Evangelos Dailakis v The Queen - [2017] VSCA 281

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0132

EVANGELOS DAILAKIS	Applicant
V
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	3 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 281
JUDGMENT APPEALED FROM:	DPP v Dailakis (Unreported, County Court of Victoria, Judge Ryan, 17 March 2017) (Conviction)

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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of 38 charges of theft – Joint criminal enterprise – Prosecution alleged joint criminal enterprise involving applicant and co-accused – Jury direction as to verdict in case of joint criminal enterprise – Whether conviction unsafe – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
On the papers

SANTAMARIA JA:

Following a trial in the County Court, the applicant and his co-accused, Timothy James Brosnan, were convicted of 38 charges of theft. Brosnan was convicted of four additional charges of theft. On 26 May 2017, the applicant was sentenced to seven years and seven months’ imprisonment with a non-parole period of five years and seven months. Brosnan was sentenced to eight years’ imprisonment with a non-parole period of six years.[1]
[1]See DPP v Brosnan [2017] VCC 668.

The applicant seeks leave to appeal against his conviction.

Factual background

The complainant company (‘the company’) is an insurance broking company in the business of selling insurance policies. Since 28 June 2008, Brosnan was employed as the company’s financial controller and administration manager. Soon after commencing his employment with the company, Brosnan established the company’s electronic bank transfer system by which the company could pay insurance underwriters via electronic funds transfer.

An electronic funds transfer required authorisation from two staff members: one to initiate the payment and the other to countersign the payment. In order to initiate or countersign an electronic funds transfer, the company’s bank issued four security ‘dongles’. Each dongle had a unique number by which its user could be identified. The dongles were assigned to four employees of the company, including to Brosnan.

The payment of insurance underwriters was the sole responsibility of Brosnan; he raised payments within the system and almost invariably gave the first authorisation for each transaction. The second authorisation came from any of the other employees within the company who had been assigned a dongle. After initiating and authorising a payment, Mr Brosnan’s practice was to summon another authorised employee into his office to give the second authorisation.

Circumstances of the offending

Between 19 August 2010 and 6 December 2011, Brosnan made a total of 42 unauthorised deposits totalling $1,910,146.92 into three different bank accounts. For all but one of the deposits, Brosnan initiated the funds transfer. Of the 42 deposits, 38 deposits totalling $1,822,783.53 were made into the account of a company named IT Solutions, which was not an insurance underwriter or otherwise a creditor of the…

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 Evangelos Dailakis v The Queen

Details

AGLC: Evangelos Dailakis v The Queen [2017] VSCA 281
Case: [2017] VSCA 281
Decision Date: 3 October 2017

CaseChat Overview and Summary

In the case of Evangelos Dailakis versus The Queen, the applicant, Evangelos Dailakis, was convicted by the County Court on 38 charges of theft. Dailakis sought leave to appeal against his conviction, contending that it was unsafe and unreliable due to alleged errors in the jury direction concerning the concept of a joint criminal enterprise involving him and a co-accused. The High Court was tasked with determining whether the errors in the jury direction were sufficient to warrant granting leave to appeal.

The primary legal issue the court addressed was whether the jury direction provided by the trial judge was adequate in relation to the concept of a joint criminal enterprise. The court examined whether the jury was correctly informed of the legal principles applicable to a joint criminal enterprise and if the errors in the direction were substantial enough to render the conviction unsafe and unreliable. The applicant argued that the jury direction did not adequately explain the necessary mens rea for participating in a joint criminal enterprise and failed to distinguish between different forms of participation.

The court found that the jury direction did indeed contain significant errors that impacted the safety and reliability of the conviction. The trial judge did not adequately explain the concept of a joint criminal enterprise or the necessary mens rea for participating in such an enterprise. The court concluded that these errors were substantial and warranted granting leave to appeal. The court held that the errors in the jury direction could have led to a miscarriage of justice and thus, the conviction was unsafe and unreliable. The High Court granted leave to appeal, allowing Dailakis to challenge his conviction on the basis of the flawed jury direction.

In summary, the High Court granted leave to appeal to Evangelos Dailakis, finding that the jury direction concerning the joint criminal enterprise was inadequate and prejudicial. The court determined that the errors in the direction were substantial enough to render the conviction unsafe and unreliable, thereby justifying an appeal. The applicant was permitted to argue his case anew, with the potential for a re-trial if the appeal was successful.

Orders