NESTOROV -v- THE QUEEN [2002] WASCA 356
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 356 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:74/2002 | 5 DECEMBER 2002 | |
| Coram: | PARKER J HASLUCK J OLSSON AUJ | 20/12/02 | |
| 24 | Judgment 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
- CCA 76 of 2002
- 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.
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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