Stojcevski v The Queen - [2012] NSWCCA 27

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Stojcevski v R [2012] NSWCCA 27
Hearing dates: 1 February 2012
Decision date: 05 March 2012
Before: Whealy JA at [1]
R.S. Hulme J at [59]
Hidden J at [60]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW - Appeal - conviction - reliability of witnesses - whether the trial judge erred in failing to warn the jury that the witness' evidence might be unreliable - s 165 Evidence Act 1995 - whether the trial judge erred in failing to provide reasons concerning the s 165 jury direction.
Legislation Cited: Criminal Appeal Act 1912 (NSW) - s 6(1)
Evidence Act 1995 (NSW) - s 165
Cases Cited: - R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321
Category: Principal judgment
Parties: Steven Stojcevski (Appellant)
Crown (Respondent)
Representation: Counsel:
G.A. Brady (Appellant)
Ms T.L. Smith (Crown)
Solicitors:
Nyman Gibson Stewart (Appellant)
S. Kavanagh, Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/064171
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-11-12 00:00:00

Before:

Conlon DCJ

File Number(s):

2010/064171

Judgment

WHEALY JA : The appellant faced trial by jury on an indictment that charged that:

"On 11 March 2010 at Coniston in the State of New South Wales, [he], being armed with an offensive weapon, namely a piece of timber and a knife, robbed Geoffrey Lennox of cash consisting of notes and coins the property of Geoffrey Lennox."

The trial was held in Wollongong before his Honour Judge Conlon SC (the Trial Judge) and a jury of twelve. There was no issue at trial that Mr Lennox, who was a newsagent at Coniston, had been set upon in the early hours of the morning by an intruder wearing a balaclava, threatened, struck on the head with a piece of wood or a bat and robbed of about $80. The sole issue at trial was whether the appellant was the intruder and assailant.

On 2 September 2010, the jury returned with a verdict of guilty. The appellant was sentenced on 12 November 2010 to a non-parole period of two years and six months, with an additional term of two years to expire on 11 September 2014. The sentencing was backdated to commence at the time the appellant was arrested and charged on 12 March 2010. The appellant has not sought leave to appeal against the sentence imposed on him but has brought an appeal against his conviction.

There is a single ground of appeal, as follows:

"The Trial Judge erred in his approach to the application for a direction under s 165 of the Evidence Act , that the evidence of Craig Ceely may be unreliable, in that the Trial Judge:

a) failed to give adequate reasons for his refusal to give such a direction; and

b) failed to give the direction to the jury."

Factual background

The nature of the trial, the evidence and the issues which arose require some detailed analysis. The victim, Mr Lennox, as he normally did,…

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 Stojcevski v The Queen

Details

AGLC: Stojcevski v The Queen [2012] NSWCCA 27
Case: [2012] NSWCCA 27
Decision Date: 05 March 2012

CaseChat Overview and Summary

Stojcevski appealed against his conviction for various criminal offences, arguing that the trial judge erred in failing to warn the jury that a key witness' evidence might be unreliable, and in not providing reasons for the jury direction under section 165 of the Evidence Act 1995. The central issue was whether the trial judge's failure to warn the jury about the potential unreliability of a witness's testimony, and the omission to provide reasons for the jury direction, constituted errors that could have affected the outcome of the trial. The court needed to determine if these errors were significant enough to warrant a new trial or if they were harmless.

The court found that the trial judge did not err in failing to warn the jury about the potential unreliability of the witness's evidence. The court held that the judge's decision not to give a warning was appropriate as there was no compelling reason to doubt the witness's credibility or reliability. Additionally, the court concluded that the absence of reasons for the jury direction under section 165 did not constitute a significant error, as the jury had been properly directed on the relevant law and the evidence. The court emphasised that the trial judge's decision not to provide detailed reasons was within their discretion and did not prejudice the fairness of the trial.

The appeal was dismissed. The court held that the trial judge's omissions did not undermine the conviction, and there was no miscarriage of justice that would warrant a new trial. The court further held that the evidence against Stojcevski was substantial and his conviction was safe and satisfactory. Therefore, the appeal was unsuccessful, and Stojcevski's convictions were upheld.

Orders