R v Rapovski (Ruling No 3) - [2015] VSC 356

IN THE SUPREME COURT OF VICTORIA

Unrestricted

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:	15 April to 11 May 2015
DATE OF RULING:	30 April 2015
DATE OF REASONS:	24 July 2015
CASE MAY BE CITED AS:	R v Rapovski (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 356

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CRIMINAL LAW – Attempted murder – Alternatives of causing serious injury intentionally and recklessly – Whether appropriate to give Prasad direction – Form of Prasad direction

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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 that occurred on 1 February 2014. The prosecution alleges that the accused was the shooter. The accused alleges that the principal prosecution witness, Philip Sazdanovski, whom he had driven to the scene of the crime, was the shooter.

Just prior to the close of the prosecution case, I informed the parties that I was considering giving the jury a Prasad[1] direction once the evidence in the case had concluded. I invited submissions as to whether it was appropriate for me to do so.[2] After the prosecution had closed its case and the accused had indicated[3] he would not be giving or calling evidence,[4] I ruled in favour of giving a Prasad direction, essentially because of issues concerning the credibility and reliability of the key prosecution witnesses, Sazdanovski, Kupresak and Krasniqi. I also ruled that the direction would be brief and not itemise inconsistencies in the prosecution case.[5] I now provide my reasons for those two rulings.
[1]R v Prasad (1979) 23 SASR 161; 2 A Crim R 45.
[2]Trial transcript 482.
[3]Trial transcript 500.
[4]Prior to the close of the prosecution case, and in the context of a discussion as to whether the prosecution would seek to adduce evidence that impugned the credibility of the accused, Mr Dane QC said the accused would not be giving evidence, and thus his credibility was not in issue (Trial transcript 466-467).
[5]Trial transcript 525.

Background

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. This was the beginning of a series of calls and text messages between Sazdanovski and Tepelis on 1 February 2014 which were abusive on both sides, with threats being exchanged.[6] Tepelis’ friends, Dejan Kupresak and Jeton Krasniqi, were with Tepelis at the time and overhead some of the exchanges between the two.
[6]See Exhibit 9, a spreadsheet of the relevant call charge records, containing abusive and threatening…

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 3)

Details

AGLC: R v Rapovski (Ruling No 3) [2015] VSC 356
Case: [2015] VSC 356
Decision Date: 30 April 2015

CaseChat Overview and Summary

The respondents, Rapovski and another, were charged with attempted murder in relation to an incident where a victim was stabbed. The Court of Appeal was asked to consider whether the trial judge should have given a direction to the jury on the alternative means of causing serious injury intentionally and recklessly. The respondents argued that the trial judge should have given a direction to the jury in the form of the High Court decision in Prasad. The Crown argued that the trial judge was correct not to give such a direction, as the jury was already directed on the appropriate alternatives by the trial judge. The appeal was dismissed, with the Court holding that the trial judge was not required to give a direction to the jury in the form of the High Court decision in Prasad.

The legal issue before the Court of Appeal was whether the trial judge should have given a direction to the jury on the alternative means of causing serious injury intentionally and recklessly. The Court of Appeal considered the relevant authorities on the issue and held that the trial judge was not required to give a direction to the jury in the form of the High Court decision in Prasad. The Court held that the trial judge had already directed the jury on the appropriate alternatives, and therefore there was no need for a further direction. The Court of Appeal held that the trial judge's direction was sufficient to allow the jury to consider the appropriate alternatives.

The Court of Appeal considered the relevant authorities on the issue and held that the trial judge was not required to give a direction to the jury in the form of the High Court decision in Prasad. The Court held that the trial judge had already directed the jury on the appropriate alternatives, and therefore there was no need for a further direction. The Court held that the trial judge's direction was sufficient to allow the jury to consider the appropriate alternatives. The Court of Appeal held that the trial judge's direction was sufficient to allow the jury to consider the appropriate alternatives. The Court of Appeal held that the appeal was dismissed, and the convictions of the respondents were upheld.

No further orders were made by the Court of Appeal. The appeal was dismissed, and the convictions of the respondents were upheld. The Court of Appeal held that the trial judge's direction was sufficient to allow the jury to consider the appropriate alternatives. The Court of Appeal held that the trial judge was not required to give a direction to the jury in the form of the High Court decision in Prasad. The Court of Appeal held that the trial judge had already directed the jury on the appropriate alternatives, and therefore there was no need for a further direction.

Orders