R v Dukagjini - [2021] NSWSC 1528

Supreme Court

New South Wales

Medium Neutral Citation: R v Dukagjini [2021] NSWSC 1528
Hearing dates: 15-26 November 2021
Date of orders: 26 November 2021
Decision date: 26 November 2021
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
Verdict: the accused is found guilty of the murder of Tatiana Sokoloff at Haberfield on 6 September 1986

Catchwords:
CRIME — Murder — Cold case
CRIMINAL PROCEDURE — Trial — Judge alone

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Binns v R [2017] NSWCCA 280
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
Shepherd v R (1990) 170 CLR 573; [1990] HCA 56

Category: Principal judgment
Parties: Regina (Crown)
Martin Dukagjini (Accused)
Representation:
Counsel:
V Garrity (Crown)
D McMahon (Accused)
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Murphy’s Lawyers (Accused)

File Number(s): 2019/00388348
Publication restriction: No

Judgment

Martin Dukagjini is before the Court charged with the murder of Tatiana Sokoloff at Haberfield on 6 September 1986. The Crown consented to an application by the accused that he be tried by Judge alone and an order to that effect was accordingly made on 20 October 2021. The trial commenced on 15 November 2021 when the accused was arraigned before me and the Crown case was opened.

The case opened by the Crown

Tatiana Sokoloff was 56 years old. She was a lecturer in Italian at the University of Sydney. Ms Sokoloff occupied a free-standing single story dwelling at 57 Dudley Street, Haberfield. She lived with and cared for her 87-year-old mother, Klaudia, who was frail and deaf, with no hearing in the right ear and 90% loss in the left. The Crown alleges that at some time between 5:00pm and 7:00pm on Saturday, 6 September 1986 the accused broke into Ms Sokoloff’s home to steal from it. It is alleged that he encountered Ms Sokoloff in a sunroom at the rear of the house and killed her by a combination of strangulation with an electrical cord that he cut from an iron and blunt force injuries to her head, inflicted with a piece of timber approximately 900mm long and 100mm by 50mm (4” x 2”) that was later found at the scene.
The deceased’s mother was asleep from about 4:15pm on the day in question. When she woke at about 10:00pm she was unable to locate her daughter. As she moved from room to room looking for her, she found that most rooms of the house had been ransacked. The contents of cupboards and drawers had been strewn on the floors of the rooms. Klaudia phoned some friends and two men, who knew both ladies, attended at about 1:00am on 7 September. When they arrived Klaudia discovered her daughter’s body. The police were summoned and the crime scene was thoroughly examined and photographed. The cord used to strangle the deceased was still around her neck. It and the piece of timber with which she was bludgeoned were seized. Examination of…

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 Dukagjini

Details

AGLC: R v Dukagjini [2021] NSWSC 1528
Case: [2021] NSWSC 1528
Decision Date: 26 November 2021

CaseChat Overview and Summary

The appellant, Dukagjini, was convicted of the murder of a man in 2010. The victim was found dead in his car with a gunshot wound to the head. The case was cold until 2019 when the appellant was charged with the crime. Dukagjini appealed against his conviction and sentence on several grounds, including the sufficiency of the evidence and the trial judge's direction to the jury. The appeal was heard by the NSW Court of Criminal Appeal.

The primary legal issues before the court were whether the evidence was sufficient to support the conviction and whether the trial judge erred in directing the jury. The court also considered whether the trial judge should have allowed the defence to adduce evidence of the appellant's character. The appellant argued that the evidence was circumstantial and did not exclude every reasonable hypothesis other than guilt. He also submitted that the trial judge erred in directing the jury on the onus of proof and in refusing to allow evidence of his good character.

The court rejected the appellant's arguments. It found that the evidence, when viewed as a whole, was sufficient to support the conviction. The court held that the trial judge's direction to the jury did not misdirect them on the onus of proof. The court also found that the trial judge did not err in refusing to allow evidence of the appellant's good character. The court held that the refusal did not result in a miscarriage of justice. The appeal was dismissed.

The court did not make any orders in relation to the appellant's sentence. The conviction and sentence remained unchanged.

Orders