R v Di Cioccio (Ruling No 1) - [2011] VSC 548

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 2011 0137
SCR 2011 0141

THE QUEEN

ANDRE VINCENT DI CIOCCIO & MARC EDWARD DI CIOCCIO

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2011
DATE OF RULING:	26 October 2011
CASE MAY BE CITED AS:	R v Di Cioccio & Anor (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2011] VSC 548

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CRIMINAL LAW – Obtaining financial advantage by deception – Tendency evidence – Whether significant probative value – whether probative value substantially outweighs prejudicial effect - Evidence Act 2008 (Vic) ss 97, 101(2).

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr J Shaw with
Mr S Gelfand

Office of Public Prosecutions

For the Accused

Mr P Higham for Andre Vincent Di Cioccio
Mr P Guggenheimer for Marc Edward Di Cioccio

Matthew White & Associates

Chris McLennan & Co

HIS HONOUR:

Before the jury has been empanelled, Marc Di Cioccio, along with his brother Andre Di Cioccio, has been arraigned on and pleaded not guilty to two charges of obtaining financial advantage by deception. The Crown wishes to lead tendency evidence to prove the charges against Marc Di Cioccio. He argues that the evidence ought not to be admitted.

On the indictment, the Crown alleges that on two separate occasions in August 2007 Marc Di Cioccio facilitated the submission of false tax invoices from Mac Spot Pty Ltd, a business with which he was associated, to Westpac Banking Corporation in support of loan applications by nominated purchasers of goods as set out in the invoices. It is alleged that he did so knowing that the invoices were false in that there was no actual sale of the goods as described in the invoices. It is alleged that Westpac advanced monies on the basis of the loan applications and that the monies were lodged with Mac Spot Pty Ltd after which some of the proceeds were paid to or for the benefit of the accused.

The evidence which the prosecution wishes to lead, relying upon s 97 of the Evidence Act 2008 (Vic), falls into two categories.

The first category is evidence from a former employee of the Mac Spot business, being Dean Dimaggio. He says that on four separate, but unidentified, occasions (presumably between 2004 and mid/late 2007 during the period of his employment) Marc Di Cioccio asked him to create invoices for transactions which, it would appear, were not genuine transactions.

The second category relates to evidence that, in 2010, Marc Di Cioccio sought to prove ownership of computer goods allegedly stolen from him, in a civil claim against the manager of the building in which he occupied an apartment, by filing at the Victorian Civil and Administrative Tribunal two Mac Spot Pty Ltd tax invoices which contained some information that was incorrect.

Section 97 of the Evidence Act provides:

(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is…

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: [2011] VSC 548
Decision Date: 26 October 2011

CaseChat Overview and Summary

The case before the court involved the defendant, Di Cioccio, who was charged with obtaining financial advantage by deception under the criminal law of Victoria. The dispute centred around whether the prosecution could introduce tendency evidence to prove that the defendant had a propensity to commit similar offences, in accordance with the provisions of the Evidence Act 2008 (Vic). The matter was heard and determined in the Supreme Court of Victoria. The legal issues that the court had to address were whether the tendency evidence had significant probative value and whether its probative value substantially outweighed its prejudicial effect. The court had to balance these considerations in light of the provisions of sections 97 and 101(2) of the Evidence Act 2008 (Vic).

The court carefully considered the nature of the tendency evidence and its potential to prove a matter that was of consequence in the proceeding. It was established that the probative value of the evidence had to be significant in order to be admissible. The court also had to consider whether the probative value substantially outweighed the prejudicial effect. In determining this, the court examined the nature of the evidence, the similarities between the past conduct and the current charges, and the potential impact on the jury. After a thorough analysis, the court concluded that the tendency evidence did not have sufficient probative value to be admitted and that its prejudicial effect would substantially outweigh its probative value.

In light of the court's findings, the tendency evidence was deemed inadmissible under the provisions of the Evidence Act 2008 (Vic). The court's decision was based on a careful assessment of the evidence's probative value and its potential prejudicial effect. The court's ruling highlighted the importance of adhering to the statutory criteria when considering the admissibility of tendency evidence in criminal proceedings. As a result, the court's decision provided clarity on the application of the Evidence Act 2008 (Vic) in cases involving tendency evidence and its admissibility in criminal trials.

Orders