R v Vulovic (No. 3) - [2012] NSWSC 211

Supreme Court

New South Wales

Medium Neutral Citation: R v Vulovic (No. 3) [2012] NSWSC 211
Hearing dates: 23 November 2011 - 8 December 2011
Decision date: 15 March 2012
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The warnings sought by the Accused under s.165 Evidence Act 1995 concerning the evidence of Mr Plavsic are declined

Catchwords: CRIMINAL LAW - murder trial - application for warnings under s.165 Evidence Act 1995 - three persons in house: the Accused, the deceased and the principal Crown witness - deceased stabbed - defence case that principal Crown witness must have been the killer - s.165(1)(d) unreliability direction sought - further s.165 unreliability direction sought based upon intoxication of principal Crown witness - whether matters which might adversely affect reliability of evidence of Crown witness would readily be understood and appreciated by jury - whether jury might be misled in making assessment or evaluation of evidence without s.165 warning - s.165 warnings declined
Legislation Cited: Evidence Act 1995
Cases Cited: R v Taranto; R v Freeman [1999] NSWCCA 396
R v Baartman [2000] NSWCCA 298
R v Stewart [2001] NSWCCA 260; 52 NSWLR 301
GAR v R (No. 2) [2010] NSWCCA 164
Kutschera v R [2010] NSWCCA 150
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Milija Vulovic (Accused)
Representation: Mr T R Bailey (Crown)
Mr GA Brady; Mr H Chiu (Accused)
Director of Public Prosecutions (Crown)
Nyman Gibson Stewart (Accused)

File Number(s): 2009/250160
Publication restriction: ---

Judgment (on application by Accused for warnings under s.165 Evidence Act 1995 concerning the evidence of Mr Plavsic)

JOHNSON J: At the conclusion of the evidence and before closing addresses, Mr Brady, counsel for the Accused, applied for a warning to be given to the jury under s.165(1)(d) Evidence Act 1995 in the course of the summing up, concerning the evidence of Mr llija Plavsic (MFI15; T413-417).

It was submitted that the evidence of Mr Plavsic may be unreliable as it was evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings: s.165(1)(d).

Further, it was submitted that an unreliable evidence warning under s. 165(1) should be given concerning the evidence of Mr Plavsic having regard to his state of intoxication.

On 5 December 2011, I indicated that I was not then persuaded that a warning under s.165(1)(d) ought be given or that a s.165 warning ought be given on the issue of intoxication (T423-424). This judgment contains my reasons for reaching those conclusions.

The Evidence of Mr Plavsic in the Trial

The Accused was indicted for the murder of Tony Darkovski on 12 November 2009. It was the Crown case that, on that day, the Accused, the deceased and Mr Plavsic were present in a house at Canley Heights. The deceased was stabbed to death that day.

Mr Plavsic gave evidence that it was the Accused who stabbed the deceased.

The Accused gave…

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 Vulovic (No. 3)

Details

AGLC: R v Vulovic (No. 3) [2012] NSWSC 211
Case: [2012] NSWSC 211
Decision Date: 15 March 2012

CaseChat Overview and Summary

The defendant in this matter, Vulovic, was on trial for the murder of a woman who was stabbed to death in a house where three people were present: the defendant, the deceased, and a principal Crown witness. The deceased's death occurred under contentious circumstances, with the defence arguing that the principal Crown witness was likely the murderer. The Crown, however, maintained that Vulovic was responsible for the crime. The matter came before the court on an application for warnings to be given to the jury under section 165 of the Evidence Act 1995 regarding the potential unreliability of the principal Crown witness's evidence. The defence sought two warnings: one based on the witness's intoxication and another due to the witness's potential unreliability.

The court was required to determine whether the matters that might adversely affect the reliability of the principal Crown witness's evidence would be readily understood and appreciated by the jury. Furthermore, the court needed to consider whether the jury might be misled in making its assessment or evaluation of the evidence without receiving a warning under section 165. The defence argued that the intoxication of the witness and the potential for other factors to affect the reliability of the witness's evidence warranted a warning to the jury. The Crown, on the other hand, opposed the warnings, arguing that the matters in question would be apparent to the jury without any additional direction.

The court declined to issue the warnings under section 165 of the Evidence Act 1995. The court found that the matters that might affect the reliability of the principal Crown witness's evidence would be readily understood and appreciated by the jury. The court was satisfied that the jury would not be misled in making its assessment or evaluation of the evidence without a warning under section 165. The court held that the intoxication of the witness and any other factors that might affect the reliability of the witness's evidence were matters that would be apparent to the jury without any additional direction. Consequently, the court declined to issue the warnings sought by the defence.

Orders