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Dailakis v The Queen

Dailakis v The Queen

Case [2018] VSCA 101 24 April 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0132

EVANGELOS DAILAKIS	Appellant
V
THE QUEEN	Respondent

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JUDGES:	KAYE, NIALL and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2018
DATE OF JUDGMENT:	24 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 101
JUDGMENT APPEALED FROM:	DPP v Dailakis (Unreported, County Court of Victoria, 17 March 2017)

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CRIMINAL LAW – Appeal – Conviction – Appellant convicted of 38 charges of theft – Prosecution alleged joint criminal enterprise involving appellant and co-accused – Judge directed jury necessary to find common verdict for Appellant and co-accused – Whether direction erroneous – Whether substantial miscarriage of justice – No substantial miscarriage of justice – Appeal dismissed – Criminal Procedure Act 2009 s 276(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr V G Peters	Allan McMonnies Barristers and Solicitors
For the Respondent	Mr C Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
NIALL JA
HARGRAVE JA:

The appellant, together with his co-accused, Timothy Brosnan (‘Brosnan’), was jointly charged on the one indictment with 38 counts of theft of moneys, totalling $1,822,783.53, from MCA Insurance Brokers (‘MCA’) between 10 August 2010 and 5 October 2011. It was alleged that the appellant and Brosnan committed the thefts pursuant to a joint criminal enterprise between them. In addition, Brosnan was also charged, on the same indictment, with four further counts of theft from MCA Insurance Brokers in the same time period, totalling an additional sum of $87,363.39.

After a trial in the County Court, the jury convicted the appellant and Brosnan on each of the charges brought against them. The judge sentenced the appellant to a total term of seven years’ and seven months’ imprisonment, with a minimum non-parole period of five years and seven months. Brosnan was sentenced to a term of eight years’ imprisonment, with a minimum non-parole period of six years.

The appellant, by leave of a single judge of this Court, appeals against his convictions on one ground, namely:

The conviction is unsafe in that the learned Judge erred in his direction to the jury that the jury could not find separate verdicts for the accused and the co accused (Timothy James Brosnan).
Particulars
Shortly after retiring to consider their verdict the jury returned and asked His Honour whether it was open to the jury to find that there was not a joint criminal enterprise and to find separate verdicts for each defendant, that is could one be acquitted and one convicted.
In response His Honour directed the jury that they had to find a common verdict for both defendants. His Honour directed that if they found one guilty they must find both guilty and if they found one not guilty they must find both not guilty.

Circumstances

In June 2008, Brosnan commenced employment with MCA Insurance Brokers as its financial controller and administration manager. At that time, Brosnan and the appellant were acquainted with each other. The appellant had a business entitled ‘Melton Chicken…

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 Dailakis v The Queen

Details

AGLC: Dailakis v The Queen [2018] VSCA 101
Case: [2018] VSCA 101
Decision Date: 24 April 2018

CaseChat Overview and Summary

Dailakis was convicted on 38 charges of theft by the County Court. The prosecution alleged that the appellant was part of a joint criminal enterprise with a co-accused. The jury was directed by the judge that if they could not reach a unanimous decision, they were to return a common verdict for both the appellant and the co-accused. The appellant appealed the conviction, arguing that the judge's direction to the jury was erroneous and that the error caused a substantial miscarriage of justice.

The court considered whether the judge's direction to the jury was correct and whether the error, if any, caused a substantial miscarriage of justice. The court found that the judge's direction was not erroneous and that there was no substantial miscarriage of justice. The court found that the jury was properly directed in relation to the requirement for unanimity and that the direction did not prejudice the appellant. The court found that the evidence supported the conviction and that there was no reasonable possibility that the outcome would have been different if the jury had not been given the direction.

The court dismissed the appeal. The court found that the conviction was safe and certain, and that there was no substantial miscarriage of justice. The court found that the appellant's argument was without merit and that the conviction should be upheld. The court noted that the appellant's conviction was based on overwhelming evidence and that the direction to the jury did not affect the safety and certainty of the conviction. The court dismissed the appeal and upheld the conviction.

Orders