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Vasilevski v R

Vasilevski v R

Case [2019] NSWCCA 277 22 November 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Vasilevski v R [2019] NSWCCA 277
Hearing dates: 13 September 2019
Date of orders: 22 November 2019
Decision date: 22 November 2019
Before: Bell P, Simpson AJA and Fullerton J
Decision:
1.   Grant leave to appeal conviction.

2.   Appeal dismissed.

3.   Grant leave to appeal aggregate sentence.
4.   Appeal dismissed.
Catchwords:
CRIME – Appeal – Appeal against conviction – Inconsistency of verdicts – Unreasonable verdict – Whether inconsistency as a result of acquittal on 7 counts and conviction on 2 counts – Whether inconsistency between acquittal on a particular count and conviction on count of persuading a witness to withhold “true evidence” – Identification of the “true evidence” withheld
CRIME – Appeal – Application for leave to appeal against sentence – Manifest excess – Whether aggregate sentence was unreasonable or plainly unjust
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 53, 53A
Crimes Act 1900 (NSW) ss 61I, 61HE(3), 323
Crimes Act 1914 (Cth) s 37
Criminal Appeal Act 1912 (NSW) ss 5(1), 6(1)
Criminal Procedure Act 1986 (NSW) ss 11, 166
Interpretation Act 1987 (NSW) s 35(2)
Criminal Code (Cth) s 127(1)
Criminal Code (Qld) ss 668E(1), 668E(1A)
Criminal Appeal Rules (NSW) r 4
Cases Cited: Evans v R [2017] NSWCCA 281
Hili v R (2010) 242 CLR 520; [2010] HCA 45
House v R (1936) 55 CLR 499; [1936] HCA 40
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Jones v R (1997) 191 CLR 439; [1997] HCA 56
Libke v R (2007) 230 CLR 559; [2007] HCA 30
M v R (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35
MFA v R (2002) 213 CLR 606; [2002] HCA 53
Morris v R (1987) 163 CLR 454; [1987] HCA 50
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Burton [2008] NSWCCA 128
R v Danahay [1993] 1 Qd R 271
R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
R v Lansdell (NSW Court of Criminal Appeal, 22 May 1995, unrep)
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Pham [2015] HCA 39
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Category: Principal judgment
Parties: Steve Vasilevski (Applicant)
Crown (Respondent)
Representation:
Counsel:
G D Wendler (Applicant)
K Jeffreys (Respondent)
Solicitors:
Nicopoulos Sabbagh Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/381434
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), and subject to the qualifications therein, a person shall not publish any matter which identifies, or which is likely to lead to the identification of, the complainant in these proceedings.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

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 Vasilevski v R

Details

AGLC: Vasilevski v R [2019] NSWCCA 277
Case: [2019] NSWCCA 277
Decision Date: 22 November 2019

CaseChat Overview and Summary

The appeal in Vasilevski v R was brought by the respondent, the Crown, against the conviction and sentence of the appellant. The appellant had been found guilty of two counts of perverting the course of justice and acquitted of seven other counts. The appeal challenged the inconsistency of the verdicts, contending that the acquittal on seven counts and the conviction on two counts were unreasonable, particularly in light of the appellant's acquittal on a specific count and his conviction on a count of persuading a witness to withhold "true evidence". The Crown also sought leave to appeal against the sentence, arguing that the aggregate sentence was manifestly excessive and plainly unjust.

The legal issues before the court involved the principles governing the consistency of verdicts in criminal cases, particularly the circumstances in which a jury's acquittal on some counts while convicting on others might be deemed inconsistent. The court had to determine whether the acquittal on specific counts rendered the conviction on other counts unreasonable. Additionally, the court examined whether the conviction for persuading a witness to withhold "true evidence" was inconsistent with the acquittal on the count that involved the same witness and evidence. The appeal against the sentence required the court to assess whether the sentence imposed was manifestly excessive or plainly unjust.

The court examined the evidence and the jury's reasoning in reaching its verdicts. It concluded that the jury's decision to acquit on some counts and convict on others was not unreasonable, as there were distinguishable facts and circumstances for each count. The court found that the acquittal on a particular count did not necessarily conflict with the conviction on the count of witness persuasion, as the "true evidence" referred to in the latter count was not the same as that in the former. Regarding the sentence, the court determined that while the sentence was substantial, it was not manifestly excessive or plainly unjust, taking into account the seriousness of the offences and the need for deterrence and denunciation.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed. The court upheld the original conviction and sentence, affirming the jury's right to convict on some counts and acquit on others based on the evidence presented.

Orders