R v PERDIKOYIANNIS No. SCCRM-03-82, SCCRM-03-83 [2003] SASC 310 - SASC 2003 case summary — Zoe

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

PERDIKOYIANNIS No. SCCRM-03-82, SCCRM-03-83 \[2003\] SASC 310

Cases Cited (14)

R v PERDIKOYIANNIS No. SCCRM-03-82, SCCRM-03-83 [2003] SASC 310 (12 September 2003)

27 The jury were not told that the issue for them was whether or not they accepted the evidence of the accused: cf Murray v The Queen [2002] HCA 26; (2002) 76 ALJR 899 at [56-57] Gaudron J and at [132] Callinan J. The earlier references to a matter being a reasonable possibility had been made as a means of explaining when proof beyond reasonable doubt was not made out. Moreover, the passage complained of must have come within a few seconds of the earlier part of the summing up set out above. To my mind it would have been clear to the jury that the judge was simply reminding them that when considering whether it was proved beyond reasonable doubt that what Mr Perdikoyiannis said was not true, they could ask themselves whether it remained a reasonable possibility that what he said was true. If it was, then they had to consider the elements of duress as explained by the judge.

34 It is relevant to note here that the judge did not direct the jury in this case, in accordance with the doctrine of common purpose as established by the decisions of the High Court in McAuliffe v The Queen [1995] HCA 37; (1985) 183 CLR 108 at 113-115 and Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108. That is, the judge did not direct the jury that Mr Perdikoyiannis was liable for acts done by the other men that were contemplated as possible consequences of the criminal venture, the subject of their common purpose. The judge declined to do so. The jury were directed to approach the case on the basis that the prosecution had to establish that Mr Perdikoyiannis was party to a common purpose or agreement to commit the three crimes charged. As to each crime charged, the judge instructed the jury that they had to be satisfied that Mr Perdikoyiannis was party to an agreement to carry out that particular offence. It was not sufficient, on these directions, for the jury to be satisfied, for example, that Mr Perdikoyiannis was party to a common purpose to rob Mr Nicolaidis, and that the use of a gun was within his contemplation as something that might occur in the course of carrying out the crime of robbery.

37 The effect of these judgments is that counsel and the trial judge should consider the possible need to leave alternative verdicts. It is appropriate, indeed desirable, for a trial judge to raise with counsel, as soon as practicable, the need to leave alternative verdicts that have not been raised by counsel with the jury or with the judge. The matter is not one to be left by the judge entirely to counsel: King CJ at 19. It is also well established by authority that the judge may be entitled and obliged to leave a verdict to the jury, even though counsel for the accused may oppose that course on the basis of tactical considerations: Varley v The Queen (1976) 51 ALJR 243 at 245 Barwick CJ, Benbolt at 14 King CJ and Trewartha [2001] SASC 264; (2001) 123 A Crim R 259 at [35]-[36] Doyle CJ.

38 In stating these propositions I have not overlooked the fact that other Courts of Criminal Appeal have expressed some caution about a statement of principle that would require a trial judge to leave to the jury all available alternative verdicts, irrespective of the manner in which the prosecution conducts its case: see Elfar [2000] NSWCCA 255; (2000) 115 A Crim R 64 (Court of Criminal Appeal New South Wales) and R v Doan [2001] VSCA 142; (2001) 3 VR 349 at [28]- [35] Charles JA.

The same approach was taken in Aldridge (1993) 67 A Crim R 371, where Sheller JA, with whom the other members of the court agreed, said at 376 that the test was whether it was a necessary step towards establishing the major offence to prove the commission of the other offence. In other words, was the lesser offence an essential ingredient of the major one? This required a close consideration of the terms of the Information. It is important to bear in mind that what must be considered are the terms in which the charge is laid, not the evidence at a trial. As the Full Court of the Supreme Court of Victoria said in R v Salisbury [1976] VicRp 45; [1976] VR 452 at 454:

(2002) 76 ALJR 899

(1985) 183 CLR 108

(1980) 143 CLR 108

(1992) 60 SASR 7

(1976) 51 ALJR 243

(2001) 3 VR 349

(1988) 50 SASR 10

(2000) 201 CLR 414

R v PERDIKOYIANNIS No. SCCRM-03-82, SCCRM-03-83 [2003] SASC 310

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Judgment (25 paragraphs)

Parties

Cases Cited (14)

R v PERDIKOYIANNIS No. SCCRM-03-82, SCCRM-03-83 [2003] SASC 310 (12 September 2003)