R v Nicoletti & Tolone [2006] VSCA 175

R v Nicoletti & Tolone [2006] VSCA 175 - VSCA 2006 case summary — Zoe

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2 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).

3 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

4 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 to Tolone purchasing Luu's mobile telephone. There was discussion of price, and Luu gave the applicants his mobile telephone number. The following day, 29 November, Tolone telephoned Luu and arranged to meet him back at the railway station to complete the transaction.

5 On their arrival, the applicants approached Luu as he sat in his car. Loczy was beside him in the front seat. The Crown case was that Nicoletti produced a pair of scissors and grabbed the mobile phone from Luu. The applicants then left on a departing train.

6 Tolone gave sworn evidence in his defence. His account of the events was quite different. He said he had met Luu several weeks earlier and had purchased several hundred dollars worth of heroin from him. On that occasion Luu had given Tolone his telephone number for future reference.

7 When Tolone saw Luu at Upfield Station on the evening of Friday 28 November, he went up to him and reminded him of their earlier meeting. Tolone then asked Luu for heroin. When Luu said he did not have any, Tolone asked him to "ring up someone to purchase me some heroin". Luu made a telephone call but said that he could not "get anything for you tonight". Tolone subsequently bought heroin in Ascot Vale later that night.

8 On the Saturday morning, Tolone telephoned Luu -

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15 That answer having been given, there was extensive discussion between counsel and the Judge (in the absence of the jury) about whether the question ought to have been allowed. The view expressed by the trial Judge was that defence counsel had "raised in cross-examination that Nicoletti gave a version of events" and that the prosecutor was therefore entitled to investigate in full what was said. Counsel for Nicoletti argued that his question had been confined to Nicoletti's participation in a drug deal, that being (as I have said) the basis of the case run by the defence.

16 Counsel for Tolone argued that the evidence suggesting that a weapon had been used made his client "history in this trial". He argued that he should have been given notice before the evidence was given, because it was now too late for an objection to be made. Counsel noted the admission by the prosecutor that, although this topic had been touched on in an earlier trial, she had not ever interviewed the informant to ascertain what he would say if she asked him to give more detail about the "off tape" conversation. Ultimately, the learned Judge gave a ruling, in which he gave reasons for his conclusion that the question in re-examination was proper and that the answer was admissible. The terms of the ruling will be referred to in more detail below.

17 Applications for discharge of the jury were made on behalf of both applicants, but were rejected by the learned trial Judge.

18 His Honour sought submissions as to whether the re-examination of the informant should be allowed to continue, so that he could be asked to give a full answer about the off-tape conversation, or whether he should "stop it here and just tell the jury to ignore what's been said".[5] Having ascertained, in the absence of the jury, what the informant would say, his Honour allowed the prosecutor to ask the informant to state what Nicoletti had told him was taken from Luu. The informant then gave evidence that, according to what Nicoletti had said, it was heroin which had been taken. (As appears from what I have already set out, this was consistent with the evidence which Tolone himself would later give).

19 The prosecutor concluded her re-examination at that point. Counsel for Nicoletti applied to have the informant recalled for further cross-examination on the topic. The Crown opposed the application. The application was ultimately not pressed, after agreement was reached between the prosecutor and counsel for Nicoletti that neither would make any reference in closing submissions to the "off tape" conversation. His Honour described the agreement in the following terms:

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39 In my opinion, the applicants' submissions must be upheld. There is nothing in the circumstances of the case which could properly be characterised as "exceptional circumstances" so as to justify the reception of the evidence.

40 On the contrary, the circumstances militated rather strongly against the reception of the evidence. Most importantly, the prosecutor candidly admitted that she had asked the question in re-examination without knowing what answer the witness would give. This was so even though, as I have already mentioned, the issue had come up at a previous trial and counsel for Nicoletti had been warned by the Judge that he should be careful about opening up this topic lest something prejudicial be said.

41 I do not overlook what might be regarded as the somewhat reckless conduct of counsel for Nicoletti in re-visiting the topic in this trial. What is rather more important for present purposes, however, is that the prosecutor did not do what she was perfectly entitled - indeed, bound - to do in preparation for the new trial, which was to interview the informant and ask him for full details of the off-tape conversation. Had she done so, she would have immediately appreciated that s.464H(1) rendered the evidence inadmissible, and would have been able to decide whether or not to seek an exercise of the Court's discretion under s.464H(2). Had the latter course been adopted, the matter could have been dealt with in advance, in the absence of the jury. That would have avoided placing the Judge in the very difficult position of having to deal with the impugned evidence after it had already been heard by the jury.

42 The second matter weighing against the reception of the evidence was that it would likely work very great prejudice against the applicants. After all, they were facing a charge of armed robbery and this was - as the Judge later said - evidence that Nicoletti and Tolone had participated in an armed robbery of Luu, albeit that what they had stolen was heroin, not a mobile phone, and that the weapon had been something other than scissors. It seems quite clear, given the jury's intense interest in the evidence, that it was weighing heavily on their minds, as one might have expected it to do.

43 It follows that I reject the submission made by Mr Holdenson for the Crown, that the admission of the evidence caused "no unfairness whatsoever" to either of the applicants since - so it was submitted - the jury had been directed to acquit if it could not exclude the hypotheses that the two accused men stole from Luu something other than a mobile phone and/or used a weapon other than scissors. Technically speaking, it is of course correct to say that these were hypotheses consistent with their innocence of the charges they were facing but it seems to me to be quite unrealistic to argue that the admission of the evidence did them no harm in the eyes of the jury. For the reasons I have given, it is likely to have done them great harm.

The proviso to s.568(1)

44 The respondent invokes and relies on the proviso to s.568(1) of the Crimes Act 1958, under which the Court of Appeal may -

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