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Licciardello v The Queen

Licciardello v The Queen

Case [2012] ACTCA 16 4 April 2012

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Alfio Licciardello v The Queen [2012]
ACTCA 16 (4 April 2012)

PRACTICE AND PROCEDURE – whether appellant bound by his conduct at trial – whether appellant prevented from appealing his conviction on new grounds on appeal

CRIMINAL LAW – whether officer held requisite suspicion so as to effect lawful arrest – whether appellant was physically placed under arrest – whether appellant in lawful custody

Crimes Act 1900 (ACT), ss 160, 212

Hill v The Queen [2011] ACTCA 5
Jovic v Lamont [2007] NSWCA 47
Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia (2002) Aust Torts Reports 81-636
Michaels v The Queen (1995) 184 CLR 117
R v Templeton [1956] VLR 709
Warren v Coombes (1979) 142 CLR 531
Donaldson v Broomby (1982) 40 ALR 525
DPP v Carr (2002) 127 A Crim R 151
Alderson v Booth [1969] 2 QB 216
R v O’Donoghue (1988) 34 A Crim R 397
Wilson v New South Wales (2010) 278 ALR 74
Holgate-Mohammed v Duke [1984] AC 437
R v Goodwin [1993] 2 NZLR 153
Eatts v Dawson (1990) 21 FCR 166

R v Hill [2012] ACTSC 17

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 39 – 2011
No. SCC 55 of 2010

Judges: Higgins CJ, Penfold and Cowdroy JJ
Supreme Court of the ACT
Date: 4 April 2012

IN THE SUPREME COURT OF THE     )
  )             No.   ACTCA 39 - 2011
AUSTRALIAN CAPITAL TERRITORY           )             No.   SCC 55 of 2010
  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ALFIO LICCIARDELLO
Appellant

AND: THE QUEEN
Respondent

ORDER

Judge:  Higgins CJ, Penfold and Cowdroy JJ
Date:  4 April 2012
Place:  Canberra

THE COURT ORDERS THAT:

The conviction of the appellant on the charge that he, being a person in lawful custody, escaped from that arrest, be set aside, and a verdict of not guilty in respect of that charge be entered.

IN THE SUPREME COURT OF THE     )
  )             No.   ACTCA 39 - 2011
AUSTRALIAN CAPITAL TERRITORY           )             No.   SCC 55 of 2010
  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ALFIO LICCIARDELLO
Appellant

AND:THE QUEEN
Respondent

Judge:  Higgins CJ, Penfold and Cowdroy JJ
Date:  4 April 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT

The appellant appeals from the orders of Nield AJ (“the trial judge”’) made on 29 June 2011 which provided as follows:

1.Accused convicted of the offence of escape from lawful custody after being arrested.
2.Accused sentenced to nine months’ imprisonment, from 16 March 2011 – 15 December 2011, with balance to be suspended from 29 June 2011.
3.Accused placed on a good behaviour bond until 15 December 2011.

The essential ground of appeal claims that the verdict is unsafe or unsatisfactory. The appellant alleges that there was no or insufficient evidence that he was lawfully arrested prior…

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 The Queen

Details

AGLC: Licciardello v The Queen [2012] ACTCA 16
Case: [2012] ACTCA 16
Decision Date: April 4, 2012

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Licciardello, for escaping lawful custody. The central dispute revolved around the lawfulness of the arrest that preceded the alleged escape. The case was heard by Higgins CJ, Penfold and Cowdroy JJ.

The court was required to determine two primary legal issues. Firstly, whether the arresting officer held the requisite suspicion to effect a lawful arrest under the relevant legislation. Secondly, whether the appellant was physically placed under arrest and therefore in lawful custody at the time of the alleged escape. The court also considered whether the appellant was bound by his conduct at trial and thus prevented from raising new grounds on appeal.

The court reasoned that for an arrest to be lawful, the arresting officer must have entertained a genuine suspicion that the person had committed or was about to commit an offence. In this instance, the evidence did not establish that the officer held such a suspicion. Furthermore, the court found that the appellant had not been physically placed under arrest, meaning he was not in lawful custody. Consequently, the conviction for escaping lawful custody could not stand.

The conviction of the appellant on the charge of escaping lawful custody was set aside, and a verdict of not guilty was entered in respect of that charge.

Orders

Orders of the court

The conviction of the appellant on the charge that he, being a person in lawful custody, escaped from that arrest, be set aside, and a verdict of not guilty in respect of that charge be entered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Licciardello v The Queen [2012] ACTCA 16

Most Recent Citation

R v Davis [2015] ACTSC 101

Cases citing this decision · 4 of 4 shown

R v Timbrell
[2018] ACTSC 136 Para 1

…bt to be exercising his function as a public official. This submission was based upon the decision of the Court of Appeal in Licciardello v The Queen [2012] ACTCA 16; 6 ACTLR 233. In that case, a person had been arrested because police suspected that he had committed driving related offences. No evidence was given…
Taueki v Police
[2016] NZCA 433 Para 2

…in his truck to retrieve some personal items before going to the Police station? These facts are similar to those in Licciardello v The Queen [2012] ACTCA 16. In that case, the person who had been told that he was not free to leave and would be required to accompany police officers, but who had not been physically…
R v Davis
[2015] ACTSC 101

…Edwards v R (1993) 178 CLR 193 Licciardello v R [2012] ACTCA 16 R v Button (2002) 54 NSWLR 455 R v Mulcahy [2010] ACTSC 98…
Jason Luke McDevitt v Akira Dowling
[2014] ACTMC 1 Para 6

…The defence relies for its submission on the decision of the ACT Court of Appeal in Licciardello v The Queen (2012) ACTCA 16, which states at paragraph 19:…

View all 4 citing cases →

Cases cited in this decision · 16 of 16 shown

R v Hill
[2012] ACTSC 17 Para 1

…In R v Hill [2012] ACTSC 17, the question arose whether a police officer undertaking an emergency search held the requisite belief. Refshauge J observed at [90]: “ The question, though, is whether the belief was actually held, not whether it could, justifiably, have been held. ”…
Gregory Dean Hill v The Queen
[2011] ACTCA 5 Para 1

…ether the appellant is bound by his conduct of the trial and therefore is prevented from appealing his conviction on new grounds. In Hill v The Queen [2011] ACTCA 5 (“ Hill ”) the Court said at [24]:…
Wilson v State of New South Wales
[2010] NSWCA 333 Para 1

…In Wilson v New South Wales (2010) 278 ALR 74, two sheriffs attempted to enforce a property seizure order at the appellant’s home. Mr Wilson ordered the sheriffs to leave and an altercation on the veranda of the house followed in which a sheriff was assaulted. Following this altercation, Mr Wilson re-entered his hou…
Jovic v Lamont
[2007] NSWCA 47 Para 1

…To a similar effect in a similar context, see Jovic v Lamont [2007] NSWCA 47 at [68] and Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia (2002) Aust Torts Reports 81-636 at [51].…
Wilson v New South Wales Sheriff
[2006] NSWSC 991 Para 1

…In Wilson v New South Wales (2010) 278 ALR 74, two sheriffs attempted to enforce a property seizure order at the appellant’s home. Mr Wilson ordered the sheriffs to leave and an altercation on the veranda of the house followed in which a sheriff was assaulted. Following this altercation, Mr Wilson re-entered his house. The sherif…
Woodley v Boyd
[2001] NSWCA 35 Para 38

…these things obvious, or if the person arrested prevents it: Christie at AC 587–593; All ER 572–5, R v Hoar [1965] NSWR 1167; Woodley v Boyd [2001] NSWCA 35 at [38] ( Woodley ).…
Eatts v Dawson
[1990] FCA 158

…v O’Donoghue (1988) 34 A Crim R 397 Wilson v New South Wales (2010) 278 ALR 74 Holgate-Mohammed v Duke [1984] AC 437 R v Goodwin [1993] 2 NZLR 153 Eatts v Dawson (1990) 21 FCR 166…
Donaldson v Broomby
[1982] FCA 53 Para 1

…The appellant has referred to the principle that arrest is, at common law, a measure of last resort: see Donaldson v Broomby (1982) 40 ALR 525 and DPP v Carr (2002) 127 A Crim R 151. We do not consider it necessary to go further than to observe that the failure of the respondent to adduce evidence of an essential el…
Warren v Coombes
[1979] HCA 9 Para 1

…212(1)(b)(ii). Whilst he may have held that suspicion, no evidence was adduced during the trial to establish that fact. Although in Warren v Coombes (1979) 142 CLR 531 at 551 the High Court of Australia held that ordinarily a court of appeal is in as good a position as a trial judge to draw inferences from undispute…
Michaels v R
[1995] HCA 8 Para 1

…t be established as a necessary element of the offence that the arrest from which the person escaped was lawful: see for example Michaels v The Queen (1995) 184 CLR 117 at 124 and R v Templeton [1956] VLR 709.…
[1947] AC 573
[1947] AC 573

…should normally include informing the person that he or she is arrested and informing the person of the reason for the arrest: Christie v Leachinsky [1947] AC 573 at 587–93 ; [1947] 1 All ER 567 at 572–5 ( Christie ). However, this is not necessary if the circumstances make these things obvious, or if the perso…
[1984] AC 437
[1984] AC 437 Para 1

…In Holgate-Mohammed v Duke [1984] AC 437 at 441, Diplock LJ said:…
[1969] 2 QB 216
[1969] 2 QB 216 Para 1

…In Alderson v Booth [1969] 2 QB 216, Lord Parker CJ stated at 220-221:…
[1993] 2 NZLR 153
[1993] 2 NZLR 153 Para 1

…restrained is not determinative of the issue of whether or not he was in custody. This was the view of the New Zealand Court of Appeal in R v Goodwin [1993] 2 NZLR 153 where Cooke P held at 161 that where a person is informed that they are not free to leave, this equates to custody. His Honour said:…
[1951] 2 KB 459
[1951] 2 KB 459

…Cr App R 301 at 303-304; but they are not always necessary - what must be done is what is reasonable in the circumstances: Tims v John Lewis & Co Ltd [1951] 2 KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36; [1971] 1 All ER 173 at 178.…
[1971] 1 WLR 29
[1971] 1 WLR 29

…always necessary - what must be done is what is reasonable in the circumstances: Tims v John Lewis & Co Ltd [1951] 2 KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36; [1971] 1 All ER 173 at 178.…

Legislation cited in this decision · 1

Crimes Act 1900 (ACT)
160, 212 3 mentions (from Para 1)