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R v Zaiter

R v Zaiter

Case [2004] NSWCCA 35 25 February 2004

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CITATION: Regina v Zaiter [2004] NSWCCA 35

HEARING DATE(S): 25/02/04

JUDGMENT DATE:
25 February 2004

JUDGMENT OF: Ipp JA at 1; Sully J at 28; Adams J at 29

DECISION: (1) Appeal upheld (2) Verdict of the jury set aside and in lieu thereof there be entered a judgment of acquittal.

CATCHWORDS: CRIMINAL LAW - Supply of methylamphetamine and ecstasy with knowledge - Intermediate fact that was an indispensable basis for an inference of guilt - Where trial judge did not give a direction that such fact must be proved beyond reasonable doubt - PRACTICE AND PROCEDURE - Whether a new trial should be ordered - Probability that Crown would run the case in a different manner - Whether a reasonable jury would be able to return a verdict of guilty.

LEGISLATION CITED:

CASES CITED: Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Gipp v The Queen (1998) 194 CLR 106
Shepherd v The Queen (1990) 170 cLR 573

PARTIES :
Regina v George Zaiter

FILE NUMBER(S): CCA 60495/03

COUNSEL: G Rowling (Crown)
S Odgers SC (Appellant)

SOLICITORS: S Kavanagh (Crown)
J Nicopoulos (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1043

LOWER COURT
JUDICIAL OFFICER : Ainslie-Wallace DCJ

60495/03

IPP JA
SULLY J
ADAMS J
Wednesday 25 February 2004

REGINA v GEORGE ZAITER

Judgment

1 IPP JA: On 21 February 2003 the appellant was found guilty on two charges of between 1 November 1998 and 1 September 1999 knowingly taking part in the supply of methylamphetamine and ecstasy between those dates. The appellant appeals against those convictions. He also applies for leave to appeal against sentence.

2 In the light of the conclusion to which I have come in regard to the appeal against conviction, it will not be necessary for me to deal with the application for leave to appeal against sentence.

3 The critical issue at the trial was whether the appellant knew, in August 1999, that a man called Pedavoli was using a flat of which the appellant was a lessee, to keep drugs for supply. The other elements of the offences were, in reality, not in issue. The case was fought, essentially, on the basis of whether the requisite knowledge had been proved beyond reasonable doubt.

4 On 19 April 1999 the appellant leased certain premises in Albert Street in a false name. The Crown case at the trial was that he entered into the lease and did so under a false name, because he knew Pedavoli was going to use the flat to store drugs for supply there.

5 Bearing this in mind, the basic facts on which the Crown relied for an inference of knowledge to be drawn beyond reasonable doubt are the following:

(a) tapes of telephone recordings made between December 1998 to early April 1999 showed that the appellant knew that Pedavoli was a supplier of drugs;

(b) on 19 April the appellant entered into the lease in the false name with the specific purpose of allowing Pedavoli…

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 Zaiter

Details

AGLC: R v Zaiter [2004] NSWCCA 35
Case: [2004] NSWCCA 35
Decision Date: 25 February 2004

CaseChat Overview and Summary

In the matter of R v Zaiter, the defendant was convicted by a jury of supplying methylamphetamine and ecstasy with knowledge. The case was heard in the Supreme Court of Victoria, with the appeal being brought by the defendant. The central issue before the court was whether the trial judge had erred in not directing the jury that an intermediate fact, which was essential for inferring guilt, needed to be proved beyond reasonable doubt. Additionally, the court examined whether, given the potential for the Crown to conduct the case differently at a retrial, a new trial should be ordered and whether a reasonable jury could still find the defendant guilty.

The court meticulously reviewed the trial judge's instructions to the jury, focusing on the necessity for a clear direction regarding the proof of the intermediate fact. It was determined that the omission of such a direction constituted a significant error. The court considered whether this error was so substantial that it might have affected the jury's verdict. In evaluating the likelihood of a different outcome at a retrial, the court also took into account the probability that the prosecution might alter its approach, potentially impacting the jury's ability to convict.

Upon weighing these considerations, the court concluded that the error was of such a nature that it warranted a new trial. The court found that there was a real possibility that the jury might not have been properly guided in their deliberations, thereby affecting the fairness of the trial. Consequently, the appeal was upheld, and a new trial was ordered. The court's decision underscored the importance of precise jury directions to ensure the integrity of criminal trials.

Orders