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Goussis v The Queen

Goussis v The Queen

Case [2011] VSCA 117 20 April 2011

Murder

Causation

Admissibility of Evidence

Sentencing

Parity

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

EVANGELOS GOUSSIS	S APCR 2009 0528
	Applicant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, REDLICH and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 February 2011
DATE OF JUDGMENT	20 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 117
JUDGMENT APPEALED FROM	[2009] VSC 16 (King J)

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CRIMINAL LAW – Murder and intentionally causing serious injury – Trial judge in her charge introduced an inference from the evidence not advanced by the Crown or defence – Inference inherent in the evidence – No unfairness to accused – Corroboration – Evidence more consistent with guilt than innocence – Recording of conversation taken by a listening device – Recording unclear – Whether particular words could be deciphered was a matter for the jury – Fresh material which might have been used in cross-examination of the principal Crown witness – No significant possibility that the jury would have acquitted the accused if the material had been used.

CRIMINAL LAW – Sentence – Murder – Parity – Disparity due to assistance given to authorities by co-offender.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr S A Shirrefs SC with Ms R Shann	Mr S Andrianakis & Associates
For the Respondent	Mr J D McArdle QC with Dr S B McNicol	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

After a trial in the Supreme Court, the applicant was found guilty on a count of murder and a count of intentionally causing serious injury. He was acquitted on a count of attempted murder. The applicant was sentenced to life imprisonment. A minimum term of 30 years was fixed before the applicant was to be eligible for parole.

The applicant seeks leave to appeal against his conviction and sentence.

The Crown case was that Carl Williams and Tony Mokbel engaged XP to kill Lewis Moran, a gangland rival of Williams and Mokbel. The agreed price was $150,000.

XP enlisted Noel Faure and the applicant. On 31 March 2004, the applicant Noel Faure and XP drove from Geelong to Melbourne, equipped with three firearms and two balaclavas.

Lewis Moran was in the habit of attending the Brunswick Club, a licensed gambling institution, where he occupied the same position on the first floor. The applicant and XP had previously attended at the Club and knew of Moran’s habits. The plan was that the applicant would shoot Moran, while Noel Faure would stand at the entrance to the Club to cover his back. XP was to drive the getaway vehicle.

At about 6.30 pm, the applicant, XP and Noel Faure looked through the windows at the front of the Brunswick Club and saw Moran in his customary position. XP waited in the car in a laneway at the rear of the Club while the applicant and Noel Faure, wearing coats to conceal two pistols and a shotgun, walked around to the front of the Club. As they neared the club, they pulled balaclavas down to cover their faces. The applicant…

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 Goussis v The Queen

Details

AGLC: Goussis v The Queen [2011] VSCA 117
Case: [2011] VSCA 117
Decision Date: 20 April 2011

CaseChat Overview and Summary

The case of Goussis v The Queen was heard in a court where the appellant faced charges of murder and intentionally causing serious injury. The accused contested the conviction and the sentence imposed upon him. The central issue before the court was whether the trial judge had improperly introduced an inference from the evidence that was neither suggested by the Crown nor the defence. Additionally, the court had to consider whether the evidence was more consistent with the guilt of the accused than his innocence, particularly in light of the corroborative nature of the evidence presented.

The court examined whether the trial judge's introduction of the inference was fair, and whether it was inherent in the evidence presented. The court found that the inference was indeed inherent in the evidence and did not unfairly prejudice the accused. Furthermore, the court held that the evidence was more consistent with the accused's guilt than his innocence. Regarding the recording of a conversation obtained via a listening device, the court determined that the clarity of the recording and the deciphering of specific words were matters for the jury to decide. The court also concluded that the fresh material, which could have been used in the cross-examination of the principal Crown witness, did not present a significant possibility that the jury would have acquitted the accused if it had been used.

The court affirmed the conviction and considered the sentencing issue, noting that any disparity in sentence due to the assistance given by a co-offender to the authorities did not constitute a significant error. Ultimately, the appeal was dismissed, and the original conviction and sentence were upheld.

Orders