| 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.
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…
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- Arico v The King [2023] VSCA 81
- Case
- [2023] VSCA 81
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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