Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Dukagjini v R [2023] NSWCCA 210 Hearing dates: 24 July 2023 Date of orders: 28 August 2023 Decision date: 28 August 2023 Before: Harrison J at [1]
Wilson J at [17]
N Adams J at [24]Decision: Appeal dismissed
Catchwords: CRIME – appeal – appeal against sentence – murder – trial by judge alone – whether mode of trial per se capable of facilitating the administration of justice for purposes of Crimes (Sentencing Procedure) Act 1999 s 22A – whether accused’s decision to opt for trial by judge alone attracts consideration of a lesser sentence – whether trial judge considered mode of trial neutral in the facilitation of its conduct or factored in irrelevant consideration of motive to seek trial by judge alone – whether error established – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 22A, 44
Criminal Appeal Act 1912 (NSW) s 6
Cases Cited: Christov v R [2009] NSWCCA 168
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulvihill v R [2016] NSWCCA 259
R v Martin Dukagjini (No 2) [2021] NSWSC 1668
R v Todd(7) (1957) SASR 305
Category: Principal judgment Parties: Martin Dukagjini (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
D Carroll (Applicant)
G Newton SC (Respondent)
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2019/388348 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Criminal
- Citation:
- Date of Decision:
- 16 December 2021
- Before:
- Fagan J
- File Number(s):
- 2019/00388348
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Dukagjini was tried before Fagan J sitting without a jury charged that he murdered Tatiana Sokoloff in the course of a break and enter gone wrong. Ms Sokoloff was killed in 1986. The parties agreed that trial by judge alone could eliminate the possibility that a jury might misconstrue the significance of DNA evidence. Mr Dukagjini also had a long criminal history of housebreaking. Trial by judge alone also foreclosed the possibility that the jury might misuse tendency evidence as evidence of bad character.
The trial, which had an initial estimate of three weeks, concluded within seven days in circumstances where no civilian witnesses were called and significant material was tendered in documentary form. Mr Dukagjini was convicted: R v Dukagjini [2021] NSWSC 1528.
On sentence, Mr Dukagjini contended that he was entitled to a discount for the facilitation of the administration of justice, on account of the incidental efficiencies that flowed from the trial by judge alone.
In refusing to give such a discount, Fagan J observed (R v Dukagjini (No 2)
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- AGLC
- Dukagjini v The King [2023] NSWCCA 210
- Case
- [2023] NSWCCA 210
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the mode of trial by a judge alone was inherently capable of facilitating the administration of justice as required by the Crimes (Sentencing Procedure) Act 1999, specifically section 22A. Additionally, the court had to consider whether the appellant's choice of trial by judge alone warranted a lesser sentence and if the trial judge had considered the mode of trial neutral in the facilitation of its conduct or had factored in irrelevant considerations, such as the motive behind the appellant's choice.
The court held that the mode of trial by a judge alone was not inherently incapable of facilitating the administration of justice and that the trial judge had not erred in considering the appellant's decision to opt for such a trial. The court found that the trial judge had appropriately considered the mode of trial neutral in the facilitation of its conduct and had not factored in any irrelevant considerations. The appeal was dismissed, and the original sentence was upheld.
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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