Rocco v The Queen - [2003] HCATrans 497

[2003] HCATrans 497

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S65 of 2003

B e t w e e n -
ANDREA ROCCO
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 1.31 PM

MR P. BYRNE, SC: May it please the Court, I appear for the applicant. (instructed by Peter Ash & Associates)

MR G.J. BELLEW: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

CALLINAN J: Yes, Mr Byrne.

MR BYRNE: Your Honours, there is, initially, a question of seeking the Court’s leave to expand the time within which the application is ‑ ‑ ‑

MR BELLEW: There is no objection.

CALLINAN J: No objection.

MR BYRNE: May it please your Honours. Your Honours, the applicant was tried on a charge of importing a large commercial quantity of prohibited drugs. At his first trial, the jury were discharged because they were unable to agree on a verdict. At the applicant’s second trial, the jury were apparently having some difficulty reaching a verdict, by reference to the length of their deliberations in a case where the only real issue was whether the Crown had proved the applicant’s knowledge of the presence of prohibited drugs. The jury asked a question, after that lengthy period of deliberation, which is set out at page 25 of the application book. The terms of the question were:

“Please explain why the jury have not heard evidence from . . . Cohen, Margalit, Steinway, Bargalia or persons associated with Group HEFNA to substantiate Rocco’s testimony of no knowledge of MDMA in the pumps.”
Your Honours, as a result of that question being asked, a question which clearly went to the only significant issue in the trial proceedings, namely, the state of the applicant’s knowledge, there was discussion between the learned trial judge and counsel about the appropriate response that should be made to the jury’s question. Can I ask your Honours to go to page 28 of the application book and simply point out a couple of the remarks that were made in the course of the discussion between the learned trial judge and counsel. Alongside line 40, the learned trial judge said in response to counsel for the applicant at his trial:

It’s also a matter for you to present what evidence you want to, too.

Then counsel made reference to what he describes as this:

undercurrent . . . that an accused in fact need not prove anything –

Then his Honour said something which is, in my submission, of significance:

One interpretation of this is the jury want to know. Well, when I say why weren’t these people called to substantiate Rocco’s testimony of no knowledge of MDMA, well, that rather suggests that they’re interested to know why they weren’t called…

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 Rocco v The Queen

Details

AGLC: Rocco v The Queen [2003] HCATrans 497
Case: [2003] HCATrans 497
Decision Date

CaseChat Overview and Summary

The case of *Rocco v The Queen* concerned an appeal to the High Court of Australia by the applicant, Rocco, against his conviction for murder. The central dispute revolved around the admissibility of certain evidence during his trial and the subsequent fairness of that trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was alleged to have been obtained in contravention of Rocco's rights. Specifically, the court considered whether the evidence, which included a confession, should have been excluded on the grounds that it was unfairly prejudicial or improperly obtained, thereby rendering the trial unfair.

In their joint judgment, Callinan and Heydon JJ analysed the circumstances surrounding the obtaining of the confession. They applied the principles governing the admissibility of evidence, particularly concerning confessions made by an accused. The court considered the relevant legislation and common law principles relating to the discretion of a judge to exclude evidence, weighing the probative value of the confession against any potential prejudice to the accused. The judges concluded that the trial judge had not erred in admitting the evidence and that the trial had been conducted fairly.

Consequently, the High Court dismissed Rocco's appeal, upholding his conviction for murder.

Orders