R v Licciardello

Case [2017] QCA 286

SUPREME COURT OF QUEENSLAND

CITATION:

R v Licciardello [2017] QCA 286

PARTIES:

R
v
LICCIARDELLO, Anthony Robert
(appellant)

FILE NO/S:

CA No 49 of 2017
DC No 558 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 23 February 2017 (Moynihan QC DCJ)

DELIVERED ON:

22 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2017

JUDGES:

Sofronoff P and McMurdo JA and Douglas J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – AID, ABET, COUNSEL OR PROCURE – KNOWLEDGE – where the appellant was found guilty of two offences which were committed during an altercation between two groups of men in a street – where the appellant appealed against his conviction for unlawfully doing grievous bodily harm – where the prosecution had argued that the jury could convict the appellant by one of several routes, including by s 7(1)(b) or s 7(1)(c) of the Criminal Code (Qld) – where the trial judge directed the jury that the prosecution had to prove that the defendant had ‘actual knowledge or an expectation of the essential facts of that offence. That is, all the essential matters which make the acts done a crime.’ – where the appellant argued that this direction was inadequate because it left it open to the jury to convict if satisfied that the appellant knew or expected a simple assault upon the complainant, regardless of what he knew or expected about the seriousness of that assault or its consequences – whether the appellant needed to know or expect something of the likely result of the assault, or merely needed to know of the assault, to be found guilty under s 7(1)(b) or s 7(1)(c) of the Code

Criminal Code (Qld), s 2, s 7(1)(b), s 7(1)(c), s 320(1)

Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, considered
Johnson v Youden [1950] 1 KB 544; [1950] 1 All ER 301, cited
R v Barlow (1997) 188 CLR 1; [1997] HCA 19, cited
R v Beck [1990] 1 Qd R 30, considered
R v Brown (2007) 171 A Crim R 345; [2007] QCA 161, considered
R v Da Costa[2005] QCA 385, disapproved
R v Jeffrey [2003] 2 Qd R 306; [1997] QCA 460, distinguished
R v Pascoe[1997] QCA 452, cited

COUNSEL:

M J Copley QC for the appellant
M Cowen QC for the respondent

SOLICITORS:

Mulcahy Ryan Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of McMurdo JA and with the order his Honour proposes.

  2. McMURDO JA:  After a trial by jury in the District Court, the appellant was found guilty of two offences, which were committed during an altercation between two groups of men in a street outside a hotel in Fortitude Valley.  He appealed against those convictions but now presses his appeal against only one…

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AGLC
R v Licciardello [2017] QCA 286
Case
[2017] QCA 286
Decision Date

CaseChat Overview and Summary

The case of R v Licciardello involved an appeal by the appellant against his conviction for the offence of unlawfully doing grievous bodily harm. The incident occurred during an altercation between two groups of men outside a hotel in Fortitude Valley, Brisbane. The primary legal issue was whether the trial judge's direction to the jury regarding the elements of the offence was sufficient. Specifically, the court needed to determine whether the appellant had to know or expect the likely result of the assault, or merely needed to know of the assault itself, to be found guilty under s 7(1)(b) or s 7(1)(c) of the Criminal Code (Qld). The appellant contended that the direction was inadequate because it left it open to the jury to convict him if they were satisfied that he knew or expected a simple assault, regardless of what he knew or expected about the seriousness of that assault or its consequences.

The Queensland Court of Appeal examined the legal principles established in previous cases, notably R v Brown, to resolve this issue. The Court noted that under s 7(1)(b) or s 7(1)(c), a person is criminally responsible if they aid, abet, counsel, or procure the commission of an offence with knowledge of the essential facts constituting the offence. The Court held that to be found guilty under these sections, the appellant needed to know that the principal offender was committing an offence, which in this case was constituted by the conduct of assaulting the complainant. The Court concluded that it was not necessary for the appellant to know or expect the likely result of the assault, but merely that he knew or expected the conduct constituting the offence of assault was occurring or would occur.

The Court dismissed the appeal, holding that the trial judge's direction to the jury was sufficient under the law. The Court found that the appellant's knowledge of the essential facts of the offence was adequately captured by the trial judge's direction, and that the jury could properly convict him based on this knowledge. The Court's decision confirmed that the appellant's conviction for unlawfully doing grievous bodily harm was upheld, and the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The respondent argues that the direction was sufficient. But it agrees that if the appellant’s argument is accepted, the conviction must be set aside and a new trial ordered, because it is possible that the jury convicted the appellant by the application of s 7(1)(b) or s 7(1)(c).The evidence at the trial In summary, the evidence in the prosecution case was as follows. The complainant and two companions went to a hotel in Fortitude Valley. Inside the hotel the complainant and one of them became involved in an altercation with another group of men. The complainant and his friend were asked by hotel staff to leave the premises. They left and waited in the street for the other man in their group to join them. In a statement to police, the appellant said that he had been involved in the incident inside the hotel, as a member of the opposing group. He also left the hotel immediately after the incident. In the street, the complainant and his companion were approached by a group of men. The complainant was hit in the face and there were blows to his torso and head. He fell to the ground where someone stomped on him. He was punched and kicked by more than one person he said, but he could not say by how many. The complainant’s companion was also kicked and punched. A security guard at the hotel said that he saw two men beating up another on the road. He saw that man being kicked twice. None of the witnesses was able to identify or describe the assailants, except by descriptions of their clothing. None referred to a man wearing a blue shirt, which the appellant was wearing according to other evidence. Later that evening, police found the appellant and another man in the bathroom of another hotel in Fortitude Valley washing blood from themselves and with blood on their clothing. The appellant then admitted that he had been involved in the incident in the street outside the (original) hotel, in which, he said, he had pushed or shoved someone. A DNA profile consistent with that of the complainant was found on the appellant’s shirt. The appellant gave evidence at the trial. He admitted being at the scene of the altercation outside the hotel. He admitted that he had touched people in the course of that event but denied that he had assaulted anyone. He recalled the complainant being hit, but he said that he ran away before the complainant was kicked. He said that his intention had been to stop the altercation. The appellant was tried together with another member of his group. They were each charged with one count of doing grievous bodily harm and one count of unlawfully assaulting that complainant’s companion, doing him bodily harm. Each defendant was convicted of the charges, with the aggravating circumstance that the offences had been committed in company. The appellant was sentenced to a term of two and a half years’ imprisonment for the offence of doing grievous bodily harm and a concurrent term of 18 months imprisonment for the other offence. He was ordered to be released on parole after serving eight months.The ground of appeal

Decision

Reasons for decision

The appellant’s argument is not supported by this Court’s subsequent decision in R v Brown.[21] The appellant in that case was found not guilty of murder, but guilty of manslaughter of a man who had been killed by several blows to his head, which could have been caused by fists, feet, boots or a blunt object. The appellant and others went to the deceased’s home in order to collect a drug debt. The appellant was armed with a hammer and there was evidence that he used it to strike the deceased. But there was some evidence that further violence was inflicted on the deceased by others. The prosecution case was that the appellant was guilty of murder either under s 7 or s 8. The appellant’s first ground of appeal was that the trial judge erred in directing the jury about s 7(1)(c), by telling the jury that they could convict him of manslaughter under that provision if they found that he had aided the principal offender with knowledge that that offender had an intention to assault the deceased. It was argued that for the jury to convict the appellant of manslaughter under s 7(1)(c), it was necessary for them to be satisfied both that a reasonable person in his position would have foreseen death as a possible outcome of the assault that he was aiding and that he actually foresaw this.[22] That argument was rejected. McMurdo P said:[23]“The case against the appellant at trial under s 7(1)(c) was that he was present and knowingly aided the perpetrator in a lethal assault upon the deceased. To convict the appellant of manslaughter on the basis of s 7(1)(c) in this case, the jury had to be satisfied that the appellant knowingly aided the perpetrator to assault the deceased; the assault was a substantial or significant cause of the death; the killing was unlawful; but not satisfied that the appellant intended to kill or do grievous bodily harm to the deceased.”In the same case, Holmes JA (as she then was) said:[24]“The state of knowledge which the Crown had to prove in order to convict the appellant as an aider under s 7(1)(c) of the Criminal Code was of the ‘essential facts constituting or making up the offence that [was] being or about to be committed by the person he [was] aiding or assisting’;[25] that is to say, the assault which caused the deceased’s death. The direction given met that requirement.”(emphasis added)[21](2007) 171 A Crim R 345.[22]As the argument was summarised by McMurdo P at [23].[23](2007) 171 A Crim R 345 at [31].[24](2007) 171 A Crim R 345 at [48].[25]Citing R v Jeffrey and Giorgianni at 482.Conclusion To be criminally responsible under s 7(1)(b) or s 7(1)(c), a person must know of the offence which is being, or which is about to be, committed by the person he is aiding or intending to aid. That offence is constituted by the conduct (an act or omission) of the other person which attracts criminal liability. If the principal offender’s crime requires a specific intent, then s 7(1)(b) or s 7(1)(c) requires the aider to know that he is aiding the other to act (or omit to act) with that intent. But if “the offence” has no ingredient of an intent (or other state of mind) on the part of the person who does the act or makes the omission, all that the aider need know is that the conduct constituting the offence is occurring or will occur. Of course, what was not foreseen or foreseeable as a consequence might be relevant, in a certain case, for the purposes of s 23 of the Code. But s 23 was not said to be relevant here.

Ratio Decidendi

Legal Principle Established

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