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Cvetkovic v R

Cvetkovic v R

Case [2010] NSWCCA 329 21 December 2010

Appeal

Admissibility of Evidence

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New South Wales
Court of Criminal Appeal

CITATION: CVETKOVIC, Dragan v R [2010] NSWCCA 329
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19-22 July 2010

JUDGMENT DATE:
21 December 2010

JUDGMENT OF: Campbell JA at 1; Simpson J at 421; Whealy J at 421

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction and sentence – grounds of appeal – (1) Conviction unreasonable or unsupported by evidence – (2) Wrong interlocutory decisions – (3) Substantial miscarriage of justice – Appeal dismissed – CRIMINAL LAW – Evidence – Issues raised on appeal – Evidence sought to be admitted by the appellant as character and tendency evidence was determined by the trial judge to be evidence going to issues of credit – trial judge decision to admit certain evidence put forward by the prosecution as relationship evidence rather than tendency evidence – whether trial judge ought to have made a section 136 (Evidence Act 1995) ruling in relation to evidence about the credibility of the victim – whether trial judge ought to have imposed a section 136 (Evidence Act 1995) limitation on sexual experience evidence – application for leave to recall witnesses for further cross-examination – CRIMINAL LAW – Particular offences – offences against the person – acts intended to cause or causing danger to life or bodily harm or serious injury – wounding with intent to murder – CRIMINAL LAW – Criminal liability and capacity – defence matters – non-insane automatism – interaction of onus of proof and presumptions of mental capacity and that an action is willed – significance of psychiatric evidence in displacing presumptions [86]-[93] – APPEAL – test for appellate reversal of discretionary decision of practice and procedure no different to test for any other discretionary decision, but satisfaction of the test often harder as a matter of fact [217] – EVIDENCE – tendency evidence – proper procedure for deciding admissibility of tendency evidence [224] – difference between tendency evidence and relationship or context evidence – CRIMINAL LAW – procedure – whether a “prescribed sexual offence” within Criminal Procedure Act 1986 must involve activities that themselves have a sexual component [265]-[277] – effect of a “prescribed sexual offence” being tried with other charges [278] – STATUTES – Acts of Parliament – interpretation – role of definition section – meaning of “except in so far as the context or subject-matter requires” [272]-[276] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – reasons for judgment in other cases – whether admissible under s65(3) [295]-[300] – whether statements in them are first-hand hearsay [299]-[300] – whether admissible under s65(8)(b) [301]-[303] – whether admissible as a public document under s157 [304]-[314] – whether “judgment” in s157 includes reasons for judgment [306] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – first-hand hearsay – onus of proof of unavailability of the person who made the previous representation [341] – form in…

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 Cvetkovic v R

Details

AGLC: Cvetkovic v R [2010] NSWCCA 329
Case: [2010] NSWCCA 329
Decision Date: 21 December 2010

CaseChat Overview and Summary

The case of Cvetkovic v R involved an appeal against conviction and sentence by the appellant, Cvetkovic, who was convicted of wounding with intent to murder. The trial judge’s decisions regarding evidence admissibility, including character and tendency evidence, and the application of sections 136 and 137 of the Evidence Act 1995, were central issues. The appellant argued that the trial judge erred in admitting certain evidence, which allegedly contributed to a substantial miscarriage of justice. The appellant also sought to recall witnesses for further cross-examination, which was denied.

The legal issues before the court were whether the trial judge correctly admitted certain evidence as relationship evidence rather than tendency evidence, and whether the judge should have imposed a section 136 limitation on evidence about the credibility of the victim and the sexual experience evidence. The court was also required to determine whether the trial judge should have made a section 136 ruling in relation to evidence about the credibility of the victim and the admissibility of reasons for judgment under the Evidence Act 1995. Furthermore, the court had to consider the interaction between onus of proof, presumptions of mental capacity, and the significance of psychiatric evidence.

The court found that the trial judge did not err in admitting the evidence as relationship evidence, and that there was no substantial miscarriage of justice. The reasoning included that the trial judge was correct in not imposing a section 136 limitation, as the evidence was relevant to the context of the relationship between the victim and the appellant. The court also held that reasons for judgment were not admissible under the Evidence Act 1995, as they were not considered a "judgment" within the meaning of the Act. The appeal was dismissed, and no orders were made to recall witnesses for further cross-examination.

Orders