R v Nicoletti & Tolone [2006] VSCA 175

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.

1 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 29th 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."

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 -

"to get him to come to the train station because I wanted to buy some heroin that morning".

Luu told Tolone to call back later. Later in the day they arranged to meet at the station, Tolone having told Luu that he wanted "three $100 rocks".

9 When Luu and Loczy arrived by car, Tolone approached them. Luu gave him the heroin and Tolone gave Luu $200, knowing that this was $100 less than was owing. Having counted the money, Luu allegedly said "Not this again!" Following an argument, Tolone took back the money - but kept the heroin - and left with Nicoletti. (He admitted in re-examination that he knew that taking his money back was a crime in itself[1]). The pair then boarded the train and proceeded to share the heroin. Tolone denied having had a pair of scissors or any other weapon, and denied having seen a pair of scissors at or near Luu's car.

10 Nicoletti did not give evidence, but both Nicoletti's counsel and Tolone's counsel put to Luu and to Loczy that the reason for their attendance at the station was for the purpose of a heroin sale, which took place. This was strenuously denied.

The "off tape" conversation

11 In the course of the police investigation, a formal record of interview was conducted with Nicoletti. He gave "no comment" answers. In the usual way, the record of interview was tape-recorded and transcribed.

12 Following the completion of the formal interview, there was further conversation between Nicoletti and the informant. Nicoletti told the informant that he had been at the railway station with Tolone to participate in a drug transaction. As already noted, both Luu and Loczy had been cross-examined on that basis ie. that the meeting at the railway station on the Saturday had been for the purposes of a drug deal.

13 During the trial, the informant gave evidence immediately after Luu and Loczy. In the course of cross-examination, the following exchange took place between counsel for Nicoletti and the informant:

"I want to put to you that during the investigation, Senior, it was suggested to you by Mr Nicoletti that he was at the train station on 29 November to participate in a drug deal, did he say that to you?---He did mention that.

That caused you to make some further enquiries?---That is correct.

When Mr Nicoletti said that to you, that he was there to participate in a drug deal, did you say these words to him, 'Yes, I know that, I've just got to go through some things', did you ever say that to him?---I recall hearing his version of events.

That was in relation to the drug deal?---Yes."[2]

14 In re-examination of the informant, the prosecutor asked him to state what version of events Nicoletti had given him in that conversation.[3] This was objected to by counsel for Nicoletti, on the ground that this matter did not arise out of cross-examination and was therefore not a proper subject for re-examination. The learned trial Judge rejected the objection and the informant answered the question as follows:

"Mr Nicoletti, [after] the record of interview, informed me that he'd been down there for the purpose of the drug transaction with a male by the name of Bob for purchasing heroin and that some property had been stolen, but it wasn't a mobile phone and that the alleged weapon used wasn't that weapon."[4]

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:

"By law both [counsel for Nicoletti] could use it and [the prosecutor] could use it but they agree just as a pragmatic measure to I suppose minimise the issue, they agreed that neither of them would refer to it."[6]

The prosecutor confirmed that the intent of the agreement was to minimise the issue.[7]

The effect on the jury

20 In his charge to the jury, his Honour drew attention to what he described as "exclusionary considerations". The first was expressed in the following terms:

"... [I]f you accept or cannot exclude beyond reasonable doubt that there was a drug deal being done in the car park on the Saturday evening, well then, whether there was a mobile phone taken or not, the Crown is not seeking a conviction for armed robbery of the mobile phone on that version of the facts."[8]

21 The second exclusionary consideration was said to be the following:

"...[I]f they were there to buy heroin at the station, and or if they stole the heroin by running off without paying, even if there was a weapon involved, whether or not there was a weapon involved, in either of those events the position is while they might be guilty of some offence, if prosecuted for it, that is not what they have been prosecuted for on this presentment. You are not here to pass judgment on that behaviour, because it is not an issue before you. We have a presentment here which has got one count on it, armed robbery of the mobile phone by the use of scissors. There is nothing here on the presentment about purchasing heroin or stealing heroin.

You must be clear that if you accept the defence version, or if you cannot rule it out beyond reasonable doubt, do not even let it enter your head to say you will punish them by a guilty finding on armed robbery of the mobile phone just because they did something else that might be wrong."[9]

22 Clearly, the latter direction was intended to neutralise the effect of the evidence given about the "off tape" interview - hence the reference to a theft of heroin and the possibility of a (different) weapon being involved. As counsel for the applicants have pointed out on this appeal, however, it quickly became clear that the jury were very interested in that evidence.

23 The jury retired at 10:13 am to consider its verdict. At 1:49 pm, the jury entered the court and the foreperson told the Judge that the jury wanted transcript of the last portion of the re-examination of the informant, that being the relevant part of the evidence. The matter was further debated in the absence of the jury. His Honour said to counsel that his direction had -

"dealt with the fact that it has to be an armed robbery with scissors."[10]

24 In the course of the discussion his Honour said of the relevant evidence:

"I suppose the Crown would say it should go in because... it may have some probative value if he [Nicoletti] is prepared to concede that some weapon was used as opposed to no reference to a weapon. ... It went in on the basis that it was against [Nicoletti], it was a potential admission."[11]

And again:

"[The jury] may extract from it that he was prepared to carry a weapon. It's got some relevance. I mean it indicates that he did have a weapon on him, and they may not believe his denial that it was the weapon alleged."[12]

25 His Honour was about to commence reading the relevant part of the transcript when the foreperson said:

"It's mainly the last part of actually what was said by the police informant on ... the last few questions".[13]

Plainly, it was the evidence about the off-tape conversation which the jury wanted to review.

26 When his Honour had read out the relevant part of the re-examination, the foreperson asked if he would -

"redefine 'armed robbery' and the actual charge for us".[14]

"You have to be satisfied before you can convict in this case that there was an armed robbery of David Luu of his telephone, mobile phone, with scissors.

Now, do you want armed robbery? If you want the elements of that again, it is theft with force or the threat of force, and with one of the accused being in possession of an offensive weapon; in this case, scissors."[15]

27 The foreperson then expressed the view that what his Honour said had "cleared the point up". One juror disagreed, however, and asked his own question in the following terms:

"... [M]y, and others, question really is not so much the definition of armed robbery; but it is that the victim was under the impression that it was a certain weapon. But could it have been something else? Now, if the victim thought it was scissors, as such, is that enough for us to go on?

HIS HONOUR: It is a good question. I think we had better have a discussion about that in your absence."[16]

28 The prosecutor sought time to get instructions. On her return, she informed his Honour of the Crown's position, which was as follows:

"The jury ought not be precluded from convicting on a charge of armed robbery because [of] what I say is the over particularisation of what the offensive weapon is. ... As I said, at the end of the day the principle of fairness is the overriding factor.

... The case has always been run on the basis there's been an offensive weapon of the scissors, as has been put, and that's obviously - the type of weapon that's particularised, it has to be said that it's not an essential element, an essential ingredient, of the crime."[17]

29 The prosecutor sought to amend the presentment to delete the reference to scissors. His Honour rejected the application, saying:

"[T]he way the trial has unfolded, for the Crown to expect a conviction for armed robbery of a mobile phone with a weapon other than that alleged, that is scissors, based on an admission [off] record from one accused, an admission to an armed robbery of heroin with that different weapon, where neither Crown witnesses ever admitted to heroin, in my view is beyond the tolerance which fairness would allow."[18]

"[I]t's clear that this issue has arisen through this particular piece of evidence. ... This particular piece of evidence, if anything, is an admission to a robbery, or armed robbery, of heroin, not of a mobile phone, and apparently with some other weapon. To base the conviction of the mobile phone on that material, which would mean of course a variation of the weapon to fall in line with the admission, is in all the circumstances of this case beyond what fairness would allow."[19]

Quite properly, the prosecutor agreed that it was the particular piece of evidence given in re-examination of the informant which had given rise to the issue.[20]

31 His Honour then said to the jury:

"I can now rule or respond to the question that was raised in a way which really confirms what I have said all along, and which is applicable in this case, bearing in mind all the circumstances and the way this case has proceeded. In view of that, I confirm my earlier directions to you that in order to convict you will have to be satisfied, beyond reasonable doubt of course, that the two accused men have committed an armed robbery on David Luu, in which they robbed him of the mobile phone, and at the time one of them, namely Nicoletti, had with him an offensive weapon, namely scissors. Does that clarify the question? It should.

FOREMAN: Yes, I think that clarifies it.

HIS HONOUR: In other words, the identification of scissors is, although it is not strictly speaking an element of the offence, it is the way the case has been run, and that is what the Crown have to satisfy you of in order to obtain a conviction. Any other questions?"

FOREMAN: No."[21]

32 The following day, the Chief Crown Prosecutor, Mr Rapke, was granted leave to make a brief submission about that last direction. The submission was that:

"As a matter of law the jury ... would be entitled to convict if they were satisfied that an offensive weapon of any sort had been used in the armed robbery."[22]

His Honour agreed with the proposition as a matter of law but explained to Mr Rapke that he had given the directions he had because of the way the trial had been conducted, and that there would be no change.

The Judge's ruling

33 I referred earlier to the ruling which the Judge made after the disputed evidence was first given. His Honour commenced his ruling by saying that, in his view -

"... if ever there was a circumstance for the operation of... s.464H(2) it is this case ..."[23]

34 As his Honour noted, s.464H(1) of the Crimes Act renders evidence of a confession inadmissible unless the requirement for tape-recording or video-recording[24] has been complied with. Since this was an off-tape admission, subsection (1) would make it inadmissible. Subsection (2) provides, however, that -

"A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances -

(a) are exceptional; and

(b) justify the reception of the evidence."

"But even if it would otherwise [be inadmissible], I consider that it's an exception (sic) situation here because it's [counsel for Nicoletti] on behalf of his client who wanted to raise the conversation. He not only did raise it, but he flagged back in the earlier trial. ... He flagged this very fact that he wanted to ask questions about a conversation that occurred between the informant and Mr Nicoletti [off] the tape. It's his desire to introduce this evidence that's led to the whole topic.

...

[I]t's clearly a matter for re-examination, if part of a conversation only is referred to in cross-examination, and if the re-examiner wishes to provide a context for that part by elucidating the whole of the conversation of which that part forms part."[25]

36 Later in the ruling, his Honour said of the challenged evidence:

"There's a reference to a weapon, but not what was alleged or not scissors. ... Insofar as that is said, and it is said by Nicoletti, it's admissible against him in my view. It's admissible against him both on the issue of relevance and on the issue of credit, reliability as it were. As far as Mr Tolone's concerned, it's not admissible against him, and the jury will be told that, and I don't consider it warrants a discharge of the jury."[26]

37 The critical question is whether the evidence of Nicoletti's untaped admission - otherwise inadmissible - ought to have been admitted in exercise of the Court's discretion under s.464H(2). Both Nicoletti and Tolone have submitted that the discretion miscarried and that on no reasonable view could the Court have been satisfied that the circumstances were exceptional or justified the reception of the evidence.

38 For its part, the Crown submits that the evidence was not rendered inadmissible by s.464H. This was said to be because -

• Nicoletti's counsel opened up the topic;

• Nicoletti volunteered the relevant statement to the informant; and

• the only objection raised by Nicoletti's counsel to the leading of the evidence was that the topic did not arise out of the cross-examination, and this objection was properly overruled.

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 -

"notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismissed the appeal if it considers that no substantial miscarriage of justice has actually occurred."

45 The correct approach to the application of the proviso was the subject of the High Court's decision in Weiss v R.[27] That decision was applied recently by this Court in R v Weiss (No. 2).[28]

46 I have reviewed for myself all of the evidence, and I have had regard to the fact that the jury convicted both applicants. Plainly enough, there was evidence before the jury - that given by Luu and Loczy - on which a conviction could be based. But that, of course, is not the question. The question is whether the guilt of the applicants was proved beyond reasonable doubt.

47 As I have explained above, the accounts of the incident given by the complainants, on the one hand, and by Tolone on the other, were in direct conflict. The conclusion reached by the jury depended on the view they formed as to the credibility of the witnesses and the reliability, as a result, of their respective accounts. It is axiomatic that an appeal court does not have the advantage, which a jury has, of observing the witnesses both in-chief and under cross-examination.

48 Because of these "natural limitations" of proceeding on the record, this is not a case where I can be satisfied that the applicants' guilt was established beyond reasonable doubt at the trial.[29] Put another way, and using the language of the High Court judgment in Weiss, this is not a case where it is possible to say the erroneous admission of the evidence "would, or at least should, have had no significance in determining the verdict that was returned by the trial jury".[30]

49 Accordingly, I would allow the appeal. The question then arises whether a retrial should be ordered or whether, as was argued by counsel for Tolone, there should be verdicts of acquittal.

50 Mr Dan for Tolone draws attention to what was said by Callaway JA in R v ALH,[31] that the discretion to direct a judgment and verdict of acquittal is -

"to be exercised with caution and only in exceptional circumstances."[32]

He also draws attention to the statement by Winneke P in R v Bartlett,[33] as follows:

"... [I]t should not be thought... that because there is evidence upon which the applicant might be convicted on a retrial, a new trial should be ordered as a matter of course. As the Court of Criminal Appeal in Western Australia pointed out in Rabey v R:[34]

'Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against the public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spent some time in prison and who has already been through one trial and an appeal.'"

51 According to Mr Dan's submission, the following matters combine to make the position of Mr Tolone exceptional:

• any retrial ordered would be the fourth trial in the matter;

• the aborting of the two earlier trials was not the fault of Tolone;

• the third trial miscarried - as I have now found it did - as a result of the conduct of the Crown in re-examining the informant without knowing what evidence would be given;

• as at 12 May 2006, Tolone had already served 830 days in custody, and had only another 80 days to serve;

• any retrial would be unlikely to proceed before mid-2007.

52 In the course of the hearing, Mr Holdenson for the respondent conceded that the misconduct of the Crown was a matter relevant to the exercise of this discretion. He pointed out, however, that there was no appellate decision in Victoria establishing that proposition, and argued that the decisions of the New South Wales Court of Criminal Appeal relied on by counsel for Tolone related to conduct by the Crown which was "of a very different nature and order" from that complained of here.

53 In my view, this is a case which calls for the exercise of the discretion to direct a judgment and verdict of acquittal in the case of each applicant. I do consider that

what occurred in this trial, and caused it to miscarry, was avoidable - and should have been avoided - by the prosecutor taking the obvious precaution of seeking instructions on the topic before asking the questions in re-examination. This is only one factor but it becomes all the more significant when, as Mr Dan has pointed out, two previous trials have miscarried through no fault of Tolone.[35] It is also, in my view, highly significant that the custodial portions of the sentences have been wholly (Tolone) or almost wholly (Nicoletti) served already.[36]

54 In my opinion, it would be contrary to the interests of justice for there to be a new trial.[37]

55 I have read the draft reasons of his Honour the President. I too would allow the appeal. I agree with the orders which his Honour proposes.

56 I agree, for the reasons given by Maxwell P, that the appeal should be allowed.

[1] T 489.

[2] T 278.

[3] T 312.

[4] T 313. The transcript records the phrase used as being "in part of the record of interview." It is clear from the informant's subsequent evidence, however, that the phrase used was "after the record of interview": T 318.

[5] T 329.

[6] T 395.

[7] T 396.

[8] T 517.

[9] T 517.

[10] T 547.

[11] T 548.

[12] T 552.

[13] T 555.

[14] T 563.

[15] T 563-4.

[16] T 564.

[17] T 568.

[18] T 571.

[19] T 571-2.

[20] T 571.

[21] T 573.

[22] T 578.

[23] T 352.

[24] Provided for in sub-paragraphs (c)-(f) of s.464H(1).

[25] T 352-353.

[26] T 355.

[27] [2005] HCA 81; (2005) 80 ALJR 444.

[28] [2006] VSCA 161.

[29] Weiss (No. 2) at [110]; Weiss v R [2005] HCA 81; (2005) 80 ALJR 444 at 454 (41); Darkan v R [2006] HCA 34 at [84].

[30] [2005] HCA 81; (2005) 80 ALJR 444 at 455 [43].

[31] [2003] VSCA 129; (2003) 6 VR 276.

[32] At 280 [18].

[33] [1996] VICSC 47; [1996] 2 VR 687 at 699.

[34] [1980] WAR 84 at 95-6.

[35] Nothing was said on this point by counsel for Nicoletti. What caused the earlier trials to abort was not investigated during the appeal.

[36] R v Christopher Hasenkamp [1998] NSWSC 40 (unreported, New South Wales Court of Criminal Appeal, 24 February 1998).

[37] See DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627.