Trajovski v The Queen - [2017] NSWDC 325

District Court

New South Wales

Medium Neutral Citation: Trajovski v R [2017] NSWDC 325
Hearing dates: 24 – 26 July 2017
Date of orders: 26 July 2017
Decision date: 26 July 2017
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Appeal is dismissed

Catchwords: CRIME – APPEAL FROM LOCAL COURT – 2 offences of recovering stolen goods – Evidence – Whether Crown could call rebuttal evidence when, for the first time, appellant said in evidence that an item had been lent to him by a neighbour, when prosecution had no notice of such a defence – Coincidence Evidence – Whether fact that 2 different items were stolen from a construction site, with other property, required prosecution to serve a notice under Evidence Act 1995 s98(1)(a) – Recent possession of stolen property
Legislation Cited: Crimes Act 1900
Evidence Act 1995
Cases Cited: Bruce v R (1987) 74 ALR 219
Charara v R [2006] 164 A Crim R 39; [2006] NSWCCA 244
McCarthy v R (1993) 71 A Crim R 395
Parker v R [1982] 41 ALR 576
R v Bellamy (1981) 3 A Crim R 432
R v Cross (1995) 84 ACrimR 242
R v Rice [1963] 1 QB 857
Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406
Shaw v R (1952) 85 CLR 365
The Queen v Chin (1985) 157 CLR 671
Category: Principal judgment
Parties: Mile Trajovski (Appellant)
Regina (Respondent)
Representation: Counsel:
Mr Angelov (Appellant)
Mr Jager (Respondent)

File Number(s): 2014/321028
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

04 November 2016

Before:

Magistrate Milledge

File Number(s):

2014/321028

Judgment

HIS HONOUR: This is an appeal against convictions recorded by Magistrate Milledge sitting in the Downing Centre Local Court on 4 November 2016. The appellant was charged with two offences contrary to s 188(1) of the Crimes Act 1900. The first charge was that between 21 August 2014 and 31 October 2014 at Alexandria the appellant did receive a Makita drop saw, the property of Grant Baxter, which had before then been stolen, and the accused at the time when he received the said property knew the same to have been stolen. The second offence charged was similar. It was that between 21 August 2014 and 31 October 2014 at Alexandria he did receive eight 15 litre Dulux Weathershield paint cans, the property of Serafim De Sousa, which had before then been stolen, and the accused at the time when he received the said property knew the same property to have been stolen.
It is convenient to divide these reasons into two parts, the first part concerns the drop saw.

The drop saw charge

There is no dispute that the drop saw was in fact stolen. The defence admitted, without objection, a statement made by Mr Grant Baxter. It became exhibit 5 in the Local Court. Mr Baxter was, at the relevant time, the owner of a business which was probably incorporated because he also…

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 Trajovski v The Queen

Details

AGLC: Trajovski v The Queen [2017] NSWDC 325
Case: [2017] NSWDC 325
Decision Date: 26 July 2017

CaseChat Overview and Summary

The appellant, Trajovski, was convicted by the Local Court of two offences of recovering stolen goods. He appealed to a higher court, arguing that the Crown should not have been allowed to call rebuttal evidence when he first claimed, during his testimony, that an item had been lent to him by a neighbour. The prosecution had no prior notice of this defence. Additionally, he argued that the prosecution should have served a notice under section 98(1)(a) of the Evidence Act 1995, as the two different items stolen from a construction site, along with other property, constituted coincidence evidence. The appeal was dismissed by the higher court.

The court examined whether the Crown was entitled to call rebuttal evidence when the appellant first mentioned, during his testimony, that an item had been lent to him by a neighbour. The prosecution had no prior notice of this defence. The court also considered whether the prosecution was required to serve a notice under section 98(1)(a) of the Evidence Act 1995, as the two different items stolen from a construction site, along with other property, constituted coincidence evidence.

In dismissing the appeal, the court found that the Crown was entitled to call rebuttal evidence when the appellant first mentioned, during his testimony, that an item had been lent to him by a neighbour. The court held that the prosecution had no prior notice of this defence, and it was permissible for them to call rebuttal evidence to counter this new claim. Furthermore, the court held that the prosecution was not required to serve a notice under section 98(1)(a) of the Evidence Act 1995, as the two different items stolen from a construction site, along with other property, did not constitute coincidence evidence. The court found that the items were stolen from the same location and were part of the same theft, and therefore, did not fall within the scope of section 98(1)(a) of the Evidence Act 1995.

The appeal was dismissed, and the convictions of the appellant were upheld.

Orders

Orders of the court

Appeal is dismissed

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.

Medium Neutral Citation:	Trajovski v R [2017] NSWDC 325
Hearing dates:	24 – 26 July 2017
Date of orders:	26 July 2017
Decision date:	26 July 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal is dismissed
Catchwords:	CRIME – APPEAL FROM LOCAL COURT – 2 offences of recovering stolen goods – Evidence – Whether Crown could call rebuttal evidence when, for the first time, appellant said in evidence that an item had been lent to him by a neighbour, when prosecution had no notice of such a defence – Coincidence Evidence – Whether fact that 2 different items were stolen from a construction site, with other property, required prosecution to serve a notice under Evidence Act 1995 s98(1)(a) – Recent possession of stolen property
Legislation Cited:	Crimes Act 1900 Evidence Act 1995
Cases Cited:	Bruce v R (1987) 74 ALR 219 Charara v R [2006] 164 A Crim R 39; [2006] NSWCCA 244 McCarthy v R (1993) 71 A Crim R 395 Parker v R [1982] 41 ALR 576 R v Bellamy (1981) 3 A Crim R 432 R v Cross (1995) 84 ACrimR 242 R v Rice [1963] 1 QB 857 Saleam v R (1989) 16 NSWLR 14; 39 A Crim R 406 Shaw v R (1952) 85 CLR 365 The Queen v Chin (1985) 157 CLR 671
Category:	Principal judgment
Parties:	Mile Trajovski (Appellant) Regina (Respondent)
Representation:	Counsel: Mr Angelov (Appellant) Mr Jager (Respondent)
File Number(s):	2014/321028
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 04 November 2016 Before: Magistrate Milledge File Number(s): 2014/321028