R v Prochilo - [2003] NSWCCA 265

CITATION: Regina v Prochilo [2003] NSWCCA 265

HEARING DATE(S): 11 February 2003

JUDGMENT DATE:
19 September 2003

JUDGMENT OF: Beazley JA at 1; Greg James J at 2; Smart AJ at 3

DECISION: Appeal against conviction dismissed.

CATCHWORDS: Supply of prohibited drug - Evidence established joint enterprise not a case of conspiracy - Proof of participation in joint enterprise may be established by other than presence at scene of supply - Agreement as essence of joint criminal enterprise emphasised - Directions not confusing - Jury told what activities constituted the supply and what supply meant - What taped conversation could be considered and the use to be made of them - Facts supported "supply" and adequate directions given as to elements of "supply" and material facts - no error in admitting challenged evidence and in directions given as to its use.

LEGISLATION CITED: Drug Misuse and Trafficking Act (1985)
Evidence Act (1995)

CASES CITED: Osland v. The Queen (1998) 197 CLR 316
R v. Lowery and King (No 2) (1972) VLR 560
Tangye (1997) 92 A Crim R 545
Ahern v. The Queen (1988) 165 CLR 87
Carusi and Casser (1989) 17 NSWLR 516

PARTIES :
Appellant: Francesco Rocco Prochilo
Respondent: Regina

FILE NUMBER(S): CCA 60024/02

COUNSEL: Appellant: J. Papayanni
Respondent: D. Frearson

SOLICITORS: Appellant: Jeffreys and Associates
Respondent: S.E. O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0167

LOWER COURT
JUDICIAL OFFICER : Norrish DCJ

60024/02

BEAZLEY JA

GREG JAMES J

SMART AJ

Friday, 19 September 2003

Regina v Francesco Rocco prochilo

JUDGMENT

1. BEAZLEY JA

: I agree with Smart AJ.

2. GREG JAMES J

: I agree with Smart AJ.

3. SMART AJ

: Francesco Rocco Prochilo appeals against his conviction in the District Court of the charge that between 13 October 1998 and 22 November 1998 at Deniliquin he supplied a prohibited drug, namely, cannabis, contrary to s.25 of the Drug Misuse & Trafficking Act 1985. The appellant was sentenced to imprisonment for 2 years and 3 months, commencing on 21 September 2001, with a non-parole period of 12 months. He has been on parole since 20 September 2002.

4. The Crown case was that the appellant and his co-offender, Norman Hunt, were engaged in the business of supplying cannabis in the Deniliquin area. Supplies of cannabis were obtained from a number of wholesalers principally in Melbourne and brought to Deniliquin and other nearby towns and distributed amongst customers. To prove its case the Crown relied on surveillance, and some circumstantial evidence, but principally on 57 telephone intercepts of conversations between the suppliers and Hunt and those between the appellant and Hunt. A study of each of the 57 tapes establishes that Hunt and the appellant were jointly engaged in a business of purchasing cannabis supplies from wholesalers in Melbourne and elsewhere and selling cannabis to local customers. Most of the tapes are of conversations between Hunt and the appellant.

5. It is useful to refer to the glossary and explanations provided by…

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 Prochilo

Details

AGLC: R v Prochilo [2003] NSWCCA 265
Case: [2003] NSWCCA 265
Decision Date: 19 September 2003

CaseChat Overview and Summary

In the case of R v Prochilo, the respondent was charged with the supply of a prohibited drug, specifically cocaine, under section 23D of the Drugs Misuse and Trafficking Act 1985. The trial judge provided directions to the jury that the offence of supplying a prohibited drug could be committed by a person who was a party to a joint criminal enterprise, even if they were not present at the scene of the actual supply. The respondent appealed against his conviction, arguing that the trial judge’s directions on joint criminal enterprise were misleading and that the evidence of the taped conversations was inadmissible.

The primary legal issue for the court to determine was whether the trial judge’s directions to the jury regarding joint criminal enterprise were correct and whether the evidence of the taped conversations was admissible and correctly directed to the jury. Specifically, the court needed to consider whether the trial judge had adequately distinguished between a conspiracy and a joint criminal enterprise, and whether the evidence of the taped conversations was relevant and admissible in proving the respondent's participation in the joint criminal enterprise. The court also had to determine whether the trial judge’s directions to the jury regarding the elements of the offence of supply were adequate.

The court held that the trial judge’s directions to the jury were correct and that the evidence of the taped conversations was admissible and properly directed. The court emphasised that an agreement was the essence of a joint criminal enterprise, and that the presence of the accused at the scene of the supply was not necessary. The court found that the trial judge had clearly distinguished between a conspiracy and a joint criminal enterprise and had adequately directed the jury on the elements of the offence of supply. The court also held that the evidence of the taped conversations was relevant and admissible in proving the respondent's participation in the joint criminal enterprise, and that the trial judge had properly directed the jury on the use to be made of that evidence.

The appeal was dismissed, and the respondent's conviction was upheld. The court found that the trial judge's directions to the jury were clear and adequate, and that the evidence of the taped conversations was properly admitted and directed. The court held that the trial judge had correctly distinguished between a conspiracy and a joint criminal enterprise, and that the evidence supported the jury's finding that the respondent was a party to a joint criminal enterprise involved in the supply of cocaine.

Orders