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R v Mark & Elmazovski

R v Mark & Elmazovski

Case [2006] VSCA 251 24 November 2006

Breach of Trust

Mens Rea & Intention

Admissibility of Evidence

Propensity Evidence

Jury Directions

Conflicts of Evidence

Res Gestae

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 23 of 2006
No. 16 of 2006

THE QUEEN
	v.
PETER JOHN MARK and VENER ELMAZOVSKI

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JUDGES:	MAXWELL, P., VINCENT, J.A. and BONGIORNO A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 May 2006
DATE OF JUDGMENT:	24 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 251

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CRIMINAL LAW – Sexual penetration of child under 16 – Defence under Crimes Act 1958 s. 45(4)(a) that accused believed on reasonable grounds that child was 16 or older – Whether consent also in issue – Whether prosecution should have conceded that consent not in issue.

CRIMINAL LAW – Trial – Jury directions – Prior inconsistent statements by complainants – Conflicts of evidence between prosecution witnesses – Whether trial judge sufficiently directed jury.

CRIMINAL LAW - Evidence – Admissibility - Propensity evidence – Evidence of drug-taking and supply of drugs to child victims – Whether likely to cause jury to engage in impermissible reasoning – Whether discreditable conduct part of the res gestae – Crimes Act 1958 s.398A(2).

CRIMINAL LAW – Trial – Role of prosecutor – Defence under Crimes Act 1958 s. 45(4)(a) – Whether prosecutor should have conceded that consent not in issue – Crown witnesses called but not examined by prosecutor – Crown witness criticised in prosecutor’s final address – Whether prosecutor’s duty discharged – Whether productive of unfairness.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant (Mark)	Mr D.J. Ross, Q.C. with Mr K.G. McGowan	Belleli King & Associates
For the Applicant (Elmazovski)	Mr C.W. Beale	Victoria Legal Aid

MAXWELL, P.:

One weekend in May 2003, Peter Mark had consensual sex with a girl (S). The following weekend, Mark had consensual sex with her friend (T). That same weekend, in the same house, Vener Elmazovski had consensual sex with S.

Both girls were 14 years old at the time. Taking part in an act of sexual penetration with a child under 16 is an offence carrying a maximum of 10 years’ imprisonment (Crimes Act s.45(2)(c)). Consent is not a defence to this charge unless –

“the accused believed on reasonable grounds that the child was aged 16 years or older” (s.45(4)(a)).

Both Mark and Elmazovski relied on this defence, but it was rejected by the County Court jury. Mark was convicted of two counts of sexual penetration involving S and four counts involving T, and Elmazovski was convicted of five counts of sexual penetration involving S. The Judge imposed on Mark a total effective sentence of 20 months, with 12 months suspended for a period of two years. Elmazovski received a total effective sentence of 18 months, with 12 months suspended for a period of two years. In each case, the Judge said that he was suspending part of the sentence imposed –

“to reflect the fact that these offences involved consensual acts and to give you the opportunity to return to the community.”

Mark seeks leave…

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 Mark & Elmazovski

Details

AGLC: R v Mark & Elmazovski [2006] VSCA 251
Case: [2006] VSCA 251
Decision Date: 24 November 2006

CaseChat Overview and Summary

The appellants, Mark and Elmazovski, were convicted of various charges including sexual penetration of a child under 16 years of age. The trial involved complex issues including the admissibility of propensity evidence and the sufficiency of jury directions. The case reached the court on appeal, where the appellants challenged both their convictions and the conduct of the trial.

The primary legal issues in the appeal were whether the trial judge correctly directed the jury on the relevant legal standards, specifically regarding the admissibility of evidence and the role of the prosecutor. The appellants argued that the trial judge did not sufficiently address conflicts in evidence and prior inconsistent statements by complainants. Additionally, the court considered whether the prosecution should have conceded that consent was not an issue in the case, given the nature of the charges. The admissibility of evidence regarding drug use and supply to the child victims was also scrutinized to determine if it was likely to cause the jury to engage in impermissible reasoning.

The court found that the trial judge had adequately directed the jury on the relevant issues, including conflicts in evidence and the admissibility of propensity evidence. It was determined that the evidence of drug use did not fall within the exceptions provided by the Crimes Act 1958, and thus should not have been admitted. However, the court held that any errors in the admission of this evidence did not result in a miscarriage of justice. The court also concluded that the prosecutor's conduct, including the criticism of a crown witness, did not prejudice the appellants' right to a fair trial.

The appeal was dismissed, and the convictions were upheld. The court found that despite some procedural errors, these did not materially affect the outcome of the trial. The convictions of Mark and Elmazovski on all counts were therefore affirmed.

Orders