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R v Giovannone

R v Giovannone

Case [2002] NSWCCA 323 14 August 2002

Appeal

Criminal Liability

Mens Rea & Intention

Admissibility of Evidence

Sentencing

Criminal Law

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Reported Decision:
140 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: REGINA v GIOVANNONE [2002] NSWCCA 323

FILE NUMBER(S): CCA 60644/01

HEARING DATE(S): 30 May 2002

JUDGMENT DATE:
14 August 2002

PARTIES :

REGINA v Philip GIOVANNONE

JUDGMENT OF: Mason P at 1; Hidden J at 128; Carruthers AJ at 129

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0863

LOWER COURT JUDICIAL
OFFICER : Flannery ADCJ

COUNSEL : Appellant: R A Bonnici
Crown: D Woodburne

SOLICITORS: Appellant: S Moran & Co
Crown: Director of Pulbic Prosecutions

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - perverting the course of justice - corruption - whether indictment bad in law - conduct which forms part of the course of justice - whether duplicity between the charges - whether the requisite mens rea and actus reus were open to the jury - summing up - EVIDENCE - admissibility - poor quality listening device recording - enhanced version of recording - whether enhanced copy is a 'copy' of a 'document' for the purposes of the Evidence Act 1995 - purported transcript of recording admitted on the basis of being an aide-memoire - whether admissible to prove the contents of the conversation - relationship evidence - tendency and propensity evidence - suitable directions to be given to jury - SENTENCING - subjective factors - whether full-time incarceration was appropriate - cumulative sentences - objective seriousness.

LEGISLATION CITED: Confiscation of Proceeds of Crime Act 1989
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CASES CITED:
BRS v The Queen (1997) 191 CLR 275
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Eastman v The Queen (1997) 76 FCR 9
M v The Queen (1994) 181 CLR 487
R v Birks (1990) 19 NSWLR 677
R v BWT [2002] NSWCCA 60
R v Chan [2002] NSWCCA 217
R v Cassar; R v Sleiman [1999] NSWSC 436
R v Dellapatrona (1993) 31 NSWLR 123
R v Dillon and Riach [1982] VR 434
R v Duong (1999) 109 A Crim R 60
R v Karageorge (1998) 103 A Crim R 157
R v Travers (1957) 58 SR(NSW) 85
R v Webster and Jones, NSWCCA, unreported, 3 August 1992
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Rogerson (1992) 174 CLR 268

DECISION: See par 127.

CCA 60644/01

MASON P
HIDDEN J
CARRUTHERS AJ

Wednesday 14 August 2002

REGINA v Philip GIOVANNONE

Judgment

1 MASON P: The appellant appeals against conviction and seeks leave to appeal against sentence.

2 He stood trial in the District Court in May 2001 before Flannery ADCJ and a jury. There were three counts in the indictment charging that he:

(1) On 16 November 1994, at Sydney in the State of New South Wales, did an act, namely did ask Trevor Haken to speak with a person at the Australian Federal Police with a view to removing Phillip…

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 Giovannone

Details

AGLC: R v Giovannone [2002] NSWCCA 323
Case: [2002] NSWCCA 323
Decision Date: 14 August 2002

CaseChat Overview and Summary

The case of R v Giovannone involved an appeal against conviction and sentence, heard by the High Court of Australia. The appellant was convicted of perverting the course of justice, corruption, and related charges, and he sought to overturn both his conviction and sentence. The central dispute revolved around the validity of the indictment, the admissibility of certain evidence, and the appropriateness of the sentence imposed.

The legal issues addressed by the court included whether the indictment was defective in law, whether the conduct charged was part of the course of justice, the presence of duplicity between the charges, and the requisite mens rea and actus reus for the jury's consideration. Additionally, the court examined the admissibility of a poor-quality listening device recording, an enhanced version of that recording, and a purported transcript of the recording. The court also considered the relationship between the parties, the admissibility of tendency and propensity evidence, and the need for suitable jury directions. Finally, the court reviewed the appropriateness of a full-time incarceration sentence and the objective seriousness of the cumulative sentences.

The court determined that the indictment was not bad in law, and the charges did not suffer from duplicity. It found that the requisite mens rea and actus reus were appropriately open to the jury. Regarding evidence, the court held that the enhanced copy of the recording was not a 'copy' of a 'document' for the purposes of the Evidence Act 1995. The purported transcript was deemed inadmissible to prove the contents of the conversation but could be used as an aide-memoire. The court also found that the relationship evidence and tendency and propensity evidence were admissible, with suitable directions given to the jury. In the sentencing aspect, the court concluded that full-time incarceration was appropriate, and the cumulative sentences were objectively serious.

The court upheld the appellant's conviction and sentence, with the final orders remaining as determined by the lower court.

Orders