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Theodoropoulos v The Queen

Theodoropoulos v The Queen

Case [2015] VSCA 364 18 December 2015

Appeal

Jurisdiction

Admissibility of Evidence

Res Judicata

Unsafe and Satisfactory Verdict

Resentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0105

GEORGE THEODOROPOULOS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and McLEISH JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2015
DATE OF JUDGMENT:	18 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 364	1^st Revision: 1 Feb 2016, [128] and [129]
JUDGMENT APPEALED FROM:	DPP v Theodoropoulos (Unreported, County Court of Victoria, Judge Hampel, 17 April 2015)

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CRIMINAL LAW – Practice and procedure – Jury – Empanelment – Right to peremptory challenge – Juries Act 2000 ss 36, 39 – Peremptory challenge requires accused to have adequate time to visually inspect prospective juror – Review of historic practice of jury empanelment – Inadequate time to view juror’s face – Whether waiver of objection to procedure – Right to peremptory challenge infringed – Appeal allowed – Conviction quashed – Retrial ordered.

CRIMINAL LAW – Evidence – Record of interview – Investigators raise question of motive of complainant to lie – Whether answers were of probative value – Palmer v The Queen (1998) 193 CLR 1, distinguished – R v Arundel [1992] 2 VR 228; R v O’Neill (2003) 7 VR 408; R v MMJ (2006) 166 A Crim R 501, considered.

CRIMINAL LAW – Rape – Conviction – Appeal – Unsafe and satisfactory – Verdict reasonably open to jury.

CRIMINAL LAW – Rape – Resentencing on multiple counts.

PRACTICE AND PROCEDURE – Legal Practitioners – Duty to the court and client – Obligation to raise irregularities in procedure with Court.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Dickinson QC	Leanne Warren and Associates
For the Crown	Ms R Sharp	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA

McLEISH JA:

Overview

After a trial, the applicant was found guilty of five charges of rape. He now appeals against conviction.

Proposed grounds of appeal against conviction

The applicant seeks leave to appeal against conviction on five grounds:

1.The trial miscarried on account of an improper/unlawful empanelment process being employed in the selection of the jury in that the applicant was not allowed nor afforded a proper or adequate opportunity to make an assessment of any and all potential jurors and thus was not afforded the necessary and reasonable opportunity to exercise his right to make a peremptory challenge;

2.        The jury:
(a)       was not empanelled in accordance with the law; and
(b)       was not constituted according to law;

3. The verdict of the jury is a nullity;
4.The learned trial judge erred in acceding to the prosecutor’s submission to delete from the applicant’s record of interview questions and answers in which the applicant proffered to police a possible motive that the complainant might have to make a false complainant against him; and

5. The convictions are unsafe and unsatisfactory.

Circumstances of offending

The complainant, Laura,[1] was 19 years of age at the time of the alleged offending. The applicant was 43 years of age at that time. Laura and…

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 Theodoropoulos v The Queen

Details

AGLC: Theodoropoulos v The Queen [2015] VSCA 364
Case: [2015] VSCA 364
Decision Date: 18 December 2015

CaseChat Overview and Summary

Theodoropoulos v The Queen was a case heard by the High Court of Australia where the appellant, Theodoropoulos, appealed against his conviction for multiple counts of rape. The crux of the appeal was twofold: first, the appellant contested the validity of his conviction due to alleged irregularities in the jury empanelment process, and second, he argued that the evidence against him was insufficient to sustain the verdict. The High Court was required to consider whether the appellant's right to a peremptory challenge was violated by the inadequate time given to visually inspect prospective jurors and whether the evidence was sufficient to uphold the conviction.

The legal issues that the court had to resolve included whether the appellant's right to a peremptory challenge, as stipulated in sections 36 and 39 of the Juries Act 2000, was infringed due to the insufficient time given for inspecting the jurors' faces. Additionally, the court had to determine the probative value of the evidence, particularly the recorded interviews, in light of the appellant's contention that the complainant had a motive to lie. The court also needed to assess if the verdict was "unsafe and unsatisfactory" and whether the resentencing on multiple counts was appropriate.

The High Court found that the appellant's right to a peremptory challenge was indeed infringed as the procedure did not allow for adequate visual inspection of the jurors. The court held that the failure to provide sufficient time for this inspection was a breach of the statutory right. The court also concluded that the evidence, including the recorded interviews, was of sufficient probative value to support the jury's verdict. The appeal was allowed, and the conviction was quashed, leading to a retrial being ordered.

The final orders included quashing the appellant's conviction and ordering a retrial. The court emphasized the importance of adhering to the statutory requirements for jury empanelment to safeguard the accused's rights. Furthermore, the court reaffirmed the probative value of the evidence presented and the necessity for the verdict to be both safe and satisfactory.

Orders