R v Micalizzi - [2004] NSWCCA 406

CITATION: R v Micalizzi [2004] NSWCCA 406

HEARING DATE(S): 25 May 2004

JUDGMENT DATE:
22 November 2004

JUDGMENT OF: Hulme J at 1; Simpson J at 10; Howie J at 59

DECISION: Appeal against conviction dismissed.

CATCHWORDS: appeal against conviction - supply not less than the large commercial quantity of a prohibited drug - whether the Crown had established, beyond reasonable doubt, relevant knowledge in the appellant - directions to the jury - application of Criminal Appeal Act s6(1): the proviso - application of Criminal Appeal Rules, Rule 4

LEGISLATION CITED: Criminal Appeal Act 1912 s6(1)
Criminal Appeal Rules, Rule 4
Drug Misuse and Trafficking Act 1985 s3, s25(2), s29, s33(3)

CASES CITED: He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523
R v Clark (2001) 123 A Crim R 506
R v Fung [2002] NSWCCA 479; 136 A Crim R 95
R v GPP (2001) 129 A Crim R 1
R v Lau [1998] 105 A Crim R 167
R v Williams (1990) 50 A Crim R 213
Singleton v Ffrench (1986) 5 NSWLR 425
Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348

PARTIES :
Crown
Carmel Antonio Micalizzi - Appellant

FILE NUMBER(S): CCA 2003/3139

COUNSEL: Ms D Woodburne - Crown
A Bellanto QC - Appellant

SOLICITORS: S Kavanagh - Crown
P White - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0870

LOWER COURT
JUDICIAL OFFICER : Holt DCJ

2003/3139
(60527/03)

HULME J
SIMPSON J
HOWIE J
Monday 22 November 2004

REGINA v Carmel Antonio MICALIZZI

Judgment

1 HULME J: In this matter I have had the advantage of reading the reasons for judgment of Simpson J. I agree with her Honour that the appeal should be dismissed. Subject to the following remarks, I agree also with most of her Honour’s reasons and in particular that the trial judge’s directions were confusing in a number of respects but that in light of the issues at the trial and what his Honour did say, there was no miscarriage of justice.

2 I can accept that the trial judge’s directions, given on a number of occasions, to the effect that the Crown must prove that the Accused knew that the amount of heroin was not less than a large commercial quantity and, differently expressed, that the Accused knew he was in possession of not less than a large commercial quantity of heroin, may at times have emphasised knowledge of quantity rather than of the nature of the drug. However, I do not regard this emphasis as sufficient to permit any realistic possibility that the jury could have been left in any doubt that the Crown had to establish knowledge of both drug and quantity. Furthermore at an early stage of the summing-up his Honour stated this expressly. He said:-

“Whilst knowledge and possession of the smaller amount of heroin – ie. a trafficable quantity that is not less than 3 grams – is necessary to fulfil the deeming provision of section 29,…

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 Micalizzi

Details

AGLC: R v Micalizzi [2004] NSWCCA 406
Case: [2004] NSWCCA 406
Decision Date: 22 November 2004

CaseChat Overview and Summary

In this case, the appellant, Micalizzi, was convicted for his involvement in the supply of a large commercial quantity of a prohibited drug. The appellant appealed against his conviction, contending that the trial judge erred in the directions given to the jury regarding the relevant knowledge element of the offence, and that the evidence was insufficient to establish his knowledge beyond reasonable doubt. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the trial judge had correctly directed the jury regarding the requirement for the Crown to establish the appellant's knowledge of the prohibited drug supply, and if the evidence was sufficient to prove such knowledge beyond reasonable doubt. Additionally, the court considered whether the appeal was properly before it under the Criminal Appeal Act and Criminal Appeal Rules.

The court held that the trial judge had indeed erred in the directions given to the jury, which had the potential to prejudice the appellant's case. However, the court found that the error was not so significant as to warrant a miscarriage of justice under the proviso of section 6(1) of the Criminal Appeal Act. Furthermore, the court found that the evidence was sufficient to establish the appellant's knowledge of the drug supply beyond reasonable doubt. Consequently, the appeal was dismissed.

The court did not make any further orders in this case.

Orders