Jumer Selimovski v The Queen - [2018] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0245

JUMER SELIMOVSKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 236
JUDGMENT APPEALED FROM:	[2016] VSC 325 (Croucher J)

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CRIMINAL LAW – Application for extension of time to seek leave to appeal against conviction – Delay of approximately 16 months – Applicant convicted of murder – Merits of proposed appeal – Whether miscarriage of justice occasioned by prosecutor’s failure to challenge eyewitness testimony – Conduct of trial – Proposed ground of appeal directly contrary to way case conducted by applicant at trial – Proposed ground of appeal totally devoid of merit – Whether conviction unreasonable or unable to be supported by evidence – Not reasonably arguable that conviction unreasonable or unsupported by evidence – Explanation for applicant’s delay thin – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Turnbull Lawyers
For the Respondent	Mr C B Boyce SC with Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
NIALL JA
EMERTON JA:

A little after 11:00 pm on Saturday, 17 May 2014, Mr Benjamin Monteath was shot once in the chest with a .380 calibre handgun. He fell to the floor. Despite the best endeavours of those who attempted to revive him, he died then and there.

On 4 April 2016, following a 13-day trial in the Supreme Court, the applicant was convicted of the murder of Mr Monteath. On 10 June 2016, following a plea hearing conducted in May 2016, the applicant was sentenced to 22 years and 6 months’ imprisonment with a non-parole period of 17 years.[1]
[1]R v Selimovski [2016] VSC 325. The applicant was sentenced to 22 years’ imprisonment for the murder of Mr Monteath. Prior to trial, however, the applicant pleaded guilty, on a separate indictment, to one charge of recklessly causing injury. The applicant received a sentence of 2 years and 3 months’ imprisonment on this charge, 6 months of which was cumulated on the murder sentence, giving a total effective sentence of 22 years and 6 months, on which the non-parole period of 17 years was fixed.

On 29 November 2017, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal against conviction. The applicant required an extension of time because the time for appealing provided for in s 275(1) of the Criminal Procedure Act 2009, being 28 days after the date of sentencing, had expired on 8 July 2016.

The applicant’s application for an extension of time was supported by an affidavit affirmed by the applicant’s solicitor, Mr Adrian Lewin, and an affidavit affirmed by the applicant’s daughter, Ms Sibel Selimovska. In his application for an extension of time, the applicant identified the reason that he failed to file…

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 Jumer Selimovski v The Queen

Details

AGLC: Jumer Selimovski v The Queen [2018] VSCA 236
Case: [2018] VSCA 236
Decision Date: 17 September 2018

CaseChat Overview and Summary

In the matter of Jumer Selimovski, the applicant, against The Queen, the respondent, the High Court was tasked with determining whether an extension of time should be granted for the applicant to seek leave to appeal against his conviction. Selimovski was convicted of murder and sought to challenge his conviction on the basis that the prosecutor failed to challenge the eyewitness testimony, which he argued resulted in a miscarriage of justice. The legal issues centred on whether the delay in seeking leave to appeal was justified, whether the proposed grounds for appeal were reasonably arguable, and if the applicant's conviction was unreasonable or unsupported by the evidence.

The court examined the applicant’s delay in seeking leave to appeal, noting that approximately 16 months had elapsed since the conviction. The court found that the proposed grounds for appeal were directly contrary to the way the case was conducted by Selimovski at trial, and were therefore totally devoid of merit. The court further determined that it was not reasonably arguable that the applicant's conviction was unreasonable or unsupported by the evidence. Additionally, the court considered the explanation provided by Selimovski for his delay, which was found to be thin and insufficient to warrant an extension of time.

The High Court held that the proposed grounds for appeal were not reasonably arguable and that the explanation for the delay was inadequate. Consequently, the court refused the application for an extension of time to seek leave to appeal. The conviction of Selimovski for murder was upheld, and the court dismissed the application for an extension of time, thereby finalising the proceedings without granting the applicant leave to appeal against his conviction.

Orders