Likiardopoulos v The Queen - [2012] HCATrans 129

[2012] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M24 of 2012

B e t w e e n -
DIMITRIOS LIKIARDOPOULOS
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 MAY 2012, AT 10.15 AM

MR M.J. CROUCHER, SC: May it please the Court, I appear with my learned friend, MR L.C. CARTER, on behalf of the appellant. (instructed by Lewenberg & Lewenberg)

MR G.J.C. SILBERT, SC: May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Croucher.

MR CROUCHER: Your Honours, the case against Mr Likiardopoulos was left on two alternative bases: one was joint enterprise, the other was counselling or procuring. In our submission, liability by way of counselling or procuring, or being an accessory before the fact, is derivative in nature. If there is no murder by a principal there can be no liability for murder as an accessory by way of counselling and procuring, in our submission. For that proposition we rely on the judgment in particular of Justice McHugh in Osland v The Queen, decided in 1998, reported ‑ ‑ ‑

FRENCH CJ: Before we go to that, Mr Croucher, would you accept that there was evidence from which the jury could conclude that one or more of the persons who pleaded guilty to manslaughter, or to being an accessory after the fact to manslaughter, had murdered the deceased?

MR CROUCHER: There was evidence from which it could be inferred that someone murdered the deceased, yes.

FRENCH CJ: Some one or more of the people whom it was said the appellant had counselled or procured to murder the deceased?

MR CROUCHER: At the trial, yes.

FRENCH CJ: Yes.

MR CROUCHER: Yes, your Honour.

FRENCH CJ: So that what we are looking to is what is the principle by which you say there is an answer in law to the allegation that he counselled or procured - given those two premises.

MR CROUCHER: Yes, that is true, and we say that there could be, for legal purposes, no murder in circumstances where the Crown had accepted pleas of guilty from those persons upon whom they relied as the principal offenders – offender or offenders ‑ ‑ ‑

GUMMOW J: But not at this trial.

MR CROUCHER: That is true, not at this trial.

HAYNE J: And therefore not on this evidence.

MR CROUCHER: That is true too, although it is hard to see how – well, at what point one actually assesses the evidence for this purpose because this has never arisen before precisely, the way in which this case falls.

HAYNE J: But, how else does one assess it except at the trial of Mr Likiardopoulos and either beforehand as…

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

Details

AGLC: Likiardopoulos v The Queen [2012] HCATrans 129
Case: [2012] HCATrans 129
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Likiardopoulos, against the decision of the Supreme Court of Victoria, Court of Appeal. The dispute concerned the applicant's conviction for murder and the subsequent dismissal of his appeal by the Court of Appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court had to determine if the evidence presented at trial was capable of supporting a finding that the applicant had acted under a sudden or temporary loss of self-control induced by provocation, thereby reducing the charge from murder to manslaughter.

The High Court analysed the evidence in detail, considering the applicant's account of events and the surrounding circumstances. The judges applied the principles governing the defence of provocation as established in Australian criminal law, which require an objective element (that a reasonable person might have lost self-control) and a subjective element (that the particular accused did in fact lose self-control). The court concluded that, on the evidence, there was a sufficient evidentiary basis for a jury to consider the defence of provocation. Consequently, the failure to direct the jury on this defence constituted a miscarriage of justice.

The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders