JUDGES:	ASHLEY, WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 June 2015
DATE OF JUDGMENT:	2 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 177	1^st Revision: 2 July 2015, footnote 1.
JUDGMENT APPEALED FROM:	R v Constantinou [2013] VSC (Priest JA)

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CRIMINAL LAW – Conviction – Murder – Crown alleged appellant intentionally strangled victim to death – Defence case that victim had died by accident as a result of erotic asphyxiation – Prior representations made by appellant to his daughter somewhat consistent with defence case as ultimately presented – Trial judge queried counsel as to how such evidence was admissible – Counsel identified no basis for admissibility – Arguable that prosecutor subsequently cross-examined appellant and addressed jury on basis that erotic asphyxiation claim was product of recent fabrication – Whether substantial miscarriage of justice in circumstances where evidence of prior consistent statements not admitted – Evidence in fact admissible under s 66 and may also have been admissible under s 108(3) of Evidence Act 2008 – No application by counsel to adduce the evidence in re-examination – Decision not to adduce evidence product of legitimate forensic choice – No substantial miscarriage of justice – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	C Marshall & Associates
For the Crown	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA
WEINBERG JA
SANTAMARIA JA:

On 16 August 2013, a jury in the Supreme Court sitting at Melbourne found Steve Constantinou guilty of the murder of Johanna Martin (‘JM’ or ‘the deceased’) on 11 October 2011. He was convicted, and on 23 October 2013 he was sentenced to 24 years’ imprisonment with a non-parole period of 20 years’ imprisonment.

Grounds of appeal

On 28 April 2015, Weinberg and Santamaria JJA determined, on application by Constantinou (‘the appellant’), pursuant to s 315(2) of the Criminal Procedure Act 2009 (‘the CP Act’), that the appellant have leave to appeal on the following grounds:

2.The trial judge erred in excluding evidence of the appellant’s previous consistent statements.
5.The trial of the appellant miscarried as the Crown —
(a)cross–examined the appellant as to his prior inconsistent statements;
(b)went to the jury on the basis that the appellant’s evidence was a product of recent invention in circumstances where earlier prior consistent statements of the appellant were not admitted into evidence.

Unsatisfactory aspects of the appeal

The determination made by Weinberg and Santamaria JJA followed upon the refusal by Ashley JA, exercising the power conferred by s 315(1) of the CP Act, to grant the appellant leave to appeal against conviction.

We mention this sequence of events for the following reasons.

Ashley JA refused leave to appeal on an application which relied upon five grounds. But when the matter came on before Weinberg and Santamaria JJA, the appellant abandoned his reliance upon four of…

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 Constantinou v The Queen

Details

AGLC: Steve Constantinou v The Queen [2015] VSCA 177
Case: [2015] VSCA 177
Decision Date: 2 July 2015

CaseChat Overview and Summary

The appellant, Mr Constantinou, appealed against his conviction of murder. The Crown alleged that the appellant intentionally strangled the victim to death. The defence argued that the victim had died accidentally as a result of erotic asphyxiation. The High Court of Australia was tasked with determining whether there was a substantial miscarriage of justice in the trial court proceedings.

The central legal issue was whether the appellant's prior representations to his daughter were admissible under the Evidence Act 2008 and, if so, whether their exclusion resulted in a substantial miscarriage of justice. The appellant's counsel did not argue for the admissibility of the evidence, and the trial judge did not seek to admit it. The court considered whether the prosecutor's cross-examination and jury address implied that the defence of accidental death was a recent fabrication, which could have prejudiced the jury. The appellant's counsel did not seek to introduce the evidence during re-examination, and the decision not to do so was a legitimate strategic choice.

The High Court found that the evidence of the prior representations was admissible under section 66 of the Evidence Act 2008, and may also have been admissible under section 108(3). However, the appellant's counsel's decision not to present this evidence was a legitimate strategic choice, and no substantial miscarriage of justice occurred. The Court held that the trial judge's decision not to admit the evidence was not an error, and the appeal was dismissed. The Court found that the trial was conducted fairly and that the exclusion of the evidence did not result in a substantial miscarriage of justice.

Orders