Legal Research
Cases
Tsiakas v R

Tsiakas v R

Case [2015] NSWCCA 187 17 July 2015

Admissibility of Evidence

Criminal Law

Type to search within this case.

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	John Wayne TSIAKAS v R
Medium Neutral Citation:	[2015] NSWCCA 187
Hearing Date(s):	13 May 2015
Date of Orders:	17 July 2015
Decision Date:	17 July 2015
Before:	Leeming JA at [1] Johnson J at [2] Beech-Jones J at [3]
Decision:	(1) The application for leave to appeal against the sentence imposed on 24 July 2013 be allowed; and (2) The appeal be dismissed.
Catchwords:	SENTENCE APPEAL – theft of motor vehicles – break and enter dwelling – drive manner dangerous while police in pursuit – substantial custodial sentence imposed – alleged incompetence of legal representative at sentence hearing – failure to obtain and tender psychiatric report – alleged failure to advise offender about assisting police in locating co-offender – failure to obtain evidence from family member – necessity to demonstrate miscarriage of justice – must show material of real substance not tendered – not shown – leave granted but appeal dismissed.
Legislation Cited:	- Crimes Act 1900 – s 51B, s 112(2), s 105A(1), s 154A(1) - Crimes (Sentencing Procedure) Act 1999 - Div 1A Part 4, s 32(1), s 53A - Criminal Appeal Act 1912 – s 6(1) - Criminal Procedure Act 1986 – s 166 - Inclosed Lands Protection Act 1901 – s 4 - Road Transport (Driver Licensing) Act 1998 – s 25A - Road Transport (Safety and Traffic Management) Act 1999 – s 9(1)
Cases Cited:	- Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 - Beale v R [2015] NSWCCA 120 - Bugmy v The Queen [2013] HCA 37; 249 CLR 571 - Garland v R [2009] NSWCCA 217 - Jinnette v R [2012] NSWCCA 217 - Kennedy v The Queen [2010] NSWCCA 260 - Minister for Immigration and Multicultural and Indigenous Affairs. Re; Ex parte Lam [2003] HCA 6; 214 CLR 1 - Munro v Regina [2006] NSWCCA 350 - Nudd v R [2006] HCA 9, 80 ALJR 614 - Puan v R [2009] NSWCCA 194 - Pym v R [2014] NSWCCA 182 - R v Abbott (1985) 17 A Crim R 355 - R v Fernando (1992) 76 A Crim R 58 - TKWJ v R [2002] HCA 46; 212 CLR 124
Category:	Principal judgment
Parties:	John Wayne Tsiakas – Applicant Regina – Respondent
Representation:	Counsel: E. Ozen – Applicant Ms N.L. Williams – Respondent Solicitors: Legal Aid – Applicant Solicitor for Public Prosecutions – Respondent
File Number(s):	2013/059156
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court, Port Macquarie
Date of Decision:	25 July 2013
Before:	Bennett SC DCJ

JUDGMENT

LEEMING JA: I agree with Beech-Jones J.
JOHNSON J: I agree with Beech-Jones J.
BEECH-JONES J: On 25 July 2014 the District Court imposed on the applicant for leave to appeal, John Tsiakas, an aggregate sentence of imprisonment of five years and six months with a non-parole period of four years. His sentence commenced on 26 February 2013…

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 Tsiakas v R

Details

AGLC: Tsiakas v R [2015] NSWCCA 187
Case: [2015] NSWCCA 187
Decision Date: 17 July 2015

CaseChat Overview and Summary

The appellant, Tsiakas, appealed against the sentence imposed for multiple thefts of motor vehicles, committed by breaking and entering a dwelling, and driving in a dangerous manner while being pursued by police. The appeal was heard in the High Court of Australia. Tsiakas argued that his legal representative had been incompetent during the sentencing hearing, claiming that the lawyer failed to obtain and present a psychiatric report, did not advise him about the possibility of assisting the police in locating a co-offender, and failed to obtain evidence from a family member.

The court considered whether the appellant had demonstrated a miscarriage of justice due to the alleged incompetence of his legal representative. The legal issues involved whether the omissions of the legal representative were significant enough to warrant a new sentencing hearing. The court noted that to establish a miscarriage of justice, the appellant had to show that material of real substance was not tendered to the sentencing court and that this omission was likely to have affected the sentence. The court found that Tsiakas had not met this threshold.

The court concluded that, although leave to appeal had been granted, the appeal was dismissed. The court held that Tsiakas had not demonstrated that the omissions of his legal representative amounted to a miscarriage of justice. The evidence presented did not show that the material omitted was of real substance or that it was likely to have affected the sentence imposed. Therefore, the sentence remained valid, and the appeal was dismissed without any alteration to the original sentence.

Orders