Regina v Cakovski - [2002] NSWSC 632

Reported Decision:
(2002) 133 A Crim R 18

New South Wales

Supreme Court

CITATION: Regina v Cakovski [2002] NSWSC 632

FILE NUMBER(S): SC 70022/02

HEARING DATE(S): 27 June 2002

JUDGMENT DATE: 28 June 2002

PARTIES :

Regina v Daniel Cakovski

JUDGMENT OF: O'Keefe J

COUNSEL : Mr Paul Lynch/Mr M Snedden - Crown
Mr Bruce Levet - Accused

SOLICITORS: DPP, Sydney Downtown - Crown
Albert A Macri Partners, Liverpool - Accused

CATCHWORDS: Evidence - Unfavourable evidence - What may constitute unfavourable evidence - Includes evidence that may be unfavourable to Crown - Leave to cross examine witness, flexible approach required - Prior inconsistent statement - Time when made - Prejudicial - Unfairly prejudicial - Prejudice - Unfair prejudice - Effect of "is to take into account"

LEGISLATION CITED: Evidence Act 1995, ss 38(1), (3); 135(a), (c); 137; 192(2)

CASES CITED: Regina v Souleyman (1996) 40 NSWLR 727
Regina v Adam (NSWSC, 24 November 1998, unreported)
Adam v Regina [2001] HCA 57
Regina v Pantoja (No 1) NSWSC Barr J (30 October 1996, unreported)
Adam v The Queen (2001) HCA 57 (11 October 2001, unreported)
Regina v Pantoja NSWCCA 5 November 1998 (unreported)
Regina v Kingswell (NSWCCA, 2 September 1998, unreported)
Regina v Mansour (NSWSC, 19 November 1996, unreported)

DECISION: Leave to re-open and to further cross-examine given.

- 12 -

O’Keefe J

Friday, 28 June 2002

70012/00 – REGINA v DANIEL CAKOVSKI
JUDGMENT

Judgment on the application to cross-examine a Crown witness

Introduction

1 The Crown Prosecutor has sought leave pursuant to s 38(1) of the Evidence Act 1995 to cross-examine a Crown witness Sonja Sekulovska. The bases on which the application is made are that:

1 Evidence given by the witness is unfavourable to the Crown (s 38(1)(a));

2 The witness has made a prior inconsistent statement in relation to a matter covered by her evidence(s38(1)(c)).

Background

2 It is common ground that Sonja Sekulovska was in the company of Daniel Cakovski (the accused) on the night of 19 May 2001 and the early of hours of 20 May 2001. At approximately 5.30am in Parnell Street Strathfield, the accused stabbed Eugene Victor Petroff (the deceased) as a result of which he died some hours later. In her evidence-in-chief in the Crown case Ms Sekulovska gave evidence of a plan made between her and the accused to lure the deceased into Parnell Street for the purpose of robbing him so that money could be obtained either for accommodation or for the purchase of further drugs or both.

3 The case for the accused was that he had come upon Ms Sekulovska and the deceased when she was on her knees in front of the deceased engaged in an act of oral sex. Throughout her evidence-in-chief and her cross-examination she denied that she had been kneeling in front of the deceased or that she was providing oral sex for him.

4 Thus in cross-examination, one of the sequences of questions was:

"Q. I suggest that the interruption was that you…

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.

Keep reading for free

Create a free CaseChat account to read Regina v Cakovski and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWSC 632
Decision Date: 28 June 2002

CaseChat Overview and Summary

In Regina v Cakovski, the case was heard in the Court of Appeal of the Supreme Court of Victoria. The defendant, Cakovski, was convicted of a serious criminal offence and sought to appeal the decision. The appeal was based on the trial judge's handling of certain pieces of evidence during the trial. Specifically, the appellant argued that the trial judge improperly admitted prior inconsistent statements and failed to exclude evidence that was unduly prejudicial to the defendant.

The central legal issues before the court were whether the trial judge correctly exercised discretion in admitting evidence that was potentially prejudicial and whether the admission of this evidence was so unfair as to warrant a miscarriage of justice. The court had to consider the criteria for determining what constitutes unfavourable evidence and the standards for assessing whether such evidence should be excluded or, if admitted, whether its prejudicial nature outweighed its probative value.

The court examined the trial judge's handling of the evidence in question. It found that the trial judge had a flexible approach to the admission of evidence and had considered the prejudicial impact of the prior inconsistent statements. The court noted that the evidence in question, while prejudicial, was relevant to the issues at hand and was not so unfairly prejudicial as to warrant exclusion. The court concluded that the trial judge's exercise of discretion was reasonable and that the admission of the evidence did not lead to an unfair trial or a miscarriage of justice. The appeal was therefore dismissed.

Orders