Ilioski v R

Case [2006] NSWCCA 164


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Ilioski v Regina [2006]  NSWCCA 164

FILE NUMBER(S):
2005/1614

HEARING DATE(S):               7 February 2006

DECISION DATE:     10/07/2006

PARTIES:
Peter Ilioski v Regina

JUDGMENT OF:       Hunt AJA Adams J Latham J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/11/1027

LOWER COURT JUDICIAL OFFICER:     Hock DCJ

COUNSEL:
WC Terracini SC / A Moen - Appellant
DC Frearson SC - Respondent

SOLICITORS:
Bill Parsons & Associates - Appellant
S Kavanagh (Solicitor of Public Prosecutions) – Respondent

CATCHWORDS:
Appellant charged with wounding with intent to murder or alternatively to do grievous bodily harm - found guilty of the statutory alternative of malicious wounding - principal issue at trial was identification - whether verdict unreasonable - whether directions given on issue of identification adequate - trial judge's obligation under s 116 of the Evidence Act 1995, to inform the jury of special need for caution both generally and in the circumstances of the particular case, arises whatever defence is raised and however the case is conducted - that obligation relates to the reliability of the identification evidence, not to its honesty - bias does not fall within s 116, and obligation to give directions relating to bias depends on how the case was conducted - need for identification parade, s 114 of the Evidence Act - negative identification evidence - compromise verdict - whether miscarriage of justice based on accumulation of conduct by appellant's counsel at trial.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Jury Act 1977

DECISION:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.
3. The appellant is to surrender himself into custody to serve the remainder of his sentence.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

1614 of 2005

HUNT AJA

ADAMS J
LATHAM J

Monday 10 July 2006

ILIOSKI v REGINA

Index to judgment

Hunt AJA   paragraphs

Introduction   1 –     6

Grounds of appeal   7 –    10

Ground 1A           Unreasonable verdict   11 –   60

Ground 5              Identification evidence   61 – 103

Familiarity of witnesses with appellant   68 –   70

Risk of confusion, period of perception of assailant,
  lighting, alcohol consumption, stress, eyesight
  and distance   71 –   85
  Disparities between appellant’s appearance and
  descriptions of assailant   86 –   90
  Displacement, suggestion and the identification
  process   91 –   96
  Bias   97 – 102
  Conclusion as to Ground 5  103

Ground 2              Admission of hearsay evidence  104 – 110

Ground 3              Witness’s belief that accused was assailant  111 – 117

Ground 4              Identification parade  118 – 125

Ground 6              Negative identification evidence  126 – 136

Ground 7              Compromise verdict  137 – 149

Ground 1B            Miscarriage of justice   150 – 156

Ground 8              Application for leave to appeal against sentence  157 – 163

Proposed orders  164

Adams J                 165

Latham J  169

ORDERS  170

------------------------------------

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

1614 of 2005

HUNT AJA
ADAMS J

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Details
AGLC
Ilioski v R [2006] NSWCCA 164
Case
[2006] NSWCCA 164
Decision Date

CaseChat Overview and Summary

The appellant, Ilioski, was charged with wounding with intent to murder or, alternatively, to do grievous bodily harm. He was found guilty of the statutory alternative of malicious wounding. The principal issue at trial was identification, specifically whether the verdict was unreasonable and whether the directions given on the issue of identification were adequate. The case was heard in the relevant Australian court, and the appeal against conviction was subsequently brought before a higher court.

The legal issues before the court involved the trial judge's obligation under section 116 of the Evidence Act 1995 to inform the jury of the special need for caution both generally and in the circumstances of the particular case. This obligation relates to the reliability of the identification evidence, not its honesty. The court also considered whether bias fell within section 116, noting that the obligation to give directions relating to bias depends on how the case was conducted. Additionally, the court examined the need for an identification parade under section 114 of the Evidence Act and the weight to be given to negative identification evidence. The possibility of a compromise verdict was also considered, as well as whether any miscarriage of justice resulted from the accumulation of conduct by the appellant's counsel at trial.

The court found that the trial judge's directions to the jury were adequate, as they appropriately addressed the special need for caution in relation to the reliability of identification evidence. The court held that bias did not fall within section 116 and that the obligation to give directions relating to bias depended on how the case was conducted. The court concluded that the verdict was not unreasonable and that there was no miscarriage of justice based on the conduct of the appellant's counsel.

No appeal against sentence was lodged. The appeal against conviction was dismissed.

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

ADAMS J

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Ratio Decidendi

Legal Principle Established

Established by: ADAMS J

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