THE QUEEN v ALFIO LICCIARDELLO [2011] ACTSC 96 (2 June 2011)

CRIMINAL LAW – judge alone trial – question of identification – offence proved – verdict of guilty entered

Crimes Act 1900 (ACT), s 160
Road Transport (Driver Licensing) Act 1999 (ACT), s 32 (1)

No. SCC 55  of  2010

Judge:	Nield A/J
Supreme Court of the ACT
Date:	2 June 2011

IN THE SUPREME COURT OF THE	)
	)	No. SCC 55 of  2010
AUSTRALIAN CAPITAL TERRITORY	)

							THE QUEEN

							v	

		ALFIO LICCIARDELLO

	

ORDER

Judge:	Nield A/J
Date:	2 June 2011
Place:	Canberra

THE COURT ORDERS THAT:

1.	The accused is guilty of the charge that on 28 June 2008 he escaped from lawful 	custody after being arrested.

1.	At about 6.30 pm on 28 June 2008 Constable Alan Young was driving a marked Police vehicle in a southerly direction along Northbourne Avenue in Braddon, in the ACT, towards the intersection of Northbourne Avenue with Girrahween Street with Constable Jason Hall as the front seat passenger.
2.	As he drove the Police vehicle towards the intersection, Constable Young was aware of two things – one thing was that there was a vehicle being driven ahead of the Police vehicle towards to intersection at about the same speed at which he was driving the Police vehicle, and the other thing was that the traffic light facing the vehicles changed from green to orange when the preceding vehicle was about 60 metres from the stop line painted on Northbourne Avenue at the intersection.
3.	Then, when the preceding vehicle was about a car’s length from the stop line, the traffic light facing the vehicle changed from orange to red and the driver of the vehicle drove through the intersection.
4.	On seeing the preceding vehicle being driven through the intersection contrary to the red light, Constable Young activated the Police vehicle’s flashing lights and gave chase to the vehicle, causing the driver of it to stop it adjacent to the Mantra Apartments on Northbourne Avenue.
5.	Constable Young stopped the Police vehicle behind and to the right side of the other vehicle, as can be seen in the recording taken by the Police vehicle’s video camera, see Exhibit C, and as shown by Constable Young’s sketch, see Exhibit B.  After the vehicles had been stopped, the driver of the other vehicle left the vehicle and Constable Young and Constable Hall left the Police vehicle and the driver of the other vehicle approached Constable Young.  As it transpired, the other vehicle was a blue coloured Holden Commodore sedan, number plate ACT YBR 26V.
6.	As the driver of the Holden sedan approached Constable Young, he and Constable Hall noticed that there were two passengers in the vehicle, both females, one on the front passenger’s seat and the other on the rear seat.  Later, the front seat passenger identified herself as Marion Barr and the rear seat passenger identified herself as Vanessa Willis to Constable Hall.
7.	Constable Young saw that the driver of the Holden sedan was about 180 centimetres tall, wearing black clothing, with long hair and a beard and with facial piercings and a ring through the middle part of his nose.  Constable Hall saw that the driver was tall and skinny, wearing a black leather jacket, black tee shirt and black jeans, with long hair, cut short at the sides, facial hair and a nose piercing.
8.	Constable Young asked the driver of the Holden sedan for his driver’s licence and the driver said that he did not have a licence, that he was a disqualified driver and that he had “just got out of jail for driving offences”.  Constable Young told the driver that, if he did not produce some form of identification, he would be arrested until his identity was ascertained, whereupon the driver produced an ACT Proof of Age Card in the name of Alfio Licciardello issued on 8 December 2003 which bore a photograph of the face of a man.  Constable Young compared the photograph on the card with the driver and he thought that the photograph on the card was that of the driver.  Then Constable Young handed the Proof of Age Card to Constable Hall before both of them returned to the Police vehicle so that Constable Young could confirm that Alfio Licciardello was a disqualified driver and that the Holden sedan was a registered vehicle.
9.	After being handed the Proof of Age Card by Constable Young, Constable Hall looked at the photograph on the card and looked at the driver of the Holden sedan and he thought that the photograph on the card was that of the driver of the Holden sedan.  As it happened, Constable Young confirmed that Alfio Licciardello was a disqualified driver and that the Holden sedan was registered in the name of Greg Sears of Kaleen, in the ACT.
10.	After Constable Young had confirmed that Alfio Licciardello was a disqualified driver and that the Holden sedan was a registered vehicle, he and Constable Hall left the Police vehicle and approached the driver of the Holden sedan and the driver said, among other thing, “I can’t go back to jail”, “Please don’t arrest me”, and he spoke of his daughter, saying that he did not want to go back to jail because of his daughter, that he had not seen her for some time and that she would be disappointed if he went back to jail.  However, when Constable Young told the driver of the Holden sedan that he was under arrest and that he had to go with them to the Canberra City Police Station, the driver ran off along Northbourne Avenue and disappeared.
11.	On 21 July 2008, the accused, Mr Alfio Licciardello, was charged with:
1.	Driving a motor vehicle upon Northbourne Avenue whilst disqualified from holding or obtaining a driver’s licence, contrary to s 32 (1) of the Road Transport (Driver Licensing) Act 1999 (ACT),
2.	Proceeding across the intersection of Northbourne Avenue and Girrahween Street when the traffic light was red, contrary to Rule 59 (1) of the Australian Road Rules, and
3.	Escaping from lawful custody after being arrested, contrary to s 160 of the Crimes Act 1900 (ACT).
12.	On 3 August 2008 the accused appeared before a magistrate in the ACT Magistrates Court in relation to the charges and he pleaded not guilty to the offences with which he had been charged.
13.	On 5 June 2009 the accused appeared again before a magistrate in the ACT Magistrates Court and he consented to the Magistrates Court having jurisdiction to hear and determine the charge of escaping from lawful custody after being arrested at the same time as the other offences.
14.	However, on 11 February 2010 the accused was granted leave by a magistrate in the ACT Magistrates Court to withdraw his consent to the Magistrates Court having jurisdiction in relation to the charge of escaping from lawful custody after being arrested and he was committed to this Court to stand his trial in relation to that offence.  I understand that the other charges have been held in abeyance pending a decision on this offence.
15.	On 6 October 2010 the accused filed an election to have the charge of escaping from lawful custody after being arrested tried by a judge alone.
16.	On 28 October 2010 the accused was arraigned with the charge of escaping from lawful custody after being arrested and he pleaded not guilty to the charge.
17.	On 10 November 2010 the Registrar of this Court fixed 26 May 2011 for the accused’s trial before me.
18.	On 26 May 2011 the accused appeared before me to stand his trial.  The accused was not represented by a solicitor or counsel.  I heard from the following witnesses:
1.	Constable Young,
2.	Constable Hall,
3.	Mr Sears,
4.	Ms Barr, and
5.	Ms Tracy Clark,
and I received the following exhibits:
A.	Proof of Age Card in the name of Alfio Licciardello,
B.	Sketch drawn by Constable Young, and
C.	DVD of recording made by Police vehicle video camera,
after which I adjourned the trial to 27 May 2011.
19.	On 27 May 2011 I resumed the trial.  I received Exhibit D – a certificate that proved that as at 28 June 2008 the accused was disqualified from holding or obtaining a drivers licence, and I heard evidence from the accused, after which I stood over the trial to today for my judgment.
20.	As I am the judge of the facts as well as the law, I recognise that the following principles, which are designed to ensure that the accused receives a fair trial according to law, govern the trial:
1.	The Crown has the burden to prove the guilt of the accused,
2.	The accused does not have any burden to prove anything,
3.	The level or standard of proof is proof beyond reasonable doubt,
4.	The accused is presumed to be innocent unless and until his guilt is proved beyond reasonable doubt,
5.	I must bring an open and unbiased mind to the evidence, I must view it coldly, clinically and dispassionately and I must not let emotion enter into the decision-making process,
6.	I must assess the evidence rationally, using logic and common sense,
7.	I may accept a witness’s evidence wholly or in part or reject a witness’s evidence wholly or in part,
8.	If the accused adduces evidence which is consistent with innocence, he does not have to prove it, rather the Crown must disprove it or show that it is irrelevant,
9.	As the accused gave evidence on oath, something that he was not required to do, he became a witness in his trial and I may accept his evidence in whole or part, with his evidence not being any better or any worse than any of the other witnesses simply because he is the accused,
10.	By giving evidence, the accused did not take upon himself any burden to prove anything,
11.	If the evidence satisfies me beyond reasonable doubt of the accused’s guilt, then the accused loses the presumption of innocence and I must find him to be guilty,
12.	If, however, the evidence fails to satisfy me of the accused’s guilt beyond reasonable doubt, then the accused remains presumed to be innocent and I must find him to be not guilty.
21.	I accept the evidence of Constable Young and Constable Hall.  Most of what they said was not in dispute.  Some of what they said was confirmed by Mr Sears, Ms Barr and the accused.  Nothing that they said was implausible or unlikely.
22.	I accept, in broad terms, the evidence of Mr Sears, Ms Barr and Ms Clark, although Ms Barr and Ms Clark seemed to have been determined not to remember precise details of whether they were with the accused at some time or other on 28 June 2008.  However, I cannot see anything in what any one of them said that undermines the evidence of Constable Young and Constable Hall.
23.	I do not reject everything that the accused said.  Indeed, as I have said already, some of what Constable Young and Constable Hall said was confirmed by the accused.  However, I do not accept the accused’s evidence that he was not the driver of the Holden sedan at about 6.30 pm on 28 June 2008 when it was stopped by Police on Northbourne Avenue.
24.	The issue in the trial is the identification of the driver of the Holden sedan at the time when it was stopped by Police on Northbourne Avenue at about 6.30 pm on 28 June 2008.  I cannot find the accused to be guilty of the charge of escaping from lawful custody after being arrested unless I am satisfied beyond reasonable doubt that the accused was in fact the driver of the Holden sedan when it was stopped by Police on Northbourne Avenue at about 6.30 pm on 28 June 2008.
25.	The Police gave the following evidence:
1.	The Holden sedan was registered in the name of Greg Sears, resident of Kaleen – the accused was well acquainted with Mr Sears and then was living with him and his family in the home;
2.	The passenger on the front seat of the Holden sedan was Ms Marion Barr – the accused had commenced a relationship with Ms Barr about two, or three, or four weeks after his release from prison on 7 May 2008;
3.	The driver of the Holden sedan was tall and skinny – the accused is tall and of slim build;
4.	The driver of the Holden sedan had long hair and a beard and he wore facial piercings and a nose ring – the accused then had long hair and a beard and he wore facial piercings and a nose ring;
5.	The driver of the Holden sedan said that he was unlicensed – the accused then did not hold a driver’s licence;
6.	The driver of the Holden sedan said that he was a disqualified driver – the accused then was a disqualified driver;
7.	The driver of the Holden sedan said that he “had just got out of jail for driving offences” – the accused had been released from jail on 7 May 2008 following a conviction for the offence of driving whilst disqualified committed on 12 August 2007;
8.	The driver of the Holden sedan produced a Proof of Age Card in the name of Alfio Licciardello issued on 8 December 2003 – the accused agreed that this card had been issued to him and that his photograph appeared on it;
9.	Police thought that the photograph on the card was a photograph of the driver of the Holden sedan, albeit that the driver had a beard and wore facial piercings and a nose ring;
10.	The driver of the Holden sedan said that he had a daughter – the accused has a daughter;
11.	The driver of the Holden sedan said that he had not seen his daughter for some time – the accused then had not seen his daughter since January 2007.
26.	Of all the facts enumerated in paragraph 25 above, I think that it is most unlikely that someone other than the accused would be in possession of the accused’s Proof of Age Card and that a person other than the accused in possession of the accused’s Proof of Age Card would not present the card to Police to prove his identity unless he closely resembled the photograph on the card.  Also, I think that Police could not have known that the accused had a daughter and that he had not seen his daughter for some time unless the accused had told Police those personal details.
27.	I accept the facts detailed in paragraph 25 above and they satisfy me beyond reasonable doubt that it was the accused who was the driver of the Holden sedan when it was stopped by Police on Northbourne Avenue at about 6.30 pm on 28 June 2008.
28.	Accordingly, I find the accused to be guilty of the charge that on 28 June 2008 he escaped from lawful custody after being arrested.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate:

Date:	 3 June 2011

Counsel for the Crown:	Ms S McMurray
Solicitor for the Crown:	ACT Director of Public Prosecutions
Counsel for the defendant:	Mr A Licciardello (self represented)
Solicitor for the defendant:	Mr A Licciardello (self represented)
Date of hearing:	26 May 2011
Date of judgment:	2 June 2011