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Bektasovski v The the King

Bektasovski v The the King

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Case Copied 23 November 2022 86 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bektasovski v R [2022] NSWCCA 246
Hearing dates: 13 July 2022
Date of orders: 23 November 2022
Decision date: 23 November 2022
Before: Beech-Jones CJ at CL at [1]
Kirk JA at [14]
Yehia J at [159]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
EVIDENCE — Tendency evidence — Multiple complainants — Significant probative value — Need for a sufficient link between distinct events — No need for link to be peculiar — Evidence of tendency of accused to adopt particular kind of persistence in the pursuit of his sexual interests — Whether relevant evidence is proposed tendency evidence upon which primary judge ruled or evidence as actually admitted
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle
CRIME — Appeals — Appeal against sentence — Failing to make any proper assessment of the objective seriousness of the offending

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(2)(b), 54A
Crimes Act 1900 (NSW), ss 61HA(4)(c), 61I, 61J, 61L, 80AF
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), Ch 3 Pt 3 Div 2
Evidence Act 1995 (NSW), ss 97, 101, 165B, Sch 2 Pt 6 cl 28
Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
Interpretation Act 1987 (NSW), s 30(2)
Mental Health Act 1990 (NSW), s 19

Cases Cited:
AP v R [2017] NSWCCA 270
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Campbell v R [2014] NSWCCA 102
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GG v R (2010) 79 NSWLR 194; 204 A Crim R 125; [2010] NSWCCA 230
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
JJT v R (2006) 67 NSWLR 152; [2006] NSWCCA 283
JW v R [2022] NSWCCA 206
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McPhillamy v R [2017] NSWCCA 130
McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
Paterson v R [2021] NSWCCA 273
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Adamcik (NSW Court of Criminal Appeal, 22 November 1996, unreported)
R v Bektasovski [2021] NSWDC 304
R v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCCA 246
Decision Date: 23 November 2022

CaseChat Overview and Summary

Bektasovski v The King was an appeal against conviction and sentence heard by the High Court of Australia. The appellant was convicted of sexual offences against multiple complainants. The appeal challenged both the conviction and the sentence imposed, arguing that the evidence of the appellant's tendency to pursue his sexual interests in a persistent manner was improperly admitted and that the sentence was manifestly excessive. The court was required to determine whether the tendency evidence was relevant and whether the sentence was properly assessed.

The court examined whether the tendency evidence, which showed a pattern of similar sexual offences, was relevant to the charges against the appellant. The court held that the evidence had significant probative value in showing the appellant's persistence in pursuing his sexual interests and was therefore admissible. The court also considered whether the evidence related to the charges in a way that it was not outweighed by the danger of unfair prejudice. The court found that the evidence was properly admitted as it established a sufficient link between the distinct events and was not merely coincidental. The court further held that the evidence was not merely speculative but demonstrated a clear pattern of behaviour that was relevant to the charges.

The court addressed the appeal against the sentence, finding that the primary judge had failed to make any proper assessment of the objective seriousness of the offending. The court noted that the sentence imposed was manifestly excessive and did not reflect the gravity of the crimes committed. The court determined that the appeal against the sentence was well-founded and remitted the matter to the original sentencing court for reconsideration. The court emphasised the importance of a proper assessment of the objective seriousness of the offending in determining an appropriate sentence.

The final orders of the court were to allow the appeal against sentence, set aside the sentence imposed, and remit the matter to the sentencing court for reconsideration. The conviction was upheld, but the sentence was to be reassessed in light of the court's findings. The court's decision underscores the importance of proper judicial consideration in both the admission of evidence and the imposition of sentences in criminal cases.

Orders