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17
Court of Criminal Appeal 29 November 2001

R v Spathis; R v Patsalis

[2001] NSWCCA 476

Homicide
CRIMINAL LAW MURDER APPEAL CONVICTION CONDUCT OF LEGAL PRACTITIONERS INCOMPETENT REPRESENTATION

Citation: R v Spathis; R v Patsalis [2001] NSWCCA 476
Court: Court of Criminal Appeal, New South Wales
Date: 29 November 2001
Judge(s): Heydon JA; Carruthers AJ; Smart AJ

Background

Two co-accused, referred to here as Patsalis and Spathis, were convicted of the murder of a victim stabbed in Sydney in April 1996. The Crown presented its case on alternative bases, including felony murder (killing during the commission of a serious offence) and what the Crown described as mens rea murder (killing with intent to kill or cause grievous bodily harm, or with reckless indifference to human life). The Crown had no direct evidence of what occurred inside the cabin of a truck when the fatal stabbing took place.

Both accused were convicted after a jury trial before Kirby J in the Supreme Court. Patsalis was sentenced to 21 years and 6 months penal servitude, and Spathis to 19 years. Both appealed against their convictions. Only Patsalis sought leave to appeal against sentence.

Patsalis represented himself on appeal, while Spathis was represented by senior and junior counsel. Patsalis raised numerous grounds, including allegations that his trial lawyers had provided incompetent representation. Spathis raised grounds focused primarily on jury directions and evidentiary rulings.

  • Whether Patsalis' trial lawyers provided incompetent representation causing a miscarriage of justice
  • Whether applications to adduce further evidence on appeal should be granted, and whether that evidence met the "fresh evidence" standard
  • Whether the trial judge should have required felony murder and mens rea murder to be charged as separate counts in the indictment
  • Whether the trial judge's directions to the jury were adequate, including directions on: the elements of felony murder; the need for jury unanimity on the basis of liability; whether manslaughter should have been left open as an alternative verdict; the use of relationship evidence; lies and consciousness of guilt; and evidence from a deceased witness
  • Whether the trial judge erred in permitting the Crown to cross-examine a witness as unfavourable under s 38(1)(c) of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in failing to exclude evidence of lies as admissions under s 424A of the Crimes Act 1900 (NSW)
  • Whether a separate trial ought to have been ordered for the co-accused
  • Whether Patsalis' sentence was excessive or failed to reflect parity with Spathis, or failed to give proper weight to assistance rendered to police

Decision

Patsalis: Incompetent representation
The Court dismissed Patsalis' complaints about his lawyers' performance. It found no direct evidence supporting the allegations, and the inferences Patsalis sought to draw from the trial transcript did not demonstrate that his counsel had provided less than professional and capable service. The fact that neither of his two counsel had a junior did not give rise to a miscarriage of justice, given that no counsel at the trial had a junior and that barristers without juniors regularly conduct serious criminal trials.

Patsalis: Further evidence applications
Both applications to adduce further evidence on appeal were refused. The first, a statement from a travel consultant relating to a conversation with a co-accused's wife, was not "fresh evidence" because it was either known or ought to have been known to Patsalis or his lawyers at trial. Even if it qualified as fresh evidence, it went only to credit and was unlikely to lead to a new trial. The second application also failed to meet the relevant threshold.

Spathis: Felony murder and jury directions
The Court rejected Spathis' argument that felony murder should have been pleaded as a separate count in the indictment. The Crown was entitled to advance alternative bases of murder liability under a single count, given the absence of direct evidence of what occurred at the time of the stabbing. The Court, however, identified some imprecisions in the trial judge's directions on felony murder, including the unnecessary insertion of the words "immediately before" in one sub-paragraph, and an overstatement of what the Crown needed to prove regarding a co-accused's awareness of the risk of stabbing. Those errors were addressed in the Court's analysis but did not, in the circumstances, result in the conviction being set aside.

Common grounds
The Court dismissed all remaining grounds raised by both appellants, including challenges to the trial judge's handling of unfavourable witness cross-examination, the admissibility of lies evidence, the adequacy of directions on relationship evidence and consciousness of guilt, the refusal to order separate trials, and the adequacy of directions regarding evidence from a witness who had since died. Leave to appeal against sentence was also refused for both appellants.

Orders Made

  • Patsalis' appeal against conviction is dismissed.
  • Patsalis' application for leave to appeal against sentence is dismissed.
  • Spathis' appeal against conviction is dismissed.
  • Spathis' application for leave to appeal against sentence is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a single murder count may encompass alternative bases of liability, including both mens rea murder and felony murder, where the Crown lacks direct evidence of what occurred at the time of the killing.
  • Allegations of incompetent representation at trial require direct evidence of the deficiency; inferences drawn from the trial record alone will not readily establish that counsel provided less than professional and capable service.
  • Fresh evidence applications on appeal will fail where the evidence was known, or ought to have been known, to the applicant or their lawyers at trial, and will be further weighed against whether the evidence could realistically lead to a new trial.
  • Under the felony murder provisions in s 18 of the Crimes Act 1900, it is sufficient for the Crown to establish that a co-accused's stabbing during a robbery was a contingency the other accused had in mind; the Crown need not prove awareness of a substantial risk of serious injury or death, nor that the stabbing was intentional or in furtherance of a common unlawful purpose.
  • Sentencing parity between co-offenders is a legitimate ground of appeal, but no error was established here, and the differential between the two sentences was upheld as reflecting the different circumstances of each offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 18 (definition of murder and manslaughter) and s 424A
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), including s 38(1)(c)
- Evidence Act 1995 (Cth)

Key Cases:
- Adam v The Queen [2001] HCA 57
- Barlow v The Queen (1997) 188 CLR 1
- R v Birks (1990) 19 NSWLR 677
- Bullard v The Queen [1975] AC 635
- R v Crabbe (1985) 156 CLR 464
- Edwards v The Queen (1993) 178 CLR 193
- Gallagher v R (1986) 160 CLR 392
- Gipp v The Queen (1998) 194 CLR 106
- Harriman v The Queen (1989) 167 CLR 590
- Mickelberg v R (1989) 167 CLR 259
- Osland v The Queen (1998) 197 CLR 333
- Palmer v R (1998) 193 CLR 1
- Pemble v The Queen (1971) 124 CLR 107
- R v Johns [1978] 1 NSWLR 282
- R v Serratore (1999) 48 NSWLR 101
- R v Sharah (1992) 30 NSWLR 292
- R v Zaidi (1991) 57 A Crim R 189
- Wilson v The Queen (1992) 174 CLR 313