Criminal law - Appeal by reference from Attorney General of petition for mercy - Recantation by accomplice of evidence at trial - Whether justice had miscarried - Whether significant possibility of acquittal in light of recantation

Legislation:

Sentencing Act 1995 (WA) s 140(1)(a)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr M J McCusker QC & Ms K J Bennett
Respondent: Mr K P Bates

Solicitors:

Appellant: Mony De Kerloy
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Craig v The King (1933) 49 CLR 429
Davies & Cody v The King (1937) 57 CLR 170
Gallagher v The Queen (1986) 160 CLR 392
K v The Queen [1984] 1 NZLR 264
M v The Queen (1994) 181 CLR 487
Mickelberg v The Queen (1989) 167 CLR 259
Pileggi v The Queen, unreported; CCA SCt of WA; Library No 980272; 20 May 1998
R v Bryer (1994) 75 A Crim R 456
R v Flower & Siggins [1966] 1 QB 146
R v Gale [1970] VR 669
R v Geesing (1985) 38 SASR 226
Ratten v The Queen (1974) 131 CLR 510

Case(s) also cited:

R v Bond (1992) 62 A Crim R 383
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Illic v The Queen [2000] WASCA 411
Middleton v The Queen [2000] WASCA 200
R v Poluter (1978) 19 SASR 370
Whitehorn v The Queen (1983) 152 CLR 657

MALCOLM CJ: This appeal comes before the Court by way of a reference to the Court of Criminal Appeal by the former Attorney General, the Hon Peter Foss QC MLC, pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA). The reference is dated 19 July 2000 and is accompanied by proposed grounds of appeal which were incorporated in a notice of appeal dated 20 March 2001 and filed at the Court.
The appellant was convicted in the District Court on 4 November 1997 on two counts, both of which alleged offences under s 409(1) of the Criminal Code, namely that:
"(1)On or about 10 October 1989 at Perth ANTONIO NIKI PILEGGI by falsely pretending to an employee of RAC INSURANCE PTY LTD a Chrysler Valiant sedan motor vehicle registered number XHE 111 had been stolen obtained from RAC INSURANCE PTY LTD the sum of $1,250 in money with intent thereby to defraud.
(2)AND FURTHER THAT on or about 10 May 1990 at Perth ANTONIO NIKI PILEGGI by falsely pretending to an employee of WESTERN UNDERWRITERS INSURANCE LTD that a Holden Gemini sedan motor vehicle registered number 6MZ 581 had been stolen and damaged by fire, induced WESTERN UNDERWRITERS INSURANCE LTD to deliver to…

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 Pileggi v The Queen

Details

AGLC: Pileggi v The Queen [2001] WASCA 260
Case: [2001] WASCA 260
Decision Date: 29 AUGUST 2001

CaseChat Overview and Summary

The case of Pileggi v The Queen involved an appeal by reference from the Attorney General regarding a petition for mercy by the respondent. The appeal centred on the recantation of evidence provided by an accomplice during the respondent's criminal trial. The High Court was tasked with determining whether the justice system had miscarried and whether there was a significant possibility of acquittal given the new evidence.

The central legal issues before the Court were whether the recantation of evidence by the accomplice was sufficient to warrant a conclusion that justice had miscarried and if such recantation created a significant possibility of acquittal for the respondent. The Court had to assess the impact of the new evidence on the original conviction and consider the principles governing appeals by reference and petitions for mercy.

The Court examined the evidence presented and the circumstances surrounding the recantation. It concluded that the recantation did not establish a miscarriage of justice or a significant possibility of acquittal. The Court noted that the recantation was vague and lacked specific details that could have undermined the original conviction. The evidence was found to be insufficient to warrant a new trial or to alter the outcome of the original decision. Consequently, the appeal was dismissed, and the respondent's petition for mercy was denied.

Orders