R v RUSSO

[2017] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RUSSO

[2017] SASCFC 78

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Lovell)

6 July 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

Appeal against conviction by a jury for trafficking in methylamphetamine in relation to 27.6 grams of the drug located at the appellant’s residence.  The appellant was jointly tried for the same offence with Giovanni Vartuli, however the jury did not return a verdict in respect of Mr Vartuli. 

The prosecution case was that the appellant and Mr Vartuli had organised a delivery of methylamphetamine by Mr Vartuli with the intention that the appellant would on-sell the drugs.  At trial the appellant pleaded guilty to the alternative offence of possession but pleaded not guilty to the charge of trafficking.  He gave evidence that he did not acquire the methylamphetamine from Mr Vartuli but purchased the drugs from a dealer for his personal use.  He denied any intention to sell or supply the drugs to others.

On appeal, the appellant argued that on the whole of the evidence the appellant’s conviction was unsafe or unreasonable.  Second, that in any event, the verdict of guilty was unsafe or unreasonable as it is inconsistent with the jury’s failure to reach a verdict in relation to the trafficking charge against Mr Vartuli.  Third, that the verdict of guilty was unsafe or unreasonable as it cannot be supported given the jury’s failure to reach a verdict on the trafficking against Mr Vartuli which logically must have been reached on a different factual basis from that alleged by the prosecution.

Held: Permission to appeal on grounds 1 and 2 is refused and the appeal is dismissed.

1.  The verdict of guilty on the trafficking charge was open on the evidence; in particular, the jury was entitled to reject the appellant’s evidence regarding his intention that he possessed the drug solely for personal use given the quantity he admitted to possessing.  In these circumstances it cannot be said that the jury must have entertained a doubt as to his guilt.  A fortiori it cannot be said that the jury must have been persuaded on the balance of probabilities that the appellant did not possess the methylamphetamine for sale (at [18]).

2.  While it is possible for a verdict to be set aside as unsafe or unsatisfactory where it cannot be reconciled with a jury’s inability to reach a verdict on other counts, a failure to reach a verdict is not the same as an inconsistent verdict.  Further, a guilty verdict will only be set aside where it is an affront to logic and common sense.  In this case the critical difference is that the prosecution had to prove beyond reasonable doubt that Mr Vartuli possessed the…