The Application of Robert Minniti - [2011] NSWSC 835

Supreme Court

New South Wales

Case Title: The Application of Robert Minniti

Medium Neutral Citation: [2011] NSWSC 835

Hearing Date(s): On written submissions

Decision Date: 20 July 2011

Jurisdiction: Common Law - Criminal

Before:
Latham J

Decision:
The application under s 79(1)(b) Crimes (Appeal and Review) Act 2001 is refused.

Catchwords:
Criminal law - application for enquiry after conviction - application under s 79 Crimes (Appeal and Review) Act 2001 - claim of doubt or question as to applicant's guilt - no substantial failure of trial judge to perform duty in reality or appearance - judge's conduct did not affect outcome of trial or create a risk that trial would be affected

Legislation Cited:
Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912
Evidence Act 1995

Cases Cited:
Robert Minniti v R [2006] NSWCCA 30
Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Cesan v The Queen ; Mas Rivadavia v The Queen [2008] HCA 52
Cesan v Director of Public Prosecutions; Mas Rivadavia v Director of Public Prosecutions [2007] NSWCCA 273
TKWJ v The Queen (2002) 212 CLR124
Nudd v The Queen (2006) 80 ALJR 614
Application of Pedrana [2000] NSWSC 970

Texts Cited:

Category: Principal judgment

Parties:
Robert Minniti (Applicant)
Regina (Respondent)

Representation

- Counsel:

- Solicitors:
Gregory J Goold (Applicant - submissions prior to 14 January 2010)
Criminal Justice Division, Attorney-General's Department (Respondent - submissions prior to 3 June 2010)

File number(s): 10/10204

Publication Restriction:

JUDGMENT

The applicant, Robert Minniti, was convicted by a jury on 2 December 2004 on a charge of attempting to possess not less than a commercial quantity of methylenedioxymethamphetamine (MDMA) that had been imported into Australia on 4 October 2003.

The applicant was sentenced on 17 March 2005 by the trial judge, Dodd DCJ, to a non parole period of eight (8) years, with a head sentence of twelve (12) years.

The applicant appealed against his conviction and sentence. That appeal was dismissed on 20 February 2006 : Robert Minniti v R [2006] NSWCCA 30. Whilst I was a member of that Bench and joined in the orders that were made, the present application relies upon a ground that was not argued for the purposes of the appeal.

The applicant seeks an order under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (the Act) referring the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. The basis for the application arises out of the contents of a number of affidavits, which collectively assert that the trial judge and some members of the jury were asleep at various times during the trial. It is submitted that this evidence suggests that there was a significant departure from the proper conduct of the trial, in that the trial judge's supervision of the trial and the jury's attention to the evidence were inadequate.

The Court can only refer the…

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: [2011] NSWSC 835
Decision Date: 20 July 2011

CaseChat Overview and Summary

The Application of Robert Minniti was heard by the Court of Appeal, where the applicant sought an enquiry after conviction. The application was made under section 79 of the Crimes (Appeal and Review) Act 2001, based on the claim that there was a doubt or question as to the applicant's guilt. The applicant argued that there was a substantial failure in the trial judge's duty, both in reality and appearance, and that the judge's conduct affected the outcome of the trial or created a risk that the trial would be affected.

The primary legal issue before the court was whether the applicant's arguments regarding the trial judge's conduct were sufficient to warrant an enquiry after conviction. The court was required to determine if there was a substantial failure of the trial judge in reality or appearance, and if such a failure affected the outcome of the trial or created a risk that the trial would be affected. Additionally, the court had to consider the statutory criteria set out in section 79 of the Crimes (Appeal and Review) Act 2001.

In assessing the application, the court considered the applicant's claims in light of the statutory criteria. The court found that the applicant had not demonstrated a substantial failure of the trial judge in reality or appearance. Furthermore, the court concluded that the judge's conduct did not affect the outcome of the trial or create a risk that the trial would be affected. As a result, the court dismissed the application for an enquiry after conviction, finding that the statutory criteria were not met.

As the court dismissed the application, no further orders were made. The applicant's claims regarding the trial judge's conduct were not substantiated, and the court found no grounds for an enquiry after conviction under section 79 of the Crimes (Appeal and Review) Act 2001.

Orders