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".
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.
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.
The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow…
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 Likiardopoulos v The Queen
Sign in free to access the full text
Details
AGLC
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
HEYDON J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ,
HEYDON J