Regina v Zaiter [2004] NSWCCA 35

New South Wales Court of Criminal Appeal

CITATION : Regina v Zaiter [2004] NSWCCA 35 HEARING DATE(S) : 25/02/04 JUDGMENT DATE : 25 February 2004

JUDGMENT OF : Ipp JA at 1; Sully J at 28; Adams J at 29 DECISION : (1) Appeal upheld (2) Verdict of the jury set aside and in lieu thereof there be entered a judgment of acquittal.

CATCHWORDS : CRIMINAL LAW - Supply of methylamphetamine and ecstasy with knowledge - Intermediate fact that was an indispensable basis for an inference of guilt - Where trial judge did not give a direction that such fact must be proved beyond reasonable doubt - PRACTICE AND PROCEDURE - Whether a new trial should be ordered - Probability that Crown would run the case in a different manner - Whether a reasonable jury would be able to return a verdict of guilty. LEGISLATION CITED : Chamberlain v The Queen (No 2) (1984) 153 CLR 521 CASES CITED : Gipp v The Queen (1998) 194 CLR 106 Shepherd v The Queen (1990) 170 cLR 573 PARTIES : Regina v George Zaiter FILE NUMBER(S) : CCA 60495/03 COUNSEL : G Rowling (Crown) S Odgers SC (Appellant) SOLICITORS : S Kavanagh (Crown) J Nicopoulos (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1043 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60495/03

IPP JA SULLY J ADAMS J

Wednesday 25 February 2004 REGINA v GEORGE ZAITER Judgment 1 IPP JA: On 21 February 2003 the appellant was found guilty on two charges of between 1 November 1998 and 1 September 1999 knowingly taking part in the supply of methylamphetamine and ecstasy between those dates. The appellant appeals against those convictions. He also applies for leave to appeal against sentence. 2 In the light of the conclusion to which I have come in regard to the appeal against conviction, it will not be necessary for me to deal with the application for leave to appeal against sentence. 3 The critical issue at the trial was whether the appellant knew, in August 1999, that a man called Pedavoli was using a flat of which the appellant was a lessee, to keep drugs for supply. The other elements of the offences were, in reality, not in issue. The case was fought, essentially, on the basis of whether the requisite knowledge had been proved beyond reasonable doubt. 4 On 19 April 1999 the appellant leased certain premises in Albert Street in a false name. The Crown case at the trial was that he entered into the lease and did so under a false name, because he knew Pedavoli was going to use the flat to store drugs for supply there. 5 Bearing this in mind, the basic facts on which the Crown relied for an inference of knowledge to be drawn beyond reasonable doubt are the following: