Regina v Prochilo

[2003] NSWCCA 265

Court of Criminal Appeal (NSW)|2003-02-11|Before: Beazley JA, Greg James J, Smart AJ, James J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2003-02-11

Before

Beazley JA, Greg James J, Smart AJ, James J

Source

Original judgment source is linked above.

Judgment (125 paragraphs)

[1]

CITATION : Regina v Prochilo [2003] NSWCCA 265 HEARING DATE(S) : 11 February 2003 JUDGMENT DATE : 19 September 2003

[2]

JUDGMENT OF : Beazley JA at 1; Greg James J at 2; Smart AJ at 3 DECISION : Appeal against conviction dismissed.

[3]

CATCHWORDS : Supply of prohibited drug - Evidence established joint enterprise not a case of conspiracy - Proof of participation in joint enterprise may be established by other than presence at scene of supply - Agreement as essence of joint criminal enterprise emphasised - Directions not confusing - Jury told what activities constituted the supply and what supply meant - What taped conversation could be considered and the use to be made of them - Facts supported "supply" and adequate directions given as to elements of "supply" and material facts - no error in admitting challenged evidence and in directions given as to its use. LEGISLATION CITED : Drug Misuse and Trafficking Act (1985) Evidence Act (1995) Osland v. The Queen (1998) 197 CLR 316 R v. Lowery and King (No 2) (1972) VLR 560 CASES CITED : Tangye (1997) 92 A Crim R 545 Ahern v. The Queen (1988) 165 CLR 87 Carusi and Casser (1989) 17 NSWLR 516 PARTIES : Appellant: Francesco Rocco Prochilo Respondent: Regina FILE NUMBER(S) : CCA 60024/02 COUNSEL : Appellant: J. Papayanni Respondent: D. Frearson SOLICITORS : Appellant: Jeffreys and Associates Respondent: S.E. O'Connor

[66]

As to appeal grounds 1(c) and (d) the judge gave these directions to the jury: "In order to prove the accused's supply of cannabis leaf, that is the accused's involvement in the offence alleged by the Crown, the Crown alleges that Mr Prochilo was involved in a joint criminal enterprise with Mr Norman Hunt. When joint criminal enterprise is alleged, the law provides that each person involved in the enterprise is responsible for the acts of the other in carrying out the enterprise but there must be certain tests met for that to be so. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. A joint criminal enterprise exists when two persons reach an agreement between them that they will commit a crime. The understanding or arrangement amounting to the agreement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed. But in this case it would need to have been reached between the date of 13 October 1998 and 22 November 1998. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement reached between them to commit that crime. An example of that, unrelated to this case is two men driving a car to a bank and they jump out of the car, one with a gun, one without a gun, the man without a gun stands at the door, the man with the gun runs into the banks (sic) holds up the tellers, takes the money, and with the other man runs back to the car and the two men drive away. There may not be any evidence of an expressed agreement between the two men, but as I said just a moment ago, the very circumstances in which the two people are participating together in the commission of the particular crime may establish such an agreement without it having been proved by any spoken words. In this matter the Crown submits that the agreement was a spoken agreement as evidenced by the conversations between the accused and Mr Norman Hunt. Where an agreed crime is committed by one or other of the parties to the agreement, that is to the agreement to commit the joint criminal enterprise, all parties are equally guilty of the crime regardless of the part played by each in its commission. Remember, the essence of a joint criminal enterprise is agreement. That is a meeting of minds between the participants to commit the particular crime alleged by the Crown against a particular alleged participant. A person participates in a joint criminal enterprise either by committing the crime charged, or with the knowledge that the crime is committed by intentionally assisting and encouraging another person to the joint criminal enterprise to commit that crime. There must be knowledge of the crime and there must be on the part of the particular accused with whom you are concerned, an intention to commit the specific crime alleged in the indictment. In this case, the Crown needs to establish beyond reasonable doubt, not only knowledge on the part of the accused that Mr Hunt was involved in the supply, that is the sale and/or distribution of cannabis but that he intentionally participated in the enterprise alleged to be undertaken by Mr Hunt by authorising or directing Mr Hunt to purchase cannabis leaf, carry cannabis leaf and/or subsequently distribute and/or sell the cannabis leaf obtained in those circumstances."

[71]

The appellant contended that the judge's directions as to supply were confusing. At SU11-12 the judge gave these directions: "Can I deal firstly with the element of supply a prohibited drug? This element, the first element that I describe requires proof beyond reasonable doubt that the accused either gave, furnished or made available a prohibited drug to another. That is the ordinary meaning of the word 'supply', and that ordinary meaning applies in this trial. The legislation relating to this particular offence, as it is described in that particular legislation, defines supply to also include 'Agreeing to sell and otherwise supply, distribute, offer to sell and distribute and supply, forwarding, delivering or receiving for sale or distribution or authorising, directing or causing the sale, distribution or supply of a prohibited drug.' In other words, it requires proof of involvement in either the supply in the sense that I earlier described, distribution or sale of the prohibited drug to wit cannabis leaf. The Crown's case against the accused in this trial is that he was involved in the sale, distribution, giving and making available, a prohibited drug by being involved in the offering of the drug, the forwarding, the delivering, the receiving of the drug and by authorising, directing or causing those acts."
It was submitted that these directions were confusing and that the judge did not make clear what particular activities the Crown relied on as constituting the supply. The appellant complained that it was not made clear to the jury whether the Crown was relying on the ordinary meaning of supply or one or more of its extended meanings. The judge began by stating that the ordinary meaning of "supply" applied and that it meant that the appellant "either gave, furnished or made available a prohibited drug to another." He then told the jury that it also included other meanings which he enumerated. They included an amalgam of some of the meanings of sell and supply, supply including sell. The jury would have understood that if the activities in question fell within any of the ordinary or extended meanings there was a "supply" by the appellant. The judge then crystallised the Crown's case on supply by stating, the activities on which the Crown relied as constituting the appellant supplying cannabis. It is not to the point that those activities fell within more than one of the meanings of supply. Those overlapped. The jury would not have been confused or misled by the directions. They were told what activities allegedly constituted the supply and what supply meant. That sufficed.

[72]

The appellant challenged these directions: (SU30-33) "The next matter I raise with you in respect of the tape recordings is that the conversations that are conversations between Mr Hunt and third parties are relied upon by, as I understand the Crown case, in order to establish the existence of the agreement to supply cannabis between Mr Hunt and Mr Prochilo. The evidence of these conversations is admissible as evidence of either acts done or statements made by persons other than Mr Prochilo, not to prove the truth of what each person asserts or what each person did, but in order to establish from the fact that the acts were done or the statements were made in furtherance of the agreement. To prove in effect the existence of the agreement to supply cannabis that the Crown alleges had been entered into between Mr Hunt and Mr Prochilo. Also, the conversations are relied upon by the Crown as evidence of the nature and extent of the agreement that existed between Mr Hunt and Mr Prochilo. That is the reason that the evidence was admitted before you of the conversations between Mr Hunt and those third parties. I repeat again, the evidence does not establish the truth of what each of the participants in the conversations assert in the absence of the accused. The conversations are said by the Crown to constitute evidence of the fact that certain things occurred such to support what the Crown says is the existence of the agreement at relevant times between Mr Prochilo and Mr Hunt. To that extent, the Crown says you not only look at those conversations individually involving Mr Hunt and third parties, but you see them in the context of other conversations involving Mr Prochilo and Mr Hunt. It will be entirely a matter for you to determine whether there is relevance in this respect. You cannot rely upon the conversations between Mr Hunt and a third or fourth party alone to prove the existence of the agreement to supply cannabis leaf, because if you are acting upon those conversations alone, you would only be dealing with an agreement between Mr Hunt and some other person who has nothing to do with this case in the legal sense. Evidence of the agreement would need to be found beyond reasonable doubt in the conversations between Mr Hunt and Mr Prochilo. The other evidence relied upon by the Crown, the evidence of Mr Doherty, Exhibits N, P and Q and other material, are directed to that issue. The Crown says that the tape recordings of conversations between Mr Hunt and Mr Prochilo in any event would satisfy you beyond reasonable doubt of the existence of the agreement to supply cannabis leaf. If the third party conversation, if I could all it that, that is a conversation between Mr Hunt and for instance, Ralph or Stretch or Mr Griffin, if a particular third party conversation you are considering is in your view, not connected to any specific conversation or conversations between Mr Prochilo and Mr Hunt, you are required to ignore it. You are required in effect to put it out of your minds, put it aside, and go on to the next matter you have to consider."
It was submitted that only the acts of the appellant, independent of the acts of other persons, can be looked at to establish the pre-concert agreement and also whether there is a prima facie case.