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Arico v The Queen

Arico v The Queen

Case [2022] VSCA 35 21 March 2022

Appeal

Limitation Periods

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0064

ROCCO ARICO	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2022
DATE OF JUDGMENT:	21 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 35
JUDGMENT APPEALED FROM:	[2021] VSCA 353 (Pedley JR)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant seeks documents from Chief Commissioner of Victoria Police – Review of judicial registrar’s decision refusing application under s 317 of Criminal Procedure Act 2009 – Whether applicant has a legitimate forensic purpose in seeking production of documents – Whether request for production excessively burdensome or oppressive – Concession made by Chief Commissioner in respect of one category of documents – Application for review granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr P Coleridge	Theo Magazis & Associates
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC with Ms M Pekevska	Victorian Government Solicitor

BEACH JA:

In November 2016, following a trial in the County Court, the applicant was convicted of three charges of extortion, one charge of intentionally causing injury and one charge of trafficking in a drug of dependence (methylamphetamine) in not less than a large commercial quantity. In February 2017, following a second trial, the applicant was convicted of one charge of being a prohibited person in possession of a firearm, and one charge of possessing a drug of dependence. In March 2017, the applicant was sentenced in respect of both trials to a total term of 14 years’ imprisonment with a non-parole period of 10 years. Subsequent applications for leave to appeal against conviction in the first trial and against sentence were refused by this Court in May 2018,[1] and an application for special leave to appeal was refused by the High Court in November 2018.[2]
[1]Arico v The Queen [2018] VSCA 135.
[2]Arico v The Queen [2018] HCASL 360.

On 3 June 2021, pursuant to s 326A of the Criminal Procedure Act 2009, the applicant filed a second application for leave to appeal against conviction. In this application, the applicant seeks leave to appeal against his convictions in both trials. His application contains one proposed ground of appeal as follows:

1.The subversion of the applicant’s right to a fair trial amounts has resulted in a substantial miscarriage of justice. In particular, unbeknownst to the applicant:
(a)legal advice he received was not independent, in circumstances where his solicitor was an informer for Victoria Police; and/or
(b)investigators (and ultimately the prosecution) gained an unfair advantage by reason of the applicant’s solicitor being a police informer; and/or
(c)investigators failed to disclose to the applicant that his solicitor had acted as a police informer; and/or
(d)investigators failed to disclose that they had seized the computer of the applicant’s solicitor which contained materials relating to the applicant;…

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 Queen

Details

AGLC: Arico v The Queen [2022] VSCA 35
Case: [2022] VSCA 35
Decision Date: 21 March 2022

CaseChat Overview and Summary

Arico v The Queen involved the applicant seeking leave to appeal against his conviction. The applicant sought documents from the Chief Commissioner of Victoria Police. The case before the court was a review of the judicial registrar's decision to refuse the applicant's application for the production of documents under section 317 of the Criminal Procedure Act 2009. The applicant argued he had a legitimate forensic purpose in seeking the documents, and that the request for their production was not excessively burdensome or oppressive.

The court needed to determine whether the applicant had a legitimate forensic purpose for seeking the documents and whether the request for their production was excessively burdensome or oppressive. The applicant contended that the documents were necessary to address issues that could potentially undermine the fairness of the proceedings. The Chief Commissioner, on the other hand, argued that the request was overly burdensome and did not serve a legitimate forensic purpose.

The court found that the applicant had a legitimate forensic purpose in seeking the documents, as they were necessary to address issues that could potentially undermine the fairness of the proceedings. The court also found that the request for production was not excessively burdensome or oppressive, particularly in light of the concession made by the Chief Commissioner in respect of one category of documents. As a result, the court granted the application for review and ordered the Chief Commissioner to produce the documents in question.

Orders