Ljupco Slaveski v The Queen - [2013] VSCA 16

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0034

LJUPCO SLAVESKI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, BUCHANAN and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARINGS	13 February 2012, 14 June 2012
DATE OF JUDGMENT	18 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 16

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CRIMINAL LAW – Appeal – Conviction – Aggravated burglary, assault, reckless endangerment – Violent attack committed by co-offenders – Applicant present – Played no part in attack – Circumstantial case – Whether acting in concert – Whether inference of prior agreement open – Whether other inferences open – Convictions unsafe and unsatisfactory – Appeal allowed – Verdicts of acquittal – Criminal Procedure Act 2009 (Vic) ss 276(1)(a), 277(1)(b).

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Appearances:

Counsel

Solicitors

The Applicant appeared in person

For the Respondent

13.2.12: Mr G J C Silbert SC with Mr D B Bongiorno

14.6.12: Mr T Gyorffy SC with Mr D B Bongiorno

Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA
WEINBERG JA:

Introduction

The applicant was presented for trial before a County Court jury on the following charges:

a.one count of aggravated burglary (count 1);[1]
b.four counts of common assault (counts 2–5);[2] and
c.one count of reckless conduct endangering persons (count 6).[3]

[1]Contrary to s 77(1) of the Crimes Act 1958 (the ‘Act’).

[2]Contrary to the common law and to s 31 of the Act.

[3]Contrary to s 23 of the Act.

These offences were alleged to have been committed on 5 November 2004 in Thomastown at an automotive workshop called Quicksilver Automotive Performance (the ‘workshop’). The workshop was operated by Vasko Jovanovski (‘Vasko’), the victim of the assault which constituted count 5. The applicant was said to have been acting in concert with John and Michael Selim (to whom we will refer, respectively, as ‘JS’ and ‘MS’, and collectively as the ‘Selims’).

By his own choice, the applicant was unrepresented at the trial (and on the appeal). He cross‑examined the prosecution witnesses himself, and addressed the jury at the conclusion of the evidence. The trial judge directed an acquittal on count 4 at the close of the Crown case. After a trial of 15 days, the jury returned a verdict of guilty on all other counts. The trial judge sentenced the applicant to two years’ imprisonment, wholly suspended for two years.[4]
[4]See DPP v Slaveski [2010] VCC 61.

The applicant now seeks leave to appeal against conviction. There are numerous grounds of appeal. For reasons which follow, we need deal only with one ground. We would grant leave to appeal, and allow the appeal, on the ground that the jury’s verdict is unsafe and unsatisfactory — that is, it ‘cannot be supported having regard to the evidence’.[5] We would therefore quash the convictions and enter a judgment of acquittal on all counts.
[5]Criminal Procedure Act 2009 (Vic) s 276(1)(a).

The Crown case

According to the Crown case, the applicant and the Selims arrived at the workshop in two separate cars: the applicant in…

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.

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Details

Case: [2013] VSCA 16
Decision Date: 18 February 2013

CaseChat Overview and Summary

In the case of Ljupco Slaveski v The Queen, the appellant, Ljupco Slaveski, challenged his conviction for aggravated burglary, assault, and reckless endangerment. The incident occurred when co-offenders committed a violent attack while Slaveski was present but did not participate in the attack itself. The dispute reached the court, which had to determine whether the convictions were based on an unsafe and unsatisfactory standard of evidence. The legal issues before the court involved the interpretation of the criminal law, specifically the principles surrounding acting in concert and the admissibility of circumstantial evidence.

The court examined whether there was sufficient evidence to infer that Slaveski and his co-offenders acted in concert and whether this inference was open based on the circumstances. It further evaluated whether other inferences were available that would justify convicting Slaveski despite his lack of direct participation in the assault. The court considered the nature of the evidence presented, which was primarily circumstantial, and whether it met the required standard of proof beyond reasonable doubt. Ultimately, the court found that the evidence was insufficient to conclude that Slaveski was acting in concert with his co-offenders, leading to a conclusion that the convictions were unsafe and unsatisfactory.

Consequently, the court allowed the appeal and quashed the convictions. The court ordered that Slaveski be acquitted of the charges of aggravated burglary, assault, and reckless endangerment. This decision was grounded in the statutory provisions of the Criminal Procedure Act 2009 (Vic) sections 276(1)(a) and 277(1)(b), which empower the court to set aside convictions that are not supported by the evidence. The court's ruling emphasised the importance of ensuring that all criminal convictions are based on a solid and reliable foundation of proof.

Orders