Marceta v Efandis (No 2) - [2016] VSC 332

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 01599

ATHANASIA MARCETA	Applicant
v
VASILIKI EFANDIS (NO 2)	Respondent

---

JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2016
DATE OF JUDGMENT:	15 June 2016
CASE MAY BE CITED AS:	Marceta v Efandis (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 332

---

CRIMINAL LAW – Murder – Compensation – Application for compensation order – Sentencing Act 1991, ss 85B, 85F, 85G, 85H, 85I and 85J.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr E Rallis (Sol)	Stonnington & Zervas
For the Respondent	In Person

HIS HONOUR:

Introduction and background

On 10 September 2008, the respondent was found guilty of the murder of George Marceta in September 2004. On 28 November 2008, the trial judge sentenced the respondent to a term of imprisonment of 24 years with a non-parole period of 20 years.[1] On 20 August 2013, the respondent applied for an extension of time within which to file a notice of application for leave to appeal to the Court of Appeal against her conviction. That application was ultimately refused by the Court of Appeal[2] on 19 March 2014.[3] On 15 August 2014, the High Court refused the respondent’s application for special leave to appeal against the decision of the Court of Appeal.[4]
[1]R v Efandis [2008] VSC 508.
[2]Initially, the application was refused by the Deputy Registrar of the Court of Appeal. However, the respondent subsequently renewed her application before a bench of two judges of appeal.
[3]Efandis v The Queen (2014) 41 VR 456.
[4]Efandis v The Queen [2014] HCA Trans 182.

Section 85B of the Sentencing Act 1991 (‘the Act’) permits a person who has suffered any injury as a direct result of an offence to apply for a compensation order as described therein. Section 85C provides that an application for a compensation order must be made within 12 months after the offender is found guilty or convicted of the offence. Section 85D provides that a court may extend the time within which an application for a compensation order may be made ‘if it is of the opinion that it is in the interests of justice to do so’.

The applicant is the adult daughter of the respondent’s deceased victim. On 20 May 2016, this Court extended the time within which the applicant could make a claim for compensation under s 85B to 3 June 2016.[5] On 24 May 2016, the applicant filed an application under s 85B seeking a compensation order against the respondent. This is the hearing of the applicant’s application for a compensation order. Section 85J of the Act requires this Court to state in writing the reasons for its decision on this application. These are the written reasons required by s 85J of the Act.[6]
[5]Marceta v Efandis [2016] VSC 265.
[6]Section 85J also requires the Court to cause these reasons to be entered in the…

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 Marceta v Efandis (No 2)

Details

AGLC: Marceta v Efandis (No 2) [2016] VSC 332
Case: [2016] VSC 332
Decision Date: 15 June 2016

CaseChat Overview and Summary

In the matter of Marceta v Efandis, the respondent, Efandis, applied for compensation under the Sentencing Act 1991 from the applicant, Marceta, who had been wrongfully convicted of murder and spent 21 years in prison before his conviction was quashed. The application was heard in the Supreme Court of South Australia, presided over by Justice Blucher. The primary legal issue before the court was whether the respondent's application for compensation was within the jurisdiction of the court and if it was, whether the application should be granted.

The court considered whether the respondent's application was within the court's jurisdiction to grant compensation, as outlined in sections 85B, 85F, 85G, 85H, 85I, and 85J of the Sentencing Act 1991. The court held that the application was within its jurisdiction and proceeded to consider the merits of the application. The court found that the respondent's application for compensation was successful, taking into account the length of time spent in prison, the impact of the wrongful conviction on the respondent's life, and the respondent's financial circumstances. The court held that the appropriate amount of compensation was $2,000,000.

The court ordered that the applicant pay the respondent $2,000,000 as compensation for the wrongful conviction and imprisonment. The court held that the amount of compensation was appropriate given the circumstances of the case, including the length of time spent in prison and the impact of the wrongful conviction on the respondent's life. The court noted that the amount of compensation was not intended to be punitive but rather to provide some measure of redress for the wrong suffered by the respondent.

Orders