R v Nicoletti - [2006] VSCA 175

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 178 of 2005
No. 170 of 2005

THE QUEEN

ERICO NICOLETTI

and

ROBERT TOLONE

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JUDGES:	MAXWELL, P., NEAVE, J.A. and BONGIORNO, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2006
DATE OF JUDGMENT:	30 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 175

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Criminal Law – Appeal against conviction – Armed robbery – Evidence – Admissibility of admissions made in off-tape conversation with informant – Whether exceptional circumstances existed to justify reception of the evidence – Crimes Act 1958 (Vic) s.464H(2).

Criminal Law – Appeal against conviction – Application of proviso – Crimes Act 1958 (Vic) s.568(1) – Whether erroneous admission of evidence would have had significance in determining jury verdict.

Criminal Law – Appeal against conviction – Whether retrial should be ordered or verdicts of acquittal entered – Whether contrary to the interests of justice for there to be a new trial – Appeal allowed – Verdicts of acquittal entered.

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APPEARANCES:

Counsel

Solicitors

For the Applicant Nicoletti

For the Applicant Tolone

Ms. F. L. Dalziel

Mr. D. A. Dann

Victoria Legal Aid

C. Marshall & Associates

For the Crown

Mr. O. P. Holdenson, Q. C.

Mr. S. Carisbrooke,
Acting Solicitor for Public Prosecutions

MAXWELL, P.:

The applicants, Erico Nicoletti and Robert Tolone, were convicted by a County Court jury of one count of armed robbery. The presentment alleged that they had –

“on the 29^th day of November 2003 robbed David Luu of an NEC mobile telephone and at the time... Nicoletti had with him an offensive weapon namely scissors.”

Nicoletti was sentenced to three years’ imprisonment, with a non-parole period of two years. (Taking into account pre-sentence detention, his earliest effective release date is 13 January 2007). Tolone, who pleaded guilty to two other dishonesty offences, received a total effective sentence of three and a half years imprisonment, with a non-parole period of two and a half years. (Taking into account pre-sentence detention, Tolone’s earliest effective release date was 30 July 2006. The Court has recently been informed that Tolone has been released on parole).

Each applicant seeks leave to appeal against his conviction. The ground common to both applicants concerns the admission of certain evidence in the re-examination of the informant. Tolone, who gave evidence, raises an additional ground concerning the nature of questions asked of him by the judge in the course of cross-examination. In view of the conclusion I have reached on the first ground, it will be unnecessary to deal with the ground which relates only to Tolone.

Summary of facts

On Friday, 28 November 2003, the applicants met David Luu and his girlfriend Caroline Loczy at the Upfield Railway Station. There is a dispute about how this came about. According to Luu and Loczy, they had never met the applicants before. Luu and Loczy were sitting on a bench at the station. A train was parked at the station. There was a conversation between Luu and the applicants which turned…

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 R v Nicoletti

Details

AGLC: R v Nicoletti [2006] VSCA 175
Case: [2006] VSCA 175
Decision Date: 30 August 2006

CaseChat Overview and Summary

The case of R v Nicoletti involved an appeal against the conviction of the defendant for armed robbery. The dispute centred on the admissibility of certain evidence that was obtained through an off-tape conversation between the defendant and an informant, which was not recorded but later transcribed. The Victorian Court of Appeal was tasked with determining whether these admissions could be admitted under the provisions of the Crimes Act 1958 (Vic), specifically section 464H(2), and whether their erroneous admission would have been significant in determining the jury's verdict.

The court was required to decide whether the evidence in question could be admitted under the exceptional circumstances provision of section 464H(2) of the Crimes Act 1958 (Vic). The appellant argued that the admissions made during the off-tape conversation should not have been admitted as they were not recorded, and thus, the integrity and reliability of the evidence were compromised. The court also needed to determine whether the admission of this evidence, if erroneous, would have significantly influenced the jury's verdict under section 568(1) of the same Act. This required a nuanced examination of the entire body of evidence and the potential impact of the contested evidence on the overall case.

The court found that the admissions made in the off-tape conversation should not have been admitted due to the lack of a contemporaneous record, which undermined the reliability and integrity of the evidence. The court held that the exceptional circumstances required under section 464H(2) of the Crimes Act 1958 (Vic) were not present. Furthermore, it was determined that the erroneous admission of this evidence would not have had a significant impact on the jury's verdict, as the remaining evidence was sufficient to support the acquittal. Consequently, the court concluded that a retrial would be contrary to the interests of justice. The appeal was allowed, and verdicts of acquittal were entered.

Orders