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Rapovski v The Queen

Rapovski v The Queen

Case [2017] VSCA 175 30 June 2017

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0122

DENIS RAPOVSKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and PRIEST JJA, and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 May 2017
DATE OF JUDGMENT:	30 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 175
RULING APPEALED FROM:	R v Rapovski (Unreported, Supreme Court of Victoria, Justice Beale, 11 May 2015)

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CRIMINAL LAW — Conviction — Attempted murder — Application for extension of time — Application for leave to appeal — Whether verdict unreasonable or cannot be supported having regard to the evidence — Victim shot — Defence hypothesis that principal prosecution witness fired the gun — ‘No case’ submission rejected — Prasad direction given — Extension of time granted — Leave to appeal granted — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Stephen Andrianakis & Associates
For the Respondent	Ms K E Judd QC	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA:

I have had the considerable advantage of reading in draft the reasons for judgment of Priest JA and Croucher AJA. I agree with their Honours’ ultimate conclusion that the applicant’s conviction was not unsafe and unsatisfactory. I would grant leave to extend time, grant leave to appeal, but dismiss the appeal.

The question to be decided, on independent review of the evidence, but recognising that an appellate court is removed from the immediacy of a trial, with all its advantages in the assessment of witnesses by the jury, is whether the jury must, not might, have had a reasonable doubt as to the prisoner’s guilt.

In the present case, as the comprehensive reasons of both Priest JA and Croucher AJA demonstrate in their different ways, the jury might have had a reasonable doubt about the applicant’s guilt. A plausible argument was able to be advanced that Sazdanovski, not the applicant, had fired the weapon and thus injured the victim. But in my view, for all that the evidence of the principal witnesses diverged in detail, or was affected in one case by alleged, but transient, memory loss, the evidence in its totality left it well open to the jury to find the applicant guilty. That is, it could not be said that the jury must have acquitted the applicant.

As the reasons of Priest JA and Croucher AJA disclose, there was both direct evidence (not only the evidence of Sazdanovski) that the applicant had fired the weapon, and also a body of circumstantial evidence drawn from the accounts of other persons who were at the scene at the time — such persons having no apparent axe to grind in identifying who it was who had fired the shot — which stood against the applicant. To conclude that the prosecution must, not might, have failed to exclude a reasonable inference consistent with the applicant’s innocence is not a conclusion which I could reach. In any event, the prosecution case did not rise or fall on inferential reasoning.

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 Rapovski v The Queen

Details

AGLC: Rapovski v The Queen [2017] VSCA 175
Case: [2017] VSCA 175
Decision Date: 30 June 2017

CaseChat Overview and Summary

The case of Rapovski v The Queen involved the respondent, the Crown, prosecuting the appellant, Rapovski, for the crime of attempted murder. The appellant applied for an extension of time to lodge his notice of appeal and for leave to appeal against his conviction. The primary dispute centred on the sufficiency of the evidence to support the jury's verdict of guilty and the appellant's alternative hypothesis that the principal prosecution witness, rather than the appellant, was responsible for firing the gun that injured the victim. The case was heard in the High Court of Australia.

The legal issues before the court were whether the verdict of the jury was unreasonable or could not be supported considering the evidence, and whether the trial judge erred in not accepting the appellant's hypothesis as a viable alternative explanation for the events. The court also needed to determine if the appellant's submission that there was no case to answer was correctly rejected by the trial judge. Furthermore, the court examined whether the trial judge's direction to the jury, known as a Prasad direction, was appropriate in the circumstances.

In its judgment, the court found that the evidence was sufficient to support the jury's verdict, and the appellant's hypothesis did not provide a reasonable doubt as to his guilt. The court held that the trial judge's decision to reject the appellant's no-case submission and to give a Prasad direction was correct. The court granted the appellant an extension of time to lodge his notice of appeal and leave to appeal against his conviction. However, upon considering the appeal, the court dismissed it, upholding the appellant's conviction for attempted murder.

Orders