District Court New South Wales Medium Neutral Citation: R v Pambris [2018] NSWDC 24 Hearing dates: 20th February 2018 – 21st February 2018 Date of orders: 22 February 2018 Decision date: 22 February 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The accused is found not guilty on Count 1 and will proceed to sentence him on counts 2 and 3. Catchwords: CRIMINAL LAW – Judgment – Judge alone trial – Home invasion – Dealing with proceeds of crime – Witness involved in crime has no relevant memory despite getting a discount for promising to give evidence against the accused. Category: Principal judgment Parties: R v Pambris Representation: Counsel: G. Gee – The Crown M. Ainsworth – The accused Solicitors: Director of Public Prosecutions – The Crown Astoria Lawyers – The Accused File Number(s): 2015/126486 Publication restriction: There is to be no publication of the correct name of Spiros Dimakos (pseudonym) or of any material which may tend to identify him. Judgment 1. On 6th of February 2014 a man by the name of Steven Emerton was the subject of a serious home invasion. A friend of his, who I will give the pseudonym of Spiros Dimakos, turned up at his front door pursuant to an arrangement earlier made. When Mr Emerton opened the door to let Mr Dimakos in a number of men pushed Mr Dimakos through the door. One of these men threatened Mr Emerton, before he and Mr Dimakos were tied up. Mr Emerton couldn't describe anyone because of the use of balaclavas. Mr Emerton could hear the sounds of his home being searched and when there was no noise for some time he released himself and Mr Dimakos before calling the police. A substantial amount of property was taken from Mr Emerton's home. 2. When police came Mr Dimakos told them that he was a victim of the home invasion but, as it turns out, Mr Dimakos was a perpetrator. He later pleaded guilty to being criminally involved in the offence. He signed "Agreed Facts" in which he admitted not only his involvement but also nominated Steven Pambris as being involved as well. The Statement of Facts recorded that Mr Pambris together with another unknown male were the people who did what Mr Emerton described. 3. Shortly after the home invasion Mr Pambris had pawned some of the proceeds. On the 11th of February he pawned two of Mr Emerton's rings and the following day he pawned Mr Emerton's iPhone 3. Mr Pambris used his passport as identification when pawning these items so identifying him as the person who did that was relatively easy. 4. As a result of the events I have described Mr Pambris was charged with three offences: the first related to the home invasion; the second concerned dealing with the 2 rings pawned on the 11th of February, them being the proceeds of crime; and the third was a similar offence relating to the iPhone. He pleaded not guilty to the first count but guilty to the second and third counts. 5. The trial was held before me without a jury as a result of my decision to grant Mr Pambris' application for trial by judge alone. 6. There were three witnesses in the Crown case. Mr Emerton gave evidence of the frightening experience to which he was subject on the 6th of February 2014. He gave evidence that because the person the Crown alleges was Mr Pambris was wearing a balaclava he could not identify that person. The only description he was able to give of that person was that he was tall with a raspy voice. 7. The next Crown witness was the Officer in Charge. Through him were tendered some call charge records and transcripts of some telephone calls made between Mr Pambris and Mr Dimakos when the former was in gaol. 8. The most important witness for the Crown was of course Mr Dimakos. However when he was called to give evidence he explained that he had no memory of the events of the 6th of February 2014. I granted an application made by the Crown which resulted in the Crown cross-examining Mr Dimakos. Despite valiant and persistent efforts by the Crown, Mr Dimakos' position was unchanged – he had no relevant memory. 9. After Mr Dimakos' evidence the Crown tendered a statement made by Mr Dimakos on the 9th of August 2016 together with the agreed statement of facts on which Mr Dimakos was sentenced in which Mr Dimakos implicates Mr Pambris in this offence, he acknowledging that the document is "a true and correct account of the events of 6 February 2014." 10. At this stage I will set out some important matters of law. They are the sorts of things that I would tell a jury were this a trial where the jury decided the guilt or otherwise of the accused. I will then return to an analysis of the evidence. 11. I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in Court and the evidence which has been tendered. 12. I have decided this case coldly and unemotionally. Were there a jury I would instruct them to ignore any feelings of sympathy or any other emotion that they might feel in deciding whether or not the accused is guilty of the charges he faces. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy. 13. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty. 14. What the Crown must prove, and prove beyond reasonable doubt, are the ingredients or essentials facts contained in the charges on the indictment. In this case Mr Ainsworth has made it clear that on behalf of his client he takes no issue with the proposition that someone committed the offence the subject of count 1 with Mr Dimakos and that all the elements of the offence are made out except for proof that the accused was involved in it. 15. The accused has given no evidence in this trial. I will briefly speak about the significance of the fact that the accused did not give evidence. It would be more accurate to say that I will speak about the lack of significance of the fact that the accused chose not to give evidence in this trial. 16. An accused person may give evidence at his or her trial, but there is no obligation to do so. 17. Although the accused could have given evidence himself, or called evidence on his behalf, he could have, and did in this case, equally elect to give no such evidence nor call any on his behalf. The accused was entitled to say nothing in evidence in court and make the Crown prove his guilt if it can. 18. Silence of the accused in court is not evidence against him. His election not to give evidence, or call evidence on his behalf, constitutes no admission by him and no such conclusion must be drawn from that fact. His election not to give nor call evidence must not be used to fill gaps in the Crown's case or to make up any deficiencies or defects in the Crown's case. 19. The Crown asked me to rely on what Mr Dimakos said about the involvement of Mr Pambris when he was sentenced. It is important to understand that that version of events was given by Mr Dimakos whilst he was provided with an incentive to implicate Mr Pambris. Indeed Mr Dimakos was given a discount on sentence for having promised to assist the authorities. I understand that discount to have been 10%. 20. I should therefore be cautious before I accept what Mr Dimakos agreed to when he signed the statement of facts. The possibility that he would receive a reduction on his sentence after he promised to assist the authorities might provide a reason why he would fabricate evidence implicating the accused. I have to consider whether it is a reasonable possibility that the agreed statement of facts signed by Mr Dimakos is the product of Mr Dimakos attempting to get a lighter sentence for the home invasion offence for which he was being sentenced. Accordingly I should exercise caution before I accept the proposition that the agreed facts represent an accurate version as to what occurred and in particular whether they are accurate insofar as they nominate Mr Pambris as having been involved. 21. I note also that the statement was not made under oath, in the solemn atmosphere of a courtroom, which is a further factor I must take into account when I decide its reliability. 22. It is worth noting that when Mr Dimakos was first spoken to by police as a suspect he denied involvement, but perhaps more importantly, one of the police officers interviewing him made it clear that police believed that Mr Dimakos was involved and so was this accused. The police left the door open for Mr Dimakos to change his mind about whether he would assist them telling him "if you change your mind, come and talk to me". Thus if Mr Dimakos was minded to obtain a discount on sentence for assisting the authorities he knew who the authorities expected that he might implicate. 23. I turn now to a consideration of the evidence. 24. There are a number of strands to the Crown case. The first strand is the agreed statement of facts to which I have just made reference. The second strand concerns some telephone records and the third strand concerns the telephone calls made from the gaol between Mr Dimakos and Mr Pambris. 25. Police were able to obtain call charge records for Mr Dimakos' mobile phone. They show that at 22:58:04 on the 5th of February 2014, shortly before the home invasion took place, Mr Dimakos called Mr Pambris. That called lasted 23 seconds. A very short time later Mr Dimakos called Mr Emerton. Mr Emerton's evidence was that this was a telephone call in which it was arranged that Mr Dimakos would come around to Mr Emerton's home. Very shortly after that, there was another telephone call from Mr Dimakos to the accused. 26. The Crown argues that what these calls demonstrate, or at least suggest, is that the accused and Mr Dimakos agreed in the first call that they would commit the offence, that Mr Dimakos checked that Mr Emerton was going to be at home in the second call and that the accused and Mr Dimakos then made arrangements to commit the offence in the third call. That is an available inference to be drawn but it is far from the only inference available. 27. As Mr Ainsworth submitted, one possibility was that the accused and Mr Dimakos spoke in their first call of an arrangement whereby Mr Dimakos would purchase drugs from the accused. Mr Dimakos, realising that he would have to pay for those drugs checked that Mr Emerton would be home in the second call so that he could be robbed. Mr Dimakos then rang the accused to confirm the arrangements for the purchase of drugs, Mr Dimakos later using some of the proceeds of the offence, the items pawned by Mr Pambris, to pay for the drugs. 28. The explanation for the call records advanced by the Crown and the possible explanation advanced by Mr Ainsworth both seem to me to be about equally likely. In such circumstances the call records do not materially advance the Crown case. 29. In the transcripts of the prison telephone calls Mr Dimakos repeatedly tells Mr Pambris that he doesn't remember anything. The Crown case is that he was saying this because he knew the prison telephone calls are recorded. Further, the Crown notes that there is no innocent explanation for the call charge records advanced by either Mr Pambris or Mr Dimakos. Once again the prison telephone calls do not materially advance the Crown case. 30. The result of this analysis of the crown case is that the Crown is left with the statement of facts signed by Mr Dimakos, a statement signed by Mr Dimakos when he had a powerful incentive to do so – the expectation that if he implicated the accused he would get a discount on his sentence. And it is a statement Mr Dimakos refused to acknowledge as true when giving sworn evidence before me despite being advised that this could see his time in jail increased. Exercising the caution I must, I am not satisfied of that statement's reliability to the high standard required by the criminal law, proof beyond reasonable doubt. 31. Accordingly I find the accused not guilty on count 1 and will proceed to sentence him on counts 2 and 3. ********** Amendments 23 February 2018 - Cover sheet amended to show the accused was found not guilty on count one 27 March 2018 - Grammatical correction in paragraph [1] and cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2018