R v Mantzoudis No. Scgrg-97-898 Judgment No. S7011

R v MANTZOUDIS
[1998] SASC S7011

Court of Criminal Appeal: Prior, Lander and Wicks JJ

PRIOR J. The appellant was convicted by a jury of one count of false pretences. Particulars of the offence found proved were that between 18 and 21 December 1995 at Renmark he obtained from one Andrew Eleftheriades $4,800 by falsely pretending he had authority from Beaurepaires Pty Ltd to receive the money as payment for truck tyres.
The appellant was first arraigned in the District Court in November 1997. A number of directions hearings occurred early in 1998. His trial commenced on 7 October 1998. The delay in his trial was due to the appellant’s failure to secure legal representation. In no less than six directions hearings the court was told that the appellant had financial difficulties. An application for legal aid funding in both Victoria and South Australia had been rejected. At the directions hearings the appellant sought an extension of time for the commencement of his trial so that he could raise sufficient funds to pay for his representation. At the sixth directions hearing on 19 August 1998 a trial date was fixed for 14 September 1998. The appellant was then told that he would be expected to be ready to proceed to trial on that date. The trial did not proceed on that date. The matter was the subject of a further directions hearing on 9 September when a judge fixed a trial date for 7 October given listing and funding difficulties with respect to the September trial date. On 7 October 1998 counsel appeared for the appellant to inform the court that the appellant had failed to secure funding for his defence. He was seeking an adjournment to enable him to sell a motor vehicle. The court was also told that besides putting the vehicle on the market some two weeks before the appellant had been negotiating with those who had put up his bail to allow him to apply those funds towards his legal defence. They had not agreed to this. The application for the adjournment was opposed. Witnesses had come from distant parts to give evidence. The notes of previous directions hearings were said to indicate that the appellant had not been truthful with the court.
The trial judge refused the application for adjournment telling the appellant that he could either proceed to represent himself or apply to have the proceedings stayed on the ground that he could not get a fair trial without representation. The trial judge gave the appellant time to discuss those options with his former counsel. After a short adjournment, counsel indicated that he thought he could not participate in any application for a stay. Counsel also indicated that if the matter were to proceed counsel were willing to advise the appellant of certain procedural matters so that he had an idea of what he might face if the trial were to proceed.
The appellant told the trial judge he did not believe that he could go on with the trial but said that if he had to he would appreciate assistance from the trial judge. The trial judge then undertook to ensure the appellant received a fair trial stating that he would make sure the appellant understood at each stage the steps he was to undertake. The trial judge then gave the appellant an outline of proceedings. He understood the appellant’s answer to the charge was that he was never in Renmark where the false pretence was alleged to have occurred. He suggested that the appellant would have to consider whether he might wish to call his wife as to an alibi.
His Honour referred to the fact that the prosecution case included evidence of identification of the appellant from photographs mentioning that it might be to the appellant’s advantage to agree that the photograph said to be a photograph of him was that. In saying that, the trial judge said this would be a way of avoiding evidence from a police officer suggesting that the photograph came from police records, that not being a matter that the appellant may wish to put before a jury. His Honour also suggested that the appellant might wish to consider closely testing the opportunities those purporting to identify him had to observe him. He informed the appellant of his right to remain silent. He told him he could give evidence himself and call witnesses. He referred again to the appellant’s wife. Other matters of general advice followed particularly with respect to the risks associated with any attack the appellant may choose to make of the evidence of a witness known as Kypri. On the prosecution case he was an accomplice of the appellant.
The first ground of appeal is that the trial should not have proceeded and that the trial judge erred in refusing to grant the appellant’s application for adjournment to secure legal representation. I think the circumstances disclose that the appellant had more than a reasonable opportunity to obtain legal representation. He cannot complain of the refusal to adjourn since it was due to his own failure to take timely and appropriate measures to obtain legal representation.[1] In particular, the appellant knew in May that a September trial date had been fixed. His failure to have things in place when a further directions hearing occurred in August was fatal. It is therefore for the appellant to demonstrate that the refusal to adjourn resulted in a miscarriage of justice with the appellant being deprived of the prospect or chance of acquittal because of the lack of legal representation. This ground is therefore to be considered in conjunction with other grounds of appeal.[2]
[1] R v Karounos (1995) 63 SASR 451 at 453
[2] McInnes v The Queen (1979) 143 CLR 575 at 583
The prosecution case was that the appellant and Kypri made false representations to the man named in the information that they had authority from a tyre company to sell tyres on the company’s behalf. The alleged victim of the false pretence conducted a fruit business a few kilometres from Renmark. He was known as Lefty. He owned a number of trucks and used them to transport fruit to various destinations. It was his evidence that on 18 December he received a telephone call from a man calling himself Tony. That man said that he was from Beaurepaires at Port Augusta and that there was a special deal going on whereby truck tyres were going at half price. The man asked Lefty if he would be interested in purchasing some of the tyres. Lefty said he agreed to buy 24 tyres for $4,800. Lefty said the caller told him that he would deliver the tyres to his property with the Renmark manager of Beaurepaires, Mr Irlam. Lefty’s evidence was that he had dealt with Beaurepaires on a number of occasions and that he knew the Renmark manager. Lefty said he was asked by the caller to pay cash on delivery of the tyres and that he agreed to do so. On the day after this call a man calling himself Steve Costas went into the Beaurepaires store at Renmark and spoke with the manager asking about truck tyres and their price and saying that he wanted to buy 24 tyres. That man was told that the price would be some $14,000.00. The man asked that the tyres be delivered to Lefty’s property saying that on delivery, payment would be made partly in cash and partly by cheque. The manager and another employee, Mr Manifold, loaded two utilities with 24 tyres. The manager left in the first utility slightly ahead of Manifold. Manifold’s evidence was that just before leaving for Lefty’s he was approached by a man requesting a lift to Lefty’s property saying that he was involved in the deal to purchase the tyres. The prosecution case was that this man was the appellant. The man went with Manifold in one utility, Irlam in another.
The three men arrived at Lefty’s property. The two employees of Beaurepaires began to unload the tyres into a shed. The other man asked Lefty for payment of the tyres. Lefty gave him $4,800 in cash. He asked for a receipt to be told that one would be written by the manager on his return to the Beaurepaires shop. The man returned to where the two Beaurepaires employees were unloading the tyres to hand a mobile phone to the manager telling him that Steve Costas was on the line. Irlam said that the person on the telephone said he was at the office waiting to pay for the tyres. The two employees then returned to their shop, the man said to be the appellant riding in the vehicle driven by Irlam. When they arrived at the tyre company’s premises there was no sign of Costas. The man with the employees asked to use the toilet saying he was going to have a look around. He disappeared.
A physical description of the two men involved was given to police. Kypri was detained and charged. He named the appellant to the police as his accomplice. The police were unable to locate him. Some months passed. The police therefore conducted a photographic identification. All three persons involved in the false pretence alleged against the appellant and Kypri selected a photograph of the appellant from 12 photographs on three separate occasions. Their evidence at trial was that the person in the selected photograph was one of the two involved in the incident the subject of the charge. There was no evidence that any one of these three was aware of the photograph selected by any other when selecting a photograph numbered 8 in a board of 12 photographs. The evidence was that Irlam selected the photograph of the appellant soon after 9 on 19 March 1996, Manifold some two hours later on the same day and Lefty on the following day.
The trial judge is said to have erred in failing to inform the appellant of his ability to challenge the admissibility of the photo identification of him. It was said that the declarations disclosed a basis for such a challenge and that by reason of the appellant’s lack of representation his ability to mount a successful challenge to the reception of that evidence was remote. It was submitted that an obvious inference arising from this evidence was that as the police were in possession of a photograph of the appellant he was known to the police.
I do not think there is much in this objection. The authorities make plain that a photographic identification is admissible in evidence. A discretion to exclude arises if it is not conducted fairly. This one was fair. The evidence does not disclose that the photograph of the appellant in the possession of the police was indicative of his being known to the police other than with respect to this particular charge. That is sometimes the case. In this case the trial judge made a deliberate attempt to avoid any hint of the appellant being known to the police in any adverse way by inviting him to admit that the photograph contained in the group of 12 shown to the three witnesses was a photograph of him. It should be remembered that Alexander v The Queen[3] is itself authority for the proposition that police photographs may be admissible where there is no suggestion that there was anything objectionable about the photographs themselves. Examples given by Gibbs CJ were where they did not show the alleged offender wearing prison uniform or in handcuffs.[4] The photograph did not convey for itself that the appellant was from a rogues’ gallery strongly suggesting to the jury that the appellant had a criminal record[5]. The photograph did not convey any indication as to the fact that this was a photograph obtained from police criminal records. The photograph of the appellant was a couple of years old. Before the jury the evidence did not convey any hint of police records. A police officer simply spoke of obtaining a photograph and delivering it to the Bureau of Criminal Intelligence in Adelaide to scan it and present photographs of similar persons with similar characteristics for inclusion in a group of photographs. I also reject the submission that the details shown in the set of photographs made it unfair to use them in the trial. The evidence was admissible. There was nothing on the material before the trial judge to warrant the exercise of a discretion to exclude that evidence from the jury. Nothing occurred in the course of the trial to generate unfairness against the appellant.
[3] (1980) 145 CLR 395
[4] cp (1980) 145 CLR at 403
[5] cp Stephen J (1980) 145 CLR at 409
In two of the grounds of appeal it was submitted that the trial judge should have directed an acquittal as a matter of law. It was said that the evidence of Lefty and Kypri raised the possibility that Lefty knew of the falsity of the pretence and was not induced thereby to part with $4,800. It was also said that the trial judge did not properly direct the jury that the evidence of Lefty and Kypri raised the possibility that Lefty parted with the money for his own benefit. The submission put to the court was that Lefty parted with $4,800 in return for obtaining possession of the tyres. As such he was a bona fide purchaser for value without notice. Alternatively, Lefty was an accomplice or otherwise knowingly concerned in the alleged scam and thus not a bona fide purchaser for value without notice. Given the clear evidence that the tyres were given into Lefty’s possession, it was said the trial judge wrongly directed the jury that Lefty did not obtain possession of the tyres. The argument was that the trial judge should have directed the jury to acquit as a matter of law if Lefty was a bona fide purchaser because it would follow that he had a good possessory title which he could raise in defence of any claim by Beaurepaires for the return of the tyres. The benefit Lefty was said to have obtained from parting with $4,800 was lawful possession of the tyres.
For the crime of false pretences to be made out, the prosecution must establish that a person by a false pretence with intent to defraud obtained property from another for the use or benefit or on account of the person making the pretence or another person. The directions given by the trial judge with respect to the issue of benefit were embraced within what he described as the fourth element of the offence which was to be proved beyond reasonable doubt. As to that His Honour said:-
“The fourth element is that, in parting with his $4,800, that parting was for the benefit of someone other than Lefty, either the accused or some other person, it doesn’t matter who. It must be shown that he didn’t part with it for his own benefit.
Here, what is alleged is he got no tyres, he did his dough, and he parted with the money, not for his benefit; it was for the benefit of those who performed the false pretence on him, he says.”
The argument was that the evidence established Lefty got lawful possession or that he was acting in bad faith knowing of the falsity of the pretence must be rejected. The direction given by the trial judge included a reference to the motive of Lefty. There was no evidence from him that he had parted with the money for any other reason than that he was induced by the false pretence alleged. There was no evidence that he knew the pretence was false. To the contrary, all the evidence indicated that Beaurepaires were involved in the delivery of tyres in accordance with a contract between Beaurepaires and Kypri which was for the sale of tyres for $14,000. That is to be distinguished from the assumed agreement of which Lefty spoke, namely, an agreement between him and Beaurepaires to buy the same number of tyres for $4,800. On this approach there was no benefit accruing to Lefty at all from the false pretence. All that Lefty did was part from money believing he had a contract when he did not. On that basis no ownership in the goods passed to Lefty nor can he be said to have gained a benefit when temporary possession was defeasible by another party to the fraud of Beaurepaires. Lefty’s evidence was that he saw himself deprived of $4,800 not that he believed he had obtained any benefit at all once the absence of any contract between Lefty and Beaurepaires with respect to the tyres brought to Lefty’s property was made known to him. There was no basis for a direction that the evidence of Lefty and Kypri raised the possibility that Lefty knew of the falsity of the pretence and was not induced thereby to part with $4,800. The directions given were adequate in relation to the charge.
The objections with respect to identification evidence are maintained with respect to the trial and the summing up. At the time of the appellant’s arrest in June 1997 he was not asked to participate in an identification parade. No attempt was made to hold such a parade. The submission was that fairness called for such a parade to be offered to the appellant. Authorities do acknowledge that even in a case where photo identification has occurred, an identification parade might nonetheless be appropriate. That is not an absolute proposition. In this case, the absconding of the offender made it appropriate for the police to invite witnesses to attempt to identify a suspect “at the earliest possible opportunity after the event.”[6]. The passage of time carried with it inherent difficulties associated with any identification parade. Had an identification parade occurred a question would then have arisen as to whether it was necessarily fair to admit evidence of any identification then made against the earlier identification closer to the time of the alleged offence.
[6] cp Gibbs CJ (1980) 145 CLR at 399
A further complaint with respect to the evidence of identification is that the witness Manifold used language when looking at the photographs “consistent with an absence of positive identification.” The evidence of the police officer present when Manifold looked at the photographs on 19 March was that Manifold then said, “That looks pretty well like him.” Manifold’s evidence to the jury was that on the occasion when he was shown photographs he made a positive identification of a photograph as a photograph of the man who was with him, Irlam and Lefty at Renmark on the day of the alleged false pretence. Pitkin v The Queen[7] does affirm that an identification based upon a person “looking like” an alleged offender cannot amount to positive identification so that where that is the only evidence proof of guilt beyond reasonable doubt would not be established. In Pitkin, the Crown case rested solely on a witness’s purported identification of the accused through being shown photographs in the police station. Such an identification had to be clear and unambiguous. This is not a case where Manifold’s act of identification is the only evidence to found the conviction of the appellant.
[7] (1995) 69 ALJR 612
In this case, it should be remembered that the only material before the jury about Manifold’s words at the time of looking at photographs came from the police officer Cummins. Manifold was not asked about what he said when selecting the appellant’s photograph. The words attributed to him by Detective Cummins were properly before the jury.[8] However, there was a defect in the course of the trial in that Manifold could and should have been cross-examined about his positive assertion in the witness box compared with the apparent qualification when looking at the photographs in March 1996. The evidence of Manifold was as he gave it in the witness box. The jury should have been warned that on the assumption that what Cummins said did in fact occur, Manifold may have made a less than definite identification and that his evidence so understood was material for the jury to consider in conjunction with any positive acts of identification by the other two. If the jury accepted the positive identification asserted by the other two, that evidence corroborated the accomplice.
[8] Murphy v The Queen (1994) 62 SASR 121 at 124 and 125
After the prosecution had closed its case, the appellant elected to call no evidence. There was no address to the jury by the prosecution. The appellant addressed the jury. In the course of that address, he told the jury that he was not in Renmark. That, of course, was what he told police when interviewed by them. That evidence was before the jury. He referred to the evidence of the manager of Beaurepaires and said that there was no evidence that he had received money from Lefty. As to Kypri he said they were not on good terms. He then told the jury that he was a married man with three children and a steady job taking the time to come to the court over the last 12 months. He spoke of having never missed a beat and getting on with his life and looking after his family.

He then referred to the photographic evidence and told the jury that it was very hard to show someone a book some three months after a particular event and have that person make a positive identification. In particular he pointed out to the jury that all three “seemed to pick No 8”. He suggested to the jury that if the photograph had been changed and the witnesses picked the same photograph differently numbered he would say that that was fair enough and good identification. He also put to the jury that he was never asked to stand in a line up.
He said he had nothing to hide saying that when he got arrested in Victoria he spoke to the police in a manner that was helpful saying that he could have fought his extradition to South Australia but he chose not to because he had done nothing wrong. He then said that at the time of his arrest he was a mechanic but that he had lost that job. He had succeeded in gaining another. He then said to the jury, “I think I am innocent of the charge. I never received the money. I never changed any money. I don’t owe Beaurepaires any money. I don’t owe anyone any money. I am innocent. I ask you to find me innocent.”
The appellant says that the trial judge did not properly direct the jury as to the manner in which they should assess the evidence of the accomplice Kypri. In particular, it is said that the trial judge erred in directing the jury to look at the evidence of the accomplice Kypri in the same light as the evidence of the other witnesses. That objection fails to take account of the other things said in the summing up both in the passage complained of and later. Just before the passage complained of the trial judge told the jury that they had to be extremely careful in looking at the evidence of Kypri. His Honour told the jury specifically that Kypri was an accomplice in the case. He then said that Kypri may have all sorts of motives for telling lies. There may be other persons he was trying to protect. He may feel bitter that he had been convicted and had to face a penalty for the matter and his accomplice not. His Honour then said there may be all sorts of other matters in the background between Kypri and the appellant which would induce Kypri not to tell the truth to the jury. The direction continued:-
“I do not, for a moment, say to you that you should reject his evidence. I just ask you to be cautious as you approach his evidence. He might equally be trying to help Mr Mantzoudis by changing the story somewhat from the story you have heard from other people.
Mr Kypri, for example, suggested that he rang direct to Mr Irlam on Mr Irlam’s telephone, rather than ringing up on the telephone carried, on his version, by Mr Mantzoudis. There may be other aspects of the story that have been changed. Maybe he is changing the story to try to exonerate Mr Mantzoudis by throwing these doubts up. He could have motives in either direction. All I urge you to do, ladies and gentlemen, is to look at his evidence in the same light as anybody else’s evidence, but to do so with considerable caution before you are satisfied by it. The fact that a person tells a lie in one part of his evidence does not mean that the rest of his evidence is to be ignored. There is no magic formula. You have to look at it all for yourself.”
His Honour then gave directions to the jury with respect to joint enterprise, then directions about identification evidence saying that was “also to be treated carefully.” After this the trial judge reminded the jury that the appellant’s case was not that there was not a scam or that two people were involved but that he had never been to Renmark and that he knew nothing about the matter. As to this, the trial judge said that if they thought it reasonably possible that that was true, they had to acquit the appellant of the charge. He then referred to the fact that the evidence that the appellant was in Renmark came from Irlam, Manifold and Lefty and said:-
“It also comes from the accomplice.
Ladies and gentlemen, I have warned you to be careful of the evidence of an accomplice because of the many possible motives that an accomplice might have, but it does not mean that you automatically reject what the accomplice says either. Where what an accomplice says is supported or borne out by other evidence, you may think you are prepared to rely on it. Here, you have an alleged accomplice saying that Mr Mantzoudis was there and you have three more people saying, ‘Yes, we saw him there too’.
If you are satisfied that their evidence is correct, just in that one point that he was there, you may also then go on to be satisfied of various other matters that I have discussed with you. But the crucial defence that Mr Mantzoudis makes is his denial that he was in Renmark at that time, or that he has ever been to Renmark.
You will consider what everybody has said.”
Overall, I think the directions given with respect to the accomplice evidence were adequate and in fact more favourable to the appellant than erroneous. The particular objection taken cannot be sustained against the fact that the qualification attached to the reference to looking at Kypri’s evidence in the same light as anybody else’s evidence was in effect a warning of the kind required by law. That was certainly repeated in the second reference to accomplice evidence even if it could be said that the corroboration coming from persons making a positive identification of the appellant’s photograph might be said to be but two given what was before the jury from Detective Cummins as to Manifold’s actual act of identification three months after the events at Renmark. However, the directions actually given have to be seen as favourable to the appellant given what the appellant said when interviewed by the police. In that interview the appellant admitted he knew the alleged accomplice. He first denied knowing anything about the scam and then after claiming to be at home in Victoria at about the time of this offence, admitted to having met Kypri at about that time at the casino in Adelaide. Those matters could well have been the subject of further directions to the jury and could have been identified as in part capable of constituting corroboration of the accomplices’ evidence.
A further complaint is that the trial judge misdirected the jury with respect to the appellant’s failure to give evidence. The trial judge informed the jury that the prosecution’s evidence was uncontradicted. Early in the summing up the trial judge told the jury of the onus of proof and of the right of silence. He then told the jury it was not to draw any conclusion adverse to the appellant for exercising the right which the law gives him to remain silent. He then said:-
“If, when you come to consider various matters, you think that there are matters which he might have been able to tell you about, matters which are peculiarly in his own knowledge, but which he has decided not to tell you about, it may be a fact of life that you more readily accept contrary evidence, the evidence of the prosecution. But you can’t simply say ‘Because the prosecution evidence was not contradicted, I, therefore, accept it.’
You must look at the prosecution evidence as it stands, warts and all, and make the best of it you can, work out what is proved to you beyond reasonable doubt.
I repeat, you do not automatically accept prosecution evidence because it is not contradicted, and you do not draw any conclusion that an accused person must be, or is likely to be, guilty because he didn’t give evidence. That would be completely wrong.”
In the passage complained of the trial judge was clearly alluding to the fact that the appellant did not give evidence at the trial. I do not think the directions were altogether appropriate. However, the trial judge had already drawn the jury’s attention to what the appellant had said in his address to them pointing out that new material had been introduced in the course of the appellant’s address. As to that the trial judge actually invited the jury to listen carefully to what the appellant had said and not to be too critical for any lack of expertise that the appellant may have had. Also, although there was no reference in the summing up to the conversation that the appellant had with police, the jury itself asked to have read to them passages from the appellant’s statement to police dated 20 June 1997. Thus, the jury was there focusing upon the very statement that it is said was erroneous and overlooked by the trial judge in his direction. In the circumstances, a failure to direct the jury that it could place such weight on what the appellant told police did not constitute a serious error in the trial process. The same has to be said about the failure to give the jury a proper direction about Manifold’s identification of a photograph of the appellant possibly being less positive than Manifold’s own evidence.
I would reject the complaints made with respect to these matters and find no miscarriage of justice resulted from the appellant’s lack of representation and any omissions by the trial judge in the course of the trial and his summing up. The appellant had a fair trial.
The appeal should be dismissed.
LANDER J. I agree that this appeal should be dismissed.
WICKS J. I agree that this appeal should be dismissed for the reasons given by Prior J.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

R v Karounos (1995) 63 SASR 451 at 453
        McInnes v The Queen (1979) 143 CLR 575 at 583
        Alexander v The Queen (1980) 145 CLR 395
cp (1980) 145 CLR at 403
cp Stephen J (1980) 145 CLR at 409
cp Gibbs CJ (1980) 145 CLR at 399
        Pitkin v The Queen (1995) 69 ALJR 612
        Murphy v The Queen (1994) 62 SASR 121 at 124 and 125

[1998] SASC 7011

23 December 1998