Arico v The King - [2023] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0064

NOTE:

This is a redacted version of the judgment that was published to the parties on a confidential basis.

ROCCO ARICO	Applicant
v
THE KING	Respondent

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JUDGE:	McCANN JR
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2023
DATE OF JUDGMENT:	11 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 81
JUDGMENT APPEALED FROM:	DPP v Arico (County Court of Victoria, Judge Chettle, 3 March 2017)

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APPEAL – Application for leave to appeal conviction for a second time – Applicant seeks orders for production of documents – Whether application has a legitimate forensic purpose – Whether application for documents is fishing – Whether application is merely a check on the prosecutorial duty of disclosure – In the interests of justice to order production.

Criminal Procedure Act s 317.

Polimeni v The Queen [2022] VSCA 20, ACCC v Pratt [2008] FCA 1373.

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Counsel
Applicant:	Mr J Gullaci SC with Mr J O’Connor
Respondent:	Ms D Piekusis KC
Respondent to the s 317 application:	Mr A Dinelli SC with Mr A Terzic
Solicitors
Applicant:	Theo Magazis and Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent to the s 317 application:	MinterEllison

MCCANN JR:

Introduction

On 10 November 2016, Mr Rocco Arico (‘the applicant’) was convicted of charges of extortion, intentionally causing injury and trafficking a large commercial quantity of methylamphetamine. In February 2017, he was convicted of possession of a firearm and possession of a drug of dependence.[1]
[1]The applicant was sentenced to a total effective sentence of 14 years with a non-parole period of 10 years in respect of all offences. An appeal against sentence was successful and he was resentenced to 12 years with a non-parole period of 9 years. An appeal against conviction was unsuccessful as was an application to the High Court for special leave to appeal against conviction.
The conduct giving rise to these criminal convictions commenced in 2010 and concluded with the applicant’s arrest on 15 March 2015.[2]
[2][2018] VSCA 135.
Upon his arrest, the applicant contacted solicitor, Mr Joseph ‘Pino’ Acquaro, who had assisted him with a range of legal matters since 2006. Mr Acquaro assisted the applicant from the time of the applicant’s arrest until Mr Acquaro’s death on 5 March 2016.
In January 2021, it was revealed that Mr Acquaro had provided information to Victoria Police in 2008 and the first half of 2014.[3] Mr Acquaro represented the applicant during both periods. The second period coincided with criminal conduct for which the applicant was convicted.
[3]Madafferi v The Queen [2021] VSCA 1.
On 3 June 2021, the applicant applied for leave to appeal those convictions pursuant to s 326A Criminal Procedure Act 2009 (‘CPA’) as a second and subsequent appeal. The applicant relies on a single ground of a substantial miscarriage of justice caused by the subversion of his right to a fair trial. In particular, it is asserted that, unbeknownst to…

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 Arico v The King

Details

AGLC: Arico v The King [2023] VSCA 81
Case: [2023] VSCA 81
Decision Date: 11 April 2023

CaseChat Overview and Summary

The appellant in this case, Arico, sought leave to appeal his conviction for a second time and requested the production of certain documents that had not been disclosed during the original trial. The dispute was heard by the court of appeal. The primary legal issues the court had to address were whether the application for the documents had a legitimate forensic purpose, whether it constituted a fishing expedition, and whether the application was simply a means to verify the prosecutorial duty of disclosure.

The court examined the criteria for granting leave to appeal and the circumstances under which documents could be ordered to be produced. It referenced previous cases such as Polimeni v The Queen and ACCC v Pratt, where similar issues had been considered. The court concluded that the application for the documents had a legitimate forensic purpose and was not a fishing expedition. The court found that the application was not merely a check on the prosecutorial duty of disclosure but rather aimed at ensuring that the appellant's right to a fair trial was upheld. The court decided that it was in the interests of justice to order the production of the documents to allow for a proper evaluation of the appellant's case.

The final orders of the court included granting the appellant leave to appeal his conviction for a second time and ordering the production of the specified documents. The court emphasised the importance of ensuring that all relevant evidence was available to both parties to facilitate a fair and just appeal process.

Orders