R v Matheas [2003] VSCA 221

5. The Karkanis family home was at Doveton, east of Melbourne. Living in that house at relevant times were Dimitra Karkanis, her daughter Dora Karkanis, and her son Chris Karkanis; together with Theodora Kariotakis (Dimitra's mother) and Debbie Kariotakis (Dimitra's sister). They were a family of Greek origin who used to be friendly with the applicant's family who lived in the same locality. That friendship ended in 1998 when Dora Karkanis reported an incident to the local police which resulted in the applicant being charged with a criminal offence. This incident appears to have sparked off a feud between the Karkanis family and the applicant which, on 15 October 1998, resulted in Dora obtaining an "intervention order" from the local Dandenong Court against the applicant. It appears that, during the month preceding 15 October 1998, the Karkanis family had made complaints to the police that the applicant had been harassing them and threatening them. The charge against the applicant, initiated by Dora Karkanis, was dismissed in the Dandenong Court on 8 December 1999. Until and after that date, it was alleged that the applicant continued to harass the family members. This continued in various forms until 14 November 2000 when the Karkanis family home was set alight at about 3.20 a.m. following the hurling of an incendiary device through the window of the room in which Dora and Chris were sleeping. The barricade which had been erected by the family inside those windows prevented the spread of the fire and confined it to the alcove between the barricade and the window frame. As a consequence, the damage caused by the fire was contained.

8. As I have said there were 11 counts on the presentment. The first two counts alleged "stalking" contrary to s.21A of the Crimes Act 1958. Count 1 alleged that the applicant had been "stalking" Dora between October 1998 and October 1999; and the second count alleged he had been "stalking" Dimitra from 9 September 1999 to 12 October 1999. Count 3 alleged that on 9 September 1999 the applicant had threatened to kill Dimitra contrary to s.20 of the Crimes Act; and that - on the same date - had offered Dimitra $7,000 with a view to perverting the course of justice by ordering her to contact the police to tell them that her daughter, Dora, had earlier lied to them about the complaint which she had made (count 4). Count 5 alleged that on 9 September 1999 the applicant had threatened to kill Theodora, contrary to s.20 of the Crimes Act. Alternatively, it was alleged (count 6) that on the same day the applicant had threatened to inflict serious injury upon Theodora. Count 7 alleged that the applicant had, on 12 October 1999, threatened to kill Dimitra; and had - on the following day (namely 13 October 1999) threatened to kill Dora (count 8). In count 9, it was alleged that the applicant had intentionally obstructed one Shane Taylor (a member of the police force), in the due execution of his duty on 15 October 1999 following the applicant's arrest. Counts 10 and 11, which arose out of the fire at the Karkanis premises in the early hours of the morning of 14 November 2000, alleged arson of premises intending the endangering of the life of Dora; and the alternative count of arson of property belonging to Dimitra and Theodora.

11. At the end of the trial which commenced on 16 July 2001, the jury - on 4 August 2001 - convicted the applicant of the offences alleged in counts 1 and 2 (stalking); count 4 (perverting the course of justice); count 5 (threat to kill Theodora); count 9 (obstructing police); and count 10 (arson intending to endanger life). The jury acquitted the applicant of counts 3, 7 and 8. No verdicts were taken on counts 6 and 11 which are alternatives to counts 5 and 10.

14. Following a plea in mitigation of sentence made on 23 August 2001, her Honour imposed sentences on 21 December 2001. During the plea hearing the applicant had admitted prior convictions of "causing injury intentionally" on 13 September 1999, and assault with a weapon on 7 August 2000, which her Honour regarded as "indications of a disposition towards violence which you possess". Her Honour also found that the crimes of which the applicant had been convicted were:

"reprehensible in the extreme and [that] the behaviour over the period of time [was] seriously disturbing and ... that the crimes ... call for condign punishment."

One of the prior convictions related to what the applicant's counsel described as a "one off dispute with a neighbour"; and the second one was an offence which involved Debbie (the sister of Dimitra) who was resident in the house of the Karkanis family. Her Honour had called for a psychiatric report before sentence. That report expressed the view that the applicant was a man of "borderline intelligence" with "low self esteem and unresolved anger". The applicant had apparently resorted to "body building" which involved uninhibited use of anabolic steroids to improve his self image. His problem was one of "easily losing self control"; no doubt contributed to by the excessive use of steroids. Her Honour regarded his present state as "one of denial" which did not auger well for his rehabilitation. She fixed sentences for the crimes of which the applicant had been convicted as follows:

Count 1 (stalking of Dora) - 12 months' imprisonment

Count 2 (stalking of Dimitra) - 2 months' imprisonment

Count 5 (threat to kill Theodora) - 4 months' imprisonment

Count 9 (obstructing police) - 1 month's imprisonment

Count 10 (arson endangering life) - 4½ years' imprisonment.

Her Honour directed that six months of the sentence imposed on count 1, three months of the sentence imposed on count 4 and two months of the sentence imposed on count 5 be cumulated upon each other and on the sentence imposed on count 10. The total effective sentence was, therefore, five years and five months. Her Honour directed the applicant serve a minimum period of four years and two months before becoming eligible for parole. She declared, pursuant to s.18 of the Sentencing Act, that the applicant had already served a period of 410 days' imprisonment pursuant to the sentences imposed.

28. The applicant has applied for leave to appeal against his convictions and the sentences imposed. His initial application for leave to appeal against the convictions was based upon four grounds. At the outset of the hearing before this Court, his counsel (Mr. Meredith) informed us that he intended to rely upon only the first of those grounds; namely that her Honour had "erred in not severing counts 10 and 11 (the arson counts) from the other counts on the presentment. Mr. Meredith applied for this Court's leave to argue two "new grounds" which were proposed to constitute grounds 2 and 3 of the application. Those grounds asserted that the trial judge had erred in her directions to the jury by:

"2. Failing to give a propensity warning with respect to the counts on the presentment;

3. Failing to direct the jury adequately or at all regarding the evidence of eye witness identification or recognition in relation to counts 10 and 11"

Mr. Morgan-Payler, acting for the respondent on this application, objected to leave being given to amend the grounds "out of time", having regard in particular to the fact that no exceptions had been taken to the charge in either of the respects which the applicant now wished to argue. We permitted the applicant to argue the late amended grounds, whilst reserving to ourselves the discretion to refuse the leave sought after consideration of the arguments. The application for leave to appeal against the sentences imposed contained only one ground; namely, that the sentences imposed were manifestly excessive. This ground, as particularised by counsel, was based upon the contention that the sentence of four-and-a-half years' imprisonment on the arson count (count 10) was manifestly excessive; as was the minimum period fixed which, so it was contended, was insufficient to allow for the prospects of rehabilitation which her Honour had found to exist.

35. Before turning to the applicant's arguments in support of his applications for leave to appeal against conviction, it is necessary for me to recite so much of the evidence as bears upon those convictions.

38. The applicant who was aged 27 at the time of the offending, had lived with his family for about 10 years before 1998, in the Doveton area. He and his family were friendly with the Karkanis family. In September 1998 Dora Karkanis reported an incident to the police which resulted in the police charging the applicant with a criminal offence against Dora. On 15 October 1998 Dora obtained "an intervention order" prohibiting the applicant from approaching, threatening or intimidating her. The applicant was charged with a criminal offence arising out of Dora's complaint - an offence which was heard and dismissed on 8 December 1999. It was alleged that between September 1998 and the end of 1999 the applicant engaged in a course of conduct calculated to harass the members of the Karkanis family. That course of conduct encompassed the conduct charged in counts 1 to 8 inclusive on the presentment. As I have earlier indicated, the conduct alleged included "stalking" of both Dora and Dimitra (counts 1 and 2); threatening to kill Dimitra (count 3); intending to pervert the course of justice by inducing Dimitra to contact the police to tell them that Dora was lying about the complaint which she had made in 1998 (count 4); threatening to kill Theodora in September 1999 (count 5); threatening to kill Dimitra in October 1999 (counts 7); and threatening to kill Dora in October 1999 (count 8). On 15 October 1999, the applicant was apprehended by the police in relation to the allegations of stalking and breach of the intervention order, and was taken to the Narre Warren police station. The applicant refused to co-operate with the police in a number of ways, and was lodged in the holding cells, pending being conveyed to the Dandenong Magistrates' Court for a bail/remand hearing. When the police came to get him he announced to them that he had urinated on himself and had defecated in the cells. He was very abusive to the police and refused to co-operate. These were the circumstances that resulted in count 9 on the presentment - obstructing members of the police force in the due execution of their duty.

41. Early in the morning of 14 November 2000 (at or about 3.20 a.m.) one of the bedroom windows of the Karkanis house, in which Dora and Chris were sleeping, was broken by a missile thrown at it from the outside. Police later discovered outside the window and on the ground a can of petrol with a brick taped to it. Shortly afterwards, an incendiary device - namely a marine flare - was thrown from the outside through the broken window and lodged between a wooden barricade which had been erected inside the window and the window frame itself. The burning flare set fire to the curtains inside the house and the red smoke given off by the burning flare filled the room. The extreme heat generated by the burning flare was due to the magnesium content of it. The red smoke was the product of the chemical compound called strontium, which was one of the chemical components of the flare. More than one of the threats which supported the evidence relevant to counts 1 to 8 inclusive included words spoken by the applicant to the effect that he would "destroy [the Karkanis] house" and that he would "destroy everything they had". The occupants of the house were awakened by the noise and the consequent smoke which filled the house. Chris and Dora appear to have been the first to respond and they ran to the front door of the house closely followed by their aunt Debbie. Each gave evidence that on the nature strip on the other side of the road they saw the applicant looking towards the house before he turned and fled. Debbie also said she recognized the applicant's laughter as he ran away. The scene was well lit by street lights, and apparently moonlight. The fire in the curtains was quickly quelled by the occupants and the police and fire brigade were called. Having spoken to the Karkanis family in the morning of 14 November 2000, the police apprehended the applicant on the following morning at approximately 6.15 a.m. They had with them a warrant to search the premises; and amongst other things, they seized a grey casual jumper. Subsequent scientific examination of marks on the sleeve of that jumper revealed a particle of strontium. At about 8 o'clock in the morning of 15 November 2000 the police conducted an interview with the applicant, in the course of which he professed to know nothing about flares; although one of the instructors from the local Country Fire Authority said that he had instructed, inter alia, the applicant by reference to such flares on various occasions. The applicant was a volunteer member of the fire brigade. During the course of the interview, the applicant steadfastly denied that he had ever stalked or threatened any of the members of the Karkanis family; and also denied that he was responsible for throwing the flare through the window. He conceded that he knew the Karkanis family well and that, until two years ago, he had frequently been to their house; and was familiar with its "lay-out". He agreed that there had been "a falling out" with the Karkanis family some two years before the interview because of the allegation which had been made against him by Dora. When it was put to him that Chris, Dora and Debbie had seen him on the opposite side of the road after the flare had been thrown through the window, he said that "was not true", and that he was home "in bed". Although he gave no evidence, this was his "alibi defence" to counts 10 and 11. In support of that alibi, he called his wife to give evidence at the trial.

44. The evidence to which I have referred in the preceding paragraph was the foundation of counts 10 and 11 which were alternatives. Count 10 alleged that the applicant had, on 14 November 2000, intentionally and without lawful excuse damaged by fire a house, intending by such damage to endanger the life of Dora Karkanis. The alternative offence, alleged in count 11, was that the applicant had, on 14 November 2000, intentionally and without lawful excuse damaged by fire the house belonging to Dimitra Karkanis. The offence alleged in count 10 is the product of s.197 (2) of the Crimes Act 1958; and the offence alleged in count 11 is the product of s.197 (1) of that Act. Sub-section (4) of s.197 provides:

"For the purposes of sub-sections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if - (a) his purpose or one of his purposes is to destroy or damage property; or (b) he knows or believes that his conduct is more likely than not to result in destruction of or damage to property."

Section 197 (5) provides:

"For the purposes of sub-section (2) a person who destroys or damages property shall be treated as intending thereby to endanger the life of another if, but only if - (a) his purpose or one of his purposes is to endanger the life of another by the destruction or damage; or (b) he knows or believes that the life of another is more likely than not to be endangered by the destruction or damage."

The trial judge gave full directions to the jury relating to the elements of these offences, and no ground has been taken on this application to suggest to the contrary.

52. At the outset of the trial, counsel who appeared for the applicant (who was not the counsel who appeared on this appeal) applied to the judge to sever counts 10 and 11 from the other counts on the presentment. He did so on the basis that counts 10 and 11 offended rule 2 of the presentment rules, contained in schedule 6 to the Crimes Act, because the charges alleged in counts 10 and 11 were not founded on the same facts, nor did they form, or were part of, a series of offences of the same, or similar, character. Alternatively, it was contended that the counts should be severed from the remainder of the presentment in the exercise of the judge's discretion because of the prejudice flowing to the accused from the joinder. Her Honour declined to sever the counts on the grounds that they were part of a series of offences of the same or similar character. Furthermore, in her Honour's view, there was no prejudice flowing to the accused which could not be cured by proper directions.

55. On this appeal it was not contended by Mr. Meredith, on behalf of the applicant, that the joinder could not be justified by rule 2 of the presentment rules; he confined his argument to the proposition that her Honour's discretion miscarried in failing to sever the counts. Mr. Meredith submitted that a sound exercise of discretion should have led to severance of these counts. The basis of his submission was that the offences alleged in counts 10 and 11 were not only removed in time from the offences alleged in counts 1 to 9 inclusive on the presentment, but were different in kind in the sense that the earlier counts alleged discrete offences against individual members of the Karkanis family as to which the applicant contended that, although he was present, no such offence was committed; whereas in respect of the arson offences he denied that he was present. These circumstances, together with his claim of "false identification" made it unsafe and prejudicial to couple counts 10 and 11 with the earlier counts.

58. In my opinion, her Honour did not err in the exercise of her discretion. As her Honour pointed out, in my view correctly, the conduct of the applicant which underlay the offences charged in counts 1 to 8 inclusive was explanatory of, and relevant to, the offences alleged in counts 10 and 11. Each of the offences was, as the Crown alleged, fuelled by an intense dislike which the applicant harboured towards the Karkanis family as a consequence of an allegation made by Dora in September 1998. To have severed the presentment, and to have the two sets of offences tried separately, would have led to a situation where each set of offences would have been tried in a contextual vacuum. As her Honour correctly said, such prejudice as might arise could be overcome by proper directions. At no time during the trial which ensued was any complaint made by trial counsel for the applicant that prejudice had flowed as a consequence of the exercise of her Honour's discretion. In my view this ground of appeal should be dismissed.

Proposed Ground 2 - Failure to give a Propensity Warning

62. As I have already indicated, this was one of the proposed grounds which counsel for the applicant seeks to add, by leave of the Court, well after the time for amending grounds has expired. No such complaint of non-direction was taken by counsel for the applicant at trial. I have recently had cause to refer to the significance (for an appellate court) of the failure by experienced trial counsel to take exception to the trial judge's directions in respect of a matter which is contended on the appeal to have amounted to a material non-direction or mis-direction[1]. The failure by trial counsel, including a prosecutor - each of whom is absorbed in the trial and its fairness - to take exception indicates that neither perceived any unfairness in the directions tending to prejudice the accused or the fairness of the trial[2]. Those principles apply a fortiori in this case where counsel had sought separate trials in respect of counts 10 and 11; an application which had been rejected on the basis that the matter could be overcome by "appropriate directions". In a case such as this, where much of the evidence led in respect of counts 1 to 8 had a relevant bearing upon counts 10 and 11, a propensity warning of the type now contended for, would in my view have been inappropriate. Her Honour made it quite clear to the jury that they had to give separate consideration to each of the counts on the presentment and gave them directions - in unexceptionable form - as to the evidence which was relevant to their consideration of each such count. In a case such as this, where the evidence - or some of it - given in respect of counts 1 to 8 inclusive was cross admissible in respects of counts 10 and 11, a propensity warning would, in my view, have been otiose. Her Honour had refused to sever counts 10 and 11 from counts 1 to 9 on the basis that the conduct of the applicant which underpinned counts 1 to 8 was relevant to the offences alleged in counts 10 and 11. That portion of the ruling has not been challenged in this Court. In this State the admissibility of "propensity evidence" is governed by s.398A of the Crimes Act 1958. Even if the evidence led in respect of counts 1 to 8 can be regarded as "propensity evidence" (which I doubt), it has not been suggested in this Court that the evidence led in this trial offended the provisions of that section. In my opinion, there is nothing in this ground of appeal and I would refuse the application for leave to amend.

Proposed Ground 3 - Mis-direction as to "identification"

66. This was the other ground in respect of which Mr. Meredith sought the Court's leave at the outset of this application. Once again the Court allowed Mr. Meredith to advance argument in respect of the ground but reserved to itself the right to refuse the leave sought in the event that the Court concluded there was insufficient merit in the ground. The ground asserts that the learned trial judge erred in failing to direct the jury adequately or at all regarding the evidence of eye-witness identification or recognition in relation to counts 10 and 11.

69. This ground relates to the evidence given by Chris, Dora and Debbie, each of whom said that - following the breaking of the bedroom window and the throwing of the flare into the alcove between the window frame and the wooden barrier - he or she had gone through the front door into the street and had seen the applicant on the nature strip on the other side of the road; and/or had heard him laughing. Mr. Meredith submitted that her Honour should have given a warning to the jury with the authority of her office, of the nature described in Domican v. R.[3].

72. It should be noted that no objection was taken by trial counsel to her Honour's directions in respect of this evidence at the trial; and the original grounds of appeal - which had been drawn professionally some 21 months before the application to amend was made - had not contended that the directions were erroneous in the sense now contended for. This is not surprising because, at a point early in the course of giving directions to the jury at the conclusion of the evidence and addresses, her Honour had discussed the matter with counsel. In the course of the discussion her Honour had told counsel that she did not intend "to give this jury an identification warning in normal terms as it would be given in an identification case". The reasons for that, she said, were that the case was "a recognition case", and that, as she understood the defence, it was "not a case that [the witnesses] could have been mistaken as to the person, but that this is a deliberate lie". Defence counsel responded "Essentially yes, your Honour". Her Honour went on to point out that it seemed to her to be "a pointless exercise to confuse [the jury] with an identification warning ...". She went on to say that to give such a warning seemed to her to be "confusing". She then asked counsel whether they had "any problem" with what she intended to do, to which counsel replied "No, your Honour".

75. It would seem to me that when her Honour referred to this as a "recognition case", she was referring to the fact that each of the three witnesses who had given evidence of seeing the applicant on the roadway, was thoroughly familiar with him and had recognized him[4]. It was not in dispute in this trial that Chris, Dora and Debbie were thoroughly familiar with the applicant and that each was capable of recognizing him. It was not the reliability of the identification evidence which was in dispute in this case; rather it was the contention of the accused that the witnesses had put their heads together to concoct the evidence that they gave in this respect. In other words, it was their credit which was in dispute. In cases where the reliability of the identification evidence, based on familiarity, is not in dispute, it has long been held in England that the trial judge is not bound as a matter of law to give any specific warning about the danger of convicting on it[5]. Similar views have been expressed in this country[6]. Such reasoning, so it seems to me, underlies the decision in Domican (supra) where the majority judges said at pages 561-2:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt in an offence the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed."

In support of this proposition, their Honours cited (inter alia) the passage of Gibbs, J. in Kelleher's case to which I have already referred[7].

80. When her Honour observed that the giving of a direction in terms of Domican "would be confusing", she was alluding to the fact that such a direction would run counter to the case being made by or on behalf of the applicant - namely that the witnesses upon whom the Crown were relying had concocted a deliberate lie. There is no doubt that the evidence of those witnesses was significant in the context of the trial, even though it formed part only of the circumstantial case being made by the Crown in respect of counts 10 and 11. If her Honour were to have given a direction in the terms for which the applicant now contends, it would have to have been on a basis contrary to the case being made by the accused. In those circumstances it seems to me - as it appeared to defence counsel - that the direction would have served to undermine the case being made by the defence.

83. As I have indicated, no exception was taken by trial counsel for the accused to the directions which her Honour gave. His expression of content with the directions given was consistent with the case which his client was making. It is, in my opinion, too late in the day for counsel to now be raising before this Court a contention that her Honour had materially misdirected the jury by failing to give a direction in the terms of Domican. For the reasons which I have given, such a contention could not succeed; and, accordingly, I would refuse leave to amend the grounds of appeal in the manner sought.

86. I would, accordingly, dismiss the application for leave to appeal against conviction.

Application for Leave to Appeal against Sentence

90. The only ground of appeal was that the total effective sentence and the non parole period fixed were manifestly excessive. As counsel correctly conceded, such a ground of appeal does not admit of much argument. The total effective sentence was largely governed by the sentence of four and a half years imprisonment in respect of count 10. Her Honour was correct, in my view, to regard this offence as a serious example of its kind. It carries a maximum penalty of 15 years' imprisonment. I am far from satisfied that this sentence, or the limited periods of cumulation which were made in respect of the other sentences, has produced a total effective sentence which is manifestly excessive. Nor am I satisfied that the non

parole period which her Honour fixed is outside the range. I would therefore dismiss the application for leave to appeal against sentence.

95. I agree that, for the reasons advanced by the learned President, each of the applications should be dismissed.

100. I have had the advantage of reading in draft the reasons for judgment prepared by the learned President. I agree with his reasons and with the conclusion to which he has come.

[1] See R. v. G.A.M. [2003] VSCA 185 at paras [10]-[11].

[2] Cf. R. v. Tripodina & Anor. (1998) 35 A.Crim.R. 183 at 191, per Yeldham, J.; and R. v. Calides (1983) 34 S.A.S.R. 355 at 359, per Wells, J.

[3] [1992] HCA 13; (1992) 173 C.L.R. 555.

[4] Cf. R. v. Marijancevic (1993) 70 A.Crim.R. 272 at 275-6.

[5] See Arthurs v. Attorney-General (Northern Ireland) (1970) 55 Cr.App.R. 161-168; R. v. Long (1973) 57 Cr.App.R. 871.

[6] See Kelleher v. R. [1974] HCA 48; (1974) 131 C.L.R. 534 at 551, per Gibbs, J.

[7] See also Festa v. R. [2001] HCA 72; (2001) 208 C.L.R. 593 at 614 per McHugh, J.