Culibrk v The King - [2025] VSCA 137

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2024 0140
JOVAN CULIBRK	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER, TAYLOR and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2025
DATE OF JUDGMENT:	23 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 137
JUDGMENT APPEALED FROM:	[2024] VCC 141 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Multiple offences of burglary and theft – Whether prosecution could prove applicant’s involvement in any of the offending – Use of coincidence evidence – Whether judge erred in finding coincidence evidence was significantly probative – Whether use of coincidence evidence occasioned unfair prejudice – No error established – Application for extension of time in which to seek leave to appeal refused.

Evidence Act 2008, ss 98, 101.

CGL v DPP (2010) 24 VR 486, followed.

PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; R v Dupas (No 2) (2005) 12 VR 601; Pfennig v The Queen (1995) 182 CLR 461, referred to.

CRIMINAL LAW – Appeal – Sentence – Whether 3 years and 9 months’ sentence for attempted aggravated burglary manifestly excessive – Extensive and relevant prior criminal history – On bail at time of offence – Serious example of serious offence – Sentence not manifestly excessive – Application for extension of time in which to seek leave to appeal refused.

DPP v Meyers (2014) 44 VR 486; Clarkson v The Queen (2011) 32 VR 361, referred to.

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Counsel
Applicant:		Mr T Battersby
Respondent:		Ms E Ruddle KC with Ms E Allan
Solicitors
Applicant:	Sarah Pratt and Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
TAYLOR JA
OSBORN JA:

On 22 November 2023, the applicant was convicted by a jury empanelled in the County Court of attempted burglary, attempted aggravated burglary, theft of a motor vehicle, four charges of burglary and four charges of theft. The offending related to six incidents occurring between 9 and 21 June 2022.
He was sentenced on 20 February 2024,[1] as follows:
[1]DPP v Culibrk [2024] VCC 141 (Judge Murphy) (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempted burglary[2]	5 years[3]	2 years	4 months
2	Burglary [4]	10 years	3 years	4 months
3	Theft[5]	10 years	2 years	Nil
4	Theft of a motor vehicle[6]	10 years	1 year	1 month
5	Attempted aggravated burglary[7]	20 years[8]	3 years 9 months	Base
6	Burglary	10 years	3 years	4 months
7	Theft	10 years	2 years	Nil
8	Burglary	10 years	3 years	4 months
9	Theft	10 years	2 years	Nil
10	Burglary	10 years	3 years	4 months
11	Theft	10 years	2 years	Nil
Total Effective Sentence:		5 years 6 months’ imprisonment
Non-Parole Period:		3 years 3 months
Pre-sentence Detention Declared:		607 days

[2]Contrary to ss 321M and 76 of the Crimes Act 1958.

[3]See s 321P of the Crimes Act 1958.

[4]Contrary 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 Culibrk v The King

Details

AGLC: Culibrk v The King [2025] VSCA 137
Case: [2025] VSCA 137
Decision Date: 23 June 2025

CaseChat Overview and Summary

In the case of Culibrk v The King, the appellant was convicted of multiple offences of burglary and theft, and the central issue was whether the prosecution could prove the applicant’s involvement in any of the offending. The case was heard by the court of appeal, which was required to determine the admissibility and impact of coincidence evidence in the trial. The court also had to decide whether the sentence imposed by the trial judge was manifestly excessive.

The court examined the use of coincidence evidence, considering whether it was significantly probative and whether its use caused unfair prejudice to the appellant. The court concluded that there was no error in the trial judge’s assessment of the coincidence evidence. The court found that the evidence was indeed probative and did not occasion unfair prejudice to the appellant, thereby affirming the trial judge's findings. Additionally, the court assessed the sentence imposed and found that, given the appellant's extensive criminal history and the seriousness of the offences, the sentence was not manifestly excessive.

The court dismissed the appeal against conviction and sentence, and also refused the application for an extension of time in which to seek leave to appeal. The reasoning and outcome were grounded in the relevant sections of the Evidence Act 2008 and various judicial precedents, ensuring that the legal principles were applied consistently with established case law.

Orders