R v Taousanis [2001] NSWSC 57

New South Wales Supreme Court

CITATION : R v Taousanis [2001] NSWSC 57 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70033/98 HEARING DATE(S) : 30/1/2001 - 1/2/2001; 5/2/2001 - 9/2/2001; 12/2/2001- 14/2/2001 JUDGMENT DATE : 14 February 2001

PARTIES : Regina James Taousanis (defendant) JUDGMENT OF : Hidden J at 1

COUNSEL : P Power (Crown) J Stratton with D Yehia (defendant) SOLICITORS : DPP Alexanders (defendant) CATCHWORDS : CRIMINAL LAW - trial by judge alone - murder - evidence of principal Crown witnesses unreliable - verdict of not guilty at close of Crown case LEGISLATION CITED : Evidence Act 1995 Criminal Procedure Act 1986 The Queen v Prasad (1979) 2 ACrim R 45 CASES CITED : Pollitt v The Queen (1991-1992) 174 CLR 558 R v Schubert [2000] NSWSC 1127 DECISION : Accused acquitted

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Wednesday 14 February 2001

No 70033/98 Regina v James Taousanis Reasons for Verdict

1 HIS HONOUR: On 17 April 1991 Peter Mitris, an architect who lived with his wife in the Sydney suburb of Stanmore, disappeared. Despite extensive inquiries over the years which have since passed, he has not been located. There is reliable evidence that on the morning of 17 April 1991 he was at Kings Cross, attending to his business affairs. It is the Crown case that in the late afternoon of that day he met his cousin, Peter Konomos, the accused, James Taousanis and a man named Steven Kouroumalos. It is alleged that he was driven to a house at Petersham, where he was subjected to a severe beating by the accused and Mr Konomos, from which he died then or at some time thereafter. It is further alleged that his body was deposited into the ocean near Sydney. 2 Accordingly, the accused has been tried upon an indictment charging that on or about 17 April 1991 at Petersham, New South Wales he murdered Peter Mitris. The trial has proceeded before me without a jury, in accordance with s16 of the Criminal Procedure Act 1986. Mr Konomos left this country some years ago and, as I understand it, his present whereabouts are unknown. 3 There is evidence to suggest that in the early months of 1991 Mr Mitris was under considerable personal and financial pressure, such that he might have been motivated to sever his connections with his family and associates and to find a new identity elsewhere. There is also some evidence, albeit far from satisfactory, that a man other than the accused and Mr Konomos might have wished to do him harm. However, these are not matters which I could or should determine. The issues in this trial are simple. The accused is entitled to be acquitted unless the Crown establishes beyond reasonable doubt that on the day in question he participated in an assault upon Mr Mitris, intending to kill him or, at least, to inflict upon him really serious bodily injury, and that Mr Mitris died as a result of that assault. The trial has focussed upon the question whether, if Mr Mitris is deceased, the accused had a hand in his death. 4 Given the conclusion I have reached about the matter, it is neither necessary nor desirable that these reasons be lengthy or detailed. This is in no way to fail to recognise the seriousness of the case or to acknowledge the tragic loss suffered by the loved ones of Mr Mitris. 5 There is evidence that the accused had a criminal association with Mr Mitris, Mr Konomos, Mr Kouroumalos and another man, Nicholas Constantin. It is common ground that they were involved together in armed robberies. There is also evidence, which is challenged, that he was engaged with those men in drug trafficking. This, again, is a matter which I find it unnecessary to resolve. 6 I am satisfied on the evidence that, in the weeks leading up to his disappearance, Mr Mitris was expecting to receive through the mail a package containing a considerable quantity of cocaine. The cocaine was to be impregnated in paper, the package being prepared in such a way as to make it appear that it contained magazines. Mr Mitris had not received it. In fact, unknown to him, his wife had received the package and opened it, believing it to be addressed to her. Having no idea of the significance of its contents, she threw it out. 7 Mr Mitris feared reprisals by his associates in that criminal enterprise, to whom the package was to be delivered. It is the Crown case that those associates were the accused and Mr Konomos, and that they had previously used this method of transmission of drugs. This is said to be the motive for the beating. In addition, it is said that the accused and Mr Konomos bore Mr Mitris ill-will because, as a result of unreliable information he had supplied, an armed robbery of what was believed to be comic books worth a great deal of money proved to be fruitless. 8 The only direct evidence of the accused's involvement in the death of Mr Mitris is that of Mr Kouroumalos, who claims to have witnessed the beating, and Mr Constantin and another man whose name has been suppressed, who claim that the accused admitted it in conversations with them. I shall refer to that last man as Mr "X". As will be seen, the evidence of all three witnesses is of a kind which could be unreliable and it requires cautious assessment: see s165 of the Evidence Act. 9 The testimony of Mr Kouroumalos is the centrepiece of the Crown case. According to him, in the late afternoon of 17 April 1991 he was driven by Mr Konomos to a property at Kings Cross Road which was being purchased by a company set up by Mr Konomos, Mr Mitris and the accused. There he was told to wait and Mr Konomos drove off. In due course he returned and Mr Mitris and the accused were in the car. Mr Kouroumalos joined them and the four of them set off towards the inner west, with Mr Konomos driving. At this stage Mr Kouroumalos did not know where they were going or for what purpose. 10 He said that the car stopped in the Surry Hills area and the occupants changed positions, so that the accused was seated in the back with Mr Mitris. The accused produced a Glock pistol, which Mr Kouroumalos had previously seen in his possession, and beat Mr Mitris about the head with it, saying, "You ripped us off on a package that was worth a lot of money." Mr Mitris denied having done so. At that stage, or later at the house at Petersham, the accused also remonstrated with Mr Mitris for having "fucked up" a robbery. Tape was produced from the glove box of the car and was used to seal Mr Mitris' mouth, and his hands were tied behind him with plastic electrical cord. The accused said that what was happening should be "a lesson" to anyone who "fucks me around" or "steals off me". 11 It was dark by the time the car arrived at the house at Petersham. According to Mr Kouroumalos, Mr Mitris was escorted to the house and taken to an unlit room, the walls and floor of which were covered in clear plastic and the window of which was covered with paper. It was bare except for a chair, upon which he was seated. The accused put on knuckle dusters, which Mr Kouroumalos had previously seen at his home. He beat Mr Mitris about the head and body, saying that this was what happened to anyone who robbed him. Mr Konomos asked for the knuckle dusters and also beat Mr Mitris. 12 Mr Kouroumalos said that he left the room at one stage but was called back, he thought, by the accused. The accused asked him if he also wished to hit Mr Mitris but he declined, saying that he wanted nothing to do with it. The accused said to Mr Konomos, "Did you see the way I broke his neck?" Mr Mitris was covered in blood and appeared to be unconscious. 13 Concluding the narrative, Mr Kouroumalos said that they departed, leaving Mr Mitris in the room. The accused drove the car a short distance and Mr Konomos alighted to walk to his home, which was in the near vicinity. Mr Kouroumalos was dropped off in the Marrickville area, where he caught a taxi home. In the car the accused again alleged that Mr Mitris had stolen a valuable package and warned Mr Kouroumalos that, if he ever did the wrong thing by him, he would receive the same treatment. 14 Mr Kouroumalos gave further evidence that the accused later told him that he had had an associate of his buy a boat under a false name. He had taken the body of Mr Mitris by truck to the boat and, having put weights on it, dumped the body into the ocean. He expressed confidence that the body would never be found. 15 A number of circumstances surrounding Mr Kouroumalos' account are either unchallenged or confirmed by other evidence. It appears not to be in dispute that the accused had an association with the building at Kings Cross and the house at Petersham. His evidence that the accused possessed a Glock pistol was not challenged: nor was evidence of various police officers that, in the course of a search of the accused's home for the purpose of an armed robbery inquiry in 1991, two sets of knuckle dusters were found. As I have said, I am satisfied that Mr Mitris was engaged in the receipt of drugs through the mail and that one such package went missing. Equally, there was a bungled comic book robbery in which, it should be noted, Mr Kouroumalos himself was involved. 16 There is no issue with the evidence of Mr Mounir Matri that on 26 April 1991 he sold a boat to a man who gave an address which does not exist and that, around the same time, that boat found its way into the possession of an associate of the accused, Con Vardakis. The boat was later recovered by police from outside Mr Vardakis' home. Scientific examination of it and of the knuckledusters earlier found at the accused's home disclosed nothing of any significance. 17 Mr Constantin gave evidence, which is challenged, that not long before the disappearance of Mr Mitris he was asked by the accused to go to Mr Mitris' home at Stanmore and pick up a parcel which was to arrive by post. He was not told what it contained but he suspected that it was drugs. He did so, but left before the post arrived. The accused asked him to go back the following day but he declined. Mr Kouroumalos gave evidence that both he and Mr Vardakis attempted to sell the boat on behalf of the accused. 18 Let me assume, without deciding, that the accused was involved in the transmission of the package of cocaine through the post and that he did arrange for a boat to be purchased on his behalf for some unlawful purpose. Those matters, together with the other matters to which I have referred, do lend some support to Mr Kouroumalos' evidence. Equally, however, they provide a framework around which he could weave a false account of the accused's involvement in the killing of Mr Mitris, giving that account the appearance of plausibility. At the end of the day, they do not assist me to resolve the crucial issue in this case. I could not find the accused guilty unless I were satisfied beyond reasonable doubt that Mr Kouroumalos' evidence of the events of the evening of 17 April 1991 is truthful. 19 I have the gravest reservations about his evidence. Cross-examination exposed a number of inconsistencies between his evidence in this Court and the evidence he gave at the committal proceedings and at a previous trial of this matter, as well as his answers to questions by police in a lengthy recorded interview on 1 July 1996. Some of those inconsistencies are such as one would expect, given the notorious frailty of human memory. Others, however, lead one to wonder whether he was truly recounting events which he had witnessed. 20 More importantly, he admitted that in early interviews with police in 1991 he did not suggest that he was present at the beating but falsely claimed that the accused had admitted to him that he had killed Mr Mitris. These acknowledged lies were embroidered in such a way as to lend them a spurious plausibility. He also admitted that he had once given false information to police about a friend of his, suggesting that that man had committed two armed robberies of which, in fact, he was entirely innocent. Such explanation as he provided for having done so serves only to confirm my impression that Mr Kouroumalos is prepared to say whatever he perceives to be in his interests at any given time, without regard to the truth. 21 It was not until July 1996 that he first provided police with the account which he maintained in this Court. At that time he had been extradited from Queensland, where he had been serving a sentence of imprisonment, to face armed robbery charges in this State. He was also then aware that the accused was providing information to authorities, in particular, the Royal Commission into the New South Wales Police Force, which might implicate him, rightly or wrongly, in other criminal activities. He maintained that, prior to July 1996, he was not prepared to tell police what really happened on 17 April 1991 because he was awaiting assurance that he had an immunity from prosecution in respect of his revelations. This, in my view, does little to restore his credit. Mr Kouroumalos could be telling the truth on this occasion, but how could one be confident of it? 22 That brings me, then, to the evidence of admissions said to have been made by the accused to Mr Constantin and Mr "X". Mr Constantin had known the accused since the late 1980s through their involvement in the Army and the security industry, quite apart from their participation together in armed robberies. According to him, after he became aware of a police investigation into the disappearance of Mr Mitris, the accused told him that he had killed Mr Mitris and had "done a boat job" on him because he had "ripped them off, done the dirty on them". The accused asked Mr Constantin whether the police had approached him about the matter and enjoined him to say nothing about it. 23 Apart from saying that this occurred in the accused's car, Mr Constantin could remember nothing about the occasion on which the conversation occurred. It was over three years before he provided this information to police. In the meantime, the accused had made a statement to police implicating him in a serious assault carried out by him and others on behalf of the late Leonard McPherson, and had given evidence against him and the others at committal proceedings. He pleaded guilty to that offence in the District Court and was sentenced towards the end of 1994. He had also become aware that the accused was giving information to the National Crime Authority about a variety of criminal activities and, like Mr Kouroumalos, he was concerned about what might be said about him. 24 Mr Constantin did not impress me as a witness. He had every reason to dislike the accused and, in any event, had a motive to discredit him. In addition, he had his own interests to serve. In 1995 he had his solicitor negotiate with the Director of Public Prosecutions to refrain from laying further serious charges arising from an armed robbery in which he was involved, threatening otherwise to refuse to give evidence against the accused. To have fabricated his evidence of the accused's admission would not have been a difficult matter. He acknowledged that in 1991 he was aware that the police were investigating the disappearance of Mr Mitris and that they had spoken to the accused and Mr Konomos about that matter. He also acknowledged that in Kings Cross it was rumoured that Mr Mitris had been the victim of a "boat job". I could not responsibly rely upon his evidence. 25 I turn, finally, to the evidence of the man I have described as Mr "X". The Crown prosecutor relies heavily upon this evidence, recognising the weaknesses inherent in the testimony of Mr Kouroumalos and Mr Constantin. This is evidence, he submits, which would persuade me to accept Mr Kouroumalos' account. Mr "X" met the accused in 1986. Predictably enough, apart from social intercourse, he also committed armed robberies with the accused. In what was possibly an exhibition of disarming frankness, he testified that he had done so because he was "looking for a more reliable partner". In February 1987 he was taken into custody in respect of an armed robbery (not involving the accused) in the course of which he shot a woman. In due course, he was convicted of murder and sentenced to penal servitude for life. 26 In 1995 he was confined at Berrima Gaol. There he was joined by the accused who, I gather, was serving a sentence and was on protection because of his assistance to the authorities. Mr "X" understood that, at that time, many of the relatively small prison population at Berrima were on protection either because they were former police officers or police informers. Indeed, he acknowledged that he and the accused knew that each of them was a police informer. 27 He agreed in cross-examination that there was in prison parlance an expression "case jumping", which referred to the practice of learning sufficient about another prisoner's pending trial to fabricate evidence that that prisoner had admitted to committing the crime with which he was charged. However, he denied that he had ever indulged in that practice or had heard of it occurring at Berrima. Nevertheless, he said that he sometimes kept notes of conversations he had with another prisoner if he felt that they might protect his interests in the event of "some sort of conflict" with that prisoner. He was concerned that the accused may have mistakenly believed that in earlier years he had given information about him to the police, and he claimed that it was for that reason he kept notes of some conversations which they had. 28 Five pages of handwritten notes, apparently spanning the period from 29 June to 8 October 1995, were admitted into evidence. In large part, they appear to record personal dealings between Mr "X" and the accused which are of no present consequence. However, they also purport to record conversations in September and October of that year in which the accused is said to have admitted that he and Mr Konomos bashed Mr Mitris to death (although it was not meant to go that far), that Mr Mitris' body had been wrapped in plastic and wire and pierced with a knife "to let the air out", and that it had been weighed down with something like an old stove and dumped at sea. Asked why this had happened, the accused is alleged to have said that Mr Mitris was a "pest big mouth" who, despite having made good earnings from business at Kings Cross, wanted to "climb the ladder" and to "run it all". 29 Generally, the notes suggest that Mr "X" found these conversations bizarre and wondered whether the accused was mentally unhinged. In so far as the notes refer to events occurring at Berrima Gaol during that period, they appear to be consistent with certain prison records which are in evidence. Mr "X"'s oral evidence was rather bland and proceeded in a piecemeal fashion, with frequent reference to the notes apparently to refresh his memory about details. Certainly, at first blush, the notes have the appearance of a rough and ready diary: a more or less contemporaneous record of events. 30 That said, there are features of this evidence also which raise serious concerns about its veracity. I accept that offenders do not always behave rationally, and there is no doubt that some have rightly been found guilty on the basis of ill advised disclosures made to criminal associates whom they trusted. Nevertheless, I find it unlikely that the accused would admit his involvement in such a serious crime to a man whom he knew to be a police informer. Mr "X" said that he made the notes for no other reason than that he might need them in the event of conflict with the accused. Yet, on his account, he kept them for about two years after the accused had left Berrima Gaol and had ceased to pose any threat to him. 31 The notes were not produced to police until September of 1997. In the meantime, in April 1997, he saw a television news broadcast about the accused's arrest in respect of this matter which provided sufficient details of the allegations to have enabled him to fabricate the admissions. Indeed, that broadcast could be seen as the framework around which they were fashioned. In September 1997, when the notes first came to light, Mr "X" was awaiting the result of his application for a redetermination of his life sentence. Judgment was given in March of the following year, and in his unsuccessful appeal to the Court of Criminal Appeal in November 1998 police provided affidavit evidence of his assistance in their investigation of the present matter. 32 All this gives rise to the fear that the notes were in fact fabricated some time in 1997. If that be so, there is no doubt that they are a clever fabrication. It may be that they incorporated some notes which were made in 1995 relating to Mr "X"'s contact with the accused. It is a matter of notoriety that evidence of this kind has sometimes been concocted with considerable ingenuity. The dangers inherent in prisoner informer evidence were emphasised by the members of the High Court in Pollitt v The Queen (1991-1992) 174 CLR 558. McHugh J observed (at 615): The prison-informer witness is often a skilful liar, with a shrewd knowledge of the criminal courts and their procedures, a quick intelligence well suited to the giving of evidence and withstanding cross-examination and a good demeanour and friendly personality. 33 Mr "X" also did not impress me as a witness and I could not rely upon his evidence. The High Court's warnings in Pollitt apply with equal force to the evidence of Mr Constantin and, indeed, Mr Kouroumalos. Even in combination, I do not consider that the testimony of Mr "X" and Mr Constantin lends such support to that of Mr Kouroumalos as to persuade me to accept the latter beyond reasonable doubt. 34 The trial has proceeded to the close of the Crown case. Mr Stratton, who appears with Ms Yehia for the accused, submits that I should acquit his client now as the Crown evidence is insufficient to justify a finding of guilt. There is no doubt that I have the power to do so: see The Queen v Prasad (1979) 2 ACrim R 45, per King CJ at 47-8. The Crown prosecutor accepted as much, although he argued that the evidence was such that I should not take that course. For the reasons I have given, however, I think that Mr Stratton's submission is sound. The accused is entitled to a verdict of not guilty at this stage. 35 Given the length of the trial and the volume of evidence I have received, these reasons are relatively brief. It is appropriate that they should be so. I respectfully agree with Greg James J that to provide detailed reasons for an acquittal could "suggest a reversal of the onus of proof": see R v Schubert [2000] NSWSC 1127 at par 70. However, as his Honour added in that judgment (at par 71), it is necessary to say "sufficient to meet the parties' right to expect that the arguments and evidence would be dealt with in such a way that it could be understood what had been accepted or rejected, and what process of reasoning had occurred … and it is also necessary that deficiencies in proof be exposed publicly for the public purpose of the judgment". I trust that my reasons in this case meet those requirements. 36 I find the accused not guilty and enter judgment of acquittal. **********