R v Panagaris - [2022] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

R v Panagaris [2022] QCA 192

PARTIES:

R
v
PANAGARIS, Dimitrious John
(appellant)

FILE NO/S:

CA No 81 of 2021
DC No 2128 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 15 April 2021 (Farr SC DCJ)

DELIVERED ON:

7 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2022

JUDGES:

Morrison and Dalton and Flanagan JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty after trial of one count of digital rape and two counts of sexual assault – where the complainant met the appellant in the waiting room of an emergency department – where there was CCTV footage of the waiting room and the walkways leading to the waiting room – where the quality of the CCTV footage was grainy – where the complainant was 19 years old and was intoxicated by alcohol and MDMA – where the appellant repeatedly told the complainant that she would go to jail if the police found drugs on her – where the appellant lured the complainant out of the hospital and out of view of the CCTV cameras on three occasions – where the alleged offending occurred out of view of the CCTV cameras – where the complainant’s observable behaviour in the CCTV footage does not show her to be upset – where two nurses gave evidence that the complainant appeared anxious and uncomfortable – where the CCTV footage shows the complainant choosing to stay with the appellant after the alleged offending occurred – where the complainant gave inconsistent accounts of the offending – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt having regard to all the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the complainant’s father gave evidence of the complainant’s distressed condition – where the trial judge directed the jury about distressed condition in relation to the evidence of the complainant’s father – whether the direction was sufficient – where the appellant submits that the trial judge erred in failing to address other evidence of distressed condition – where the appellant submits that the trial judge ought to have given a direction that the evidence could only be used as to context or narrative

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where a nurse gave evidence of an account of the offending she received from the complainant – where that account was inconsistent with the complainant’s account to the police – whether a prior inconsistent statement direction should have been given

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the complainant gave evidence that the appellant offered her money to smuggle drugs…

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 Panagaris

Details

AGLC: R v Panagaris [2022] QCA 192
Case: [2022] QCA 192
Decision Date: 7 October 2022

CaseChat Overview and Summary

The appellant, Panagaris, was found guilty in the County Court of Victoria of one count of digital rape and two counts of sexual assault. The appellant appealed against his conviction on the grounds that the verdict was unreasonable or incapable of being supported by the evidence, and on the grounds of alleged misdirections and non-directions of the jury by the trial judge. The appellant also submitted that the trial judge ought to have directed the jury that the evidence of the complainant’s distressed condition could only be used as to context or narrative, and that the evidence of the complainant’s offer to smuggle drugs for money could not be used to prove that the appellant was a drug dealer.

The court considered the nature of the evidence, including CCTV footage of the waiting room and the walkways leading to the waiting room, which was grainy in quality. The court also considered the complainant’s age and intoxication by alcohol and MDMA, and the appellant’s repeated warnings to the complainant about the consequences of being found with drugs on her person. The court examined the evidence of the complainant’s distressed condition and the discrepancies in her accounts of the alleged offending. The court also considered the directions given by the trial judge to the jury regarding the evidence of the complainant’s distressed condition, the prior inconsistent statement given by the complainant to a nurse, and the evidence of the complainant’s offer to smuggle drugs for money.

The court found that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, having regard to all the evidence. The court found that the trial judge’s directions to the jury were sufficient, and that there was no misdirection or non-direction. The court found that the evidence of the complainant’s distressed condition, when speaking to her father, was properly admitted as evidence supporting the complainant’s claim of rape by the appellant. The court also found that the evidence of the complainant’s offer to smuggle drugs for money was properly admitted as evidence of the appellant’s propensity to be involved in drug dealing, and that the trial judge’s failure to direct the jury that this evidence could not be used to prove that the appellant was a drug dealer was not a ground for setting aside the verdict.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecutor addressed the jury as follows:“His Honour will give you directions on what lawyers call ‘complaint evidence’. This evidence does not independently prove anything, it just allows you to compare. So from the complainant’s father, Ryan, he told you that about 2.33 am on 22 February, [the complainant] called him. She said a man had assaulted her, he had touched her breasts and placed his hands under her clothing and touched her vagina. You heard him say that she was distressed, she was crying. You can use this evidence to support that the complainant was raped. I suggest, you can use this evidence to support that the complainant was raped by the defendant.You also heard from Samuel [Stewart] who was working in the fast track area of the hospital, the complainant disclosed to him that she was groped. You also watched the body camera footage from Officer Cooper. You saw that the complainant was upset when the police initially entered the room, pardon me, and you heard and saw the complainant disclose the offending to him. So that is a body of evidence that can be used to assess [the complainant’s] credit because of consistencies in that evidence may boost her credibility in this case.” (my underlining). The prosecutor relied upon evidence of the complainant’s distressed condition when speaking to her father as evidence supporting rape by the appellant. The complainant’s upset when talking to police is mentioned, but the prosecutor puts it as evidence which can be used to assess credit, not evidence which corroborates proof of rape. In his address defence counsel criticised the complainant for not complaining straight away to hospital staff. He said her first complaint was to nurse Stewart and noted the discrepancy between nurse Stewart’s evidence and the complainant’s evidence. Defence counsel moved from there to what the complainant said to her father and notes that she did not go into detail other than to say she was touched on the breasts and vagina. He then noted that the complainant told nurse Brownly there were two episodes of digital penetration and said:“So that preliminary complaint is simply – and you saw the body‑worn camera footage when the police first spoke to her. All of that is preliminary complaint. It’s simply put before you to assist you in making a determination of the credit of the complainant. It can’t be [used] to prove that an offence occurred … I’d suggest to you that her preliminary complaint starts quite poorly and grows and it certainly does not assist you in bolstering her credibility. It tends largely to detract from it.” In a separate part of his address defence counsel said of the complainant:“She is distressed, and you’ll be told about distressed condition. The Crown case is based partly on the distressed condition that she displayed when she spoke with her father. What’s the first thing she said to her father? ‘I’m sorry I disappointed you.’ You might think that’s more likely to be a reference to drugs, or just as likely to be a reference to drugs as it is to anything else. It is made well after you saw her on the video in the waiting room and you will recall that she was upset at least at the start of when she was talking to the police officers when she first spoke to the police and it was recorded on the body‑worn camera. So be very careful about distressed condition, ladies and gentlemen, I would suggest, because there is a whole period of time there where she was completely the opposite of distressed at a time when you’d think she would have been extremely distressed …” (my underlining).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Panagaris [2022] QCA 192
PARTIES:	R v PANAGARIS, Dimitrious John (appellant)
FILE NO/S:	CA No 81 of 2021 DC No 2128 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 15 April 2021 (Farr SC DCJ)
DELIVERED ON:	7 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2022
JUDGES:	Morrison and Dalton and Flanagan JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty after trial of one count of digital rape and two counts of sexual assault – where the complainant met the appellant in the waiting room of an emergency department – where there was CCTV footage of the waiting room and the walkways leading to the waiting room – where the quality of the CCTV footage was grainy – where the complainant was 19 years old and was intoxicated by alcohol and MDMA – where the appellant repeatedly told the complainant that she would go to jail if the police found drugs on her – where the appellant lured the complainant out of the hospital and out of view of the CCTV cameras on three occasions – where the alleged offending occurred out of view of the CCTV cameras – where the complainant’s observable behaviour in the CCTV footage does not show her to be upset – where two nurses gave evidence that the complainant appeared anxious and uncomfortable – where the CCTV footage shows the complainant choosing to stay with the appellant after the alleged offending occurred – where the complainant gave inconsistent accounts of the offending – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt having regard to all the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the complainant’s father gave evidence of the complainant’s distressed condition – where the trial judge directed the jury about distressed condition in relation to the evidence of the complainant’s father – whether the direction was sufficient – where the appellant submits that the trial judge erred in failing to address other evidence of distressed condition – where the appellant submits that the trial judge ought to have given a direction that the evidence could only be used as to context or narrative CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where a nurse gave evidence of an account of the offending she received from the complainant – where that account was inconsistent with the complainant’s account to the police – whether a prior inconsistent statement direction should have been given CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the complainant gave evidence that the appellant offered her money to smuggle drugs…