R v Nardozzi - [1994] QCA 259

IN THE COURT OF APPEAL	[1994] QCA 259
SUPREME COURT OF QUEENSLAND
C.A. No. 33 of 1994.
Brisbane
[R v. Nardozzi]

T H E Q U E E N

ROBERT SERGIO NARDOZZI

(Applicant)

_________________________________________________________________

The Chief Justice
Pincus J.A.
McPherson J.A.

_________________________________________________________________

Separate reasons for judgment of each member of the Court. The Chief Justice and McPherson

J.A. concurring as to the order to be made, Pincus J.A. dissenting.

Judgment delivered 13/07/1994.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS:EVIDENCE - onus of proof - applicant convicted of possession of heroin in excess of the quantity specified in Third Schedule of Drugs Misuse Act 1986, and possession of cannabis sativa - trial judge found that possession was for a commercial purpose - trial judge found there was a prima facie case of existence of a commercial element, based on the quantities of the drugs involved - implication applicant had onus to rebut prima facie case - whether prosecution had onus of proving, beyond reasonable doubt, the existence of a commercial element in the possession of the drugs.

Drugs Misuse Act 1986 s. 9(b), (c). Anderson (1993) 67 A.Crim.R. 582. J(Jnr) (1989) 41 A.Crim.R. 466.

Counsel:Mr W Cuthbert for the applicant.
Mr T Winn for the respondent.

Solicitors:Michael Robinson for the applicant. Director of Prosecutions for the respondent. Date of Hearing:21/04/1994.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 13/07/1994

Pincus J.A. has prepared reasons which make reference to the facts and the relevant statutory provisions in this matter. This summary will reduce the extent of the references which would otherwise be necessary in these reasons.

In contradistinction to the South Australian legislation which was considered in Anderson v. The Queen (1993) 67 A.L.J.R. 911, the relevant Queensland provision with which we are particularly concerned, s.9 of the Drugs Misuse Act 1986 dealing with unlawful possession, contains no reference to "commercial purpose". Nevertheless, the sentencing judge in this case concerned himself with that concept and he clearly regarded the possibility of its being present as a critical factor in deciding on the appropriate sentence to be imposed. When his approach is closely examined it should be concluded that he was not in error.

Anderson (supra) required the court to resolve an issue involving onus of proof where a degree of tension existed between two possibly applicable legislative provisions. One of them, s.32(6) of the Controlled Substances Act 1984 (S.A.) provided that the maximum prescribed penalty was to be reduced in a case where the court was "satisfied" that the offender had "produced the cannabis solely for his own smoking or consumption" and the other provision, s.45(a) of the same Act provided for a penalty called an "expiation fee" to be payable when the offence arose out of cannabis cultivation that did not involve "cultivation ... for commercial purposes".

In Anderson in the High Court, the majority decided that the way in which the court below had balanced the operation of the two provisions referred to and determined…

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 Nardozzi

Details

AGLC: R v Nardozzi [1994] QCA 259
Case: [1994] QCA 259
Decision Date: 13 July 1994

CaseChat Overview and Summary

In the matter of R v Nardozzi, the applicant appealed against the sentence imposed for possession of heroin and cannabis sativa. The primary judge had concluded that there was a commercial element in the possession of both drugs. The applicant's counsel argued that the primary judge had misapplied the onus of proof, requiring the prosecution to prove the existence of a commercial element beyond reasonable doubt. The Court of Appeal examined whether the primary judge erred in his approach to the onus of proof and the standard of proof applied. The Chief Justice and McPherson J.A. held that no error had been shown in the approach taken by the sentencing judge, and the application for leave to appeal against sentence was dismissed. Pincus J.A., however, dissented, finding that the primary judge had erred in his application of the onus of proof and that the matter should be remitted for re-hearing on the question of sentence only.

Orders