Halamboulis v The Queen; Director of Public Prosecutions v Halamboulis
[2011] VSCA 449
•22 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0065 | |
| STEVEN HALAMBOULIS | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2010 0098 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| STEVEN HALAMBOULIS | Respondent |
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JUDGES: | BUCHANAN JA and COGHLAN and ALMOND AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 May 2011 | |
DATE OF JUDGMENT: | 22 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 449 | |
JUDGMENT APPEALED FROM: | R v Halamboulis (County Court of Victoria, Judge Wilmoth, 12 March 2010) | |
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CRIMINAL LAW – Rape – Convictions unsafe and unsatisfactory – Trial judge misdirected jury as to accused’s belief as to consent of complainant – Substantial miscarriage of justice not established.
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| APPEARANCES: | Counsel | Solicitors | |
| For the Applicant/Respondent | Mr O P Holdenson QC | Galbally Rolfe | |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions | |
BUCHANAN JA
COGHLAN AJA
ALMOND AJA:
After a trial in the County Court, the applicant was convicted on four counts of rape. A plea was conducted and a total effective sentence of 10 years’ imprisonment was imposed and a period of 6 years was fixed before the applicant was to be eligible for parole.
The applicant seeks leave to appeal against conviction. The Director of Public Prosecutions has appealed against the sentence.
The Crown case was that the applicant raped a young woman in the early hours of 24 February 2007 in the swimming pool of a motel in Lakes Entrance (counts 1 and 2) and in a room in the motel (counts 5 and 6).
The evidence was somewhat confused. The Crown witnesses to the events said to constitute the offences were all affected by alcohol. The complainant was affected by her consumption of amphetamine and alcohol.
The complainant drank with friends at a hotel in Lakes Entrance during the evening of 23 February 2007. She met a man called Sammy, who told her that her friends wanted him to sell them some speed and he asked her to accompany him to his motel to get it. The complainant agreed to go with him and they went to a motel unit beside a swimming pool.
At the motel Sammy gave the complainant an open can of bourbon and coke. She accepted the drink and accompanied Sammy to the swimming pool. She said that she was feeling dizzy, as if she had lost control of her body. She saw that Sammy had taken off his clothes and he asked her to do so as well.
The complainant wanted to return to her friends, but said that she felt as if she was not in control and she undressed to her brassiere and underpants and got in the shallow end of the pool.
A man the complainant had seen lying, apparently asleep, on a bed in the unit to which Sammy had taken her, came into the pool area. Other men began to emerge from units in the motel. The complainant said that she became very fearful. She thought that the man from the motel unit pulled her underpants off. She moved to the other side of the shallow end of the pool. She said that four or five naked men walked into the pool. They had been wearing jeans and black jackets with patches on the back. She felt very afraid and incapable of doing anything. She moved away from them.
A blonde man, said by the prosecutor to be the applicant, jumped naked into the pool. The complainant was grabbed from behind by another man, who raised her arms above her head. The blonde man came to the front of the complainant and pressed up against her.
The complainant said that the man behind her penetrated her anus with his penis (count 1). The Crown case was that the applicant aided and abetted the man who anally raped the complainant. The blonde man in front of her penetrated her vagina with his penis (count 2). In her evidence, the complainant recounted digital penetrations that took place committed by other men who had walked into the pool.
Another witness to the events in the swimming pool was Rebecca Porter, a friend of the complainant.
Ms Porter said that she met the applicant at a hotel in Lakes Entrance on the night of 23 February 2007. In the early hours of the next morning she accompanied the applicant to the motel. She said that she was very drunk. At the applicant’s invitation, Ms Porter sat with him at the edge of the swimming pool, talking. Ms Porter said that she saw the complainant in the pool with two other males. She said:
[The complainant] was in the pool and the guys were like all over her, not kissing her, but like you know touching her.
Ms Porter said that the applicant entered the swimming pool naked. She said that she did not see the applicant touch the complainant, although he was near her. Ms Porter said that the two men in the swimming pool with the complainant were both behind her and one of them was holding her arms.
Counts 5 and 6 related to the rapes which were said to have occurred in the motel room.
The complainant said that a man approached her from the side of the pool and she asked for his towel. The man threw the towel in to the pool and got into the pool with the complainant. He said that he was really sorry. He said he would take her inside to get dressed. The complainant, who said that she felt drunk and out of control, went with the man to his unit. The man grabbed the complainant in the bathroom and threw her onto the bed. He ripped off her underpants and told her to get on her hands and knees. He inserted his penis into her anus and her vagina.
Friends of the complainant came to the motel and, after getting dressed, the complainant left with them and reported the matter to the police.
The applicant was staying at the motel. He was friends with a group of men also staying at the motel, who were members of the Black Uhlans, a motor cycle club. When the applicant was interviewed by the police he said that he was in the pool, but denied that he was naked and denied that the complainant was in the pool at that time. The applicant said that the complainant came to his motel room and made sexual advances towards him, following which he had consensual intercourse with her. He denied having anal intercourse with the complainant.
The verdicts of guilty on counts 1 and 2 were attacked as being unreasonable and not supported by the evidence.
The only issue was the identity of the man who vaginally raped the complainant and held her while she was anally raped from behind. There were gaps and inconsistencies in the evidence led by the Crown. The complainant said that the man who raped her from the front had a tattoo on his inner arm. At trial she was shown a photograph of the applicant’s tattoo and said that she did not recognise it. It appears most of the men present in the swimming pool had tattoos. The complainant said that the man who raped her from the front was blonde. The applicant had brown hair. A police officer gave evidence that the complainant said in a statement that the man who gave her the towel was bald, had a smooth head and a tattoo between his shoulder blades. The applicant was not bald, did not have a smooth head and did not have a tattoo between his shoulder blades. Crucially, the complainant did not give evidence that the man who raped her in the motel room was the man who raped her in the swimming pool.
There were other reasons to doubt the evidence of the complainant. She admitted that she was intoxicated as a result of drinking alcohol and, although she denied taking any drugs that night, a toxicologist gave evidence that he detected methylamphetamine in blood and urine samples taken from the complainant. One Thomas Culpitt gave evidence that he had consensual intercourse with the complainant earlier in the evening in a car park at a McDonald’s restaurant, but the complainant did not recall the event.
In our opinion, in the light of all the evidence given at the trial, it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the man who vaginally raped the complainant in the swimming pool was the applicant. The inconsistencies in the complainant’s version of events, the barrier to clear recollection posed by her consumption of alcohol and drugs and the discrepancies between her evidence and that of Ms Porter, in our view, constituted solid obstacles to reaching the conclusion beyond reasonable doubt that the applicant was the man in front of the complainant in the swimming pool.[1]
[1]See R v Klamo [2008] VSCA 75, [38]-[40].
Counsel for the respondent conceded that the trial judge’s directions to the jury with respect to the applicant’s belief in the consent of the complainant to the intercourse the subject matter of counts 5 and 6 were erroneous.
The trial judge instructed the jury that, even if they did find that the applicant believed the complainant was consenting, they might still be satisfied that he was aware of the possibility that the complainant was not consenting, and in that event the prosecution had proved beyond reasonable doubt that at the time of sexual penetration the accused was either aware that the complainant was not consenting or aware that she might not be consenting. In doing so, her Honour erred. If the jury concluded that the applicant believed that the complainant was consenting to intercourse, the Crown necessarily failed to establish the element that the accused was either aware that the complainant was not consenting or aware that she might not be consenting.[2]
[2]Worsnop v R [2010] VSCA 188; Gordon v R [2010] VSCA 207.
The question becomes whether the applicant has established that, as a result of the error, there has been a substantial miscarriage of justice.[3] The error identified by the applicant may well have resulted in a miscarriage of justice if the applicant’s belief in consent had been a live issue at trial. It was not. The dispute between the parties was confined to whether the prosecution had established that the complainant did not consent.
[3]See s 276(1)(b) of the Criminal Procedure Act 2009.
On the one hand there was the evidence of the complainant that as she was trying to get dressed, the applicant grabbed her from behind, dragged her into the bedroom and threw her on to the bed. She said that he made her get on her knees, held her by the neck and raped her anally and vaginally. On the other hand, there was the applicant’s account in his record of interview that the sexual intercourse was initiated by the complainant, who entered his room dressed in a brassiere with no underpants on, ‘grabbed my genitals … and started giving me oral sex …‘. If the jury were satisfied that the complainant did not consent, there was no room for doubt as to the applicant’s belief in consent.
For the foregoing reasons we are of the opinion that the convictions on counts 1 and 2 should be set aside and verdicts of acquittal entered but that the convictions on counts 5 and 6 should stand. As a consequence, the applicant is to be re-sentenced. It is not necessary to determine the Director’s appeal.
The applicant is 45 years’ old. He was born in Greece and came to Australia at the age of five years. He left school after Form 1 or 2 and commenced an apprenticeship as a mechanic. He worked as a truck driver and established a tow truck business and then a business buying and selling shipping containers. The applicant is married and has three teenage daughters.
The applicant’s only previous convictions were for minor offences connected with hunting, in respect of which a small fine was imposed.
In May 2007 the applicant was involved in a motor cycle accident and sustained serious injuries. The applicant suffered a left frontal subdural haemorrhage and a number of cranial fractures, a fractured arm and an injury to his ankle. The applicant’s recovery was complicated by an episode of Bell’s palsy. The applicant has reduced vision in one eye and ongoing problems with his ankle, an un-united fracture requiring surgical fusion, which had not been performed when he was sentenced. The applicant is in pain and can walk only with the aid of a walking stick.
A number of reports were tendered in the course of the plea. There were reports from a psychiatrist, two neuropsychologists, two orthopaedic surgeons and a psychologist. One of the neuropsychologists and the psychologist gave evidence before the sentencing judge.
The offences themselves were indeed serious. The victim was vulnerable and the surrounding circumstances must have rendered her ordeal very frightening. General deterrence and denunciation are important sentencing considerations. On the other hand, the applicant’s record and work history and the support of his family are to be taken into account. His acquired brain injury is also relevant. We concur in the sentencing judge’s observations in this regard. Her Honour said:
[B]ecause of your injuries you are a different person from the man who committed these offences and some regard should be had to the impact upon you of a long sentence because of that change in your intellectual and psychological functioning.
We would re-sentence the applicant to be imprisoned for a term of 5 years on each count. One year of the sentence on count 6 is to be served cumulatively upon the sentence on count 5, creating a total effective sentence of 6 years’ imprisonment. We would fix a period of 4 years’ imprisonment before the applicant is to be eligible for parole.
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