JUDGES	MAXWELL P, BONGIORNO JA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARINGS	5 March, 29 August, 9 November 2012
DATE OF ORDERS	29 August, 9 November 2012
DATE OF JUDGMENT	23 November 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 280
JUDGMENT APPEALED FROM	R v Latorre (Unreported, County Court of Victoria, Judge Hampel, 10 December 2009)

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CRIMINAL LAW – Appeal – Conviction – Blackmail – Demand allegedly made by appellant’s agent – Agency principles inapplicable to attribution of criminal responsibility – R v Franklin (2001) 3 VR 9 applied – Conviction quashed – Whether retrial should be ordered – Evidence at trial insufficient for conviction – Unfair to allow prosecution to mend defective case – Verdicts of acquittal – R v Thomas (No 3) (2006) 14 VR 512 applied.

CRIMINAL LAW – Appeal – Conviction – Extortion – Voice recognition – Voice comparison – Admissibility of telephone intercept evidence – Adequacy of Domican warning – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Blackmail – Extortion – Threat to kill – Appellant resentenced following partial success on appeal against conviction – Total effective sentence 7 y – Non-parole period 5 y.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Croucher SC with Ms S Leighfield	Galbally & O’Bryan
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BONGIORNO JA
KYROU AJA:

A. INTRODUCTION AND SUMMARY

On 26 June 2009, following a trial in the County Court at Melbourne involving the complainant Rocco (Rocky) Orsida (‘Orsida’), the applicant — who is now 51 years of age — was convicted of two counts of blackmail (‘Orsida presentment’ and ‘Orsida trial’). He was found not guilty of a further count of blackmail.

On 17 August 2009, following a trial in the County Court at Melbourne involving the complainant Karl Nash (‘Nash’), the applicant was convicted of one count of extortion (‘Nash presentment’ and ‘Nash trial’).

On 17 September 2009, on a presentment involving the complainants Sam and Frank Rachelle, the applicant pleaded guilty to two counts of common assault, two counts of threat to kill and one count of intentional damage to property (‘Rachelle presentment’).

On 29 October 2009, on a presentment involving the complainants Thomas and Antonino Corso, the applicant pleaded guilty to one count of blackmail (‘Corso presentment’).

Following a plea in mitigation in relation to all counts on which the applicant was convicted or pleaded guilty, on 10 December 2009 the applicant was sentenced as set out in Table A below:[1]
[1]R v Latorre (Unreported, County Court of Victoria, Judge Hampel, 10 December 2009), (‘Reasons’).

TABLE A

Count Date Offence Maximum Sentence Cumulation

Presentment No U01867876 — Complainant Orsida

1 July 2004 Blackmail 15 y 5 y 1 y

3 28 September 2005 Blackmail

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 Latorre v The Queen

Details

AGLC: Latorre v The Queen [2012] VSCA 280
Case: [2012] VSCA 280
Decision Date: 23 November 2012

CaseChat Overview and Summary

The case of Latorre v The Queen involved an appeal against the appellant's conviction and sentence for blackmail and extortion. The appellant was convicted of demanding money from the victim with threats and was subsequently sentenced to a total of seven years imprisonment with a non-parole period of five years. The primary legal issues before the court were the applicability of agency principles to the attribution of criminal responsibility and the admissibility of telephone intercept evidence in the form of voice recognition. The court found that agency principles were inapplicable in this context and that the Domican warning provided to the appellant was adequate, thus allowing the use of the telephone intercept evidence.

The appellant argued that the trial court erred in applying agency principles to attribute criminal responsibility to him for the actions of his agent. The court considered this issue in light of the decision in R v Franklin and held that such principles did not apply to the attribution of criminal responsibility in this case. Additionally, the appellant challenged the admissibility of the telephone intercept evidence on the basis that the Domican warning was inadequate. The court determined that the warning was sufficient, and the evidence was therefore admissible.

The court quashed the appellant's conviction on the basis that the evidence at trial was insufficient to support a conviction. The court held that it would be unfair to allow the prosecution to mend a defective case, and thus ordered verdicts of acquittal on the charges of blackmail and extortion. The court also considered whether a retrial should be ordered but found that the evidence was insufficient for conviction. In reaching this decision, the court referred to the case of R v Thomas (No 3) and held that a retrial would not be appropriate in this instance.

The final orders of the court were that the appellant's conviction and sentence be quashed, and verdicts of acquittal be entered on the charges of blackmail and extortion. The court also refused an application for leave to appeal against the conviction on the ground of the admissibility of the telephone intercept evidence. The appellant was resentenced following a partial success on appeal against his conviction, receiving a total effective sentence of seven years imprisonment with a non-parole period of five years.

Orders