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R v Dardovska

R v Dardovska

Case [2003] VSCA 4 26 February 2003

Theft

Intent to Permanently Deprive

Admissibility of Evidence

Statutory Interpretation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 392 of 2000

THE QUEEN
	v.
JULIE DARDOVSKA

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JUDGES:	PHILLIPS, C.J., CHARLES, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2002
DATE OF JUDGMENT:	26 February 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 4

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CRIMINAL LAW – Theft – Intention permanently to deprive – Whether evidence to establish intention – Failure to relate law to facts of case – Theft Act 1968 (U.K.) s.6(1)(2) – Crimes Act 1958 (No. 6231) s.73(12) (13).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr S. Gillespie-Jones	W.P.N. Lawyers Pty. Ltd.

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Charles, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

CHARLES, J.A.:

The applicant, Julie Dardovska, was born on 6 May 1955. On 20 November 2002 she pleaded not guilty to a presentment preferring five counts against her and two co-accused, Ayhan Cokacar and Haydar Mutlu, those counts being, causing injury intentionally, causing injury recklessly, false imprisonment, making a demand with a threat to kill, and, count 5, theft. The trial proceeded until 30 November 2000. At the close of the Crown case all co-accused were acquitted by direction in respect of count 4. The jury acquitted the co-accused on all remaining counts. Dardovska was convicted on count 5, but acquitted on all other counts.

The judge immediately heard a plea in mitigation, during which no previous convictions were alleged against Dardovska. His Honour then sentenced Dardovska and, without a conviction, adjourned the proceedings for six months on condition that she be of good behaviour.

Dardovska now seeks leave to appeal against conviction on the grounds that the judge erred in directing the jury as to the law of theft, and in directing the jury as to the element of dishonesty, and that the verdict was unsafe and unsatisfactory. Notwithstanding that no conviction was recorded, Dardovska is entitled to appeal the jury’s verdict.[1]
[1]R. v. Celep [1998] 4 V.R. 798.

The complainant, Feridun Akguner (“Akguner”), a real estate property consultant, borrowed $15,000 on 23 September 1993 from Haydar Mutlu. The loan was recorded in an agreement of that date, witnessed by Ayhan Cokacar and Akguner’s wife Tulay Akguner. The agreement records that the money was due for repayment on 31 December 1996. The complainant, however, never repaid that loan and some time later was made bankrupt.

The Crown case was that on 26 April 1999 Akguner received, indirectly, a message from “Guler”, who was in fact Julie Dardovska. He rang Dardovska who said that she wanted a valuation done on a property and also wanted to get into some business and needed advice. Akguner agreed to meet Dardovska the following day at 2 Howe Court in Melton, and duly arrived at the house shortly after 2.00 p.m. Dardovska then brought Akguner into…

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 Dardovska

Details

AGLC: R v Dardovska [2003] VSCA 4
Case: [2003] VSCA 4
Decision Date: 26 February 2003

CaseChat Overview and Summary

In the matter of R v Dardovska, the defendant was charged with theft under the Crimes Act 1958 (Vic). The dispute centred on whether the prosecution could prove beyond reasonable doubt that the defendant had the requisite intention to permanently deprive the owner of their property. The case was heard in the County Court of Victoria.

The legal issues before the court were whether the prosecution had provided sufficient evidence to establish the defendant's intention to permanently deprive, and if the trial judge had correctly applied the law to the facts. The relevant statutory provisions were sections 6(1) and 6(2) of the Theft Act 1968 (U.K.), and sections 73(12) and 73(13) of the Crimes Act 1958 (Vic). The court had to determine whether the evidence supported the defendant's conviction and if the trial judge had properly interpreted the law and applied it to the case.

The court found that the trial judge had failed to properly relate the law to the facts of the case. The judge had not adequately considered the elements of the offence, specifically the requirement for the prosecution to prove the defendant's intention to permanently deprive. The court concluded that the evidence was insufficient to establish the defendant's intention, and quashed the conviction and ordered a new trial. The court emphasised the importance of trial judges ensuring that they correctly apply the law to the facts of the case.

The final order of the court was to quash the defendant's conviction and order a new trial, due to the trial judge's failure to properly apply the law to the facts. This decision highlights the importance of ensuring that the prosecution proves all elements of the offence beyond reasonable doubt, and that trial judges correctly apply the law to the facts of the case.

Orders