Anthony Patounas v The Queen - [2015] VSCA 369

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0099

ANTHONY PATOUNAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF ORDERS:	31 July 2015
DATE OF SUPPLEMENTARY SUBMISSIONS	3, 30 November 2015
DATE OF REASONS:	22 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 369
JUDGMENT APPEALED FROM:	R v Patounas (Unreported, County Court of Victoria, Judge Chettle, 21 November 2014)

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CRIMINAL LAW – Appeal – Conviction – Irregularity – Defence counsel previously acted for Crown witness – Whether cross-examination prejudiced – Whether substantial miscarriage of justice – Crown concession – Appeal allowed – Retrial ordered.

CRIMINAL LAW – Appeal – Conviction – Crown concession on one ground of appeal – No concession on second ground – Appeal allowed – Conviction quashed – Retrial ordered – Whether Court obliged to consider second ground – Applicant acquiesced in making of orders – Ground abandoned – Court functus officio.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Ramsay (solicitor)	Doogue O'Brien George
For the Respondent	Mr L Fluxman (solicitor)	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
BEACH JA:

After a trial in the County Court, the appellant (‘AP’)[1] was convicted of one charge of trafficking in a drug of dependence. He was sentenced to four years’ imprisonment and a non-parole period of two years and nine months was fixed.
[1]The abbreviation is used for ease of reference only.

He subsequently filed an application for leave to appeal against conviction. The written case in support identified two grounds of appeal. The first ground was that there had been a substantial miscarriage of justice, by reason of the fact that AP’s counsel had previously acted for a person who, at AP’s trial, gave evidence against him for the prosecution. The second ground contended that the conviction was unsafe and unsatisfactory.

The Crown’s written case conceded the first ground of appeal, accepting that the irregularity in the trial had produced a substantial miscarriage of justice. The written case contained the following statement:

In the circumstances, the respondent submits that the appropriate course is for this Court to quash the conviction and order a re-trial.

That concession having been made, the Court of Appeal Registry acted with commendable speed in drawing the matter to the attention of the bench for urgent consideration. To facilitate that occurring, Maxwell P made a determination under s 11(1A) of the Supreme Court Act 1986 that the appeal be heard by two judges. On 29 July 2015, the parties advised the Registry that they were content to have the appeal determined on the papers, without the need for an appearance.

On 31 July 2015, Maxwell P announced the decision of the Court in these terms:

Beach JA and I have considered the respective written cases. His Honour is unable to be present but, given the urgency of the disposal of the matter, has authorised me to announce our decision and…

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 Anthony Patounas v The Queen

Details

AGLC: Anthony Patounas v The Queen [2015] VSCA 369
Case: [2015] VSCA 369
Decision Date: 22 December 2015

CaseChat Overview and Summary

In the case of Anthony Patounas v The Queen, the appellant appealed against his conviction, contending that there was an irregularity in the proceedings due to his defence counsel having previously acted for a Crown witness. The appellant argued that this prior relationship prejudiced the cross-examination and resulted in a substantial miscarriage of justice. The appeal was heard in the High Court of Australia. The legal issues before the court were whether the prior relationship between the defence counsel and the Crown witness created a situation that prejudiced the cross-examination and led to a substantial miscarriage of justice, as well as whether the court was obliged to consider the second ground of appeal despite the Crown’s concession on the first ground.

The High Court considered the impact of the prior relationship between the defence counsel and the Crown witness on the fairness of the proceedings. It found that the prior relationship did indeed create a situation that prejudiced the cross-examination and resulted in a substantial miscarriage of justice. The court allowed the appeal on this ground. Additionally, the court examined the second ground of appeal, despite the Crown’s concession on the first ground. However, the court concluded that since the appellant acquiesced in the making of orders, the second ground was effectively abandoned, and the court was functus officio, meaning it was without jurisdiction to consider the second ground.

The High Court quashed the conviction and ordered a retrial. The court acknowledged that while the Crown conceded on the first ground of appeal, it was not obliged to consider the second ground due to the appellant’s acquiescence. The final orders included the quashing of the conviction and the ordering of a retrial.

Orders