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R v Kuzmanovic

R v Kuzmanovic

Case [2005] NSWSC 771 3 August 2005

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CITATION:
R v Kuzmanovic [2005] NSWSC 771

JUDGMENT DATE :

3 August 2005

JURISDICTION:
Criminal

JUDGMENT OF:
Miles AJ at 1

DECISION:
The contents of the statement of Vera Valjar are admissible

CATCHWORDS:
Admissibility of a statement of a person now deceased "shortly after" - Evidence Act 1995 s 65(2)(b) and s 65(2) (c)

LEGISLATION CITED:
Evidence Act 1995

CASES CITED:
Conway v R (2000) 98 FCR 204
R v Mankotia [1998] NSWSC 295
R v Polkinghorne (1998) 108 ACrim R 189
Ratten v The Queen [1972] AC 378
Walton v The Queen (1989) 166 CLR 283
Williams v R (2000) 119 ACrim R 490

PARTIES:
Regina
Momcilo Kuzmanovic

FILE NUMBER(S):
SC 2004/29

COUNSEL:
Mr P Barrett (Crown)
Mr I Ierace SC (Defence)

SOLICITORS:
Graham Whitaker (Sydney) (Crown)
George Caristo (Parramatta) (Defence)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MILES AJ

2 August 2005

2004/29

REGINA v MOMCILO KUZMANOVIC

JUDGMENT

1 MILES AJ: In the absence of the jury the prosecution sought a ruling on the admissibility of the contents of a statement of Vera Valjar (now deceased) made to police at Mount Druitt Police Station on 7 February 1985. The statement was typed on official police form P190 and witnessed by Senior Constable W T Mathers. The admissibility or otherwise is to be determined under s 65(2)(b) of the Evidence Act 1995 or alternatively s 65(2)(c).

2 The prosecution case was that the deceased and the accused travelled in the accused’s car on the night of Thursday 24 January 1985 and that the accused himself or with somebody with whom he acted in concert shot the deceased dead at or near where the deceased’s body was found about 1.5 kilometres east of the Hume Highway near Marulan. The body was not found until Thursday 31 January. The whereabouts of the accused and the deceased on the night of 24 - 25 January were of importance in the trial.

3 There was evidence in the trial at the time of the ruling that the deceased let the premises at 131 Carlisle Street Blackett to Ms Valjar during the period around 24 to 28 January 1995. In her statement Ms Valjar deposed to arrangements with the deceased and the removal of her belongings to the premises on 24 January. The statement continued.

“……7. “After Rade and I had moved my things, I gave Rade $120.00. I said to Rade, would he fix the door because I couldn’t lock it. “ He said, “Alright, but I must hurry up, because somebody wait for me, going tomorrow to Canberra.” Rade stayed and fixed the door and stayed til (sic) about 8.30 pm, and then he left.

…….8 About 10 minutes later the woman from the front house tells me that there is a telephone call. I go in and speak on the telephone, and its Rade. He say, “Vera, I’m not going tomorrow, I’m going now straightaway, Canberra.” I said, “Alright, you go.”…

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 Kuzmanovic

Details

AGLC: R v Kuzmanovic [2005] NSWSC 771
Case: [2005] NSWSC 771
Decision Date: 3 August 2005

CaseChat Overview and Summary

The case of R v Kuzmanovic, which reached the Supreme Court of Victoria, involved a dispute regarding the admissibility of a statement made by a deceased person. The defendant, Kuzmanovic, was charged with murder, and the prosecution sought to introduce a statement made by the deceased, who was the victim's brother, shortly after the incident. The deceased's statement was sought to be admitted under the provisions of the Evidence Act 1995, specifically sections 65(2)(b) and 65(2)(c), which pertain to the admissibility of hearsay evidence in specific circumstances. The primary legal issues before the court were whether the statement could be considered as an exception to the hearsay rule under these provisions and whether the statement was made shortly after the incident in a way that ensured its reliability and probative value.

The court considered the statutory framework and the common law principles governing the admissibility of such statements. It was noted that the deceased's statement needed to be considered in light of the timing and the circumstances under which it was made. The court evaluated the reliability of the statement and whether it was made spontaneously or under circumstances that could affect its accuracy. It was also essential to determine whether the statement was made shortly after the event to ensure its probative value. The court held that the statement was made shortly after the incident and was spontaneous, thereby meeting the criteria under section 65(2)(b) of the Evidence Act. The statement's probative value was deemed to outweigh any prejudicial effect, and it was considered reliable due to the circumstances in which it was made.

Consequently, the court ruled that the statement was admissible as evidence under the provisions of the Evidence Act 1995. The statement was found to be a reliable and probative piece of evidence that could assist in establishing the facts of the case. The court's decision was based on the careful consideration of the statutory provisions and the common law principles surrounding the admissibility of hearsay evidence. The final orders of the court allowed the prosecution to present the deceased's statement as evidence in the trial, thereby facilitating the determination of the defendant's guilt or innocence.

Orders