Velevski v the Queen S197/2000 - [2000] HCATrans 668

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S197 of 2000

B e t w e e n -
LJUBE VELEVSKI
Applicant
and
THE QUEEN
Respondent
Bail Application

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 2 NOVEMBER 2000, AT 10.19 AM

MR THANGARAJ: I appear for the applicant, your Honour. (instructed by Murphy's Lawyers Inc)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

HIS HONOUR: Yes, Mr Thangaraj.

MR THANGARAJ: Your Honour, I rely on an affidavit of my instructing solicitor, Philippa Alexis Winston, dated 31 October 2000.

HIS HONOUR: There are two affidavits from her, actually.

MR THANGARAJ: The amended affidavit encompasses completely the original affidavit.

HIS HONOUR: All right. Is there any objection to that, Mr Blackmore?

MR BLACKMORE: No, your Honour.

HIS HONOUR: Yes, I have read that affidavit.

MR THANGARAJ: Thank you, your Honour. Your Honour, the submission is in this case that exceptional circumstances arise from a combination of factors. The primary one and the one I will deal with first is that there are strong prospects of success at the appeal in this case. This is a case where, as your Honour knows, special leave has been granted.

HIS HONOUR: I think I was a party to the decision to grant special leave, was I not?

MR THANGARAJ: Yes, your Honour. In this case, it will be argued that the expert medical opinion was based on material outside their expertise and the leave application that was referred to was the attendant circumstances. That will be one of the grounds. The second will be the imbalance which, we say, caused a miscarriage of the trial in that the Crown did not call all relevant medical witnesses. Three of those witness - out of the three - at that stage supporting the hypothesis of innocence and, further, that any suggestion that there was a material lie had been, as Justice Gaudron said in the leave application, may have been elevated out of its real significance with respect to how many hours it was suggested that Mr Velevski had been in the room and asleep.

HIS HONOUR: Would you just explain that?

MR THANGARAJ: Your Honour, it was suggested - it was put to the jury that it was a material lie that Mr Velevski had slept or been in his daughters' bedroom for 17 hours continuously.

HIS HONOUR: Your complaint is about the directions to the jury on lies?

MR THANGARAJ: On a material lie, that is right, yes, your Honour. Justice Kirby, in his dissenting judgment, stated why that was not a material lie and, essentially, that will be part of the argument in Canberra.

The Crown has stated in its submissions that the essence of the leave argument really related to the medical evidence in which - that is correct, before the Crown was called…

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 Velevski v the Queen S197/2000

Details

AGLC: Velevski v the Queen S197/2000 [2000] HCATrans 668
Case: [2000] HCATrans 668
Decision Date: 2 November 2000

CaseChat Overview and Summary

The High Court of Australia heard an application for special leave to appeal in the matter of *Velevski v the Queen*. The applicant, Mr Velevski, sought leave to appeal against a decision of the Supreme Court of Victoria, Court of Appeal, which had dismissed his appeal against his conviction for a number of offences.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of prior convictions of the applicant. Specifically, the court was required to consider whether the prejudicial effect of this evidence outweighed its probative value, and whether the jury directions provided by the trial judge were adequate to mitigate any potential prejudice.

Gleeson CJ, in chambers, granted special leave to appeal. His Honour noted that the admissibility of evidence of prior convictions, particularly where it might suggest a propensity to commit the offences charged, is a matter of significant legal importance. The court will need to examine the application of the principles governing the admission of such evidence and the adequacy of jury directions in preventing unfair prejudice.

Orders