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

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:

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.

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…

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 DPP v Federico

Details

AGLC: Director of Public Prosecutions v Federico [2006] VSC 24
Case: [2006] VSC 24
Decision Date: 6 February 2006

CaseChat Overview and Summary

The case of DPP v Federico involved the Director of Public Prosecutions as the appellant and Federico, the respondent. The primary dispute centred around the validity of Regulation 10 of the Corrections Regulations 1998, in light of Federico's acquittal and discharge from a charge of murder. The matter was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the court had the jurisdiction to entertain the application for declaratory relief concerning the validity of the regulation and if the court had already become functus officio (without jurisdiction) by discharging Federico from the murder charge. The court was tasked with determining whether it could still make a declaration on the validity of the regulation despite having acquitted and discharged Federico.

The court held that it had the authority to consider the application for declaratory relief, despite having discharged Federico from the murder charge. The court reasoned that the issue of the regulation's validity was a matter of public importance and did not depend on the outcome of the criminal proceedings. The court found that the application for a declaration was not precluded by the principle of functus officio. Consequently, the court granted the application for declaratory relief, holding that Regulation 10 of the Corrections Regulations 1998 was valid.

The court's decision confirmed that the Supreme Court had jurisdiction to make a declaration regarding the validity of the regulation, even after discharging the accused from the criminal charge. The court's ruling clarified that the principle of functus officio did not prevent the court from considering matters of public importance unrelated to the specific outcome of the criminal proceedings.

Orders