AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 26 June 2009

CHRISTOV, Ivan v R

[2009] NSWCCA 168

Homicide
CRIMINAL LAW APPEAL ELECTION FOR JUDGE ALONE TRIAL DISCUSSION OF LEGISLATIVE PROVISIONS

Citation: CHRISTOV, Ivan v R [2009] NSWCCA 168
Court: Court of Criminal Appeal, New South Wales
Date: 26 June 2009
Judge(s): Giles JA, Rothman J, McCallum J

Background

The appellant was convicted of murder by Kirby J sitting alone, following a judge-alone trial in the Supreme Court. The victim was found strangled at her home in January 2004, and the appellant had pleaded not guilty to murder but guilty to manslaughter, a plea the Crown declined to accept. Kirby J returned a guilty verdict of murder on 22 September 2006 and later imposed a sentence of 23 years' imprisonment with a non-parole period of 17 years.

The appellant challenged both the conviction and the sentence on appeal to the Court of Criminal Appeal. The conviction appeal rested entirely on a procedural point: whether the election for a judge-alone trial had been filed before the date fixed for trial, as required by the Criminal Procedure Act 1986. If it had not been filed in time, the appellant argued there was no trial according to law.

The sentence appeal raised a separate question: whether the sentencing judge erred by failing to give weight to the utilitarian benefit of the manner in which the appellant conducted his trial.

  • Whether, as a matter of fact, the signed election for a judge-alone trial was filed with the court before 28 August 2006, the date fixed for trial
  • Whether, if the election was not filed before that date, the trial was invalid as not being conducted according to law
  • Whether the sentencing judge erred by failing to take into account the utilitarian value of the way the appellant conducted his trial, warranting a reduction in sentence

Decision

On the conviction appeal, the Court of Criminal Appeal unanimously found, as a matter of fact, that a duly signed election was filed before 28 August 2006. All three judges accepted that the witnesses were doing their best to recall events accurately, but concluded their recollections could not all be correct and that the objective facts pointed clearly to the election having been filed in time. Key circumstances included: the election form being created on the morning of 22 August 2006; a conference with the appellant on that day at which he agreed to a judge-alone trial; the form being signed and dated by the appellant's solicitor on 23 August 2006; and the Associate to Kirby J advising the Sheriff's Officer on 24 August 2006 that the trial would proceed as a judge-alone trial.

Because the Court resolved the factual question in favour of the election having been filed before the trial date, it was unnecessary to determine the legal consequences of a failure to comply with the filing requirement. The Court expressly declined to rule on that point or the current state of the authorities concerning it.

On the sentence appeal, the Court granted leave to appeal but dismissed the appeal. Rothman J, with whom the others agreed, found that the utilitarian benefit of the manner of conducting a trial is a factor a sentencing judge may consider, but there is no requirement to do so. The Court noted that comments made by a judicial officer during proceedings are not a considered view of the judge's position and should rarely be relied upon to establish a judge's attitude to a sentencing factor. The Court was not persuaded that a lesser sentence was warranted under section 6(3) of the Criminal Appeal Act 1919.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where witnesses give conflicting accounts about a procedural step, the court will resolve the factual dispute by reference to objectively established circumstances and the balance of probabilities, rather than simply preferring one witness's recollection over another's.
  • Because the election was found to have been filed in time on the facts, the Court expressly left open the question of what legal consequences flow from a failure to file a judge-alone election before the date fixed for trial.
  • A sentencing judge may take into account the utilitarian benefit of the way an accused conducts a trial, but is not required to do so as a matter of law.
  • Judicial comments made during the course of proceedings are not treated as a considered expression of the judge's view and will only in exceptional circumstances be used to assess the judge's approach to a sentencing factor.
  • In dismissing the sentence appeal, the Court of Criminal Appeal reaffirmed that appellate intervention in sentencing is confined to established grounds and requires satisfaction that a less severe sentence was warranted in law.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 130, 131, 132
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1919 (NSW), s 6(3)
- Evidence Act 1995 (NSW)
- Supreme Court Rules 1970 (NSW), r 75.3H

Cases:
- AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Quartermaine v R [1980] HCA 29; (1980) 143 CLR 595
- R v Coles (1993) 31 NSWLR 550
- R v Doff [2005] NSWCCA 119
- R v Fisher (Court of Criminal Appeal, Gleeson CJ, 22 May 1995, unreported)
- R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208
- R v Perry (1993) 29 NSWLR 589