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R v Marchione

R v Marchione

Case [2002] NSWCCA 131 12 April 2002

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Reported Decision:
(2002) 128 A Crim R 575

New South Wales

Court of Criminal Appeal

CITATION: Regina v Marchione [2002] NSWCCA 131

FILE NUMBER(S): CCA 60640/01

HEARING DATE(S): 7/11/01

JUDGMENT DATE:
12 April 2002

PARTIES :

John Marchione (Appellant)
Regina

JUDGMENT OF: Heydon JA at 1; Dowd J at 2; Bell J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/1002

LOWER COURT JUDICIAL
OFFICER : Norrish DCJ

COUNSEL : G. Smith (Regina)
J. Gordon (Appellant)

SOLICITORS: SE O'Connor
LMG Solicitors (Appellant)

LEGISLATION CITED: Criminal Appeal Act 1912
District Court Rules 1973
Drug Misuse and Trafficking Act 1985

CASES CITED:
Jago v The District Court of New South Wales (1989) 168 CLR 23
R v Edelsten (1989-90) 18 NSWLR 213
R v Lethlean (1995) 83 A Crim R 197
R v Thomas (1993) 67 A Crim R 308
Regina v Groves (unreported) NSWCCA 2 April 1990
Ridgeway v The Queen (1994-1995) 184 CLR 19
Walton v Gardiner (1992-1993) 177 CLR 379

DECISION: Time extended in which to file the notice of appeal; Appeal dismissed

60640/01

HEYDON JA
DOWD J
BELL J
12 April 2002

REGINA v John MARCHIONE

Judgment

1 HEYDON JA: I agree with Bell J.

2 DOWD J: I agree with the proposed orders of Bell J and her reasons for those orders.

3 BELL J: This is an appeal brought pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 (“the Act”) against an order of Norrish DCJ refusing an application that he permanently stay proceedings on an indictment.

4 The indictment charged the appellant with two counts; (i) that between 17 January 2000 and 2 June 2000 in the State of New South Wales he did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, and (ii) that on 25 January 2000 at Erskine Park in the State of New South Wales he did knowingly take part in the supply of a prohibited drug, namely methylamphetamine.

5 The offence charged in count one is created by s 24(1) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”). The offence charged in count two is created by s 25(1) of the DMT Act.

6 It appears that the appellant’s trial was listed to commence before Judge Norrish QC on Monday 27 August 2001. On that day the appellant’s counsel moved for an order permanently staying proceedings on count one of the indictment (“the order”). The motion was not on notice and did not conform with the requirements of Pt 53 r 10 of the District Court Rules 1973.

7 The basis upon which the order was sought does not appear to have been identified with clarity. His Honour treated the application as one to permanently stay the proceedings upon the basis that to prosecute the offence charged in count one would amount to an abuse of the processes of the court since the proceedings with respect to that count were foredoomed to…

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 Marchione

Details

AGLC: R v Marchione [2002] NSWCCA 131
Case: [2002] NSWCCA 131
Decision Date: 12 April 2002

CaseChat Overview and Summary

In the case of Regina v Marchione, the appellant appealed against an order of Norrish DCJ, which refused an application for a permanent stay of proceedings on an indictment. The indictment charged the appellant with two counts: knowingly taking part in the manufacture of a prohibited drug, namely methylamphetamine, and knowingly taking part in the supply of a prohibited drug, namely methylamphetamine. The appeal was brought pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912. The primary issues in this case were whether the Court of Criminal Appeal had jurisdiction to hear the appeal, and if the lower court judge had erred in his interpretation of sections 6 and 24(1) of the Drug Misuse and Trafficking Act 1985 and in his application of a previous Court of Criminal Appeal decision in BD.

The Court of Criminal Appeal found that it had jurisdiction to hear the appeal, as the order in question was an interlocutory judgment or order given or made in the proceedings, as required by s 5F. The Court also found that the lower court judge did not err in his interpretation of the relevant sections of the Act or in his application of the BD decision. The evidence presented, including recorded telephone conversations between the appellant and another individual, was sufficient to establish that the appellant was supplying Sudafed (or its generic equivalent) in the knowledge that the other individual and/or their associates were engaged in a process of manufacture intended to produce methylamphetamine.

As a result, the Court of Criminal Appeal extended the time in which to file the notice of appeal and dismissed the appeal. The final orders were to extend time in which to file the notice of appeal and dismiss the appeal.

Orders