The Queen v Pizzata, Filippo

[1983] FCA 256

I N THE FEDERAL COURT OF A U S T m I A )

)

AUSTRALIAN C PITAL ERRITORY j ) No. ACT G76 of 1983

DISTRICT	REGISTRY
GENERAL	D I V I S I O N

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BETWEEN : THE QUEEN

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3 A p p l i c a n t

AND : - FILIPPO PIZZATA

R e s p o n d e n t

O R D E R

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JUDGE MAKING ORDER: Neaves J.

DATE OF ORDER: 1 6 S e p t e m b e r 1 9 8 3

WHERE MADE: C a n b e r r a

THE COURT ORDERS:

That the time for service of t h e notice of appeal

f i led herein on 1 6 S e p t e m b e r 1983 be extended up t o and

including Wednesday, 2 1 S e p t e m b e r 1983.

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IN THE	FEDERAL	COURT OF	AUSTRALIA	)
1

AUSTRALIAN CAPITAL	TERRITORY	1
) N o . ACT G77 of 1983

DISTRICT	REGISTRY
GENERAL	D I V I S I O N

BETWEEN : THE QUEEN

2.

. i Appl i can t

AND : - GIOVANNI MAK*IOLITI

Respondent

O R D E R

JUDGE MAKING ORDER:	Neaves J.
DATE OF ORDER:	16 September 1983
WHERE MADE:	Canberra
THE COURT ORDERS:

Tha t t he time f o r s e r v i c e of t h e n o t i c e of appea l

f i l e d h e r e i n on 16 September 1983 be extended up t o

and including Wednesday, 2 1 September 1983.

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I N THE F E D E W COURT OF AUSTRALIA )

I

AUSTRALIAN CAPS'I'AL TERRITORY	1
1 No. ACT G80 of 1983

DISTRICT	REGISTRY
GENERAL	D I V I S I O N 1

BETWEEN: THE QUEEN

t, A p p l i c a n t

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AND : - DOMENICO NIRTA

R e s p o n d e n t

O R D E R

JUDGE MA?LING ORDER: Neaves J.

DATE OF ORDER: 16 S e p t e m b e r 1 9 8 3

MADE:	WHERE	C a n b e r r a
THE COURT ORDERS:

That the time for service of t h e notice of appeal

f i led herein on 16 S e p t e m b e r 1 9 8 3 be extended up t o

and inc lud ing Wednesday, 2 1 September 1983.

.

l

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN CAPITAL TERRITORY

No. ACT G76 of 1983

DISTRICT REGISTRY	)
)

DIVISION GENERAL )

I

BETWEEN : S THE QUEEN

Applicant

AND :	FILIPPO PIZZATA
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Respondent

IN THE FEDERAL COURT OF AUSTRALIA )

1

AUSTRALIAN CAPITAL TERRITORY )

No. ACT G17 of 1983

DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN : THE QUEEN

Applicant

.

AND : - GIOVANNI "MOLITI

Respondent

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I

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IN THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN	CAPITHL	TERRITORY	1
) No. ACT G80 of 1983

REGISTRY DISTRICT 1 1

I DIVISION GENERAL 1

?

I

BETWEEN : QUEEN THE

Applicant

AND : _. DOMENICO NIRTA

Respondent

CORAM:	Neaves 3.
-	DATE :	16 September 1983

KEASONS FOR JUDGMENT

(Ex tempore)

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This is an application by the Crown under

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Order 3, rule 3 of the Rules of this Court seeking an

extension of the time within which to serve notices of

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appea l aga ins t the sen tences imposed by t h e Supreme

Cour t o f the Aus t ra l ian Capi ta l Ter r i to ry on 26 August

1983	on	F i l ippo	P i z z a t a ,	Giovanni Mammoliti and	Domenico
Nirta.

The three persons named were charged with t h r e e

others, Antonio Giorgi, Domenico Condemi and Stefano Pelle,

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under paragraph 86 (13*.(a) of t h e C r i m e s A c t 1914 (Cwlth) .

It was a l l eged tha t t hey ' consp i r ed wi th ce r t a in named

persons and with persons unknown t o commit an of fence aga ins t

a law of t h e Commonwealth, namely sub-section 4(3) of t h e

Poisons and Narcotic Drugs Ordinance 1 9 7 8 of t h e A u s t r a l i a n

Capi ta l Ter r i to ry . That sub-sec t ion provides tha t a person

who has a con t ro l l ed subs t ance in h i s posses s ion fo r t he

purpose of supplying the substance t o another person or t o

1 - o ther persons is gu i l ty o f an offence. A "control led sub-

s tance" is a substance specif ied in Schedule 8 or Schedule

1 2 to the Ordinance ,

The trial was before a Judge and jury. The ju ry

convicted each of the s ix accused . Sentences were imposed

on each of them on 2 6 August 1983. The trial w a s a lengthy

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one extending over many weeks.

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Georgi and Pelle (who a r e n o t named as respondents

t o t h i s motion) and Domenico Nirta have appealed t o t h i s Court

aga ins t t he i r conv ic t ion	and sentence.
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The Crown has appea led aga ins t the sen tences

imposed on each of the accused on the ground tha t each

sentence is inadequate. The not ices of appeal were f i l e d

t h i s day being the las t day of the per iod of 2 1 days

prescr ibed by Order 52, r u l e 15. I am assured by counsel

t h a t t h e n o t i c e s o f a p p e a l have been duly served within the

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time so prescr ibed on Giorgi , Condemi and Pelle. An attempt

has been made t h i s a f t e r n o o n t o s e r v e P i z z a t a , Mammoliti and

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Nirta a t t h e i r r e s p e c t i v e .. a d d r e s s e s i n t h e A u s t r a l i a n

Capi ta l Ter r i to ry but wi thout success .

The r e l e v a n t p r i n c i p l e s t o be app l i ed were

referred t o by a Ful l Court of this Court in Bishop v.

The Queen (1982) 40 A.L.R. 40 a t pp. 41-2. The Cour t there

r e f e r r e d t o t h e p r i n c i p l e s e n u n c i a t e d by Cullen C.J. i n

Morres v. Papuan Rubber & Tradinq Co. Limited ( ( 1 9 1 4 ) S.R.

, - -

(N.S.W.) 1 4 1 a t p - 144) :-

I* .... when a pa r ty , who has neglec ted to observe

those requirements which the rules place him under

for t h e p r o t e c t i o n o f t h e o t h e r s i d e , comes for t h e

indulgence of the Court to ask t h a t the proceedings

sha l l con t inue no twi ths t and ing tha t de fau l t , he has t o s a t i s f y t h e C o u r t t h a t j u s t i c e r e q u i r e s t h a t t h a t

d e f a u l t o f h i s s h a l l be overlooked, and he must

s a t i s f y t h e C o u r t t h a t t h e r e is some reasonable

kind of explanat ion or excuse fo r h i s neg lec t o f

t h e ru les” . .

The Cropm has sought an extension of the time

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f o r s e r v i c e on t h e ground tha t because of t h e l e n g t h and

complexity of t h e trial a subs t an t i a l pa r t o f t he p re sc r ibed

per iod of 2 1 days was taken up with a ca re fu l cons ide ra t ion

of the matter before a dec is ion w a s t aken tha t appea ls should

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be i n s t l t u t e d on t h e ground t h a t t h e s e n t e n c e s were inadequate.

R e l i d r l c e i s a l so p l aced on t h e fact that the app l i ca t ion L o

extend the t i m e is made wl th in the prescr ibed per iod of 2 1

days a lbe i t a t t h e las t moment. In an ord inary case I would

not regard de lay in reaching a d e c i s i o n t o a p p e a l as warrant-

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I '. ing an extension of time - bu t t h i s can ha rd ly be desc r ibed

as an ordinary case.

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To this c i rcunis tance may be added the fact t h a t

t he s ix accused were t r i e d t o g e t h e r on a charge of conspiracy.

There are appeals by three of the accused and an appeal has

b e e n v a l i d l y i n s t i t u t e d	by	t h e Crown	i n r e l a t i o n t o	each	of
t h e six.

As Deane J s a i d i n Blshop v. The Queen, (supra)

speaking of a convicted person who has been sentenced:-

"If t h e time f o r f i l i n g and serving a

no t ice of appea l expi res wi thout a no t i ce o f

appeal being served upon him, he i s , i n t h e

I	absence of special c i rcumstances, ent i t led
to r ega rd tha t pe r iod o f doub le j eopa rdy as
c losed . In the spec ia l c i rcumstances of an
appea l aga ins t sen tence , it would, i n my view,
be wrong and u n j u s t a f t e r t h a t p e r i o d had ex-
pired without a not ice of appeal being served
t o accede t o an appl ica t ion by t h e Crown t o
ex tend the per iod of time in yh ich service
could properly be effected unless there were .
evidence d i sc los ing an acceptable explanat ion
o f t h e f a i l u r e t o serve wi th in t i m e and un le s s
s p e c i a l circumstances were e s t a b l i s h e d t o
J u s t i f y t h e g r a n t of the indulgence sought by
t h e Crown. "

I n t h e p r e s e n t case t h e time had not expi red

b e f o r e t h e a p p l i c a t i o n was made t o t h e C o u r t and i n a l l

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the circumstances I am prepared to extend the time for

service of the notice of appeal in each case up to and

including Wednesday 21 September 1983.

I certify that this and the’

four ( 4 ) preceding pages are

a true copy of the Reasons for .

Judgment herein of the Iionourable

Mr. Justice Neaves.

P - O -- 4

Associate

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Dated: 16 September 1983.

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