R v Zagata - [2004] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION:

R v Zagata [2004] QCA 349

PARTIES:

R
v
ZAGATA, Erik William
(appellant/applicant)

FILE NO/S:

CA No 397 of 2003
CA No 143 of 2004
SC No 509 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

6 July 2004, 7 July 2004

JUDGES:

Davies, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Set aside the convictions on counts 3 and 4 of the indictment and enter a verdict of acquittal
2. Set aside the order requiring the appellant to serve the whole of the suspended sentence imposed on 18 May 2000

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL - where the appellant was found guilty of two counts of unlawfully producing the drug methylamphetamine - where it was alleged the appellant supplied pseudoephedrine to another, knowing it was to be used in producing methylamphetamine - where the jury must have found as the only rational inference reasonably open to them on the evidence that the appellant supplied the pseudoephedrine knowing that it was likely to be used in the production of methylamphetamine - whether the verdicts of guilty on each of the counts were unreasonable

Criminal Code 1899 (Qld), s 7

Giorgianni v The Queen (1985) 156 CLR 473, cited

Pereira v Director of Public Prosecutions (1989) 82 ALR 217, cited

COUNSEL:

J Cremin for appellant
P F Rutledge, with T A Fuller, for respondent

SOLICITORS:

Gilshenan & Luton for appellant
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: After a trial lasting 27 days the appellant was convicted on two counts of unlawfully producing the dangerous drug methylamphetamine in a quantity exceeding two grams, each between 6 May 1999 and 30 November 2000. He appeals against those convictions. He was sentenced to five years imprisonment on each of those counts, those terms to be served concurrently with each other but cumulatively upon a term of two years imprisonment which had been imposed on 18 May 2000 but suspended and which was ordered to be served. The appellant also seeks leave to appeal against that sentence.

The appellant was tried jointly with Dennis James Lowe who was also convicted of the above and other offences. His appeal was also heard jointly with that of Lowe who also appealed against those and other convictions and sought leave to appeal against his sentence.

The appellant did not give evidence at his trial. The case against him was wholly circumstantial. It was not contended that he was actually involved in the manufacture of the drugs in either count. Rather it was alleged that, in each case, he supplied pseudoephedrine to a Mr Greenup to be supplied…

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 Zagata

Details

AGLC: R v Zagata [2004] QCA 349
Case: [2004] QCA 349
Decision Date: 24 September 2004

CaseChat Overview and Summary

The appellant was convicted of two counts of unlawfully producing methylamphetamine and was subsequently found guilty of two counts of supplying pseudoephedrine to another person, knowing it was to be used in the production of methylamphetamine. The court was asked to determine whether the verdicts of guilty on each count were unreasonable given the circumstantial nature of the evidence. The court considered whether the jury's verdict was the only rational inference that could be drawn from the evidence presented. The case involved the interpretation and application of the Criminal Code 1899 (Qld), s 7, and relevant case law, including Giorgianni v The Queen and Pereira v Director of Public Prosecutions.

The primary legal issue was whether the jury's verdict was unreasonable or insupportable based on the evidence provided. The court examined whether the evidence was such that it was open to the jury to find the appellant guilty of the charges. The court considered the nature of the evidence, which was primarily circumstantial, and whether the jury's conclusion was the only rational inference that could be drawn. The appellant argued that the evidence did not support the jury's verdict as it was not the only rational inference that could be drawn from the evidence. The court had to determine if the verdict was unreasonable or insupportable.

The court found that the evidence, while circumstantial, allowed for the only rational inference that the appellant supplied the pseudoephedrine knowing it was likely to be used in the production of methylamphetamine. However, the court concluded that the verdict on counts 3 and 4 was unreasonable because the evidence did not support the jury's conclusion. The court found that the evidence did not exclude the possibility of an innocent explanation for the appellant's actions, and therefore, the verdict on counts 3 and 4 was unreasonable. The court set aside the convictions on counts 3 and 4 and entered a verdict of acquittal. The court also set aside the order requiring the appellant to serve the whole of the suspended sentence imposed on 18 May 2000.

Orders

Orders of the court

1. Set aside the convictions on counts 3 and 4 of the indictment and enter a verdict of acquittal

2. Set aside the order requiring the appellant to serve the whole of the suspended sentence imposed on 18 May 2000

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Zagata [2004] QCA 349
PARTIES:	R v ZAGATA, Erik William (appellant/applicant)
FILE NO/S:	CA No 397 of 2003 CA No 143 of 2004 SC No 509 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	6 July 2004, 7 July 2004
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Set aside the convictions on counts 3 and 4 of the indictment and enter a verdict of acquittal 2. Set aside the order requiring the appellant to serve the whole of the suspended sentence imposed on 18 May 2000
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL - where the appellant was found guilty of two counts of unlawfully producing the drug methylamphetamine - where it was alleged the appellant supplied pseudoephedrine to another, knowing it was to be used in producing methylamphetamine - where the jury must have found as the only rational inference reasonably open to them on the evidence that the appellant supplied the pseudoephedrine knowing that it was likely to be used in the production of methylamphetamine - whether the verdicts of guilty on each of the counts were unreasonable Criminal Code 1899 (Qld), s 7 Giorgianni v The Queen (1985) 156 CLR 473, cited Pereira v Director of Public Prosecutions (1989) 82 ALR 217, cited
COUNSEL:	J Cremin for appellant P F Rutledge, with T A Fuller, for respondent
SOLICITORS:	Gilshenan & Luton for appellant Director of Public Prosecutions (Queensland) for respondent