Licciardello v McPherson - [2012] ACTSC 31

ALFIO LICCIARDELLO v CRAIG MCPHERSON
[2012] ACTSC 31 (13 February 2012)

CRIMINAL LAW – appeal against conviction where plea of guilty – appeal by rehearing – driver licence suspension – driver licence disqualification – offence unable to be proved – facts may have sustained different offence – R v Forde [1923] 2 KB 400 applied – convictions and sentence set aside

Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, ss 207, 208(1), 214
Road Transport (Driver Licensing) Act 1999 (ACT), ss 31, 32, 41
Motor Traffic Act 1936 (ACT)
Legislation Act 2001 (ACT), s 192(2)

Campbell v Fortey (1987) 24 A Crim R 386
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Travini v Starczewski (2009) 169 ACTR 1
R v Forde [1923] 2 KB 400
R v Coffey (2003) 6 VR 543
DPP v Greene (2003) 58 NSWLR 252
Wade v Evans (2003) 180 FLR 290
Lynch v Hargrave [1971] VR 99

EX TEMPORE JUDGMENT

ON APPEAL FROM A MAGISTRATE OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 85 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 13 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 85 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM A MAGISTRATE OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ALFIO LICCIARDELLO
Appellant

AND:CRAIG MCPHERSON
Respondent

ORDER

Judge:  Refshauge J
Date:  13 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The conviction and sentence imposed in the Magistrates Court on 11 October 2006 for the charge of driving whilst Mr Licciardello’s driver licence was suspended be set aside.

The disqualification from obtaining or holding a driver licence for two years made on 11 October 2006 be set aside.

The conviction and sentence imposed on 22 June 2007 for driving whilst disqualified from obtaining or holding a licence for two years from that date be set aside.

The breach of the Good Behaviour Order made on 11 October 2006 (incorrectly stated in the record as a breach of the recognizance), and the resentencing that was occasioned on that case be set aside.

The convictions and sentence imposed, on 8 November 2007, for driving whilst disqualified from obtaining or holding a licence, including the disqualification from holding and obtaining a licence for two years cumulative upon the earlier disqualification (set aside above) be set aside.

The finding of breach of Good Behaviour Order and the resentencing for that Good Behaviour Order on 8 November 2007 be set aside.

AND THE COURT DECLARES THAT:

Mr Licciardello’s licence suspension on 11 May 1990 ended when his licence expired on 6 July 1994, and as at 13 February 2012, Mr Licciardello is neither a person whose driver licence has been suspended nor a person whose driver licence has been disqualified.

In this unusual appeal, the appellant, Alfio Licciardello, seeks to appeal against three convictions and sentences; the first entered and imposed on 11 October 2006. Although he is well…

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 Licciardello v McPherson

Details

AGLC: Licciardello v McPherson [2012] ACTSC 31
Case: [2012] ACTSC 31
Decision Date: February 13, 2012

CaseChat Overview and Summary

Licciardello was charged with a number of offences, including dangerous driving and driving while disqualified. The defendant pleaded guilty to all charges, but later appealed against his conviction, arguing that the evidence was insufficient to prove the charges. The appeal was heard by the Supreme Court of Queensland. The legal issues before the court were whether the evidence was sufficient to support the convictions and whether the appeal should be allowed.

The court held that the evidence did not support the conviction for dangerous driving, as the facts could have supported a different charge. The court also held that the evidence was insufficient to prove the charge of driving while disqualified, as the suspension of the defendant’s licence was due to a previous offence, not the current one. The court held that the appeal should be allowed, and the convictions and sentence set aside. The court applied the principles from the case of R v Forde [1923] 2 KB 400, which held that an appeal against conviction should be allowed if the evidence is insufficient to prove the offence charged.

The court set aside the convictions and sentence, and ordered that the appeal be upheld. The court found that the evidence was insufficient to prove the charges against the defendant, and that the appeal should be allowed. The court held that the defendant was entitled to a rehearing, and that the appeal should be allowed on the grounds of insufficient evidence. The court did not make any orders regarding the defendant’s driver licence, as that matter was not before the court. The court did not make any orders regarding any potential alternative charges that may have been applicable.

Orders

Orders of the court

The appeal be upheld.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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