Christov v R - [2009] NSWCCA 168

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
CHRISTOV, Ivan v R [2009] NSWCCA 168
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/5216

HEARING DATE(S):
18 September 2008, 29 October 2008, 18 December 2008

JUDGMENT DATE:
26 June 2009

PARTIES:
Ivan Christov (Applicant)
Regina (Respondent)

JUDGMENT OF:
Giles JA Rothman J McCallum J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2005/116

LOWER COURT JUDICIAL OFFICER:
Kirby J

LOWER COURT DATE OF DECISION:
17 November 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Christov [No 2] [2006] NSWSC 1179

COUNSEL:
T Game SC / S Buchen (Applicant)
D Arnott SC (Respondent)

SOLICITORS:
Ford Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal – election for judge alone trial – whether, as a matter of fact, election filed with court on a day prior to the date fixed for trial – discussion of legislative provisions

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1919
Criminal Procedure Act 1986
Evidence Act 1995
Supreme Court Rules

CATEGORY:
Principal judgment

CASES CITED:
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Quartermaine v R [1980] HCA 29; (1980) 143 CLR 595
R v Coles (1993) 31 NSWLR 550
R v Doff [2005] NSWCCA 119
R v Fisher (Court of Criminal Appeal, Gleeson CJ, 22 May 1995, unreported)
R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208
R v Perry (1993) 29 NSWLR 589

TEXTS CITED:

DECISION:
(i) Appeal against conviction be dismissed.[<br>][<br>](ii) Leave to appeal against sentence be granted.[<br>][<br>](iii) Appeal against sentence be dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/5216
GILES JA
ROTHMAN J
McCALLUM J
26 JUNE 2009

CHRISTOV, Ivan v R

Judgment

GILES JA: The questions in the conviction appeal were whether the appellant elected for trial by the Judge alone before 28 August 2006 and, if he did not, whether for that reason there was not a trial according to law.
I agree with Rothman J’s analysis of the evidence to the conclusion that a duly signed election was filed before 28 August 2006. Like his Honour, I accept that each of the witnesses was giving evidence to the best of his or her recollection. But the recollections could not all be correct, and facts which are objectively established or call for acceptance on the probabilities guide the analysis to that conclusion.
Those facts include -
•that the election form was created on the morning of 22 August 2006;
•that there was a conference with Mr Christov on that day, at which he agreed to a judge alone trial;
•that Mr Howard signed and dated the election form on 23 August 2006 and it is most unlikely that he would have done so if the form were in blank; and
•that on 24 August 2006 the Associate to…

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.

Continue reading Christov v R

Details

AGLC: Christov, Ivan v The Queen [2009] NSWCCA 168
Case: [2009] NSWCCA 168
Decision Date: 26 June 2009

CaseChat Overview and Summary

In the case of Christov v R, the appellant, Christov, challenged his conviction on the grounds that his election for a judge alone trial was not properly filed with the court. The dispute arose from the procedural requirement that the election must be filed on or before the date fixed for the trial. The case was heard in the High Court of Australia. The primary issue before the court was whether the election was, in fact, lodged with the court on the day prior to the date fixed for the trial, thereby satisfying the legislative requirement.

The court examined the legislative provisions and the procedural history of the case. It noted that the relevant statute specified that the election for a judge alone trial must be filed by the date fixed for the trial. The court further considered the evidence presented regarding the exact date and time the election was received by the court. The appellant argued that there was no documentary evidence to prove that the election was filed on the correct day, while the respondent maintained that the election was indeed filed on time. The court was required to determine the factual matter of whether the election was received by the court on the required date.

After reviewing the evidence and the applicable legislation, the court concluded that the appellant's election for a judge alone trial was indeed filed with the court on the day prior to the date fixed for the trial. This conclusion was based on the documentary evidence and the procedural practices of the court. As such, the court upheld the conviction, finding that the procedural requirement had been satisfied. The appeal was dismissed, and the conviction was affirmed.

Orders