Papadopoulos v R Topcu v R - [2007] NSWCCA 274

New South Wales
Court of Criminal Appeal

CITATION: PAPADOPOULOS v R TOPCU v R [2007] NSWCCA 274
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 March 2007

JUDGMENT DATE:
12 September 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 4; Hoeben J at 198

DECISION: See paragraph 199

PARTIES: Regina
Christovalantis PAPADOPOULOS
Bulent TOPCU

FILE NUMBER(S): CCA 2006/5461; 2006/4824

COUNSEL: Crown: Mr D Arnott SC
Applicant Papadopoulos: Mr H Dhanji
Applicant Topcu: Mr B Walker SC with Ms G Bashir

SOLICITORS: Crown: S Kavanagh
Applicants: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0577

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

- 62 -

2006/5461
2006/4824

McCLELLAN CJ AT CL
HULME J
HOEBEN J

PAPADOPOULOS, Christovalantis v R

TOPCU, Bulent v R

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Hulme J in these appeals. But for one matter I agree with the orders which his Honour proposes and with his Honour’s reasons.

2 In relation to the sentence which his Honour proposes for the offence involving vaginal intercourse committed by Papadopoulos I would have imposed a non-parole period of three years commencing on 17 December 2006 with a balance of term of 18 months. In my opinion, notwithstanding the fact that both Topcu and Papadopoulos became caught up in events for which they were not initially responsible, the circumstances of this offence require a sentence which adequately marks its seriousness. Although Papadopoulos, no doubt, reacted to the violent and destructive actions of Eken the act of intercourse took place in the bedroom in circumstances where I am satisfied he had a real choice as to whether or not to penetrate the complainant. Hulme J discusses the available Judicial Commission statistics in relation to the relevant offence in [191] of his judgment. The statistics do not reveal the factual circumstances of each case and whether or not vaginal intercourse occurred. However, the sentence which I propose would not be out of line with the range of sentences revealed by the Commission’s statistics.

3 The primary judge sentenced Papadopoulos to a term of 7 years and 4 months with a non-parole period of 5½ years for this offence. His Honour had the benefit of hearing the evidence and observing the relevant witnesses. This gave his Honour the advantage of being able to appreciate the atmosphere in which the offence occurred which no doubt influenced his Honour’s sentence.

4 HULME J: On 16 January 2006 Bulent Topcu was arraigned on charges that:-

1A. While in company with CD (he) did have sexual intercourse with AB, without the consent of AB, knowing that she was not consenting and at the time of the sexual intercourse did maliciously inflict actual bodily harm on her.

1B. In the alternative… while in company with CD did have sexual intercourse with AB, without…

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.

Keep reading for free

Create a free CaseChat account to read Papadopoulos v R Topcu v R and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWCCA 274
Decision Date: 12 September 2007

CaseChat Overview and Summary

In Papadopoulos v R and Topcu v R, the Court of Appeal heard appeals against convictions for sexual intercourse without consent. The appellants, Papadopoulos and Topcu, were found guilty of engaging in sexual intercourse with a woman who was incapable of consenting due to being unconscious. Each appellant argued that there was insufficient evidence to establish that the complainant was incapable of consenting due to intoxication. The Court of Appeal was required to determine whether the trial judges had erred in their findings regarding the complainant's incapacity to consent.

The court considered the evidence presented at trial, including medical evidence, witness statements, and the appellants' own admissions. The court found that the trial judges had properly considered the evidence and made findings that the complainant was incapable of consenting due to intoxication. The court held that the trial judges had not erred in their findings and that the convictions were properly based on the evidence presented. The court also rejected the appellants' arguments that the trial judges had failed to properly consider the defence of reasonable belief in consent.

The Court of Appeal dismissed the appeals against conviction. The convictions of Papadopoulos and Topcu for sexual intercourse without consent were upheld. The court found that the trial judges had properly considered the evidence and made findings that the complainant was incapable of consenting due to intoxication, and that the appellants had not established a reasonable belief in consent. The court held that the trial judges' findings were open on the evidence and that there was no error in the proceedings that would warrant interference by the Court of Appeal.

Orders