R v Spilios - [2016] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPILIOS
[2016] SASCFC 6
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Nicholson)
16 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IRREGULARITIES IN RELATION TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS
Appeal against conviction. The appellant was jointly charged with a co-accused, Darren Charles Bascombe, with the offence of murder. It was the prosecution case that the defendants knew the deceased through the amphetamine trade. Both men believed the deceased owed them money. In the early hours of the morning of 22 November 2013, the appellant left his home in Berri in South Australia and drove to Mildura in Victoria. There, he met Bascombe and both men travelled back to South Australia to the deceased’s home at Monash. The deceased was murdered in the dining room of his home.
Both defendants gave evidence in their own defence. Bascombe said that he was involved in an altercation with the deceased but that the deceased was still alive when he left the house. The appellant denied being at the home of the deceased that morning and denied any involvement in, or knowledge of, the killing.
Whether the Judge should have ordered a mistrial after a juror alleged that the appellant had deliberately stood in the way of the juror as the juror attempted to enter the jury room. Whether there was a case to answer. Whether the Judge erred in his directions in respect of joint enterprise. Whether the Judge erred in permitting a joint trial. Whether the Judge erred in permitting a leading question. Whether the Judge wrongly admitted the evidence of Bascombe’s partner.
Held per Gray J (Kelly and Nicholson JJ agreeing) (dismissing the appeal):
1. The conduct of the appellant was improper but it did not warrant a discharge of the jury in circumstances where the jury expressed in the clearest of terms that they were able to continue and received clear directions on how they should approach their deliberations in light of the appellant’s conduct outside of Court.
2. The Judge did not err by failing to hold that there was no case to answer. The evidence was capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the appellant.
3. This Court is bound by the High Court decision…

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 Spilios

Details

AGLC: R v Spilios [2016] SASCFC 6
Case: [2016] SASCFC 6
Decision Date: 16 February 2016

CaseChat Overview and Summary

This case concerned an appeal against a conviction for murder. The appellant, Spilios, was jointly tried with a co-accused, Bascombe. The central dispute revolved around the admissibility and use of evidence obtained through recorded conversations between Bascombe and his domestic partner, Kim Chambers, who subsequently provided this information to the police. The appeal was heard by Gray, Kelly, and Nicholson JJ of the court.

The legal issues before the court included whether the evidence of Kim Chambers, specifically tape-recorded conversations between her and the co-accused Spilios, was wrongly admitted. Specific grounds of complaint included allegations that the police used Chambers as an agent to interview Spilios, that this procedure was contrary to proper police practice and Spilios's right to silence, constituting an abuse of process. Further, it was argued that the recorded conversation was unfairly redacted and not provided in full, and that the trial judge should have issued a warning to the jury regarding the evidence of a spouse of a co-accused.

The court found that no objection was taken at trial to the admissibility of the recorded conversations per se, nor was it contended that the recordings were unlawful or obtained in circumstances warranting exclusion. While objections were raised regarding the relevance or prejudicial effect of certain parts of the conversations, the overall admissibility was not challenged. The court noted that counsel for Spilios had sought to have further parts of the conversations placed before the jury, which subsequently occurred. The judges concluded that the evidence of Mr Vallelonga was probative of a fact in issue and there was no basis to exclude it, nor was there unfairness arising from the questioning.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence of Mr Vallelonga, if accepted by the jury, was probative of a fact in issue. There was no basis to exclude the evidence. In all the circumstances there was no unfairness arising from the line of questioning. I would refuse permission to appeal on this ground. The Evidence of Kim Chambers On the appeal, it was complained that the evidence of Kim Chambers was wrongly admitted into evidence. The following particulars were advanced: The evidence of the co-accused’s partner KIM CHAMBERS should not have been admitted into evidence.· Ms Chambers is the domestic partner of the co-accused Bascombe;· The co-accused Spilios trusted Chambers who discussed issues with Chambers sympathetically knowing Bascombe had been arrested for murder;· The police used Chambers as an agent to interview co-accused Spilios;· The procedure adopted by the police was counter to proper police procedure and the co-accused’s right to silence and an abuse of process; · The evidence of the tape recorded conversation between Chambers (with a police officer in attendance) and Spilios was redacted and not provided in full to the court or jury;· Bascombe had discussed with Chambers in recorded telephone conversations how to incriminate Spilios; · The trial judge should have warned the jury of issues inherent in relying upon the evidence of a spouse of a co-accused giving evidence against the non-spousal co-accused. It was the position of the Director that no objection was taken to the admissibility of the evidence now sought to be challenged and that the complaints being advanced on the appeal were not advanced at trial. It was pointed out that the relevant evidence said to be supportive of the prosecution case came from the answers given by Spilios in the recording, rather than from the evidence of Ms Chambers. The recording spoke for itself. To understand the complaint in respect of the recording and to resolve the question arising, it is necessary to consider the context of Ms Chambers’ evidence. Bascombe and Ms Chambers were in a relationship at the time of the offence. Bascombe was arrested for the murder of the deceased on 5 December 2013. He was remanded in custody. Ms Chambers subsequently spoke to Bascombe on the telephone, and visited him in prison on a number of occasions. All of their telephone calls were recorded, as were a number of conversations between them that took place at the prison. During the course of their various conversations, Bascombe made admissions regarding his own involvement in the crime. He also firmly blamed Spilios, telling Ms Chambers that Spilios was responsible for inflicting the majority of the injuries to the deceased. He told Ms Chambers that Spilios inflicted the injuries by striking the deceased to the head with a breadboard. There were a multitude of recorded telephone calls, the overwhelming majority of which involved discussions on matters totally unrelated to the murder of the deceased. None of those calls were led in evidence. Only those parts of conversations, including those at the prison, that were directly relevant to the case against Bascombe were led. What was and was not led was the subject of discussion between counsel for the Director and Bascombe. The Judge was not asked to rule on the matter. Counsel for Spilios sought to have some further parts of the conversations placed before the jury. That subsequently occurred.

Decision

Reasons for decision

GRAY J NICHOLSON J (dissent)

It is to be noted that, at trial, no objection was taken to the admissibility per se of the recorded conversations. While objection was taken to the admissibility of certain parts of the conversation that were considered irrelevant, or more prejudicial than probative, it was not suggested that the conversations should be excluded in their entirety. It was not contended that the conversations had been unlawfully recorded, or had been recorded in circumstances that enlivened a discretion to exclude them as a whole. Counsel at trial was aware that necessary approvals had been obtained to record the conversations pursuant to the provisions of the Criminal Law (Undercover Operations) Act 1995 (SA). Consequently, in my view, this complaint is without substance and should be rejected. I would refuse permission to appeal on this ground.Conclusion I would dismiss the appeal. KELLY J: I would dismiss the appeal. I agree with the reasons of Gray J. I agree with Gray J.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J,

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