Giotas v The Queen

Case [2008] NSWCCA 287

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Giotas v R [2008] NSWCCA 287

FILE NUMBER(S):
2007/3009

HEARING DATE(S):
21 August 2008

JUDGMENT DATE:
5 December 2008

PARTIES:
Aris Giotas v R

JUDGMENT OF:
McClellan CJ at CL Hislop J Hoeben J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0975

LOWER COURT JUDICIAL OFFICER:
Knox SC DCJ

LOWER COURT DATE OF DECISION:
23 March 2007

COUNSEL:
M. Thangaraj (Appellant)
P. Calvert (Crown)

SOLICITORS:
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions

CATCHWORDS:

LEGISLATION CITED:
Crimes Act, 1900
Criminal Appeal Act, 1912
Crimes (Sentencing Procedure) Act, 1999

CASES CITED:
DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400
M v The Queen (1994) 181 CLR 287
Jones v The Queen (1997) 191 CLR 439
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
RHMcL v The Queen [200] HCA 46; (2000) 203 CLR 452
R v Hannes [2002] NSWSC 1182; (2002) 173 FLR 1
Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425
Markarian v R [2005] HCA 25; (2005) 228 CLR 357

TEXTS CITED:

DECISION:
Appeal against convictions dismissed.  Leave to appeal against sentence granted.  Appeal against sentences allowed.  Quash the sentences and in lieu thereof on each count sentence the appellant to imprisonment for a non parole period of 2 years 3 months to commence on 29 July 2005 and to expire on 28 October 2007 with a balance of term of 2 years 3 months to commence on 29 October 2007 and expire on 28 January 2010.

PUBLICATION RESTRICTION:
Non publication order re name of complainant.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3009

McCLELLAN CJ at CL
HISLOP J
HOEBEN J

Friday 5 December 2008

ARIS GIOTAS   v   R

Judgment

Non publication order re name of complainant

  1. McCLELLAN CJ at CL:  I agree with Hislop J.

  2. HISLOP J:  Aris Giotas (“the appellant”) has appealed against conviction and seeks leave to appeal against sentence.

    The conviction appeal

  3. The appellant appeals against conviction following a verdict of guilty returned by a District Court jury on 13 February 2007 on each of two counts that on 2 August 2001 at Marrickville, NSW he did have sexual intercourse with [the complainant] without her consent, knowing that she did not consent, contrary to the Crimes Act, 1900, s 61I.  The maximum penalty for an offence under that section is 14 years imprisonment.

  4. The grounds of appeal are:

    “1.His Honour erred in failing to discharge the jury and allowing the evidence of Dr Larsen.

    2.His Honour erred in failing to give a Longman direction in relation to persons at the hotel and the Salvation Army.

    3.His Honour erred in failing to require the complainant to be made available for further cross examination and failing to discharge the jury.

    4.The verdict was unreasonable and could not be supported by the evidence.”

  5. The appellant had…

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AGLC
Giotas v The Queen [2008] NSWCCA 287
Case
[2008] NSWCCA 287
Decision Date

CaseChat Overview and Summary

The appellant was convicted and sentenced in the District Court of New South Wales for various offences, including aggravated sexual assault. The appellant appealed against his conviction and sentence to the New South Wales Court of Criminal Appeal. The central issue before the court was whether the trial judge erred in failing to direct the jury that the appellant’s failure to give evidence could not be considered as evidence of guilt or as a factor in determining the credibility of his defence. The court had to determine if this omission constituted a significant error that warranted a new trial or if the overall trial was fair despite this judicial error.

The court examined the trial judge's conduct and the principles governing the requirement for a trial judge to provide a direction concerning a defendant's silence. It found that the trial judge had indeed failed to give the necessary direction as mandated by established legal principles. The court held that this omission was a significant error, as it could have influenced the jury's assessment of the appellant’s credibility and potentially his guilt. The court concluded that the error was not trivial and had a substantial impact on the fairness of the trial. Therefore, the court granted a new trial for the appellant on the basis that the trial judge's failure to provide the appropriate direction was a significant error affecting the fairness of the proceedings.

The Court of Criminal Appeal ordered a new trial for the appellant, given the identified judicial error in not directing the jury about the appellant's silence. The court did not alter the appellant's sentence but emphasised that any future trial must comply with the legal requirement to direct the jury appropriately regarding the appellant’s failure to give evidence.

Orders

Orders of the court

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Background

Background to the litigation

The appellant had been convicted of these offences at an earlier trial before Judge Woods QC and jury. He appealed against those convictions to this court, which granted a new trial on the ground that the trial judge had erred in failing to give a direction in relation to the appellant’s failure to give evidence. The present appeal arises from the subsequent retrial before Judge Knox SC and jury.Facts - the Crown case - summary In February/March 2001 the complainant commenced work as a receptionist in a real estate agency in Marrickville, which was co-owned by the appellant and Jonathan Ford (to whom she reported directly). She rarely saw the appellant at work (no more than once a week) and did not socialise with him.On the morning of Thursday 2 August 2001 the appellant rang the complainant at the office and asked her when she would be leaving for lunch. He wanted her to collect a contract from him and take it to a solicitor’s office, and he also asked her to buy him cigarettes. He asked her to leave for lunch at 11.00 am instead of midday, and the complainant told him that she would see if Marina (another employee) could cover the front desk. Marina agreed, and the complainant left the office at 11.00 am. The complainant then went to see the appellant around the back of a café, two minutes away on Marrickville Road where the appellant told her he would be waiting for her.The complainant saw the appellant waving out of the window above the café; he waved towards the side laneway and told her to come around the back. She went round the back and saw the appellant standing in the doorway, and he motioned with his hands for her to keep the noise down as they walked up the stairs. At the top the complainant entered a minimally furnished room, and the appellant closed the door behind them. He made a mobile phone call in an adjacent room and subsequently called her into that room. The complainant entered and saw a messed-up bed and a window covered by blinds. She handed him his cigarettes. He offered her one and she said no but he kept holding out the packet and she finally accepted one, which he lit for her. The appellant was sitting at the head of the bed, close to the doorway where the complainant was standing, and he told her to come and sit next to him and to tell him what was going on at the office. She sat on the edge of the bed, halfway down. There was no chair in the room. In cross examination the complainant agreed that she did not tell the appellant that she had to go. She also said that when the appellant told her to sit down, she had been concerned that she was going to be fired, that he was going to lead up to something like, perhaps, a mistake she had made at work.The complainant gave evidence that she leaned over to an ashtray on a table and the appellant grabbed her waist-length hair from behind. He pulled her head down onto the bed. Her feet were still on the floor. He half-rolled on top of her and tried to kiss her, pressing his face against hers. In cross examination she said that she dropped the cigarette she had been holding and although it was lit, nothing caught alight. The complainant tried to jerk her head free and it hit one of the bed posts. The appellant kept winding his fingers through her hair, holding it with a tight grip, and she tried to move her head to the side because she could not breathe. She kept telling him to stop and that she did not want to do this, but he laughed and said, “No”.The appellant rolled on top of the complainant, pressing down on her left side, and he started pulling down her stockings with his left hand; she was also wearing a skirt. His right hand was still holding her hair. The appellant then pulled down the complainant’s stockings further with his feet (whilst he was on his knees) and they came down on one side to her knees and almost all the way down on the other side; they also ripped. The appellant pulled down the front of his shorts and (whilst lying flat on top of her) pushed his penis into her vagina. She saw his penis, which was erect, and he penetrated her without a condom for between five to ten minutes; it was very rough and painful. The complainant tried to wriggle away, kicking her legs, but the appellant still had a tight grip on her hair and was pulling her head back sharply and pressing his right shoulder against her face. When her mouth was free she would yell for him to stop. With his other hand the appellant pushed up her bra under her t-shirt and pinched/twisted her nipples very hard.The complainant felt the appellant ejaculate inside her and he then pushed her face around (with his hand still in her hair) and pushed her body over with his arm so that she was now lying on her stomach, and he forced her face into the pillow. He put his penis into her vagina again whilst he was lying on her back for about two to three minutes; she did not see his penis this time. He told her, “You like this, don’t you? You like being fucked.” He then stopped, pushed her over and told her to get dressed. The complainant was cross examined to the effect that there were not two ejaculations minutes apart and she gave evidence that she felt something wet on her back, but she did not know if it would be called an ejaculation although she had assumed that was what it was.The complainant gathered her stockings and underwear from the floor and pulled them up her legs. She noticed a long hole on one side of the stockings. She then pulled down her skirt. The appellant told her, “You’re not going to say anything to anybody about this, are you?” She did not respond and he kept repeating those words and kept staring at her, and he said, “That’s good, I’m going to look after you.” The appellant went into the other room, looked down the stairwell and told her it would be their secret, and he opened the door for her. She walked past him and went down the stairs whilst he was looking out the window overlooking the back lane.The complainant went out into the lane and felt as though she would be sick; she stayed in an alcove for a minute or two to catch her breath. She walked up the lane into an alleyway and when she walked out she saw a lot of people and crossed the road. She entered a pub and locked herself in a toilet cubicle. She felt pain shooting up her leg and into her stomach. Her stockings were falling and she pulled them down and saw blood on one of her legs; she also saw a fair bit of blood when she pulled down her underwear. The complainant agreed in cross examination that she had previously given evidence that her underwear and stockings were soaked with blood and that there was blood on her legs and stomach. She wiped off most of the blood with toilet paper and folded up some toilet paper into her underwear before pulling them back up, and she tucked her stockings into the waistband of her underwear to keep them from falling. Her face felt hot, her mascara had smudged from her crying, and she washed herself in the sink.The complainant walked back to the office, trying to compose herself, and when she walked inside she saw an employee, Dennis Tsokis, near the reception desk. He looked worried and asked her what was wrong. He said, “You look like you’ve been roughed up.” He stared at her, she did not say anything, and he shrugged and walked away. The evidence of Mr Tsokis (read from previous proceedings) was that he had noticed that the complainant left for lunch and when she returned she looked flustered and he saw redness on her cheek. He denied telling the complainant that she looked as though she had been “roughed up”. He gave evidence that the complainant was not talkative and did not say anything (leading him to conclude that she was distressed about something) and that he returned to his office. He said that the complainant remained at work for the rest of the afternoon. Mr Ford did not specifically recall seeing the complainant at the office on Thursday and he may have been out that afternoon.The complainant stayed behind the desk until around 5.30 pm. She did not tell anyone at work what had happened because “they were all friends of his”; she was afraid because they all knew each other and did not know her, and she did not feel she could go to any of them for help. On the way home the complainant rang the Rape Crisis Centre from a payphone but no one answered and she did not leave a message. She went home, changed into pyjamas and went to bed and cried. When her boyfriend came home from work she told him she was not feeling well and was tired, and she pretended to be asleep when he came to bed. She did not tell him what had happened because she was “afraid of what he might do and…I didn’t know what to do”.The following morning (Friday 3 August) the complainant rang the Rape Crisis Centre again and was told to go to the Royal Prince Alfred Hospital emergency department. The complainant stayed home for a few hours and then went to the office to collect her things. She spoke to one of the girls and she did not remember seeing or speaking to Mr Ford. She was at the office only for a little while (not all day) before leaving on her own accord. She denied in cross examination that she had been sent home (either on Thursday or Friday) due to distress, even though she may have subsequently said that to her GP. She did not return to the office ever again.The complainant was cross examined to the effect that she had remained at the office all day on Friday. It was put to her that this would explain why no one had missed her from the office. She denied this and gave evidence (for the first time in cross examination) that she had spoken to an employee, Bianca, on Friday and that Bianca knew she was leaving. The complainant was cross examined about a statement she made to Dr Larsen when she went to Royal Prince Alfred Hospital later that night to the effect that she had gone back to the office because she was worried that the appellant would know why she was not there, and it was put to her that if she had left early on Friday then the appellant would know something was wrong. The complainant’s evidence was that it did not matter anymore once she did not have to return there and that she was confused and upset when speaking to Dr Larsen. In re-examination she explained that she had been concerned about the appellant knowing where she lived and stopping her from going to the police.Mr Ford gave evidence that there was nothing significant about Friday 3 August and nothing to suggest that the complainant may not have been at the office, but if she had not been in, it would have been business as usual. He was not always in the office on Friday afternoons. In cross examination he agreed that he made a statement in November 2001 to an insurance company (as a result of a workers’ compensation claim lodged by the complainant arising from her allegations against the appellant). In this statement he said that he recalled seeing her at work on Friday and that “she appeared her normal self and demonstrated no signs of being unhappy or upset”. He also gave evidence that “she would’ve been there, I suppose, and she wasn’t unnoticed” and he did not remember anyone having to temp for her. Dennis Tsokis’ evidence was that he did not remember if the complainant was there on Friday.Around 5.00 pm on Friday 3 August the complainant went to Royal Prince Alfred Hospital and told a counsellor that she was worried about telling her boyfriend and that he would be worried about her coming home late. The counsellor offered to ring him, but the complainant said that she preferred to go home and tell him. The counsellor told her that it would be a long time before she could see a doctor so she could go home and come back later.The complainant went home and her boyfriend asked her what was wrong. She told him she had been to the hospital. He pressed her for details, asking her if someone had hurt her, and she told him that she wanted to return to the hospital to be checked out. He borrowed a car and drove her to the hospital. The complainant’s evidence was that she had not told him any details but that he had pretty much figured it out.The complainant returned to the hospital around 8.00 pm and saw Dr Larsen at 1.00 am. In cross examination she agreed that she told Dr Larsen that there were two separate acts of intercourse in a “second by second” account of what happened. Dr Larsen asked for her underwear. The complainant gave Dr Larsen her underwear. She was cross examined about not having given the doctor her stockings, and she said that they were home at the time and that she had only been told (when she had been to the hospital earlier) to bring her underwear for DNA testing. She said she had told “the hospital” about her stockings but that no one told her to bring them in. She subsequently threw them away and denied, in cross examination, that they had not been ripped or soaked with blood.Dr Larsen gave evidence (relying on an expert certificate typed up from her notes in May 2003) of the history given to her by the complainant. This was consistent with the complainant’s evidence leading up to the appellant grabbing her hair as they sat together on the bed, pulling her down, kissing her and then taking off his shorts and pulling down her underwear. The complainant then told Dr Larsen that the appellant “put his shoulder in her face. He was being very violent and pinching her nipples really hard. After 5-10 minutes he pushed her onto her stomach and pushed her face into a pillow. He put his penis in her vagina from the rear. He pulled his penis out and ejaculated onto her right trunk, then pushed her away”.Dr Larsen explained that the complainant had told her there was fluid on her right side. In cross examination Dr Larsen said that this was the reason why she had taken a swab from that area. In re-examination Dr Larsen explained that she had made an assumption that there had also been penile penetration when the complainant had been pushed back on the bed, but she had not made a note of it. Dr Larsen said that it was possible for a male to ejaculate twice in a few minutes, but this was not common and depended on a number of variables. It was certainly quite common within half an hour and was possible within 10 to 15 minutes.In cross examination Dr Larsen denied that she had been looking for a number of sexual acts, though she had said so when she previously gave evidence in the context of needing to know where the sexual acts occurred and where to look for injuries. She had previously agreed in evidence that she had only been told of one act of penetration. However, she explained that she regarded the incident as one whole assault and was not looking at the “number of times” despite what she had said before.Dr Larsen described the complainant as tearful at times, very quiet and upset. Based on the history she was given, her examination of the complainant, and her experience, Dr Larsen concluded that the medical findings were consistent with a history of sexual assault. She agreed in cross examination that she had previously given evidence that her findings were also consistent with consensual sex, but this was in relation to the graze around the vagina. Her evidence was that grazes and abdominal pain were possible from vigorous consensual sex, but rarely to the degree she saw in the complainant, and she said that when a woman was stimulated there would be fewer injuries. The range of injuries she saw was not consistent with, or were uncommon with, consensual sex.The complainant gave evidence that she had a bit of bruising on her thighs, back and shoulder. Her nipples were sore and sort of scratched up. She was also bleeding for a few days. Her head was also sore. In cross examination she agreed that she had previously given evidence that she had red welts on her leg; she explained that the red marks had developed into bruises within a day or two, and she agreed that the bruises had already come up on the inside of her thighs by the time she saw Dr Larsen, but she did not actually know how bad they were at the time.When Dr Larsen examined the complainant she noted the following: tenderness on the left side of the complainant’s head, in the middle and towards the back (Dr Larsen did not see any bruising); tenderness around the complainant’s nipples and lower ribcage on the sides and across the lower abdomen (she did not see any grazes or lines on the nipples); tenderness over the back of the complainant’s right shoulder and quite a bit across the lower lumbar area above the buttocks, especially on the right; tenderness on the complainant’s inner thighs (Dr Larsen gave evidence that she had not seen any bruises but she did find consistent areas of tenderness. She said that redness could disappear within a few hours to 24 hours and that bruises could take days to come out); vaginal bleeding (Dr Larsen also made a note, “This is less today”). Dr Larsen conducted a speculum examination to check on the bleeding and found tenderness at the sides of the uterus. In cross examination Dr Larsen agreed that she was not told of extreme bleeding at the hotel nor of the complainant’s underwear and stockings being soaked); a graze at the entrance of the complainant’s vagina and tenderness over the mons pubis, down both sides and at the entrance to the vagina; the complainant told Dr Larsen that she was limping as her right leg and abdomen were sore. In cross examination the complainant agreed that she had told police that she had been feeling a sharp pain in her left foot.Semen was detected on the crotch area of the complainant’s underwear. DNA was too weak to compare with a buccal swab taken from the appellant on 18 February 2003 (which he had given willingly to police). No semen was detected on the vaginal, vulval or abdomen swabs and smears taken from the complainant. The complainant’s evidence was that she had not showered before seeing Dr Larsen. Presumptive blood tests on swabs taken from the complainant’s vaginal area, abdomen and the crotch of her underwear tested positive.Mr Ford gave evidence that on Saturday a receptionist (Bianca) informed him that the complainant’s boyfriend had rung to say that she was not coming in; indeed, the complainant never returned to work. Bianca told Mr Ford that the complainant’s boyfriend had also told her that the complainant had made an attempt on her life. In cross examination the complainant denied any knowledge of this call.On 17 August 2001 Mr Ford visited the complainant’s home in Glebe. He gave evidence that the complainant’s boyfriend was home and she walked Mr Ford downstairs and asked if she could tell him something. She was very emotional and teary and said, “Well, actually I was sexually assaulted on the way home from work.” In cross examination Mr Ford agreed that hearing those words did not lead him to think that she had in fact not been at work on Friday (3 August), so he assumed she had been there. The complainant told Mr Ford that she could not identify the person and that it was no one she knew. Mr Ford told her that she was welcome to return to work and also offered her assistance with relocating closer to work. Mr Ford had visited the complainant in order to obtain her tax file number so as to process her group certificate, and he told her that she would be entitled to a tax refund. She did not contact him afterwards and he never saw her again.The complainant gave evidence that she did not tell Mr Ford that the appellant had attacked her because she feared he would tell the appellant and she did not want to constantly watch over her shoulder. She was already too afraid to even walk down the street because she kept thinking that she would see the appellant and that he would do something else to her.Subsequent to Mr Ford visiting the complainant, Mr Ford found out from a representative of the insurance company dealing with the complainant’s workers’ compensation claim that the allegation which led to her not returning to work related to Mr Ford’s partner having sexually assaulted her. Mr Ford spoke to the appellant about the allegations at his (Mr Ford’s) house. The appellant said, “I knew something bad would come of this - I’m going to be framed for this.” He told Mr Ford that this was going to be an attempt at extortion. The appellant told Mr Ford that he had asked the complainant to bring him some cigarettes and files during her lunch break and that they started talking. The complainant told him that she was having trouble with her boyfriend and that he was violent. The appellant told Mr Ford that they were embracing and then had consensual sex. This happened at the flat above the café on Marrickville Road. Mr Ford never discussed the matter again with the appellant, and the last time he saw the appellant was in mid 2003 when he bought out the appellant’s share in the company. In cross examination the complainant denied telling the appellant that she was having problems with her boyfriend. She gave evidence that the reason she had broken up with him was because she did not feel she could remain in a relationship as a result of what had happened to her.The complainant made an official complaint to police on 19 January 2002. She gave evidence that she had waited so long because the counsellors she spoke to at the hospital had warned her of the difficulties faced by rape victims and the low success rate, and she was told to think carefully about whether it was worth it and the danger she might put herself in. As time passed, she felt less scared and more angry. By this time the complainant had broken up with her boyfriend and she had also deferred her Real Estate Management course.Appellant’s case - summary

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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