Makrynikos v The Queen

Case [2006] NSWCCA 170

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Makrynikos v Regina [2006]  NSWCCA 170

FILE NUMBER(S):
2005/972 CCAP

HEARING DATE(S):               26 September 2005

DECISION DATE:     30/05/2006

PARTIES:
Applicant - Zafririos Makrynikos
Respondent - Regina

JUDGMENT OF:       McClellan CJ at CL Hislop J Rothman J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/11/1052

LOWER COURT JUDICIAL OFFICER:     Finnane DCJ

COUNSEL:
Applicant - Mr P. Byrne SC with Ms G. Bashir
Respondent - Mr J. Bennett SC

SOLICITORS:
Applicant - Murphy's Lawyers Inc.
Respondent - Director of Public Prosecutions (New South Wales)

CATCHWORDS:
Criminal law
Duress
Trial Judge's directions
Sentence

LEGISLATION CITED:
Crimes Act 1900 ss - 112(1), 346
Crimes (Sentencing Procedure) Act 1999 - s 21A

DECISION:
1. Appeal as to conviction dismissed
2. Leave to appeal on sentence granted
3. Appeal on sentence upheld
4. Sentence quashed. In lieu thereof the appellant is sentenced to imprisonment for 7 years commencing on 3 September 2004 and expiring on 2 September 2011 with a non-parole period of 4 years and 6 months commencing on 3 September 2004 and expiring on 2 March 2009.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

2005/972 CCAP

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J

30 May 2006

Zafririos MAKRYNIKOS v Regina

Judgment

  1. McCLELLAN CJ at CL: I agree with Hislop J.

  2. HISLOP J:  On the 26 May 2002 Simon Raha, with others, broke and entered the Australian Government Analytical Laboratories (‘AGAL’) and stole a safe and other items. The safe was a cube of concrete reinforced with steel with a weight estimated at approximately 450 kg. It contained drugs including heroin, cocaine, amphetamines and steroids with a value in excess of $2,000,000. An earlier attempt by Mr Raha and his cohorts to break and enter the premises on 5 May 2002 had been unsuccessful.

  3. The appellant, a single man born on the 17 February 1976, was employed by AGAL as a technical officer. He was charged with being an accessory before the fact to the break enter and steal pursuant to the Crimes Act 1900 sections 112(1) and 346. The maximum penalty for the offence was imprisonment for 14 years.

  4. The Crown case was that the appellant voluntarily provided Mr Raha with information about the location of the contents of the laboratory, security and alarm systems and provided a map of the layout of the relevant areas of AGAL in return for the payment of $10,000.

  5. The appellant did not dispute his involvement in the offence as an accessory before the fact but raised duress as a defence. He gave evidence he had provided the information to Mr Raha under threats of harm to himself and his family. The trial was effectively confined to the issue of duress.

  6. The appellant was convicted by a District Court jury on the 30 June 2004. On 3 September 2004 he was sentenced to 10 years imprisonment with a non-parole period of 5 years and 6 months…

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AGLC
Makrynikos v The Queen [2006] NSWCCA 170
Case
[2006] NSWCCA 170
Decision Date

CaseChat Overview and Summary

The case of Makrynikos v The Queen involved the appellant, who was convicted of multiple criminal offences, appealing against his conviction and sentence. The appeal focused on the trial judge's directions to the jury regarding the appellant's credibility and the use of his lies as evidence of his consciousness of guilt. The High Court of Australia was tasked with determining whether the trial judge's directions were adequate and whether they properly instructed the jury on the use of the appellant's lies as evidence.

The primary legal issue was whether the trial judge's directions adequately addressed the use of the appellant's lies as evidence of his consciousness of guilt. The appellant argued that the trial judge's directions did not properly align with the legal principles set out in Edwards v The Queen, which require that lies be precisely identified and that the jury consider whether the lies reveal a knowledge of the offence and were told because the accused knew the truth would implicate them. Additionally, the appellant contended that the trial judge's directions failed to sufficiently instruct the jury to consider alternative reasons for the telling of lies.

The High Court found that the trial judge's directions were appropriate and did not lead the jury to evaluate the appellant’s evidence in an impermissible way. The Court held that the directions given aligned with the principles set out in Edwards v The Queen and adequately instructed the jury to consider the appellant's lies in the context of his consciousness of guilt. The Court also found that the directions were sufficient to allow the jury to consider alternative reasons for the telling of lies, thus properly directing the jury on the use of the appellant's lies as evidence.

Given the Court's findings, the appeal was dismissed. The conviction and sentence of the appellant were upheld, and no further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this context it was appropriate for his Honour to make the comments which he did. The direction would not have led the jury to evaluate the appellant’s evidence in a way which was impermissible. Accordingly I would dismiss this ground of appeal. Ground Three – The directions on the manner in which the jury might use evidence that the appellant had told lies were inadequate. The Crown, in cross-examination and in addressing the jury, advanced the proposition that the appellant’s lies were evidence of the appellant’s consciousness of guilt. His Honour directed the jury as to lies in the following terms:Generally it could be said telling lies damages the credibility of the person who tells them, but you must remember that there are many reasons that people tell lies. Sometimes panic can be a reason or fear or confusion or wanting to distance himself from events … his telling of lies may have been because of fear of Mr Raha. If you think that that is a reasonable possibility, then you should not hold against him that he told lies to the police. However if you don’t think that was a reasonable possibility you are entitled to give serious consideration of whether you think the evidence he gave was the evidence of a credible witness and that goes of course back to the very important first test in the duress area of a genuine belief. He was not a credible witness you might have difficulty in accepting that he had a genuine fear of anything. He has no onus of proving anything. The Crown must prove its case beyond reasonable doubt. Even if you consider there are doubts about his credibility it does not necessarily mean the Crown has proved its case. So you may think, well I am not sure about his credibility. I do not think very highly about someone who just tells lies to the police. Nevertheless I will look carefully of every aspect of this case before I come to any certain conclusion that might be against him. The appellant submitted that where the Crown had clearly suggested in cross-examination and address that the fact that an accused had told lies entitled a finding that there was on his part a consciousness of guilt, a direction should be given to the jury in the terms set out in Zoneff v The Queen (2000) 200 CLR 234. His Honour had failed to do so. However the Zoneff direction is only appropriate in cases where the Crown was not relying upon lies as evidence of guilt. In cases where lies are being relied upon as evidence of consciousness of guilt it is appropriate to give a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 where at 210 it was held:Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lies into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas, because of “a realisation of guilt and a fear of the truth.”Moreover the jury should be instructed that there may be reasons for the telling of the lie apart from the realisation of guilt.

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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