Malvaso v The Queen [1989] HCA 58

High Court of Australia Mason C.J. Brennan, Deane, Gaudron and McHugh JJ. Malvaso v The Queen [1989] HCA 58

ORDER Application for special leave to appeal granted. Appeal allowed. Set aside the orders of the Court of Criminal Appeal and remit the matter to that Court for determination in accordance with the judgment of this Court.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 5 Mason C.J., Brennan and Gaudron JJ.

The applicant, Gianni Malvaso, was the manager of a restaurant in Adelaide. One of his patrons was a drug addict who was involved in illegal drug trading. The patron introduced the applicant to one Moyse, a senior police officer in charge of the drug squad. Moyse proposed to the applicant that cannabis be grown with seeds to be supplied by Moyse, the enterprise to be immune from prosecution not as a result of official sanction but by reason of Moyse's involvement. The applicant enlisted the aid of others to obtain a suitable property and to plant and tend the crop. He was the co-ordinator of the project on behalf of Moyse. On 19 May 1987 the police raided the property where the cannabis was being grown and found 4,224 cannabis plants at various stages of maturity growing in seven glasshouses. It was said that the street value of the crop was about $2,000,000. The applicant and three other persons were charged with certain offences relating to the cultivation and sale of the cannabis.

The prosecuting authorities were anxious to obtain evidence to prove the involvement of Moyse in criminal dealings with drugs. They approached the applicant to seek his assistance, which he agreed to furnish on certain terms. He agreed to assist in Moyse's prosecution and to plead guilty to one count of knowingly producing cannabis (an offence created by s. 32(1)(a) of the Controlled Substances Act 1984 S.A.). The prosecution agreed that counsel for the prosecution would "stand mute" with respect to the suspension of the applicant's sentence. When the applicant pleaded guilty, his counsel, Mr. Abbott Q.C., submitted that the applicant's sentence should be suspended on account, inter alia, of the assistance he had provided in the prosecution of Moyse. Counsel for the prosecution, in performance of the agreement, made a statement before the sentencing judge. The statement in its material part was as follows: