Cvetjovski (Cvetkovski) v The Queen - [2019] NSWCCA 100

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100
Hearing dates: 11 March 2019
Date of orders: 24 May 2019
Decision date: 24 May 2019
Before: Payne JA at [1]; Bellew J at [98]; Campbell J at [99]
Decision:
(1) Leave to appeal granted on grounds 1-3.

(2) Appeal dismissed on grounds 1-3.
(3) Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) refused on ground 4.
Catchwords:
CRIME – appeal against conviction - whether wrong decision on a question of law – whether expert evidence should have been excluded – relevance of evidence – probative value of evidence - IMM v R The Queen (2016) 257 CLR 300; [2016] HCA 14 applied

CRIME – appeal against conviction - whether wrong decision on a question of law – whether admissions should have been excluded by trial judge – where point not raised below – where clear warnings given to accused prior to admissions

CRIME – appeal against conviction – whether unreasonable verdict – whether, on the evidence at trial, jury’s verdict was reasonably open
CRIME – appeal against sentence – aggravated dangerous driving occasioning death – aggravated dangerous driving occasioning grievous bodily harm – manifest excess- objective seriousness – special circumstances
Legislation Cited: Crimes Act 1900 (NSW), s 52A
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 55, 56, 76, 79, 85, 137, 138
Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Elwood v The Queen [2016] NSWCCA 18
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hughes v The Queen [2018] NSWCCA 2
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Bauer [2018] HCA 40; 92 ALJR 846
R v Dickman (2017) 261 CLR 601; [2017] HCA 24
R v Esposito (1998) 45 NSWLR 442
R v Horton (1998) 45 NSWLR 426
R v Jurisic (1998) 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Category: Principal judgment
Parties: Albert Cvetjovski (Cvetkovski) (Appellant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
S Kluss (Appellant)
D Kell SC; E Jones (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Appellant)
Solicitor for Public Prosecutions (NSW)…

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: [2019] NSWCCA 100
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the matter of Cvetjovski (Cvetkovski) v The Queen, the High Court of Australia was tasked with considering the appeal against conviction and sentence of the appellant, Cvetjovski, who was found guilty of aggravated dangerous driving occasioning death and grievous bodily harm. The appellant challenged both the admissibility of certain evidence and the reasonableness of the jury's verdict, as well as the severity of the sentence imposed. The Court was required to determine whether there were any errors in the trial judge's rulings regarding the admissibility of expert evidence and admissions made by the appellant. Additionally, the Court needed to assess whether the jury's verdict was reasonably open based on the evidence presented and whether the sentence was manifestly excessive.

The Court began by examining the admissibility of expert evidence, applying principles from IMM v R. It was established that expert evidence must be relevant and have sufficient probative value to assist the trier of fact. The trial judge had admitted the expert evidence, which was pertinent to the case, and thus the Court found no error in this decision. The Court also considered the admissibility of the appellant's admissions, noting that the trial judge had issued clear warnings and that the point had not been raised during the trial. The warnings were sufficient to ensure the admissibility of the admissions, and thus the Court found no error in this regard. The Court then evaluated whether the jury's verdict was reasonably open on the evidence presented, concluding that the jury's conclusion was supported by the evidence and thus was a reasonable verdict.

Lastly, the Court examined the sentence imposed on the appellant. The Court considered whether the sentence was a manifest excess, taking into account the objective seriousness of the offences and any special circumstances. The Court determined that the sentence, while severe, was not manifestly excessive given the nature of the crimes and the need for deterrence and denunciation. The Court ultimately upheld the conviction and sentence, affirming the decisions made by the trial judge and the jury. The final orders of the Court were to dismiss the appeal against conviction and sentence.

Orders