Likiardopoulos v The Queen

Case [2012] HCA 37


HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

DIMITRIOS LIKIARDOPOULOS  APPELLANT

AND

THE QUEEN  RESPONDENT

Likiardopoulos v The Queen

[2012] HCA 37

14 September 2012

M24/2012

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

M J Croucher SC with L C Carter on behalf of the appellant (instructed by Lewenberg & Lewenberg)

G J C Silbert SC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Likiardopoulos v The Queen

Criminal law – Murder – Accessorial liability – Appellant convicted of murder – Crown accepted guilty pleas from five other participants to lesser offences – Trial judge left to jury Crown case based on accessorial liability – Whether appellant could be convicted as accessory to murder when Crown had accepted pleas from all other participants to lesser charges – Whether trial judge should have left accessorial case to jury – Whether Crown could lead evidence that other participants murdered the deceased – Whether inconsistency between convictions of other participants and accused – Whether exercise of prosecutorial discretion an abuse of process.

Words and phrases – "abuse of process", "accessory", "aiding and abetting", "counselling or procuring", "principal", "prosecutorial discretion".

Crimes Act 1958 (Vic), s 323.

  1. FRENCH CJ.   I agree with the order proposed in the joint judgment and, subject to one reservation, with the reasons which their Honours give for that order.  That reservation relates to an observation in the joint judgment concerning the reviewability of prosecutorial discretions.

  2. The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations.  One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process[1].  A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings[2].  A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions.  Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits.  Moreover, as their Honours point out, trial judges have available to them sanctions to enforce well-established standards of prosecutorial fairness and to prevent abuses of process.

  3. The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow…

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Likiardopoulos v The Queen [2012] HCA 37
Case
[2012] HCA 37
Decision Date

CaseChat Overview and Summary

The appellant, Likiardopoulos, was convicted of murder. The Crown had accepted guilty pleas from five other individuals involved in the incident to lesser offences. The trial judge had permitted the Crown to proceed with a case against the appellant based on accessorial liability for murder. The appeal concerned whether the appellant could be convicted as an accessory to murder when all other participants had pleaded guilty to lesser charges, and whether the trial judge erred in leaving the accessorial case to the jury. Further issues included whether the Crown could lead evidence that the other participants murdered the deceased, the potential inconsistency between the convictions of the other participants and the appellant, and whether the exercise of prosecutorial discretion constituted an abuse of process.

The High Court of Australia was required to determine whether the appellant's conviction for murder, based on accessorial liability, was legally sound given the Crown's acceptance of lesser pleas from the other participants. Specifically, the Court considered whether the trial judge was correct to allow the jury to consider the accessorial liability of the appellant for murder, even though the principal offenders had been dealt with on lesser charges. The Court also had to assess whether the Crown's conduct in accepting the lesser pleas and then pursuing an accessorial liability case against the appellant amounted to an abuse of process.

The High Court dismissed the appeal. The Court held that the Crown was not precluded from presenting a case of accessorial liability for murder against the appellant, notwithstanding the lesser pleas entered by the other participants. The acceptance of pleas to lesser offences by some participants does not necessarily prevent the prosecution from proving that the offence of murder was committed and that the appellant was an accessory to it. The Court found no abuse of process in the Crown's conduct, as prosecutorial discretion in such matters is broad and the circumstances did not demonstrate unfairness or prejudice to the appellant that would warrant intervention. The legal principles applied centred on the nature of accessorial liability and the scope of prosecutorial discretion in criminal proceedings.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ HEYDON J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ, HEYDON J

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