Regina v Stavropoulos - [2008] NSWCCA 68

New South Wales
Court of Criminal Appeal

CITATION: REGINA v STAVROPOULOS [2008] NSWCCA 68

HEARING DATE(S): Monday 19 November 2007

JUDGMENT DATE:
1 April 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 27

DECISION: Application for costs by the respondent dismissed.

CATCHWORDS: COSTS – failed appeal – whether s.17 of the Criminal Appeal Act applies to preclude an order for costs - CRIMINAL APPEAL – appeal by Crown against reduced sentence – whether an incompetent appeal or abuse of process

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Markisic v Vizza [2002] NSWCCA 53

PARTIES: REGINA v
Paul STAVROPOULOS

FILE NUMBER(S): CCA 2007/3210

COUNSEL: Crown: GIO Rowling
Resp: A Bellanto QC/J Ghabrial

SOLICITORS: Crown: S Kavanagh
Resp: Shephard & Shephard

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 15/11/1131

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

LOWER COURT DATE OF DECISION: 28 July 2006

2007/3210

McCLELLAN CJ at CL
HALL J
PRICE J
TUESDAY 1 APRIL 2008

REGINA v CRISTOS STAVROPOULOS

Judgment

(O n application for costs )

1 McCLELLAN CJ at CL: I agree with Hall J.

2 HALL J: On 7 December 2007, judgment was given by this Court in favour of the respondent to the appeal by the Crown brought pursuant to the provisions of s.5DA of the Criminal Appeal Act 1912 (NSW).

3 The appeal related to sentences imposed on the respondent in the District Court of New South Wales on 28 July 2006.

4 On the appeal, the Crown had contended that the respondent had given an undertaking to give evidence in accordance with a statement that had been provided by him and that, inter alia, on the basis of such an undertaking he was sentenced to a non-parole period of 10 months commencing 28 July 2006 and expiring 27 May 2007 with a further term of imprisonment of one year and two months commencing 28 May 2007 and expiring 27 July 2008. An order was made pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the sentence be suspended and that the respondent be released from custody on condition that he enter into a good behaviour bond for the term of two years.

5 The argument on the appeal was that the respondent failed to fulfil the claimed undertaking said to have been given by him to give evidence against his two co-offenders and that, accordingly, the Court ought exercise its power to vary the sentences imposed upon him pursuant to the provisions of s.5DA(2) of the Criminal Appeal Act.

6 In the judgment given by this Court on 7 December 2007, following a review of the evidence, concluded that the appeal must fail on the basis that the evidence did not establish that the respondent had bound himself, by way of a promise or undertaking, which was an essential matter in an application under s.5DA (judgment at [62]).

7 The respondent was granted leave at…

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 Regina v Stavropoulos

Details

AGLC: Regina v Stavropoulos [2008] NSWCCA 68
Case: [2008] NSWCCA 68
Decision Date: 1 April 2008

CaseChat Overview and Summary

In Regina v Stavropoulos, the respondent appealed against the severity of his sentence, and the Crown subsequently appealed the reduction of the sentence by the trial judge. The High Court was tasked with determining the applicability of section 17 of the Criminal Appeal Act 1918 (SA) to preclude an order for costs against the Crown. The court was required to decide whether the appeal was incompetent or constituted an abuse of process, which would influence the costs order.

The court examined the statutory provisions and case law to discern the circumstances under which section 17 could preclude a costs order. It considered whether the appeal by the Crown was competent and whether it amounted to an abuse of process. The court held that the Crown's appeal was not incompetent or an abuse of process, as the appeal was based on the grounds of the severity of the sentence, which is a legitimate concern. The court found that the appeal process was correctly followed, and the appeal was not an abuse of the legal process.

Consequently, the High Court determined that the Crown was not precluded from an order for costs under section 17 of the Act. The court's reasoning was that the appeal was legitimate, and the appeal process was not abused. The High Court found in favour of the respondent, Stavropoulos, and dismissed the Crown's appeal, with no order as to costs.

Orders