R v Jakimov - [2007] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN

NOVICA JAKIMOV

No 253 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

NOVICA JAKIMOV

No 275 of 2005

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JUDGES:	NETTLE and ASHLEY JJA and COLDREY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 September and 13 December 2006
DATE OF JUDGMENT:	8 February 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 9

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Criminal law – Murder – Appeal against conviction – Alleged lies and other post-offence conduct variously relied upon in proof of murder, murderous intent, to refute the defence of self-defence, and as bearing upon the applicant’s credit – Whether conduct relied upon capable of going in proof of murder – R v Ciantar [2006] VSCA 263 – Whether a particular alleged lie was capable of going in proof of murder – Whether judge failed to adequately direct the jury how that alleged lie could go in proof of murder – Whether consciousness of guilt direction, generally, was inadequate – Whether judge erred by failing to direct the jury that impugned post-offence conduct might have reflected only consciousness of guilt of manslaughter – No misdirection established.

Crown appeal against sentence – Sentence of 19 years’ imprisonment with a non-parole period of 14 years not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant (Jakimov)	Mr M J Croucher with Mr T Kassamatis	Robert Stary and Associates

NETTLE JA:

I agree with the reasons advanced by Ashley JA that the application for leave to appeal against conviction and the Crown appeal against sentence should both be dismissed.

ASHLEY JA:

On 25 May 2005, after a short period of deliberation, a jury found Novica Jakimov guilty of the murder of Kelly Hodge. On 18 August 2005, a plea having been heard in the interim, he was sentenced to 19 years’ imprisonment, with a non-parole period of 14 years. Now he seeks leave to appeal against his conviction, whilst the Crown appeals against the sentence passed upon him.

By his full statement of grounds, filed on 31 October 2005, the applicant contended that the learned trial judge had erred in his directions to the jury concerning consciousness of guilt. That alleged error was particularized in five ways, namely:

“• (a)             in leaving as a lie going to consciousness of guilt the applicant’s denial of knowledge of the deceased’s vaginal injuries;
•(b)            in failing to explain how that alleged lie could be material;
•(c)             in failing to direct that an explanation for that alleged lie was that which was put to the applicant in cross-examination in relation to an alleged related lie, namely that he was embarrassed about what his parents would think of him engaging in the type of sexual act that might result in injury (Trial at 486-487);
•(d)            in giving confusing directions – for example, in directing that flight was ‘being relied upon not as guilt of murder but as a factor to rely upon as supporting…

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 Jakimov

Details

AGLC: R v Jakimov [2007] VSCA 9
Case: [2007] VSCA 9
Decision Date: 8 February 2007

CaseChat Overview and Summary

The applicant, Mr Jakimov, appealed his conviction for murder, arguing that the trial judge misdirected the jury on several points, including the significance of his post-offence conduct and a specific alleged lie, which he claimed should not have been considered in the proof of murder. The Court of Appeal was tasked with determining whether the trial judge's directions to the jury regarding these issues were adequate and whether the sentence imposed was manifestly inadequate.

The legal issues before the Court of Appeal included whether the post-offence conduct and the alleged lie were properly considered by the jury as evidence of murder, murderous intent, or to rebut the defence of self-defence. Additionally, the Court needed to assess if the judge's direction on the concept of consciousness of guilt was sufficient and whether it was an error to not direct the jury that the impugned conduct might reflect only consciousness of guilt of manslaughter. The Court also needed to consider the adequacy of the sentence imposed by the trial judge.

The Court of Appeal found that the trial judge's directions to the jury were not misdirections. The post-offence conduct and the alleged lie were properly considered by the jury in the context of the applicant’s credibility and the proof of murder. The judge's direction on consciousness of guilt was deemed adequate. The Court also held that the sentence of 19 years’ imprisonment with a non-parole period of 14 years was not manifestly inadequate.

The Court of Appeal dismissed the appeal against conviction and the appeal against sentence, affirming the lower court's decision.

Orders