R v Zdravkovic - [2020] ACTSC 251

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Zdravkovic
Citation:	[2020] ACTSC 251
Hearing Dates:	14 – 18 September 2020
DecisionDate:	16 September 2020
Reasons Date:	18 September 2020
Before:	Mossop J
Decision:	I rule that the evidence does not disclose any matter that justifies leaving to the jury the matter of self-defence in relation to the possession of the firearm or the knuckledusters the subject of counts 1 and 2: see [49]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury trial – whether self-defence should be left to the jury – whether the Firearms Act 1996 (ACT) and the Prohibited Weapons Act 1996 (ACT) impliedly repeal s 42 of the Criminal Code 2002 (ACT) – they do not – whether the evidence is capable of establishing a reasonable possibility that the requirements of s 42 were met – no evidence of an imminent threat – self-defence not left to the jury
Legislation Cited:	Crimes Act 1900 (NSW), s 418 Criminal Code 2002 (ACT), ss 8, 42, 58, Ch 2 Evidence Act 2011 (ACT), s 192A Firearms Act 1996 (ACT), ss 5, 16AA, 23, 43, 58, 61, 62 Prohibited Weapons Act 1996 (ACT), s 5
Cases Cited:	R v Burgess [2005] NSWCCA 52; 152 A Crim R 100 Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 R v PRFN [2000] NSWCCA 230 R v Rogers (1996) 86 A Crim R 542 Viro v The Queen (1978) 141 CLR 88 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
Parties:	The Queen (Crown) Peter Zdravkovic (Accused)
Representation:	Counsel P Dixon (Crown) J Moffett (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused)
File Numbers:	SCC 302 of 2018 SCC 304 of 2018

MOSSOP J:

Introduction

The accused faced two counts on an indictment dated 23 March 2020. The first alleged that he possessed a firearm that he was not authorised to possess under the Firearms Act 1996 (ACT), contrary to s 43(1)(a)(iii). The second alleged that he possessed a prohibited weapon, being some knuckledusters, that he was not authorised to possess under the Prohibited Weapons Act 1996 (ACT), contrary to s 5 of that Act.

The proceedings were conducted before a jury. At the commencement of the case I was asked by the Crown to make an advance ruling under s 192A of the Evidence Act 2011 (ACT) that evidence relating to self-defence was not admissible at the trial. That was on the basis that s 42 of the Criminal Code2002 (ACT) could not be raised in relation to charges of possessing a firearm contrary to s 43(1)(a)(iii) of the Firearms Act or possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act.

For reasons I gave at the time, I declined to make such a ruling. Rather, I allowed the evidence to…

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 Zdravkovic

Details

AGLC: R v Zdravkovic [2020] ACTSC 251
Case: [2020] ACTSC 251
Decision Date: 16 September 2020

CaseChat Overview and Summary

The case of R v Zdravkovic was heard in the Supreme Court of the Australian Capital Territory. The dispute involved the defendant, Zdravkovic, who was charged with possession of a firearm and knuckledusters under the Firearms Act 1996 (ACT) and the Prohibited Weapons Act 1996 (ACT). The central legal issue was whether the evidence presented in the case was sufficient to leave the question of self-defence to the jury, given the strict statutory requirements outlined in section 42 of the Criminal Code 2002 (ACT). Additionally, the court had to determine whether the Firearms Act 1996 (ACT) and the Prohibited Weapons Act 1996 (ACT) impliedly repealed section 42 of the Criminal Code 2002 (ACT). The court found that the Acts did not impliedly repeal section 42 and that the evidence did not support a reasonable possibility that the requirements of section 42 were met. Consequently, the court ruled that the matter of self-defence should not be left to the jury.

The court examined whether the evidence demonstrated an imminent threat that could justify Zdravkovic's possession of the firearm and knuckledusters under the doctrine of self-defence. The court found that there was no evidence of such an imminent threat. Therefore, the court concluded that the evidence did not establish a reasonable possibility that the requirements of section 42 of the Criminal Code 2002 (ACT) were satisfied. Given this, the judge ruled that self-defence should not be left to the jury, and the case proceeded without that consideration. The court held that the evidence did not disclose any matter that justified leaving the matter of self-defence to the jury in relation to the possession of the firearm or the knuckledusters the subject of counts 1 and 2. This ruling ensured that the trial would focus on the statutory charges without the distraction of an unestablished defence.

Orders

Orders of the court

I rule that the evidence does not disclose any matter that justifies leaving to the jury the matter of self-defence in relation to the possession of the firearm or the knuckledusters the subject of counts 1 and 2: see [49]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.