Nicolakis v The Queen

[1988] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P2 of 1988

B e t w e e n -

PETER JANES NICOLAKIS

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

WILSON J

BRENNAN J
DEANE J
TOOHEY J

GAUDRON J

Nicolakis

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 2 7 OCTQBER 19~8, AT .. 11. 22 AM

Copyright in the High Court of Australia

PlTS/1/PLC 1 27/10/88

~1R ::Vf. J. PAWKINS:  If it please Your Honours, I appear for

the applicant. (instructed by Mccusker & Harmer)

MR M.J. MURRAY, QC:  May it please the Court, I appear for

the respondent with my learned friend, MR K. BATES

(instructed by the Crown Solicitor for Western Australia)

WILSON J: Yes, Mr Hawkins.

MR HAWKINS:  Your Honours, if I can hand up the list of

authorities and outline of submissions, a bundle of
further papers, matters that could, perhaps, have been

included in the transcript.

WILSON J:  What, this is more of the transcript of evidence,

is it?

MR HAWKINS:  Yes. I apologize - I received it late this morning

and it was not until after I was at Court I noticed

that it was not stapled together. And also the

authorities that are asterisked on both the applicant's

and respondent's lists, together with a copy of the

report of BROWNE V DUNN which is not asterisked.	It
is a well-known principle but the report is hard to
obtain in Western Australia.	I do not know that

Your Honours have the same difficulty in Canberra.

WILSON J: Thank you. Yes, Mr Hawkins?

MR HAWKINS:  Your Honours, this is an application for special

leave to appeal against a conviction of murder.

The applicant was one of six people charged with

murder. The situation was that the applicant and the

other five had all been in a vehicle driving down

Wellington Street in Perth at approximately 3 o'clock

in the morning on 31 October 1986 when they stopped and

a fight developed between five of the people in the

vehicle and two men who had been hitch-hiking down

Wellington Street. One of the two died.

The trial of the six accused was a joint trial

and occupied some 19 sitting days. Five of the accused

were convicted of manslaughter and received sentences

ranging from custodial sentences of six months in the

case of two of the accused, to eight years, reduced to

six years for one of the accused for manslaughter and,

in the case of the applicant, a life sentence for

murder.

WILSON J: Eight years reduced to six. It was reduced in the

Court of Criminal Appeal, was it?

MR HAWKINS:  Yes, that was one of the co-accused. The

other two co-accused received sentences of four years

with a two-year minimum.

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Nicolakis

WILSON J:  And apart from the BROWNE V DUNN point, the

application is, really, concerned wholly with the

facts of the case - the particular evidence in the

case, is that so?

MR HA1vlZINS:  Yes, Your Honour.

WILSON J: It does not raise any question of law of general

importance?

MR HAWKINS:	No, I had a brief moment of euphoria this week when I thought I had a constitutional question but
that did not last.

The applicant's primary submission. is that

the Court of Criminal Appeal failed to undertake an

independent examination of the relevant evidence.

If I can take Your Honours to the reasons of Their Honours

in the Court of Criminal Appeal, first of all,

Mr Justice Wallace, particularly at page 194, to make a

brief cormnent. At line D there is indented what, on the

face of it, appears to be an extract of the transcrip~
of evidence of Mr McDougall, and although it is not a

major point it may be a straw. That extract is not

entirely correct. The words in brackets show that

Their Honours confused Mr McDougall's description of

the applicant who wore a long suit, dark suit and

shoulder length hair and the driver of the vehicle

who was separately described by McDougall as being: the biggest, tallest and probably in physique

of the six -

so there is that first minor concern that if the size

and physique of the applicant played any part in the

decision of the Court of Criminal Appeal, then there

has been the confusion in that the court, for a start,

has confused the description of one assailant with

another. But the grounds are more substantial than that.

As Your Honours may have appreciated if Your Honours have had the opportunity of reading the reasons for

decision, Mr Justice Wallace refers substantially to

the evidence of one independent witness, Mr McDougall,

and then refers, on page 195C, to'~ive other independent

witnesses" where His Honour gives a brief summation of

what the other independent witnesses saw.

His Honour then surmnarizes the evidence given by

the applicant and the evidence of the injuries sustained

by the deceased. His sternum was broken; his liver was

crushed and his spleen was split.

At page 200 of His Honour's reasons, lines C to D,

His Honour refers to the applicant's grounds of appeal

which, in the Court of Criminal Appeal, was substantially

the same as grounds 1 and 3 in this Court, and His Honour,

although agreeing that the Crown case was that the jury

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Nicolakis

would probably not be able to say who struck the

fatal blow and agreeing that that was the direction

made by His Honour the trial judge, says that:

It clearly would have been necessary for

the jury to be satisfied to the required
degree that not only was the first applicant
possessed of the necessary intent but also

of the fact that it was he who caused the

fatal injury.

And, Your Honours, I propose this morning to show you

that there was, in fact, no evidence that it was the

applicant who caused the fatal injury.

His Honour refers briefly to the only evidence

of any major blows struck by the applicant at page 201D

where he refers to the:

evidence that the first applicant "stamped"

on the deceased's right side whilst he was

on the ground.

And His Honour also refers to:

TM endeavour made by the first applicant and his co-accused Pasalich -

and His Honour forgot to mention another co-accused,

Franich -

to inculpate Gullotti -

Gullotti is the co-accused who did not give evidence in the matter.

His Honour's conclusion is at page 202A to B:

As I appreciate the evidence I am unable

to conclude that the verdict reached is either

dangerous or unsafe or, indeed, inconsistent

with the verdicts of manslaughter suffered by

the first applicant's co-accused. His resolution

to teach the deceased a lesson, the leading part

that he played in the physical attack upon the

deceased, both standing and upon the ground and

the severity of the injuries sustained clearly

made it possible for the jury to have no

reasonable doubt as to the applicant's guilt

as charged.

If I can now take Your Honours to the reasons for decision of His Honour Mr Justice Smith. His Honour

Mr Justice Smith - - -

WILSON J: Well, do you contest what you have just read

from Justice Wallace?

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i'1R HAWKINS:  No, but what I propose to do, Your Honour, is to deve loo

the submission based on HORRIS that the Court of ' Criminal Appeal, particularly Their Honours Smith and Franklyn, failed to perform for themselves an independent

assessment of the evidence.

BRENNAN J:	What do you mean by that?
MR HAW1:ZINS:	If I can take you to page 216, for example

Mr Justice Smith, at line B, says that:

It is sufficient to say that on that body of

evidence, in my judgment, it was open to a

reasonable jury to conclude, beyond reasonable

doubt that the applicant Peter Nicolakis was

the author of the fatal blow.

WILSON J:  I do not thirk we have found it, Mr Hawkins.

MR HAWKINS: Sorry, at page 217.

WILSON J: Page 217.	I thought you said 216.
BRENNAN J:	I do not follow what you propose to say though,

Mr Hawkins. I understand that the question is whether

or not there was evidence to support a finding that the question?

MR HAWKINS:  The applicant's submission is that the Court of

Criminal Appeal has, in so far as Their Honours Frank~yn and Smith are concerned, left it on the basis that it

was open for a jury to reach this conclusion and

therefore the verdict should not be disturbed and in

doing so Their Honours have relied heavily upon the

evidence of Mr McDougall. I propose taking you briefly

through the evidence of Mr McDougall, contrasting that

with the evidence of other independent witnesses and

also other assailants, and showing Your Honours that

there were gaps in Mr McDougall's evidence such that

neither the jury nor the Court of Criminal Appeal could

have properly relied on it in reaching the conclusion
that there was no reasonable doubt.	The essence of my

submission, if I am driven to it, is that the

Court of Criminal Appeal should have held that there was

reasonable doubt as to guilt or a reasonable doubt that

it was the applicant who had struck the fatal blow.
And given that that finding that it was the applicant

who struck the fatal blow that seems to be the linchpin of the jury's decision, then the jury's decision should be set aside and a verdict of manslaughter entered.

BRENNAN J:  Do you say that the jury could not reasonably have

reached that decision?

MR HAWKINS:  I am saying that even if the jury could have

of this case, none the less, and relying upon the majority I s reasonably reached that decision, in the circumstances

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Nicolakis

reasons in MORRIS, there is still a miscar~iage of

justice that has occurred.

BRENNAN J:	I see.
MR HAWKINS:	At page 216C, Mr Justice Smith said that:

there was a clear path, in my opinion, in

the evidence adduced by the Crown by which

the jury could be satisfied to the exclusion

of any reasonable doubt that the applicant

Peter Nicolakis was that person.

That is the person who struck the fatal blow.

Pages 228 to 230 contains the reasoning of

His Honour Mr Justice Franklyn after he had referred

to medical evidence and the evidence of Mr McDougall.

It is apparent from lines A to B of page 228 that the

crux, as far as His Honour Mr Justice Franklyn saw this

matter, was whether or not the evidence of McDougall

was accepted. And at page 229A, His Honour, after

discussing evidence as to the type of force that is

necessary to have caused the fatal blow and the attempt

to implicate the co-accused, Gullotti, said that the:

evidence was clearly rejected by the jury -

and

consequently it was open to it to find the

fatal injury to have been caused by the stamping

and consequently by the first appellant.

His Honour correctly states, at page 229D to E that:

The only evidence of an application of force by any of the accused to the deceased -

this is assuming that the evidence of an act of jumping

by Mr Gullotti is not to be accepted -

which on the medical evidence could have

caused the fatal injury ..... was that of the

stamping on the deceased by the first

appellant.

And at page 230B His Honour found that in considering:

the evidence relevant to the charge against the

first appellant there was evidence on which the

jury could be satisfied of his guilt beyond

reasonable doubt.

I would ask Your Honours if you would like me to

take you through the reasons for decision in MORRIS V REG,

particularly pages 472 and 473 of the Commonwealth Law

Reports or whether time is against me?

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Nicolakis

WILSON J: It will be sufficient, I think, if you just identify

the passage upon which you rely, Mr Hawkins.

MR HAWKINS:  Yes. Well, I rely upon the passage of Their Honours

Justice Deane, Toohey and Gaudron at page 472 starting:

"The test as expressed in CHAMBERLAIN" - through to

page 474, 163 CLR.

BRENNAN J: Perhaps, Mr Hawkins, I should say for myself that

I have expressed some views about portion of that passage

in a case recently in CARR V REG.

WILSON J: It will be your submission, I take it, Mr Hawkins,

that those statements to which you have referred from

the reasons of the members of the Court of Criminal

Appeal were not consistent with what is said on page 473,

that they were, in substance, saying that the"evidence

was sufficient to justify a conclusion on the part of the

jury;' et cetera. You would say that that is not what they

were saying?

MR HAWKINS:  I am saying that it merely considered whether it

was open to the jury to decide the question in the way

that the jury did. I am saying also that the Court of

Criminal Appeal has not properly considered the evidence because if it'had it would have reached an opposite

conclusion.

Of the six accused, five gave evidence; one

. TS elected not to give evidence, Mr Gullotti. The medical

evidence led, or the relevant parts of the medical

evidence led, are at pages 8, 9, 13 and 14 of the

application book. Dr Pocock, the pathologist, was

called and after giving evidence of the complete break

in the sternum in the centre of the chest such that

the heart was bruised on both sides, at line B he said

that he did not think the body would be free:

I think the back would have to be against something fairly rigid for the movement to

allow the breast bone to go in, be fractured

and bruise the heart. If you were free-standing

then this injury could not occur.

And he agreed that it was, in that context, that he
spoke of severe force being required to break that bone.

Similarly, at page 9, after giving evidence of the crushing of the liver, he stated that severe force was required to

inflict that injury and, just below line C:

Essentially the organ has got to be caught

between two hard surfaces; one, the

application of force and two, some support,

whereby the force is contained in the body

and is not transmitted in a movement.

And this is the important part, Your Honours:

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So again one would expect that the individual's

rear, back, was supported when force was applied

to this area. A person who would be free-standing

at that time would not sustain the degree of

injury to any extent unless the back is supported
either on the ground, or against a wall, or

against something - some rigid object.

And towards the bottom of the page at line E, page 9,
where he discusses the injuries sustained to the spleen:

it is not necessary for the individual to be

supported, but it would require quite severe

force to the left lower chest to cause such

an injury to the spleen.

In cross-examination, pages 13 and 14 - 13D to E -

he gives evidence that the iRjuries to the liver could

not have been sustained if the body could have swayed

with the blow and he was asked by Mr Wood:

That means, doesn't it, that if he was jumped
on when he was flat on his back - -?---He could

have been.

- - that could have caused it?---Yes.

And at page 14A:

Or stamped on him; stamped when he had his

back on the ground?---It's pretty violent

stamping to cause this degree of crushing,

but I would accept it is quite a possible way

in which it could have cause - - yes.

Stamping?---Yes.

But there would be a need for the back - -

to enable the crush of the liver to occur there

would be a need to have a solid base on one

part of the body?---Yes.

In re-examination, at page 16C, Dr Pocock expressed

some reservations that stamping would be sufficient -

and that is stamping with the body on the ground - to

have caused the injury.

The reason that I stress those parts of the evidence

that refer to the back being on the ground is that the

only evidence against the applicant is, as His Honour

Mr Justice Franklyn said, evidence by an independent

witness, Mr McDougall, that he saw the applicant stamp

the deceased once on the right side of his body while

the deceased was lying on his side on the ground. So,

there are two parts in that, Your Honours: the first is
that the situation was not that the deceased had his

back on the ground; the second is that there was a stamp

and a stamp only referred to by Mr McDougall, and the

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pathologist expressed some reservations that a stamp

would have been sufficient to have caused the injury.

WILSON J:  But when you say "reservations", he allowed for

the possibility.

MR HAWKINS: He allowed for a possibility. It is my

submission that the two together; first of all, the

express requirement that it be the back on the ground,

not a side - not the left side - but the back on the

ground and, the second, the reservations: there was

a possibility of the reservations about stamping.

WILSON J: What time of the night was this incident?

MR HAWKINS: Approximately 3 o'clock in the morning.

WILSON J:	And how far away was Mr McDougall?
MR HAWKINS:	I think it happened across the road from him.

Part of the assault took place on the bonnet of his car and then the people moved into the middle of the

road but he gave evidence that it was fairly well lit.

WILSON J:	And he was sitting in his vehicle?
MR HAWKINS:	He sat in his vehicle, although his attention

was diverted between two fights that were going on

at the one time.

WILSON J:  Was the deceased lying in the middle of the road

when the stamping occurred?

MR HAWKINS:	Yes.
WILSON J:	Thank you.

MR HAWKINS: The evidence that Mr McDougall gave about the stamp

is at page 22 of the application book at line D.

Incidentally, Your Honours, the evidence was also given

by Mr McDougall that he could not identify anyone, that

he described one person by saying that he had long

hair and a dark jacket and there was no evidence given

of hair length or styles, in particular, of anyone in

detail.

BRENNAN J: Is that intended to show that there is some doubt

about the identity of the appellant with the person

being referred to here by Mr McDougall?

MR HAWKINS:  I am attempting to give a global picture of the

uncertainties that pervade this conviction. I do not lay

much stress on the fact - and I cannot lay much stress

on the fact in these proceedings - on the hair but - - -

BRENNAN J: Is my recollection wrong? Was there not a concession

recorded in, I think, Justice Franklyn's judgment, of

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identity? Was that open to dispute? I am not

sure that my recollection is correct, Mr Hawkins.

MR HAWKINS:  There is nothing that I can point to that would

say that it was not the applicant who McDougall was

giving evidence about when he refers to the stamping.

DEANE J:	The learned trial judge seemed to think there was no doubt about it and at page 123B he said to the jury
quite dogmatically:

that other evidence would show as Peter

James Nicolakis.

MR HAWKINS:  Yes. Mr McDougall had given evidence of the

start of the fight as being the chap with the dark

suit jacket, shoulder - and the long hair who put

his foot up as a kick-box type reaction but he was

unable to say whether the foot had made contact

and he then -

BRENNAN J:  The part that I had in mind was at page 227C where

Justice Franklyn said:

Subsequently however the witness McDougall gave

an eye witness acount of the participation in

the attack on the deceased of a person

described by him and who it is conceded was the

first appellant.

MR HAWKINS:  As to that, Your Honour, I did not do the appeal

in the Court of Criminal Appeal and I am unable to

assist you in saying what concessions were made.

BRENNAN J:  But the question arises on an application for

special leave whether it is appropriate to depart from

the basis on which the Court of Criminal Appeal considered

it.

MR HAWKINS:  Yes. I do not seek, in that case, to depart from

it, Your Honour. There is nothing that I am aware of

that could raise sufficient doubt of itself that it was

Mr Peter Nicolakis who McDougall was giving evidence

about. But I do not want that to preclude me from making

a submission that Mr McDougall's evidence is not accurate,

that there was not or should not have been a doubt

attaching to it generally.

At page 22D to E there is the reference to the

stamping. He gave the evidence that the person was

lying on his side on the ground and that, at lines B to C:

The chap with the long hair and the coat - in
the suit coat - he raised his leg and come
down on the side with his foot, on to the right

side of the chap with the blue jumper.

From that I infer that the deceased was lying on his

left-hand side on the ground. The evidence is, elsewhere,

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that he was lying on his side. The applicant was

standing on the other side of the person lying on che

around. So, Mr McDougall's evidence as to parts of

the body, apart from the top side or the torso, would

be suspect as to where kicks landed if they landed at

all. And then he said:

You've told us that you saw the one with

the long hair raise his foot?---Mm.

And what did he do?---He stamped down on the

chap's side that was laying down.

And he said that it was "round his ribs" and that he

saw him stamp down once.

WILSON J:  You infer from what Mr McDougall says, or was he

more explicit, that the victim was not lying on his

back when McDougall saw him stamp on the right side of

the body?

MR HAWKINS:  He was explicit and I will endeavour to recollect

where the evidence was.

WILSON J: I am just looking at page 22. It is a bit ambiguous.

It could be consistent with him lying on his back and being stamped on the side of the body - on the right-hand

side.

MR HAWKINS: Yes, page 22A. If I can take you first of all

back to page 21, Your Honours. The evidence had been

that there was a struggle - wrestling going on between

the applicant and the deceased which moved on to

Mr McDougall's bonnet of his car and,from the car,

moved back out on the road.	Mr 1'f.cDougall said at line B
that they were chasing him back out on to the road.	So
there were two people after the deceased after the
bonnet incident and they were:

probably three-quarters of the way across they

may have physically contacted him again.

But he conceded that he could not say how it was that
the deceased went to the ground.	But at page 22A he
expressly says:

Well, he was lying on the ground on his left side; he had his hands and his arms up over

his head, like that, protecting his head.

And while -there is no evidence of change of position

given in the evidence on the balance of that page. In the outline of submissions, paragraphs (a)

and onwards, I have summarized the evidence of

Mr McDougall and of other witnesses, be they independent

witnesses or co-accused. As far as the description is

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concerned, nothing much turns on that except chat

both Mr McDougall and Mr Mews gave evidence that the

driver of the vehicle, who is not the applicant, was

the tallest of the lot. That relates only back to

that short passage of Mr Justice Wallace's reasons.

The history of the matter was that after the car

in which the applicant was riding, pulled up, the
applicant and five others got out of the car and
there was a brief confrontation before two fights

developed two separate fights. Mr McDougall says

that the hitch-hikers walked - the hitch-hickers

being the deceased and his friend - towards the

six who got out of the car who formed a cirle around

them.	Two of the people out of the car singled
out the chap in the blue jumper.	The chap in the blue
jumper was the deceased.	The chap with the shoulder

length hair and suit did a few acts of kick boxing.

Mr McDougall could not say whether those acts of kick

boxing had made content. He then said there were

three people in the scuffle and they wrestled on to

the bonnet of his car. The evidence of that is at

page 20D of the application book and also in the further

transcript that I handed up to Your Honours on page

259 - that further bundle held together with the bulldog

clip has been numbered by typewriter in the top right-hand
corner of each page. All that he says there is that

there were three people struggling on the bonnet of his

car; one of them was the chap in the blue jumper; the

other was the chap with the long shoulder-length hair

who demonstrated a kick-boxing activity and it was the

applicant, perhaps.

That evidence that the hitch-hikers walked towards

the six who formed a circle should be contrasted with
the evidence of Mr Hasler - and, unfortunately, I do not

have the reference on the outline - that two guys got out of the Falcon, one of whom threw a punch and then

the other people got out of the Falcon. So, there is

the difference there, in degree, of how things started.

But against that and in support of the version given

by Mr McDougall, Mr Silvestro, the survivor of the

attack, said that six people got out of the car and

formed a circle around them and one kicked

Mr Hiliopoulos in the face and he fell to the ground.

That is-at pages 37A to 40A.

Your Honotirs, there was no evidence by anyone else that Mr "t,filiopoulos the deceased, had been struck so

that he fell to the ground at that initial stage.

Mr Silvestro is the only person who says that. And

although, at one stage, Mr Silvestro said that he

thought that the person who kicked Miliopoulos in the
face was the one who was doing all the speaking who

was identified as the applicant at page 274 of the

further transcript I have provided at lines C to E

it is apparent that he retracts from that and thought,

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perhaps, that it was someone else other than the

applicant who ~icked Miliopaulos in the face. The

only other part in this subparagraph I wish to refer

to is the evidence of Mr Franich which was to the

effect that the hitchhikers both went at the applicant

who was on his own and who took them on,

both protecting himself and that is at page 308 and 312

ot the further papers.

Significantly, in my submission, was that

Mr McDougall was relied upon by the Court of Criminal

Appeal as the man who saw the entire assault, yet

Mr McDougall was unable to say how the deceased had

gone to the ground when he did go to the ground and

that is rather strange, in my submission, for
someone who had seen all to have not been able to
say such a thing. Also of significance is the

difference between McDougall's evidence and the

evidence of other independent people - witnesses -

as to the number of people who were around the

deceased whilst he was on the ground. Mr McDougall,

at pages 21 and 22, gave evidence that there were only two people over the deceased while he was on

the ground whereas Mr Lowe, at page 25, gave evidence
that there were two or three people around the bloke

on the ground. Mr Mews, who was also an independent

witness, gave evidence there were two or three people

T6	there. That is at lines C to D and, again, repeated
down at line E:

One was on the ground and there were two to three people in the immediate area of the person on the ground.

And, further, at page 29B where he talks of three

people being over the person who was on the ground.

Mr Meyrick, also an independent witness, said that

there were about four guys around the deceased on

the ground and that is at page 33D and E; also at B:

In the centre of the two northern

lanes, yes?---There were about four

blokes standing around him. There

was another guy who had run up here

with - - one guy was right close to

him and another guy was back a little

bit from him.

And down at the bottom:

He had about four guys standing around

him ..... or standing over him, I should
say.

And he saw two deliver blows to the person on the ground ground, and at page 34, he said that he thought one

of the blows was a kick to the stomach or back.

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The survivor, Mr Sylvestre, at pages 39C

and 40D, gave evidence that there were four

people around the deceased on the ground and

the applicant's brother, Michael Nicolakis,

in the further materials that I have provided

at pages 288 and 289 referred to Armando - that

is, Armando Gullotti - Dean, which is Dean Pasalich

and Peter, which is the applicant, Peter Nicolakis

as being around the man on the ground. That is

consistent with the evidence of Mr Peter Nicolakis

at page 46, that there were three people, himself,

Mr Pasalich and Mr Gullotti and John Franich,

who gave evidence that he ran up - away from the

fight - Coolgardie Street, looked back and saw

Armando Gullotti and Peter with Mr Miliopoulos

and that is at page 309C of the further material.

BRENNAN J:  Mr Hawkins, is there any evidence from any witness

as to the number of persons who were observed to

kick or stamp the deceased?

MR HAWKINS:  There was, I think, evidence that all those

around the man on the ground took part in striking

blows and there was evidence that, at least, two

kicked the deceased.

BRENNAN J: Well, now, can you direct us to that?

MR HAWKINS:  Yes, that is the next part of my outline, in

fact.

BRENNAN J:	Good.
MR HAWKINS:	Sorry. The final part on this,as to the number

of people around the deceased, was Mr Pasalich

who was one of the co-accused who gave evidence

that the applicant, Armando Gullotti and himself,

Mr Pasalich, were all around the deceased and that

is at pages 54 to 57.

GAUDRON J: Is the reference to Armando there to - a reference

to Gullotti?

MR HAWKINS:  Gullotti, yes, sorry about that. The reference

to Dean is the reference to Dean Pasalich.

GAUDRON J:  And we do have to work, though, on the assumption,

do we not, that the evidence that Gullotti attacked

in this manner was rejected by the jury?

MR HAWKINS:  It appears that it must have been because

otherwise I could not understand how the jury

could not have found Mr Gullotti guilty of

murder, given that two people gave evidence that

he jumped on the deceased while he lay on his back

and a third gave evidence that he boasted of

having jumped on the deceased.

P+T7/2/~H

Nicolakis 14 27/10/88

WILSON J:	Who gave evidence that he jumped, other than
the applicant?
MR HAWKINS:	The applicant gave evidence that he jumped - - -

WILSON J: Pasalich also.

MR HAWKINS:  - - - and Pasalich gave evidence that he

jumped and Mr John Franich gave evidence that

he spoke of having jumped.

In subparagraph E, I have surrnnarized those

parts of the transcript that dealt with the blows

that the deceased received. I have taken you

through the evidence of Mr McDougall as to the

stamp. At pages 25A and B, Mr Lowe gave evidence

that there were two or three having a go at the

bloke who was on the ground and they were kicking

him.

DEANE J:  Does it really help you to show that there may

have been other people joining in the kicking

and stamping upon the deceased? I mean, may

not the jury's verdict reflect the view that

those engaged in this attack were all guilty

of murder but that the only person who was

plainly identified was your client?

MR HAWKINS:	By that, I understand Your Honour as saying !!plainly identified" to have struck a major blow.	The - - -
DEANE J:	Yes, I mean what does emerge is that there is a youth
on the ground. There-are two, three or, on one
approach, four people all engaged in this kicking
and stamping that, presumably, killed him and the
evidence is clear that your client was one of them.

MR HAWKINS:  Yes•

DEANE J: Well, now, if that is so, could any appellate court interfere with the jury's verdict that your client

was guilty of murder?

MR HAWKINS:  If I can persuade you, Your Honour, that there

was not sufficient evidence to establish

Mr Nicolakis as having struck the fatal blow,

then I would hope to be able to persuade you

that he should not have been convicted of murder.

DEANE J: Even if the inference or the effect of the evidence

is inescapable that your client was the leader

of the participating two or three who combined

by their violence to kill the deceased.

PlT7/3/SH	15	27/10/88
Nicolakis

MR HAWKINS:  The submission would be that he may have been

there with the intention of an assault but not

grievous bodily harm -

DEANE J:	Yes, I can follow that.
MR HAWKINS:	- - - and that he did not know that someone else

was to jump.

DEANE J: I do not want to delay you. All I was seeking to

do was to point out to you that you do not

necessarily get to final base so far as I am

concerned if you simply raise a doubt about

whether it was your client or somebody participating

with him who delivered the final killing blow.

MR HAWKINS:  The reason that I have been concentrating my

attack on Mr McDougall's evidence is the

reliance apparently placed on Mr McDougall's

evidence by the Court of Criminal Appeal.

DEANE J: Yes.

MR HAWKINS: If I can demonstrate, I hope, that his evidence

does not stand or is not as sound as the Court of

Criminal Appeal appears to have believed it to be,

then what is perceived as being the basis of

conviction, just the evidence of the stamp, must

also go. If I could raise a doubt that it may

have been someone else, then I would hope that

that would be sufficient.

DEANE J: Yes, thank you.

MR HAWKINS:  Mr Lowe, at 25A said that both the people over

the man on the ground were:

Bending over him -

capital B, sorry -

Trying to pull him up and hang on to

him and give him a clout and kicking
him, as far as I remember.

And, although he was a little confused as to the

position on the road of the man on the ground,

it is clear from 25C that the man on the ground

was the man that was on the bonnet. In other
words, it was the same person that Mr McDougall

had been speaking about.

BRENNAN J: Well, there are two questions that arise, are

there not? One is which of the independent
witnesses had the better opportunity of observation
and what the jury's impression was of the accuracy

of their recall?

PlT7/4/SH	16	27/10/88
Nicolakis

MR HAWKINS: Unfortunately, after a lengthy hearing such

as the one that took place, the transcript of

Mr McDougall of the stamping was read by the

trial judge to the jury and he, then, in my submission, paid, with respect, quite scant regard to the evidence given by the other

independent witnesses and, although this is

- sorry, I will not develop tratother point.

BRENNAN J:  Was there a distinction between the opportnnity

of Mr McDougall and the other witnesses?

MR HAWKINS:  No, the other witnesses were bystanders either

on the road or footpath close to the assault.

They all worked in the same metropolitan market

premises in the general area and, although not

all had been there for the duration of the

assault, they were there for long enough to

give evidence that conflicted with Mr McDougall's

in quite vital areas. If Mr McDougall's evidence

is evidence of the entire assault, as it was, then

there is nothing much I can do but if I can show
that it was not because there are gaps, then

there must be a doubt.

BRENNAN J:  Where was Mr McDougall?

MR HAWKINS:  Mr McDougall was in a parked car on the side of the road. The other witnesses were either on the

footpath which was near the cars or at the entrance
to the building which immediately fronted the footpath.

My learned friend, Mr Murray, may be able to assist

more on that.

WILSON J:	The markets were on the other side of the road,
is that right?
MR HAWKINS:	Yes.
WILSON J:	I mean, Coolgardie Street is on the southern side
of Wellington Street?

MR HAWKINS:  Yes.

WILSON J: Yes, and were these other witnesses, apart from

McDougall, on their way to work?

MR HAWKINS:  Yes.

WILSON J: Yes.

MR HAWKINS:  And McDougall was also on his way to work. had just parked his car. He

WILSON J: Yes, but he stayed in the car whereas the others,

as you have indicated, did not stay - they were

not there witnessing the entire incident. They

must have moved on to work at some stage whilst

the fight was proceeding.

PlT7/5/SH 17 27/10/88

Nicolakis

MR HAWKINS:  I think it was the other way around. One

became interested, went to work and called the

others out to come and have a look.

WILSON J:	I see.
MR HA1-fKINS:	The evidence of Mr Hasler, at page 32D was

that:

It was all a blur to -

him, but there were kicks mainly to the man on

the ground. Mr Meyrick, at 33E gave evidence

that one man had punched, one had kicked the man

on the ground.

Sylvestro gave evidence at 38C and also in

the further materials, at pages 276C and 277C,

that there were four youths around the man on the

ground, all of whom appeared to be kicking him

and at page 289 of the further material,

Mr Michael Nicolakis gave evidence that there

were three people around the person on the ground

and, I think, it is fair to summarize that

evidence, and say that all were taking part in

the assault.

The applicant himself, at page 47, admitted

kicking the deceased on the ground but said that

it was to his arm, hand and, in the further material

at page 299, leg and gave evidence which is

reproduced at pages 45 and 50 and also, page 301,

that Mr Gullotti stamped and jumped on the man

on the ground.	I am not saying "stamped and
jumped" as separate actions.	He described the

one action as a stamp, jump with two feet landing.

Mr Franich, at pages 309 and 316 .and 317

gave evidence that he ran off, looked back and

saw Peter and Armando Gullotti kicking the man

on the ground. Finally, on this point,

Mr Pasalich gave evidence at pages 54, 56, 57 and

58 that Peter was kicking the man on the ground

and that Armando jumped on the man on the ground.

The reference to the jump is at page 56B to C:

Now tell us whether Armando Gullotti

got into this act?---Yes.

What did you see him do?---Well, he jumped on - - -

Jumped on who?---On Theo, while he was on the ground getting kicked.

And, further down the bottom:

Jumped on the deceased ..... approximately

the centre line of Wellington Street.

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Nicolakis

GAUDRON J:  Mr Hawkins, what is the purpose of you taking

us to the evidence as to what it was said

Gullotti had done?

MR HAWKINS:  The trial judge - and there was no point

taken in the Court of Criminal Appeal taken

on the direction given by the trial judge - gave
a standard direction in corroboration of the

co-accused and referred to the evidence given

by some of the co-accused as to Gullotti having

jumped on the man while he was on his back. He

said that the jury should require a corroborative

evidence before or otherwise look hard at that

evidence before accepting it.	He did not direct
the jury to any corroborative evidence.	He did

not, for example, point out to the jury that

Dr Pocock had said that the back had to be on

the ground for the injury to have been sustained.

The reason that I take you through this is

to try and sow a doubt.

GAUDRON J: There is not really much point trying to sow a

doubt here, is it? What you have got to show is

that the jury should, a reasonable jury ought to
have entertained a reasonable doubt. It is a

different - - -

MR HAWKINS:	Yes.
GAUDRON J:	- - - and I wonder if you, when the test is so

formulated, what relevance there is, if any, in

relation to what Mr Gullotti may or may not have

done.

MR HAWKINS:  Because, up until now, the matters have proceeded

on the basis that the only evidence of a major blow

is that of a stamp and that evidence was based on

the evidence of Mr McDougall and, apparently, on the belief that Mr McDougall had seen the entire

fight and had given a full account of everything that happened and he did not refer to a jump. I

will submit that Mr McDougall did not see everything

that went on, that his attention was distracted and

he looked elsewhere and it is possible that while
he was looking elsewhere that other things did
happen and that it is unsafe to rely entirely on

Mr McDougall's evidence to sustain a conviction or to refuse to set aside the conviction.

DEANE J:  But what say you get to the stage of the evidence

you just pointed out to us and that is, that in this attack,which was led by your client, death

was caused by Gullotti stamping and your client

kicking the deceased as he lay on the ground.

PlT7/7/SH	19	27/10/88
Nicolakis

I mean, does it really get you anywhere to say,

"Well, now, when one comes to identify which

stamp or which kick killed the man on that basis it was Gullotti's stamp and not your client's kick'', quite apart from what

Justice Gaudron points out, and that is that

the jury obviously did not accept the Gullotti

involvement in the sense that witness spoke

of it.

MR HAWKINS:  I hope to be able to offer a hypothesis why

that may have been the case further on when I

refer to the BROWNE V DUNN point as to the

fabrication issue that is raised.

I became aware in the early hours of

this morning but I had not put, in fairness, to
the Crown and to Your Honours,all the material

on the jumping and kicking which is why I handed

up the further bundle.

(Continued on page 21)

PlT7/8/SH	20	MR	HAWKINS	2 7 I 1 o / 88"
Nicolakis

i"1R HAWKINS (continuing):  Mr Pasalich also gave evidence

at oages 322, 323, 325 and 326 and it is

necessary that I refer you to these because of

the BROWN V DUNN point but there he gave evidence

of Peter kicking and Armando jumping on the man
and there was a strong attack made before the
jury as to the quality of the evidence given by

Pasalich and by the applicant as to how it was

that Gullotti jumped and it was a scoffing attack

on the lines that, "Can you imagine this man

sprinting across the road, jumping, landing, that

he overbalanced, that he falls back, that he

toppled forward or what?", when the evidence that

was obviously given by both the applicant and

Mr Pasalich was that it was not thatGullotti

came running across; he jumped and there is no

other way to describe it. He jumped; he landed

on two feet and he hopped off and a landing with

two feet fits with the pathologist's evidence that

the blows to the centre of the chest breaking the

sternum and. slightly further down in the rib cage

area, crushing the liver and splitting the spleen.

It is an indication there was the one act, one

major act that caused death and, as far as

Mr Peter Nicolakis is concerned, there is no

evidence that he ever intended that such a thin£

should happen or that he should take part in su~h

an assault that would have that result.

In the same context that the attack made on

the quality of the evidence, in paragraph FI have

referred to the assertion that Mr Gullotti spoke

about jumping on Miliopoulos. The evidence there

was given by the applicant and by John Franich and

in the further material it is reproduced at pages 306,

307, 310 and 313 where it was essentially said that

the - Mr Gullotti said:

Did you see me jump on him when the men

were all driving away in the car -

around about the time that the second assault took

place near a place called Pastoral House - and I

mention that only, also, because of the attack

on the quality of the evidence that was made by

counsel for Mr Gullotti.

I have taken Your Honours already through the

pathologist's report and the evidence of Dr Pocock

as to the degree of force that would have been

necessary and the way in which the body would
have had to have been situated for the force to

have had the consequence that it did.

On the next page, I have summarized what I

will submit are the gaps in Mr McDougall's evidence

which are such that the jury, and also the

PlT8/l/SH	21	27/10/88
Nicolakis

Court of Criminal Apneal could not have or should

not have place the r~liance on that evidence that

they did. For a start, he did not see the assault

or observe it closely enough to see that the kick that

he said Mr Nicolakis started the assault with,

actually landed on target. He differed from the

other people as to the number of people around

Miliopoulos while he was on the ground. He, for an eye witness, did not see how Miliopoulos went

to the ground.	He saw one stamp to the right-hand
side of the body only.	He did not see Mr Gullotti

jump and he also gave evidence that he observed

what was happening to Mr Silvestro who was chased
down towards the freeway which is about 150 or 200

yards away and that is at pages 258 and 264 of the

further materiaL Butthe important thing is that

no-where in Mr McDougall's evidence did he give

evidence of any blow being struck by anyone that

fitted within the requirements of Dr Pocock. The

only blow on which evidence was given that fitted

within those requirements was the evidence given
of the jumping by Mr Gullotti and that leads me to
the second major ground of the application for

special leave and that was the address by Mr Gullotti's

counsel in closing.

Counsel attacked the evidence of the co-accused

and the applicant at pages 63 to 71. That attack

is reproduced in the application book. I must say,

Your Honours, that in the Court of Criminal Appeal

the ground that was relied on was a complaint about
the address at the bottom of page 69 where it was

submitted that the counsel's address could have been

understood by the jury as saying that the co-accused and

their lawyers had together fabricated a story after having

interviewed the medica 1 expert. They fabricated a

story to put the blame on to Gullotti and there were

no questions asked of any of the accused that eave

evidence that touched on Mr Gullotti' s part in either

kicking or jumping or stamping of this conspiracy

to fabricate a story although counsel for Gulotti

did say to Mr Nicolakis, the applicant, "You're

lying aren't you?", which he denied.

WILSON J:  Were all six accused persons tried together?

MR HAWKINS: All tried together and separately represented.

WILSON J: All separately, so there were six defence counsel.

MR HAWKINS:	Yes.
WILSON J:	Yes. I imagine there was a lot of speculation in

the addresses of counsel as to what had actually hannened.

MR HAWKINS:  Yes, but in the circumstances where this narticular

co-accused is the one accused of jumping and- also

evidence was given of him having kicked the person

on the ground, he elected not to give evidence and

PlT8/2/SH	22	27/10/88
Nicolakis

then there was a strong sympathy plea made to

the jury which appears at the top of page 69:

Put the blame on the short fat guy.

And then, at the bottom of page 69 through to

page 71, the submission developed that the co-accused

had decided with his solicitors to find an

explanation for death and to put the blame on

someone. In mv submission, that tactic of itself

and the unfortun;te way, as the Court of Criminal Appeal

has described the address, that unfortunate

address,has meant that, on the face of it,the

applicant did not receive a fair trial and there

was this attack made without the ooportunity to

rebut, as it were. Counsel could quite pronerly

have restricted itself to a comment on the

credibility of his evidence, of his story about

Gulotti but, in my submission, counsel, from

pages 69 through to 71 has gone beyond the pale.

TOOHEY J:  I am still not clear, Mr Hawkins, as to the

precise nature of the complaint that you are

making. It appears to be you are suggestin~

that counsel for Gullotti were putting to the jury that there might have been some sort of

conspiracy. Is this what is said?

MR HAWKINS:  Yes. If I can read you the passage in

particular, Your Honours, remembering that there

was an attack made on the credibility and, in the

light of a direction that would be given,or was

shortly after given, on the need for corroboration

and taking the co-accused's evidence onGullotti's

nart - - -

TOOHEY J:	Could I just interrupt you?
MR HAWKINS:	Yes.

TOOHEY J:  On whose credibility was the attack made?

MR HAWKINS:  This attack was made on the credibility of

Peter Nicolakis, John Franich and Dean Pasalich but arguably, also, on the credibility or the

way in which their lawyers had conducted themselves

in preparing for the case and, in the context of

a long trial and in the context of the requirement

or the direction given shortly after for the
corroboration to be required, or a careful look
at evidence before it is accepted, in that context

this unfortunate way of expressing itself, in my

submission, meant that there is a strong argument

that the jury may have been swayed to the extent

that the jury unreasonably found the applicant

guilty and it was a prejudice or a portrait

planted in the jury's mind that was incapable of

PlTS/3/SH	23	27/10/88
Nicolakis

correction by the direction that the trial judge
later gave, that there was no evidence that ch~

solicitors had spoken to the medical witness.

TOOHEY J:  Was counsel for Gullotti the last counsel to

address on behalf of the defence?

MR HAWKINS:  The counsel for Cul lotti was the last counsel

to address.

WILSON J:  Did the trial judge give the customary direction

about the way in which the jury should regard

addresses of counsel, that they are not evidence

and so on?

MR HAWKINS:	Yes, he did.
WILSON J:	Yes.
MR HAWKINS:	The submission is, Your Honours, that it is 1uit.e

open for a jury to understand that address as

saying that this is the tactic that was adopted

as the post-mortem report obtained - and this is

at page 70:

"How was the liver crushed?"

These are rhetorical questions:

"How was the liver crushed?" "How might

that have been done?" "Could it have been

caused from just a kick?" "Was it a hit?"

"Was a weapon used?" "Perhaps it was a

stamping, or a stomping or a jumping?"

"There must have been a pretty severe

force - ring a bell?" "It must have been

someone who jumped." "That lets us off the

hook. Now let's find a scapegoat - Armando

Gullotti."

All of those questions were raised immediately

after the introductory statement. Every lawyer

would have discussed that post-mortem report with

his or her client.

DEANE J: Except His Honour directed the jury that they

could not act on that basis.

MR HAWKINS:  His Honour simply said that there was no

evidence that counsel had seen a medical witness.

DEANE J: Well, what is surmnarized at page 232 is, he said

that:

There was no evidence that they had done

so in this case, that to do so was not a

practice which could be assumed, and that

whether or not counsel in this case had

done so had not been canvassed at trial.

PlT8/4/SH	24	27 /10/88
Nicolakis

NR HAWKI"NS:	The actual direction given is at page 170D.
WILSON J:	It is certainly not a practice that
we can assume took place; that they
would have automatically have seen
the medical witnesses before they
were cross-examined. There is
simply no evidence.  We don't know
whether they did or not. That wasn't canvassed at the trial, but
that is certainly not evidence
- certainly not a proved fact -
that the counsel would have seen them.
:MR HAWKINS:	Then, in my submission, Your Honours, that direction, of itself, could not have corrected
any prejudice in the jury's mind or colour
implanted in the jury's mind and, with the
greatest respect to His Honour the trial jud3e that phrase, which lawyers may understand as
certainly not a proved fact, is one that could
only have caused further suspicion or cast
further implication in the minds of a juror that there is a possibility - - -

WILSON J: Well, he has told them that they must regard the

evidence, and only the evidence, given in the trial

and he has affirmed, at this point, that there is certainly no evidence. Was there any request for

further redirection? I do not think - there does

not appear to be - - -

:MR HAWKINS:  No.

TOOHEY J: Well, apart from the question of redirection,

Mr Hawkins, I assume that none of the other counsel

complained about the way in which the matter had

been put byGullotti's counsel?

MR HAWKINS:  No. But Pasalich's evidence was he had struck

one blow to the head, one punch, and Franich's

evidence had been that he was running away. They

had both distanced themselves as far as they could

and it may have been, in the circumstances, it was

seen in the context of an attempt by Pasalich and

Franich to help the applicant.

Your Honours, I ask that you keep that address

in mind in the context of the directions that were

given by the trial judge on corroboration and on

the fact that he read to the jury the long extract

from Mr McDougall's evidence about the stamping

and that, with corrobation, it all must add up to,

at least, a reasonable suspicion that a jury,

after a long hearing and after a technical

two-day directions by the trial judge, may have

been sufficiently confused with the applicant

not to have enjoyed a fair trial. If the Court pleases.

PlT8/ 5/SH 25 27/10/88

Nicolakis

WILSON J:  The Court will adjourn for a few moments and

consider the course it should take.

AT 12.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.47 PM:

WILSON J:  The Court need not trouble you, Mr Murray.

Nothing that has been said leads us to doubt

the correctness of the decision of the

Court of Criminal Appeal. The application for

special leave must, therefore, be refused.

AT 12.48 PM THE MATTER WAS ADJOURNED SINE DIE

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