Likiardopoulos v The Queen - [2012] HCATrans 67

[2012] HCATrans 067

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M71 of 2011

B e t w e e n -
DIMITRIOS LIKIARDOPOULOS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 2012, AT 11.06 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 applicant. (instructed by Lewenberg & Lewenberg)

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

HAYNE J: Yes, Mr Croucher.

MR CROUCHER: Your Honours, can we start with ground 2(c), which starts at page 288 of the application book. This is the abuse of process point. It is submitted that it is one thing to say that in general each case depends on the evidence admissible and the opinion of the jury in that case so that an accused might be not guilty of murder in his or her own trial but will be regarded as having committed the same crime in the trial of another, but we say it is entirely another and, indeed, wrong in an abuse of process for the Crown to present a case based, at least in part, on the allegation that an accused has counselled or procured another or others to commit the offence murder when counselling and procuring is a derivative form of liability, when none of the alleged principals had been convicted of murder, and indeed in this case neither murder nor manslaughter in some of the cases, it was accessory after the fact, and in circumstances where the Crown had accepted pleas of guilty to those lesser offences, either manslaughter or accessory after the fact, and, what is more, in circumstances where two of those alleged principals were called on the trial by the Crown and led through their evidence and then treated as if they were potentially principals who had committed the murder.

HAYNE J: Well, are there not two principles in play, one, the question of accepting the conclusiveness of convictions or acquittals and, second, the stark fact that the evidence available against one accused is not necessarily the same as the evidence against another?

MR CROUCHER: As to the latter, your Honour, we accept that that can be so, but it is a curious thing that in order to prove the case against the applicant based on counselling and procuring, the Crown relied on the very people from whom they have accepted pleas of guilty to manslaughter or accessory after the fact.

HAYNE J: You point to the facts, you classify them as curious, I understand that, but what is the legal principle? You say abuse of process, but if we come down beneath that statement, what is…

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.

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Details

Case: [2012] HCATrans 67
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Likiardopoulos, against a decision of the Supreme Court of Victoria. The dispute concerned the applicant's conviction for the offence of assault occasioning actual bodily harm. The applicant had sought to argue that the trial judge had erred in directing the jury regarding the issue of self-defence.

The central legal issue before the High Court was whether the trial judge's directions to the jury on the elements of self-defence, specifically concerning the requirement that the force used must not be "excessive", were adequate and properly explained. The applicant contended that the jury may have been misled into believing that any force exceeding what was strictly necessary for self-preservation would automatically constitute excessive force, thereby negating a valid defence.

The High Court, in allowing the appeal, held that the trial judge's directions on excessive force were insufficient. Their Honours explained that the concept of excessive force in self-defence does not require a precise calibration of the force used against the threat faced. Instead, the jury must consider whether the force used was more than was reasonably necessary in the circumstances as the accused perceived them. The legal principle applied was that a person is permitted to use such force as they honestly and reasonably believe to be necessary to defend themselves, even if that belief turns out to be mistaken, provided the force used is not disproportionate to the perceived threat.

The High Court quashed the conviction and ordered a new trial.

Orders