marcone had introduced him to Joe Jesco. He said that both tenants made cash payments of rental, fortnightly in advance. It was the prosecution case that Marcone and Jesco were fictitious entities. Police inquiries failed to establish the existence of those persons. Moreover, police had seen Paulin Lusha (who was a defence witness) at the Brahma Lodge premises and had also seen there a van owned by the appellant. Later that van was found to have cannabis remnants in it. Neither of the asserted tenancies were recorded at the Residential Tenancies Tribunal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.