The State of Western Australia v Nicoletti
[2024] WADC 17
•9 APRIL 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NICOLETTI [2024] WADC 17
CORAM: PRIOR DCJ
HEARD: 7 MARCH 2024
DELIVERED : Ex tempore
PUBLISHED : 9 APRIL 2024
FILE NO/S: IND 1017 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ALBERTO NICOLETTI
AND
VINCENZO MINEO
Catchwords:
Test where a submission of no case to answer is made - Honest and reasonable mistake of fact as to consent to sexual penetration
Legislation:
Criminal Code (WA), s 24
Criminal Procedure Act 2004 (WA), s 108
Result:
Accused Mr Mineo's application in relation to count 10 pursuant to s 108 of the Criminal Procedure Act 2004 (WA) is dismissed
Representation:
Counsel:
| The State of Western Australia | : | Ms E J Noonan & Dr J Tudor-Owen |
| First Accused | : | No appearance |
| Second Accused | : | Ms L Boston |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| First Accused | : | Not applicable |
| Second Accused | : | Scerri Legal |
Case(s) referred to in decision(s):
Doney v The Queen (1990) 171 CLR 207
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Bilick (1984) 36 SASR 321
The State of Western Australia v Burke [2011] WASCA 190
The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155
PRIOR DCJ:
[This decision was delivered extemporaneously on 7 March 2024 and edited from the transcript.]
No case submission - Vincenzo Mineo
The accused, Vincenzo Mineo makes an application pursuant to s 108 of the Criminal Procedure Act 2004 (WA) that I should enter a verdict of not guilty in relation to count 10 on the indictment. The submission is generally described as a 'No Case Submission'.
On behalf of Mr Mineo, it is accepted that there is evidence of each of the elements the subject of count 10 which the jury could consider as part of the State case, in particular, from the evidence of JOB. It is not disputed that there is evidence that a jury could consider that Mr Mineo sexually penetrated JOB by introducing his penis into her mouth without her consent.
The submission of no case to answer is based on a submission that on the evidence in the State case, the defence under s 24 of the Criminal Code (WA) arises that the accused, Mr Mineo had an honest and reasonable but mistaken belief at the time that JOB was consenting to his act of sexual penetration. Mr Mineo's counsel describes this case as an extraordinary and exceptional case.
Based on the evidence of JOB, in particular evidence she gave during the cross‑examination of her by counsel for Mr Mineo, I accept that there is presently an evidentiary basis to leave a defence to the jury to consider under s 24 of the Criminal Code.
Section 108 of the Criminal Procedure Act provides that if the judge makes a finding that there is no case to answer, rather than directing the jury to return a verdict of acquittal, the judge must discharge the jury from giving its verdict on the charge.
The test to be applied on a no case submission application is to ask whether the evidence of the prosecution, taken at its highest, is capable of establishing beyond reasonable doubt the guilt of the accused.[1] There must be evidence which, if accepted, would provide evidence of each element of the charge. The question is not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on the evidence as it stands, he or she could lawfully be convicted.
[1] See R v Bilick (1984) 36 SASR 321 (Bilick); Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 489; The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155 [5] - [11] (Montani).
If there is evidence, even if tenuous or inherently weak or vague, which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.[2]
[2] Doney v The Queen (1990) 171 CLR 207 [17].
In a circumstantial case, the following passage from Bilick has been applied in a number of Western Australian cases:[3]
… Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial judge was required to answer in deciding on the submission of no case to answer.
[3] Bilick (337) (King CJ with Mohr J agreeing).
In Montani the Court of Appeal said referring to what the trial judge said to the jury:[4]
… The Judge then draws all reasonable inferences from those facts adverse to the accused and in favour of the prosecution. If, having undertaken the exercise, the inference of guilt is reasonably capable of being drawn to a standard beyond reasonable doubt, it is the duty of the Judge to allow the case to proceed.
If a reasonable inference of guilt cannot be drawn because there is a defect in the evidence preventing the drawing of a reasonable inference of guilt to the criminal standard of proof, it is the duty of the Judge to find the accused not guilty.
In the drawing of an inference, only reasoned and logical deductions are permissible; speculation and conjecture are not.
[4] Montani [10].
It is no part of the judge's function to weigh or assess the competing evidence. The obligation, compelled by authority, is to have regard to the evidence which puts the prosecution case at its highest, or to draw the inferences most favourable to the prosecution which are open from the evidence.[5] As was stated by Buss JA (as he then was) in Burke:[6]
… where a submission of no case to answer is made in a criminal prosecution which depends upon circumstantial evidence, the trial judge should rule on the submission on the basis of such inferences as are reasonably open on the evidence and as are most favourable to the State. The trial judge should not choose between such inferences. He or she is concerned only with whether a reasonable tribunal of fact, properly instructed, could conclude beyond reasonable doubt that the accused is guilty or, to put it another way, could exclude all hypotheses consistent with innocence as not reasonably open on the evidence.
[5] Montani [21], [26], [35], [36].
[6] The State of Western Australia v Burke [2011] WASCA 190 [19].
A defence of honest and reasonable mistake requires both there be evidence of the accused's honesty in his belief and the reasonableness of his belief with respect to the mistake.
The belief must be positively held by the accused as opposed to the accused being indifferent to consent of the complainant or reckless to the consent of the complainant.
The honesty part of the defence under s 24 is a subjective test, and the reasonableness part of the defence is an objective test.
Generally, the evidence of honesty usually comes from the accused's evidence either in sworn evidence at trial or anything he may have said by way of admissions in a record of interview.
Reasonableness requires a consideration of the surrounding circumstances leading up to and inclusive of the act of sexual penetration. The State in proving beyond reasonable doubt that an honest and reasonable mistake did not exist in the accused's belief usually relies on the jury engaging in inferential reasoning to rebut what the accused's belief was at the time of the penetration. The surrounding circumstances do not just have to be the immediate surrounding circumstances at the time of the act of sexual penetration.
There is no evidence from Mr Mineo at this stage, by way of any admission, as to what his positive beliefs were at the time of the sexual penetration of JOB the subject of count 10. His belief and the honesty and reasonableness of the belief has to be inferred at this stage from the evidence primarily from JOB.
When a jury engages in inferential reasoning in a criminal trial, they are directed that they can only act on the inference that the State relies on if it is the only reasonable inference available on the factual circumstances that they find proved. Often a jury is therefore looking at factual circumstances which give rise to competing inferences.
When I consider the evidence led by the State in this case, and in particular, the circumstances leading up to the sexual penetration the subject of count 10, I am of the view there are some factual circumstances available to the jury that could lead to them drawing an inference that the belief Mr Mineo had at the time that JOB was consenting to an act of sexual penetration, may not have been reasonable. There is also, as I have already stated, limited evidence at present that the jury could find that Mr Mineo's belief as to her consent to the act of sexual penetration was positively honestly held by him.
Some of the relevant evidence available to the jury which could impact on them inferring Mr Mineo was unreasonable in his belief JOB was consenting to the act of sexual penetration the subject of count 10 are the following:
1.JOB said Mr Mineo's companion, Mr Nicoletti said he and Mr Mineo were boyfriends when Mr Mineo was in close proximity to him 'This is my boyfriend'. Whether Mr Mineo verbally or physically adopted this statement, if the jury find it was said by Mr Nicoletti, it is a matter for the jury.
2.JOB had only met Mr Mineo a short time before the act of sexual penetration.
3.JOB said she followed the men believing the men were going to consume cocaine.
4.There was no sexual interaction or discussion about sexual activity by either man before they entered the toilet.
5.There was little conversation between Mr Mineo and JOB before the act of sexual penetration occurred in the toilet, that includes both acts.
6.The sexual penetration occurs reasonably quickly after the parties entered the toilet.
7.When the act of sexual penetration occurred, she was in a confined location with two unknown men.
8.The act of sexual penetration occurred in a public toilet.
9.At approximately the same time and location of Mr Mineo's sexual penetration of JOB, she states she was also being sexually penetrated, without her consent, by another man who she had just met who was associated with Mr Mineo and in company with him.
10.JOB gave evidence of shutting her eyes and standing there at times when the sexual penetration by Mr Mineo occurred. She also said she was trying to keep herself safe.
11.What JOB said to both accused before she left the toilet.
12.JOB went back to the Lookout Bar alone before the two accused men.
The test for a no case submission is not the same as a test for example, that the Court of Appeal might consider as to whether the evidence at a trial is such that it may have been an unreasonable or unsatisfactory or unsafe verdict based on the evidence before the court at a trial.
It is a question for the jury after considering all of the evidence, whether they find the accused actually positively turned his mind to the question of consent and if he did so, whether he in fact formed a belief that was honestly and reasonably held.
Here the test on a no case submission is considering the evidence at its highest for the State.
Is there evidence available that could give rise to competing inferences for the jury to consider that a belief held by Mr Mineo as to consent to the act of sexual penetration by JOB, the subject of count 10, was one he positively held honestly and reasonably?
I consider on the evidence there is a competing inference available and whether it is an unreasonable inference is a matter for the jury to decide.
In those circumstances, I consider there is sufficient evidence for count 10 to be left to the jury and I dismiss Mr Mineo's application pursuant to s 108 of the Criminal Procedure Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
9 APRIL 2024
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