Elias Herodotou v The Queen - [2018] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0175

ELIAS HERODOTOU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2018
DATE OF JUDGMENT:	4 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 253
JUDGMENT APPEALED FROM:	DPP v Herodotou [2017] VSC 178 (Hollingworth J)

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CRIMINAL LAW – Appeal – Conviction for murder – Applicant inflicted fatal stab wound to deceased’s neck during violent altercation – Numerous other stab wounds also inflicted – Whether verdict unsafe or unsatisfactory – Whether infliction of fatal wound conscious, voluntary and deliberate act – Mens rea – Whether substantial miscarriage of justice occurred by reason of both intentional and reckless murder having been left to the jury – Whether change in prosecution case gave rise to substantial miscarriage of justice –Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Morrissey SC	Christopher James Lawyers
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
KAYE JA

WEINBERG JA:

After a trial lasting some 16 days, the applicant was convicted of the murder of Darren Webb. He now seeks leave to appeal against conviction. He relies on three proposed grounds, which are as follows:

Ground 1: the verdict was unsafe and unsatisfactory in that:
(a)The evidence could not sustain an inference that the fatal injury was inflicted by a conscious, voluntary and deliberate act.
(b)The evidence could not sustain an inference that the applicant had the relevant mens rea.

Ground 2: A substantial miscarriage of justice occurred because her Honour left intentional murder to the jury.
Ground 3: A substantial miscarriage of justice occurred because of the changes in the Crown case.

During the course of oral argument, counsel for the applicant heard the Court express some disquiet about the fact that ‘reckless murder’[1] had been left to the jury in a case such as this. In his reply, he foreshadowed an amendment to ground 2. This would have enabled him to argue that the trial had miscarried, not because the judge had left ‘intentional murder’ to the jury, as ground 2 presently asserts, but rather because the judge had left reckless murder as well as intentional murder.
[1]‘Reckless murder’ means foresight on the part of the accused of the probability of death or really serious injury. See La Fontaine v The Queen (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464.

The Court did not, at that stage, rule upon that application to amend ground 2. However, it heard argument regarding the matter and indicated that it would rule upon the question raised when it delivered its reasons for judgment.

For the reasons that follow, we would grant leave to amend ground 2, but refuse leave to appeal on that ground, and all other grounds.

Background facts

Early on the morning of Sunday 5 July 2015, a fight occurred in a hotel room at…

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.

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Details

Case: [2018] VSCA 253
Decision Date: 4 October 2018

CaseChat Overview and Summary

Elias Herodotou, the applicant, appealed against his conviction for the murder of Mr Webb. The applicant had inflicted a fatal stab wound to Mr Webb's neck during a violent altercation. The applicant had also inflicted numerous other stab wounds. The applicant was convicted of murder, and his appeal against conviction was dismissed by the Court of Appeal of the Supreme Court of South Australia. The applicant sought leave to appeal to the High Court.

The legal issues before the Court were whether the verdict was unsafe or unsatisfactory, whether the infliction of the fatal wound was a conscious, voluntary, and deliberate act, and whether the trial judge had adequately directed the jury on the issue of mens rea. The applicant argued that the trial judge had not sufficiently cautioned the jury against the risk of improperly using evidence of conduct. The applicant also contended that the prosecutor's approach to mens rea had shifted during the trial, which caused confusion and rendered much of the evidence largely irrelevant. Lastly, the applicant submitted that the prosecutor's closing address was delivered with "unusual aggression," which further exacerbated the confusion.

The Court found that the trial judge had given an appropriate direction to the jury in accordance with section 23 of the Jury Directions Act 2015. The Court held that the direction was sufficient to mitigate against the potential misuse of the evidence by the jury. The Court also found that the change in the prosecution's case did not give rise to a substantial miscarriage of justice. The Court held that the jury had been properly directed on the issue of mens rea and that the evidence led was sufficient to support the verdict. The Court further held that the prosecutor's closing address, though delivered with "unusual aggression," did not cause a substantial miscarriage of justice.

The High Court refused the application for special leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

However, after the cross-examination of the applicant had concluded, the prosecutor, having reflected overnight upon the matter, expressly disavowed any reliance on incriminating conduct as constituting an admission of guilt.[8] [8]The judge gave a direction in accordance with s 23 of the Jury Directions Act 2015. That section is in the following terms:23 Direction to avoid risk of improper use of evidence(1) If evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct, defence counsel may request under section 12 that the trial judge—(a)direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and(b) warn the jury that even if the jury thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged.The applicant submitted that the direction given by the judge was not sufficient to mitigate against the potential misuse of the evidence by the jury. That was despite the fact that no exception was taken at trial to the direction given. The applicant also submitted that the prosecutor’s approach to mens rea had changed significantly during the course of the trial. She had originally contended that the applicant had been motivated to kill Mr Webb because of a build-up of anger at the false allegations of rape levelled against him by Mr Webb. In cross-examination, however, the prosecutor did not challenge the applicant’s evidence that he only decided to grab the knife when he saw Mr Webb reach for it. Accordingly, and correctly, the jury were directed that they could not reject the applicant’s unchallenged account as to why, and how, he had come to pick up the knife. The prosecution case shifted, therefore, to one whereby the requisite mental state for murder may not have been formed until after the applicant had seized hold of the knife. This change in tack was important, according to counsel for the applicant. It meant that a good deal of the evidence that had been led had become largely irrelevant. This included evidence concerning the activities of the friendship group on the day preceding the events at the hotel. It also included evidence concerning the allegations that the applicant had previously committed rape. This entire body of evidence was said by counsel for the applicant to have depicted the applicant in a ‘horrific self-indulgent light of drug-using, partying with no consequences and no responsibility’. Lastly, in support of ground 3, though hardly identified within that ground as expressed, counsel for the applicant submitted that the confusion surrounding the prosecution case was exacerbated by the prosecutor’s closing address having been delivered with ‘unusual aggression’. In support of that last submission, it was noted that the judge had raised with the prosecutor her concerns about the tone in which the prosecutor had delivered her closing address to the jury.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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