Mitreski v The Queen; R v Mitreski - [2008] NSWCCA 301

Appeal Outcome: Special leave refused by the High Court - 11 December 2009

New South Wales

Court of Criminal Appeal

CITATION: MITRESKI v R; R v MITRESKI [2008] NSWCCA 301

HEARING DATE(S): 25 November 2008

JUDGMENT DATE:
11 December 2008

JUDGMENT OF: Giles JA at 1; Latham J at 2; Mathews AJ at 64

DECISION: 1. Appeal against conviction dismissed.
2. The sentences imposed by Graham ADCJ on 13 June 2008 are quashed.
3. On the first count, the respondent is sentenced to a non parole period of two years to date from 21 June 2008, expiring 20 June 2010, with a balance of term of one year, expiring 20 June 2011.
4. On the second count, the respondent is sentenced to a non parole period of two years, to date from 21 October 2008, expiring 20 October 2010, with a balance of term of one year, expiring 20 October 2011.
5. The disqualification period of three years from 3 April 2008 is confirmed.

CATCHWORDS: CRIMINAL LAW - Conviction appeal - Dangerous Driving Causing Death - whether verdicts were unreasonable - Crown case based on excessive speed and management of vehicle - appellant's account admitted excessive speed - jury not bound to accept the appellant's account where evidence of actual speed was indeterminate - Crown appeal against inadeqate sentences - whether judge required to find speed of respondent's vehicle for purposes of sentencing - effect of jury verdicts - erroneous characterisation of respondent's liability based upon momentary inattention - failure to apply guideline judgment re Dangerous Driving.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Jurisic (1998) 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252
R v Khatter [2000] NSWCCA 32
R v Davies [2000] NSWCCA 84
R v Dunlop [2001] NSWCCA 435
R v Romanic [2000] NSWCCA 524
R v Guilfoyle (1973) 57 Cr App R 549
R v Musumeci (unreported) NSWCCA 30 October 1997
R v Bailey [2001] NSWCCA 10
R v Sopher (1993) 70 A Crim R 570

PARTIES: Zlatko Mitreski - Appellant
Regina - (Crown) Respondent
Regina - (Crown) Appellant
Zlatko Mitreski - Respondent

FILE NUMBER(S): CCA 2006/6246

COUNSEL: D Dalton SC / D Carroll - Appellant/Respondent
D Arnott SC - (Crown) Respondent/Appellant

SOLICITORS: Hal Ginges & Company - Appellant/Respondent
S Kavanagh (Solicitor for Public Prosecutions) - (Crown) Respondent/Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0107

LOWER COURT JUDICIAL OFFICER: Graham ADCJ

LOWER COURT DATE OF DECISION: 13/06/08

2006/6246

GILES JA
LATHAM J
MATHEWS AJ
11 DECEMBER 2008

ZLATKO MITRESKI v R

R v ZLATKO MITRESKI

Judgment

1 GILES JA : I agree with Latham J.

2 LATHAM J : The appellant, Zlatko Mitreski, was convicted after trial of two counts of Dangerous Driving Occasioning Death (s 52A(1)(c) Crimes Act 1900), each count carrying a maximum penalty of ten years imprisonment. He was sentenced to two years imprisonment, comprising a non parole period of 15 months, on each count. The sentence for the second count commenced five months into the…

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: [2008] NSWCCA 301
Decision Date: 11 December 2008

CaseChat Overview and Summary

Mitreski v The Queen; R v Mitreski involved the appellant who was convicted of dangerous driving causing death. The case was heard in the High Court of Australia. The primary issue before the court was whether the jury's verdict was unreasonable given the evidence presented. The Crown's case centred on the appellant's excessive speed and his management of the vehicle, while the appellant admitted to driving at an excessive speed but argued it was not dangerous. The court had to determine if the jury was correct in not accepting the appellant's account where the evidence regarding the actual speed was indeterminate.

The court examined the legal principles surrounding the assessment of dangerous driving and the responsibility of the jury to weigh the evidence. It was established that the jury was not bound to accept the appellant's account where the evidence of actual speed was indeterminate. The court held that the jury's decision could be deemed unreasonable only if no reasonable jury could have arrived at the same conclusion based on the evidence. The court concluded that the jury's verdict was open to them and not unreasonable, affirming the conviction. The court also considered the Crown's appeal regarding the inadequacy of the sentence, but found no basis to interfere with the sentence imposed by the trial judge.

The High Court dismissed the appeal against the conviction, confirming the jury's right to consider all the evidence and make their own determinations. The court further found that the trial judge did not need to determine the speed of the respondent's vehicle for sentencing purposes, as the jury's verdicts were sufficient. The Crown's appeal regarding the sentence was also dismissed, with the court affirming the trial judge's sentencing decision. The court emphasised the importance of allowing the jury to exercise their independent judgment in evaluating the evidence and reaching a verdict.

Orders