R v Maglovski - [2012] NSWSC 1378

Supreme Court

New South Wales

Medium Neutral Citation: R v Maglovski [2012] NSWSC 1378
Hearing dates: 1, 5 and 6 November 2012
Decision date: 06 November 2012
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
Pursuant to s 137 Evidence Act 1995, leave to adduce evidence from the deceased's daughter as to a statement made to her by the deceased is refused.

Catchwords: EVIDENCE - provocation - statement made by deceased to her daughter - s 65(2)(b) of the Evidence Act - whether representation made shortly after the asserted fact - s 65(2)(c) - whether statement made in circumstances that is highly probable that the representation is reliable - s 137 - whether prejudicial effect outweighs its probative value.
Legislation Cited: - Evidence Act 1995 - s 65, s 135, s 137
Cases Cited: - Conway v R [2000] FCA 461; 98 FCR 204
Category: Interlocutory applications
Parties: Crown (Prosecutor)
Dragi Maglovski (Accused)
Representation: Counsel:
P.A. Leask (Crown)
J.G. Spencer (Accused)
Solicitors:
Crown (Director of Public Prosecutions)
George Sten & Co (Accused)

File Number(s): 2011/321270

EX TEMPORE Judgment

Re admissibility of evidence (page 137 of transcript)

Counsel for the accused, Mr Spencer, objects to the Crown leading evidence from the deceased's daughter concerning certain statements made to her by the deceased.

The accused has been arraigned on an indictment which contains a single count alleging that he murdered his wife, Rosa Maglovska, on 8 October 2011. To that charge he pleaded not guilty to murder but guilty to manslaughter.

It is clear from his counsel's opening that the only real issue in the trial is whether the Crown can negative the contention that the accused acted under provocation when he killed his wife. To this point in the trial the material which is said to give rise to the issue of provocation is to be found in the accused's interview with the police. In that interview he stated that he punched and stabbed his wife. He said that this was after his wife had told him that she wanted a divorce and spat in his face. He described a breakdown in the marriage which commenced at least around eight months prior to the killing when he commenced sleeping in another part of the house to his wife. Consistent with this, some evidence was given yesterday by his son that he had started sleeping in another part of the house some time in 2010.

The Crown proposes to call evidence from the deceased's daughter, Ms Silvana Maglovska. She is expected to give evidence concerning her observations on the day of the killing and of her parents' marriage over a period of time. Subject to any objection he may make to a particular question, Mr Spencer has indicated he does not object to the Crown leading evidence of that kind.

However, it is also anticipated Ms Maglovska will give evidence of a conversation she states she had with her mother approximately two weeks prior to her death. This morning I…

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 Maglovski

Details

AGLC: R v Maglovski [2012] NSWSC 1378
Case: [2012] NSWSC 1378
Decision Date: 06 November 2012

CaseChat Overview and Summary

In the case of R v Maglovski, the defendant faced trial for the murder of his wife. The trial judge was tasked with determining whether certain statements made by the deceased to her daughter, which were proposed to be admitted under s 65(2)(b) of the Evidence Act, should be allowed. The central issue was whether these statements were representations made shortly after the occurrence of the fact, as required by s 65(2)(c), and if they were made in circumstances that made it highly probable that the representation was reliable. Additionally, the court had to consider s 137 of the Act to assess whether the prejudicial effect of the evidence outweighed its probative value.

The court evaluated the timing and circumstances of the statements made by the deceased. It was established that the statements were indeed made shortly after the alleged events, meeting the requirement of s 65(2)(c). The reliability of the statements was also scrutinised, considering the relationship between the deceased and her daughter, and the context in which the statements were made. The court found that the statements were made in circumstances that made it highly probable that the representation was reliable. However, the court also considered s 137, and determined that the prejudicial effect of admitting the statements did not outweigh their probative value.

The court ruled that the statements were admissible under the relevant sections of the Evidence Act. The statements were found to be relevant and reliable, and their probative value in establishing the circumstances of the case was deemed sufficient to justify their admission despite any prejudicial effect. The trial proceeded with the evidence being considered by the jury in determining the guilt or innocence of the defendant. The final orders of the court were to admit the statements as evidence in the trial, allowing the jury to consider them in their deliberations.

Orders