DPP v Federico

[2006] VSC 24

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1416 of 2003

Director of Public Prosecutions

v

Fabrizio Bartolo Federico

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 19 December 2005, 27 January 2006
DATE OF RULING:	6 February 2006
CASE MAY BE CITED AS:	DPP v Federico
MEDIUM NEUTRAL CITATION:	[2006] VSC 24

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Criminal law and procedure – functus officio – charge of murder – accused acquitted and discharged – issue of validity of Regulation 10 Corrections Regulations 1998 – declaratory relief – s.36 Supreme Court Act 1986 – Rule 23.05 Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr C. J. Ryan SC With Mr T. C. Wallwork	Office of Public Prosecutions
For the Accused	Mr R. Richter QC With Ms C. Burnside	Paul Horvath Solicitors
For the Community and Public Sector Union (by leave)	Mr M.C. Fisher	Paul Horvath Solicitors
For the Secretary to the Department of Justice (by leave)	Mr P. J. Hanks QC With Ms C. Harris	Corrections Victoria

HIS HONOUR:

1. Regulation 10 Corrections Regulations 1998 provides:

Discharge of firearms

(1)If a prisoner escapes or attempts to escape from custody, a prison officer may discharge a firearm at the prisoner if the prison officer believes on reasonable grounds that it is the only practicable was to prevent the escape of the prisoner.

(2)A prison officer may discharge a firearm at a person whom he or she reasonably believes to be aiding a prisoner in escaping or attempting to escape from custody, if the prison officer believes on reasonable grounds that it is the only practicable way to prevent an escape.

(3)A prison officer may discharge a firearm at a person if the person is using force or threatening force against –

(a)       another person in the prison; or

(b)an officer (including the prison officer carrying the firearm) acting in the execution of his or her duties outside a prison; or

(c)       a prisoner outside a prison -

and the prison officer reasonably believes that shooting at the person using or threatening force is the only practicable way to prevent the person causing death or serious injury.

(4)       Before discharging a firearm at a person, the prison officer must -

(a)if it is practicable to do so, give an oral warning to the effect that the person will be shot at if he or she does not stop escaping, attempting to escape or suing or threatening force (as the case may be); and

(b)satisfy himself or herself that shooting at the person does not  create an unnecessary risk to any other person.

1. In this case the accused, Fabrizio Bartolo Federico was charged with the murder of Garry Gauld Whyte at Fitzroy on 7 May 2002.  The events occurred at St Vincent’s Public Hospital, Fitzroy.  The deceased was an escaping prisoner, handcuffed to the front, who had been taken to that hospital for medical investigation.  The accused was a prison officer, armed, who had the lawful duty of guarding the prisoner and of protecting the public.  The prisoner was taken to the medical imaging section of St Vincent’s Hospital to undergo a CAT scan.  He was so taken because the prison authorities in the proper exercise of their duty of care caused him to be taken there for medical investigation.  The symptoms which caused the prison authorities responsibly so to act were all feigned by the prisoner.  The removal of the prisoner from prison to St Vincent’s Hospital was contrived by the prisoner in order to escape.  He was placed on an imaging table, still handcuffed to the front, for medical investigation.  An unarmed prison officer stood in an adjoining room with a view of the procedure.  The accused, who was the armed guard, took up a position in the corridor outside the closed doors of the imaging room.  He had no view within the room other than a slight aperture which told him nothing from his external position.  Suddenly and without warning the prisoner came through the doors of the medical imaging room in the direction of the accused.  The accused fired one shot which missed followed immediately by a second shot which struck the deceased.  The deceased died some minutes later.

1. The trial of the accused on the charge of murder was heard by me and a jury of twelve in November 2005.  On 30 November 2005 at the conclusion of the prosecution case on the eighth day of a jury trial in which 48 witnesses were called, I ruled that there was no case for the accused to answer on the charge of murder preferred against him, and directed the jury to acquit the accused which the jury duly did.  I then finally discharged the jury and finally discharged the accused.

1. I ruled that there was no case to answer for the reasons published the next day, 1 December 2005.  The reasons are part of the court record and commence at T.603.  The accused, in a lengthy interview by Homicide Squad officers conducted on 7 May 2002 and again in a re-enactment conducted on 9 May 2002, had stated that in the circumstances occurring on 7 May 2002 at St Vincent’s Hospital, he had acted instinctively, in fear of his life and in order to prevent his lethal forearm being commandeered by the escaping prisoner.  The objective evidence confirmed that account.  The critical objective factors were:

(a)the setting:  this was a busy emergency ward of a major inner suburban public hospital in which there were many vulnerable persons and in which an escaping prisoner handcuffed to the front could wreak havoc by use of a weapon being heavy handcuffs or a commandeered lethal firearm;

(b)      training:  the accused acted precisely in accordance with his training;

(c)spatial considerations:  the prisoner came from behind closed doors only a couple of metres from the accused;

(d)temporal considerations:  the fatal events happened in a couple of seconds;

(e)expert evidence:

(i)the evidence of the pathologist, Dr M.J. Lynch, was that the prisoner was shot from the deceased’s left to right, very slightly from front to back.  He was not shot in the back.

(ii)the evidence of the firearms examiner Senior Constable Glaser and the forensic officer Mr H.A. Wrobel was that the prisoner was shot at a distance of between 10 centimetres and half a metre.

1. The jury trial was conducted on the basis that the element in issue was whether the prosecution proved beyond reasonable doubt that the killing was without lawful justification, that is, not in self-defence.  That was the issue upon which I directed the jury to acquit the accused.

1. However that was not the only issue inherent in the trial.

1. During the s.13 defence response before the jury, senior counsel for the accused made reference to Regulation 10 – not as a defence but as a matter of credibility.  That is, that the accused’s account to the Homicide officers was credible because he stated self-defence plainly and without ornament.  Significantly, however, the question of the applicability of Regulation 10 was inherent in the trial in that depending on the evidence it may have been necessary for me as a matter of law to direct the jury upon the applicability of Regulation 10.  At the conclusion of the prosecution case, the following occurred (T.580):

[His Honour]  “Do you propose to submit to me that Regulation 10 cannot be the subject of a direction of law by me that, depending on the facts the jury finds, it is available as a defence?

[Prosecution counsel]         Yes, I say it’s not a defence to murder”.

The essential reason prosecution counsel so submitted was that “a Regulation cannot alter the common law” (T581).  In the event, this issue remained unresolved, as the jury was discharged on the basis of lawful justification, that is, self–defence.

1. Had the matter gone to the jury, I consider that I would have been obliged to instruct the jury on Regulation 10 as a defence, if in law it constituted a defence.  That is because if the jury were satisfied (as contended by the prosecution) that the accused was not acting in lawful self-defence, inevitably the question would arise whether the accused was acting to prevent the escape of the prisoner as provided by Regulation 10.  Of course, if Regulation 10 were inefficacious as a defence to a charge of murder, I would not have directed the jury that it was a defence.

1. The Corrections Regulation 1998 of which Regulation 10 is a part were made under s 112 Corrections Act 1986.  Officers daily are trained in accordance with those Regulations, including Regulation 10, just as Mr Federico was.  Officers daily rely upon those Regulations in their performance of duty, just as Mr Federico did.  If, as the prosecution in this case contended, Regulation 10 is “not a defence to murder”, I consider as a matter of justice to officers and as a matter of public safety the true situation should be authoritatively stated.

1. Before me, counsel for the prosecution submitted that Regulation 10

“on its face applies to the use of a firearm.  On its face it purports to create a relationship as between the employer, the Office of Corrections, and a prison officer.  On its face it doesn’t purport to do anything else.” (T.1, 27.1.2006)

1. I consider that analysis wholly unsustainable.  The Regulation is in plain language and plenary in scope.  It purports to permit the discharge of a firearm at an escaping prisoner in the circumstances there set out.

1. Having had the most helpful submissions of all counsel, I conclude that I am functus officio – that is, I have no power further to act – in the criminal trial DPP v Federico that was before me[1].  The reason I am so powerless is that I have finally discharged the jury, have finally discharged the accused, and the question of the efficacy of Regulation 10 to a charge of murder is not a merely supplementary or incidental matter upon those discharges.  Matters such as costs, or conduct of practitioners, or like matters are supplementary or incidental and power to deal with such matters remains after discharge.[2]  However, the issue of the efficacy of Regulation 10 above stated is in my view of a different character.  It is not merely supplementary or incidental.  It is a substantive matter.  Further, although in the trial it was nascent, in the circumstance of the verdict being by direction it was not fully or substantially articulated.  Accordingly I conclude that I now have no power to deal with the question of the efficacy of Regulation 10 to a charge of murder as part of the criminal trial DPP v Federico.

   [1]S. v Recorder of Manchester and ors. (1971) A.C. 481; R. v Webb and Hay (1992) 64 A. Crim. R. 38; Biggs v Director of Public Prosections (1997) WAR 534; Jovanovic v R. (1999) 165 ALR 6; and R. v Douglass (2004) 9 VR 355.

   [2]Victoria Legal Aid v County Court of Victoria and anor. (2004) VSCA 113; Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; see also (1999) 163 A.L.R. 744.

1. The question of the efficacy of Regulation 10 can be resolved either by this Court in declaratory proceedings if brought or by Act of Parliament. There is power in this Court to determine declaratory proceedings, as provided by s 36 Supreme Court Act 1986 and Rule 23.05 Supreme Court (General Civil Procedure) Rules 2005.  In limited circumstances the Court will grant declaratory relief.[3]  As the Court stated in Rozenes v anor. v Beljajev and ors.:

“The essential requirement is that there be a real question, with the plaintiff having a real interest and a proper contradictor, and that the circumstances be such that it is appropriate to grant a declaration.”

I consider the question of the efficacy of Regulation 10 is no mere theoretical one.  Officers daily are being trained in it and act in accordance with it.  It is a real and continuing matter.  It also is a vital matter.

[3]See Rozenes & Anor v Beljajev & Ors (1995) 1 VR 533 at 571 – 572 per curiam; Sankey v Whitlam & Ors (1978) 142 CLR 1 at 26 per Gibbs ACJ; and Royal College of Nursing of the United Kingdom v Department of Health and Social Security (1981) AC 800. In Rozenes and Sankey the primary proceedings were continuing, the question related to a matter that had been determined in the primary proceedings, and the declaratory relief was relevant to the outcome of those proceedings.  Not so in Royal College.

1. The other resolution is for Parliament to act, remedying the inherent impotence of Regulation 10 in the face of the common law[4].

   [4]Regulation 10 does not mirror s.462A Crimes Act 1958.

1. I do not urge one path of resolution above the other.  I say nothing of the content of a declaration, if declaratory proceedings are fruitfully brought; nor of the content of statutory provision, if Parliament acts.  I do urge that the present uncertainty be resolved, and promptly so – for the sake of decent and law abiding officers acting in the performance of their duties, and for the sake of the safety of persons including the public.  To do nothing would be profoundly wrong.