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Tsaccounis v R

Tsaccounis v R

Case [2016] NSWCCA 163 15 August 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tsaccounis v R [2016] NSWCCA 163
Hearing dates: 20 July 2016
Decision date: 15 August 2016
Before: Hoeben CJ at CL at [1]
Rothman J at [147]
R A Hulme J at [149]
Decision:
(1) In relation to the conviction appeal, grant leave to appeal but dismiss the appeal.
(2) In relation to the application for leave to appeal against sentence, leave should be refused.

Catchwords: CRIMINAL LAW – CONVICTION APPEAL – thirteen counts of acts of violence and sexual assault – applicant convicted of nine counts but acquitted of four counts – whether verdicts of guilty supported by evidence – whether direction as to recklessness gave rise to a miscarriage of justice – whether inconsistent verdicts – ample evidence to support convictions – rational and logical explanation for not guilty verdicts – direction as to recklessness wrong but irrelevant – appeal against conviction dismissed – SENTENCE APPEAL – whether error by sentencing judge in refusing to make a finding of special circumstances – no error disclosed – refusal to find special circumstances open – leave to appeal against sentence refused.
Legislation Cited: Crimes Act 1900 (NSW – ss 35(2), 37, 59(1), 61, 61I, 344A
Crimes (Sentencing Procedure Act) 1999 (NSW) – s 44(2)
Cases Cited: Jones v The Queen [1997] HCA 12; 191 CLR 439
M v The Queen [1994] HCA 63; 181 CLR 487
Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82
MFA v The Queen [2002] HCA 53; 213 CLR 606
R v Preval (1984) 3 NSWLR 647
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
TK v R [2009] NSWCCA 151; 74 NSWLR 299
Category: Principal judgment
Parties: Jonathan Douglas Tsaccounis – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr A Radojev – Applicant
Ms V Lydiard – Respondent Crown
Solicitors:
Grays Legal – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2011/403418
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 May 2014

Before:

Whitford SC DCJ

File Number(s):

2011/403418

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 29 January 2014 the applicant was arraigned on an indictment which charged 13 counts of various acts of violence and sexual assault against his former domestic partner (the complainant). The applicant pleaded not guilty to all counts and on 14 February 2014 the jury found him guilty of 9 of those counts, being counts 3, 4, 5, 7, 8, 9, 10, 12 and 13. He was acquitted of counts 1, 2, 6 and 11.

The indictment was in the following terms:

Count 1 – Between 31 July 2008 and 1 September 2008 at Sydney in the State of NSW did attempt to have sexual intercourse with [the complainant] without the consent of [the complainant] and knowing she was not consenting, contrary to s 61I…

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 Tsaccounis v R

Details

AGLC: Tsaccounis v The Queen [2016] NSWCCA 163
Case: [2016] NSWCCA 163
Decision Date: 15 August 2016

CaseChat Overview and Summary

The applicant, Tsaccounis, appealed both his conviction and the sentence imposed on him by the court. He was convicted of nine counts of acts of violence and sexual assault but acquitted of four counts. The appeal against the conviction argued that the verdicts of guilty were not supported by the evidence, that the direction given to the jury concerning recklessness led to a miscarriage of justice, and that the verdicts were inconsistent. The appeal against the sentence claimed that the sentencing judge erred in not finding special circumstances.

The court considered the evidence presented at trial and concluded that there was ample evidence to support the convictions. The court also found that there was a rational and logical explanation for the not guilty verdicts. The direction given to the jury regarding recklessness was deemed incorrect, but this error was irrelevant to the outcome of the appeal against conviction. Consequently, the appeal against conviction was dismissed. Regarding the sentence appeal, the court found that the refusal to find special circumstances was within the sentencing judge's discretion, and thus, no error was disclosed. As a result, the leave to appeal against the sentence was also refused.

The final orders of the court were to dismiss the appeal against the conviction and to refuse leave to appeal against the sentence. This decision upheld the convictions on nine counts and the sentence imposed by the original trial court, reflecting the court's confidence in the correctness of the trial proceedings and the appropriateness of the sentence.

Orders