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.
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
This matter raises issues concerning the admissibility of evidence…
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.
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Details
AGLC
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.