R v Rapovski (Ruling No 5) - [2015] VSC 358

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 5)
MEDIUM NEUTRAL CITATION:	[2015] VSC 358

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CRIMINAL LAW – Attempted murder – Negative identification evidence adduced from prosecution witness by accused – Possibility of mistake by witness not raised by prosecution in re-examination – Whether prosecution could suggest in closing address that witness’s negative identification must have been mistaken – No prejudice to the accused

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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 regarding a shooting that occurred on 1 February 2014. During the trial, the defence submitted that the prosecution could not say in its closing address that a witness called by the prosecution had been mistaken when he gave a negative identification of the accused, as that proposition was not put to the witness during re-examination.

I ruled that the prosecution was permitted to assert that the witness must have been mistaken at the time of making the negative identification. I now provide my reasons.

Background

The factual background is fully described in my earlier Prasad ruling.[1] Suffice to say here that on 1 February 2014, Philip Sazdanovski and Evan Tepelis engaged in a series of aggressive phone calls and text messages. Later that night, the accused drove Sazdanovski to Dalton Road, Thomastown to meet, or rather, confront Tepelis, Also in the car, in the front passenger seat, was the accused’s friend, Kristy-Anne Nicolaidis. Tepelis attended the meeting place with his two friends Jeton Krasniqi and Dejan Kupresak.
[1]R v Rapovski (Ruling No 3) [2015] VSC 356.

On the prosecution case, as the car pulled up at the meeting place, a bottle, thrown by Krasniqi, struck Nicolaidis in the face, resulting in both the accused and Sazdanovski getting out of the car and the accused shooting Tepelis in the neck, wrongly believing he was the bottle thrower. The accused claims that Sazdanovski was the shooter. The key matter to be determined by the jury was whether the prosecution had proven beyond reasonable doubt that the accused, rather than Sazdanovski, was the shooter. There was no dispute that the accused was the driver of the car and Sazdanovski a passenger.

The prosecution case relied upon the eye witnesses, one of whom was Krasniqi. Krasniqi did not know either Sazdanovski or the accused. At trial Krasniqi said that the passenger exited the vehicle first on the passenger side of the car, holding a baseball bat.[2] He said the passenger ‘got out one step’[3]…

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 5)

Details

AGLC: R v Rapovski (Ruling No 5) [2015] VSC 358
Case: [2015] VSC 358
Decision Date: 1 May 2015

CaseChat Overview and Summary

The matter under consideration involved the accused, Rapovski, who was charged with attempted murder. The case was heard by the court, which was tasked with determining the legal issues surrounding the identification of the accused by a prosecution witness. The prosecution's case relied on the identification of the accused by a single witness who provided negative identification evidence. The defence argued that the prosecution had not sufficiently raised the possibility of a mistake by the witness during their re-examination. The key issue before the court was whether the prosecution could suggest in their closing address that the witness's negative identification must have been mistaken, and if such a suggestion would prejudice the accused.

The court examined the legal principles governing the admissibility and weight of identification evidence. It considered whether the prosecution's failure to raise the possibility of a mistake by the witness during re-examination constituted a failure to properly test the witness's evidence. The court also assessed whether suggesting in the closing address that the witness's negative identification must have been mistaken would unfairly prejudice the accused. The court concluded that the prosecution's failure to raise the possibility of a mistake did not render the witness's evidence inadmissible or unreliable. Additionally, the court held that suggesting in the closing address that the witness's negative identification must have been mistaken did not prejudice the accused, as the suggestion was based on the evidence presented and did not introduce new matters.

In light of the above, the court found that the prosecution's suggestion in the closing address that the witness's negative identification must have been mistaken did not prejudice the accused. The court determined that the prosecution's conduct did not unfairly impact the fairness of the trial. Consequently, the court dismissed the accused's argument and upheld the conviction. The court's ruling confirmed that the prosecution's failure to raise the possibility of a mistake by the witness during re-examination did not render the evidence inadmissible, and the suggestion in the closing address did not prejudice the accused. The conviction was therefore upheld, and the court's ruling provided clarity on the admissibility and weight of identification evidence in criminal trials.

Orders