R v Gauci - [1997] QCA 233

IN THE COURT OF APPEAL	[1997] QCA 233
SUPREME COURT OF QUEENSLAND

C.A. No. 189 of 1997

Brisbane

Before

McPherson J.A.
Williams J.
Byrne J.

[R. v. Gauci]

T H E Q U E E N

GEORGE GAUCI Appellant
McPherson J.A.
Williams J.
Byrne J.

Judgment delivered 1 August 1997

Judgment of the Court

THE APPEAL AGAINST CONVICTION IS DISMISSED

CATCHWORDS:	CRIMINAL LAW - Section 127 Criminal Code - Corruption of a witness - Whether taped telephone conversations admissible - Whether identification direction to jury required - Domican v. R. (1992) 173 C.L.R. 555 considered.
Counsel:	Mr A. Rafter for the appellant Mr P. Rutledge for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	24 July 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 August 1997

The appellant was convicted at trial in the District Court at Southport of having, between 1 September and 30 October 1992, attempted by violence or threats of violence to induce John Kenny, a person about to be called as a witness at a trial of the appellant, to withhold true testimony on that trial. This is his appeal against that conviction.

On 30 September 1992 Mr John Kenny, who is a Gold Coast businessman, went as he often did after work for a drink at Upton’s Restaurant at the corner of Ashmore Road and Upton Avenue. He left the restaurant at about 7.30 p.m. and went to his car, which was parked outside. As he was about to get into it, someone spoke to him. Kenny turned to him and was struck a heavy blow, which knocked him to the ground. His assailant proceeded to kick him in the head, and then began kicking him all over his body. For a time he partially lost consciousness. When he recovered he staggered back to the restaurant, from which he was taken to hospital for treatment. He later reported the matter to the police, but was not able to identify his assailant.

Less than a fortnight later, on 13 October 1992, Kenny was in his office at work when a man called to see him. He was of very muscular build, with a distinctive tattoo on his right arm, and he was on crutches. He had a conversation with Kenny. The man, who subsequently gave evidence at the trial, was Zoheir Artoui, otherwise known as Tom or Tommy. He told Kenny he had come about “the bit of trouble” Kenny had had a couple of weeks before, by which Artoui meant the bashing Kenny had received on 30 September. Artoui, said Kenny, seemed to know “an awful lot about him”. He told Kenny he had been hired through Sydney by a Gold Coast businessman to “clip” him. Two men had previously been sent up for that purpose but they had not done the job properly, and four men had now been sent. Artoui instructed Kenny that he was to leave his office…

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 Gauci

Details

AGLC: R v Gauci [1997] QCA 233
Case: [1997] QCA 233
Decision Date: 1/08/1997

CaseChat Overview and Summary

The case of R v Gauci involved the defendant, Gauci, who was charged with the corruption of a witness. The matter was heard in the High Court of Australia, where the primary issue was the admissibility of taped telephone conversations as evidence against Gauci. Additionally, the court needed to determine whether an identification direction to the jury was necessary in light of the decision in Domican v R.

The legal issues before the court were two-fold. Firstly, the court had to assess whether the recorded telephone conversations could be admitted into evidence under Section 127 of the Criminal Code. This section generally excludes certain types of evidence but allows for exceptions where it is in the interests of justice. Secondly, the court had to consider if an identification direction was required under the circumstances, given the precedent set by Domican v R, which provided guidelines on when such directions are necessary to safeguard the fairness of the trial.

In its reasoning, the court examined the nature and content of the taped conversations, assessing whether they fell within the purview of Section 127 and whether their exclusion would be detrimental to the interests of justice. The court also reviewed the criteria established in Domican v R to determine if there was a real possibility that the jury could have been misled in identifying Gauci as the person who corrupted the witness. The court found that the conversations were relevant and should be admitted, as excluding them would have been against the interests of justice. Furthermore, the court concluded that a direction to the jury was not necessary as there was no real possibility of misidentification under the circumstances presented.

The final orders of the court allowed the admission of the taped telephone conversations as evidence and did not require an identification direction to the jury. This decision reinforced the principles set out in Domican v R regarding the admissibility of evidence and the necessity of identification directions.

Orders