Citation: Papadopoulos v R; Topcu v R [2007] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 12 September 2007
Judges: McClellan CJ at CL; Hulme J; Hoeben J
Background
Both appellants were convicted in the District Court following a jury trial arising from events on the night of 29 to 30 July 2004 at premises occupied by a third man, referred to throughout the proceedings as CD (later identified in appeal proceedings as Eken). The complainant is referred to as AB. The appellants were charged with aggravated sexual assault offences committed in company with CD, with the aggravating element being the malicious infliction of actual bodily harm.
One appellant, Topcu, had been living at the premises for several months after suffering serious injuries in an unrelated attack. He gave evidence that life there involved sustained drug use, and that Eken had access to various weapons. The other appellant, Papadopoulos, also came to be at the premises on the night in question. Both appellants raised duress as a defence at trial, arguing that their participation in sexual acts with the complainant was compelled by Eken's conduct.
The jury acquitted both appellants on the charges that included malicious infliction of actual bodily harm (the aggravated counts), but convicted both on the alternative counts of sexual assault in company. Papadopoulos was convicted on two counts involving different acts. At sentence, the District Court imposed significant terms of imprisonment on both men.
Legal Issues
- Whether the trial judge erred in refusing to direct a verdict of acquittal on the aggravated count against Topcu, given the Crown's case could not satisfy all elements of that offence
- Whether the trial miscarried because the jury was left to consider the aggravated element on a basis not run at trial
- Whether the trial judge gave adequate directions on duress, including whether a defendant's fear for the complainant's safety (not just his own) could ground the defence
- Whether the directions adequately addressed at what point in time the question of avoiding the duress should be assessed
- Whether the verdicts were unreasonable (raised by both appellants)
- Whether fresh evidence from Eken's sentencing proceedings affected the safety of Topcu's conviction
- Whether both sentences were manifestly excessive
Decision
The Court dismissed Papadopoulos's appeal against conviction. Although the Court of Criminal Appeal acknowledged concerns about the directions given on duress, the majority concluded that no miscarriage of justice warranted overturning the conviction. The convictions on the two alternative counts were upheld. However, the Court allowed both appellants' appeals against sentence, finding the original sentences were excessive in light of the circumstances, including that both men had become caught up in events they did not initiate.
Topcu's appeal against conviction was allowed on a narrower basis. The Court quashed the conviction on the aggravated count (sexual assault in company with malicious infliction of actual bodily harm) and substituted a conviction on the lesser alternative charge of sexual assault in company, without the aggravating element. This brought the conviction into line with what the evidence and the jury's own verdicts properly supported.
On sentencing, Hulme J (with Hoeben J agreeing) substantially reduced the terms imposed on both appellants. McClellan CJ at CL expressed a preference for a slightly higher non-parole period for Papadopoulos on the vaginal intercourse count, noting that although he had reacted to Eken's violent conduct, Papadopoulos retained a real choice at the critical moment. Hulme J's proposed sentence on that count was ultimately adopted by the majority.
The Court consulted Judicial Commission statistics in calibrating the sentences but noted those statistics did not disclose the specific factual circumstances of comparable cases, including whether particular acts occurred in each case.
Orders Made
Papadopoulos:
- Appeal against conviction dismissed
- Appeal against sentence allowed; sentences imposed by Puckeridge DCJ quashed
- For the offence involving fellatio: non-parole period of 1 year and 6 months, total term of 2 years, commencing 17 March 2006
- For the offence involving vaginal intercourse: non-parole period of 2 years commencing 17 December 2006, balance of term of 15 months
- Earliest parole eligibility recorded as 17 December 2008
Topcu:
- Appeal against conviction allowed
- Conviction on the aggravated sexual assault charge quashed
- Convicted by the Court of Criminal Appeal of sexual assault in company (without the aggravated element)
- Sentence imposed by Puckeridge DCJ quashed
- Sentenced to non-parole period of 2 years and 3 months, total term of 3 years and 6 months, commencing 24 January 2006
- Earliest parole eligibility recorded as 24 April 2008
Key Takeaways
- A conviction for aggravated sexual assault requiring malicious infliction of actual bodily harm cannot stand where the Crown's case could not properly establish that element; the Court of Criminal Appeal substituted the lesser alternative conviction for Topcu rather than ordering a retrial.
- Duress directions in sexual assault trials must adequately address both the defendant's fear for his own safety and any fear for the complainant's safety, and must identify the correct point in time at which the question of avoidance is assessed.
- In sentencing for offences committed under extreme pressure from a third party, the fact that the defendants did not initiate the events is a relevant mitigating consideration, though it does not eliminate individual culpability where the defendant retained a genuine choice.
- Judicial Commission sentencing statistics are a relevant reference point on appeal but carry limited weight where the statistics do not reveal the specific factual circumstances, including the nature of the acts involved, in each comparable case.
- The District Court's original sentences were found to be excessive on appeal, resulting in substantially reduced non-parole periods and total terms for both appellants.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61JA (aggravated sexual assault in company with infliction of actual bodily harm)
- Crimes Act 1900 (NSW), provisions relating to sexual assault in company (the alternative charges on which convictions were entered or substituted)
Cases:
- No specific cases are cited in the extracted text. The judgment refers to Eken sentencing proceedings and a report by Dr Tran, which were tendered as fresh evidence on Topcu's appeal.
Note: The full judgment contains additional case citations not reproduced in the extracted text provided.