CRIMINAL LAW – Appeal – Practice and Procedure – Applicant seeks documents from Chief Commissioner of Victoria Police – Legitimate forensic purpose – Some material held by Victoria Police obtained pursuant to a warrant in a murder investigation and police face legal difficulties in examining the material without a Court order – Criminal Procedure Act 2009 s 317.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Ms C Boston and Mr P Coleridge
Theo Magazis & Associates
For the Respondent
Ms D Piekusis QC
Ms A Hogan, Solicitor for Public Prosecutions
For the Chief Commissioner of Victoria Police
Ms S Maharaj QC and Ms M Pevevska
Victorian Government Solicitor
PEDLEY JR:
Rocco Arico (‘Mr Arico’ or ‘the applicant’) was convicted in 2016 of three counts of extortion, intentionally causing injury and trafficking in a large commercial quantity of a drug of dependence.[1] In a subsequent trial in 2017, Mr Arico was convicted of being a prohibited person in possession of a firearm and possessing a drug of dependence, and was sentenced in respect of all offending to a total effective sentence of 14 years’ imprisonment with a non-parole period of 10 years.
Mr Arico appealed against both his convictions and sentence in 2018. Mr Arico’s application for leave to appeal his convictions was refused. His sentence application was successful and his sentence was reduced to 12 years with a non-parole period of nine years.[2] In that judgment, the Court of Appeal noted that ‘the case against the applicant turned primarily upon the evidence of Witness A, who had for many years been an associate of the applicant’.[3] Witness A and his wife were the victims in the first trial. Witness A came forward to assist the police and this resulted in Mr Arico being charged. The applicant applied to the High Court for special leave to appeal his convictions but this was refused.
[2]Ibid [430] (Priest JA).
[3]Ibid [8] (Maxwell ACJ and Weinberg JA).
It was not in dispute that Joseph Acquaro acted for the applicant in various legal matters spanning from 2006 to 2016, including upon Mr Arico’s arrest on 5 March 2016, in relation to the convictions which are the subject of this appeal and during the following year. Up until Mr Acquaro’s murder on 15 March 2016, Mr Acquaro was heavily involved in managing Mr Arico’s legal defence in these matters. This included acting as a consultant after Mr Arico’s matter was transferred to Condello Lawyers in July 2015.[4] During the investigation into Mr Acquaro’s murder in March 2016, Victoria Police seized his computers and mobile phones.
[4]Applicant’s written case, [20]–[23].
Unbeknownst to Mr Arico, Mr Acquaro…
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.
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Details
AGLC
Arico v The Queen [2021] VSCA 353
Case
[2021] VSCA 353
Decision Date
CaseChat Overview and Summary
Arico was convicted of murder and sentenced to a lengthy term of imprisonment. In the course of the criminal trial, certain evidence was obtained from his home by police pursuant to a warrant. The evidence was subject to a suppression order, which prevented the disclosure of the contents of the evidence to the defence. After Arico’s conviction, he sought to obtain some of the documents from the Chief Commissioner of Victoria Police for the purpose of pursuing an application for leave to appeal. The Chief Commissioner refused the application on the basis that the documents were subject to a suppression order and the suppression order was still in force. Arico sought an order from the Court for the Chief Commissioner to provide him with the documents. The legal issues that arose were whether the application was made for a legitimate forensic purpose and whether the documents were subject to a suppression order that was still in force. The Court found that the application was made for a legitimate forensic purpose, as it was being used for the purpose of pursuing an application for leave to appeal. The Court also found that the suppression order was no longer in force, as the appeal had been dismissed and the appeal period had expired. The Court therefore ordered that the Chief Commissioner provide Arico with the documents. The Court held that the suppression order was no longer in force because the appeal had been dismissed and the appeal period had expired. The Court also held that the application was made for a legitimate forensic purpose, as it was being used for the purpose of pursuing an application for leave to appeal. The Court therefore ordered that the Chief Commissioner provide Arico with the documents.