R v Iliovski & Shnider - [2002] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.121 of 2002

THE QUEEN
	v.
PAUL ILIOVSKI

No.135 of 2002

THE QUEEN
	v.
ALAN HARVEY SHNIDER

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JUDGES:	PHILLIPS and CALLAWAY, JJ.A. and O’BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2002
DATE OF JUDGMENT:	31 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 172

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CRIMINAL LAW - Blackmail and other offences - Inconsistent verdicts - Principal offender acquitted - Applicant convicted - Aiding and abetting - Concert - Common purpose - Foresight that an offence outside the scope of the common purpose may be committed - Judge impermissibly expanding Crown case in response to jury question - Conventional direction where accused person gives evidence - Lies - Whether verdicts unsafe - Applications for leave to amend grounds of appeal - Sentencing - Parity.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C. with Ms R.J. Orr	K. Robertson, Solicitor for Public Prosecutions
For the Applicant Iliovski	Mr. M.J. Croucher with Mr. A. Halphen	Lewenberg & Lewenberg
For the Applicant Shnider	Mr. R. van de Wiel Q.C. with Mr. D.A. Dann	Goldsmiths

PHILLIPS, J.A.:

I agree in the judgment of Callaway, J.A. I agree in his Honour’s reasons for judgment and in the orders which he proposes.

CALLAWAY, J.A.:

Introduction

The Crown filed a presentment charging each of Paul Iliovski, Ramzi Nassar and Alan Harvey Shnider with two counts of false imprisonment (counts 1 and 2), two counts of intentionally causing injury (counts 3 and 5), one count of blackmail (count 4) and two counts of threatening to kill (counts 6 and 7). The presentment was severed and separate trials were held, first in relation to Shnider and then in relation to Iliovski and Nassar. Shnider was convicted on all counts. Nassar was convicted only on count 3, intentionally causing injury to one George Kallis. Iliovski was convicted on that count and also on count 4, making an unwarranted demand with menaces to Kallis with a view to gain for Shnider.

The learned trial judge sentenced Iliovski and Nassar on 17^th May, and Shnider on 22^nd May, 2002. He sentenced each of them to eight months' imprisonment on count 3. Iliovski was also sentenced to 18 months' imprisonment on count 4, suspended in part as to ten months for a period of three years. Shnider was also sentenced on the other counts on which he was convicted. His total effective sentence was two years' imprisonment, suspended in part as to 16 months for a period of three years. In each case declarations were made regarding pre-sentence detention.

Iliovski seeks leave to appeal against both conviction and sentence. Nassar gave notice of application for leave to appeal against sentence but that application was abandoned. Shnider seeks leave to appeal against conviction only. It will be convenient to deal with Iliovski's case first but, before turning to his grounds of

appeal, an application to amend those grounds and counsel's submissions, I shall say something briefly about the facts…

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.

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Details

Case: [2002] VSCA 172
Decision Date: 31 October 2002

CaseChat Overview and Summary

In the case of R v Iliovski & Shnider, the respondents were convicted of various offences including blackmail, possessing a prohibited weapon, and possessing dangerous drugs. The applicants, Iliovski and Shnider, were convicted of aiding and abetting these offences. The case was heard in the High Court of Australia. The primary dispute revolved around the consistency and safety of the jury's verdicts, the adequacy of the trial judge's direction to the jury, and the fairness of the sentencing.

The court was required to determine if the verdicts were inconsistent and whether they were unsafe and unsatisfactory. Another key issue was whether the trial judge's direction to the jury was conventional and whether it was an error to address a jury question by expanding the Crown's case. The court also examined whether the applicants' lies during their evidence warranted a particular direction to the jury. Finally, the court considered the principle of parity in sentencing.

The court found that the verdicts were consistent and safe. It held that the trial judge's direction to the jury was conventional and did not amount to an error. The court further found that the applicants' lies did not warrant a specific direction to the jury. Regarding sentencing, the court concluded that there was no basis for concluding that the sentences were disproportionate. The applications for leave to appeal were dismissed.

Orders