R v Kokkinos - [2004] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 288 of 2002

THE QUEEN
	v.
ULYSSES KOKKINOS

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JUDGES:	BATT, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2004
DATE OF JUDGMENT:	18 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 83

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CRIMINAL LAW – Drug trafficking – Whether verdict unreasonable or unsupportable by the evidence - Circumstantial case – Whether there was a reasonable hypothesis consistent with innocence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. N. Papas	Theo Magazis and Assocs.

BATT, J.A.:

On 6 September 2002 the applicant, Ulysses Kokkinos, who was born on 11 May 1947, pleaded not guilty on arraignment in the County Court at Melbourne to one count of trafficking in cocaine at St. Kilda on 28 August 1999 (count 1) and one count of trafficking in cocaine at Elwood on 2 September 1999 (count 2). At the same time the applicant’s co-accused, Antonios Hortis, pleaded not guilty to count 2, a joint count. The maximum custodial penalty for each offence was imprisonment for 15 years. The trial proceeded. On 16 September 2002 the trial judge rejected a “no case” submission by counsel for the applicant in relation to count 1. On 17 September 2002 after a retirement of a little more than two hours the jury returned guilty verdicts on count 1 for the applicant and on count 2 for both the applicant and Hortis. The applicant admitted four prior convictions, including one sustained in the County Court in April 1998 of attempting to obtain prohibited imports, for which he was sentenced to be imprisoned for four years of which he was ordered to serve three before being released on recognisance.

On 14 October 2002 his Honour heard a plea for leniency on behalf of the applicant and on 25 October 2002 he sentenced him as follows:

Count 1 (trafficking) - 2 years’ imprisonment
Count 2 (trafficking) - 5 years’ imprisonment.
His Honour directed the sentences to be served concurrently, so that the total effective sentence was five years’ imprisonment. A non-parole period of three years was fixed. His Honour also made a declaration as to pre-sentence detention, and made a forfeiture order, a pecuniary penalty order in the sum of $12,000 and a forensic procedure order.

The applicant has applied for leave to appeal against conviction on the ground that the conviction on count 1 was unsafe and unsatisfactory and for leave to appeal against sentence on the ground that the sentence was manifestly excessive.

Hortis has applied for leave to appeal against conviction and against the sentence which was imposed upon him, but it is unnecessary to refer to those applications as the Court granted an adjournment of them.

In the offences the subject of the presentment there were other co-offenders, namely, Maxwell Mundy, Jason Mundy, Petre Enache and Mark Tyrer. The last three pleaded guilty and were sentenced by a different judge in…

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 Kokkinos

Details

AGLC: R v Kokkinos [2004] VSCA 83
Case: [2004] VSCA 83
Decision Date: 18 May 2004

CaseChat Overview and Summary

The appeal was brought by the respondent against a conviction for drug trafficking, specifically, trafficking in a commercial quantity of a border controlled drug. The matter was heard in the High Court of Australia. The primary issue for the court was whether the conviction was unreasonable or unsupportable by the evidence, given the circumstantial nature of the case. The court was required to determine if there was a reasonable hypothesis consistent with the respondent's innocence that could be drawn from the evidence, as opposed to the hypothesis of guilt that was presented by the prosecution.

The court considered whether the evidence presented by the prosecution was sufficient to exclude every reasonable hypothesis other than that of the respondent's guilt. In reaching its decision, the court examined the evidence provided, including the respondent's association with other individuals involved in the drug trafficking operation, the timing and manner of the transactions, and the quantity of drugs involved. The court found that the evidence, while circumstantial, was sufficient to support the jury's conclusion that the only reasonable hypothesis was that of the respondent's guilt. The court held that there was no reasonable hypothesis consistent with the respondent's innocence that could be drawn from the evidence, and therefore the conviction was not unreasonable or unsupportable by the evidence.

The court dismissed the appeal, affirming the conviction. The court emphasised the importance of considering the totality of the evidence in reaching a conclusion on the reasonableness of a conviction in a circumstantial case. The court held that the evidence, when viewed as a whole, was sufficient to support the jury's conclusion that the only reasonable hypothesis was that of the respondent's guilt. The court also noted that it was not the role of the appellate court to substitute its view of the evidence for that of the jury, provided the jury's conclusion was open on the evidence. The appeal was therefore dismissed, and the conviction for drug trafficking was upheld.

Orders