R v Tektonopoulos

Case [1999] VSCA 93

SUPREME COURT OF VICTORIA
  COURT OF APPEAL Not Restricted

No. 217 of 1998

THE QUEEN
v
DAMIEN TEKTONOPOULOS

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JUDGES:

WINNEKE, P., CHARLES and BATT, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

13-14 April 1999

DATE OF JUDGMENT:

25 June 1999

MEDIA NEUTRAL CITATION:

[1999] VSCA 93

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Criminal law – Evidence of similar facts tendered to prove identity of accused – s.398A Crimes Act 1958 (Vic.) – Whether propensity evidence “relevant to a fact in issue” – Meaning of section discussed.

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APPEARANCES:

 Counsel Solicitors

For the Crown

Mr. G. R. Flatman, Q.C. (D.P.P.) and Ms. K. Judd

 P.C. Wood, Solicitor for Public Prosecutions
For the Applicant Mr. P.G. Priest, Q.C. Galbally Rolfe

THE QUEEN  v.  DAMIEN TEKTONOPOULOS

WINNEKE, P.:

  1. In the early hours of the morning of 2 December 1997, an intruder entered, through a window, a bedroom at the front of premises at 2 Kennedy Street, Richmond.   It was dark, but the intruder carried a torch.   He also had a knife.

  1. The bedroom was occupied by a young woman who was asleep in the only bed in the room.   (I will call her “the complainant”.)

  1. Shortly after the intruder entered the room, the complainant awoke.  She became conscious of his presence and demanded to know what he was doing.   He said he was “looking for a man”.   She said that he spoke to her in “whispered tones”.   He came forward to where she was in the bed and switched on the torch.   It remained on until he left the room some 10-15 minutes later.   He asked her to lift up her top and said that, if she did as she was told, he would not harm her.   Thereafter he touched her on the nipples and the vagina.   He asked her to perform other sexual acts, but she refused.   He showed her a knife he was carrying and said “See this, you have to do what I ask”.   She said the knife was 15-20 centimetres long, had a sharp and straight blade and not “serrated”.   It was “like a kitchen knife”.   He told her he had come in through the window.   At all times she was lying on her back and he was standing.   When he left the room, he left through the same window by means of which he had gained entry.   He told her to pull the bed-clothes over her head as he left.   She was later to say that, although it was dark she could see the intruder’s face in the glow of the torch.

  1. Shortly after the intruder had left, the complainant called the police.   During the course of the day she was asked a number of questions.   She was also asked to look at books of photographs which the police had.   In one of these books was a photograph of the applicant.   She did not identify him as the intruder but selected a photograph of another man.   She said she selected that photograph because it was a “90%-95% likeness” to the intruder.   She…

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R v Tektonopoulos [1999] VSCA 93
Case
[1999] VSCA 93
Decision Date

CaseChat Overview and Summary

In the case of R v Tektonopoulos, the defendant, Tektonopoulos, was accused of committing certain offences at Kennedy Street on 2 December. The prosecution sought to admit evidence of similar facts, specifically incidents that occurred at Gardiner Street on 5 December, to establish the identity of the offender at Kennedy Street. This application was heard in the Supreme Court of Victoria. The core legal issue revolved around whether evidence of similar facts could be admitted under section 398A of the Crimes Act 1958 (Vic.), which governs the admissibility of propensity evidence. The court had to determine if such evidence was relevant to the fact in issue, which in this case was the identity of the offender at Kennedy Street.

The court meticulously examined the statutory provisions and judicial precedents to address the admissibility of propensity evidence. The primary concern was whether the evidence of similar facts was relevant to proving the identity of the offender, as required by the statute. The court highlighted that identification evidence could take various forms, including physical identification, confession, fingerprints, or circumstantial evidence such as similar facts. The court noted that while the evidence might be used to corroborate the complainant’s identification, its admissibility was determined by its relevance to the fact in issue. The court underscored that the fact in issue was the identity of the offender and not the accuracy of the complainant's identification.

After thorough analysis, the court concluded that the evidence of similar facts was relevant to the fact in issue and thus admissible under section 398A. The judge found that the prosecution's application to admit the evidence was correctly allowed, as it pertained to the identity of the offender. The reasoning was grounded in the understanding that the evidence, though not strictly corroborative, was relevant for proving the identity of the accused. The court thus affirmed the admissibility of the evidence of similar facts in proving the identity of the offender, rejecting the argument that the evidence should be excluded because it was sought to be used for corroboration.

No final orders were mentioned in the extract, but the ruling affirmed the admissibility of the evidence as it was relevant to proving the identity of the offender.

Orders

Orders of the court

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Background

Background to the litigation

Application of principles to the facts of the present case In this case his Honour was being asked to admit evidence of similar facts (namely the events which occurred at Gardiner Street on 5 December) in order to prove the identity of the offender who committed the proven offences which took place in the house at Kennedy Street on 2 December. The evidence remained evidence of identity for the purposes of admission whether or not, once admitted, it was open to be used by the Crown “to bolster or confirm” the evidence of direct identification given by the complainant. Within the meaning of s.398A (2), the “fact in issue” to the proof of which the propensity evidence was relevant was the identity of the offender in Kennedy Street and not the adequacy of the evidence of the complainant. Identification evidence is not limited to identification from memory or photograph. Where the fact in issue is “who committed the offence?”, identification can take the form of physical identification, confession, or fingerprints or other circumstantial evidence of which evidence of “similar facts” is a species (Sutton v. R., supra at 538 per Murphy, J.). However, where the circumstantial evidence sought to be led to prove identity is proof of other crimes or discreditable conduct on the part of the accused, it becomes a particular type of circumstantial evidence which is subject to the special exclusionary rule (Sutton, supra, at 548 per Brennan, J., 564 per Dawson, J.). To suggest that the test of admissibility is in some way to be circumscribed because the evidence was to be used to “corroborate” the complainant’s identification is, at it seems to me, to misdescribe the fact in issue to which it is said the evidence is relevant. Although the evidence in question (although not strictly “corroborative”), might have been used, if admitted, as an additional piece of circumstantial evidence upon which the identity of the offender might be proved, its admissibility had to be tested first. As Lord Mustill pointed out in Reg. v. H., supra, at 615, questions of admissibility and corroboration often overlap, but are not the same. As he said: As I have noted, in ruling the evidence admissible, the learned judge said that “similar fact evidence … may sometimes be led … for the purpose of negating a possible defence, such as mistake … or as affording evidence of a requisite mental state. In the matter with which I have been concerned, the propensity evidence was not sought to be led to either of those ends. As I have indicated, it was rather sought to be led as corroboration of the evidence of [the complainant]. In that regard, the issue is whether the propensity evidence is ‘relevant to facts in issue’.” On any view it seems to me that his Honour misdirected himself. He appears to have been influenced by the fact that the Crown was seeking to use the evidence as “corroboration” of the complainant’s identification and that a fact in issue was the accuracy of that identification. Indeed, in the course of argument as to the admissibility of the evidence, his Honour had said to the applicant’s counsel:

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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