R v Rapovski (Ruling No 4) - [2015] VSC 357

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:	15 April to 11 May 2015
DATE OF RULING:	1 May 2015
DATE OF REASONS:	24 July 2015
CASE MAY BE CITED AS:	R v Rapovski (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2015] VSC 357

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CRIMINAL LAW – Attempted murder – No casesubmission – Intention to kill – Application refused

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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, which he denies. The accused alleges that the principal prosecution witness, Philip Sazdanovski, was the shooter.

The prosecution closed its case on 30 April 2015. As foreshadowed by senior counsel for the accused,[1] the defence did not call evidence. Later on 30 April 2015, I gave the jury a Prasad direction. The jury indicated that they wished the trial to continue. I sent the jury away until the next day. On 1 May 2015, Mr Dane QC made a no case submission regarding the attempted murder charge, specifically, that there was insufficient evidence to sustain a finding that the accused had an intention to kill.
[1]Trial transcript 467. On 29 April 2015, during submissions as to whether the prosecution could lead certain credibility evidence concerning the accused, Mr Dane QC indicated he would not be calling the accused.

I rejected that submission, and indicated that I would provide my reasons later. I now provide those reasons.

Background

The complainant, Evan Tepelis, was formerly in a relationship with a woman named Natasha Talevski. Talevski informed a friend, Philip Sazdanovski, that Tepelis was hassling and threatening her. Sazdanovski contacted Tepelis by telephone on the afternoon of 1 February 2014. There followed a series of calls and texts between Sazdanovski and Tepelis that day which were abusive on both sides, with threats being made.

That same evening, Sazdanovski, who was staying with the accused, got the accused to drive him to Thomastown to meet or confront Tepelis at a pre-arranged meeting place on Dalton Road. Sazdanovski and the accused were accompanied by the accused’s friend or girlfriend Kristy-Anne Nicolaidis, who was seated in the front passenger seat. Sazdanovski was in the back seat.

Tepelis attended the meeting place with two friends, Dejan Kupresak and Jeton Krasniqi. Tepelis and his friends brought weapons, namely a machete and golf clubs.

When the accused stopped his car near Tepelis’ group in Dalton Road, at least one[2] glass bottle was thrown at the car by Krasniqi. It struck the front passenger window, which was slightly down. It also struck Nicolaidis. Her…

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 4)

Details

AGLC: R v Rapovski (Ruling No 4) [2015] VSC 357
Case: [2015] VSC 357
Decision Date: 1 May 2015

CaseChat Overview and Summary

The case of R v Rapovski was heard in the Supreme Court of Victoria. The accused, Mr Rapovski, was charged with attempted murder. The dispute centred on whether the prosecution could establish a prima facie case for the offence of attempted murder against the defendant. The accused sought to have the charges dismissed on the basis that the prosecution could not prove the necessary intent to kill.

The court was required to determine whether the prosecution had established sufficient evidence to allow the case to proceed. Specifically, the court needed to assess whether the prosecution had demonstrated that the accused intended to kill the victim at the time of the alleged offence. The court examined the evidence provided, including witness testimonies and other relevant material, to determine if there was enough evidence to support the charge of attempted murder.

In its reasoning, the court found that the prosecution had presented evidence that the accused intended to kill the victim. The court noted that the accused's actions, including the preparation and execution of the attack, demonstrated a clear intention to cause fatal harm. The court held that the prosecution had established a prima facie case, and therefore, the charges should proceed to trial. The application to dismiss the charges was refused.

The court ordered that the case proceed to trial. The accused was to remain on bail, subject to the usual conditions, pending the outcome of the trial. The decision underscored the importance of proving intent in cases of attempted murder, and highlighted the court's role in ensuring that the prosecution has sufficient evidence to support the charges before they are allowed to proceed to trial.

Orders