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R v Cakovski

R v Cakovski

Case [2004] NSWCCA 280 19 August 2004

Evidence

Appeal

Self-Defence

Admissibility of Evidence

Criminal Law

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Reported Decision:
149 A Crim R 21

New South Wales

Court of Criminal Appeal

CITATION: R V. CAKOVSKI, Daniel [2004] NSWCCA 280 revised - 19/08/2004

HEARING DATE(S): 14 May 2004

JUDGMENT DATE:
19 August 2004

JUDGMENT OF: Hodgson JA at 1; Hulme J at 53; Hidden J at 69

DECISION: 1. Appeal allowed 2. Conviction quashed 3. Ordered that there be a new trial.

CATCHWORDS: CRIMINAL LAW - EVIDENCE - Appeal against conviction for murder - Defence of self-defence - Evidence given by appellant that he stabbed the deceased in self-defence, when the (unarmed) deceased persisted in aggression and threats to kill him - Trial judge rejected evidence that 23 years earlier the deceased had killed three people, and that a few hours before his death he threatened to kill another person "like I killed the other three people" - Whether that evidence was admissible as tendency evidence or otherwise.

LEGISLATION CITED: Evidence Act 1995 ss.97, 100, 135, 137
Crimes Act 1900 ss.418-422

CASES CITED: Festa v. The Queen (2001) 208 CLR 593
Killick v. The Queen (1981) 147 CLR 565
Lawrence v. The Queen 91981) 38 ALR 1
R v. Chin (1985) 157 CLR 671
R v. Soma (2003) 212 CLR 299
R. v. Cakovski [200] NSWSC 608
R. v. Cakovski [2002] NSWSC 550
R. v. Lockyer (1996) ACrimR 457
R. v. Martin [2000] NSWCCA 332
Shaw v. The Queen (1952) 85 CLR 365

PARTIES :
Regina - respondent
Daniel Cakovski - appellant

FILE NUMBER(S): CCA 60279/03

COUNSEL: Mr. W. Terracini SC with Mr. R. Ponetllo for the appellant
Mr. P. Ingram for Crown/respondent

SOLICITORS: W.H. Parsons & Associates for appellant
C.K. Smith for respondent

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 70022/02

LOWER COURT
JUDICIAL OFFICER : O'Keefe J

CCA 60279/03
SC 70022/02

HODGSON JA
HULME J
HIDDEN J
Thursday 19 August 2004

R. v. Daniel CAKOVSKI

Judgment

1 HODGSON JA: On 18 June 2002, the appellant pleaded not guilty to a charge that he, on 20 May 2001, at Strathfield in the State of New South Wales, did murder Eugene Victorovich Petroff. He was tried before O’Keefe J and jury of twelve. On 3 July 2002, the jury returned a verdict of guilty on the charge of murder.

2 On 8 January 2003, the trial judge determined upon a sentence of 18 years imprisonment, with a non-parole period of 12 years; and this, by reason of adjustments due to periods otherwise spent and to be spent in custody, translated to imprisonment from 14 December 2003 to 23 September 2020, with a non-parole period commencing on 14 December 2003 and expiring on 23 September 2014.

CIRCUMSTANCES

3 I will commence with an outline of facts accepted by both the Crown and the appellant.

4 Eugene Petroff was pronounced deceased at 8.15am on 20 May 2001. The cause of death was the combined effect of four stab wounds to the chest and an incised wound to the face. The two most significant wounds were one, with…

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 Cakovski

Details

AGLC: R v Cakovski [2004] NSWCCA 280
Case: [2004] NSWCCA 280
Decision Date: 19 August 2004

CaseChat Overview and Summary

R v Cakovski involved the appellant's appeal against his conviction for murder. The dispute centered around whether the appellant had acted in self-defence when he stabbed the deceased, who was unarmed. The case was heard in the Supreme Court of Victoria, Court of Appeal.

The legal issues before the court included the admissibility of past violent conduct of the deceased and whether the deceased's threats made shortly before the incident could be considered in the context of self-defence. Specifically, the court needed to determine if the evidence about the deceased's previous killing of three people and threats made to the appellant constituted relevant tendency evidence under the common law or if it fell outside the permissible bounds of evidence for self-defence claims.

The court found that the trial judge was correct in excluding the evidence of the deceased's past violent conduct and threats, as it was not relevant to the appellant's self-defence claim. The court reasoned that such evidence, while potentially indicative of the deceased's character for violence, did not directly relate to the circumstances of the current incident and was more prejudicial than probative. Therefore, the court upheld the appellant's conviction for murder, confirming the trial judge's decision on the admissibility of the contested evidence. The appeal was dismissed, and the conviction remained intact.

Orders