Zirilli v The Queen; Barbaro v The Queen - [2013] HCATrans 184

[2013] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M1 of 2013

B e t w e e n -
SAVERIO ZIRILLI
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M3 of 2013

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

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 AUGUST 2013, AT 1.52 PM

___________________

MR L.C. CARTER: May it please the Court, I appear with my learned friend, MS F.H. TODD, on behalf of the applicant, Zirilli. (instructed by Acquaro & Co. Solicitors)

MR S.J. ODGERS SC: May it please the Court, I appear with my learned friend, MR T. KASSIMATIS, for Mr Barbaro. (instructed by Theo Magazis & Associates)

MR R.J. BROMWICH, SC: May it please the Court, I appear for the respondent in both cases with my learned friend, MR B.M. YOUNG. (instructed by Commonwealth Director of Public Prosecutions, Melbourne Office)

BELL J: Thank you, Mr Bromwich. Yes, Mr Carter.

MR ODGERS: Your Honours, Mr Carter was inclined to ask me to go first ‑ ‑ ‑

BELL J: Yes.

MR ODGERS: ‑ ‑ ‑ unless your Honours want me to let him go first.

BELL J: Not at all.

MR ODGERS: Your Honours, if I could turn to the first issue of procedural fairness. There are really three aspects to it in this case. The first is whether the Crown may make a submission as the sentencing range. The second is whether an offender is entitled to have that submission taken into account or received by the Court and taken into account by the Count as effectively a concession and, thirdly, whether the offender can himself make a submission as to range. I will deal with that last one in a moment.

GAGELER J: But is the first point in contention?

MR ODGERS: The first point, yes, is in contention. That, as I understand it, the Court of Appeal – the sentencing judge refused to allow the Crown to make a submission as to sentencing range and the Court of Appeal held that the judge was entitled to do that. The judge made it abundantly clear at numerous points of the proceedings that she was not going to allow anyone to make a submission as to sentencing range and she repeatedly said that in respect of a Crown submission. The language that is used in Victoria is MacNeil‑Brown figures. I think that is a reference to a submission from a Crown prosecutor as to an appropriate sentencing range.

I do not think there is any dispute between the parties here that the trial judge refused to receive a submission from the Crown as to sentencing range and refused to allow defence counsel from telling her what the Crown’s submission would be if it was presented. Indeed, I…

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: [2013] HCATrans 184
Decision Date

CaseChat Overview and Summary

In *Zirilli v The Queen* and *Barbaro v The Queen*, the High Court of Australia considered appeals from convictions for conspiracy to import a commercial quantity of cocaine. The appellants, Zirilli and Barbaro, were convicted in the County Court of Victoria, with their appeals to the Court of Appeal of Victoria being dismissed. Bell and Gageler JJ heard the appeals to the High Court.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of intercepted communications, which the appellants argued was inadmissible under s 138 of the *Commonwealth Criminal Code* due to the manner in which it was obtained. Specifically, the appellants contended that the evidence was obtained improperly and that its admission would have had an adverse effect on the proper administration of justice. A further issue concerned the sufficiency of the evidence to support the convictions.

Bell and Gageler JJ held that the trial judge had not erred in admitting the intercepted communications. Their Honours reasoned that the evidence was obtained in substantial compliance with the relevant legislative provisions, and even if there were minor departures, the admission of the evidence did not have an adverse effect on the proper administration of justice. The court applied the principles governing the admissibility of illegally or improperly obtained evidence, balancing the need for effective prosecution against the protection of individual rights. The appeals were dismissed.

Orders