R v Arico

Court of Appeal (Vic)|2002-12-23|Before: PHILLIPS, BUCHANAN and VINCENT, JJ.A.

The applicant was subsequently arrested at Tullamarine Airport in the company of a man named Carl Williams at whose home the vehicle POY 007 was subsequently located by the police. A fired cartridge case was found in the front passenger door pocket of this vehicle. Material swabbed from the steering wheel was subjected to DNA analysis by a scientific officer named Chris Tzaikou. He expressed the opinion that it contained biological material contributed to by at least three donors. The witness calculated that the possibility that the applicant had been one of them was about 27,000 times greater than if the material had been contributed by three unknown persons.

Henry Glaser, a firearms and tool mark examiner, identified the fired bullets and fragments and a fired jacket as being a 9 mm Parabellum ammunition. He said that all the fired bullets and bullet jackets had been discharged from the same firearm. Harold Wrobel, a forensic science officer, said that there were no gunshot residues located in the car POY 007, but added that this was of little consequence as this examination was conducted three days after the event.

Detective Senior Constable Dean gave evidence that the address in Salamander Drive which Mr Godino gave as the location where the Statesman vehicle was parked was the residence at the time of a person known to the applicant. On 24 July 2000, the witness showed Mr Godino a photo board containing 12 photographs of different men, each of which had been digitally altered so as to depict the subject with a blackened right eye. The applicant was one of those persons depicted. He was identified by Mr Godino as the person he earlier recognized. He said, however, that at the time of the shooting the applicant did not have a blackened eye.

As we understand the position, it was common ground that the applicant on his arrest had become involved in an altercation with the some of the arresting police during which he received injuries to his head and face. Afterwards, he was seen to have a blackened left eye. Although at the trial the suggestion was raised that his left eye might already have been blackened at the time of the attack on Mr Godino, there was no evidence to support this proposition save that of a pathologist, Dr. Byron Collins. He said that he had been supplied with some material, including hospital admission notes and a set of photographs taken of the applicant on 18 July 2000 and he expressed the opinion that the black eye injury could have been present on 15 July. He agreed that he had never seen the applicant. The presence of a blackened left eye, if there was anything to suggest that the applicant had earlier sustained such an injury, could have undermined the purported recognition of the applicant by the complainant but there was literally nothing in the evidence that was capable of breathing even a flicker of life into this conjectural possibility.

Detective Senior Constable Dean said that he had obtained the driver's licence photograph of the applicant's cousin who was also known as Rocco Arico. Two copies of that photograph were tendered. In appearance the person shown in those photographs is distinctly different from both the applicant himself and the photographs of the applicant tendered in evidence.

The applicant stood mute at the trial but adduced evidence from three witnesses. The evidence of the first, Richard Byron Collins, has already been mentioned.

Antonio Gelsomino, the second witness, stated that with two other persons, Giovanni Arico and Gaetano Pasano, he opened the Golden Star Café on 5 December 1989. He stated that they conducted a pizza shop business in adjoining premises in Lygon Street. His partner Giovanni Arico had a son called Rocky or Rocco who sometimes worked in the shop making pizzas or coffee. This partner's brother, Tony Arico, also had a son called Rocco who was the applicant. The applicant never worked in the restaurant although he occasionally came in with his father to play pool.

Giovanni Arico, the third witness called by the defence, stated that he had a son, Rocco, who was born in 1974. He stated that when his son was a teenager he would come in after school and work in the pizza shop. He stated that his brother Tony is the applicant's father and that the applicant had never worked at the Golden Star Café. In 1992 he said the applicant would have been aged about 14. He also asserted that a boy of that age would be too short or small to be able to make a pizza with the ovens that they had.

In support of the application for leave to appeal against conviction these three grounds of appeal are relied upon:

(1) that the learned trial judge erred in ruling that the photo board was admissible;

(2) that the learned trial judge erred in not changing his ruling when the prosecution disclosed that the photograph of the applicant was not contemporaneous; and

(3) that the learned trial judge erred in permitting the prosecution to tender the photo board in re-examination of the complainant.

With respect to ground 1, it was asserted by Mr Tehan on behalf of the applicant that the case was essentially one of recognition rather than identification and that the use of a folder of photographs to confirm that recognition could have added very little to the Crown case, save prejudice. At the time when the folder was shown to the complainant, the police had already arrested the applicant. There were, as a consequence of the injuries sustained by the applicant at the time of his arrest, good reasons for him not participating in an identification parade. This, counsel said, did not make it necessary for the police to adopt the alternative method of use of photographs. Indeed, at one point in his argument, Mr Tehan went so far as to assert that the police should never have attempted, by means of the folder or otherwise, to confirm with the applicant that the person that they had arrested and charged was the person that he purported to recognize. In the circumstances the police were effectively confined, he contended, to a dock identification. Setting to one side the question whether evidence of any such confirmation of identity should be admitted, the notion that it would not be until the trial that a check was to be made is, to put it mildly, remarkable. There was, the argument continued, a "rogues' gallery" effect with the use of a folder of photographs, which in turn created a potential for substantial prejudice as the jury would have assumed that the applicant must have been the subject of earlier police attention. In the situation here, it was asserted, the possibility also existed of a displacement effect, aggravated by the fact that a photo image of the applicant had appeared in a newspaper before the photo board was shown to Mr. Godino.

All of these propositions were the subject of submissions before the learned trial judge when trial counsel objected before evidence was led to any use being made of the photo board and sought an exercise of the Christie discretion to exclude prejudicial evidence. His Honour refused the application, ruling as follows:

"I indicated that the accused was arrested on 17 July; he was charged on the same day. On 18 July he was refused bail. Throughout this period and up until 22 July Mr Godino remained in hospital. Nonetheless, on 19 July investigating police sought to hold a line-up. The accused, through his solicitor, declined to participate. The accused had apparently been photographed after his arrest, and subsequently a photoboard of 12 photos was compiled. Each photograph was digitally enhanced (if that be the term) with a black eye, which, it is asserted, the accused possessed at the time of his arrest. There may be some discrepancy as to which eye was blackened at that time. The photoboard depicts the right eye whilst there is evidence from arresting officers that it was the left eye that was blackened. In itself, that would merely be a matter for forensic attack or comment. On 24 July the photoboard was shown by an Inspector Conolan to the victim Mr Godino. He identified the accused as Rocky (being Photo No. 10). Against this background, I turn to what I apprehend are the relevant submissions. After hearing argument, it seems that both the prosecution and the defence are in agreement that this is a recognition rather than an identification case. The defence argue that as a consequence of that situation, the use of the photoboard, at least in relation to the victim, is unnecessary. Coupled with that submission appears to be the proposition that the court should exercise the discretion enunciated in R. v. Christie (1914) A.C. 545, to exclude that evidence. It was pointed out that the use of the photoboard occurred after the accused was arrested and indeed charged, and consequently the detection process was at an end. As is made clear in R. v. Carusi (1992) A.Crim.R. 52 at pp.64-65 those circumstances cannot be decisive, but are nonetheless relevant factors to take into account in exercising this exclusionary discretion. (See also Alexander v. R. (1981) 1 45 C.L.R. 395.) I should add that the common potential vice of the use of photographs, namely the 'displacement effect' and the 'rogues gallery' phenomenon, would appear to be absent from this photoboard. The former because the victim is merely confirming the identity of a person already known to, and recognised by, him and the latter because there is evidence of a photo taken after the accused's arrest and placed on a board in which all the faces depicted have been subjected to digital treatment. The Crown submission is that this being a recognition case, all that was necessary was the confirmation by Mr Godino that the man known to him was in fact the accused. Other than the production of a photoboard, this could have been done by showing the victim a single photo or, alternatively, could be done at the trial by asking Mr Godino before the jury 'Do you see that man in court?', and obtaining a formal acknowledgment of that fact. I note that the latter course was approved by R. v. Britten (1989) 51 S.A.S.R. 567 at 572. In my view, the Crown submission is essentially correct. In the instant case, little guidance is provided by the authorities which relate to what may be categorised as 'identification cases' in which the accused is a person previously unknown to the victim. Further, the use of this photoboard in the particular circumstances of this case does not attract the forensic difficulties adverted to in the identification cases. I should perhaps add for completeness that in the context of this case the newspaper articles, even if seen by Mr Godino, are not relevant. In my view, the Crown are entitled to use the photoboard and I leave open any argument which the defence may wish to present as to the alternative method proposed by the Crown in this case."

This last was a reference to the Crown proceeding by way of dock identification instead of relying upon the photo board before the jury. In general terms, a distinction is often made between cases in which a witness purports to identify as the perpetrator of some offence an individual who either is not known to the witness or of whom the witness has had limited opportunity for observation on the one hand and a person who is well known to the witness on the other. Obviously, whilst the distinction can be usefully made in some situations, in many it can be of limited or no value. The complainant, in the present case, not only purported to recognize the applicant before the shots were fired at him, but the unchallenged evidence was that he engaged in what could reasonably have been interpreted by the jury as a confirmatory conversation with him. Against that background it is hardly surprising that both counsel at the trial, at least at the beginning, approached the situation as one of purported recognition.

It was within that agreed context that the judge made his ruling, accepting, as he was clearly entitled to do, that "all that was necessary was the confirmation by Mr Godino that the man known to him was in fact the accused". It was already common ground between the parties that there was more than one way in which that could be done, including the use of the photo board, but counsel for the applicant was insisting none the less upon exclusion of the photo board from the outset. Once the judge had given his ruling, the matter was left in the hands of the two barristers to discuss which was the most appropriate, but specifically reserving to the defence counsel the opportunity to present further argument if required. In those circumstances we can detect no error in the ruling and ground 1 is in our opinion not made out. Anyway, more was to occur before any attempt was made by the Crown to put the photo board before the jury.

When opening the Crown case before the jury, the prosecutor said:

"Well, police then started investigating. Yes, indeed, there was a Rocco Arico who used to work in a place in Lygon Street that was called the Golden Star and amongst those who ran it was Arico's father. That it was he who shot him was later confirmed by Mr Godino who was shown a photograph of this accused man, Rocco Arico."

In his address shortly afterwards, counsel for the applicant remarked:

"You think you see someone, you then seize upon an image. What has happened here is that the man has got an image in his mind, he has seen somebody. The police have then provided him with another image, this man's image, and he said, 'Yes, that's it.' That is how this man gets to be in court."

Not surprisingly that led to further discussion in the absence of the jury. Observing that, although he had been anticipating that the Crown would proceed by way of dock identification, the prosecution now appeared about to use the photo board after all, applicant's counsel took further objection to its use. It had now been discovered, he told the judge, that the photograph of the applicant used on the photo board had not been taken after his arrest on this occasion (when he had a blackened left eye) but on some earlier occasion when he had a blackened right eye. All photographs on the board had been digitally altered so that all appeared with a blackened right eye, but the rogues gallery effect was now exacerbated, said counsel, because the jury would suppose that the applicant had been previously in custody, presumably for some other offending. Accordingly, it was submitted, the earlier ruling should now be overturned and the photo board excluded altogether from evidence. That it was not is the complaint in ground 2.

So far as concerns the argument over which eye was blackened, counsel was making too much out of nothing. If, as we were told, the jury were to be informed that all the photographs on the board had been digitally altered in order that all might appear with a blackened eye (albeit a blackened right eye), it would be pure speculation for the jury to reason as suggested by counsel. If it was by chance noted that the right eye was blackened instead of the left, it might just as well be supposed by the observant juror that whoever made up the board had simply made a mistake - and that could scarcely justify the submission being made. Be that as it may however, once again the point taken by the defence assumed no significance - this time because of the stance taken by prosecution.

As indicated in opening, the prosecutor made only passing reference to Mr. Godino's confirming the initial recognition of his assailant by means of the photo board; prosecuting counsel was much more concerned about what had been put to the jury by counsel for the applicant. Thus he said to the judge in the jury's absence:-

"Your Honour, I think the Crown's original position had been made clear on the last occasion, that if it be a recognition case alone, then the Crown would not seek to press the photoboard and would either move by way of dock identification or some other means. Your Honour will recall in accordance with the spirit of that state of affairs, the Crown opened in the following terms: `that it was he who shot him was later confirmed by Mr Godino who was shown a photograph of this accused man, Rocco Arico' .... Things changed dramatically, however, during our learned friend's opening. Our learned friend said -

and counsel then read from the transcript the passage quoted above[1]

"The defence having opened in that manner, it now becomes appropriate that the jury see just precisely in what circumstances Godino selected the photograph of the accused man, namely, he selected it from a number in a photoboard. That it was not a photo taken at his arrest, as we all believed until we worked out he had the wrong black eye, matters little in the circumstances. The situation still remains that this accused declined to participate in an identification parade, and in any event in this day and age the oft referred to rogues' gallery effect is of very little weight given that virtually every adult citizen in this state has a colour photograph of themselves which reposes at the motor registry in respect of their driving licence, amongst other photographs. But given the manner that the defence case was opened, it would not matter in our submission if each of those persons in the photoboard was holding up a police number and the photos were taken in such circumstances that made it obvious that they were police photographs, which of course these ones do not. That gauntlet was well and truly thrown down by our learned friend. It having been opened that way, it will now be necessary for the jury to be acquainted as to just how he selected this Rocco Arico."

Putting it more succinctly, prosecuting counsel said of the defence opening:-

"In other words, a very persuasive argument [has now been put by defence counsel] that the witness has transferred the image of the shooter to the single image of the person Rocco Arico that is shown to him, and that is not the way it happened."

During the discussion that followed, the prosecutor suggested that the matter could still be dealt with without necessarily putting the photo board itself before the jury and that in view of defence concerns over the lack of contemporaneity he would be content with the lesser course. He said:-

"No, the Crown at the moment is content, Your Honour, to lead simply from the witness that he was later asked to look at a folder containing a number of photographs, and picked one out. If there is no objection from my learned friend, I would then ask the leading question 'and is that the person at the back of the court?' simply for formality, so that the answer would have little probative - slight probative value but takes care of the formality.

That course was then agreed and in consequence this was the evidence as led from Mr. Godino in evidence in chief:-

"On 24 July last year, did investigating police come and see you?--They did. Did they have with them a folder that contained a number of photos of young men?---They did, yes. Did you pick from that folder a photo?---I did. You picked that as who?---As the man who shot me, Rocky. Just for formality, is that the person sitting at the back of the court today?---That's him."

In our opinion no error has been demonstrated in his Honour's declining to exclude the photo board because of the lack of contemporaneity. The course that was followed upon that objection being taken seems to have been eminently fair to the applicant, despite the tenor of his counsel's opening address. As the judge said, during the discussion, "what was said [by defence counsel in opening] will soon be forgotten as the evidence unfolds." Ground 2 has not been made out.

But despite the advantage so far gained, applicant's counsel did not let the matter rest. Not only did he challenge the witness to identify his assailant by reference to an old class photograph taken years before when the applicant was at school (a challenge which Mr. Godino answered firmly and correctly), counsel pursued the identification made by the victim while the two cars were pulled up together, just before he was shot. The cross examination includes this exchange:-

"You recognised him before you asked him any questions; the questions were to go to verification not for identification?---Yeah, I said to him 'I recognised you'. That's right. In other words, the process of recognition had taken place before you speak?---Yes. Were you the first to speak?---I was. Before you had spoken in your own mind, before there had been an utterance you said 'I recognise you'?---'I recognise you,' that's what I said. And the things that you recognised is that you recognised a young bloke who made pizzas at the Golden Star; is that right?---That is who I believe it was. That is how you knew, that was the point of reference that you knew this bloke; is that right?---Yes.

"Did you ever go into the restaurant or cafe or whatever it is when it was called Jupiter's?---No, I didn't.

Do you know when it changed its name from the Golden Star to Jupiter's?---No.

But whoever the bloke was in the car, it was the fellow who used to serve at the Golden Star?---Yes.

`That's the bloke'; is that right?---That is who I recognised it to be."

.... How often would you go [to the Golden Star Café]?---Well, I became a security officer in December of 91 so I was working a lot of shift work. It wasn't often in the week, a couple of times in the week I would meet up with my friend there. So a couple of times per week?---Yes, I would say. Regularly for 12 months?---Not gospel, if you like, it wasn't regular, every week. At least 50 times?---In the week? No, no, no, over the year. There are 52 weeks in the year, do we say that you have been there 50 times?---I couldn't exactly say. We are just trying to make an estimation of how often you would do this?---I couldn't say - 20, 100 - I wouldn't have an approximation. One or two times?---More than two times obviously. Can you just give us some assistance?---I will go with what you said, approximately 50 times. So that is about once a week for a year, is that about right, on average?---On average. What did this man do at the Golden Star?---I can recall him being the pizza maker there. He worked behind the counter.

A little later in the course of the cross-examination of Mr. Godino, this exchange occurred:

Did you see his face [at the time of the incident]?---Very clearly. Very clearly?---Yes. Did he have a black eye?---No. You are absolutely sure?---Yes, sure. Did you concentrate on his face?---I believe I did."

A little later still Mr Godino was taken to his verbal description to the police of the person that he saw in the course of which this was said:

"What you didn't say is what you have told the jury. You didn't say to this officer 'distinctive eyebrows'; are you able to explain why you didn't? If you say that is a feature, are you able to say why it is that you didn't tell the officer that he had distinctive eyebrows?---I was in a lot of pain. You obviously haven't been shot five times and you haven't gone through the pain that I went through. I don't doubt that for a moment, sir. So you are saying that you were distracted?---There was only so much I could say in between agonizing with that pain that I was going through. You didn't say anything about large lips - that is true, isn't it?---Yes. Is the explanation the same as to why you omitted the lips?---Yes. It is just like asking me how long did it take between each shot, I didn't take count of each shot, did I? What I suggest to you is what you are doing is describing the photograph that you have been shown, not describing the man?---I disagree."

Mr. Godino was also asked a number of questions about his description of the young person who had been working at the Golden Star Café. He maintained that he did recognize this person and said that he had not seen any photograph of the applicant in a newspaper.

The folder of photographs was then tendered in re-examination, with defence counsel presenting no further submissions and adopting the position that his objection was based upon the matters earlier canvassed. But it could not sensibly be maintained by then that there was any valid reason to exclude the photo board. The questions asked of the witness in cross examination had plainly altered the position. It is, we consider, quite obvious that, even had the trial judge fallen into error in the exercise of his discretion in allowing for the possibility that the photo board might be introduced into evidence (for at no time prior to the re-examination did he go further than to admit of this possibility), the manner in which the defence case was conducted altered the situation significantly - and so much was accepted by applicant's counsel before us. He accepted that there was by the time of the re-examination of Mr Godino "a reasonable argument" that the photo board should be admitted. It follows in the circumstances that ground 3, too, must fail.

The application for leave to appeal against sentence may be shortly disposed of. In respect of the sentence of nine years with a non-parole period of seven years, two grounds only of error are alleged. Ground 1 is that the sentence was manifestly excessive (both as to head sentence and non-parole period) and ground 2 is that the judge erred in giving insufficient weight to the applicant's youth and prospects of rehabilitation. In relation to ground 1, counsel emphasised before us the following considerations: that the offence was not premeditated; that the applicant was young at the time, being 21 years old and described, on the plea, as "immature"; that he came from a good supportive family who were financially affected by the applicant's incarceration; that he had left school at an early age and worked consistently and well since that time; and that his previous convictions were not serious. Thus ground 2 becomes but particulars of ground 1.

It is true that on 27 June 2001 the applicant's previous convictions were the result of the one court appearance in May 1998, when he was 19 years old. Convicted then of destroying or damaging property, unlawful assault (two charges), failing to answer bail (two charges), possessing a drug of dependence, and possessing an anti-speed measuring device, he was fined a total of $1,200. In sentencing, however, the judge said specifically that the factors of his youth and rehabilitation had saved the applicant from a heavier sentence.

Seeking to build on this, Mr. Tehan submitted that in view of that remark the sentencing judge must have had a much higher starting point which, as we followed him, would have been unjustified; and, further, that the sentence of nine years itself demonstrated that too little weight must have been given to the matters of youth and rehabilitation. We do not agree on either score. That the offence was not premeditated, it seems to us, might tell against the submission of manifest excess, rather than in its favour. This was a particularly brutal, cold-blooded and unwarranted attack. Certainly it was not premeditated: there was no basis upon which it could have been planned. The victim gave no offence whatever, or certainly no offence sufficient to draw such

retribution. It may well be that the applicant was both young and "immature": but he was found guilty of attempted murder and for that condign punishment was warranted.[2]

Despite Mr. Tehan's plea, we cannot say that the sentence imposed, whether as to head term or non-parole period was outside the range of sentences properly open in the exercise of the sentencing discretion. Neither ground 1 nor ground 2 is made out.

For the foregoing reasons, we would dismiss the application for leave to appeal against conviction and also the application for leave to appeal against sentence.

I agree that the applications for leave to appeal against conviction and sentence should be dismissed for the reasons stated by Phillips and Vincent, JJ.A.

2] As it happened - although no account could yet be taken of it - the applicant was yet to face a further sentencing on one count of kidnapping, an offence committed by him in company with others on 2 August 1999 (and so nearly 12 months before this of attempted murder) but the sentence for which was imposed in December 2001 (and thus some six months after this). See R. v. Arico (No. 2) 2002 VSCA.

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