Goussis v The Queen [2011] HCATrans 306 (28 October 2011)

Last Updated: 2 November 2011

[2011] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M38 of 2011

B e t w e e n -

EVANGELOS GOUSSIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 OCTOBER 2011, AT 2.01 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER: May it please the Court, I appear with my learned friend, MS R.B. SHANN, on behalf of the applicant. (instructed by Stephen Andrianakis & Associates)

MR T. GYORFFY: If it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

HAYNE J: Thank you.

MR GYORFFY: I apologise for the absence of Ms Quin. The case that was supposed to finish yesterday has gone into today unfortunately.

HAYNE J: I am not suggesting that counsel made an unduly optimistic estimate, are you, Mr Gyorffy? That would never happen. Yes, Mr Croucher.

MR CROUCHER: Your Honours, I was recently reading some transcript of a special leave application where counsel for a respondent in this Court submitted that special leave should be refused because the applicant’s case raised no point of principle worthy of a grant of special leave in this Court. The Court agreed with that submission but granted special leave anyway and at the outset it said, except in relation to sentence, which I want to focus on shortly, this case does not raise points of the type that would usually attract a grant of special leave. However, sometimes things go wrong at trial and on appeal and this is the only place left to correct such a thing.

We say that special leave should be granted in this case because the applicant has suffered a substantial miscarriage of justice in three particular respects. The first is in respect of the admission of the covert recording. We rely on what we have written about that and simply emphasise this point. We say that it is surprising in the extreme that given that the trial judge said she could not hear the word “Moran” and that she did not consider the evidence sufficiently safe, if you like, to amount to corroboration, but that finding or that view of the evidence should have meant, in our respectful submission, that the evidence ought not to have been admitted.

KIEFEL J: There was no objection taken?

MR CROUCHER: Yes, there was, and the point was taken again on appeal and the point failed. Other than what we have written, that is the point we wish to make in our ground 1.

HAYNE J: That would turn ultimately, would it not, or may turn ultimately on listening to the recording?

MR CROUCHER: I thought your Honour would say that.

HAYNE J: I know I am predictable, Mr Croucher.

MR CROUCHER: No, not at all. I suppose, yes, and of course this Court ordinarily would not be engaged in a process like that – indeed, the Court of Appeal below did so – but, in my submission, it is enough though that the judge herself had that view and the evidence ought not to have been admitted. Secondly, the second area in respect of which there is a miscarriage of justice, in our submission, is that even if we are wrong about the admissibility of the evidence, this evidence had a particular sting in it.

The prosecutor at trial in the absence of the jury conceded that the jury may well view the evidence, this piece of conversation, as tantamount to an admission of guilt. Indeed, in our submission, that is the only way it could have any relevance in this case. In those circumstances it necessarily required that there be a Burns style direction that there be proof beyond reasonable doubt of the utterance and of the adoption of the utterance as true. No such direction was given. Curiously, the Court of Appeal, in a footnote dealing with the admissibility question, referred to Burns’ Case for the proposition that, well, it is a matter for a jury what to make of it all, but did not go on and say, well, there was no direction here of the type required.

HAYNE J: But how did it go to the jury? What were the jury told about it in either addresses or the charge to the jury?

MR CROUCHER: The way it was put by the prosecutor was that the discussions between the applicant and XP showed that the applicant had a preoccupation with the murder of Lewis Moran and which in turn, of course, he asked rhetorically, well, what does that mean, because he was involved obviously and the words, of course “popping Lewie Moran” were meant to mean an adoption that that is exactly what he did. That is all we say about that ground.

The third area in respect of which we say there is a substantial miscarriage of justice is in sentence and this requires a little more explanation, your Honours. For the murder of Lewis Caine the applicant was sentenced to 20 years imprisonment with a non-parole period of 15 years. For the murder of Lewis Moran he was sentenced to life imprisonment and a new single non-parole period was fixed of 30 years which, by virtue of the point at which it was fixed, meant that in real terms his global non-parole period was increased to 34 years and nine months; so let us say, for round figures, 35 years. In other words, his actual custodial time before being eligible for parole was increased by 20 years or so as a result of his conviction on this murder in this trial.

What had happened, though, is that the first trial, the trial over the murder of Lewis Caine, the applicant’s co-accused was XP. He too pleaded not guilty but was not sentenced immediately following that trial. He, after that trial, then decided to plead guilty to the murder of Lewis Moran and became Queen’s evidence. When he came to be sentenced, he was, for the Lewis Caine murder, given 24 years gaol. Remember, the applicant 20 years gaol for the same offence. That difference, 20 versus 24, would have reflected role, antecedents and the like. XP, heavy career criminal with serious prior convictions.

It can reasonably be assumed if he was simply being dealt with for the Lewis Caine murder at that time, having had a sentence of 24 years imposed upon him, he might have received a non-parole period of something like 18, 19, 20 years, something of that order, but because he gets the sentence for both that murder and the one to which he pleaded guilty, the Lewis Moran murder, at the same time, he gets a sentence of life imprisonment for the Lewis Moran murder, which of course subsumes the 24 years, and has a single non-parole period fixed of 19 years.

So what we have in the end by way of comparison is the applicant having, by virtue of his conviction following trial on the second murder, an addition of approximately 20 years to his sentence, whereas, the co-accused, XP, who, yes, admittedly has turned Queen’s evidence, gets an increase of nothing, broadly speaking, give or take 12 months. That is a striking, as striking as you will ever get as a piece of parity reasoning and as a matter of totality.

HAYNE J: Even taking account of plea of guilty and co-operation in the form in which it occurred.

MR CROUCHER: Yes, indeed. No doubt, substantial discount warranted and given for that sort of thing, but the comparison is not between, say, something which is 50 per cent less – for example, if XP had instead of the 19 years received somewhere between 19 and 35, say, a midpoint between them, that would reflect a 50 per cent discount for the second murder in terms of the non-parole period, and you can give as much as a 50 per cent discount, or that order, for high level assistance and this will be regarded as such, no doubt about that, but here the difference is not between an increase of, say, 10 years in his case and an increase of 20 years for the applicant, but an increase of 20 years and zero, or thereabouts; extreme.

At no point does the Court of Appeal, in our reading of the judgment, deal with that comparison. Yet, it is precisely that type of comparison that this Court considered ought to be engaged in in Postiglione v The Queen where, in the judgment of Justices Dawson and Gaudron at pages 302 to 304 and Justice Kirby at 332 to 333 and 342 to 343, all accepted that the extent to which existing periods of custody are extended by the imposition of new sentences upon co-accused is a proper point of comparison for the purposes of assessing both parity and totality. In our respectful submission, that vast difference between virtually zero and 20 years, a more than doubling of the 15 year non-parole period that he was already serving in the applicant’s case, simply cannot be justified. It plainly gives rise to a justifiable sense of grievance in the applicant and it is manifestly wrong to have concluded otherwise, in our respectful submission.

HAYNE J: Now, Justice Buchanan looked at these issues, did he, at 486 to 487, paragraphs 62 to 64?

MR CROUCHER: Yes. What his Honour does there is compare things like – which of course he must – role, the fact that in contradistinction to the applicant XP had pleaded guilty and, very importantly of course, had assisted the authorities.

HAYNE J: What is missing? Is your complaint that something is missing or is your complaint that something is said that should not be said?

MR CROUCHER: No, our complaint is twofold. Our complaint is that it is manifestly wrong to have come to the view that the court did and, secondly, what is missing is any approach of the type that was considered by this Court in Postiglione, that it is the extent to which the custodial position comparatively of the two people is increased which is a point of comparison. It is a better case of Postiglione than Postiglione itself because one of the difficulties in Postiglione was that they were reaching quite different custodial situations serving different lengths of sentence.

The applicant, Postiglione, was serving a long sentence and he was coming towards the end of his sentence, only had a few years to go, and then, because of the very serious crime he had committed, was always going to receive a large amount of time extra because of the way totality works and the lack of an ability to make it concurrent, but, nevertheless, the court was still moved to take the view that the extent of the increase of his sentence, vis-à-vis I think it was Mr Savvas or whoever the co-accused was, did not properly reflect notions of parity. I cannot remember precisely the numbers now, but we are talking completely different orders of magnitude than here. This is the infinite order of magnitude on one view of things, zero versus 20, but allow a bit more leniency and say it is one or two versus 20, it just does not get close to any approximation of due proportion between the respective increases.

That is no criticism of the sentence imposed upon XP. Rather, parity is a break upon what you can do as a sentencing court on the co-accused who is having his sentence imposed, meaning the applicant, and, in our respectful submission, there seems to be nothing in the court’s reasons that appreciates the vast increase comparatively between nothing and 20-odd years.

HAYNE J: Is it a relevant consideration to note that both the applicant and XP, if my numbering is right, seem likely to, if they were to serve the full term of their non-parole period, would each come out at mid-70s of age? I think that is the way it works, is it not?

MR CROUCHER: I frankly have not done those maths, but that is probably right.

HAYNE J: I was looking at particularly paragraph 62 and the difference in age is 16 years between them.

MR CROUCHER: I accept, with respect, your Honour, that is a relevant consideration, but equally - - -

HAYNE J: That is, each of them has been sentenced to a non-parole period that would even pass the biblical measure.

MR CROUCHER: That is right. But in the applicant’s case it means that he will have served half his life hitherto, from 40-odd to 75-odd, whereas the other man will be taking the same figure in reverse. He is serving something like half that, a quarter of his life, so half of a half, if you like.

HAYNE J: On this account.

MR CROUCHER: Yes, on this account. Well, that is right, and he is a man who has been involved in very serious trouble. But it gets worse, your Honours, because we know that subsequently XP pleaded guilty to yet another murder, no further increase to his non-parole period, so three murders and still serving 19 years. Worse again, and this is something that is not even referred to in the court’s reasons, how it is, I do not know, because my junior who was in the Court of Appeal tells me it was raised, that Carl Williams’ sentence is not even referred to and Carl Williams was the person who was found guilty of ordering the killing of Mr Moran.

He receives 25 years imprisonment for that and also pleads guilty to several other murders and has also lost a murder trial and ends up with, I

think, four murders, a conspiracy to murder and a very serious drug offence, and his non-parole period, it is hard to work it out precisely because of the way it all fits together, but something approaching the same order in total of the applicant’s; it might be 37 years on one calculation as opposed to 35. My learned friend says it is academic now, but that is not so, your Honour. It is still a point of comparison, yet nothing is said about it in this judgment. Of course, it is perhaps not the striking comparison that applies with respect to Mr XP but, nevertheless - - -

HAYNE J: A possible point of view, Mr Croucher, is that the numbers are of course important, but also the age of the offender and the impact of the particular number and the reasonably expected life thereafter is something to take to account.

MR CROUCHER: I accept that, your Honour, but I have acted for plenty of people, your Honours, who end up convicted of this sort of thing in their 70s and they do not get zero on the bottom for that; they still get 12, 13 years, recognising, in part, that they are very much over the average age.

KIEFEL J: In the Court of Appeal it was also referred to that reference was made to XP having been in poor health as well as older.

MR CROUCHER: Yes. I accept all those things, your Honour, by way of comparison, but nothing explains the difference between going from 15 years to 35 and from 19 years to 19. On no account is that justified, in our respectful submission. Those are our submissions unless the Court has any further questions.

HAYNE J: Thank you, Mr Croucher. We need not trouble you, I think, Mr Gyorffy.

We are not persuaded that it is arguable that there has been any substantial miscarriage of justice in this matter. Special leave to appeal is refused.

Adjourn the Court to 10.15 am on Tuesday, 29 November 2011 in Canberra.

AT 2.20 PM THE MATTER WAS CONCLUDED