Criminal law - Misuse of Drugs Act - Conspiracy - Whether particulars could contradict the indictment - Conspiracy in Victoria - Whether an offence in Western Australia

Legislation:

Criminal Code (WA), s 12, s 582

Criminal Procedure Act 2004 (WA), cl 5(2)(a), Sch 1
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(2)

Poisons Act 1966 (NSW)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr D Dempster
First Respondent           :     Mr P Haag
Second Respondent       :     Mr O P Holdenson QC

Solicitors:

Appellant:     State Director of Public Prosecutions
First Respondent           :     Justine Fisher
Second Respondent       :     Theo Magazis & Associates

Case(s) referred to in judgment(s):

Carusi v The Queen (1990) 64 ALJR 657
Director of Public Prosecutions v Doot [1973] AC 807
Giorgianni v The Queen (1985) 156 CLR 473
Gummer v Commissioner of Police [1995] 1 Qd R 346
Kamara v Director of Public Prosecutions [1974] AC 104
Krakouer v The Queen (1998) 194 CLR 202
Liangsiriprasert v Government of the United States of America [1991] 1 AC 225
Lipohar v The Queen (1999) 200 CLR 485
Mylonas [1987] WAR 261
Nirta v The Queen (1983) 51 ALR 53
Peters v The Queen (1998) 192 CLR 493
R v Carusi (1990) 45 A Crim R 165
R v Cuthbertson [1981] AC 470
R v Gudgeon (1995) 133 ALR 379
R v Hildebrandt [1964] Qd R 43
R v Marinovich (1990) 46 A Crim R 282
R v Robinson [1976] WAR 155
R v Rogerson (1992) 174 CLR 268
R v Trudgeon (1988) 39 A Crim R 252
R v Winfield & Lipohar (1997) 70 SASR 300
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Truong v The Queen (2004) 78 ALJR 473
Vereker v Rodda (1987) 26 A Crim R 25

Case(s) also cited:

Morrison v Kiwi Elextrix Pty Ltd (1988) 19 WAR 482
Pinkstone v The Queen (2004) 78 ALJR 797
R v Catanzariti (1995) 65 SASR 201
R v Gummer [1975] 1 Qd R 346
R v Hutchinson (2003) 144 A Crim R 28
R v Isaac, Tajeddine & Elachi (1996) 87 A Crim R 513
R v Lee (1994) 76 A Crim R 271
R v Maio [1989] VR 281
R v Turner (2001) 25 WAR 258
R v Udechuku [1982] WAR 21
Romeo & Ricciardello v The Queen (1991) 65 ALJR 261
Weston v Commissioner of Police,…

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 Western Australia v Marchesi

Details

AGLC: Western Australia v Marchesi [2005] WASCA 133
Case: [2005] WASCA 133
Decision Date: 20 JULY 2005

CaseChat Overview and Summary

The case before the court involved the state of Western Australia, acting as the prosecutor, and an individual named Marchesi. The dispute centred on allegations of conspiracy to possess and supply dangerous drugs, with the particulars of the offence suggesting that Marchesi conspired with others in Victoria, a state other than Western Australia. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue for the court to determine was whether the particulars provided by the prosecution could contradict the indictment. Specifically, the court had to consider whether the conspiracy alleged in the particulars, which took place in Victoria, could still constitute an offence under the Misuse of Drugs Act of Western Australia. Additionally, the court needed to decide if the conspiracy, even if it occurred outside Western Australia, could be prosecuted within the state.

The court found that the particulars did not contradict the indictment, as they elaborated on the circumstances of the conspiracy without altering the essential facts stated in the indictment. The court reasoned that under the Misuse of Drugs Act, an offence could be committed outside the jurisdiction, but if the conspiracy was directed towards an object that was an offence in Western Australia, it could be prosecuted there. The court concluded that Marchesi's alleged involvement in a conspiracy to possess and supply dangerous drugs, which were offences under Western Australian law, could indeed be prosecuted in that state. The court thus held that the particulars did not conflict with the indictment and that the conspiracy was an offence under the relevant legislation.

The court ordered that the matter proceed to trial on the charges as outlined in the indictment and particulars, affirming that the conspiracy could be prosecuted in Western Australia despite its occurrence in Victoria.

Orders