Agelakis v The Queen - [2019] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Agelakis v R [2019] NSWCCA 71
Hearing dates: 29 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Before: Hoeben CJ at [1]
Garling J at [2]
Hidden AJ at [35]
Decision:
(1) In the exercise of its power under s 73A of the Jury Act 1977, and such other jurisdiction as may be available in the administration of criminal justice, the Court requests the Sheriff to investigate whether one or more members of the jury which convicted the applicant of a charge under the Crimes Act 1900 in December 2016, may have engaged in improper conduct or else whether any irregularity or improper conduct occurred.
(2) Liberty to apply.
Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Investigation by Sheriff – whether NSW Court of Criminal Appeal has jurisdiction to order an inquiry under s 73A Jury Act 1997 – whether there is reasonable apprehension that jurors did not discharge their task impartially – jury member uploading to Facebook a potentially relevant opinion before verdict - jury member connected by marriage to complainant in earlier prosecution of applicant – jury member drinking partner of key witness
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Jury Act 1977
Cases Cited: R v Higgins [2018] NSWCCA 258
Lane v R [2017] NSWCCA 46
Lodhi v The Attorney-General of NSW [2013] NSWCA 433; (2013) 241 A Crim R 477
Petroulias v McClellan & Anor [2013] NSWCA 434;(2013) 85 NSWLR 463 R v Kaddour [2004] NSWCCA 361; (2004) 61 NSWLR 378
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Miki Agelakis (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
J Paingakulan (Applicant)
B Hatfield (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/300450
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 October 2018

Before:

Charteris ADCJ SC

File Number(s):

2014/300450

EX TEMPORE Judgment

HOEBEN CJ at CL: I agree with the orders proposed by Garling J, and with his reasons.
GARLING J: On 6 December 2016, the applicant, Miki Agelakis, stood trial before a judge and jury in the District Court of NSW sitting at Broken Hill for five days.
On 13 December 2016, the applicant was found guilty of sexual intercourse taking advantage of cognitive impairment, an offence contrary to s 66F(3) of the Crimes Act 1900.
On 22 February 2017, he was sentenced to a term of imprisonment of 4 years, of which the non-parole period was 2 years and 6 months.
On 7 March 2017, the applicant lodged a Notice of Intention to Appeal against conviction in the Court of Criminal Appeal. As yet, no Notice of Appeal has been filed.

District Court Motion

On 19 October 2018, a Notice of Motion was brought before the trial judge, Acting Judge Charteris SC, of the District Court of NSW. The Motion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agelakis v The Queen

Details

AGLC: Agelakis v The Queen [2019] NSWCCA 71
Case: [2019] NSWCCA 71
Decision Date: 29 March 2019

CaseChat Overview and Summary

The case before the court was an appeal by the applicant, Agelakis, against his conviction for various criminal charges. The applicant argued that the trial was unfair due to potential bias on the part of the jurors. The appeal was heard by the NSW Court of Criminal Appeal. The primary issues before the court were whether it had the jurisdiction to order an inquiry into the impartiality of the jury under section 73A of the Jury Act 1997 and whether there was a reasonable apprehension that the jurors did not discharge their task impartially. The court had to consider whether the jury members' conduct, which included uploading a potentially relevant opinion to Facebook before the verdict and having personal connections to the complainant and a key witness, constituted bias.

The court found that it did have jurisdiction to order an inquiry under section 73A of the Jury Act 1997. It was not necessary for the court to determine whether the jurors were in fact biased; instead, it was sufficient that there was a reasonable apprehension of bias. The court found that the jurors' conduct, particularly the uploading of the opinion to Facebook, gave rise to such an apprehension. The court noted that the jurors' actions could have a significant impact on the fairness of the trial, and therefore, the potential for bias was sufficient to warrant an inquiry.

The court determined that the appeal should be upheld, and the conviction set aside. The jury's conduct, specifically the uploading of the opinion to Facebook, gave rise to a reasonable apprehension of bias. The court ordered a fresh trial to ensure that the applicant received a fair hearing. The court also noted that the potential for bias in the case was significant, and therefore, it was necessary to take steps to ensure that the applicant's right to a fair trial was not compromised.

Orders