R v Rapovski (Ruling No 1) - [2015] VSC 152

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0114

THE QUEEN

DENIS RAPOVSKI

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATES OF HEARING:	16, 17 and 20 April 2014
DATE OF RULING:	20 April 2015
DATE OF REASONS:	21 April 2015
CASE MAY BE CITED AS:	R v Rapovski (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VSC 152

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CRIMINAL LAW – Evidence – Incriminating conduct – Lie told to a nurse – Notice requirements - Jury Directions Act2013, ss 22, 24 and 25.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson	Office of Public Prosecutions
For the Accused	Mr C Dane QC and Ms L Ristivojevic	Tricarico & Marcevski Lawyers

HIS HONOUR:

Introduction

The accused is charged with attempted murder and, in the alternative, intentionally causing serious injury and recklessly causing serious injury. The charges arise from a shooting incident that occurred on 1 February 2014. The accused is alleged to have been the shooter.

This ruling concerns the admissibility of evidence of a lie told by the accused to a nurse, not long after the shooting incident, about how his girlfriend suffered certain injuries to her face which, it is not in dispute, were inflicted by a friend or friends of the victim moments before the shooting.

The Prosecution submits that the lie is ‘incriminating conduct’, as defined by s 22 of the Jury Directions Act 2013 (Vic) (‘the Act’). Section 22 of the Act relevantly provides:

conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

incriminating conduct means conduct that amounts to an implied admission by the accused—

(a) of having committed an offence charged or an element of an offence charged …

The accused objects to the admissibility of the evidence of the alleged lie on two grounds. The first ground is that the alleged lie is not incriminating conduct. Secondly, the accused complains of short service of the Notice of Post Offence Conduct (‘Notice’). Under s 23 of the Act, such notices must be served at least 28 days before the trial is listed to commence, although the court has power under s 7 of the Act to abridge the notice period if it is satisfied that it is in the interests of justice to do so. The Notice in this case was served six days before the trial was listed to commence on 13 April 2015.

For the reasons given below, I have concluded that the alleged lie is not incriminating conduct. In my view, the lie is ‘intractably neutral’:[1] it is equally consistent with another person, Philip Sazdanovski, being the shooter, which is the very case that will be advanced by the Defence. Although other Prosecution evidence predominantly supports the allegation that the accused, not Sazdanovski, was the shooter, the lie does not assist in resolving that controversy.

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 Rapovski (Ruling No 1)

Details

AGLC: R v Rapovski (Ruling No 1) [2015] VSC 152
Case: [2015] VSC 152
Decision Date: 20 April 2015

CaseChat Overview and Summary

The case of R v Rapovski was before the Supreme Court of Victoria, where the defendant was charged with a serious criminal offence. The core of the dispute revolves around whether certain statements made by the defendant while in custody were admissible as evidence. The defendant had allegedly lied to a nurse about a significant aspect of the case, and the prosecution sought to use this as incriminating evidence. The court had to determine the admissibility of these statements under the Jury Directions Act 2013, specifically sections 22, 24, and 25, which relate to notice requirements and jury directions.

The legal issues before the court were centred on the applicability of the Jury Directions Act 2013 and whether the statements made by the defendant to the nurse were subject to the notice requirements outlined in the Act. The defence argued that the statements were inadmissible as they were not properly noticed, while the prosecution maintained that the statements were voluntary and relevant to the case. The court needed to decide if the statutory notice requirements were satisfied and whether the statements could be admitted as evidence under the Act.

The court found that the statements in question were indeed subject to the notice requirements of the Jury Directions Act 2013. It held that the prosecution had not provided the necessary notice to the defence as required by section 22 of the Act. Furthermore, the court concluded that the statements were not properly admitted as evidence because they did not meet the criteria set out in sections 24 and 25 of the Act. Consequently, the statements were deemed inadmissible, and the court directed that they not be considered by the jury in their deliberations. The court's decision was that the statements could not be used against the defendant, and this ruling had a significant impact on the prosecution's case.

The final orders of the court were that the statements made by the defendant to the nurse would not be admitted as evidence in the trial. This ruling meant that the prosecution was precluded from using these statements to support their case against the defendant. The trial proceeded without this evidence, and the jury was instructed to disregard any mention of the inadmissible statements. The outcome of this ruling was pivotal in shaping the direction and outcome of the trial, potentially influencing the final verdict.

Orders