Kostikidis v The Queen - [1996] HCATrans 397

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M67 of 1996

B e t w e e n -
STAN KOSTIKIDIS
Applicant
and
THE QUEEN

Respondent

Office of the Registry
Melbourne No M68 of 1996

B e t w e e n -
PETER MPEHELEVANAS
Applicant
and
THE QUEEN

Respondent

Applications for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 1996, AT 12.37 PM

_________________________

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with my learned friend, MR N. PANE, for both applicants. (instructed by Vadarlis Tasiopoulos & Co)

MR J.D. McARDLE: May it please the Court, I appear with MS C.M. QUIN, on behalf of the respondent in both of these matters. (instructed by Mr P. Wood, Solicitor for Public Prosecutions)

GAUDRON J: Yes, Mr Bongiorno.

MR BONGIORNO: If the Court pleases, I must commence by seeking the Court’s leave to file over a summary of argument which was delivered to the Court yesterday and given to my learned friend yesterday. The reason for the application is that the original argument which had been filed did not comply with Order 69A. The argument it is now sought to advance does not change in essence the argument that was originally foreshadowed. Indeed, it in one respect shortens it because one of the bases upon which special leave was being sought has now been abandoned.

GAUDRON J: Yes, thank you.

MR BONGIORNO: I seek that leave from the Court under Order 69A rule 8(5).

GAUDRON J: Yes, you will have that leave, Mr Bongiorno.

MR BONGIORNO: If the Court pleases. This matter arises out of a sentence imposed in the County Court, reviewed in the Court of Appeal and a sentence of a suspended sentence being substituted with a sentence of immediate imprisonment.

The circumstances in which it occurred were that the accused prisoners had been convicted after a trial on two counts of obtaining financial advantage by deception; had pleaded guilty to two counts of the same offence, and after a plea at which, of course, both the accused and the Crown were represented, the trial judge sentenced them to a suspended gaol sentence, or gaoled them and suspended the sentence, I think is the appropriate description here in Victoria.

The Director of Public Prosecutions appealed under the Crown appeal provisions in the Crimes Act and the matter came before the Court of Appeal as a Crown appeal. The Court of Appeal, by unanimous judgment, held that the sentence imposed by the trial judge was manifestly inadequate and substituted a sentence of immediate imprisonment; in fact, one of 18 months with a minimum of nine.

GAUDRON J: It is not suggested that that sentence is outside the range?

MR BONGIORNO: It is not, your Honour.

GAUDRON J: And it follows almost automatically from that, does it not, that the suspended sentences were…

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 Kostikidis v The Queen

Details

AGLC: Kostikidis v The Queen [1996] HCATrans 397
Case: [1996] HCATrans 397
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Kostikidis, against his conviction for armed robbery. The applicant had been found guilty by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The central dispute concerned the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge erred in admitting evidence of the applicant's prior convictions and whether the summing up to the jury was adequate, particularly in relation to the issue of identification evidence. A further issue was whether the cumulative effect of any errors rendered the trial unfair.

The Court held that the admission of evidence of prior convictions was prejudicial and should not have been admitted, as it did not fall within any of the exceptions to the general rule against admitting such evidence. Furthermore, the summing up failed to adequately direct the jury on the dangers of relying on identification evidence, especially given the circumstances of the identification in this case. The cumulative effect of these errors meant that the applicant had not received a fair trial.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders