R v Perdikoyiannis

R v PERDIKOYIANNIS
[2003] SASC 310
Court of Criminal Appeal: Doyle CJ, Besanko and Sulan JJ
Doyle CJ This is an appeal against conviction and sentence.
Facts

Mr Perdikoyiannis was charged with the offences of false imprisonment, causing grievous bodily harm with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and armed robbery contrary to s 158 (a) and (b) of the Act. These offences allegedly occurred as part of a joint enterprise with three other men. It was not disputed that the offences were committed by the three men. Nor, by and large, was the evidence about the things done by Mr Perdikoyiannis disputed. The issue at trial was whether Mr Perdikoyiannis was a party to the offences. He stood trial alone.
Mr Nicolaidis, the victim, was the proprietor of a used car business at Klemzig.
On 9 May 2000 at about 11 am Mr Perdikoyiannis went to the business premises. Posing as a customer he spoke with Mr Nicolaidis, showing interest in some cars. He said he had a van that he wanted Mr Nicolaidis to look at as a possible trade-in. Mr Perdikoyiannis left the business to get the van and returned about 20 minutes later. He walked with Mr Nicolaidis to a white Mitsubishi L300 van, which was parked in a car park adjacent to the business premises.
Mr Nicolaidis gave evidence that when the two men reached the van Mr Nicolaidis walked towards the rear door of the van, then went to the side sliding door at the suggestion of Mr Perdikoyiannis. Mr Perdikoyiannis opened the sliding door. Three men wearing balaclavas were inside the van. Their presence was concealed by material that screened the side and rear windows. The three men pulled Mr Nicolaidis into the van. Mr Nicolaidis said that Mr Perdikoyiannis pushed him into the van, which Mr Perdikoyiannis denied. In any event, Mr Nicolaidis was forced into the van. Mr Nicolaidis tried to escape, but the three men restrained him.
Mr Perdikoyiannis went to the front of the van, got in and started to drive. The van had not left the car park when the rear door of the van opened and a pistol and a green cordless drill fell out of the door. Mr Nicolaidis tried to crawl out through the rear door of the van, but was restrained by the three men.
Mr Perdikoyiannis then drove the van for approximately 30 minutes around the streets of Klemzig and Magill. During this time Mr Nicolaidis’ legs and hands were bound with gaffer tape. At least two of the men in the back of the van were armed with guns. At one point one of the men placed a gun against Mr Nicolaidis’ leg and pulled the trigger. The gun did not fire. He was beaten with fists and the guns and was stabbed several times in one hand. One of the men in the back of the van repeatedly demanded “where’s the money”, and told Mr Nicolaidis he was going to die.
Finally, the van stoped in a street in Magill. The men took Mr Nicolaidis’ chain, his watch and his ring at gunpoint. These items were valued at approximately $12,000.00 in all. Mr Nicolaidis was allowed to leave the van, which Mr Perdikoyiannis drove away.
Mr Nicolaidis suffered significant wounds to his face and head, including lacerations to his inner lips. One tooth was broken off at the root. His arms, legs and torso were also lacerated. He suffered a fracture of one of the bones of the inner orbit that required plastic surgery. He suffered extensive bruising
The accused was arrested by the police on 27 March 2001.
An alibi notice was filed by the defence. However, at trial Mr Perdikoyiannis admitted to being the driver of the van, and to being the man who took Mr Nicolaidis to the van whilst posing as a customer.
Mr Perdikoyiannis gave evidence supporting a defence of duress. He was 22 years of age. He said that he had recently met a man called “Steve” from whom he had bought ecstasy and speed. He had incurred a substantial debt for drugs received from Steve. Mr Perdikoyiannis had also lost approximately $10,000.00 on poker machines at about the time he met Steve. About a week before 9 May 2000 Steve had threatened him at gunpoint. Steve had told Mr Perdikoyiannis that he would kill Mr Perdikoyiannis and members of his family, and also threatened to rape Mr Perdikoyiannis’ sister, if the debt was not paid. Mr Perdikoyiannis did not have the money to pay him.
On 9 May 2000 Steve drove to the accused’s house and again threatened to kill him and members of the his family. He threatened Mr Perdikoyiannis with the same gun. Mr Perdikoyiannis told Steve that he would pay but Steve did not believe him. Steve told Mr Perdikoyiannis that if he went with Steve and helped him he would “wipe off” the debt. He did not say what help he wanted. Mr Perdikoyiannis said that he complied because he feared for his own life, and the lives of his mother and sister.
At the time Mr Perdikoyiannis had a white Mitsubishi L300 van in his possession. The van was owned by a mechanic. The mechanic lent the van to Mr Perdikoyiannis while the mechanic was repairing Mr Perdikoyiannis’ car.
Mr Perdikoyiannis drove the van from his house to North Adelaide, not far from Mr Nicolaidis’ premises. Steve and two other men met him there. Steve taped material to the inside of the windows of the van. Steve told Mr Perdikoyiannis to drive to the business premises and to get Mr Nicolaidis to come out to look at the van. He drove to the premises with three men in the back of the van and, as outlined above, lured Mr Nicolaidis to the van. He denied pushing Mr Nicolaidis into the vehicle.
Mr Perdikoyiannis gave evidence that he did not believe the victim would be hurt, and that he believed the men in the back of the van were just going to talk to the victim. But for Steve’s threats against himself and his family he would not have done as Steve asked. He only cooperated because he feared for his life and the lives of his family members.
He said that while he was driving the van, and the three men and Mr Nicolaidis were in the back, he heard sounds like someone being hit and someone screaming. He panicked. He continued to drive, because of his fear for himself and his family. Mr Perdikoyiannis stopped the van when ordered, at which point Mr Nicolaidis left the van. Mr Perdikoyiannis then drove the van to North Adelaide where the other three men got out of the van. He then drove home.
Mr Perdikoyiannis was convicted on all charges. The trial judge sentenced him to imprisonment for 9 years and fixed a non-parole period of 6 years.
Prosecution Case
The prosecution case was as outlined above. The case against Mr Perdikoyiannis was put on the basis that he was party to a common purpose or agreement with the other men to commit the offences, and that he was present and played his part in them. The prosecution case involved a rejection of the claim by Mr Perdikoyiannis that he was involved in the incident only because of threats made by Steve. The prosecutor also argued that even if it was a reasonable possibility that Steve made threats, Mr Perdikoyiannis had a reasonable opportunity to report the matter to police and to have the police deal with Steve. But the primary case for the prosecution was that the claim of threats was fabricated.
Direction as to proof
Ms Powell QC, Counsel for Mr Perdikioyannis, submitted that the judge’s direction as to the standard or degree of proof was flawed. She submitted that in his closing directions to the jury he told them, in effect, that the claim of duress could result in an acquittal only if Mr Perdikioyannis had established that it was reasonably possible that his claim about the threats was true.
On a number of occasions the judge directed the jury that the prosecution must prove its case beyond reasonable doubt. Several times he told the jury that if they were left with a reasonable doubt about guilt they must acquit. On one of those occasions he told the jury that if there was any reasonable possibility that the elements of duress (as explained to them) were present, the accused was entitled to be acquitted. No complaint was made or could be made about these directions.
Near the end of the summing up the judge said:
“Ladies and gentlemen as far as the defence is concerned, you will, of course, consider whether you accept what the accused says on this question of duress as being reasonably possible. If you find it proved beyond reasonable doubt that what he says is just not true, then the question of duress just doesn’t arise; it is based upon his evidence. However, if you find what he says is reasonably possible, you will consider that question of duress and you will consider whether the prosecution have proved beyond reasonable doubt that duress does not exist, bearing in mind the elements of duress that I have described to you.”
The judge here made the point that if the jury was satisfied beyond reasonable doubt that the claim of threats was not true, the issue of duress did not arise at all. If it was reasonably possible that the claim was true, then they had to consider the elements of duress. In my view what he said was correct. Almost immediately after that he said:
“In relation to those charges, if any, where you say that it has been proved beyond reasonable doubt, you would then turn to the question of duress and the defence of duress, and I suggest you ask yourself: is it reasonably possible that the accused is telling the truth when he talks about his experiences which the defence say amount to duress and why he was involved in this matter, and if it is reasonably possible that he is telling the truth, you will consider the question of duress in the light of the principles that I have set out?”
This is the portion of the summing up on which Ms Powell focused.
She argued that this last direction was wrong. It told the jury that Mr Perdikoyiannis had to satisfy them that it was a reasonable possibility that he was telling the truth before the jury could acquit him on the basis of duress. That is, she submitted that the jury were told that they could acquit only if they made an affirmative finding in his favour.
I do not accept this submission.
The summing up must be considered as a whole. The general directions as to proof were clear and accurate.
The jury were not told that the issue for them was whether or not they accepted the evidence of the accused: cf Murray v The Queen [2002] HCA 26; (2002) 76 ALJR 899 at [56-57] Gaudron J and at [132] Callinan J. The earlier references to a matter being a reasonable possibility had been made as a means of explaining when proof beyond reasonable doubt was not made out. Moreover, the passage complained of must have come within a few seconds of the earlier part of the summing up set out above. To my mind it would have been clear to the jury that the judge was simply reminding them that when considering whether it was proved beyond reasonable doubt that what Mr Perdikoyiannis said was not true, they could ask themselves whether it remained a reasonable possibility that what he said was true. If it was, then they had to consider the elements of duress as explained by the judge.
It would have been better to tell the jury that they should ask themselves whether they were satisfied beyond reasonable doubt that the claim of threats was untrue, and to consider the elements of duress only if not so satisfied. In that context a reference to the reasonable possibility of Mr Perdikoyiannis telling the truth would have been harmless. The last part of the summing up is, with respect, not ideally expressed. But this is a minor blemish. Viewed in context, and considering the summing up as a whole, I am satisfied that there is no possibility of a miscarriage of justice arising from this part of the summing up.
Alternative Verdicts
The judge did not leave any alternative verdicts to the jury. He had not been asked to do so. After completion of the summing up counsel for Mr Perdikoyiannis, for the very first time, raised the question of whether the judge should have left to the jury as an alternative to the charge of causing grievous bodily harm with intent to do grievous bodily harm, a charge of assault occasioning actual bodily harm. He said that the jury might convict on that charge if they did not consider that the harm caused to Mr Nicolaidis was really serious. Counsel for the prosecutor argued that this was not a genuine alternative, but that in any event the prosecution had presented its case on an “all or nothing” basis and was content to leave the matter there. The judge declined to act on the suggestion by counsel for the accused.
On appeal Ms Powell submitted that the judge erred, and that alternative verdicts should have been left to the jury.
In the end, as I understood her submission, there were two alternative verdicts that should have been left to the jury. First, on the charge of causing grievous bodily harm with intent to do grievous bodily harm contrary to s 21, a verdict of unlawfully and maliciously inflicting grievous bodily harm contrary to s 23 of the Act. Second, on the charge of armed robbery, a verdict of robbery contrary to s 155 of the Act. She accepted that a charge of assault with intent to rob contrary to s 157 of the Act was, in the circumstances, a theoretical possibility and need not have been left.
Her submission was that even if the jury rejected the claim by Mr Perdikoyiannis that he had been threatened by Steve, and found that he was a party to a plan to lure Mr Nicolaidis into the vehicle, the jury might have been satisfied only that there was a plan to rob him and to cause grievous bodily harm, without being satisfied that he was a party to a plan to use Steve’s gun if necessary as part of the robbery and to inflict grievous bodily harm with intent to do grievous bodily harm.
She submitted that the trial judge should have raised these possibilities with counsel at the close of the prosecution case, and that had the judge done so there could have been no unfairness to Mr Perdikoyiannis in leaving these alternative verdicts to the jury. She accepted that it would have been unfair to raise the alternatives, for the first time, at the conclusion of the summing up. She submitted that it was the duty of the judge to avoid things getting to that stage.
It is relevant to note here that the judge did not direct the jury in this case, in accordance with the doctrine of common purpose as established by the decisions of the High Court in McAuliffe v The Queen (1985) 183 CLR 108 at 113-115 and Johns v The Queen (1980) 143 CLR 108. That is, the judge did not direct the jury that Mr Perdikoyiannis was liable for acts done by the other men that were contemplated as possible consequences of the criminal venture, the subject of their common purpose. The judge declined to do so. The jury were directed to approach the case on the basis that the prosecution had to establish that Mr Perdikoyiannis was party to a common purpose or agreement to commit the three crimes charged. As to each crime charged, the judge instructed the jury that they had to be satisfied that Mr Perdikoyiannis was party to an agreement to carry out that particular offence. It was not sufficient, on these directions, for the jury to be satisfied, for example, that Mr Perdikoyiannis was party to a common purpose to rob Mr Nicolaidis, and that the use of a gun was within his contemplation as something that might occur in the course of carrying out the crime of robbery.
In short, the case was left to the jury on a relatively narrow basis that was, undoubtedly, favourable to the defence.
The obligation of a trial judge to leave alternative verdicts to a jury was canvassed by this court in Benbolt v The Queen (1992) 60 SASR 7. All members of the court accepted the general proposition that a trial judge has a duty in the summing up to direct the jury as to any alternative verdict that is open on the evidence, even if such a verdict had not been mentioned by counsel in their final addresses, or by the prosecutor in the opening address: King CJ at 19, Perry J at 23 and Duggan J at 26-27. Each member of the court also accepted that that obligation is subject to an overriding obligation to ensure that the accused receives a fair trial. There may be situations in which an available alternative should not be left to the jury, because to do so would be productive of unfairness: King CJ at 19, Perry J at 23 and Duggan J at 26-27.
The effect of these judgments is that counsel and the trial judge should consider the possible need to leave alternative verdicts. It is appropriate, indeed desirable, for a trial judge to raise with counsel, as soon as practicable, the need to leave alternative verdicts that have not been raised by counsel with the jury or with the judge. The matter is not one to be left by the judge entirely to counsel: King CJ at 19. It is also well established by authority that the judge may be entitled and obliged to leave a verdict to the jury, even though counsel for the accused may oppose that course on the basis of tactical considerations: Varley v The Queen (1976) 51 ALJR 243 at 245 Barwick CJ, Benbolt at 14 King CJ and Trewartha [2001] SASC 264; (2001) 123 A Crim R 259 at [35]–[36] Doyle CJ.
In stating these propositions I have not overlooked the fact that other Courts of Criminal Appeal have expressed some caution about a statement of principle that would require a trial judge to leave to the jury all available alternative verdicts, irrespective of the manner in which the prosecution conducts its case: see Elfar [2000] NSWCCA 255; (2000) 115 A Crim R 64 (Court of Criminal Appeal New South Wales) and R v Doan [2001] VSCA 142; (2001) 3 VR 349 at [28]-[35] Charles JA.
However, whatever views have been expressed by other equivalent courts, this court should apply the principle stated in Benbolt unless and until the court sees fit to reconsider them.
In the light of this statement of principle, three issues arise in the present case. First, whether the suggested alternative verdicts were available as a matter of law. Second, whether they arose fairly on the evidence. Third, if each of these questions is answered in the affirmative, whether the failure to leave the alternative verdicts has given rise to a miscarriage of justice, or whether it can be said that there is no risk, in the circumstances, of a miscarriage of justice having occurred.
I turn now to these questions.
At common law a person charged with an offence may be convicted of an alternative offence not expressly charged if that offence is of the same character as the offence charged and if the offence charged necessarily includes all of the elements of the alternative offence: McLaren (1997) 92 A Crim R 301; 189 LSJS 466.
The circumstances in which an alternative and lesser count, not appearing on an Information, may be left to the jury and be the subject of a verdict are quite limited. The basic principle is conveniently stated in Winner (1989) 39 A Crim R 180 at 181:
“ …[S]uch a verdict may only be returned if each element of the lesser offence of which the accused is convicted, is also an element of the greater offence with which he was charged, and has been alleged against him either expressly or by necessary implication in the indictment.”
The same approach was taken in Aldridge (1993) 67 A Crim R 371, where Sheller JA, with whom the other members of the court agreed, said at 376 that the test was whether it was a necessary step towards establishing the major offence to prove the commission of the other offence. In other words, was the lesser offence an essential ingredient of the major one? This required a close consideration of the terms of the Information. It is important to bear in mind that what must be considered are the terms in which the charge is laid, not the evidence at a trial. As the Full Court of the Supreme Court of Victoria said in R v Salisbury [1976] VR 452 at 454:
“That is to say, where an accused is indicted for a felony the jury may find him guilty of any lesser felony that is necessarily included in the offence with which he is charged and where an accused is indicted for a misdemeanour the jury may find him guilty of any lesser misdemeanour that is necessarily included in the offence with which he is charged.
Whether the lesser offence is necessarily included in the offence charged is a matter which has to be determined upon a consideration of the terms in which the offence is laid. It is not a matter which depends upon the evidence led at the trial, except to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge.”
The application of the principle to the facts in each of these cases is instructive.

I agree that on the charge of causing grievous bodily harm with intent to do grievous bodily harm contrary to s 21 of the Act, a verdict of guilty of inflicting grievous bodily harm contrary to s 23 of the Act is available as an alternative verdict. This is because, having regard to the terms of the charge as it appears on the Information, the lesser charge of unlawfully and maliciously causing grievous bodily harm is necessarily included in the offence charged. The proof of the offence charged necessarily involves proof of the lesser offence. On the other hand, a verdict of guilty of the offence of unlawful wounding contrary to s 24 of the Act is not available as an alternative verdict because the Information does not allege a wounding, and s 24 of the Act requires that that allegation be made as a condition of the availability of the alternative verdict of guilty of unlawful wounding.
Applying the same reasoning, on the charge of armed robbery contrary to s 158 (a) and (b) of the Act, a verdict of guilty of robbery contrary to s 155 of the Act is available as an alternative verdict: see R v Fitzpatrick (1988) 50 SASR 10.
It is one thing to say that those verdicts were available as a matter of law, but another to say that in the particular circumstances of the case there was an error of law, or that there has been a miscarriage of justice, because these verdicts were not left to the jury as alternatives.
It is relevant to bear in mind that the prosecutor did not at any stage open to the jury the possibility of either alternative verdict. Nor was that possibility raised by counsel with the judge at any stage. The only alternative verdict that was raised was one that was not available, and this was raised after the summing up. The prosecutor elected to present the case on a narrow footing, that I have described above. But authority establishes that the failure of counsel to raise an alternative verdict with the jury and with the judge is not decisive. As this court made clear in Benbolt, there is a legal obligation to leave alternative verdicts that are available. In that case King CJ said, referring to s 57 of the Juries Act 1927 (SA), at 18:
“I do not think that it requires a judge to leave for the consideration of the jury alternatives for which there is no reasonable basis in the evidence, but I think that it does make clear that all alternatives are to be disposed of by the verdict except in the case of disagreement in which case fresh proceedings may be taken.”
He went on to refer to the duty of the judge to give a direction on alternative verdicts as one that was owed to the accused and to the prosecution. He added at 19:
“There is, however, an overriding obligation on the trial judge to ensure that the accused is accorded a fair trial. There may be situations in which the leaving of alternative verdicts to the jury would, having regard to the course of the trial, amount to a denial of natural justice. In such cases, the judge would be justified in not leaving the alternatives to the jury, and the immunity which the accused would gain from conviction of alternative offences, might be the price which has to be paid for procedural justice. Such cases, however, should be rare.”
In short, if an alternative verdict is available as a matter of law, the trial judge is required as a matter of law to direct the jury about that verdict if it is reasonably open on the evidence. That is subject to the question of fairness to which King CJ referred.
Were these alternative verdicts reasonably open on the evidence? Was there a “reasonable basis on the evidence” for them, as King CJ put it in Benbolt at 18? In my view they were not. The prosecution case was that Mr Perdikoyiannis agreed to be involved in the luring of Mr Nicolaidis into the van, with a view to him being robbed by the men, one at least of whom he knew had a gun (Steve), the men using such violence or force as they might have to use, to get Mr Nicolaidis to submit. Mr Perdikoyiannis admitted in evidence that he knew that Steve had a gun with him at the time in question. It was not a case in which the prosecution ever suggested that Mr Perdikoyiannis was guilty on the basis that he agreed to participate in a plan to commit a lesser offence, such as robbery, but was guilty because the use of a gun and the infliction of grievous bodily harm with intent to do grievous bodily harm should have been contemplated as possible incidents of the arrangement to which Mr Perdikoyiannis agreed. The prosecution case was that Mr Perdikoyiannis was party to a plan to do the very thing that eventuated.
In my view, to leave to the jury either of the suggested alternative verdicts, on the basis that the jury might be satisfied that Mr Perdikoyiannis agreed only to a plan involving robbery without the use of a gun, or the infliction of grievous bodily harm without the intention to do grievous bodily harm, would be to raise a new and speculative hypothesis, and not to raise an alternative approach that was fairly open on the facts. The real issue in this case was the claim that threats by Steve gave rise to a defence of duress. My conclusion is, to some extent, influenced by the manner in which the prosecution put its case, but that circumstance is not decisive. It seems to me that the evidence did not fairly lend itself to these alternative approaches. Indeed, to put them to the jury might have been unfair to Mr Perdikoyiannis by raising the risk of a compromise verdict from the jury.
In reaching this conclusion I am not relying on the fact that the jury convicted Mr Perdikoyiannis of the offences actually charged. The decision of the High Court in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [7]–[20] Gleeson and Gummow JJ; at [88]-[91] Callinan J makes it clear that, when the complaint is that alternative and lesser verdicts were not left, it is not necessarily an answer to that complaint to say that the jury convicted of the greater offence, therefore they must have been satisfied as to the elements of the greater offence, and so they would inevitably have convicted of the greater offence even if the lesser alternative had been left. To the extent that Benbolt decides otherwise on this point, is no longer good law in the light of the decision in Gilbert.
My conclusion rests on the proposition that, having regard to the circumstances and, to a lesser extent, the manner in which the case was presented, the alternative verdicts were not reasonably open on the evidence.
If I am wrong in that, I am satisfied that the verdicts should stand, because the failure to leave the alternative verdicts gave rise to no miscarriage of justice. Had the lesser verdicts been left, the prosecutor would have been entitled to have the judge direct the jury that if Mr Perdikoyiannis contemplated the use of a gun as a possible incident of the plan, and the causing of grievous bodily harm with intent to cause grievous bodily harm as a possible incident of the plan, he was guilty of the offence as charged. It would not have been right to leave the lesser and alternative verdicts without raising that alternative process of reasoning with the jury in relation to the view of the facts on which those lesser verdicts might have been based. Once the defence of duress was rejected, as it must have been, my view is that it was clear that, if directed in this fashion, the jury would have convicted Mr Perdikoyiannis of the offences as charged. Accordingly, the case is one in which the proviso can be applied.
For those reasons I would dismiss the appeal against conviction.
Appeal against sentence
I would dismiss the appeal against sentence.
These were very serious offences. Each offence is an offence of a serious character or type. Each offence was serious in terms of the conduct involved and the consequences for the victim. Each offence called for a substantial penalty, with a significant deterrent element.
Mr Perdikoyiannis played a significant part in the offences. He was not the leader in the offences, but the part he played was an important one.
He was not a first offender, although he had no serious convictions as an adult.
The offence of armed robbery alone could have attracted a sentence of between six years and eight years imprisonment. The sentence the judge imposed for these three offences could easily have been greater.
At the time of the offences Mr Perdikoyiannis was 20 years of age, and when sentenced he was 23 years of age. It is regrettable that a man as young as this should face a sentence of that severity. The judge said that but for his age the sentence would have been heavier. The sentence imposed was appropriate to ensure adequate punishment and an adequate element of deterrence.
In the course of his sentencing remarks the judge said that what had happened was something that could not be tolerated. In the course of briefly summarising what had happened, he referred to Mr Nicolaidis having been threatened with death. In these remarks the judge was doing no more than describing what had occurred. He was not, I consider, making a finding that Mr Perdikoyiannis himself threatened the victim with death. I do not accept the submission that this part of the sentencing remarks reflects an error of fact.
The sentence was appropriate, and it is for those reasons that the appeal against sentence must be dismissed.
Conclusion
The appeal against conviction and the appeal against sentence should be dismissed.
Besanko J: In my opinion, the appeal against conviction and the appeal against sentence should be dismissed. I agree with the reasons of the Chief Justice.
Sulan J: I agree with the reasons of Doyle CJ. I agree that the appeal against conviction and the appeal against sentence should be dismissed.

[2003] SASC 310

12 September 2003