R v Karapandzk - [2008] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KARAPANDZK
[2008] SASC 126
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)
13 May 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appellant convicted of one count of committing an act of gross indecency in the presence of a person under the age of 16 years - three counts of unlawful sexual intercourse with a person under the age of 17 years - and one count of attempted unlawful sexual intercourse pursuant to s 49(3) and s 58 of the Criminal Law Consolidation Act 1935 (SA) - whether the trial Judge erred in permitting the prosecutor to lead evidence of prior consistent statements which tended to rebut an argument that the complaints were a recent invention - whether evidence more prejudicial than probative - whether evidence tended to support statements made by the complainant in cross-examination - whether trial Judge failed to direct the jury adequately as to the function of that evidence - whether trial Judge failed to direct the jury adequately as to the evidence of the complainant - whether verdicts are unreasoanble and cannot be supported - appeal dismissed.
Permissible scope of defence opening address pursuant to s 288A of the Criminal Law Consolidation Act 1935 (SA).
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 58, s 288A; Criminal Procedure Act 1986 (NSW) s 159, referred to.
R v Martin (1996) 65 SASR 590; Nominal Defendant v Clements (1960) 104 CLR 476; R v MacBeth [2008] SASC 71; R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148, applied.

R v KARAPANDZK
[2008] SASC 126
Court of Criminal Appeal: Doyle CJ, Duggan and David JJ

DOYLE CJ: Mr Karapandzk appeals against convictions recorded by the District Court.
After a trial before a jury, Mr Karapandzk was convicted on five counts, and acquitted on one count. The offences were alleged to have been committed between 1981 and 1985. The complainant in each case was the same girl. I will refer to her as JA. She was aged between 12 years and 16 years when the alleged offences were committed. She turned 17 years of age on 17 October 1985. Mr Karapandzk was in his fifties at the time of the alleged offences.
He was convicted of one count of committing an act of gross indecency in the presence of JA (count 1); on one count of attempted unlawful sexual intercourse with JA (count 2), and on three counts of unlawful…

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 Karapandzk

Details

AGLC: R v Karapandzk [2008] SASC 126
Case: [2008] SASC 126
Decision Date: 13 May 2008

CaseChat Overview and Summary

The appellant, Mr Karapandzk, appealed against his convictions on several counts related to sexual offences against a person under the age of 17. These included committing an act of gross indecency in the presence of a person under 16 years, unlawful sexual intercourse with a person under 17 years, and attempted unlawful sexual intercourse. The appeal centred on several grounds, including the alleged improper admission or rejection of evidence, misdirection and non-direction, and the reasonableness of the verdicts. The crux of the appeal was the trial judge's handling of evidence and instructions to the jury.

The legal issues before the court included whether the trial judge erred in permitting the prosecutor to lead evidence of prior consistent statements that rebutted an argument that the complaints were a recent invention. The court also considered whether this evidence was more prejudicial than probative and whether it supported statements made by the complainant in cross-examination. Furthermore, the court examined whether the trial judge adequately directed the jury on the function of that evidence and the evidence of the complainant. Finally, the court assessed whether the verdicts were unreasonable and could not be supported by the evidence.

The court found that the trial judge did not err in permitting the evidence of prior consistent statements, as it was relevant to rebut the defence argument and was not unduly prejudicial. The judge's directions to the jury were considered adequate, and the verdicts were deemed reasonable and supported by the evidence. Consequently, the appeal was dismissed, and the convictions were upheld.

The court did not make any further orders, as the appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

After the conclusion of the prosecutor’s opening address, counsel for Mr Karapandzk addressed the jury briefly. This was done in exercise of the right conferred by s 288A of the Criminal Law Consolidation Act 1935 (SA). That section relevantly provides as follows:288A—Defence to be invited to outline issues in dispute at conclusion of opening address for the prosecution(1)On the trial of an offence on information, the judge is to invite the defendant, at the conclusion of the prosecutor's opening address, to address the court to outline the issues in contention between the prosecution and the defence.(2)The defendant may then address the court accordingly or decline the invitation.… Defence counsel began with some general observations. He reminded the jury that what they had heard in the prosecutor’s opening was no more than allegations; that they should keep an open mind until they had heard all of the evidence; that an accused person is presumed innocent of a criminal charge; and that Mr Karapandzk did not have to prove his innocence, but that it was for the prosecution to prove the charges beyond reasonable doubt. Counsel then said that he would “define some of the issues in this trial in broad terms …”. He told them that Mr Karapandzk was an elderly man, 77 years of age. He told them he had a Croatian background and was not fluent in the English language; that it was not disputed that he worked at the cathedral as a cleaner and handyman between 1981 and 1985; that it was not in dispute that he knew JA while she was a student at the College. He then told them that Mr Karapandzk denied any sexual relationship with JA while she was at the College, but said that the nature of their relationship changed after she left school, when Mr Karapandzk became a client of JA’s, and “paid her for sex”, after she was over the age of 17. He said that that relationship persisted for some time. Counsel then repeated, briefly, the denial of sexual activity while JA was at school, and the admission of a sexual relationship after she turned 17. The trial Judge did not comment on the address by defence counsel. Nor was the issue raised on appeal. After submissions had been completed, the Court invited counsel to put submissions on the question of whether the address went beyond what s 288A permits. The Court considered that the question was of some practical importance, although it would not affect the outcome of the appeal. The Court allowed the South Australian Bar Association and the Law Society of South Australia to put submissions by counsel, having regard to the practical importance of the issue. Section 288A permits an address “… to outline the issues in contention between the prosecution and the defence”. There is no reason to read s 288A in a narrow or pedantic manner. But it must be remembered that it requires a trial judge to allow counsel “to outline the issues in contention”. The section does not permit counsel to address the jury on the defence case generally, or even on such aspects of the defence case as counsel might wish to raise with the jury. Nor does the section allow counsel to address the jury on the case at large, or on matters, such as the burden of proof, that routinely arise in a criminal trial.

Ratio Decidendi

Legal Principle Established

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