R v Nikolaidis
[2003] VSCA 191
•28 November 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 239 of 2002
| THE QUEEN |
| v. |
| IOANNIS NIKOLAIDIS |
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JUDGES: | WINNEKE, P., CHARLES and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 November 2003 | |
DATE OF JUDGMENT: | 28 November 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 191 | |
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Criminal law – Conviction – Assault with intent to rape – Intentionally causing injury - Whether verdicts unsafe and unsatisfactory – Eye witnesses not called at committal or trial – Duties of prosecutor - Provision of trial transcript to jury – Whether applicant bound by decisions at trial taken by counsel - Verdicts not unsafe – Crimes (Criminal Trials) Act 1999 s.19(1)(i) – Crimes Act 1958, ss. 18, 39.
Criminal law – Sentence – Offender 36 years old, with prior finding of guilt for assault – Assault in nightclub toilet on dancer/hostess – No remorse - Offender having alcohol problem – Total effective sentence of 4 years imprisonment with 2 years non-parole period not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | In person. |
WINNEKE, P.:
I agree, for the reasons given by Eames, J.A., that the applications for leave to appeal against conviction and sentence should be dismissed.
CHARLES, J.A.:
For the reasons given by Eames, J.A., I agree that this application for leave to appeal against conviction and sentence should be dismissed.
EAMES, J.A.:
The applicant seeks leave to appeal against conviction and sentence on one count of assault with intent to rape contrary to s.39 and one count of intentionally causing injury contrary to s.18 of the Crimes Act 1958. The applicant was convicted upon verdict of a jury in the County Court and on 20 September 2002 was sentenced to 4 years’ imprisonment on the count of assault with intent to rape (which carried a maximum of 10 years’ imprisonment) and on the count of intentionally causing injury was sentenced to 2 years’ imprisonment (that count also carrying a maximum term of imprisonment of 10 years). The sentences were directed to be served concurrently, resulting in a total effective sentence of 4 years’ imprisonment and the judge fixed a non-parole period of 2 years’ imprisonment.
On 4 October 2002 the applicant filed notice of application for leave to appeal against conviction upon one ground, namely, that the verdicts were unsafe and unsatisfactory and that there had been a substantial miscarriage of justice. A notice of application for leave to appeal against sentence also contained only one ground, namely, that the overall sentence imposed was in all the circumstances manifestly excessive.
On the hearing of the applications for leave to appeal the applicant was unrepresented. Having been given the opportunity to apply for an adjournment in order to seek legal representation he chose not to do so and argued the case himself.
The applicant, who has some training as a law student, was an articulate advocate of his cause. Upon the hearing of the applications the applicant sought to advance additional grounds which he set out in a letter dated 14 November 2003. Those grounds asserted as follows:
1.The Prosecution failed in the course of its prosecutorial responsibilities to present the Crown case in its entirety, as a consequence I was denied the fundamental principle of a fair trial, in that I was deprived of the opportunity to test the Prosecution case under oath in its entirety.
2.The Prosecution failed in the course of its prosecutorial responsibilities to call at the trial Con Anastasiatis, (who) had given evidence at the committal hearing and his name was endorsed on the back of the presentment.
3.The Crown representatives presented evidence before both Judicial Proceedings, (which they) ought to have known was false.
4.The learned Trial Judge did not exercise his discretion correctly when he made the trial transcripts available to the jury at such an early stage of the trial proceedings.
Without deciding the question whether leave would be granted to amend the notice of appeal so as to add these grounds the Court permitted the applicant to argue all of the grounds of appeal he wished to raise and indicated that it would rule in due course as to whether leave should be granted.
The evidence at trial
The complainant described herself as being a part-time model at the time of these events. She was then aged 23 and on the night of 29 December 2000 she was employed as a hostess at a now defunct club called Genesis Night Club in Russell Street, Melbourne. She had worked at this club in a similar role on two previous occasions. The work required her to talk to customers, to be friendly and to dance, which she did from time to time on a podium in the club. The club was extremely small. On the night of the events the complainant was wearing a pink bikini. She arrived at work at about 11 p.m. her shift requiring her to work until 3 a.m. the following morning. The club had bar staff and also security personnel. A witness, one Athaniasos Raikos, gave evidence to the jury that he was the only security person on duty this night but statements provided to police by one Lucas Kiropoulos and the bar manager, Koula Vavassis (neither of whom gave evidence) asserted that Kiropolous was also acting as a security guard on this night.
Although there was an upstairs area at the club customers were only permitted in the downstairs area. Attached to the downstairs area was a door with the sign “Toilet” on it and upon entering through the door two further doors were to be seen, one with a sign indicating it was a male toilet and the other signed to indicate it was a female toilet. Within the female section there were two toilet cubicles.
During her shift the complainant consumed two alcoholic drinks whilst she spoke to customers. The complainant said in her evidence that there were only about 15 to 17 people present at the club at any one time on this night. Upon completion of her shift at 3 a.m. she remained talking to the staff of the club and she consumed two more alcoholic drinks. She remained for about two hours dressed, still, in her bikini.
At about 5 a.m. the complainant entered the female toilet area and stepped into one of the two cubicles in that area. No one else was present when she entered the female toilet area. As she attempted to depart the cubicle she found her way blocked by a male person. He was standing with his back to the entrance door into the female toilets and was facing her, standing about one to two metres away from her. She described him as looking Italian in appearance. She later told police he was aged between 30 and 35 years and he was a large person. She said she had not seen him in the club that night, but said that the club was dimly lit.
The complainant told the jury that the person swore at her and pushed her in the chest so that she went backwards into the cubicle. She struck her head against the cistern in the cubicle and the man said “I want to fuck you”. The complainant screamed at the man and told him to leave her alone and tried to push him away. She began scratching his face and she was yelling and screaming. She was hysterical and began crying and the man then punched her in the face causing her mouth and nose to bleed. She was dazed. She continued to try to push him away but he was too big and she could not move him. The complainant said that she scratched the man with her fingernails, and continued to scream and swear at him as the man tried to pull down her bikini pants. She was trying to hold them up and he was pulling them from both sides, by her hips. She told the jury that the man then punched her again. In all, she was punched some three to four times. She agreed that in her police statement she said that she was only punched twice.
During the attack the man grabbed her breasts forcefully, causing her pain. Apart from punching and scratching the man she agreed that she might also have bitten him. The complainant said that the attack lasted for some three to four minutes and then another man arrived and took hold of her assailant from behind and forced the assailant outside. The complainant said she thought that several other security guards also arrived at that time.
The complainant spoke to the night club manager Ms Koula Vavassis, who comforted her and then accompanied her outside so that the complainant could get a taxi to go home. When they got outside the club the complainant saw her attacker standing in the street. The man began swearing and yelling at her and threatening her. The complainant said she yelled back to the man to leave her alone. In cross-examination she agreed that in her police statement she had merely said that the man said “He was going to get her”. She said that she had recalled further details of what had occurred in the period of months prior to the trial. The complainant told the jury that during the attack she got a good look at her attacker, in particular noting his eyes. She said the toilet area was brightly lit.
When she arrived home the complainant said she was in shock, with injuries to a tooth, lumps on her head and on her back and bruising on her arms and chest, around the breast. She had a cut lip and a swollen jaw. She was examined by a Dr Crilly on 30 December 2000 and by a Dr O’Brien on 1 January 2001.
In cross-examination it was suggested to the complainant that her attacker had in fact been a “Samoan”. She denied that was so. The security guard Athanasios Raikos, gave evidence in the trial that it was he who had rescued the complainant from her attacker. He said the attacker was the applicant. He told the jury that there were two large Samoan men who came into the club with the applicant, and later those two men were indeed in the outer toilet area of the club. They were not, however, involved in the attack but were observing it when the applicant was assaulting the complainant.
Raikos said that he saw the applicant and the Samoans enter the club at about 1 a.m. He said he knew the applicant by sight, having seen him on previous occasions, at different bars. He took particular note of the applicant and the Samoans as they were all large men and the applicant was wearing a Taekwondo T-shirt.
Raikos told the jury that at about 5 a.m. one of the female staff told him that there was trouble in the toilets. As he entered the main door of the toilets the two Samoans were standing in front of the female toilet door looking inside, the door of the female toilet area being wide open. Raikos moved past them and entered the female toilet area and saw the applicant standing at a cubicle door. He was just inside the door and Raikos noticed that there was a large scratch on his forearm. Raikos saw the applicant throwing punches at the complainant. He said that, in all, he saw the applicant punch the complainant four times. She was leaning back against the cistern, having fallen back into that position and her legs straddled the toilet bowl. She appeared to be in shock and was crying and screaming and there was blood running from her nostrils. The applicant said, in Greek, “I’ll fuck you, you slut”.
Raikos said that the complainant’s bikini was halfway down her thighs, exposing her genitals. Her bra had been moved upwards and her breasts were exposed. Raikos sought to intervene and said, “What are you doing? You’re going to kill her”. The applicant again punched the complainant and said, in the Greek language, “I’ll fuck her, the slut” or possibly he said “the whore”. The applicant appeared angry. Raikos grabbed the applicant and said “Are you crazy? You’re going to kill her”. The applicant said “I’m going to fuck the slut”[1]. Raikos pushed him outside the cubicle, through the door of the toilet block and into the club. He then removed him from the club.
[1]The transcript is unclear as to whether each of these statements was made once or twice in Raikos’ presence.
Raikos then returned to the cubicle where the complainant remained, and when he did so she mistook him for her attacker returning to the scene. She was crying and screaming. Raikos told her to calm down and said that he was security. When she gave evidence the complainant said she had no recollection of that event occurring where she mistook Raikos for her attacker. Raikos said that he then left the complainant inside the toilets whilst others ministered to her, and he went outside the club. He saw the applicant standing outside and he was apparently injured.
Raikos saw the complainant leaving the club and he believed that the applicant swore at the complainant but he was not sure about that. He heard the applicant telling the complainant to wait at the scene until the police arrived. Another witness, one Effie Nikolopoulos, who was outside the club, said she heard the applicant swear at the complainant and call her a “fucking bitch”.
After being removed from the club the applicant had remained outside and it was he who reported the incident to the police by making a telephone call to 000 at 5.40 a.m. Police attended the scene at 5.45 a.m. and noted that the applicant’s shirt was ripped and he had scratches to his neck and a deep cut to his upper lip, and he smelled of alcohol. The applicant told Constable Wagner that he had been assaulted by a female in the toilets of the night club and he had then been further assaulted by a security officer at the club. He told Wagner that he had gone into the women’s toilet to help a female who was being “touched up” by another male but that in trying to assist the female she had gone crazy and had attacked him and he had had to punch her a couple of times in order to control her. Upon doing so he was set upon by security guards and was thrown out of the night club.
The prosecutor was to later submit to the jury in his final address that the applicant, being aware of the trouble he was in, had seized the initiative, by pretending that he had been the victim of mistaken identity and an assault. Thus, he had rung the police and waited at the scene so he could put forward his false claim of innocence.
When the complainant was examined by Dr Crilly she told her that she had been beaten up at work the previous day and that her assailant had been making sexual advances on her, had punched her and pushed her into the female toilets. The doctor noted swollen, red, lips and gums, a loose tooth, haematomas and lacerations to the face. There was a bruise to the left breast. The injuries to her face were consistent with more than one blow to the face.
Dr O’Brien examined the complainant at 7.45 pm on 1 January 2001. She told him she had been physically assaulted by a man and she gave a history of the attack. She described the man having grabbed both of her breasts and punching her face on more than one occasion. Dr O’Brien reported injuries being bruising to the left breast and right arm, haematomas to the head region, abrasions to the lip and right arm, tenderness over the cheekbone and jawbone, a loose incisor tooth and broken fingernails. Those injuries were noted some 60 hours after the attack. The injuries were consistent with the history she had given but he agreed in cross-examination that they could have been caused by other means and he agreed that if a breast was grabbed by force with a hand one would expect there to be more than one single mark. There were no marks or bruises on the complainant’s hips. The doctor said, however, that it was not absolutely necessary that there would be such marks if a person had attempted to pull down the complainant’s bikini.
The applicant himself was examined by Dr Parker on 2 January 2001 and upon examination there were a number of bruises and healing abrasions and lacerations to the lips, cheek, scalp, neck, knuckles, hand and arm. Some of the injuries were consistent with him having been punched and some with a fingernail scratch. Bruising to his arms were consistent with him having been grabbed. The applicant told Dr Parker that some of the injuries had been caused by his employment in the construction industry rather than in this event.
On the same day of the attack the complainant was contacted by Jinny Lissar, the complainant’s employer at the agency which had a contract with the club to provide models or dancers to the club. Lissar gave evidence that the complainant told her that there had been an incident where a man had attacked her and she had been punched in the mouth. She did not at that time say to Lissar that there had been a sexual attack. The next day, however, when Lissar went to collect the complainant the complainant said that it had been a sexual attack, in that the man had been “trying to touch her or something”.
The applicant was formally interviewed by police on 2 January 2001 and gave “no comment” answers only. Prior to being interviewed, however, the applicant had a conversation with the informant, Detective Senior Constable Ferdinand. The applicant told Ferdinand that he had gone into the toilets to try to help the girl who had been sexually assaulted. The applicant told Ferdinand that he had been himself assaulted by a male person called “John” after he left the night club.
In a later conversation with Ferdinand the applicant admitted that he had hit the complainant. He said he believed that the complainant had been sexually assaulted just before the applicant entered the scene but that upon his entry the complainant mistook him as being the person who had assaulted her and she had then bit the applicant. Upon being bitten the applicant punched her. He denied having made any sexual assault on the complainant.
Examination of the bikini top and bottom revealed a bloodstain on the bikini top with a DNA profile from which the applicant could not be excluded. There was a mixed DNA profile of stains on the bikini bottom which likewise did not exclude the applicant.
During the trial the informant was cross-examined about attempts he had made to contact Koula Vavassis and Lucas Kiropoulos in order to have them appear at committal and trial. Vavassis was the manager of the club on the night and Kiropoulos was a security guard at the club that evening. Ferdinand was also asked about his attempts to ensure that a witness, Con Anastasiatis, attended the trial. Neither Vavassis nor Kiropoulos had been called at the committal. Ferdinand said that attempts to subpoena them had been unsuccessful. He gave details of those attempts and said he believed they were deliberately avoiding service. As to Anastasiatis, he had given evidence at the committal but since then had departed from his known address and Ferdinand had been unable to locate him.
The applicant gave no evidence at the trial nor did he call any witnesses.
Unsafe and unsatisfactory verdicts
Where it is contended that a verdict is unsafe or unsatisfactory, the question for the appeal court is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In M. v. The Queen[2], it was held:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.” (Footnotes omitted)
[2](1994) 181 C.L.R. 487 at 493 per Mason, C.J., Deane, Dawson and Toohey, JJ.
Their Honours added:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to experience. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacked credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person is being convicted, then the Court is bound to act and to set aside a verdict based on that evidence.”[3] (Footnotes omitted)
[3]M v. The Queen, at 494.
The applicant contended that it was not open to the jury to be satisfied of his guilt. He submitted that the evidence of the complainant was unreliable and that the jury ought to have had a reasonable doubt whether the identification of the applicant as the offender was a case of mistaken identity.
In cross-examination of witnesses counsel for the applicant advanced the proposition that the applicant had been a good Samaritan who had gone to the assistance of the complainant and had been rewarded for his trouble by her attacking him in the mistaken belief that he had been her assailant. The Crown could not prove that in striking the complainant the applicant was not acting in self-defence, so it was submitted.
The complainant agreed that she had struck the applicant to the face, had scratched him and may well have bitten him. The applicant had injuries on him consistent with such force being applied by the complainant. The complainant said that she inflicted those injuries on the applicant in defending herself against his attempt to rape her in the women’s toilet area, and his punching her to the face. She rejected the suggestion that it had been someone other than the applicant who had attacked her, and that in her shock and confusion she had mistaken him for her attacker.
As noted earlier, the evidence of Raikos established that the complainant was so shocked and upset that she confused him with the man who had attacked her. He was adamant, however, that it was the applicant he saw who was assaulting the complainant.
The complainant was not called a liar, but it was suggested by counsel that she was confused as to the identity of her attacker. Her account was suggested to be unreliable. It was put to her, and she agreed, that in neither of her two police statements nor in her evidence at committal had she said that the assailant had said “I want to fuck you”. She said that she did not remember that until months after the events. She also agreed that when she first told a friend that she had been attacked she did not suggest it was an attempted rape, but rather that it was an assault. She said she later told the friend however that it had been a sexual assault. The evidence of Ms Lissar confirmed that evidence, and it is to be noted, too, that the manager of the club, who was one of the witnesses who was not called at committal or trial, had also said in her statement that the complainant had told her immediately after the attack that it had been of a sexual nature.
In his final address the applicant’s counsel did not dispute that in the presence of Raikos his client had said “I’m going to fuck this whore (or slut)”. The explanation proffered when cross-examining Raikos was that Greek men might use such an expression when they were angry but without it meaning that they intended to commit the crime of rape. Raikos agreed that the tone of voice and circumstances in which such an expression was used, might merely reflect anger, rather than that a rape was intended. He volunteered, by way of example, that a Greek man might say to a friend, when seeing an attractive woman “I would like to fuck her”. Raikos, however, rejected utterly the suggestion that the words had been said in an innocent way, at all, by the applicant.
Counsel for the applicant submitted to the jury that the Crown could not disprove that the applicant, being the victim of mistaken identity, had struck the complainant in self-defence after she had punched him then bitten his arm. He had to punch her to get her to desist, it was submitted. The proposition that the applicant, who was a large man, in the order of 100kg, had to punch the 50 kg complainant in the face in order to stop her assaulting him was likely to be greeted with some scepticism by the jury but the applicant sought to rely on that weight discrepancy to support his submissions. He said that had he struck the complainant in the manner and with the frequency she and Raikos had claimed then she would have been hospitalised, not merely suffered a few bruises.
The applicant did not give evidence. He relied on what he had said to the police at the scene. This was a case in which the jury had the opportunity to assess the evidence of the two critical witnesses. In the absence of evidence from the applicant they believed those witnesses. Having read the transcript there is nothing in the evidence of those witnesses that suggests to me that a reasonable jury ought to have rejected their accounts. Indeed, the accounts have a strong appearance of credibility. Little significant impression was made on their accounts by cross-examination.
Subject to consideration of the other grounds of appeal that were argued, and which may bear upon this ground also, there is nothing in the evidence to support the contention that the verdicts were unsafe and unsatisfactory.
Absent witnesses
The applicant complained that he had been denied a fair trial because he had been unable, first at committal and then at trial, to have questioned all eye witnesses who had been at the scene. He referred to Barton v. The Queen[4] and contended that that case was authority for the proposition that he was entitled to have the opportunity to question at committal all eye-witnesses and to have all relevant witnesses called on the trial.
[4](1980) 147 C.L.R. 75.
The applicant submitted that the evidence of the informant, Det S/C Ferdinand, which he gave at committal and trial about his attempts to locate Vavassis and Kiropoulos, was false. He submitted that although Ferdinand had asserted that he had been unable to serve subpoenas on these two witnesses the records of Victoria Police which the applicant had obtained by an F.O.I request, disclosed that the subpoenas were never issued. Without subpoenas being issued there was no likelihood that members of the Force would endeavour to locate them, he submitted.
The decision in Barton is not authority for the proposition that unless all relevant witnesses are called at the committal an accused person must have been denied a fair trial, nor that a trial had to be delayed until all relevant witnesses were available. Opinion was divided in the Court as to whether a trial would be unfair when no committal was held at all. Gibbs, A.C.J., Mason and Aickin, JJ all held that such a trial would be unfair, but Stephen, Murphy and Wilson, JJ, held otherwise. Gibbs, A.C.J and Mason, J. were of opinion that a committal was essential if a fair trial was to be held[5] because, they said, the principle purpose of a committal was to ensure that no person was placed on trial unless there was a prima facie case to warrant it. The committal affords the opportunity for an accused person to be discharged before any trial was conducted. Their Honours held that where no committal, at all, was held the accused lost that opportunity to seek discharge. In addition, he was also denied the opportunity to learn precisely what the Crown witnesses would say on oath, together with the opportunity to cross-examine them, and the opportunity to give evidence in rebuttal.
[5]At 99.
In the present case, unlike Barton, there was a committal. What is more, there was clearly a prima facie case disclosed by the evidence of both the complainant and Raikos. Furthermore, although Vavassis and Kiropoulos did not give evidence their statements, which were available to the applicant, disclosed that they were not witnesses who would be helpful to the applicant. Indeed, their evidence would be potentially very damaging for his case.
The statement of Kiropoulos asserted, in part:
“I then went into the toilets and I saw a man who I knew as Ioannis (John), standing over Mandy, the dancer and he was slapping her and he hit her with a closed fist. (The complainant) was struggling to get out and crying and screaming. At this stage Arthur, from security and some friends came in and helped me to pull Ioannis (John) off (the complainant).”
In his evidence, Raikos said that he was known as “Arthur”.
In her statement Vavassis said, inter alia, that she had asked Kiropoulos to check the female toilets after she had become concerned for the welfare of the complainant. Kiropoulos went into the toilet then stuck his head out the door and called out “He’s going to rape her”. Vavassis ran to the toilet and found Kiropoulos and another man trying to pull a man away from the complainant in the toilet and she called on Arthur, another security man, to help, which he did and those men, together removed the attacker. She said “I recognised the man that Luke and Arthur were trying to pull off (the complainant) was Ioannis (John) Nikolaidis. I saw Ioannis hit (the complainant) a couple of times and she was hysterical and crying and her bikini top looked like it had been removed from her breast”.
After Ioannis had been removed Vavassis spoke to the complainant, who said “He tried to force himself on me” and “He hit me twice in the head and once mouth and tried to rip my bikini top off”.
While that material does contain some details as to the events which are possibly at odds with those given by Raikos, that is by no means surprising in any such incident. No doubt, had the witnesses been called at committal defence counsel would have sought to explore those differences, but it is plain that the two witnesses (as did Raikos) knew the applicant and identified him as the attacker.
Mr Nikolaidis submitted to us that the seeds of doubt might have been sown in the minds of the jury by building on such answers as may have emerged in cross-examination of these witnesses. He submitted that such a situation arose when Con Anastasiatis gave evidence at committal. Under questioning there was a weakening of the evidence contained in his witness statement. We were provided with transcript of the evidence at committal of Anastasiatis. He swore at committal that his memory had largely failed as to the events and he could no longer recall details given in his statement. No attempt was made to declare him a hostile witness. The lack of memory which Anastasiatis professed at committal did not provide any positive support for the defence case. In his statement he had not identified by name the person he had seen attacking the complainant, and when giving evidence he did not say that the applicant was not the attacker. He said his statement would have been true when he made it but he no longer was able to recall the details of what had transpired.
In my opinion, there is no basis for concluding that the trial was unfair by virtue of the absence at trial of any of these three witnesses, nor by virtue of the absence of two of them at the commital. No application was made to the trial judge to adjourn the trial so that further efforts could be made to locate the witnesses, and having regard to the material in their statements that is hardly surprising. Defence counsel did seek to gain the best of both worlds at trial by cross-examining Ferdinand about the absence of the witnesses and hinting that the police might not have wanted them to be present because they favoured the defence, but that was merely a case of defence opportunism. Although Mr Nikolaidis now complains that his counsel ought to have called for an adjournment of the trial until the witnesses could be located (and a Basha[6] inquiry could be conducted prior to them giving evidence), I do not accept that the decision to proceed was other than a perfectly sensible tactical decision taken by trial counsel. Nor do I consider that it was a course taken against the wishes of the applicant at the time, and he does not suggest that to have been so.
[6]R. v. Basha (1989) 39 A.Crim.R.337.
The witnesses may well have been deliberately avoiding service of subpoenas or contact by police but their absence from the trial did not cause the trial to miscarry, in my opinion. The prosecutor at trial is bound to call all relevant witnesses to an event unless, in the exercise of his absolute discretion, he decides there is good reason not to do so[7]. The prosecutor can not pick and chose witnesses who support the Crown case but might appropriately conclude that a witness is not essential for the unfolding of the Crown case[8]. The unavailability of the witnesses would be one good reason why they might not be called. Had there been an application for an adjournment based on their absence, the trial judge would have to then consider whether their absence denied a fair trial to the accused. As I have said, no such application was made in this case, and had it been then in my view there would have been little prospect of it succeeding. The primary reason why that would have been so would have been that their statements suggested that they could not have provided support for the defence case. As Mr Gyorffy observed, had he been prosecuting the trial he would have been very pleased to have those three witnesses called on the Crown case. At the highest, Mr Nikolaidis’ contention is that had they been called at committal the damaging aspects of their statements might have been reduced; then, at trial, some uncertainty might have been planted in the minds of the jury by cross-examining those witnesses. I am far from persuaded that the fair trial of the applicant was in any way impeded by the absence from the trial of those witnesses. It was not claimed to be the case at the time, which, in my opinion, reflected the reality that the defence was better off without them.
[7]Richardson v. The Queen (1974) 131 C.L.R. 116, at 119-121; see, too, The Queen v. Apostilidis (1984) 154 C.L.R. 563, at 575-576.
[8]Seneviratne v. R. [1936] 3 All E.R. 36, at 49.
The decision of the prosecutor to proceed with the witnesses he had was a matter for his discretion and it has not been shown to have been inappropriately exercised. Such a decision would only constitute a ground for setting aside a conviction where it caused a miscarriage of justice[9], and that has not been demonstrated to be the case here. Whether or not the police had actually issued subpoenas prior to committal or trial the evidence of the efforts by police to locate the witnesses has not been shown to be implausible nor were the efforts so described inadequate.
[9]Apostilidis, at 575.
This ground of appeal is without substance.
Provision of transcript
By s.19(1)(i) of the Crimes (Criminal Trials) Act 1999 the judge is authorised to provide the jury with transcript of the trial, and by sub-sec (2) may determine when it is appropriate to do so. In this case no objection was made to the delivery of transcript when that occurred. Indeed, defence counsel positively applauded the judge’s decision to take that course, and the provision of transcript might be thought to have been of benefit to the defence, since counsel was seeking in cross-examination to prove discrepancies between the trial evidence of the complainant and that in her statements and committal evidence.
The only matter raised before us by Mr Nikolaidis was that when counsel and the judge discussed the provision of transcript the page of transcript contained a list of the charges, the first of which was shown to be “rape”. The prosecutor later amended the charge to assault with intent to rape. That page of transcript occurred when the jury were absent. There is no evidence that the jury ever saw that entry on the page of transcript. It is highly unlikely that the jury did have that page, at all, because the judge said that he would only provide a transcript of evidence, and would ensure that any argument in the absence of the jury would be expunged. However, even if the jury had seen that page it could not possibly have influenced them. They knew what the charge was and what the evidence was. There was no evidence of rape led by the Crown.
The applicant has failed to demonstrate that the delivery of transcript was inappropriate in any way in this case, and the proposed ground of appeal has no substance.
Decisions of counsel
There is no ground of appeal complaining about the conduct of the applicant’s counsel at trial. Nonetheless, in the course of argument Mr Nikolaidis frequently asserted that decisions had been taken by counsel which prejudiced him and caused his trial to miscarry.
Mr Nikolaidis said that his counsel should have applied to adjourn the case until the missing witnesses were found; he should not have advised the applicant not to give evidence; he should have established that Det S/C Ferdinand was wrong to claim that he had been unable to issue subpoenas; counsel should have discredited Raikos by establishing that his evidence that he had only been a crowd controller for two months was false; Raikos should have been discredited as to his evidence of the number of security staff on duty, and other matters; counsel should not have put to Raikos that the applicant did not deny using the words “I’m going to fuck this slut”, because the applicant does and did deny he said that; counsel should have objected to the transcript being given to the jury; counsel should have made something of the fact that there were no photos taken of the complainant’s injuries. In addition, generally, the applicant complained that counsel did not do what the applicant wanted him to do in running the case.
An experienced criminal trial barrister represented the applicant. Counsel must conduct the case and question witnesses as he or she deems appropriate in the exercise of professional judgment. Indeed, the applicant acknowledged that, by saying to us more than once that he had to leave it to his counsel to make judgments, as that was his responsibility.
Even where decisions taken by counsel appear in retrospect to have been unwise an appellate court would not set aside a conviction unless it was persuaded that a miscarriage of justice had resulted. That would be so even if the decisions taken by counsel were contrary to instructions or were incompetent. The appellate courts are extremely cautious in attempting to second guess decisions taken in the course of trial and even slower to conclude that they caused a miscarriage of justice[10]. In the present case I am not, at all, persuaded that any of the decisions taken by counsel were incompetent, let alone that they caused a miscarriage of justice. Although Mr Nikolaidis contended that some decisions were taken contrary to his instructions I do not accept that that was so, as it seems to me that his real position was that he left the tactical decisions to his counsel, as was appropriate. Although he now asserts that in his instructions he denied making the statement attributed to him by Raikos I do not accept that to be so merely upon his assertion at the bar table during the appeal. In any event, had counsel put to Raikos that he was lying as to this matter it could hardly have assisted the cause of the applicant, who did not enter the witness box to deny it on oath. Furthermore, as to the advice by counsel that he not give evidence it was just that, advice. Mr Nikolaidis said that his counsel told him that his manner was such that he might do himself a disservice if he gave evidence. Having seen the over-confident style of Mr Nikolaidis in arguing his cause I can well understand why that advice might have been given. In the course of the appeal, for example, Mr Nikolaidis described the attack on the complainant as “this unfortunate little incident”. He does not say that he wanted to give evidence but was stopped by his counsel. At the highest, he says he received advice which he accepted, but which decision he now regrets.
[10]See R. v. Miletic [1971] 1 V.R. 593, at 598-599; R. v. Wakim [1998] 2 V.R. 46, at 50-51.
In my opinion, the complaints about the role of counsel even if valid could not render the verdicts miscarriages of justice.
The application for leave to appeal against conviction is without merit and should be dismissed.
Sentence
The applicant was 36 years of age at the time of sentence. He had two prior court appearances, one in July 1989 where he was fined for offensive behaviour, involving urinating in public, and upon a finding of guilt without conviction was fined for unlawful assault in May 1994, that arising out of a fight in a hotel. Submissions on penalty extended over a number of days and many character witnesses gave evidence for the applicant and additional written references were provided to the judge.
His Honour accepted that the applicant had almost always been in productive employment. The applicant in 2002 enrolled in full-time studies in law at Victoria University and was undoubtedly an intelligent man. The judge accepted that the attack on the complainant was out of character and was to be explained by the excessive consumption of alcohol. That conclusion was well open to his Honour as was his conclusion that the applicant had a long standing serious problem with alcohol misuse. He said it was to the applicant’s credit that he had taken a course on alcoholism while in Port Phillip Prison and gained a certificate from Alcoholics Anonymous..
A barrister who was a cousin of the applicant said in a statement that the applicant had been exposed to his father’s alcoholic and violent tendencies as a youth and that although his father eventually gave up alcohol the applicant had been drinking to excess over many years. He said that the applicant had never shown any aggressive tendencies towards women, and, if he could curb his alcohol problems was an intelligent person who was capable of leading a productive life. A psychological report from Mr Ian Joblin confirmed the alcohol problem and that he had been prone to alcohol abuse when attending nightclubs, and reported that on some occasions after attending clubs he could not recall events which had transpired.
Mr Joblin reported a degree of grandiosity in the applicant’s behaviour. He concluded that what he called the “very serious problem” the applicant had with alcohol was the issue here, not a problem related to any psychosexual disorder. He considered that the applicant was beginning to show some awareness of his alcohol problem but that he would only give an optimistic prognosis if the applicant ceased alcohol abuse. If he dealt with alcohol abuse then his prognosis was reasonably good.
The learned sentencing judge had regard to all of the matters that had been put to him on the plea on behalf of the applicant. His Honour concluded, however, that this was a vicious and cowardly attack, and so it was. Quite apart from her physical injuries, the complainant said in her victim impact statement that she suffered nightmares, had lost self-esteem and confidence, was fearful of men, and was frightened in public places. She had abandoned modelling.
In her victim impact statement the complainant noted that the applicant had shown no remorse towards her either on the night or subsequently. That is so, and the applicant was not entitled to any discount for remorse. This was an attack which called for denunciation by the court. Both general and specific deterrence were relevant factors.
It is frequently said that a complaint that sentences are manifestly excessive admits of little argument. The sentence either appears to be so to the observer or it does not. In my opinion, these sentences were within the sentencing range open to the learned sentencing judge. They have not been shown to be manifestly excessive whether viewed individually or in terms of the total effective sentence and non-parole period.
Conclusion
In my opinion, the application for leave to amend the grounds of appeal against conviction should be rejected. The applications for leave to appeal against the convictions and sentences should be dismissed.
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