Jason Piccolotto v The Queen (No 2) - [2015] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0217

JASON PICCOLOTTO	Appellant
v
THE QUEEN (NO 2)	Respondent

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JUDGES:	REDLICH, SANTAMARIA and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	21 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 182
JUDGMENT APPEALED FROM:	R v Piccolotto (Unreported, County Court of Victoria, Judge Chettle, 17 September 2014 (date of sentence))

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CRIMINAL LAW – Appeal successful, conviction quashed and new trial ordered – Appeal Costs Act 1998 – Discretion whether to grant indemnity certificate – Conduct of trial on behalf of the appellant – Whether appellant should be penalised for manner in which trial was conducted – Extent to which Board may consider costs of appeal and of new trial ‘to have been reasonably incurred’ – Section 14 Appeal Costs Act1998.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J Traczyk	C Marshall & Associates
For the Respondent	Ms S M K Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
SANTAMARIA JA
BEACH JA:

Introduction

On 11 June 2015, this Court allowed the appellant’s appeal, quashed his convictions for false imprisonment and making a threat to kill, and ordered a retrial.[1] When judgment was delivered, there was no appearance for the appellant. In addition to quashing the appellant’s convictions and ordering a retrial, we gave directions that, if the appellant wished to apply for an indemnity certificate pursuant to the Appeal Costs Act 1998 (‘the 1998 Act’) then the appellant would be required to file written submissions in support of any such application. Further, and noting that the Crown (as respondent to the appeal) had no interest in any application the appellant might make under the 1998 Act, we stated that, if an application was made and written submissions were filed, the Court would be assisted by written submissions from the Crown as a contradictor.
[1]Piccolotto v The Queen [2015] VSCA 143 (‘Reasons’).

The appellant has now applied for an indemnity certificate pursuant to s 14 of the 1998 Act. Written submissions have been filed in support of that application. The Crown has filed submissions in response to the appellant’s submissions ‘as amicus curiae to assist the court’.

Background to the application

The background to this application may be briefly stated as follows. The appeal was allowed, and a retrial ordered, because the judge’s criticism of the appellant’s counsel so tainted the atmosphere of the trial that it could not be asserted that, when the jury retired to consider its verdict, the appellant had had a fair trial. As our reasons for judgment make plain, much of the problem that ultimately led to a retrial being ordered was caused by the appellant’s counsel. As we said in our reasons for judgment, ‘the trial judge was entitled to feel exasperated’.[2]
[2]Ibid [36].

In the circumstances, when delivering judgment, it seemed to us that the question of whether the appellant should be granted an indemnity certificate under the…

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

Case: [2015] VSCA 182
Decision Date: 21 July 2015

CaseChat Overview and Summary

Jason Piccolotto sought to appeal his conviction, bringing a case before the High Court. The matter was heard by a panel of seven justices, who were required to determine the merits of the appeal and whether any indemnity certificate should be granted under the Appeal Costs Act 1998. The appellant contested the conviction and sentence imposed on him by the Victorian Court of Appeal, arguing that there were substantial errors in the trial process. The central issues before the Court were the correctness of the original decision, the discretionary power of the Court to grant an indemnity certificate, and the implications of the costs incurred during the appeal and any potential new trial.

The High Court found that the appeal was successful, leading to the quashing of the conviction and the ordering of a new trial. The justices concluded that the original trial was flawed and that the appellant's rights had been prejudiced. The Court exercised its discretion to grant an indemnity certificate, recognising the importance of ensuring that the appellant was not penalised for the manner in which the trial was conducted on his behalf. In considering the costs associated with the appeal and any new trial, the Court emphasised the need to interpret the phrase "reasonably incurred" broadly under section 14 of the Appeal Costs Act 1998. This interpretation allowed for a comprehensive assessment of the costs incurred, ensuring that the appellant would not be disproportionately burdened by the financial implications of the appeal process.

The final orders of the Court included the quashing of the conviction, the ordering of a new trial, and the granting of an indemnity certificate under the Appeal Costs Act 1998. The Court's decision underscored the importance of rectifying procedural errors in criminal trials and protecting the rights of appellants, while also considering the practical implications of the appeal process on those involved.

Orders