LIkiardopoulos v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ.,Gummow,Hayne,Crennan,Kiefel,Bell JJ.,Heydon J.
• Judgment Date: 14 September 2012
• Neutral Citation: 2012-0914 HCA A,[2012] HCA 37
• Docket Number: M24/2012
• Date: 14 September 2012

[2012] HCA 37

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

M24/2012

Dimitrios Likiardopoulos

Appellant

and

The Queen

Respondent

Representation:

M J Croucher SC with L C Carter on behalf of the appellant (instructed by Lewenberg & Lewenberg)

G J C Silbert SC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Crimes Act 1958 (Vic), s 323.

Likiardopoulos v The Queen

Criminal law — Murder — Accessorial liability — Appellant convicted of murder — Crown accepted guilty pleas from five other participants to lesser offences — Trial judge left to jury Crown case based on accessorial liability — Whether appellant could be convicted as accessory to murder when Crown had accepted pleas from all other participants to lesser charges — Whether trial judge should have left accessorial case to jury — Whether Crown could lead evidence that other participants murdered the deceased — Whether inconsistency between convictions of other participants and accused — Whether exercise of prosecutorial discretion an abuse of process.

Words and phrases — ‘abuse of process’, ‘accessory’, ‘aiding and abetting’, ‘counselling or procuring’, ‘principal’, ‘prosecutorial discretion’.

ORDER

Appeal dismissed.

1 French CJ. I agree with the order proposed in the joint judgment and, subject to one reservation, with the reasons which their Honours give for that order. That reservation relates to an observation in the joint judgment concerning the reviewability of prosecutorial discretions.

2 The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations. One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process 1. A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings 2. A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions. Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits. Moreover, as their Honours point out, trial judges have available to them sanctions to enforce well-established standards of prosecutorial fairness and to prevent abuses of process.

3 The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow JJ in Maxwell, support the proposition that in a practical sense prosecutorial decisions are for the most part insusceptible of judicial review. But as Gaudron and Gummow JJ also pointed out, the approach of earlier authorities which treated such decisions as unreviewable because they were seen as part of the prerogative of the Crown ‘may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth.’ 3 Further as their Honours observed ‘it may pay insufficient regard to the fact that some discretions are conferred by statute’ 4.

4 The statutory character of prosecutorial decision-making in Australia today does not lessen the significance of the impediments to judicial review of such decisions, which are created by the constitutional and practical

considerations referred to above. However the existence of the jurisdiction conferred upon this Court by s 75(v) of the Constitution in relation to jurisdictional error by Commonwealth officers and the constitutionally-protected supervisory role of the Supreme Courts of the States 5 raise the question whether there is any statutory power or discretion of which it can be said that, as a matter of principle, it is insusceptible of judicial review. That question was not argued in this case and does not need to be answered in order to decide this case. It involves a question arising under the Constitution. I would not wish my agreement with the reasons given in the joint judgment to be taken as acceptance of a proposition that the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice.

5 Subject to the above reservation, I agree with the reasons of their Honours and the order they propose.

6 Gummow, Hayne, Crennan, Kiefel and Bell JJ. In early March 2007, a number of people were involved in the sustained, brutal beating of a young, intellectually handicapped man named Christopher O'Brien. Mr O'Brien died of the injuries suffered in the course of the beating. Seven people, including the appellant, were charged with his murder. The charge was withdrawn against one person and the prosecution accepted pleas of guilty to lesser offences from five of the others. The appellant was the only person to be committed to the Supreme Court of Victoria on the charge of murder.

7 On 13 February 2009, the appellant was arraigned in the Supreme Court (Curtain J) on a presentment charging him as a principal with the murder of the deceased. Evidence was given at the trial that the appellant had assaulted the deceased and encouraged others to assault him. It was the Crown case that the appellant was a party to a joint criminal enterprise to inflict really serious injury on the deceased and that, pursuant to the enterprise, one or more of the parties to it had done the act or acts causing death (‘the principal case’). An alternative case, that the appellant was guilty of murder because he had directed and encouraged the principal offenders to murder the deceased, was also left for the jury's consideration (‘the accessorial case’). The jury returned a verdict of guilty of murder.

8 The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Victoria (Buchanan, Ashley and Tate JJA). He contended that the trial judge erred in her directions concerning joint criminal enterprise and in leaving the principal case when it was not established that he had been present when the act or acts causing death were carried out. He also contended that the trial judge erred in her directions concerning the accessorial case and in leaving that case in circumstances in which the Crown had accepted pleas of guilty to lesser offences from those whom it alleged had been the principal offenders 6. Each of these grounds was rejected and the appeal was dismissed.

9 On 9 March 2012, the appellant was granted special leave to appeal from the order of the Court of Appeal on the sole ground that it was an error to leave the accessorial case. For the reasons to be given, there was no obstacle in law to the appellant's conviction for murder on the accessorial case. Nor was it an abuse of the process of the court for the Crown to prosecute the appellant as an accessory to murder when it had accepted pleas of guilty to lesser offences from

those whom it alleged had been the principal offenders. It follows that the appeal must be dismissed.

10 Some account should be given of the evidence at the trial. What follows is a summary of that evidence, largely taken from the judgment of the Court of Appeal.

11 The appellant was aged 47 years at the date of the killing. His 19 year old son, John, was living with him in a house in Noble Park, Melbourne. A man named Hakan Aydin was living in a bungalow at the rear of the premises. Aydin was aged 26 years. The appellant's younger son, Constantine, aged 17 years, was present at the Noble Park home at least during some of the material events. So was his girlfriend, Antoinette. Drugs were readily available at the appellant's home and it was common for people to visit the home to purchase drugs. Among the regular visitors were two men, Shalendra Singh and Darren Summers. Summers was living in a house nearby.

12 The deceased was 22 years old. He had an intellectual age of around 14 years. He had been living in a special care residence in Noble Park. In October 2006, he moved into Summers' house. Several months after moving into the house, Summers accused the deceased of taking a bracelet belonging to his girlfriend. After this confrontation, the bracelet reappeared. Summers told the Likiardopoulos family about the incident. At around this time, one of the appellant's associates complained that his mobile phone had been lost or stolen at the appellant's home. Suspicion initially fell on Singh. Singh was detained at the appellant's home and assaulted by members of the household. He was ultimately successful in persuading them of his innocence. As a recompense for the assault, and to secure his silence, Singh was invited to move into the household. He accepted this offer.

13 Suspicion concerning the missing mobile phone next fell on the deceased, who was summoned to the appellant's home under some pretext. Once inside the home, the deceased was repeatedly assaulted over a period of about two days. The assaults were carried out by persons including the appellant, John Likiardopoulos, Aydin and Singh. They included punches to the head and face, kicks to the body, blows inflicted with ashtrays, sticks and a hammer, and forced drinking of detergent. The appellant's participation in the assaults included that he administered two ‘king hits’ to the deceased which dislodged two of his teeth and that he joined others in punching and kicking him. Towards the end of his ordeal, the deceased lost control of his bowels. The appellant directed others to take...