R v Kostaras

Case [2002] SASC 326

R  v  KOSTARAS
[2002] SASC 326

Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ

  1. 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.

  2. 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

  3. 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.

  4. 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.

  5. 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.

  6. 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”.

  7. 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…

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Details
AGLC
R v Kostaras [2002] SASC 326
Case
[2002] SASC 326
Decision Date

CaseChat Overview and Summary

In the case of R v Kostaras, the appellant was convicted of indecent assault by the District Court. The conviction was appealed to the South Australian Court of Criminal Appeal. The central dispute in this case concerns the credibility of the appellant's evidence and whether the jury was properly directed in considering this evidence. The appellant, a teacher, was accused of engaging in inappropriate conduct with a student. The primary evidence against the appellant included the testimony of the complainant and the appellant himself. The legal issues before the court were whether the trial judge had erred in the directions given to the jury regarding the assessment of the credibility of the appellant and whether these errors were so significant that they warranted a retrial.

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms T gave evidence about an incident at the premises of the business in which the appellant had an interest. Ms T and the appellant were the directors of and shareholders in the company that conducted the business. The incident occurred on a night in mid-1987. Ms T arrived at the premises at about 7.30 pm or 8 pm and turned on the lights. The appellant appeared, looking flustered. He had come from a back room. He told her he was showing someone through the building. She did not see the complainant on the premises. On a number of occasions, including on the day after this incident, the appellant left cheques for Ms T to sign for payment to one of his students for cleaning up after hours. Ms T also gave evidence that the appellant had told her he was gay.Evidence of the Appellant The appellant gave evidence that the complainant displayed interest in him and that the complainant would often approach the appellant and wait for him outside class at school. The appellant said the complainant initiated out-of-school contact by asking the appellant to take him to the gym and to drive him home, by following the appellant while the appellant was running, by visiting the appellant’s home uninvited and so on. In other words, on the appellant’s evidence it was the complainant who wanted contact and initiated it. The appellant acknowledged that he had spent time outside school with the complainant. He took the complainant to his home, arranged work experience for him at his business, took him to a fashion award dinner and to meet his mother, and on a couple of occasions picked the complainant up from the Oaks Tavern, where the complainant had casual employment, and drove him home. This was despite the appellant’s assertions that he was “concerned” about the interest that the complainant showed in him, and that he was at times “unimpressed” when the complainant visited him uninvited. He did not think he was encouraging the complainant or that he was acting inappropriately in his out-of-school contact with him. The appellant “accepted” rather than “encouraged” the complainant’s interest in him and the out-of-school contact. The appellant denied that he had any sexual contact with the complainant and denied that he encouraged the relationship out of a sexual motive towards the complainant. In answer to a question put to him in examination-in-chief, the appellant said that there had never been any complaints about him concerning any of his students until 2000, at which time the police approached him about the complainant. The appellant said he had not been to court before and had no prior convictions. Counsel for the appellant suggested that the appellant was of “good reputation” and the appellant said he was. In cross-examination the appellant was asked about a complaint that had been made about him by two of his students while he was teaching at the South Australian Remand and Assessment Centre (“SARAC”). The appellant denied that the complaint carried any suggestion of sexual impropriety. The appellant was shown two letters (exhibits P8 and P9) written to him by the SARAC principal which included references to a concern by one of the students who had complained that the appellant’s interest in the student was sexual. The letters discussed the complaint and discussed appropriate standards of behaviour on the part of teachers towards students. The author of the letters said that her conclusion was that the appellant was merely offering “help and friendship”, but that the appellant needed to recognise that some of his methods were inappropriate. The appellant had endorsed the letters to the effect that he had read and understood their contents. In cross-examination he accepted the contents of the letters but could not recall details of the complaint. He recalled that subsequently he had requested a transfer from SARAC.

Decision

Reasons for decision

I reject this ground of appeal.Conclusions For the above reasons, I would allow the appeal and set aside the conviction recorded in the District Court. In my view, it is appropriate to order a re-trial. The evidence before the jury was evidence upon which a jury, properly directed, might convict. WICKS J: I agree. BESANKO J: I agree with the reasons of the Chief Justice and with the orders which he proposes.

Ratio Decidendi

Legal Principle Established

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