Bektasovski v The the King

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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…

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Details
Case
[2022] NSWCCA 246
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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