R v Kyriacou - [2000] SASC 312

R v KYRIACOU
[2000] SASC 312

Court of Criminal Appeal: Duggan, Nyland and Bleby JJ

1................ THE COURT:... The appellant appeals against his convictions. There are two grounds of appeal. Both allege a miscarriage of justice. Both relate to the conduct of the trial by the appellant’s counsel. One ground alleges that his counsel failed to put a key element of the appellant’s case to a material prosecution witness. The other relates to the circumstantial nature of the case against the appellant and the advice given to the appellant by his counsel at the end of the prosecution case not to give evidence. He complains that he was specifically but wrongly advised by his counsel that no comment could be made to the jury if he did not give evidence. He was advised not to give evidence, and although he had wished to give evidence, he acted on the advice and did not do so. As a result, the trial Judge gave a direction in accordance with Weissensteiner v The Queen (1993) 178 CLR 217 at 228 ‑ 229 to the effect that the inferences which the prosecution asked the jury to draw from the primary facts they found proved could be more safely drawn because the accused had elected not to give evidence.

The appellant argues that these two failures of his counsel, in combination, leave open the possibility that, had they not occurred, the prosecution would not have excluded a hypothesis consistent with innocence, and that there was “a significant possibility that a jury, acting reasonably, would have acquitted the appellant”: Mickelberg v The Queen (1989) 167 CLR 259 per Mason CJ at 273. See also Brennan J at 275; Toohey and Gaudron JJ at 301.
The appellant was charged with eight counts of operating an account with a cash dealer in a false name contrary to s 24(2) of the Financial Transactions Act 1988 (Cth). The offences were alleged to have occurred between 10 January and 19 January 1994. In each case the account in question was an account with the Westpac Bank at a branch in South Australia in the name of John Pengomitis. Counts 1 and 8 alleged the deposit of cheques in the account. Counts 2‑7 alleged the withdrawal of monies from the account.
The principal circumstantial evidence relied on by the prosecution was that a South Australian driver’s licence in the name of John Pengomitis, containing a photograph of the appellant and giving the appellant’s address, was issued on about 6 May 1993. A driver’s licence in that name was used to open the account, although the licence bearing the photographic image was not produced. What was produced was a temporary replacement licence issued on 20 September 1993, the same day as the bank account was opened. The address of the holder of the account was the appellant’s address. The appellant, in the name of John Pengomitis, sold or was involved in the selling of a stolen motor vehicle in Melbourne for $8,000…

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 Kyriacou

Details

AGLC: R v Kyriacou [2000] SASC 312
Case: [2000] SASC 312
Decision Date: 13 September 2000

CaseChat Overview and Summary

In the matter of R v Kyriacou, the appellant appealed against his convictions on two grounds, both alleging a miscarriage of justice related to the conduct of his trial counsel. The first ground claimed that counsel failed to present a crucial element of the appellant's case to a key prosecution witness. The second ground pertained to the circumstantial nature of the case against the appellant and the counsel's advice not to give evidence, which the appellant believed was incorrect and led him to refrain from testifying. The appellant argued that these failures, if not occurred, might have led the prosecution to exclude a hypothesis consistent with his innocence, thereby leaving open the possibility of an acquittal.

The court had to determine whether the appellant's counsel's conduct and advice amounted to a miscarriage of justice warranting a retrial. The court found that the counsel's failure to obtain detailed instructions, put the appellant's case to a crucial witness, and provide correct advice regarding the effect of the appellant not giving evidence compounded to deprive the appellant of a fair trial. The court concluded that the appellant's counsel's conduct amounted to a miscarriage of justice, and therefore, the appeal must be allowed and a retrial ordered.

Orders