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

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 Ilioski v R

Details

AGLC: Ilioski v R [2006] NSWCCA 164
Case: [2006] NSWCCA 164
Decision Date: 10 July 2006

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