R v Georgos Georgatsoulis Nos. SCCRM 94/118 and SCCRM 94/150 Judgment No. 4580 Number of Pages 13 Criminal Law and Procedure Evidence (1994) 62 Sasr 351 - [1994] SASC 4580

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MOHR(2) AND NYLAND(3) JJ

CWDS
Criminal law and procedure - particular offences - Murder - Provocation - objective test - summing up - whether relevance of personal characteristics of accused sufficiently explained to jury - accused's subjective perception of gravity of of fence irrelevant for objective test - intoxication irrelevant for objective test. Stingel v R (1990) 171 CLR 312 and R v Romano (1984) 36 SASR 283, applied. R v Fry (1992) 58 SASR 424 at p.440, discussed.

Evidence - Testimony on murder case of witnesses as to deceased's statements indicating her state of mind in relation to accused's attentions to her, not inadmissible hearsay - deceased's state of mind relevant as indicating nature of relationship with accused.

Criminal law and procedure - jurisdiction, practice and procedure - Summing up - reference to jury's acceptance or non-acceptance of accused's evidence permissible if onus of proof properly explained elsewhere - reference to deceased not being alive to give her version of events permissible. Blatch v Archer (1774) 1 Cowp 64; 98 ER 969, applied.

HRNG ADELAIDE, 19, 22 April, 25 May 1994 #DATE 9:6:1994

Counsel for appellant: Mrs M E Shaw

Solicitors for appellant: Zacharoyannis Luppino and Eckermann

Counsel for respondent: Mr P J L Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant was tried by judge and jury in the Supreme Court on an information containing three counts. The first count charged that on the 8th April 1993 he murdered Lisa Mazzone. The second count charged attempted murder of Luigi Stillitano. The third count was an alternative to the second count and charged wounding Stillitano with intent to do grievous bodily harm. The appellant was found guilty on the first and third counts and not guilty on the second count. He has appealed to this Court against his conviction on the murder count.

2. The deceased was a 24 year old unmarried woman who lived with her fiance. The appellant is an unmarried man who was aged 50 years at the time of the alleged crimes. He was born in Greece and came to this country in 1965. His command of the English language was limited. The appellant and the deceased worked together as kitchenhands and undertook related duties in a food establishment known as a diner. They had worked together there for several months. The appellant became infatuated with the deceased and began to pay her attentions. He had flowers delivered to her from time to time and at times touched her in a familiar way. The deceased's state of mind towards the appellant, as disclosed by her words and actions in his absence, was one of disinterest amounting to disdain.

3. On the day of the tragedy the appellant and the deceased had a meal break about 3 o'clock in the afternoon. They took a meal together at a nearby…

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.

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Details

AGLC: R v Georgos Georgatsoulis Nos. SCCRM 94/118 and SCCRM 94/150 Judgment No. 4580 Number of Pages 13 Criminal Law and Procedure Evidence (1994) 62 Sasr 351 [1994] SASC 4580
Case: [1994] SASC 4580
Decision Date: 9 June 1994

CaseChat Overview and Summary

The case before the Full Court of the Supreme Court of South Australia was an appeal by Georgos Georgatsoulis against his conviction of murder, as well as against his conviction of wounding with intent to do grievous bodily harm, which was an alternative count to attempted murder. The appellant had been found guilty of murdering Lisa Mazzone and of wounding Luigi Stillitano with intent to do grievous bodily harm, but was found not guilty of attempted murder. The appeal was against his conviction for murder. The court found that the directions given by the trial judge to the jury on the matter of provocation were adequate and that the appeal against conviction should be dismissed. The court also dismissed the appeal against the sentence imposed, which was a life sentence for the murder with a non-parole period of twenty-five years. The court found that the sentence, while severe, was not manifestly excessive given the circumstances of the case.

The legal issues before the court were whether the trial judge had adequately directed the jury on the matter of provocation and whether there had been any misdirection or error in the summing up that could have affected the outcome of the trial. The court found that the trial judge's directions on the matter of provocation were adequate, even though not perfect, and that the jury would have been able to understand the relevant law. The court also found that there had been no misdirection or error in the summing up that could have affected the outcome of the trial. The court found that the appellant's convictions were safe and that the appeal should be dismissed. The court also found that the sentence imposed was not manifestly excessive and that the appeal against sentence should also be dismissed.

Orders