AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 24 May 2019

Cvetjovski (Cvetkovski) v R

[2019] NSWCCA 100

Traffic & driving
CRIME APPEAL AGAINST CONVICTION RELEVANCE OF EVIDENCE PROBATIVE VALUE OF EVIDENCE IMM V R THE QUEEN (2016) 257 CLR 300 [2016] HCA 14 APPLIED CRIME

Citation: Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100
Court: Court of Criminal Appeal, New South Wales
Date: 24 May 2019
Judge(s): Payne JA (with Bellew J and Campbell J agreeing)

Background

The appellant was driving a rigid 10-tonne truck over a narrow bridge at Heathcote, New South Wales, when the truck crossed into oncoming traffic and collided with another vehicle. The other driver died instantly. The appellant maintained he struck a pothole, causing him to lose control.

A jury in the District Court found the appellant guilty of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW). The live issue at trial was whether the Crown had proved beyond reasonable doubt that the appellant was driving in a manner dangerous to other persons at the time of the collision. Blood tests taken approximately five and a half hours after the collision detected low levels of methylamphetamine and amphetamine in the appellant's blood.

The appellant was sentenced to three years' imprisonment with a non-parole period of two years. He appealed against both conviction and sentence on four grounds.

  • Whether the trial judge erred by admitting expert pharmacological evidence (Dr Perl's evidence) rather than excluding it under s 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice
  • Whether the trial judge erred by failing to exclude the appellant's admissions in his electronically recorded interview (ERISP) concerning past illicit drug use, under ss 85 or 138 of the Evidence Act 1995 (NSW)
  • Whether the jury's verdict of guilty was unreasonable or unsupported by the evidence
  • Whether the sentence imposed was manifestly excessive

Decision

Ground 1: Expert evidence (Dr Perl)

Dr Perl, an expert pharmacologist, gave evidence that she could not form a firm opinion that the appellant was impaired at the time of the collision, but concluded that impairment was "certainly possible" and that any impairment would likely have taken the form of fatigue from methylamphetamine-induced withdrawal. The Court held that this evidence was relevant and carried significant probative value in relation to three issues: the appellant's level of attentiveness, whether he had sufficient control of the vehicle, and his credibility. Despite the qualified and tentative nature of Dr Perl's opinions, the probative value of the evidence was not outweighed by the danger of unfair prejudice, particularly given the trial judge's repeated and clear directions limiting the use to which the evidence could be put.

Ground 4: Admissions in ERISP interview

The appellant sought leave under Rule 4 of the Criminal Appeal Rules (NSW) to raise this ground, which had not been argued at trial. The Court refused leave. The appellant had been given several clear warnings before the ERISP interview that it would be recorded and that his answers could be used in court. Those warnings meant the admissions did not raise a question under either s 85 (reliability of admissions) or s 138 (evidence obtained improperly) of the Evidence Act 1995 (NSW). The failure to raise the objection at trial weighed against the grant of leave.

Ground 2: Unreasonable verdict

The Court was satisfied that the jury's verdict was reasonably open on the evidence. Campbell J noted his own reservations about the strength of the Crown case, but emphasised that the jury had the benefit of seeing and hearing witnesses firsthand, an advantage the Court of Criminal Appeal cannot replicate. Bearing that firmly in mind, his Honour was not persuaded that the guilty verdict was not open to the jury.

Ground 3: Manifest excess in sentence

The Court found the sentence was neither unreasonable nor plainly unjust and fell well within the sentencing discretion of the trial judge. The trial judge had correctly treated the appellant's history of drug use as a relevant sentencing factor and had made a finding of special circumstances having regard to the accumulation of sentences and the benefit the appellant would derive from a longer period of supervised parole.

Orders Made

  • Leave to appeal granted on Grounds 1, 2, and 3
  • Appeal dismissed on Grounds 1, 2, and 3
  • Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) refused on Ground 4

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), expert opinion evidence is not automatically excluded because it is hedged or qualified. The Court of Criminal Appeal confirmed that even tentative expert conclusions can carry significant probative value if they bear on issues of inattentiveness, loss of vehicle control, or the accused's credibility.
  • A failure to object to the admissibility of evidence at trial will ordinarily be a significant obstacle to obtaining leave to raise that objection for the first time on appeal under Rule 4 of the Criminal Appeal Rules (NSW).
  • Where an accused receives clear and repeated warnings that a recorded interview may be used in court, those warnings will generally satisfy the requirements underlying ss 85 and 138 of the Evidence Act 1995 (NSW), and no basis for exclusion of resulting admissions will arise.
  • In assessing whether a verdict is unreasonable under the principles in M v The Queen, an appellate court must give weight to the fact that the jury observed witnesses give evidence firsthand, a qualitative advantage the appellate court cannot replicate.
  • Upholding the sentence, the Court confirmed that an offender's history of illicit drug use is a legitimate factor in the sentencing exercise and that a finding of special circumstances may be warranted where an offender faces accumulated sentences and would benefit from extended parole supervision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 55, 56, 76, 79, 85, 137, 138

Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Bauer [2018] HCA 40; 92 ALJR 846
- R v Dickman (2017) 261 CLR 601; [2017] HCA 24
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
- McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22
- Elwood v The Queen [2016] NSWCCA 18
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221