Soteriou v R
[2013] VSCA 328
•18 November 2013 26 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0143
S APCR 2011 0310
| VICKY SOTERIOU | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY and PRIEST JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 November 2013 |
| DATE OF ORDERS DATE OF PUBLICATION OF REASONS | 18 November 2013 26 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 328 |
| JUDGMENT APPEALED FROM | Soteriou v R ([2011] VSC 623, Supreme Court of Victoria, |
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CRIMINAL LAW – Conviction - Application for leave to appeal - Attempted murder - Crown case of concert and alternatively that applicant counselled and procured co-offender to kill victim – Plea by co-offender to charge of intentionally causing serious injury accepted by Crown – Co-offender called by Crown at trial of applicant – Crown submission that jury should disbelieve parts of co‑offender’s evidence which could have assisted applicant – Whether judge erred in leaving counselling and procuring basis of guilt to jury – Likiardopoulos v The Queen (2012) 247 CLR 265.
CRIMINAL LAW – Conviction – Confession – Whether judge erred in finding that Crown had satisfied requirement for admissibility of confession under s 85(2), Evidence Act 2008.
CRIMINAL LAW – Conviction – Whether conviction for attempted murder unsafe and unsatisfactory.
Application for leave to appeal against conviction refused.
CRIMINAL LAW – Sentence – Extension of time application – Long and unexplained delay- Sole proposed Ground near hopeless- Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC with Mr T Alexander | Cash & Stavroulakis Lawyers |
| For the Crown | Mr B L Sonnett | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
On 7 October 2011, after three hours of deliberations, a jury in the Supreme Court found the applicant, Vicky Soteriou, guilty of the attempted murder of her husband Chris Soteriou. The offence was committed when, in the late evening of 2 January 2010, the victim was attacked with a knife by Ari Dimitrakis, the applicant’s lover. The wounds which Dimitrakis inflicted were numerous and grave. They might well have proved fatal had it not been the case that two doctors chanced to be nearby in the street in which the attack took place, and were able to render immediate aid.
The applicant and Dimitrakis were charged with attempted murder with an alternative charge of intentionally causing serious injury. The case against the applicant was put as one of concert, and alternatively that she counselled and procured Dimitrakis to kill her husband.
Dimitrakis pleaded guilty to the charge of intentionally causing serious injury, and the Crown accepted his plea. On 8 September 2010 he was sentenced by Coghlan J (as his Honour then was) to seven years’ imprisonment with a non-parole period of five years. The judge stated that he imposed a sentence which was less than it otherwise would have been because Dimitrakis had undertaken to give evidence in the applicant’s trial. At that trial, Dimitrakis did so.
Having been convicted of attempted murder, on 28 November 2011 the applicant was sentenced to 12 years’ imprisonment with a non-parole period of nine years.
The Grounds relied upon
Within time, the applicant sought leave to appeal against conviction. She relied upon a single ground:
Ground 1:In circumstances where the prosecution had withdrawn a charge of attempted murder against Ari Dimitrakis and accepted instead a plea of guilty to a charge of intentionally causing serious injury, had accepted that Mr Dimitrakis was the principal who stabbed Chris Soteriou and proposed to call Mr Dimitrakis on the trial of the applicant, the learned trial judge erred:
a.in declining to stay as an abuse of process the prosecution of the applicant on the charge of attempted murder; and/or
b.in leaving to the jury the derivative form of liability of counselling and procuring for attempted murder.
Each aspect of the ground had been argued at trial. The pertinent submissions had been rejected by the judge, in reliance particularly upon the decision of this Court in Likiardopoulosv The Queen.[1]
[1](2010) 208 A Crim R 84.
At the time when the application for leave to appeal against conviction was filed, a special leave application from the decision in Likiardopoulos was pending in the High Court. Leave was later granted, but later still the High Court dismissed the appeal. The applicant, by a revised outline of submissions, then sought to distinguish Likiardopoulos.
More than a year-and-a-half later, on 31 July 2013, having changed solicitors, the applicant filed a new application for leave to appeal against conviction. There were four proposed grounds of appeal:
Ground 1: That in circumstances where a juror notified the Court that she may have known the principal Crown witness, the learned Trial Judge erred by: (a) failing to make further inquiries of the witness; or, (b) failing to make proper enquiries of the juror.
Ground 2:That the verdict was unsafe and unsatisfactory in all the circumstances;
Ground 3:That the Trial Judge erred in leaving attempted murder by counselling and procuring to the jury;
Ground 4:That the Trial Judge erred in admitting the Applicant’s confession.
Grounds 1, 2 and 4 were new. Ground 3 was a replication of the initial Ground 1.b.
Also on 31 July 2013, the applicant filed an application for extension of time for leave to appeal against sentence. The proposed ground of appeal was that the sentence imposed on the applicant was manifestly excessive by reason of the relative disparity of sentences passed on the applicant and Dimitrakis.
The application for extension of time was refused by the Deputy Registrar (Legal) on 23 August 2013.
Before the Court on 18 November 2013 were –
(1)The application for leave to appeal against conviction (not including the new Ground 1, which was abandoned); and, if leave was granted, the appeal itself.
(2)Election by the applicant to have her application for extension of time for filing notice of application for leave to appeal against sentence determined by this Court; and, if extension be granted, then consideration of her application for leave to appeal; and, if leave was granted, the appeal itself.
Disposition
After hearing the parties on 18 November, the Court announced its unanimous opinion that, for reasons to be published, the applicant would be refused leave to appeal against conviction, and that her extension of time application would be refused. Orders were made accordingly. These are my reasons for joining in those orders.
Circumstances
I have already set out a number of the pertinent circumstances of the matter. But I should supplement them, first of all by setting out some of what the judge said when sentencing the applicant:
2As at January 2010, you and Chris Soteriou had been married for 18 years. You had three children together and your husband regarded the marriage as a happy one. Unbeknown to him, you were having an affair with Ari Dimitrakis. He had been your boyfriend for a short period of time in your single days and you met him again by chance when you were out with your girlfriends celebrating your 40th birthday. You spoke with him again later on that night and you told each other of your respective marriages. Some time after that meeting, the relationship was rekindled, although it appeared it did not become physically intimate until some nine months or so before 2 January 2010. By all accounts, it appears that you were obsessed with each other and it was a passionate and compelling affair.
3… 2 January … was your husband’s 44th birthday … On that date, at about 4pm, you told your husband that you were taking him out for a surprise birthday dinner. You and your three children gave Mr Soteriou a birthday card in which you expressed very loving sentiments and you gave him a shirt which you asked him to wear.
4You drove in your husband’s car to the restaurant in Fitzroy, en route stopping to purchase wine for the festivities. It was unusual for you to drive that car, and you did not tell your husband where you were going. You parked the car in Rose Street, Fitzroy, which runs off Brunswick Street where the restaurant was located. You arrived at the restaurant at around 9.00pm and were joined by five friends. It was a happy and convivial night. You appeared to your friends to be a happy couple. There was nothing untoward about your demeanour or your conduct, except for the fact that you were noted to be absent from the restaurant at some stage during the night.
5The restaurant was a regular haunt for you and your husband. There was dancing and birthday sparklers, and your husband, uncharacteristically for him, apparently at your invitation, drank wine and a cocktail.
6At the end of the evening, you all agreed to meet at a bar in the city, and it appears that you all walked out of the restaurant and you and your husband walked to your car, parked at the far end of Rose Street.
7You and Chris Soteriou were filmed on CCTV footage. You are seen to be turning into Rose Street; you were walking together, your husband had his arm around you. Moments later, as you approached your car, your husband commented upon a man appearing to be crouching near it. You walked off onto the roadway and Mr Soteriou continued to walk on the footpath. The man crouching was in fact your lover, Ari Dimitrakis, and as Mr Soteriou drew near, Ari Dimitrakis attacked him, slashing his throat and stabbing him up to six times. The sound of the scuffle was heard by two off-duty doctors who had just alighted from their parked car. Dr O’Loughlin approached Mr Soteriou and his attacker, and called out to his friend, Dr Bryan, to ring the police. Dr O’Loughlin called out to the attacker that the police had been called and, with that, Ari Dimitrakis dropped the knife and ran off, fleeing the scene in a car which was nearby. Drs O’Loughlin and Bryan then administered first aid to Mr Soteriou and, were it not for their timely intervention and the very swift response of police and emergency services, the consequences of the attack for Mr Soteriou may well have been fatal.
…
9On 13 January 2010, you … told the police that Ari Dimitrakis was your lover and you claimed that he had been stalking you. You told the police that you suspected he may have attacked your husband. Two days later, on 15 January, you went to the Richmond Police station of your own initiative and there admitted to the informant that you were ‘involved in it with Ari’. In the subsequent interview, you admitted to the police that you and Ari Dimitrakis had planned it, that it was to take place on your husband’s birthday, and that you were guilty. You told the police that you had met Ari in a park on the day of your husband’s birthday and Ari had said, ‘I’ll see you tonight’, and either he was going to do it or he would get someone else.
10… The Crown relied upon your admissions and confession, and also upon a significant body of circumstantial evidence. Ari Dimitrakis also gave evidence on behalf of the Crown and, although the Crown did not rely on all that he had to say, he did give evidence that he met you in the park on that day, that you told him the name of the restaurant that you were going to, and that the car would be parked around the corner from the restaurant. He also said you gave him a knife wrapped in a towel. You did not give evidence at your trial, but through your counsel you contended that Ari Dimitrakis had been stalking you and that he attacked Mr Soteriou on a frolic of his own because you would not leave your husband…[2]
[2]The italicised and bold parts of these passages is my emphasis.
The circumstantial evidence to which the judge referred included evidence of each of the matters which I have italicised in the passages cited above. It also included these matters:
·Over a substantial period of time, in 2008 and 2009, the applicant and Dimitrakis exchanged thousands of text messages, including messages of an explicitly sexual kind. In a number of messages sent by the applicant, she either described Dimitrakis as her husband or called herself Mrs Ari Dimitrakis.
·Each of them was tattooed with the name of the other, on more than one place on their bodies.[3]
[3]Including, remarkably, on their ring fingers, under their wedding rings.
·In late September 2009, the applicant and Dimitrakis purchased a joint grave site at the Keilor Cemetery. They acted passionately towards each other at the time. A receipt was provided to ‘Vicky and Ari Dimitrakis’.
·Dimitrakis’ phone records showed that he had not followed the victim’s vehicle to the place where the applicant had parked it on the evening of 2 January 2010.
·The applicant had met with Dimitrakis at about 6pm that day.
·The applicant watched the stabbing occur, but said nothing and did not attempt to assist her husband.
·Dimitrakis, who had arranged to pick his wife up from a tavern on the night of 2 January, was late in doing so.
·The applicant described the attacker’s physical appearance to the police as being quite unlike that of Dimitrakis.
·The applicant was aware that her husband had very substantial superannuation.
·The knife used to attack the victim was the make of a knife which, on the applicant’s account, had gone missing from her home after Dimitrakis had visited. She told the police that she had thrown the rest of the knife set away.
·After the attack, the applicant claimed that Dimitrakis had been stalking her after she put paid to their affair. But she had not said anything to her husband about being stalked. Further, subsequent to the attack, on a number of occasions, she professed her undying love to Dimitrakis.
It is also the fact that, subsequent to the attack, the applicant made statements to the police which were misleading.[4] They were not relied upon by the Crown at trial, however, as evidence of consciousness of guilt.
[4] That is, other than her misdescription of the attacker.
The conviction grounds
Counsel for the applicant addressed Grounds 3, 4 and 2 in that order. I will follow suit.
Ground 3
As I have said, the Crown pursued the attempted murder charge on the basis of concert, and alternatively that the applicant counselled and procured Dimitrakis to kill her husband. The argument for the applicant, under cover of Ground 3, focussed solely upon the latter way in which the Crown put its case. The desired gist of the argument was that criminality founded on counselling and procuring[5] is derivative, for which reason a person such as the applicant cannot be convicted of a more serious offence than the offence of which the principal offender is convicted. Recognising, however, that this proposition could not stand with Likiardopoulos,[6] senior counsel for the applicant argued that, having accepted Dimitrakis’ plea to the offence of intentionally causing serious injury, the Crown should not have been permitted to impugn so much of his evidence at the applicant’s trial which was to the effect that - (1) he never intended to kill the victim; and (2) he was so affected by drugs and alcohol at the time of the attack as to have no memory of the incident – and, by extension, no intention at all at that time.
[5]In the old language, referring to an accessory before the fact.
[6]Likiardopoulos v The Queen (2012) 247 CLR 265, 274-275 [23]-[25], 277 [28]-[30], 279 [36] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It was said not to matter that appellant had been present during some of the time when the deceased was assaulted. The essential question was what evidence was led at his trial. [36] dealt with an abuse of process submission, but it made the ‘different evidence’ point again. See also 283 [45] (Heydon J).
That submission, with respect, could not be upheld. In my opinion, it was not reasonably arguable. The judge rightly directed the jury that, if it was considering the counselling and procuring ground, it must be satisfied that Dimitrakis had intended to kill the victim. Her Honour also directed the jury, conventionally, that it could decide to accept all, some or none of a witness’s evidence; and that in deciding what, if anything, it would accept, it was entitled to consider all of the evidence in the trial. The Crown had urged the jury to accept a good deal of Dimitrakis’ evidence, but to reject that part of his evidence to which I referred a moment ago. Contrary to the submission for the applicant, there was nothing untoward in those directions. What fell for the jury’s consideration was the evidence in the trial of the applicant; and specifically, in the present context, whether the Crown had satisfied the jury, by the evidence in the trial, that Dimitrakis had intended to kill the victim, having been procured or counselled to do so by the applicant. The fact that, in the proceeding against Dimitrakis, the state of evidence might have rendered proof of murderous intent problematic, this explaining the plea which the Crown was prepared to accept, did not deny the Crown’s right, in the proceeding against the applicant, to prove that intent on the evidence available in that trial; and to impugn so much of Dimitrakis’ evidence as did not sit with the entirety of the evidence otherwise. It is the fact that the available evidence in the applicant’s trial was different to the evidence which had been available against Dimitrakis. On the evidence in the applicant’s trial, it could not be gainsaid that murderous intent on Dimitrakis’ part was an available conclusion to the criminal standard.
Ground 4
Counsel submitted that the judge had erred by not ruling inadmissible the confession which the applicant made on 15 January 2010. He contended it was inadmissible by reason of s 85(2) of the Evidence Act 2008 (the Act). That sub-section, and sub-s (3), read as follows:
(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3)Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account-
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning-
(i)the nature of the questions and the manner in which they were put; and
(ii)the nature of any threat, promise or other inducement made to the person questioned.
In support of his submission, counsel focussed upon the applicant’s mental state at the time when the confession was made, this being a matter specifically made relevant by sub-s (3)(a).
The structure of s 85(2) is that an admission made in the circumstances referred to is inadmissible, except if the circumstances there described are established. It not being in contest that the confession was made in what may be called sub-s (1)(a) circumstances, the judge correctly directed herself that it was for the Crown to establish on the balance of probabilities[7] that it was unlikely that the circumstances in which the confession was made were such as to make it unlikely that the truth of the admission was adversely affected. If that was done, then the statement was admissible. To the contrary, if the Crown did not establish those circumstances. The decision required was one of fact, not the exercise of a discretion.
[7]See s 142(1) of the Act.
The matters set out in paragraphs (a) and (b) of sub-s (3) focus on the circumstances at the time of the making of the admission, rather than the circumstances of the matters generally. But the opening words of sub-s (3) are broad, and I consider that the circumstances in which the person came to make the admission might be relevant, in a particular case, to the question which falls for determination under sub-s (2).
The argument pursued by applicant’s counsel was in narrow compass. It was that the evidence of a consultant psychiatrist as to the applicant’s mental state at the time when she made her confession must have been accepted; and, being accepted, the Crown must have failed to demonstrate what was required of it.
I will refer to aspects of the evidence of the psychiatrist, Dr Danny Sullivan, a little later in these reasons. For the moment, two points need to be made. First, the doctor’s evidence was only part of the evidence which was before the judge. Other than that, there was the evidence of - (1) a treating psychiatrist, Dr Nina Zimmerman; (2) another, later, treating psychiatrist, Dr Kerry Mack; (3) a paramedic, Dale Bence; (4) police officers who interviewed the applicant on 15 January, or were present at different times that day and interacted with the applicant; and (5) the evidence constituted by the applicant’s presentation on a videotape of her interview on 15 January 2010.
The interview, I should note immediately, was in two parts, although contained on a single DVD. The first part, in which the confession was made, occupied about 17 minutes, and concluded a little after midday. The second part, which occupied about 10 minutes, began at a little after 5pm. In the latter period, nothing was added to what the applicant had earlier said, and much of the time was concerned with administrative matters.
The judge, who had the advantage of seeing and hearing all the witnesses, and the opportunity of watching the videotaped interview, was persuaded on consideration of all the evidence that the Crown had established what was required of it.[8]
[8]‘It falls to the Crown to establish upon a balance of probabilities [ that the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected]. The inquiry undertaken by the judge is not concerned with the question whether the admission was in fact made, or whether it was true (or untrue); [those matters are] for the jury’. This paraphrases the judgment of Wood CJ at CL in R v Esposito (1998) 45 NSWLR 442, cited by Weinberg JA in FMJ v The Queen [2011] VSCA 308, [48].
The following circumstances, some of which were conclusions reached by her Honour on consideration of the evidence (in which I include the video recording of the interview), supported that conclusion:
(1)Ms Soteriou knew her husband had been seriously injured and was the victim of a knife attack, she knew the police were investigating a serious crime which she had witnessed, she had made a partial statement to the police at the Royal Melbourne Hospital on 3 January and a completed statement at the offices of the Yarra Criminal Investigation Unit on 4 January and spoke with the police at length on 13 January at the Richmond Police Station. She had attended of her own accord and, in particular, in that conversation, she had nominated her lover as a potential suspect, and she arranged to meet with Detective Senior Constable Graefe of her own initiative on the morning of 15 January. This was not a situation where she was questioned by the police in unexpected circumstances. They did not arrest her and bring her to the police station. She went voluntarily to the police station in circumstances where she was not a suspect. She had made the arrangement to attend 3½ hours earlier and to attend at a time of her choosing. For these reasons, it can only have been a calculated, considered decision on her part to come to the police station to confess.[9]
[9]Ruling, R v Soteriou, 14 November 2011.
(2)Upon the pre-interview admission being made, Ms Soteriou was immediately arrested. She was cautioned and her rights explained. There was no suggestion that she did not understand what was being asked of her. Upon the interview commencing, she was told by Detective Senior Constable Graefe “I intend to interview you in relation to the offence of attempted murder”. She was cautioned and her rights again explained. She said that she understood each of those propositions and I am satisfied that there is no reason to doubt that she did. The police continued to question Ms Soteriou, but in my view there was nothing overbearing or persistent in the manner of questioning and her answers were certainly not forthcoming as a result of the questioning. [Applicant’s Senior Counsel] submitted that Ms Soteriou had said she did not want to answer 11 times, but that, in my view, was indicative of how in control of the situation she was. Ms Soteriou had come to confess and, having confessed, was not prepared to say more. Indeed, she proffered that Ari could give the details, but she would not. The interviewing officers were solicitous in their manner and certainly they continued to question Ms Soteriou after she had indicated she did not want to say any more, but investigating officials are not obliged not to ask questions, and here they were investigating a serious crime, and a person whom they had previously regarded as a witness and the wife of the victim had just admitted her involvement in the crime in circumstances where she had come to the police station on her own volition. Of course the police were entitled to continue to question Ms Soteriou. They were not obliged to accept her answers without further enquiry, especially where the answers implicated another person and bespoke planning and organisation.[10]
[10]Ibid.
(3)The first period of the video recorded interview, at which the confession was made, shows the applicant behaving in an apparently normal manner, answering questions rationally, declining to answer some questions, giving some detail of the arrangement which led to Dimitrakis attacking her husband, and withholding other detail. That appreciation of the interview mirrors evidence given by the police officers who conducted it.
(4)Subsequent to that part of the interview, Detective Sgt Dolan spoke with the applicant on a number of occasions. He gave evidence that he discussed with her the care of her children, two of whom were very young. He said that the applicant answered his questions clearly and coherently, but that she became increasingly upset. Later in the afternoon, he said, he spoke with her again about her children. She was reluctant for him to make contact with her family. He persuaded her to give him her sister’s telephone number. She became very distressed, crying and wailing. She came over, and began to grab and clutch him. She begged him to end her life. A little later he spoke with the applicant’s solicitor and said that he was concerned about her mental state as she claimed she had nothing to live for.
The witness proffered the opinion that her behaviour was in response to the positions she found herself in; she had a dire future ahead of her, and ‘the reality of it was kicking in’. That lay opinion appears to have been received into evidence without demur.
(5)It was shortly after the episode recounted in (4) that the second part of the interview took place. The applicant’s demeanour appears greatly different to what it had been five hours earlier. She is shown for the most part sitting mute, not answering questions put to her, but occasionally muttering an inaudible response.
(6)At the conclusion of the resumed interview, the applicant was told that she would be remanded in custody on charges of attempted murder, conspiracy to murder and attempting to pervert the course of justice.
(7)Not long after the resumed interview came to an end, the applicant was taken for fingerprinting. She had some kind of collapse, and an ambulance attended. A very experienced paramedic, Dale Bence, gave evidence that he found her on her knees. She only replied to a few of his questions. She did say that she would remain where she was, as she was fine. Physical examination was unremarkable. He concluded that she had not been unconscious at any stage. It was his impression that she fully understood his questions.
(8)Subsequent to the fingerprinting incident, the applicant was undressed and put into a so-called forensic suit. She had been observed making what was described, in effect, as a pretty small effort to injure the veins in her wrist.
(9)Later that day – first at about 7.30pm, then at 10pm – the applicant was visited by close family relatives. On each occasion, the applicant became somewhat upset. There was not observed to be an apparent problem, however, in the applicant communicating with her relatives, albeit she conversed with her father in Greek.
(10)On 18 January 2010, the applicant was remanded in custody. She was admitted to the psychiatric section of the Dame Phyllis Frost Centre. On 21 January she was transferred as an involuntary patient to the Thomas Embling Hospital. There she remained until 16 March, when she was discharged back to the Dame Phyllis Frost Centre.
(11)Whilst in Thomas Embling, the applicant’s treating psychiatrist was Dr Nina Zimmerman. That doctor diagnosed the applicant as suffering from a depressive episode in a person who had historically been depressed; and from a brief reactive psychosis. The historical depression, in the doctor’s assessment, had not been severe. The reactive psychosis, in the doctor’s opinion, appeared to have been perpetuated by the experience of arrest and incarceration.
The judge expressed her conclusion at to the likely explanation for the very large change in the applicant’s presentation between the late morning of 15 January and her presentation some five hours later this way:
In my view, Ms Soteriou’s realisation of her predicament is more likely to account for the change in her demeanour in the intervening period before the resumption of the interview and in the interview itself, but by then, Ms Soteriou had made the relevant admissions and confession.
Her Honour’s reference to what was the ‘more likely’ explanation directs attention to the evidence upon which counsel for the applicant relied in attacking her Honour’s conclusion that the confession was admissible – that is, evidence given by Dr Danny Sullivan. According to counsel’s submission, Dr Sullivan’s evidence, which must have been accepted, was that the applicant was developing a psychosis in the course of the interview, this precluding the Crown from proving on the balance of probabilities what was required of it.
I mentioned earlier that a third psychiatrist, Dr Kenny Mack, had treated the applicant. This was after the applicant was granted bail in September 2010. That doctor provided an opinion as to the applicant’s likely mental state at time of interview. After she had been cross‑examined, counsel for the applicant no longer relied upon her opinion.
So I come back to Dr Sullivan.
He provided four reports, and gave oral evidence.
The doctor’s first report, dated 29 March 2010, followed upon his examination of the applicant at Thomas Embling Hospital on 21 January. That was the date of her admission, when she was undoubtedly very disturbed. The purpose of his examination and report was a foreshadowed bail application.
Dr Sullivan diagnosed the applicant as suffering from a brief reactive psychosis ‘in the context of a major stressor (allegations of criminal charges and/or the assault on her husband)’. He also diagnosed a major depressive disorder, chronic, of mild to moderate severity. Her presentation and history, he added, were ‘suggestive of borderline, histrionic and dependent personality traits’.
Dr Sullivan was not asked to, and made no assessment of, the question raised by s 85(2) of the Act. His diagnoses of depression and brief reactive psychosis were the same as those made by Dr Zimmerman.
The doctor examined the applicant again in September 2010, and reported on 13 September. Again, he reported in the context of a foreshadowed bail application. He stated that she had made a good recovery, no longer required inpatient mental health support, but would be advised to remain on a low dosage of medication.
Again, Dr Sullivan was not asked to, and made no assessment of, the question raised by s 85(2) of the Act.
In 2011, Dr Sullivan was asked to provide a further report which addressed the potential admissibility of the confession. Earlier, the doctor had been provided with hardcopy of the interview, but now he was provided with a copy of the video recording.
The substance of his report dated 23 August 2011 was as follows:
[2]The videorecording is just under 28 minutes in length. Ms Soteriou is oriented to time, place and person. She appears to understand the preliminary caution about her rights. She is able to interrupt and correct the interview (sic) on occasion. Her responses were cogent and relevant.
[3]She appears preoccupied but not distracted. Her eye contact with the interviewers is reduced. Her facial expression and demeanour are consistent with the depressed and anxious mood. She exhibits psychomotor retardation, that is a slowing of movement which is generally associated with moderate to severe depression.
[4]Her speech is increased in latency and reduced in spontaneity. As the interview progresses this becomes more pronounced, with increased delay and reduction in volume, until she is almost inaudible.
[5]During the interview Ms Soteriou did not make any statements which were obviously thought disordered. She did not express any beliefs which would be consistent with delusions, and she showed no indication that she was experiencing hallucinations. The florid, bizarre and persecutory beliefs which were evident in prison were not apparent.
[6]On the basis of this interview I do not believe that Ms Soteriou could have been considered obviously psychotic at this time. Although she may have held the beginnings of psychotic ideation, I do not believe that these could have been discerned by an interviewer at the time of the interview.
[7]You have also asked me to reflect upon the statement of paramedic Dale Bence, who attended the police station due to reports of Ms Soteriou collapsing. He did not find evidence of any medical condition, noted that physical observations were within normal limits and that she refused an offer of transfer to hospital for observation.
[8]While Mr Bence’s phrasing perhaps betrayed that he considered Ms Soteriou to be manufacturing symptoms, he did not indicate that he saw any evidence of psychotic symptoms. I would not attribute any significance, positive or negative, to his observations in the absence of a detailed examination of her mental state.
Then Dr Sullivan provided a fourth report. Dated 5 September 2011, it repeated paragraphs 2, 3 and 4 of the 23 August report. But then it diverged;
[5]During interview Ms Soteriou did not make obviously thought disordered statements. Her statements were not clearly delusional, and she showed no indication that she was experiencing hallucinations. The florid, bizarre and persecutory beliefs which were evident in prison were not yet apparent. I do not believe that her behaviour could have been discerned by an interviewer at the time of the interview to be psychotic.
[6]However this interview marked Ms Soteriou’s rapid descent into psychosis. Her presentation was consistent with a severe depressive state with catatonic features and indeed these develop overtly through the course of the interview. Her subsequent progress in prison was of fulminant psychosis necessitating urgent transfer to Thomas Embling Hospital. At the time of the interview Ms Soteriou was becoming psychotic. She has since recanted the apparent admissions made during the interview.
[7]Her mental state at the time is likely to have adversely affected the reliability of her admissions. Without usurping the role of the trier of fact, it is certainly possible that her admissions were associated with mood-congruent delusions, that is, delusions of guilt.[11]
[11]There is a question, which was not explored by counsel, whether this opinion truly addressed s85(2) of the Act. It was assumed in argument that it did so.
It was those three paragraphs, of this fourth report, which provided the written opinion upon which counsel for the applicant below, and counsel in this Court, relied.
In examination in chief of the doctor, there was this question and answer:
Is it your opinion that the psychiatric condition that later became more apparent was present at the beginning of the first interview?---The first interview being the police interview of 15 January I don’t believe there was anything which could be discerned by an observer, but the dramatic alteration in her demeanour through the course of that interview in conjunction with what transpired in the coming days she was certainly becoming psychotic. The question is when a psychotic episode is determined as having begun and I think if you take it that at the time of being placed in Dame Phyllis Frost Centre she was exhibiting clear psychotic symptoms, those arose some time preceding that. In retrospect when looking at that interview there is the development of a psychotic illness at that time although there are no explicit delusions or hallucinations expressed during the interview. The question I can’t answer with a solid reliable answer is exactly when you would say she moved from being non-psychotic into being psychotic.
Dr Sullivan was extensively cross‑examined. I will not repeat the detail of that cross‑examination, because the judge identified in her admissibility ruling what she concluded were difficulties in accepting the highwater mark of his opinion. She said this:
Without recounting the totality of Dr Sullivan’s evidence and while acknowledging his expertise in the field of psychiatry, I make the following comments:
(1)Dr Sullivan saw Ms Soteriou on three occasions only.
(2)He was not her treating psychiatrist.
(3)Dr Sullivan appears to have regarded the interview as the one episode, with what he described as a “pause”. In fact, the first interview concluded at 12.10pm and it was not until 5.12pm that the police again spoke formally with Ms Soteriou. This intervening period of five hours cannot be described as a “pause”, and to do so, in my view, is to misdescribe it and such description must qualify Dr Sullivan’s opinion to a significant degree.
(4)It is inaccurate to describe any deterioration in Ms Soteriou’s state as occurring “through the course of the interview”. She was interviewed for 17 minutes. She appears at the end of the first interview at 12.10pm as she appeared at the beginning of it. She is animated and, in the course of that interview, moving, gesturing and correcting the police officers. She was, as Dr Sullivan reported, oriented in time and place. It is five hours later, when she is again interviewed, that her demeanour has changed.
(5)Dr Sullivan did not appear to know the totality of what had occurred in the intervening five hours between the first and second interview. He said Ms Soteriou had been placed in the police cells; she had not. He was not aware of the conversations that Mr Dolan had had with her and her evident distress when speaking about the concerns for her children.
(6)Dr Sullivan’s evidence, as I understand it, was that Ms Soteriou was not displaying a psychotic illness at the time of the first interview, but rather she was depressed. In those circumstances, when asked as to the impact on the reliability in answering questions if someone is suffering a severe depressive episode, Dr Sullivan answered, “Certainly a severe depressive episode can affect cognitive ability in a range of ways. It can affect concentration, it can affect attention span, it can affect the ability to process complex information”.
(7)Dr Sullivan did not diagnose Ms Soteriou as suffering from severe depression.
(8)The questions asked of Ms Soteriou in the record of interview were simple. They were not complex and they did not involve difficult concepts.
(9)Dr Sullivan stated that there was no evidence of a catatonic state evident in the first interview, catatonia being a symptom of severe depression.
(10)The medical records of the Thomas Embling Hospital do not record Ms Soteriou as displaying symptoms of catatonia.
(11)Dr Sullivan did not say in his evidence how Ms Soteriou’s mental state would affect the unreliability of her answers.
(12)Dr Sullivan stated in evidence that Ms Soteriou was developing a mental disorder on that day and it was likely to have affected what she had to say on that day and, in the absence of psychotic symptoms which were evident, it was still clear that her mental state was deteriorating, but he confined that assessment to the interview later in the afternoon.
(13)Dr Sullivan appeared to be under the misapprehension that the prison records noted that Ms Soteriou was floridly psychotic the day after the interview, but Ms Soteriou was not received into prison until three days later and was not transferred to the Thomas Embling Hospital until six days after the interview.
(14)Neither the police, paramedics or family members who spoke with Ms Soteriou from time to time on 15 January reported any psychosis, thought disorder or delusion. It appears that she understood the police questioning and the questioning of the paramedic and was able to speak with family members.
(15)There is no evidence that Ms Soteriou was suffering any psychosis prior to 15 January.
(16)Dr Sullivan conceded that the experience of arrest and incarceration were possible stressors inducing a reactive psychosis, as was the experience of Ms Soteriou’s husband being stabbed and the subsequent police investigation. Dr Sullivan stated that it was possible that the trigger for the onset of the psychosis was the events after the record of interview and the feelings that Ms Soteriou experienced after she confessed her guilt to the crime, but Dr Sullivan would not go so far as to say it was highly likely. It was, he said, ‘plausible’ and, he agreed, all the more so in circumstances where there was no evidence to indicate any sign of psychotic illness or the onset of it, until 15 January.
(17)The conclusions stated in Dr Sullivan’s report of 5 September 2011, in my view, paint a qualitatively different picture from that of the August report and it is not, in my view, answered by Dr Sullivan’s evidence that he was being parsimonious and applying a different test.
Counsel addressed the judge’s observations numbered 11 and 12, submitting that they did not coincide with Dr Sullivan’s evidence. In my opinion, however, observation number 11 was strictly accurate, although perhaps it was not of great importance; whilst observation 12 was a fair attempt to convey the doctor’s opinion that the applicant’s very different presentation at midday and then at 5pm did mark a deterioration in her mental state, which had been apparently stable (although in the doctor’s opinion impaired to a degree) in the first period of the interview.[12]
[12]Although the doctor spoke about a ‘continuum’. Note also that one particular observation highlighted by the doctor as to the applicant’s presentation in the first period of the interview pointed to depression, rather than psychosis.
All in all, it appears to me that the judge’s analysis of problems in accepting the highwater mark of Dr Sullivan’s opinion – which in any event was considerably qualified – was a proper one.[13] It justified - (1) her conclusion, having regard to all the evidence, that there was a more likely cause for the very considerable change in the applicant’s presentation between midday and 5 pm than Dr Sullivan’s opinion that it bespoke a psychotic state which had been present at some lesser level at the time when the confession was made; and, (2) her ultimate conclusion that the Crown had discharged its onus of establishing the admissibility of the confession.
[13]That is so regardless whether observation 11 was of any great importance.
In my opinion, it was not reasonably arguable that there was any error in her Honour’s reasoning or ultimate conclusion. I add that, had it been a matter of this Court deciding the critical question for itself, I would have reached the same conclusion.
Ground 2
The test whether a verdict can be successfully impugned is not in doubt: M v The Queen;[14] and see Libke v The Queen[15]
[14](1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[15](2007) 230 CLR 559, 596-597 (Hayne J, with whom Gleeson CJ and Heydon J agreed).
There are two reasons why this ground was not reasonably arguable.
First, counsel for the applicant correctly conceded that it could not possibly be upheld if the client’s confession was admissible; and, for the reasons which I have given, the confession was admissible.
Second, even absent the confession there was, in my view, an extremely strong case against the applicant. It is true, as counsel for the applicant submitted, that aspects of Dimitrakis’ evidence were unreliable; and, indeed, the Crown invited the jury to disbelieve parts of it. It is also true that, on a barely possible view of the facts, Dimitrakis embarked on a frolic of his own in attempting to kill the victim, this being his response to being rejected by the applicant. But, as against that, and even ignoring the applicant’s confession, Dimitrakis gave direct evidence of an agreement to kill the victim; and the jury was not obliged to reject it. Further, if one focused only on the interaction between the applicant and Dimitrakis on 2 January 2010 there was a powerful circumstantial case of agreement between them to kill the victim. I have referred to aspects of that evidence earlier in these Reasons.
The application for extension of time for leave to appeal against sentence.
The applicant relied upon the affidavit of her solicitors, Anastasia Stavroulakis, sworn 31 July 2013. The pertinent paragraphs are these:
4.On or about 13 June 2013, I received instructions from the Applicant to act on her behalf in this appeal. I have previously acted for the Applicant in respect of family law proceedings. The Applicant had another firm acting for her previously in respect of this appeal.
…
9.On 15 July 2013, junior counsel had a telephone conference with the Applicant. On this occasion, I am informed that the Applicant gave further instructions to junior counsel as to her appeal against her conviction. On this occasion, the Applicant also raised for consideration the possibility of appealing against her sentence. The Further Revised Written Case was prepared in accordance with the Applicant’s instructions in respect of conviction. Counsel were instructed to consider the appeal against sentence.
…
11.On or about 24 July 2013, junior counsel obtained instructions from the Applicant at the Dame Phyllis Frost Centre in respect of the conviction appeal. At that time I am informed that the Applicant gave clear instructions that she wished to appeal against her sentence as well. The majority of the Applicant’s Further Revised Written Case against Conviction had been prepared and junior counsel then had a further telephone conference with the Applicant confirming the instructions to appeal against sentence.
…
13.Given that the Applicant has only had the benefit of both counsel’s advice since mid-July and decided to appeal against sentence on or about 24 July 2013 in response to that advice, the Applicant now seeks an extension of time to file the Applicant’s Appeal against Sentence until 31 July 2013.
The solicitor’s affidavit does not offer any explanation for the applicant’s delay between November 2011 and July 2013 in seeking leave to appeal against sentence. The most that can be said is that the matter was pursued soon after the applicant engaged new solicitors. But it is a matter of record that the applicant was represented at trial and on the plea by very experienced counsel, who were instructed by a very experienced criminal law solicitor, and that only an application for leave to appeal against conviction was commenced within time.
Neither has the solicitor’s affidavit anything to say about the merits of the proposed appeal against sentence. That is left to submissions filed on the applicant’s behalf, the gist of which is that the sentence passed on the applicant was manifestly disparate with the sentence imposed upon Dimitrakis.
The principles which guide determination of an extension of time application were restated by Redlich JA in Bowling v The Queen.[16] His Honour, inter alia, said this:
16The time limits set out in the Rules of Court are not to be treated as some empty formality. The rules are intended to ensure finality of the litigation and compliance with time limits will be required in the ordinary case. The applicant must generally place material before the Court which will persuade the Court that there are special and substantial reasons to extend the time.[17]
17The longer the time which has elapsed since the expiration of the prescribed period, the more special the circumstances will have to be. Where there is a considerable lapse of time, the practice of the Court is not to grant the extension unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed. These considerations have been repeated by this Court on numerous occasions.[18]
18An applicant who is dilatory or who has acted so as to indicate that they do not intend to appeal has no entitlement to an expectation that the discretion will be exercised in their favour. Even where the applicant demonstrates that there are substantial reasons for delay, if there has been a significant delay, the grant of an extension of time will ordinarily depend upon the applicant establishing that the decision is so attended by doubt as to render it likely that the appeal will succeed.[19]
[16][2013] VSCA 87.
[17]See R v O'Keefe (1979) VR 1, 4; R v Darby (Unreported, Supreme Court of Victoria, 2 May 1975).
[18]R v Davis (2003) 6 VR 538; DPP v Hayden [2006] VSCA 152; R v Croft [2008] VSCA 61.
[19]R v Davis (2003) 6 VR 538, 539 [6] (Winneke ACJ); R v Croft [2008] VSCA 61, [21] (Kellam JA).
In my opinion, the applicant failed entirely to place before the Court material demonstrating special and substantial reasons to extend time; the more significant that was when the delay was so great.
Further, in my opinion, it could not be said that the proposed appeal had such merit that it would probably succeed. The applicant could not have hoped to successfully argue, having regard to all the circumstances, which included a number of findings by the judge that were very adverse to her, that the sentence was manifestly excessive.[20] All that could be submitted was that the sentence was impermissibly out of kilter with the sentence passed on Dimitrakis. But I do not accept that this proposition was reasonably arguable, let alone that it would probably succeed. In written argument, counsel for the Crown referred to eleven points of distinction between sentencing considerations applicable to Dimitrakis and to the applicant. They were as follows:
[20]The Ground of Appeal refers to manifest excess, but it is clearly an attack on want of parity.
1.The Applicant was sentenced on a charge of attempted murder whereas Dimitrakis was sentenced on a charge of intentionally causing serious injury. The maximum penalty for the former is 25 years imprisonment, whereas for the latter it is 20 years imprisonment.
2.The mental state for the two offences is markedly different. In the case of the Applicant, the Crown was able to prove that she possessed an intention to kill the victim; but Dimitrakis was sentenced on the basis of an intention to cause serious injury to the victim.
3.The Applicant initially tried to shift all the blame for the attack onto Dimitrakis in an interview with police on 13 January 2010. The sentencing judge described this as an incident of ‘manipulative conduct’ engaged in by the Applicant with the police. This defence was ultimately maintained by the Applicant at trial, but rejected by the jury.
4.The Applicant was convicted at trial; whereas Dimitrakis entered an early plea of guilty which founded an entitlement to a significant discount in sentence.
5.Dimitrakis provided a statement to police regarding the matter and gave evidence for the Crown against the Applicant upon her trial. That founded an entitlement to a substantial discount in sentence.
6.The judge referred to (and accepted) the evidence of Dimitrakis that the Applicant had provided the details of the plan to kill her husband including the provision of the knife used to attack the victim.
7.The judge accepted that the plan to kill the victim was initially formulated by the Applicant. This elevated the moral culpability of the Applicant for purposes of sentencing.
8.The sentencing judge found that the Applicant’s conduct was not motivated by love alone, but by a selfish desire to rid herself of her marital partner. Dimitrakis was also married at the time, but there was never any suggestion that he would kill his wife.
9.The judge found that the reason for the plan to kill her husband was so that she could be with Dimitrakis without any diminution of her luxurious lifestyle and financial security. In short, the crime was one of passion laced with greed.
10.The judge found that the Applicant’s conduct represented a ‘gross betrayal of the trust that reposes between husband and wife’.
11.The judge who sentenced Dimitrakis found evidence of remorse; whereas the sentencing judge in the case of the Applicant observed that ‘very little has been said about… remorse’.[21]
[21]I have slightly changed counsel’s system of numbering, and made other small changes to the text of his submissions which do not in any way alter their import.
In my opinion, these were valid and important points of distinction. Notwithstanding that Dimitrakis was the immediate assailant, they rendered the proposed disparity attack near to hopeless.
In my opinion, both the unexplained delay and the want of substance of the proposed Ground necessitated the extension application being refused.
PRIEST JA:
For the reasons given by Ashley JA, with which I respectfully agree, I joined in the orders made on Monday, 18 November 2013.
LASRY AJA:
For the reasons which Ashley JA has given I joined in the orders made on 18 November 2013.
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