R v Manolakis - [2007] SASC 438

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MANOLAKIS
[2007] SASC 438
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Anderson and The Honourable Justice White)
14 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - OTHER CASES
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - OTHER OFFENCES
Appeal against conviction - applicant convicted of threatening to cause harm to a Commonwealth public official contrary to s 147.2(2) of the Schedule to the Criminal Code Act 1995 (Cth) (the Code), causing harm to a Commonwealth public official contrary to s 147.1(1) of the Code, and two counts of obstructing a Commonwealth public official in the performance of his or her functions contrary to s 149.1(1) of the Code - whether there were errors and discrepancies in witness testimony - whether the witnesses were credible - whether the judge improperly rejected and admitted certain evidence - whether the trial judge was biased against the applicant - whether the target of the threat was a Commonwealth public official - whether the evidence, if accepted, could have been regarded as constituting a "threat" for the purposes of the offence - whether the convictions for these offences were unreasonable, or constituted a miscarriage of justice.
Held: issues as to the reliability of prosecution evidence were put by the applicant to the jury and addressed in the summing-up of the judge - it was for the jury to consider the evidence in light of the criticisms by the applicant - it was open to the jury to accept and act on their evidence - application for permission to appeal refused.
Sufficient evidence presented at trial to establish that the target of the threat was at the time a Commonwealth public official - the words of the applicant in combination with his surrounding behaviour and demeanour were capable of satisfying the requirements of a "threat" for the purposes of the offence - appeal dismissed.
Criminal Code Act 1995 (Cth) (Schedule) s 147.1(1), s 147.2(2), s 149.1(1), Dictionary; Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(i); Evidence Act 1929 (SA) s 45B, referred to.

R v MANOLAKIS
[2007] SASC 438
Court of Criminal Appeal: Bleby, Anderson and White JJ

BLEBY J: I agree with the orders proposed by White J for the reasons that he gives.
ANDERSON J: I also agree with the orders proposed by White J for the reasons that he gives.
WHITE J: The applicant was convicted by a jury of four offences. Permission to appeal against those convictions was refused by a single judge. The applicant…

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 Manolakis

Details

AGLC: R v Manolakis [2007] SASC 438
Case: [2007] SASC 438
Decision Date: 14 December 2007

CaseChat Overview and Summary

The case of R v Manolakis involved the applicant appealing against his conviction for multiple offences, including threatening to cause harm to a Commonwealth public official, causing harm to a Commonwealth public official, and obstructing a Commonwealth public official in the performance of their functions. The applicant contested the credibility of the prosecution's witnesses and the judge's handling of evidence during the trial. He also questioned whether the target of the threat was a Commonwealth public official and if the evidence was sufficient to support the conviction. The appeal sought to challenge the verdict on grounds of unreasonableness and potential miscarriage of justice.

The legal issues before the court encompassed whether there were errors and discrepancies in the witness testimonies that warranted a new trial, if the trial judge had improperly rejected or admitted certain evidence, and whether the judge displayed bias against the applicant. Additionally, the court had to determine whether the evidence, if accepted, could constitute a "threat" for the purposes of the offence, and if the convictions were unreasonable or amounted to a miscarriage of justice. The appeal also raised questions about the status of the individual targeted as a Commonwealth public official.

The court found that the issues regarding the reliability of the prosecution's evidence had been presented to the jury and addressed in the judge's summing-up. It was for the jury to assess the credibility of the witnesses and act on their evidence. The court held that it was open to the jury to accept the witnesses' evidence as reliable despite the applicant's criticisms. Furthermore, the court found sufficient evidence to establish that the target of the threat was a Commonwealth public official at the time, and that the applicant's conduct could reasonably be regarded as a "threat" for the purposes of the offence. Consequently, the appeal was dismissed.

The court concluded that the applicant's complaints were not reasonably arguable, and there was no miscarriage of justice. The evidence presented at trial was sufficient to uphold the jury's verdict, and the appeal did not present a reasonably arguable ground for overturning the convictions. The court refused the applicant permission to appeal and dismissed the appeal in relation to the legal issues that allowed for an appeal as of right.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In my opinion, this group of complaints is not reasonably arguable.The Evidence Concerning the Incidents of 14 February 2006 Mr Beshara and Mr Mills gave evidence that on 14 February 2006 they were looking for the applicant in order to apprehend him. He had not, in compliance with his bail, attended in the Adelaide Magistrates Court on 10 February 2006. These same two officers had arrested the applicant on 17 November 2005, and Mr Beshara had dealt with the applicant on two previous occasions. Both officers were familiar with the applicant’s appearance and it would have been reasonable for the jury to infer that the applicant was familiar with them. The applicant was critical of the evidence of Mr Beshara and Mr Mills. He suggested to the jury, and on appeal, that they could not have seen him from their car when they said they had. Even if they had, he said that they would not have been able to identify him as the cyclist, taking into account the distance, his movement and his helmet. The applicant contended that the footpath width was insufficient for him to have diverted towards Mr Beshara. He submitted that the prosecution had not excluded the possibility of unavoidable accident. At trial, the applicant tendered a number of photographs of the location where the incident with Mr Beshara and Mr Mills took place. The applicant drew attention to some undulation in the road and to several stobie poles and verandah posts which, he submitted, would have interrupted the view of the police officers from their vehicle. In his final address to the jury, the applicant submitted that Counts 2, 3 and 4 had not been proven beyond reasonable doubt. In particular, he submitted that it had not been proven that he knew at the time that Mr Beshara and Mr Mills were police officers or that he had intended to cause harm. The applicant submitted to the jury that the evidence disclosed that Mr Beshara and Mr Mills had colluded to present adverse evidence to him. This was evident, he submitted to the jury, because both had made an identical mistake in the recording in their notes of the time at which they had attended Senator Minchin’s office on 17 November 2005. He claimed that their evidence was a fabrication. The judge reminded the jury, in his summing-up, of the various criticisms made by the applicant. I have reviewed the entire trial transcript. I have done so having particular regard to the criticisms made by the applicant. The various matters that the applicant relied upon were put by him to the jury. It was for the jury to assess the honesty and reliability of Mr Beshara and Mr Mills, taking into account the criticisms made by the applicant. It was open to the jury to accept their evidence as honest and reliable and to act accordingly. The features of their evidence which the applicant criticised did not mean that their evidence could not be regarded by the jury as reliable. On my review of the evidence, I do not consider that it is reasonably arguable that the jury verdicts did not have a reasonable basis in the evidence. Nor is it reasonably arguable that a miscarriage of justice has occurred.The Status of Senator Minchin as a Commonwealth Public Official

Decision

Reasons for decision

It was for the jury to consider whether the conduct of the applicant amounted to a threat to cause harm to Senator Minchin. In my opinion, when viewed as a whole, it was reasonably open to the jury to characterise the applicant’s conduct as a threat to cause Senator Minchin physical harm. In other words, I am satisfied that this ground of appeal has not been made out. Conclusion I do not propose to address separately the remaining complaints of the applicant. They comprise matters which were of little moment in the trial. It is sufficient to say that, in my view, they do not constitute reasonably arguable grounds of appeal. I would refuse the applicant permission to appeal. In relation to the two complaints which involve questions of law and in respect of which an appeal lies as of right, I would dismiss the appeal

Ratio Decidendi

Legal Principle Established

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