(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
9 December 2004
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - PRIOR VISUAL IDENTIFICATION - IDENTIFICATION PARADES
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE
Convictions of arson - evidence - identification of appellant in line-up - previous statement of witness that he had seen a female - line-up comprised of men only - factors relevant to admissibility and weight of evidence - whether evidence of identification admissible - held inadmissible - Evidence of identification - directions to jury - whether directions adequate - Joint enterprise - elements of joint criminal enterprise - directions to jury - whether directions concerning joint criminal enterprise adequate - whether verdicts unsafe and unsatisfactory - appeals allowed
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ
DUGGAN J. I agree that the appeals should be allowed, the convictions set aside and a re-trial ordered.
I agree with the reasons for decision prepared by Bleby J.
BLEBY J.
Introduction
In the early hours of 25 May 2002 the Warradale Food Mart at 111 Diagonal Road, Warradale was destroyed by fire. There was evidence that a person or persons had poured kerosene under the rear door of the premises and that the premises were then ignited from the outside. The premises had been for sale at the time of the fire because of some financial difficulties in which the owner, Ms Pavlakos, found herself.
The present appellants were jointly charged with arson in respect of the fire. They pleaded not guilty, and on 21 January 2004 were both found guilty of that charge by a jury. They now appeal against their convictions, but on different grounds.
The evidence at the trial
The prosecution alleged that the appellants were involved in a joint enterprise with an unknown male to set fire to the premises.
A witness, Mr Marinakis, was the owner and operator of a taxi cab. He was working the night shift that night. He stopped for a break at the Saville Motel in Hindley Street, Adelaide and was playing the poker machines in the early hours of the morning. He was approached by the appellant, Stefanopoulos, whom he had known by his first name,…
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.
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Details
AGLC
R v Kostic and Stefanopoulos [2004] SASC 406
Case
[2004] SASC 406
Decision Date
CaseChat Overview and Summary
The case of R v Kostic and Stefanopoulos involved two appellants charged with arson, who were found guilty by a jury and subsequently appealed their convictions. The crux of their appeal was the admissibility of certain evidence, particularly an identification made by a witness, and the adequacy of the jury directions concerning joint criminal enterprise. The appellants argued that the evidence was inadmissible and that the jury directions were insufficient, leading to an unsafe and unsatisfactory verdict.
The legal issues before the court included the admissibility and weight of evidence related to witness identification, particularly when the witness had initially identified a female suspect and the subsequent identification parade only included men. Additionally, the court had to assess whether the jury directions on the concept of joint criminal enterprise were adequate to ensure a fair trial. The court held that the evidence of identification was inadmissible due to the initial misidentification and the subsequent improper identification parade. Furthermore, the court found that the jury directions on joint criminal enterprise were insufficient, leading to an unsafe and unsatisfactory verdict.
In light of these findings, the court allowed the appeals of both appellants, setting aside their convictions and directing a retrial for Kostic. For Stefanopoulos, while the evidence of his involvement in the joint enterprise was deemed sufficient, the inadequate jury directions necessitated a retrial to ensure a fair trial. The court concluded that the verdicts were unsafe and unsatisfactory due to the inadmissible evidence and inadequate directions, thereby mandating new trials for both appellants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The present appellants were jointly charged with arson in respect of the fire. They pleaded not guilty, and on 21 January 2004 were both found guilty of that charge by a jury. They now appeal against their convictions, but on different grounds.The evidence at the trial The prosecution alleged that the appellants were involved in a joint enterprise with an unknown male to set fire to the premises. A witness, Mr Marinakis, was the owner and operator of a taxi cab. He was working the night shift that night. He stopped for a break at the Saville Motel in Hindley Street, Adelaide and was playing the poker machines in the early hours of the morning. He was approached by the appellant, Stefanopoulos, whom he had known by his first name, Con, for some time. He was asked by Stefanopoulos to drive him and two others to Warradale. He said that he declined at first but eventually relented and agreed to take them. He was acquainted with and knew the first name of the appellant Kostic, but he did not know and had not previously met the third man. The third man was described as being a tall man. Both men were standing by when Stefanopoulos was asking Marinakis to drive the three of them to Warradale. Marinakis’ evidence was that during the course of the journey one of the passengers in the rear seat – Marinakis did not know who – asked Stefanopoulos, sitting in the front passenger’s seat, if he (Marinakis) was “okay”. Stefanopoulos answered that he was and he had known him for years. The men requested to stop at a service station. Marinakis drove them into the BP Service Station at the intersection of South Road and Anzac Highway, Glandore. All three men went into the service station. Stefanopoulos returned first and the other two followed shortly. Marinakis believed that they had bought chocolate bars and maybe a drink. Stefanopoulos had bought a pornographic magazine. He also saw the unknown man with a carry bag, like a backpack, which he had when the journey had begun and which he was closing as he came out of the service station shop. He heard the unknown man say to one of the others that he had got three of something. Marinakis did not know what it was that he had obtained. Marinakis was then directed to drive to a small street known as The Triangle near the intersection of Oaklands Road and Diagonal Road, Warradale which was not far from the scene of the arson. One end of The Triangle joined Diagonal Road on the latter’s western side. Diagonal Road was also readily accessible from the other end of The Triangle. The Warradale Food Mart was also on the western side of Diagonal Road. Marinakis stopped the taxi facing east towards Diagonal Road and saw the appellant Kostic, and the unknown male walk off in a westerly direction behind the cab. Stefanopoulos stayed standing outside the taxi with Marinakis. Marinakis saw the porch light of a nearby house come on. He did not want to disturb the residents so he moved his car about 15 metres towards Diagonal Road. He and Stefanopoulos remained in the car until the others returned, he thought about 10 minutes later, from the direction in which they had left. The two men got back into the cab, the appellant Kostic, and the unknown man sitting in the back. The unknown man said, “Sorry about the smell. I think I have spilt something” or words to that effect. Marinakis was not aware of any smell at that time. He also said that when Kostic returned to the taxi he asked Stefanopoulos why he did not come with them. Marinakis’ evidence was:“Con responded that ‘we need a lift back’, that he needed to stay with me because I might not have been there when they returned.”
Decision
Reasons for decision
DUGGAN J
BLEBY J
ANDERSON J
In my opinion these criticisms add nothing to the argument based on the inadmissibility of Mr Bradshaw’s evidence of identity which, in itself, renders the verdict unsafe. There was evidence, apart from Mr Bradshaw’s evidence of identity, from which the jury could conclude that Mr Kostic was involved in a joint enterprise to burn the delicatessen. There was evidence that he was present when the transport by means of Mr Marinakis’ taxi was arranged. There was evidence that he was present in the taxi and that he was present when comments consistent with a plan to commit a crime were being made in the form of asking whether Marinakis was “okay”. There was evidence that he was present when the kerosene was purchased at the BP Service Station. There was evidence that he got out of the taxi close to the scene, that he left the taxi with the unknown male, that he returned to the taxi some time later, and that there was then a smell about the two men consistent with that of an accelerant. There was also evidence that he made comments to Marinakis after the crime consistent with his having been present, and he was seen at the home of the owner of the premises three months after the arson was committed. Mr Marinakis’ evidence, which was that principally under attack by Mr Kostic, was corroborated at a number of points. The criticisms and strength of his evidence were matters properly left for the jury to decide. Without Mr Bradshaw’s evidence of identification there was evidence which could support the conviction.Conclusion It follows that I would allow the appeal by Mr Kostic, set aside the conviction and direct a retrial of Mr Kostic.THE APPEAL OF MR STEFANOPOULOSJoint enterprise The case against Mr Stefanopoulos was that he was involved, with the other two men, in a joint enterprise to set fire to the delicatessen. The evidence of his involvement was that it was he who arranged the taxi transport with his acquaintance, Mr Marinakis, for the purpose of going to the scene of the arson. He went into the service station with the other two at the time when kerosene was purchased. He remained with Mr Marinakis at his taxi while the other two began the fire in order to ensure that he did not leave and was available to evacuate them from the scene. In the circumstances it was necessary that a clear and full direction be given to the jury to explain carefully the necessary element of joint criminal enterprise and to identify the evidence said to establish Mr Stefanopoulos’ participation in such a joint criminal enterprise. In the course of his summing up the Judge gave an explanation to the jury that because the two men were charged with the offence it was a joint offence and therefore the two could be tried together. He pointed out, however, the need to consider the evidence against each accused separately. The Judge then continued:“As you have heard a number of times, the basic legal principle is that if two or more people act together in pursuance of a common or unlawful purpose, every act done really in the furtherance of that purpose by one or more of them is, in law, in effect, done by them all, and notwithstanding the part that they played, because they say that there is that common criminal intent which has been previously agreed upon, so that makes them all guilty of the resulting crime.You have heard several times here the illustration of the armed robber and the people playing separate roles, so you can see the elements that are apparent in that illustration. Really, it is a common purpose and it is persons concerned very much to be acting in agreement to achieve a result.But in order to prove that an accused who is not the actual perpetrator is guilty, it is necessary, of course, as has been mentioned, for the prosecution to prove beyond a reasonable doubt a number of things: that, of course, the alleged crime was committed; that the accused was a party to that common purpose or agreement with the other person; that the common purpose, of course, included the commission of the crime charged; that the accused was present at or about the vicinity of the crime scene, in effect playing out his or her part.The agreement need not be anything of a formal nature. It may be simply a tacit understanding. It may even be arrived at without a word spoken, and it may be something which has occurred on the spur of the moment, but what is essential, of course, is that those parties are acting in concern (sic) or in collaboration in the pursuance of that unlawful purpose or act, and so that is why these two men have been charged jointly; because, as you have heard the Crown say, of the nature of this planning and because they say they were both involved.”