Tsalkos v The King

Case [2024] VSCA 324


235SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2023 0051
THEODOROS TSALKOS Applicant
v
THE KING Respondent

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JUDGES: EMERTON P, PRIEST, McLEISH, NIALL and BOYCE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 7 May 2024, 22 August 2024
DATE OF JUDGMENT: 19 December 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 324
JUDGMENT APPEALED FROM: DPP v Tsalkos (County Court of Victoria, Judge Carlin, 7 March 2023)

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CRIMINAL LAW – Appeal – Conviction – Kidnapping – Rape with aggravating circumstances – Gross indecency with a person under 16 – Whether evidence of complainant’s distress admissible as independent evidence – Complainant’s distress not capable of being used as independent evidence – Judge’s invitation to jury to use complainant’s distress as independent evidence caused substantial miscarriage of justice – Leave to appeal granted – Appeal allowed.

CRIMINAL LAW – Appeal – Conviction – Whether judge should have warned jury that distress evidence carries little weight – Question to be determined in light of Jury Directions Act 2015 – Does not arise as evidence should not have been admitted.

CRIMINAL LAW – Appeal – Conviction – Whether prosecutor impermissibly sought to rehabilitate complainant’s credit – Error in prosecutor’s examination but no miscarriage of justice.

CRIMINAL LAW – Appeal – Conviction – Whether defence failed to cross-examine on circumstances of complainant’s lie – No miscarriage of justice given forensic decision not to cross-examine.

CRIMINAL LAW – Appeal – Conviction – Whether prosecutor’s submissions inaccurate as to circumstances of complainant’s lie – No miscarriage of justice due to prosecutor’s withdrawal and judge’s direction to jury.

Evidence Act 2008, ss 55, 56, 66, 136, 137, 164; Jury Directions Act 2015, ss 11, 12, 14, 15, 16, 54D, 54K.

Charles (a pseudonym) v The Queen [2022] VSCA 166; Churchill (a pseudonym) v The King [2024] VSCA 151; Flora v The Queen (2013) 233 A Crim R 320; Papakosmas (1999) 196 CLR 297; Paull v The Queen [2021] VSCA 339; R vBauer (2018) 266 CLR 56; R v Brdarovski (2006) 166 A Crim R 366; R v Byczko (No 2) (1977) 17 SASR 460; R v Collings [1976] 2 NZLR 104; R v Dhir (2019) 133 SASR 452; R v Flannery [1969] VR 586; R v Gulliford (2004) 148 A Crim R 558; R v Moana [1979] 1 NZLR 181; R v Redpath (1962) 46 Cr App Rep 319; R v Rogers [2008] VSCA 125; R v Sailor [1994] 2 Qd R 342; R v Schlaefer (1984) 37 SASR 207; R v Williams [2010] 1 Qd R 276; Seccull v The King (2022) 69 VR 454, considered.

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Counsel
Applicant: Mr T Kassimatis KC with Ms GF Connelly SC and Ms A Balkin
Respondent: Mr BF Kissane KC with Ms S Clancy
Solicitors
Applicant: Papa Hughes Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
MCLEISH JA
BOYCE JA:

Introduction

  1. This matter raises issues concerning the admissibility of evidence…

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Tsalkos v The King [2024] VSCA 324
Case
[2024] VSCA 324
Decision Date

CaseChat Overview and Summary

The appellant, Tsalkos, was convicted of kidnapping, rape with aggravating circumstances, and gross indecency with a person under 16. He appealed against his conviction, contending that there were several errors in the trial which cumulatively resulted in a miscarriage of justice. The appeal was heard by the Supreme Court of Victoria, which granted leave to appeal and subsequently allowed the appeal. The critical issue before the court was whether the trial judge’s direction to the jury to consider the complainant’s distress as independent evidence of the truth of her allegations constituted a substantial miscarriage of justice.

The court examined the admissibility of the complainant’s distress under the Evidence Act 2008, concluding that such evidence should not have been admitted as independent evidence of the truth of her allegations. The judge’s invitation to the jury to consider the complainant’s distress as such was deemed to be a significant error. The court found that this error, coupled with other issues, caused a substantial miscarriage of justice, leading to the allowance of the appeal. The court also considered other points raised by the appellant, including whether the judge should have warned the jury about the limited weight of distress evidence, whether the prosecutor improperly sought to rehabilitate the complainant’s credit, and whether the defence failed to cross-examine adequately. However, the court concluded that these issues did not independently or cumulatively result in a miscarriage of justice.

The Supreme Court of Victoria allowed the appeal and quashed the appellant’s convictions. The court ordered a retrial on the charges of kidnapping, rape with aggravating circumstances, and gross indecency with a person under 16, while the charge of indecent assault was to be dismissed. The court directed that the case be remitted to the County Court for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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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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