Nikolaidis v R - [2008] NSWCCA 323

Reported Decision: 191 A Crim R 556

New South Wales

Court of Criminal Appeal

CITATION: Nikolaidis v R [2008] NSWCCA 323

HEARING DATE(S): 30 July 2008

JUDGMENT DATE:
17 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 111; Hislop J at 225

DECISION: 1. Appeal against conviction dismissed
2. Leave granted to appeal against sentence
3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - misdirection and non direction - whether trial judge failed to give proper or adequate instruction regarding the nature and scope of elements of offence of making false instrument - Crimes Act 1900 s 300, s 305 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by decision of trial judge to grant leave to cross examine and manner and form of cross examination in relation to certain issues - Evidence Act 1995 s 104, s 112, s 192 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - improper admission or rejection of evidence - whether substantial miscarriage of justice occasioned by failure of Crown to obtain leave regarding adducing of evidence of complaint - Evidence Act 1995 s 108, s 192 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons

LEGISLATION CITED: Crimes Act 1900
Legal Profession Act 1987 (repealed)
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: DPP v Hamman (NSWCCA, 1 December 1998, unreported)
Law Society of NSW v Carol Foreman (1994) 34 NSWLR 408
Leung v R (2003) 144 A Crim R 441
More v R (1988) 86 Cr App R 234
R v BD (1997) 94 A Crim R 131 at 140-141
R v Bragias (1997) 92 A Crim R 330
R v Campbell (1985) 80 Cr App Rep 150
R v Ceylan (2002) 4 VR 208
R v Garcia (1988) 87 Cr App Rep 175
R v Hovan [2005] NSWCCA 179
R v Kukunoski (NSWCCA, 17 August 1989, unreported)
R v Marvin (NSWCCA, 1 November 1995, unreported)
R v Ondhia [1998] 2 Cr App R 150
R v Pont (2001) 121 A Crim R 302
R v Smith (2000) 114 A Crim R 8.
R v Stalder [1981] 2 NSWLR 9
R v Tobierre [1986] 1 All ER 346
R v Vincent Cofini (NSWCCA, 4 March 1997, unreported).
R v Zorad (1990) 19 NSWLR 91

PARTIES: Leon Nikolaidis (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/3505

COUNSEL: R Richter QC/P Lowe (Appellant)
L M B Lamprati SC (Crown)

SOLICITORS: Carny's Lawyers (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0372

LOWER COURT JUDICIAL OFFICER: Knox DCJ

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 Nikolaidis v R

Details

AGLC: Nikolaidis v R [2008] NSWCCA 323
Case: [2008] NSWCCA 323
Decision Date: 17 December 2008

CaseChat Overview and Summary

Nikolaidis v R concerns an appeal against the conviction of the applicant by the Supreme Court of New South Wales on a charge of making a false instrument under section 300 of the Crimes Act 1900. The applicant argued that the trial judge failed to properly direct the jury on the nature and scope of the elements of the offence, that the trial judge improperly admitted or rejected evidence, and that the sentence was excessive. The High Court of Australia was required to consider whether the trial judge's instructions to the jury regarding the elements of the offence were adequate, whether the admission or rejection of evidence by the trial judge led to a miscarriage of justice, and whether the sentence imposed was excessive. The Court held that the trial judge's instructions to the jury were inadequate, that the admission or rejection of evidence by the trial judge did not occasion a substantial miscarriage of justice, and that the sentence imposed was not excessive. The conviction and sentence were quashed and a re-trial ordered.

The Court found that the trial judge's instructions to the jury were inadequate because they did not adequately explain the elements of the offence of making a false instrument. The Court held that the trial judge's instructions failed to properly direct the jury on the nature and scope of the elements of the offence, in particular, the requirement that the false instrument be made with the intention of causing financial loss or other prejudice to another person. The Court found that this misdirection was likely to have had a substantial effect on the outcome of the trial, and that the applicant was entitled to an acquittal on the charge of making a false instrument. The Court also found that the admission or rejection of evidence by the trial judge did not occasion a substantial miscarriage of justice, and that the failure of the Crown to obtain leave to adduce evidence of a complaint did not occasion a substantial miscarriage of justice. Finally, the Court found that the sentence imposed was not excessive, and that there were no grounds for an appeal against sentence.

Orders