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Dukagjini v The King

Dukagjini v The King

Case [2023] NSWCCA 210 28 August 2023

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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
R v Walcott [2019] NSWSC 443
RO v R [2019] NSWCCA 183
The Queen v Rogerson (1992) 174 CLR 268

Category: Principal judgment
Parties: Martin Dukagjini (Applicant)
Rex (Respondent)
Representation:
Counsel:
D Carroll (Applicant)
G Newton SC (Respondent)
Solicitors:
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:

[2021] NSWSC 1668

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)

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 Dukagjini v The King

Details

AGLC: Dukagjini v The King [2023] NSWCCA 210
Case: [2023] NSWCCA 210
Decision Date: 28 August 2023

CaseChat Overview and Summary

The case of Dukagjini v The King involved an appeal against a sentence imposed for the crime of murder. The appellant, Dukagjini, had been convicted of murder and was sentenced by a trial judge sitting without a jury. The appellant contested the sentence on several grounds, including the mode of trial and the trial judge's consideration of the appellant's decision to opt for a trial by judge alone. The appeal was heard by a higher court, which needed to determine the legality and appropriateness of the sentence.

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