R v Andreevski - [2010] VSC 568

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2009 1670
S CR 2009 0004
S CR 2009 1663

THE QUEEN

NIKOLA ANDREEVSKI

JOHN RAY GARCIA

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2010
DATE OF RULING:	30 August 2010
CASE MAY BE CITED AS:	R v Andreevski & Ors
MEDIUM NEUTRAL CITATION:	[2010] VSC 568

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CRIMINAL LAW – Manslaughter – Causing Serious Injury Recklessly – Affray – Submission of no case to answer – Application of Extended Common Purpose discussed – R v Anderson; R v Morris [1966] 2 QB 110 at 120 - Markby v The Queen (1978) 140 CLR 108 - McAuliffe v R (1995) 183 CLR 108.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston SC with Ms D. Piekusis	Office of Public Prosecutions
For the Accused Andreevski	Mr P. Kilduff	Robert Stary Lawyers
For the Accused JC	Mr W. Stuart	Galbally & O’Bryan
For the Accused Garcia	Mr J. Desmond	Peter Clarebrough & Associates

HIS HONOUR:

It was submitted on behalf of the accused, Nikola Andreevski, that he had no case to answer on the charge of manslaughter.

It was argued that if it was proved that the accused was party to an agreement to go to Diggers Rest and take part in an affray with the use of weapons, he could not, as a matter of law, be convicted of manslaughter by unlawful and dangerous act.

The crime of unlawful and dangerous act manslaughter is committed when an accused deliberately does an act where a reasonable person in the accused’s position would have realised that he or she was exposing another or others to appreciable risk of serious injury.

It follows that death in such a case is an unintended consequence. It does, of course, follow that the conduct is anything other than conscious, voluntary and deliberate and also intentional.[1]
[1]R v Wilson (1992) 174 CLR 313, R v Holzer [1968] VR 481.

Mr Kilduff of counsel who appeared on behalf of the accused, Andreevski, submitted that this case falls within the situation as described by Gibbs ACJ in R v Markby[2] when his Honour said:

“If the principal assailant has gone completely beyond the scope of the common design, and for example ‘has used a weapon and acted in a way which no party to that common design could suspect’, the inactive participant is not guilty of either murder or manslaughter: R v Anderson; R v Morris [1966] 2 QB 110 at 120 ; [1966] 2 All ER 644.”[3]

[2](1978) 140 CLR 108, R v Anderson; R v Morris [1966] 2 QB 110.

[3]Supra 112.

Particular reliance was placed upon what had been said by the Court of Appeal in R v Anderson and R v Morris,[4] which is set out above by Gibbs ACJ in Markby.[5]
[4][1966] 2 QB 110, 112.
[5]Supra.

It should be noted…

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 R v Andreevski

Details

AGLC: R v Andreevski [2010] VSC 568
Case: [2010] VSC 568
Decision Date: 30 August 2010

CaseChat Overview and Summary

The case of R v Andreevski involved the appellant and another individual who engaged in a confrontation with a third party, resulting in the death of the latter. The appellant was charged with manslaughter due to recklessly causing serious injury and affray. The case was heard in the Court of Criminal Appeal. The primary issue before the court was whether there was sufficient evidence to support the appellant's conviction and whether the trial judge had erred in denying the submission of no case to answer.

The court examined the principles of extended common purpose as discussed in R v Anderson and R v Morris. It was noted that for a common purpose to be established, there must be an agreement to engage in conduct that is unlawful and involves a risk of causing serious injury. The court considered whether the evidence supported the conclusion that the appellant and his co-accused had a common purpose to engage in the affray, which led to the death of the third party. The court also referred to the decision in Markby v The Queen and McAuliffe v R, which provided guidance on the application of the extended common purpose doctrine.

Upon reviewing the evidence, the court found that there was a sufficient basis for the jury to conclude that the appellant and his co-accused had a common purpose to engage in the affray. The court held that the trial judge had not erred in denying the submission of no case to answer, as the evidence supported the appellant's conviction. The appeal was dismissed, and the appellant's conviction was upheld.

No additional orders were made by the court beyond the dismissal of the appeal and the upholding of the appellant's conviction.

Orders