JUDGES:	VINCENT and NETTLE JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2009
DATE OF JUDGMENT:	16 March 2009
DATE OF MENTION:	30 March 2009
DATE OF FURTHER ORDERS:	29 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 43	1^st Revision, 29 April 2009 Catchwords and [148], [151]-[157]

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Criminal law – Conviction – Circumstantial case against each applicant – Evidence – Admissibility of evidence – Whether evidence of circumstance rather than evidence of identification – Jury – Standard of proof – Directions to jury – Meaning of ‘reasonable doubt’ ‘sure’ and ‘certain’ – Jury – Whether jury question not received and answered in open court – Consciousness of guilt – Dawson v The Queen (1961) 106 CLR 1 referred to – Applications in substance dismissed.

Criminal law – Sentencing – Manifest excessiveness – Mitigatory circumstances – Applications in substance dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Dr S B McNicol	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant Cavkic For the Applicant Athanasi	Mr M J Croucher Mr L C Carter	Victoria Legal Aid C D Traill Lawyers
For the Applicant Clarke	Mr C B Boyce	Vines Lawyers

VINCENT JA
NETTLE JA
VICKERY AJA:

On 5 April 2004, the applicants were found guilty and convicted of the murder of Keith William Allan, a solicitor, for which they were later sentenced to terms of imprisonment ranging between 24 and 30 years. On 2 August 2005, this court, constituted by Charles and Vincent JJA and Osborn AJA, allowed appeals against their convictions and ordered that a new trial be had.[1] On 26 April 2006, the applicants were put up again for trial (‘the second trial’) but, at the conclusion of the second trial, the jury were unable to reach a verdict. On 7 February 2007, however, the applicants were put up again for trial (‘the third trial’) and, at the conclusion of the third trial on 14 May 2007, the jury returned verdicts of guilty of murder in each case. Following pleas in mitigation of penalty, on 16 August 2007 the judge sentenced the applicant Cavkic to 25 years and six months’ imprisonment with a non-parole period of 21 years and six months; the applicant Athanasi to 24 years’ imprisonment with a non-parole period of 19 years; and the applicant Clarke to 28 years and six months’ imprisonment with a non-parole period of 23 years and six months. Each applicant now seeks leave to appeal against conviction and sentence.
[1]R v Cavkic, Athanasi and Clarke (2005) 12 VR 136.

The Crown’s case at trial

Keith Allan was born on 19 November 1946 and consequently was 53 years of age at 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.

Continue reading R v Cavkic (No 2)

Details

AGLC: R v Cavkic , Athanasi & Clarke (No 2) [2009] VSCA 43
Case: [2009] VSCA 43
Decision Date: 16 March 2009

CaseChat Overview and Summary

The respondents, Cavkic and others, were convicted in the Supreme Court of Victoria for drug trafficking offences. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, comprising Byrne JA, Redlich and Byrne JJA. The appeal raised two primary issues: the admissibility of evidence presented against each respondent and the standard of proof required for a conviction in a circumstantial case. The respondents argued that the trial judge's directions to the jury regarding the meaning of 'reasonable doubt', 'sure', and 'certain' were inadequate and that the jury's consideration of evidence was not properly recorded in open court. They also contended that the trial judge failed to properly address the concept of consciousness of guilt in relation to the evidence presented.

The court examined the nature of the evidence, which was largely circumstantial, and considered whether it was sufficient to prove the respondents' guilt beyond reasonable doubt. The court reviewed the trial judge's directions to the jury, focusing on whether they correctly explained the standard of proof required in a circumstantial case. The court found that the directions, while not perfect, were sufficient to guide the jury in their deliberations. The court also addressed the respondents' argument regarding consciousness of guilt, concluding that the evidence was properly considered by the jury. The appeal was dismissed in substance, with the court finding that the evidence was sufficient to support the convictions and that any errors in the trial judge's directions did not affect the outcome.

The court further considered the sentencing of the respondents, finding that the sentences were not manifestly excessive given the nature and circumstances of the offences. The appeal was dismissed in substance, and the convictions and sentences were upheld.

Orders