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Philopos v R

Philopos v R

Case [2008] NSWCCA 66 1 April 2008

Appeal

Jurisdiction

Standing

Admissibility of Evidence

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New South Wales
Court of Criminal Appeal

CITATION: PHILOPOS v R [2008] NSWCCA 66

HEARING DATE(S): 31 January 2008

JUDGMENT DATE:
1 April 2008

JUDGMENT OF: McClellan CJ at CL at 1; James J at 82; Barr J at 83

DECISION: 1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted but the appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - multiple counts of indecent assault and sexual intercourse without consent - whether appellant fit to be tried - no application made by defence counsel - whether trial judge erred in failing to grant adjournment for purpose of obtaining medical assessment as to state of mind of appellant - overwhelming Crown case - CRIMINAL LAW - legal representation - conflicting instructions from appellant - application by defence counsel for leave to withdraw - whether trial judge erred by refusing to grant adjournment for appellant to obtain other legal representation - whether lack of legal representation resulted in a miscarriage of justice - CRIMINAL LAW - sentencing - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Mental Health (Criminal Procedure) Act 1990

CATEGORY: Principal judgment

CASES CITED: Craig v South Australia (1995) 184 CLR 163
Dietrich v The Queen (1992) 177 CLR 292
Frawley v R (1993) 69 A Crim R 208
Greer v R (1992) 62 A Crim R 442
McInnis v The Queen (1979) 143 CLR 575
R v IAS (2004) 146 A Crim R 416; [2004] SASC 240
R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23
R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268

PARTIES: Raouf Maurice Philopos (Appellant)
The Crown

FILE NUMBER(S): CCA 3234/2007

COUNSEL: G Niven (Appellant)
D Arnott SC/J A Girdham (Crown)

SOLICITORS: Tsambas & Co (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0027

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 10 August 2006

2007/3234

McCLELLAN CJ at CL
JAMES J
BARR J
TUESDAY 1 APRIL 2008

PHILOPOS, Raouf Maurice v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted of six counts, being four counts of indecent assault contrary to s 61L of the Crimes Act 1900 and 2 counts of sexual intercourse without consent contrary to s 61I of the Act. The offence against s 61L carries a maximum penalty of 5 years imprisonment. The offence against s 61I carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years. The appellant was sentenced to an overall term of imprisonment of 12 years with a non-parole period of 8 years. He appeals against both his conviction and sentence.

The facts

2 On the evening of 2 April 2003 the appellant attended the emergency ward at Westmead Children’s Hospital with his young son who was suffering a severe asthma attack. In the early hours of 3 April at about 3.20 am the boy was transferred to…

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 Philopos v R

Details

AGLC: Philopos v R [2008] NSWCCA 66
Case: [2008] NSWCCA 66
Decision Date: 1 April 2008

CaseChat Overview and Summary

The appellant was convicted of multiple counts of indecent assault and sexual intercourse without consent. The trial judge found the appellant fit to be tried without requiring any medical assessment and without an application being made by the defence counsel. The appellant appealed against both the conviction and the sentence, arguing that the trial judge erred by not granting an adjournment to allow for a medical assessment of his state of mind and by refusing the defence counsel's application for leave to withdraw due to conflicting instructions. The appellant claimed these errors resulted in a miscarriage of justice.

The legal issues before the court were whether the trial judge erred in not ordering a medical assessment of the appellant's state of mind and whether the refusal of the adjournment for the appellant to obtain other legal representation constituted a miscarriage of justice. Additionally, the court had to determine if the sentence imposed was manifestly excessive. The appellant argued that the trial judge should have recognised the need for a medical assessment, especially given the nature of the charges and the appellant's history of mental health issues. Furthermore, the appellant's inconsistent instructions to his counsel warranted a reasonable adjournment to secure alternative legal representation.

The court found that the trial judge was correct in not ordering a medical assessment as there was no application made by the defence counsel and the appellant did not provide any evidence to support the need for such an assessment. The court also held that the refusal to grant the adjournment for the appellant to obtain other legal representation was not an error, as the appellant had not demonstrated that the lack of legal representation led to a miscarriage of justice. Regarding the sentence, the court concluded that it was not manifestly excessive, considering the gravity of the offences committed. The appeal against both the conviction and the sentence was dismissed.

Orders