Giourtalis v R

Case [2013] NSWCCA 216


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: GIOURTALIS, Angelos v R [2013] NSWCCA 216
Hearing dates:21 February 2013
Decision date: 25 September 2013
Before: Bathurst CJ at [1]; Hidden J at [1796]; Button J at [1799]
Decision:

(1) Appeal against conviction dismissed.

(2) Grant leave to appeal against sentence but appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth pursuant to s 29D and s 7 of the Crimes Act 1914 - whether misdirection in summing up to jury - whether misdirection by the trial judge in relation to mistake, the rule in Browne v Dunn and the taxation of foreign residents.

CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth - whether error from prejudice regarding the admission of tendency and coincidence evidence.

CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth - application of proviso in s 6(1) of the Criminal Appeal Act 1912 - whether error by trial judge such as to make it inappropriate to apply s 6(1).

CRIMINAL LAW - appeal - sentencing - considerations - whether trial judge failed to take into account or give sufficient weight to delay - severity of sentence.
Legislation Cited: Bankruptcy Act 1966 (Cth), Pt X
Corporations Act 2001 (Cth), ss 232, 998
Crimes Act 1914 (Cth), s 7, s 29D
Criminal Appeal Act 1912, s 6
Criminal Procedure Act 1986, s 33
Evidence Act 1995 ss 97, 101
Income Tax Assessment Act 1997 (Cth), s 6-5
Misuse of Drugs Act 1981 (WA)
Cases Cited: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Bangaru v The Queen [2012] NSWCCA 204; (2012) 297 ALR 108
Browne v Dunn (1893) 6 R 67
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Dao v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568
DSJ v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Homsi v R [2011] NSWCCA 164
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51
Khamis v The Queen [2010] NSWCCA 179; (2010)…

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AGLC
Giourtalis v R [2013] NSWCCA 216
Case
[2013] NSWCCA 216
Decision Date

CaseChat Overview and Summary

The appeal in Giourtalis v R involved the appellant's conviction on multiple counts of defrauding and attempting to defraud the Commonwealth. The appellant contested the conviction, arguing that the trial judge had misdirected the jury in various respects, including the summing up, the rule in Browne v Dunn, and the taxation of foreign residents. The appeal also addressed the admission of tendency and coincidence evidence and the trial judge's application of the proviso in s 6(1) of the Criminal Appeal Act 1912. The appellant contended that the trial judge's errors were such that it was inappropriate to apply the proviso.

The court examined whether the trial judge's summing up contained any misdirections and if so, whether they were material enough to warrant a new trial. The court considered whether the rule in Browne v Dunn and the taxation of foreign residents were correctly applied and whether the admission of tendency and coincidence evidence was prejudicial. Additionally, the court scrutinized the trial judge's application of the proviso in s 6(1) of the Criminal Appeal Act 1912, focusing on whether the trial judge's errors warranted the dismissal of the appeal.

In its reasoning, the court found that the trial judge's summing up did contain misdirections, but these did not reach the level of materiality required to warrant a new trial. The court confirmed that the rule in Browne v Dunn and the taxation of foreign residents were correctly applied. The admission of tendency and coincidence evidence did not prejudice the appellant's case to an extent that would necessitate a new trial. The court concluded that the trial judge's errors did not undermine the proviso in s 6(1) of the Criminal Appeal Act 1912, and therefore the appeal was dismissed. The sentence imposed by the trial judge was also reviewed, but no significant errors in the consideration of delay or severity were found.

The court upheld the conviction and sentence, dismissing the appeal. No new trial was ordered, and the original sentence remained in place. The appellant's arguments regarding the trial judge's errors and the application of the proviso in s 6(1) of the Criminal Appeal Act 1912 were found to be without merit.

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