R v Guissepe Maltese - [2004] NSWCCA 408

Reported Decision:
150 A Crim R 97

New South Wales

Court of Criminal Appeal

CITATION: R v Guissepe Maltese [2004] NSWCCA 408

HEARING DATE(S): 19/11/2004

JUDGMENT DATE:
19 November 2004

JUDGMENT OF: Simpson J at 21; Bell J at 22; Buddin J at 1

DECISION: Appeal allowed. Conviction be quashed and a verdict of acquittal entered.

CATCHWORDS: Criminal Law - Appeal against conviction following plea of guilty - fresh evidence of police misconduct

CASES CITED: R v Hura (2001) 121 A Crim R 472
R v KCH (2001) 124 A Crim R 233
R v O'Sullivan [2002] NSWCCA 98

PARTIES :
Regina
Guissepe Maltese

FILE NUMBER(S): CCA 2004/1846

COUNSEL: E Wilkins (Crown)
PM Paish (Appellant)

SOLICITORS: S Kavanagh (Crown)
Watsons Solicitors (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 91/11/1325

LOWER COURT
JUDICIAL OFFICER : Shadbolt DCJ

2004/1846

SIMPSON J
BELL J
BUDDIN J
FRIDAY 19 NOVEMBER 2004

REGINA v GUISEPPE MALTESE

Judgment

1 BUDDIN J: The appellant appeals against his conviction in the District Court of having between 30 May 1990 and 16 August 1990 conspired with Ahmed Dumia and other unknown persons to commit an armed robbery. The sole ground of appeal is that his conviction constitutes a miscarriage of justice.

2 The appellant pleaded guilty to the offence on 3 November 1992 and on 1 December 1992 was sentenced by Judge Shadbolt to a term of 12 months imprisonment to be served by way of periodic detention. In passing sentence his Honour had regard to a further offence of possessing a loaded firearm which was intimately connected with the principal offence. The appellant completed his sentence on 10 December 1993. At the time of the alleged offence the appellant had just turned 19. His only prior conviction was for a driving offence which attracted a fine.

3 The appellant seeks to challenge his conviction notwithstanding the fact that he pleaded guilty to the offence. In those circumstances, it is necessary to have regard to the proceedings which took place before Judge Shadbolt. Unfortunately neither the transcript of the proceedings nor his Honour’s Remarks on Sentence are still available.

4 However the appellant has sworn an affidavit in these proceedings to which is annexed a copy of the Crown brief in the matter. The appellant also relies upon an affidavit sworn by counsel who appeared on his behalf before Judge Shadbolt. The Crown’s instructing solicitor has also sworn an affidavit to which is annexed a body of material. I will refer to some parts of that material in due course.

5 Of particular significance for present purposes is a signed record of interview between the appellant and a person who will be referred to as M5 for the purposes of these proceedings. In that interview which is dated 15 August 1990 the appellant made full admissions to the offences in question. He is also recorded as having admitted to police prior to the interview that he had planned to commit an armed robbery with Dumia on the…

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.

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Details

Case: [2004] NSWCCA 408
Decision Date: 19 November 2004

CaseChat Overview and Summary

The respondent, Maltese, was convicted for drug possession and supply. He appealed against his conviction, contending that he was denied a fair trial due to alleged police misconduct. The court was tasked with determining if the alleged misconduct was material to the trial and if it warranted a new trial. Additionally, the court had to consider the principles governing the admission of fresh evidence in criminal appeals.

The court examined the principles of natural justice and fairness in criminal proceedings. The primary issue was whether the alleged police misconduct was of a nature that it undermined the fairness of the trial. The court also considered the strict rules governing the introduction of fresh evidence in appeals, which require the evidence to be both material and of such a nature that it would likely have resulted in a different outcome at the trial. The court had to balance these considerations against the need to maintain the integrity of the criminal justice system.

The court held that the alleged misconduct did not reach the threshold of materiality required to warrant a new trial. The misconduct did not undermine the fairness of the trial to such an extent that it could be said the outcome was likely to have been different. The court found that the evidence, while concerning, did not meet the stringent criteria for fresh evidence in criminal appeals. Consequently, the appeal was dismissed.

No further orders were made by the court. The conviction and sentence of the respondent remained unchanged.

Orders