R v Rigoli - [2006] VSCA 1

COURT OF APPEAL

No. 230 of 2005

THE QUEEN
THE QUEEN	v.
LITTLE JOE RIGOLI
LITTLE JOE RIGOLI	No. 231 of 2005
THE QUEEN
v.
VIRGILIO RIGOLI

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JUDGES:	CALLAWAY, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 & 17 January 2006
DATE OF JUDGMENT:	25 January 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 1

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Criminal law – Defrauding the Commonwealth – Failing to declare assessable income – Obtaining payments of pension to which accused not entitled - Whether indictment containing sufficient description of conduct charged in relation to failure to declare assessable income – Whether counts relating to payments of pension disclosing more than one offence or resulting in uncertain verdict – Convictions quashed and judgments and verdicts of acquittal entered – Crimes Act 1914 (Cth), s.29D – Crimes (Criminal Trials) Act 1999 (Vic.), s.6

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APPEARANCES:	Counsel	Solicitors
For the Applicant Little Joe Rigoli	Mr P.F. Tehan, Q.C. with Mr P. Duggan	Campbell McAuley
For the Applicant Virgilio Rigoli	Mr M.J. Croucher with Mr D. Glynn	Vadarlis & Associates
For the Crown	Mr G.J.C. Silbert with Mr R.K. Davis	Director of Public Prosecutions (Cth)

CALLAWAY, J.A.:

These are applications for leave to appeal against conviction and sentence by Little Joe Rigoli and his father, Virgilio Rigoli, who were tried in the County Court together with Robert Palazzolo[1] on 30 counts of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 (Cth). For convenience I shall refer to the applicants as “Little Joe” and “Virgilio” respectively. After a trial occupying 39 days, the jury found Little Joe guilty on counts 9, 20, 22 and 24 and found Virgilio guilty on counts 5, 7, 19, 21, 23 and 25. Palazzolo was found guilty on counts 6, 8 and 27. He has not sought leave to appeal but the Registrar has received an application from him for an extension of time within which to do so. The jury acquitted the three accused on the other counts relating to each of them.
[1]Palazzolo, also known as Phillip Robert Rigoli, is the eldest son of Virgilio Rigoli and a brother of Little Joe Rigoli.

All the counts on which Little Joe was found guilty were of defrauding the Commonwealth by failing to declare assessable income. That was true also of all the counts on which Virgilio was found guilty, except count 25, which was of defrauding the Commonwealth by obtaining payments of invalid pension/disability support pension to which he was not entitled.

After hearing a plea for leniency on their behalf, the learned trial judge sentenced the applicants on 29^th July 2005. His Honour sentenced Little Joe to 12 months’ imprisonment on count 9, commencing on 29^th July 2005; 12 months’ imprisonment on count 20, commencing four months after the commencement of the sentence on count 9; 12 months’ imprisonment on count 22, commencing four months after the commencement of the sentence on count 20; and 12 months’ imprisonment on count 24, commencing four months after the commencement of the sentence…

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 Rigoli

Details

AGLC: R v Rigoli [2006] VSCA 1
Case: [2006] VSCA 1
Decision Date: 25 January 2006

CaseChat Overview and Summary

The case before the court was R v Rigoli, a criminal prosecution concerning allegations of defrauding the Commonwealth through the failure to declare assessable income and the improper receipt of pension payments. The matter was heard in the Supreme Court of Victoria. The accused, Mr Rigoli, was charged with multiple counts, including failing to declare income and obtaining pension payments to which he was not entitled. The prosecution alleged that the accused had not disclosed certain income on his tax returns, resulting in an underpayment of tax, and had also received pension benefits that he was not entitled to receive.

The primary legal issues the court needed to address were whether the indictment sufficiently described the conduct charged in relation to the failure to declare assessable income, and whether the counts concerning the payments of pension disclosed more than one offence or resulted in an uncertain verdict. The court was required to determine if the indictments were clear and precise enough to inform the accused of the charges against him and to ensure a fair trial. Additionally, the court had to consider whether the multiple counts related to pension payments amounted to a single offence or if they created ambiguity in the verdict.

The court found that the indictments were insufficiently descriptive of the conduct charged in relation to the failure to declare assessable income, as they did not specify the particular amounts of income that were not declared. This lack of specificity meant that the accused could not be adequately informed of the charges against him. Furthermore, the court held that the counts relating to the pension payments disclosed more than one offence and resulted in an uncertain verdict, as they did not clearly delineate the separate instances of obtaining pension payments. Consequently, the court quashed the convictions and entered judgments and verdicts of acquittal on all counts. The court's decision was based on the principles of ensuring that the accused is properly informed of the charges and that the trial is conducted fairly.

Orders