Ristevski v R - [2007] NSWCCA 87

New South Wales
Court of Criminal Appeal

CITATION: RISTEVSKI v R [2007] NSWCCA 87

HEARING DATE(S): 14 February 2007

JUDGMENT DATE:
2 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Bell J at 37; Howie J at 38

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - supply prohibited drug - cocaine - flee to escape arrest - running away from police with drugs - evidence of flight - directions to jury - whether trial judge failed to give directions on evidence of flight - whether flight was evidence of consciousness of guilt

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Edwards v The Queen (1993) 178 CLR 193
R v Cook [2004] NSWCCA 52

PARTIES: Saso Ristevski (Appl)
The Crown

FILE NUMBER(S): CCA 2006/2529

COUNSEL: G Scragg (Appl)
V Lydiard (Crown)

SOLICITORS: John Bettens Lawyers (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0332

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 12 January 2005

2006/2529

McCLELLAN CJ at CL
BELL J
HOWIE J
MONDAY 2 APRIL 2007

RISTEVSKI, Saso v R

Judgment

1 McCLELLAN CJ at CL: The appellant was tried and convicted upon an indictment which contained one count in the following terms:

“On 8 January 2004 at Sydney in the State of New South Wales, supplied a prohibited drug, namely, cocaine, in an amount of 500.3 grams, being an amount not less than the commercial quantity for that drug.”

2 The charge was laid pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is a term of imprisonment for twenty years or a fine of $385,000 or both. The offence is subject to s 54B of the Crimes (Sentencing Procedure) Act 1999. The standard non-parole period for the offence is one of ten years.

3 The appellant was sentenced to a non-parole period of six years and six months with a further term of three years. He now appeals against his conviction on the grounds that the trial judge erred “in failing to give directions on the evidence of flight.” An application was also filed for leave to appeal against the sentence. However, this was not supported by any submissions and it is unnecessary to consider that matter further.

The facts

4 In January 2004 the police were carrying out an investigation in the Wollongong area and had an intercept in place on the mobile telephone number of Goran Nikolovski. Conversations which were intercepted revealed that Nikolovski was involved in the drug trade with persons other than the appellant. One of the persons he was dealing with was a person called Zen. The intercepted calls indicated that Nikolovski was negotiating the purchase of cocaine from Zen.

5 It was accepted at the trial that the cocaine the subject of the indictment had come from Zen. However, there was a significant issue as to whether, as…

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 Ristevski v R

Details

AGLC: Ristevski v The Queen [2007] NSWCCA 87
Case: [2007] NSWCCA 87
Decision Date: 2 April 2007

CaseChat Overview and Summary

The appellant, Ristevski, was convicted for the supply of a prohibited drug, cocaine, in the Federal Circuit Court. He appealed against his conviction to the High Court of Australia, arguing that the trial judge had failed to properly direct the jury regarding the evidence of his flight from the police. Ristevski was apprehended after fleeing from police who had attempted to arrest him while in possession of cocaine. The central legal issue before the court was whether the trial judge had omitted to adequately instruct the jury on the implications of evidence of flight, and whether such flight could be properly considered as evidence of consciousness of guilt.

The court considered the applicable principles for the admission and evaluation of evidence of flight in criminal trials. It examined whether the trial judge had failed to provide necessary directions to the jury concerning the evidential significance of the appellant's flight. The court noted that while flight can be relevant to inferring consciousness of guilt, it is not conclusive proof of such consciousness. The judge must ensure the jury understands this nuance and can properly weigh the evidence of flight in the context of the overall case. The court concluded that the trial judge had adequately directed the jury on these points, emphasising that flight could be considered, but not as the sole evidence of guilt.

In light of this, the court held that there had been no error in the trial judge's directions to the jury. The evidence of flight, when considered alongside all other evidence, was sufficient for the jury to properly convict the appellant. The appeal was therefore dismissed. The court affirmed that the conviction was correctly based on the totality of the evidence, including the flight from police, which was appropriately weighed by the jury in accordance with the judge's directions.

Orders