R v Magoulias - [2003] NSWCCA 143

CITATION: Regina v Ross Magoulias [2003] NSWCCA 143

HEARING DATE(S): 28/04/03

JUDGMENT DATE:
26 May 2003

JUDGMENT OF: Ipp JA at 1; Buddin J at 2; Smart AJ at 3

DECISION: Appeal dismissed

CATCHWORDS: Detain with intent to carnally know - visual identification evidence unsatisfactory - strong circumstantial case - non-synchronisation of timing devices - common knowledge - ss 144 & 146 of Evidence Act 1995

LEGISLATION CITED: Evidence Act 1995

PARTIES :
Regina v Ross Magoulias

FILE NUMBER(S): CCA 60505/02

COUNSEL: (A) M Buscombe
(C) D C Frearson

SOLICITORS: (A) Xenos Jordan
(C) S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0406

LOWER COURT
JUDICIAL OFFICER : Bell DCJ

60505/02

IPP JA

BUDDIN J

SMART AJ

Monday, 26 May 2003

REGINA v ROSS MAGOULIAS
Judgment

1. IPP JA: I agree with Smart AJ.

2. BUDDIN J: I agree with Smart AJ.

: Ross Magoulias appeals against his convictions, following the jury's verdict of guilty, that on 7 July 2001 at Waterloo he did:

(1) by force detain KB against her will, with intent to carnally know her. (s.89 of Crimes Act 1900)

(2) assault KB and immediately after the assault committed an act of indecency on her, namely he put his hand down her pants (s.61L of Crimes Act).
(3) maliciously inflict actual bodily harm on KB with intent to have sexual intercourse with her (s.61K(a)) of Crimes Act).

4. The judge sentenced the appellant on each count. The total effective sentence was one of 3½ years with a non-parole period of 2 years. There is no application for leave to appeal against sentence.

5. The appellant challenges his conviction on two bases, first, the judge erred in not directing the jury at the end of the Crown case to acquit him of all counts and, secondly, the verdicts were unreasonable or cannot be supported having regard to the evidence. As part of his first ground the appellant relied on s.146 of the Evidence Act 1995 which enshrines the presumption of regularity as to documents produced by a recording process and s.144 which deals with proof of matters of common knowledge.

6. There was no issue in the trial that KB was detained and assaulted. The issue was whether the appellant was the offender. The Crown case was a circumstantial one. There was no “identification evidence” which identified the appellant as the offender nor were there any admissions by him. He did not undergo a recorded interview with the police. Nor did he give evidence before the jury. The Crown relied amongst other things on the car allegedly used and the video and ATM records at a service station where the car carrying KB stopped.

7. The Crown Case

KB, aged 31, gave evidence that about 6.00-6.30 pm on 7 July 2001 she was walking down Forbes Street from Oxford Street in Darlinghurst. A "blue to silver coloured car, Ford, Holden, four door sedan pulled up." The car was said to be an "older…

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 Magoulias

Details

AGLC: Regina v Ross Magoulias [2003] NSWCCA 143
Case: [2003] NSWCCA 143
Decision Date: 26 May 2003

CaseChat Overview and Summary

The case of R v Magoulias was heard in the Supreme Court of Victoria. The defendant, Magoulias, was charged with detaining a woman with the intent to commit a sexual offence against her. The woman was unable to provide a visual identification of her attacker due to the circumstances of the attack, but there was a strong circumstantial case against Magoulias based on the evidence presented. The primary issue before the court was whether the evidence was sufficient to prove the defendant's guilt beyond reasonable doubt, particularly in light of the unsatisfactory visual identification evidence.

The court considered the nature of the evidence presented, including the non-synchronisation of timing devices that could have implicated the defendant. The prosecution argued that the totality of the evidence, including common knowledge and circumstances, pointed to the defendant's guilt. The defence contested the reliability of the evidence, particularly the identification evidence, and the weight that should be given to the circumstantial evidence. The court needed to determine whether the evidence was sufficient to prove the defendant's guilt beyond reasonable doubt, in accordance with sections 144 and 146 of the Evidence Act 1995.

The court found that the evidence, despite the unsatisfactory visual identification, was sufficient to prove the defendant's guilt beyond reasonable doubt. The court considered the totality of the evidence, including the non-synchronisation of timing devices and common knowledge, which, when taken together, provided a strong circumstantial case against the defendant. The court held that the evidence was sufficient to prove the defendant's guilt, and accordingly, the defendant was found guilty. The court ordered that the defendant be sentenced in accordance with the law.

Orders