R v Kalliris - [2006] QCA 321

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kalliris [2006] QCA 321

PARTIES:

R
v
KALLIRIS, Constantinos
(appellant)

FILE NO/S:

CA No 253 of 2005
DC No 23 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Bowen

DELIVERED ON:

30 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2006

JUDGES:

McMurdo P, Holmes JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction allowed
2. Retrial ordered on counts 2 and 3

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where appellant tried on indictment containing four counts: counts 1 and 2 alleging rape; count 3 alleging exposure of a child to an indecent act; count 4 alleging indecent dealing – both counts 3 and 4 involved the circumstance of aggravation that the child was under 12 years – whether conviction on counts 2 and 3 was inconsistent with acquittal on counts 1 and 4

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHARACTER AND PREVIOUS CONVICTIONS – ADMISSIBILITY IN CROSS-EXAMINATION – where appellant was cross-examined in relation to previous convictions and complainant’s motive to lie – where trial judge did not relevantly direct on evidence of lack of motive to lie – whether application to cross-examine on previous convictions properly granted – whether cross-examination as to motive to lie should have been permitted

Evidence Act 1977 (Qld), s 15(2), a 15(3)

De Jesus v R (1986) 68 QLR 1, considered
MacKenzie v The Queen (1996) 190 CLR 348, applied
Matusevich v The Queen (1977) 137 CLR 633, considered MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, applied
Palmer v The Queen (1998) 193 CLR 1, applied
Phillips v The Queen (1985) 159 CLR 45, applied
R v Brown [1960] VR 382, considered
R v SCA [2001] QCA 199; (2002) 2 Qd R 70, considered

COUNSEL:

S J Hamlyn-Harris for the appellant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with Holmes JA's reasons for allowing the appeal.

I wish only to add some further brief comments as to the miscarriage of the judicial discretion under s 15(3) Evidence Act 1977 (Qld) ("the Act") to allow cross‑examination of the appellant about his prior convictions under the exception provided for in s 15(2)(c) of the Act. Particular care was needed in this case in exercising that discretion. As Gibbs CJ observed in De Jesus v R[1] "Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard." That is especially so where, as here, the complainant was an eight year old girl…

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 R v Kalliris

Details

AGLC: R v Kalliris [2006] QCA 321
Case: [2006] QCA 321
Decision Date: 30 August 2006

CaseChat Overview and Summary

The case of R v Kalliris involved the appellant who was convicted on counts 2 and 3 of a four-count indictment, following a trial in the Supreme Court of South Australia. Counts 1 and 2 related to rape, while counts 3 and 4 involved the exposure of a child to an indecent act and indecent dealing, respectively. Both counts 3 and 4 carried the aggravating factor that the child was under 12 years of age. The appellant was acquitted on counts 1 and 4. The appellant appealed against his conviction on the basis that the verdict was unreasonable and that there were significant evidentiary issues, including the admissibility of cross-examination about previous convictions and the complainant’s motive to lie.

The primary legal issues in the appeal centred on whether the appellant's convictions on counts 2 and 3 were inconsistent with his acquittal on counts 1 and 4, and whether the trial judge properly allowed the cross-examination of the appellant regarding his previous convictions and the complainant’s motive to lie. The appellant argued that the acquittal on counts 1 and 4 rendered the convictions on counts 2 and 3 unreasonable or unsafe, and that the trial judge erred in not providing a relevant direction to the jury regarding the complainant’s motive to lie. Additionally, the appellant contended that the trial judge improperly allowed cross-examination regarding previous convictions and the complainant’s motive to lie.

The court found that the verdicts on counts 2 and 3 were indeed inconsistent with the acquittal on counts 1 and 4, leading to an unreasonable and unsafe conclusion. The court held that the trial judge should have directed the jury on the complainant’s motive to lie and that the cross-examination regarding the appellant’s previous convictions and the complainant’s motive to lie was improperly conducted. Consequently, the appeal against the conviction was allowed, and a retrial was ordered on counts 2 and 3.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Retrial ordered on counts 2 and 3

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Kalliris [2006] QCA 321
PARTIES:	R v KALLIRIS, Constantinos (appellant)
FILE NO/S:	CA No 253 of 2005 DC No 23 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Bowen
DELIVERED ON:	30 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2006
JUDGES:	McMurdo P, Holmes JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction allowed 2. Retrial ordered on counts 2 and 3
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES – where appellant tried on indictment containing four counts: counts 1 and 2 alleging rape; count 3 alleging exposure of a child to an indecent act; count 4 alleging indecent dealing – both counts 3 and 4 involved the circumstance of aggravation that the child was under 12 years – whether conviction on counts 2 and 3 was inconsistent with acquittal on counts 1 and 4 CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHARACTER AND PREVIOUS CONVICTIONS – ADMISSIBILITY IN CROSS-EXAMINATION – where appellant was cross-examined in relation to previous convictions and complainant’s motive to lie – where trial judge did not relevantly direct on evidence of lack of motive to lie – whether application to cross-examine on previous convictions properly granted – whether cross-examination as to motive to lie should have been permitted Evidence Act 1977 (Qld), s 15(2), a 15(3) De Jesus v R (1986) 68 QLR 1, considered MacKenzie v The Queen (1996) 190 CLR 348, applied Matusevich v The Queen (1977) 137 CLR 633, considered MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, applied Palmer v The Queen (1998) 193 CLR 1, applied Phillips v The Queen (1985) 159 CLR 45, applied R v Brown [1960] VR 382, considered R v SCA [2001] QCA 199; (2002) 2 Qd R 70, considered
COUNSEL:	S J Hamlyn-Harris for the appellant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent