"I dont remember" - Memory Failure assists in friend acquittal

    "I dont remember" - Memory Failure assists in friend acquittal
    Criminal Law - District Court

    In a recent decision handed down at the District Court, R v Pambris [2018] NSWDC 24 (22 February 2018), a friend's failure to remember what happened, despite the fact that an earlier statement tendered reflected the actual opposite, led to the acquittal of the accused. An interesting read highlighting the importance of obtaining Affidavit evidence when critical evidentiary matters are deposed. 

    Factual Outline
    • February 2014, Spiros visited the victim Steve, a ‘friend’ of his, 
    • This was pursuant to a prior arrangement. 
    • As Steve opened the door to let Spiros in, a number of men barged in (wearing balaclavas and hence not identified by witness – Steve). 
    • The robbers tied up both Steve and Spiros. 
    • A substantial amount of property was stolen from Steve’s residence. 
    • Police were called and Spiros was listed as a victim. 
    • Pambris (Defendant) pawned a few items belonging to Steve – including rings and an iPhone. 
    • In a statement to Police, Spiros states that Pambris was involved and confirms his own involvement. 
    • Pambris charged with 3 offences:
        1. Home invasion (robbery)
        2. Dealing with proceeds of crime (rings)
        3. Dealing with proceeds of crime (iPhone)

    Judgement - Berman SC DCJ
    When the matter came to Court, a judge only trial was allowed. More importantly, Spiros by this time, was no longer willing to cooperate with the Crown and “Despite valiant and persistent efforts by the Crown, Mr Dimakos’ (Spiros) position was unchanged – he had no relevant memory” at [8].

    His Honour made important comments in relation to the Onus of proof in the judgement:

    “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.” At [12]

    "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." at [13]

    "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.” at [14]

    Very importantly, His Honour outlined a basic principle in Criminal Law – essentially stating at 16: “An accused person may give evidence at his or her trial, but there is no obligation to do so.” (our emphasis added).

    Silence of Accused - During Court Proceedings
    His Honour continued at 17: “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.” (our emphasis added).

    Unreliability of Witness Statement
    The Crown encouraged His Honour to give more weight to Spiros’s initial statement to Police implicating Pambris as this was fresh in his mind, however His Honour stated in respect of this, “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%.” – hence caution should be used when determining the weight to be attributed to such evidence. 

    Further, the statement made by Speros was not made under oath (Affidavit) and hence this compromised its reliability. 

    Accused Denied Involvement to Police
    When Pembris was questioned by police, noting that his friend had implicated him, he denied involvement and it was open to him to admit, if in fact he was involved, his involvement in the crime. 

    Phone Call Evidence of itself insufficent
    In terms of phone call evidence, despite the following phone calls taking place:
    • Speros called Pembris just prior to the offence, 
    • Shortly after, Speros called the victim, Steve
    • Shortly after that, another phone call from Speros to Pembris
    This evidence was not sufficient to make the sole inference that Speros and Pembris acted together in commission of the offence – with His Honor noting that the “call records do not materially advance the Crown case” at [28]. 

    In his evidence, Speros could not recall what happened and sought to retract what he had initially said. 

    In summing up, His Honour noted the above and dismissed the charge stating: "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.”

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