R v Georgievski - [2001] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 321 of 2000

THE QUEEN
	v.
CHRIS GEORGIEVSKI

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JUDGES:	WINNEKE, P., TADGELL and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2001
DATE OF JUDGMENT:	18 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 65

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Criminal law – Aggravated burglary and intentionally damaging property – Evidence of identification unreliable and lacking in cogency – Failure to give accomplice warning – Convictions quashed and judgment and verdicts of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	S. Carisbrooke, Acting Solicitor for Public Prosecutions.
For the Applicant	Mr. D.A. Dann	Balmer & Associates Pty.

WINNEKE, P.:

After a trial lasting about a week in October 2000 the applicant was convicted by a jury in the County Court of one count of aggravated burglary of premises in Richmond and one count of intentionally damaging property. On count 1 – the offence of aggravated burglary – he was sentenced to be imprisoned for a period of 18 months and on count 2 – intentionally damaging property – he was sentenced to a period of 3 months. The total effective sentence was 18 months and the judge ordered the applicant to serve 9 months before becoming eligible for parole. The applicant admitted a large number of prior offences, including offences of burglary and theft, and offences of violence. It appears that at the time of sentence, he must have been undergoing a sentence for some subsequent offence because the judge ordered that he serve the sentence imposed cumulatively upon the sentence being undergone. That sentence was due to expire some 2 weeks after the date when his Honour imposed sentence. In any event, because the applicant had already served over 70 days of his sentence prior to the date when that sentence was imposed, his non-parole period has now expired and he is, again, on parole.

The applicant was one of three men who, on 13 June 1999, went in search of heroin. The other two were Duane Wallis and George Josevski. In Wallis’ car they went first to Fitzroy and then to Smith Street, Collingwood, where their efforts were unsuccessful. Whilst in Collingwood they met another man, John Tims, who joined them in Wallis’ car. One of them suggested that they might be able to purchase some heroin in Richmond, following which Wallis drove the car to the neighbourhood of the Housing Commission flats in that suburb. There they saw another man, whom they described as “Asian”. This man apparently communicated with them in some form of “sign language” which indicated that he could direct them to the outlet they were looking for. Josevski and Wallis followed him to a house at 38 Elizabeth Street where they were introduced to a girl (“Lee-Anne” or “Louise”) who sold them two foils of what she said was heroin for $185.00. This money had been pooled from funds supplied by Josevski, Wallis and the applicant. They then returned to the car,…

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 Georgievski

Details

AGLC: R v Georgievski [2001] VSCA 65
Case: [2001] VSCA 65
Decision Date: 18 May 2001

CaseChat Overview and Summary

The case before the court involved the respondent, Georgievski, who was charged with multiple counts of aggravated burglary and damaging property. The charges arose from incidents where Georgievski allegedly entered properties, stole items, and caused damage. The case was heard in the Supreme Court of Victoria. The primary issue for the court to determine was whether the evidence provided was reliable and sufficient to convict Georgievski of the charges. Additionally, the court needed to consider whether the trial judge failed to give an accomplice warning, which is a critical procedural requirement in criminal trials.

The court found that the evidence against Georgievski was unreliable and lacking in cogency. The identification evidence was particularly weak, as it was based on fleeting views under poor lighting conditions. The court highlighted that there was no independent evidence to corroborate the identifications. Furthermore, the court concluded that the trial judge did not provide the required accomplice warning, which is essential when there is evidence suggesting that the accused acted with others. This omission was deemed to have materially affected the fairness of the trial.

As a result of these findings, the court quashed Georgievski's convictions. The court entered judgments and verdicts of acquittal on all counts. The decision underscores the importance of reliable evidence and proper procedural safeguards in criminal proceedings. The court's decision ensures that Georgievski's rights were protected and that the verdicts were reached based on sound legal principles.

Orders