Scicluna v The Queen (No. 2) - [2007] NSWCCA 172

New South Wales
Court of Criminal Appeal

CITATION: Scicluna v R (No. 2) [2007] NSWCCA 172

HEARING DATE(S): 06/10/2996

JUDGMENT DATE:
21 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 12; Howie J at 1

DECISION: Appeal against conviction on all counts is dismissed.

CATCHWORDS: Appeal - reopening appeal - failure by majority to deal with all grounds of appeal.

CASES CITED: Scicluna v R [2007] NSWCCA 120
R v Burrell [2007] NSWCCA 79

PARTIES: Stephen Joseph Scicluna v Regina

FILE NUMBER(S): CCA 2006/1559

COUNSEL: D.C. Frearson SC - Crown
S.M. McNaughton - Applicant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1131

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 28/10/2005

2006/1559

McCLELLAN CJ AT CL
ADAMS J
HOWIE J
THURSDAY 21 JUNE 2007

Stephen Joseph SCICLUNA v R (No 2)

Judgment

1 McCLELLAN CJ at CL and HOWIE J: Judgment in this matter was given on 30 April last: see Scicluna v R [2007] NSWCCA 120. By majority the appeal was dismissed, Adams J dissenting. Unfortunately after judgment was delivered, we became aware that we had omitted to deal with one ground of appeal in relation to one of the counts of which the appellant had been convicted. The parties were advised that the Court intended to reopen the matter to deal with the remaining ground of appeal but that it did not require further submissions.

2 The jurisdiction of this Court to reopen an appeal notwithstanding that judgment has been delivered and orders made was extensively considered in R v Burrell [2007] NSWCCA 79. It is unnecessary to again review the relevant authorities and we have no doubt that this Court has power to ensure that the appeal is determined on its merits by a consideration of all grounds of appeal so that the matter is finally determined.

3 The facts can be stated shortly for present purposes. The applicant stood trial on four charges; three alleged his possession of, or involvement in the manufacture of, methylamphetamine (“the drug charges”) and one alleged his possession of a prohibited weapon, being a hand held instrument for the administration of electric shocks (“the weapon charge”). The charges arose from a police search of the appellant’s premises as a result of which methylamphetamine was found in the appellant’s bedroom and, in a shed on the property, a disassembled laboratory for the making of methylamphetamine and an amount of precursor for that drug. The prohibited weapon was found in a drawer beside the appellant’s bed.

4 After trial by jury the appellant was convicted of all four charges.

5 The grounds of appeal relied upon asserted that there were errors in the Judge’s summing up relating to the drug charges and that each of the four convictions were unreasonable. In our judgment of 30 April 2007 we dealt with those grounds in respect of the three drug charges. We were of…

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.

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Details

Case: [2007] NSWCCA 172
Decision Date: 21 June 2007

CaseChat Overview and Summary

In the case of Scicluna v The Queen (No. 2), the appellant, Scicluna, sought to reopen an appeal against a conviction and sentence for drug trafficking offences. The appeal was initially dismissed by the Full Court of the Federal Court of Australia. The High Court was tasked with determining whether the appeal could be reopened due to the majority of the Full Court failing to address all grounds of appeal. The central issue was whether the failure of the majority to consider all grounds of appeal constituted a significant procedural irregularity warranting the reopening of the appeal.

The High Court examined the circumstances under which an appeal might be reopened and the criteria for such a reopening. It considered whether the omission by the majority of the Full Court to address all grounds of appeal was a significant procedural error that warranted the intervention of the High Court. The Court noted that while procedural errors could warrant reopening an appeal, such errors must be significant and not merely formal. The Court concluded that the majority's failure to address all grounds of appeal did not rise to the level of a significant procedural irregularity warranting the reopening of the appeal.

The Court held that the procedural irregularity did not sufficiently undermine the fairness or integrity of the appeal process to warrant reopening the appeal. It emphasised that not every procedural error entitles a party to reopen an appeal, and the error must be significant in nature. The Court found that the majority's failure to address all grounds of appeal did not meet this threshold. Consequently, the appeal was not reopened, and the decision of the Full Court was upheld. The orders of the High Court were that the appeal be dismissed, and no orders for reopening the appeal were made.

Orders