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R v Lykouras

R v Lykouras

Case [2005] NSWCCA 8 4 February 2005

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CITATION:
Regina v Lykouras [2005] NSWCCA 8

HEARING DATE(S): 18/11/2004

JUDGMENT DATE:

4 February 2005

JUDGMENT OF:
Sully J at 1; Hidden J at 2; Howie J at 3

DECISION:
Leave to appeal against the order granting leave to the Crown to amend the indictment is granted but the appeal is refused. The appeal by the Crown against the order for separate trials is allowed and the order quashed.

CATCHWORDS:
Criminal Law - Practice and Procedure - Application by Crown to amend indictment to add alternative count - Application granted by trial judge who ordered separate trials of the two counts - whether leave to amend indictment should have been granted - if so whether separate trials should have been ordered.

LEGISLATION CITED:

Criminal Procedure Act 1986 - s 20
Crimes Act 1900 - s 52A(3)(a)
Evidence Act 1995 - s 138

CASES CITED:
Beach (1994) 75 A Crim R 447
R v Gulliford [2004] NSWCCA 338
R v McBride [1962] 2 QB 167
R v Thorpe [1972] 1 All ER 929
R v Woodward [1995] 3 All ER 79
Owens (1987) 30 A Crim R 59
R v Johnston (1998) 45 NSWLR 362

PARTIES:
Regina v Paul Lykouras

FILE NUMBER(S):
CCA 2004/2633

COUNSEL:
G. Rowling - Crown
J. Doris - Applicant

SOLICITORS:
S. Kavanagh - Crown
G. Meakin - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/3159

LOWER COURT JUDICIAL OFFICER:
Gibb DCJ

2004/2633 CCAP

SULLY J
HIDDEN J
HOWIE J
FRIDAY 4 FEBRUARY 2005

REGINA v PAUL LYKOURAS

Judgment

1 SULLY J: I agree with Howie J.

2 HIDDEN J: I agree with Howie J.

3 HOWIE J: This is an application for leave to appeal against an interlocutory order made by Judge Gibb in the District Court on 12 October 2004 when her Honour granted leave to the Crown to amend an indictment under s 20 of the Criminal Procedure Act. The effect of the order was to permit the Crown to add a further and alternative count to the indictment that had previously been presented against the applicant. Her Honour having granted leave to amend the indictment, however, thereupon ordered that there be separate trials of the two counts. At the hearing of this application, the Court granted leave to the Crown to file an appeal against the order granting separate trials.

4 The facts can be briefly stated. On 18 June 2004 the applicant was committed for trial to the District Court on an offence contrary to s 52A(3)(a) of the Crimes Act. An indictment was initially presented to the District Court containing a single count in the following terms:

5…

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 Lykouras

Details

AGLC: R v Lykouras [2005] NSWCCA 8
Case: [2005] NSWCCA 8
Decision Date: 4 February 2005

CaseChat Overview and Summary

In the matter of R v Lykouras, the applicant, the respondent was the Crown. The case was heard in the High Court of Australia. The dispute revolved around the respondent's application to amend the indictment to include an alternative count, which the trial judge subsequently allowed. The trial judge ordered separate trials for the two counts. The central legal issues before the court were whether the leave to amend the indictment should have been granted and, if so, whether separate trials should have been ordered.

The court considered the principles surrounding the amendment of indictments and the discretion of the trial judge in this matter. It was established that a trial judge has the authority to permit the amendment of an indictment to include an alternative count if it is in the interests of justice. However, the court needed to determine whether, in this instance, the trial judge had exercised that discretion appropriately. Additionally, the court examined whether the decision to conduct separate trials was justified under the circumstances.

Upon reviewing the trial judge's decision, the court concluded that the amendment to the indictment was permissible and in the interests of justice. However, the court found that the decision to conduct separate trials was not appropriate. The court held that the trial judge had overstepped their discretion by ordering separate trials, which could have potentially prejudiced the applicant. Consequently, the High Court quashed the orders for separate trials, while affirming the decision to allow the amendment of the indictment.

The final orders of the court were that the amendment of the indictment to include the alternative count was affirmed. However, the orders for separate trials were quashed, and the matter was remitted to the trial court for further proceedings in accordance with the court's judgment.

Orders