R v KOSTARAS
[2002] SASC 326Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ
DOYLE CJ: The appellant was convicted on the verdict of a jury of four counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935.
Leave to appeal against conviction on two grounds was granted on 12 July 2002. Those grounds appear as grounds 1 and 2 of the Amended Grounds of Appeal (“the Amended Grounds”). Leave to appeal against conviction on ground 6 of the Amended Grounds was granted by consent at the hearing of the appeal. The appellant seeks leave to amend his grounds of appeal to add grounds 3, 4, 5, and 7. The application for leave to amend the grounds of appeal and the appeal were heard together.
The Offences
The four counts of unlawful sexual intercourse relate to four separate occasions on which the appellant allegedly performed an act of fellatio on the complainant. The complainant was under the age of 17 years at the time of the offences. The offences occurred between 1 January 1987 and 31 December 1987.
The appellant was a secondary school teacher, and at the time of the offences the complainant was one of the appellant’s students. In 1987, the complainant was in Year 11 and was 15 years of age. The appellant showed considerable interest in the complainant and in what he was doing at school. The two became “good friends” in the complainant’s words. They spent time together after school hours. The complainant often went to the appellant’s home and to other places with the appellant. On occasions, the complainant would travel with the appellant in the appellant’s car, and sometimes the complainant would drive the car. The evidence of the complainant was that the appellant gave him alcohol on some occasions when he was at the appellant’s home.
The first count related to an incident on an evening about mid-year in 1987 at the appellant’s home. The complainant had been drinking beer given to him by the appellant and was intoxicated. The appellant tried to kiss the complainant and the complainant resisted. The complainant ended up in the appellant’s bedroom, where the appellant removed the complainant’s trousers and underwear and performed an act of fellatio upon him.
The evidence of the complainant was that there were numerous other occasions during 1987 on which the appellant performed acts of fellatio upon him, of which the incidents the subject of the other three counts were examples remembered by the complainant by reference to other events. I will refer to these incidents on occasions as “the uncharged acts”.
Count 2 related to an incident at the premises of a business in which the appellant had an interest. Count 3 related to an incident at another house, and count 4 related to another incident at the appellant’s home. The evidence of the complainant was that the acts of fellatio were often accompanied by the complainant masturbating the appellant or the…
Continue reading R v Kostaras
Sign in free to access the full text
- AGLC
- R v Kostaras [2002] SASC 326
- Case
- [2002] SASC 326
- Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal found that the trial judge had indeed erred in the directions given to the jury regarding the credibility of the appellant. The trial judge had failed to sufficiently highlight the importance of assessing the appellant's credibility in light of the prior complaint made by another student, which suggested inappropriate conduct. The Court held that these errors in direction were substantial enough to potentially affect the outcome of the trial. Therefore, the appeal was allowed, the conviction was set aside, and a re-trial was ordered. The judges of the Court of Criminal Appeal unanimously agreed with the reasons provided by the Chief Justice and concurred with the proposed orders.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.