Nestorov v The Queen

Case [2002] WASCA 356


NESTOROV -v- THE QUEEN [2002] WASCA 356



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2002] WASCA 356
COURT OF CRIMINAL APPEAL
Case No:CCA:74/20025 DECEMBER 2002
Coram:PARKER J
HASLUCK J
OLSSON AUJ
20/12/02
24Judgment Part:1 of 1
Result: Applications dismissed
A
PDF Version
Parties:KOLE NESTOROV
THE QUEEN

Catchwords:

Criminal law
Evidence
Lies by accused
Distinction between credibility and probative lies
Circumstances in which Edwards direction should be given
Directions to jury held to be adequate
Sentencing
Conspiracy to cultivate cannabis
Imprisonment for 5 years and 5 months with eligibility for parole held to be appropriate

Legislation:

Misuse of Drugs Act 1981, s 7, s 33

Case References:

Broadhurst v The Queen [1964] AC 441
Dick v The Queen [2001] WASCA 152
Edwards v The Queen (1993) 178 CLR 193
Nestorov v The Queen [1999] WASCA 303
Osland v The Queen (1998) 197 CLR 316
R v Renzella [1997] 2 VR 88
R v Zheng (1995) 83 A Crim R 572
Speed v The Queen [2001] WASCA 125
Zoneff v The Queen (2000) 200 CLR 234

Bell v The Queen [2001] WASCA 40
Eastwood [1998] VSCA 42
Evans v The Queen (1985) 38 SASR 344
Giowkos v The Queen, unreported; CCA SCt of WA; Library No 960470; 11 July 1996
Nestorov v The Queen, unreported; CCA SCt of WA; Library No 960469; 11 July 1996
R v Miceli (1997) 94 A Crim R 327
R v Pallister [2002] WASCA 68
R v Schwabegger [1998] 4 VR 649
R v Taafe (1998) 102 A Crim R 472
R v Todd [1982] 2 NSWLR 517
R v Walton [2001] QCA 309
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721A; 14 December 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NESTOROV -v- THE QUEEN [2002] WASCA 356 CORAM : PARKER J
    HASLUCK J
    OLSSON AUJ
HEARD : 5 DECEMBER 2002 DELIVERED : 20 DECEMBER 2002 FILE NO/S : CCA 74 of 2002
    CCA 76 of 2002
BETWEEN : KOLE NESTOROV
    Applicant

    AND

    THE QUEEN
    Respondent



Catchwords:

Criminal law - Evidence - Lies by accused - Distinction between credibility and probative lies - Circumstances in which Edwards direction should be given - Directions to jury held to be adequate - Sentencing - Conspiracy to cultivate cannabis - Imprisonment for 5 years and 5 months with eligibility for parole held to be appropriate




Legislation:

Misuse of Drugs Act 1981, s 7, s 33



(Page 2)

Result:

Applications dismissed




Category: A


Representation:


Counsel:


    Applicant : Mr D Grace QC & Mr M L Tudori
    Respondent : Mr B Fiannaca


Solicitors:

    Applicant : Mr M L Tudori
    Respondent : State Director of Public Prosecutions



Case(s) referred to in judgment(s):

Broadhurst v The Queen [1964] AC 441
Dick v The Queen [2001] WASCA 152
Edwards v The Queen (1993) 178 CLR 193
Nestorov v The Queen [1999] WASCA 303
Osland v…

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AGLC
Nestorov v The Queen [2002] WASCA 356
Case
[2002] WASCA 356
Decision Date

CaseChat Overview and Summary

The case of Nestorov v The Queen involved the defendant, Nestorov, who was found guilty of conspiring to cultivate cannabis. The primary issue before the court was whether the trial judge erred in not giving a direction to the jury regarding the distinction between credibility and probative lies told by the defendant. Nestorov contended that the trial judge should have directed the jury to disregard his lies unless they were probative of a fact in issue. The High Court was tasked with determining the circumstances in which such a direction should be given and whether the trial judge's directions to the jury were adequate.

The High Court examined the principles surrounding the admissibility of lies told by an accused and the appropriate judicial direction in such circumstances. It noted that while lies can be relevant to credibility, they do not necessarily assist in proving facts in issue. The court held that the trial judge's directions to the jury were adequate and did not require an explicit Edwards direction. The court reasoned that the trial judge sufficiently addressed the issues of credibility and the relevance of lies in the context of the trial. The jury was left to weigh the credibility of Nestorov's evidence and determine its impact on the case.

The court further considered the sentencing aspect of the appeal. Nestorov argued that the sentence of 5 years and 5 months imprisonment with eligibility for parole was excessive. However, the High Court found that the sentence was appropriate, taking into account the nature and circumstances of the offence, Nestorov's criminal history, and the need for deterrence and denunciation. The applications by Nestorov were dismissed, and the original sentence was upheld. The court's decision underscored the importance of the trial judge's discretion in sentencing and the appellate court's limited role in reviewing such decisions.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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