R v Giannakopoulos & Marzilli - [2013] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
Question of Law Reserved NO 3 OF 2012
R v GIANNAKOPOULOS & MARZILLI
[2013] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
14 June 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - RELATIONSHIP BETWEEN COMMONWEALTH AND STATES GENERALLY - EFFECT OF COMMONWEALTH LAW ON STATES - PARTICULAR CASES
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - RELATIONSHIP BETWEEN COMMONWEALTH AND STATES GENERALLY - EFFECT OF COMMONWEALTH LAW ON STATES - GENERAL PRINCIPLES
Giannakopoulos and Marzilli, the defendants, are charged with two counts of offering a benefit to a witness. The first count alleges an offence against s 244(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) (‘Commonwealth Places Act’). The second count alleges an offence against s 244(1) of the CLCA.
The evidence sought to be relied at trial on includes a conversation, held in the Adelaide Airport, between an undercover police officer (U41), Giannakopoulos and a witness (Gavrilovic). That conversation was covertly recorded. The equipment also captured things said by Giannakopoulos, in the course of him using his telephone, to Marzilli.
The defendants applied to the presiding District Court Judge for an order quashing count 1. On that application the Judge reserved certain questions for the consideration of this Court.
The questions reserved by the Judge are as follows – [7.1] is the offence charged in count 1 an offence known to the law of the Commonwealth – [7.2] (i) is the Listening and Surveillance Devices Act 1972 (SA) (‘LSD Act’) applicable as a law of the Commonwealth, and (ii) if it is, was the recording of the conversation held at Adelaide Airport unlawful for want of compliance with that Act – [7.3] (i) is the Surveillance Devices Act 2004 (Cth) (‘SD Act’) applicable, and (ii) if it is, was the recording of the conversations held at the Adelaide Airport unlawful for want of compliance – [7.4] have U41 and/or Gavrilovic committed an offence against the law of the Commonwealth – [7.5] if the answer to [7.4] is yes, does the Commonwealth Places Act pick up the Criminal Law (Covert Operations) Act 2009 (SA) such that, in the circumstances of this case, U41 and/or Gavrilovic has the benefit of the authorisation issued.
Held per Kourakis CJ (Vanstone and Kelly JJ agreeing): [7.1] Yes, the offence charged in count 1 is an offence known to the law of the Commonwealth – [7.2] (i) Yes, the LSD Act (SA) is applicable as a law of the Commonwealth in its application to the investigation of a State offence by a police officer of…

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.

Keep reading for free

Create a free CaseChat account to read R v Giannakopoulos & Marzilli and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] SASCFC 50
Decision Date: 14 June 2013

CaseChat Overview and Summary

This matter came before the Full Court of the Supreme Court of South Australia by way of a case stated, concerning questions of law reserved by a judge of that court. The case involved criminal proceedings against the appellants, Giannakopoulos and Marzilli, and the central dispute revolved around the admissibility of certain recordings made during an investigation.

The legal issues before the court included whether an offence charged was one known to the law of the Commonwealth, the applicability of South Australian and Commonwealth legislation concerning recordings, and whether the recordings themselves were unlawfully obtained. Specifically, the court was asked to determine if the *LSD Act (SA)* and the *SD Act (Cth)* applied to the investigation and recording of conversations, and if the recordings were made in contravention of these or other legal requirements, such as the need for a warrant.

The court, comprising Kourakis CJ, Vanstone and Kelly JJ, determined that the offence charged in count 1 was indeed an offence known to Commonwealth law. They held that the *LSD Act (SA)* was applicable in its application to the investigation of a State offence by a State police officer, and that the recordings were not unlawful as both parties to the conversations were participants. Similarly, the *SD Act (Cth)* was found to be applicable in its application to the investigation of a Commonwealth offence, and the recordings were not unlawful for non-compliance with this Act. However, the court found that the agreed facts provided an insufficient foundation to answer questions concerning the intentions of certain individuals and the subsequent application of the law, deeming it inappropriate to answer those specific questions.

Orders

Orders of the court

Held per Kourakis CJ (Vanstone and Kelly JJ agreeing): [7.1] Yes, the offence charged in count 1 is an offence known to the law of the Commonwealth – [7.2] (i) Yes, the LSD Act (SA) is applicable as a law of the Commonwealth in its application to the investigation of a State offence by a police officer of this State – [7.2] (ii) No, the recording was not unlawful, no warrant was required to record the conversations because both Gavrilovic and U41 were parties to the conversation – [7.3] (i) Yes, in its application to the investigation of a Commonwealth offence, the SD Act (Cth) is applicable – [7.3] (ii) No, the recording was not unlawful for want of compliance with the SD Act (Cth) – [7.4] It is inappropriate to answer, the agreed facts are an insufficient factual foundation on which to answer – [7.5] It is inappropriate to answer, the question does not arise in the absence of a substantive answer to [7.4].

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

The agreed facts are an insufficient factual foundation on which to answer Question [7.4]. There are no findings as to the intentions of U41 and Gavrilovic which would allow an answer to that question to be given. Question [7.5] does not arise in the absence of a substantive answer to Question [7.4]. I would answer both of those questions, “It is inappropriate to answer”.Conclusion The answers to the stated questions are:[7.1]:Yes.[7.2(i)]:Yes, in its application to the investigation of a State offence.[7.2(ii)]:No.[7.3(i)]:Yes in its application to the investigation of a Commonwealth offence.[7.3(ii)]:No.[7.4]:It is inappropriate to answer.[7.5]:It is inappropriate to answer. VANSTONE J: I agree that the questions reserved should be answered as proposed by the Chief Justice. I agree with the reasons the Chief Justice has written. KELLY J: I agree that the questions reserved should be answered as indicated by the Chief Justice and with the reasons the Chief Justice has given.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.