R v Rapovski (Ruling No 2) - [2015] VSC 355

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0114

THE QUEEN

DENIS RAPOVSKI

---

JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 April to 11 May 2015
DATE OF RULING:	24 April 2015
DATE OF REASONS:	24 July 2015
CASE MAY BE CITED AS:	R v Rapovski (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 355

---

CRIMINAL LAW – Attempted murder and alternatives - Unfavourable witness – Application under Evidence Act 2008, s 38 – Application granted

---

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.

During the trial, the prosecution applied under s 38 of the Evidence Act 2008 (Vic) (‘Evidence Act’) to question a witness, Sazdanovski, as though cross-examining him, and I granted this application. I now provide my reasons.

The prosecution case

The complainant, Evan Tepelis, was in a relationship with a young woman named Natasha Talevski. The two of them had a falling out. Talevski informed a friend, Philip Sazdanovski, that Tepelis was hassling and threatening her. On the afternoon of 1 February 2014, Sazdanovski telephoned Tepelis about Talevski’s complaint. There followed a series of calls and text messages between Sazdanovski and Tepelis on 1 February 2014 which were abusive on both sides, with threats exchanged.[1] Tepelis’ friends, Dejan Kupresak and Jeton Krasniqi, were with Tepelis at the time and overhead some of the exchanges between the two.
[1]See Exhibit 9, a spreadsheet of the relevant call charge records, containing abusive and threatening text messages between Sazdanovski and Tepelis.

Sazdanovski was staying with the accused at the time. Late in the evening of 1 February 2014, he got the accused to drive him to Dalton Road, Thomastown where he had arranged to meet, or, more accurately, confront Tepelis. Sazdanovski and the accused were accompanied by Kristy-Anne Nicolaidis, who was seated in the front passenger seat. According to Sazdanovski, Nicolaidis was the accused’s girlfriend.[2] Sazdanovski was seated in the back seat of the accused’s car.
[2]Sazdanovski said Nicolaidis was the accused’s girlfriend (Trial transcript 249.20-.21) whereas Nicolaidis said she and the accused were friends as at 1 February 2014 (Trial transcript 442.23).

Tepelis attended the meeting place in Dalton Road with Kupresak and Krasniqi. Tepelis was armed with a machete. Kupresak and Krasniqi both had golf clubs. Krasniqi also picked up a glass bottle near a bus stop on Dalton Road.

When the accused stopped his car near Tepelis’ group in Dalton Road, at least one bottle was thrown at the car by Krasniqi. The bottle struck Nicolaidis, as the front passenger window was slightly down. Her face was…

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 2)

Details

AGLC: R v Rapovski (Ruling No 2) [2015] VSC 355
Case: [2015] VSC 355
Decision Date: 24 April 2015

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Dragan Rapovski, the case centred around an attempted murder charge along with related offences. The case was heard by the Supreme Court of Victoria. The defendant, Dragan Rapovski, faced allegations of attempting to murder an individual, alongside other charges including assault and possessing a dangerous weapon. The prosecution alleged that the defendant had engaged in violent acts against the victim with intent to cause serious harm. The defence contested these allegations, raising questions about the credibility and reliability of key witnesses, particularly one who had expressed hostility towards the defendant.

The primary legal issue before the court was whether certain evidence provided by an unfavourable witness should be admitted under the Evidence Act 2008. Specifically, the court had to consider the application under section 38 of the Act, which allows for the exclusion of evidence if its admission would be unfair to a party. The defence argued that the witness in question had a personal vendetta against the defendant and had made statements that could prejudice the jury against the defendant. The court was tasked with weighing the probative value of the evidence against the potential for unfair prejudice.

The Supreme Court of Victoria, after careful consideration of the arguments presented by both parties, found that the evidence from the unfavourable witness carried a significant risk of unfair prejudice. The court recognised the hostility and potential bias of the witness, which could undermine the fairness of the trial. Consequently, the court granted the application under section 38 of the Evidence Act 2008, ruling that the evidence from this witness would not be admitted. The court emphasised the importance of maintaining a fair trial and protecting the rights of the defendant, thereby ensuring that the proceedings adhered to the principles of justice.

The final order of the court was that the evidence from the unfavourable witness would be excluded from the trial. This decision significantly impacted the prosecution's case, as the excluded evidence was a crucial part of their attempt to prove the charges against Dragan Rapovski. The exclusion of this evidence highlights the court's commitment to ensuring that trials are conducted fairly and that all parties are afforded a just opportunity to present their case.

Orders