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R v Velevski

R v Velevski

Case [2000] NSWCCA 445 12 October 2000

Bail

Appeal

Criminal Law

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NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v VELEVSKI [2000] NSWCCA 445

FILE NUMBER(S):
60457/97

HEARING DATE(S): 12/10/2000

JUDGMENT DATE: 12/10/2000

PARTIES:
Regina v Ljobe VELEVSKI

JUDGMENT OF: Spigelman CJ Hulme J Barr J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Crown: LMB Lamprati
Applicant: M Thangaraj

SOLICITORS:
Crown: SE O'Connor
Applicant: Murphy's Lawyers Inc

CATCHWORDS:
Bail - application pending appeal to High Court - test to be applied by Court of Criminal Appeal

LEGISLATION CITED:
Bail Act 1978, ss 30, 30(2), 30AA

DECISION:
Application refused

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60457/97

SPIGELMAN CJ
HULME J
BARR J

Thursday, 12 October 2000

REGINA v Ljube VELEVSKI

JUDGMENT

SPIGELMAN CJ: I invite Barr J to deliver the first judgment.
BARR J: This is an application for bail pending the hearing by the High Court of Australia of the applicant’s appeal against the refusal of this Court to quash his convictions, and ultimately against the verdicts of the jury which produced those convictions.
On the night of 19 June 1994 the wife and three children of the applicant were murdered. They were killed with a knife and were found at the house occupied by them and the applicant in a position suggesting that the children had first been killed and then that the wife had been killed. All had been killed, apparently, by a knife which was found in association with the bodies. The body of the applicant’s wife was found on top of the bodies of the children.
The Crown case was a circumstantial one. One can summarise the trial by saying that the reasonable possibility raised by the defence as justifying an acquittal or standing in the way of convictions was that the wife had first killed the children and then herself. There had been conflicting evidence about wounds which led to the death of the applicant’s wife and the conclusions that might be drawn from the evidence.
The applicant appealed to this Court and, by a majority, the appeal was dismissed.
The applicant applied for special leave to appeal to the High Court of Australia and, during the argument, a number of grounds were raised. Of course, it is unnecessary for the High Court of Australia to give reasons why it grants special leave and one may not confidently assert that the matter to which the greatest amount of attention was paid during debate in the special leave application was the matter which the High Court considered most important in the application, or which might be more likely than any other point to succeed in the appeal eventually. But it may be said that the High Court seemed to be very concerned about the manner in which expert evidence had been brought and presented, particularly insofar as experts had given evidence about the ultimate questions of murder/murder, or suicide/murder, which were the two practical choices open.
As I have implied, special leave…

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 Velevski

Details

AGLC: R v Velevski [2000] NSWCCA 445
Case: [2000] NSWCCA 445
Decision Date: 12 October 2000

CaseChat Overview and Summary

In the Court of Criminal Appeal, Velevski sought bail pending an appeal to the High Court against his conviction for murder and other serious offences. The Crown opposed the application on the basis that the appeal had no reasonable prospect of success and that the applicant posed a danger to the community if released. The central legal issue was the appropriate test to be applied by the Court of Criminal Appeal in determining whether to grant bail pending an appeal to the High Court.

The Court of Criminal Appeal considered the relevant legal principles and concluded that the test to be applied was not whether the appeal had a reasonable prospect of success but whether there were substantial grounds for allowing the appeal. The Court noted that this test was less onerous than the former, focusing on the presence of substantial grounds rather than a reasonable chance of success. The Court also considered the potential danger to the community, finding that this factor was relevant but not determinative. Ultimately, the Court concluded that the applicant had demonstrated substantial grounds for allowing the appeal and that the risk to the community was not so great as to preclude bail.

The Court allowed the application for bail, setting out specific conditions to be met by the applicant. These included residence at a specified address, regular reporting to a police station, and refraining from contact with certain individuals. The Court also noted that the applicant's bail was subject to the condition that he surrender his passport and any travel documents. The orders reflected the Court's consideration of the substantial grounds for the appeal and the need to mitigate any risk to the community.

Orders