Giotas v R [2008] NSWCCA 287 | Case summary

Giotas v R [2008] NSWCCA 287 | Case summary | Zoe

[51]

Ground 1 : His Honour erred in failing to discharge the jury and allowing the evidence of Dr Larsen. 9 Dr Larsen is a general practitioner conducting her practice in the inner west. She was, at the relevant time, also a member of the Sexual Assault Unit at Royal Prince Alfred Hospital where she was rostered on one night per week. She had had many years experience working in the Sexual Assault Units at Royal Prince Alfred Hospital and Liverpool Hospital on a part-time after-hours basis. There was no evidence that she knew the complainant prior to her examination on 4 August 2001. 10 Dr Larsen had given evidence at the trial before Judge Woods. She was called by the Crown to give evidence at the retrial. Whilst waiting in the court precincts she conversed with the officer in charge of the investigation, whom she had known for some time. The conversation was overheard and this resulted in her being examined by the appellant's counsel on the voir dire. She gave evidence on the voir dire that she had had a general conversation with the police officer. They talked about a lot of different things but did not discuss the evidence the doctor would be giving. In the course of that conversation, the police officer had mentioned that there was a possibility the complainant's and the appellant's past bad character might be raised. He also asked her non specific questions as to whether drugs affect ejaculation or sperm. The officer in charge may have said that the sperm tested was infertile and this could be due to cocaine that the appellant probably used that night. The doctor had been aware of the allegation of drug use by the appellant. The original history taken by her from the complainant had included reference to allegations of drug use by the appellant. 11 Upon completion of the voir dire, counsel for the appellant sought a discharge of the jury on the basis that: "…a very important Crown witness has now been told that my client has bad character and it has been told to her that he may have used cocaine that night. The context of being asked about ejaculation and sperm, she's assumed relates to this case, she's assumed the drugs, and then she doesn't actually admit it until I put the proposition to her, and I read out the note that I've been given, and then she agrees that he probably said that, cocaine use that night. Now she's being called to give evidence for the Crown." 12 His Honour refused the application. He said: "…the position is that Dr Larsen is an expert witness. She can, in any event, be cross examined as to the impact on her of that conversation if that is thought forensically desirable. I do not think that the prejudice is such to warrant the step of a discharge in these circumstances." 13 In R v George (1987) 9 NSWLR 527 at 534 Street CJ said: "This Court has repeatedly emphasised that the decision to discharge or not is essentially one within the discretion of the trial judge, being a decision to be made in the awareness of contemporary atmosphere and the likelihood of material prejudice being occasioned to the accused person." 14 Whilst it is true the appellant's counsel would have been hampered in cross examining on this issue as it may have involved disclosure of the appellant's bad character, there was no evidence Dr Larsen was influenced in any way by the conversation. At the highest, counsel for the appellant suggested some evasiveness or reluctance on the part of Dr Larsen in answering questions on the voir dire. However, this is explicable by some concern on the part of the doctor that she may have erred in talking to the police officer or that she had difficulty in recalling what was said in a casual, wide-ranging, conversation. Her evidence was the subject of earlier notes and a transcript and any departure from that evidence could be the subject of attack in cross examination. In my opinion, his Honour did not err in exercising his discretion to refuse the application to discharge the jury. 15 In this Court, counsel for the appellant submitted there was evidence that the information obtained from the officer in charge may have caused Dr Larsen to change her evidence from that which she had given at the earlier trial and to give evidence designed to assist the complainant. He relied, essentially, upon two matters in support of this contention. Firstly, the doctor's notes only recorded one act of penetration (whilst the complainant was on her stomach) yet the doctor was prepared to assume an earlier penetration from that part of her note which read "After 5-10 minutes he pushed her onto her stomach and pushed her face in a pillow". However, this does not advance the appellant's case as there was no issue that penetration occurred during the period to which the doctor's note referred. The disputed intercourse, which the complainant alleged occurred whilst she was on her stomach, was the subject of a clear record in the doctor's note. Secondly it was submitted that Dr Larsen had agreed at the first trial that the complainant's injuries could have been caused by vigorous sexual intercourse and she had given contrary evidence at the second trial. However, a fair reading of the evidence at the first trial was, as the doctor explained, that in giving such evidence she was referring to the graze on the complainant's vagina only. 16 In my opinion it has not been demonstrated that Dr Larsen materially changed her evidence, or that her evidence was influenced by the conversation with the officer in charge. I reject this ground of appeal.

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Ground 2 : His Honour erred in failing to give a Longman direction in relation to persons at the hotel and the Salvation Army 17 The subject incident occurred in the apartment above the café in a building occupied, in part, by the Salvation Army. The complainant said she proceeded from the apartment to a nearby hotel. It was possible someone in or in the vicinity of the premises may have seen or heard something of relevance. 18 The appellant did not become aware of the allegations against him until two weeks after the event. Counsel for the appellant sought a [reduced] "Longman direction with respect to the patrons of the hotel, the people at the café, and the people in the Salvation Army office that relates to the short delay that it took him to be informed of the allegations". It was contended in the appellant's written submissions on appeal: "Earlier notice may have allowed CCTV footage from the hotel to have been obtained to demonstrate that the complainant had in fact not attended the hotel at all let alone in despair. It may also have allowed witnesses to have been approached as to what they saw, whether the female toilets were closed for any reason etc." 19 There was no evidence that CCTV was in place at the hotel at that time, that any attempt was made to find witnesses once the appellant was aware of the allegations made against him, that inquiry within the first two weeks would have yielded any result or that inquiry would have been made during that time. 20 The application was opposed by the Crown but his Honour gave a direction in his summing up in the following terms: "There is another matter that I want to speak to you in terms of the legal directions and categories of evidence about the delay aspect. Mr Giotas says here that he was not informed about the complaint until [some two weeks later]. It is important that you appreciate the effect of any delay on the ability of Mr Giotas to defend himself by testing the prosecution evidence or the evidence in his own case to establish reasonable doubt about his guilt. Now the defence submits that had the allegation been made at an earlier time, the parties, including the accused, may have had a more detailed or more accurate record of what actually happened. The accused might have had in that intervening period the opportunity to go to people at the Marrickville Road café or others to find evidence to throw doubt on the complainant's evidence. He might, as said, have been able to recall what he was doing at that particular time of the incident and to call evidence in support of his contention as to what actually occurred and what he was doing." 21 Appellant's counsel sought a further direction from his Honour as follows: "One very small thing your Honour…your Honour has said 'café', I specifically ask that your Honour say the hotel because the Crown says well the café at his friend's. Because they've produced evidence and they've made a submission and adduced evidence from the complainant about well, he knew people in the office and the café was obviously somewhere that he knew people. And I accept those submissions. But it's important that in the context of potential difficulties, it not be limited to people that he would otherwise have had access to."

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There was no further re-examination. 28 At the conclusion of her evidence, the complainant, with the consent of counsel, was excused. It was known she would be flying out of Sydney later that day. 29 Counsel for the appellant sought a discharge of the jury by reason of the Crown's failure to advise him that the complainant did not propose to continue with the civil action, as a result of which he had adduced evidence unhelpful to his case. 30 This application resulted in the Crown conceding that neither the prosecutor nor her instructing solicitor had been so informed by the complainant. There was evidence the common law proceedings were still on foot. 31 Counsel for the appellant then requested that the complainant be recalled. The complainant was due to depart on her flight at 1.00 pm. His Honour refused the request, stating: "It is now twenty to one. The risk is, and I have been involved in a case like this in another jurisdiction whereby attempting to delay people getting onto planes can cost something of the order of $30,000-40,000 by the time planes are apprehended and I am not prepared to do that in these circumstances." 32 His Honour rejected the application to discharge the jury. He held: "I accept what the Crown Prosecutor tells me, that neither she nor the DPP solicitor were informed of that specific aspect. I do think that there is some prejudice to the defence in the light of that change of circumstances but nevertheless, that is part of the perils of cross examination in that area. I do not think that the prejudice that they suffer outweighs the value of the trial proceeding in these circumstances - particularly when, as I say, in my view there is no responsibility for the Crown for having brought that about." 33 In my opinion, his Honour's decision not to discharge the jury was well open to him in the exercise of his discretion. The overall prejudice to the appellant was not such as to have justified the discharge of the jury. Indeed, these events provided a forensic advantage to the appellant in that his counsel was able to complete his address to the jury by asserting "…that she claims on this very important issue 'I told the Crown. I told the Crown I wasn't interested in proceeding.' Well, she didn't tell the Crown…She wants to backtrack because she knows the importance of that piece of evidence and she's even prepared to lie about what she told the Crown. How can you accept her beyond reasonable doubt?" 34 This ground of appeal fails.

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Ground 4: The verdict was unreasonable and could not be supported by the evidence 35 The Criminal Appeal Act, 1912, s 6(1), provides, as far as here relevant: "The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence… provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred ." 36 The Crown's version of events was that two non consensual acts of intercourse had occurred during which the complainant had sustained physical injury. The appellant's version of events was that the first act of intercourse occurred at the time and place alleged. It was consensual. The second act did not occur. At no time did he cause injury to the complainant. The circumstances were that the only persons who could give direct evidence as to what had occurred were the complainant and the appellant and their evidence was relevantly in conflict. The jury convicted the appellant. The issue is whether that verdict is unreasonable and cannot be supported having regard to the evidence. 37 In M v The Queen (1994) 181 CLR 487 at 493 Mason CJ, Deane, Dawson and Toohey JJ held: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 38 This test was confirmed in Jones v The Queen (1997) 191 CLR 439 at 452 and MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25] and [97]. 39 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 the High Court was concerned with the proviso to s 6(1) of the Criminal Appeal Act, 1912. The court stated: "[41] That task [of considering the application of the proviso] is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty… [43] The court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict … The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial ." 40 I have independently assessed the evidence in this matter. The factual matters of significance are as follows:

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McHugh, Gummow and Hayne JJ, also in a joint judgment, said (at [72]): "Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials." 50 In R v Hannes [2002] NSWSC 1182; (2002) 173 FLR 1 James J was required to sentence an offender who had been found guilty of a series of offences at a retrial. His Honour said: "[ 84] Because of the division of judicial opinion and because the remarks by justices of the High Court in McL were, strictly speaking, dicta, it is not entirely clear what principles I should apply in the re-sentencing of Mr Hannes. I consider that it would clearly be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that a sentence imposed by her was so manifestly inadequate that it would be set aside on a Crown appeal on the ground of its manifest inadequacy. I also consider that it would be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that there are new, significantly different facts before me which were not before Judge Backhouse. I also consider that it would be open to me to impose a heavier sentence than Judge Backhouse did, if I consider that Judge Backhouse made a significant specific error in sentencing Mr Hannes. It is not clear whether there are any other circumstances in which I would be justified in imposing a heavier sentence than Judge Backhouse did. If I consider that a sentence imposed by Judge Backhouse is within the permissible range of sentences and, hence, is not manifestly inadequate, it is at least doubtful whether I should impose any heavier sentence, merely because, if I had been sentencing Mr Hannes for the first time, I would have imposed a somewhat heavier sentence." 51 In Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425 at [14]-[31], a judgment delivered after sentence was pronounced in this case, this court reviewed the major authorities on this issue, including those referred to above and concluded (at [31]): "What does emerge clearly from the authorities is that a judge at a second trial need not perpetuate a sentence which is manifestly inadequate. That was the approach of this Court in Merritt (No 2) and of James J in Hannes . In the present case, that is not suggested of the sentence which Hulme J passed upon the applicant at the first trial. However, what also emerges is that the judge at a second trial might pass a heavier sentence if he or she makes findings of fact bearing upon the offender's criminality significantly different from those made by the judge at the first trial. It is this which lies at the heart of the application." 52 The appellant did not give evidence at the sentencing hearing. Judge Knox accepted the complainant's evidence on those matters which were in dispute. He rejected the appellant's evidence at the trial. 53 The sentences imposed by Judge Knox exceeded those imposed by Judge Woods, the head sentence by six months, the non parole period by one year and one month. His Honour's reasons for the increases were:

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(c) He heard the appellant give evidence. That evidence formed an essential part of the basis of the exercise of his sentencing discretion. The appellant did not give evidence before Judge Woods. 54 The applicant submitted that prima facie, the same sentence as Judge Woods had imposed following the first trial should be imposed unless there were special features justifying an increase. The sentence imposed by Judge Woods was within the appropriate range and had not been challenged by the Crown on appeal. There were no special features justifying an increase. 55 The Crown submitted there were special features which would justify an increased sentence. Judge Woods considered the offence was spontaneous whereas Judge Knox considered that the appellant had deliberately lured the complainant to the apartment. Each judge was aware of the appellant's prior convictions. Judge Knox may have increased the sentence as a result of those convictions. Each judge considered the circumstances of the offence, Judge Knox considering that a higher level of objective criminality was involved than did Judge Woods. Judge Woods found some contrition and remorse and special circumstances. Judge Knox found no indication of remorse and considered that special circumstances had not been established. 56 The evidence before Judge Woods was not significantly different than the evidence before Judge Knox. Whether the actions of the appellant were relatively spontaneous or the result of planning is speculative. The only matter of significance was that the appellant gave evidence before Judge Knox. However, his evidence and demeanour merely affirmed that the evidence of the complainant should be preferred. 57 In Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27] Gleeson CJ, Gummow, Hayne and Callinan JJ held: "The judgment [on sentence] is a discretionary judgment…As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 58 In this case each judge formed a different opinion as to what the appropriate sentences should be, based upon their subjective interpretation of similar material. The available sentencing range was sufficiently broad in my opinion to encompass each sentence. There is nothing in the material before Judge Knox which was so different, special or significant as to overcome the prima facie presumption that the original sentence should not be increased. This is not a case where the sentence imposed by Judge Woods is so manifestly inadequate that it would be set aside on a Crown appeal on the ground of its manifest inadequacy. 59 In my opinion, his Honour Judge Knox erred in imposing a sentence in excess of that previously imposed by Judge Woods.

Giotas v R

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