AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
15
Court of Criminal Appeal 23 November 2022

Bektasovski v R

[2022] NSWCCA 246

Also reported as (2022) 407 ALR 125
Sexual offences

Citation: Bektasovski v R [2022] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 23 November 2022
Judges: Beech-Jones CJ at CL, Kirk JA, Yehia J

Background

The appellant was convicted by an 11-1 majority verdict on three counts of sexual and indecent assault against one complainant. He was acquitted on an aggravated sexual assault charge involving a second complainant, and the jury was unable to reach a verdict on a sexual assault charge involving a third complainant. The trial judge sentenced him to an aggregate term of five years and six months imprisonment, with a non-parole period of three years and four months.

The appellant sought leave to appeal against both his convictions and his sentence. His conviction appeal raised challenges to the admission of tendency evidence and to the reasonableness of the jury's verdicts. His sentence appeal contended that the trial judge failed to make any proper assessment of the objective seriousness of the offending.

The Court of Criminal Appeal (Beech-Jones CJ at CL, Kirk JA, and Yehia J) granted leave to appeal but dismissed all grounds.

  • Which version of s 101 of the Evidence Act 1995 (NSW) applied, having regard to transitional provisions introduced by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), specifically the meaning of "proceedings the hearing of which began before the commencement of the amendment"
  • Whether, on an appeal challenging the wrongful admission of tendency evidence, the relevant evidence is that adduced at the voir-dire (the pre-trial admissibility hearing) or the evidence actually admitted at trial
  • Whether the tendency evidence was properly admitted, including whether the common features required to establish "significant probative value" must be described as "striking" or "peculiar"
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence
  • Whether the trial judge's sentencing remarks contained a sufficient assessment of the objective seriousness of the offending

Decision

Transitional provisions and the applicable version of s 101

Kirk JA (with Beech-Jones CJ at CL and Yehia J agreeing) held that the transitional phrase "proceedings the hearing of which began before the commencement of the amendment" refers to proceedings on indictment from the time the accused is first arraigned in the court that goes on to hear the substantive trial. This construction was considered consistent with the reasonable expectations of those affected by the legislative change.

Evidence for the purposes of the admissibility appeal

All three judges concluded this issue did not need to be resolved on the facts, since the parties agreed there was little material difference between the voir-dire evidence and the evidence actually admitted at trial. Beech-Jones CJ at CL and Yehia J noted that appellants are required to identify any material difference between voir-dire evidence and trial evidence, and in the absence of such identification the Court is entitled to assume no material differences exist. Kirk JA flagged that existing Court of Criminal Appeal authority on this point was inconsistent, and that cases suggesting the relevant evidence was the evidence actually admitted did not appear to be supported by the High Court authority cited for that proposition.

Admission of tendency evidence

The Court rejected the challenge to the admission of tendency evidence. Kirk JA, with the others agreeing, confirmed that it is not necessary for common features between distinct events to be described as "striking" or "peculiar." What is required is a sufficient link between the distinct events such that one piece of conduct has significant probative value as regards another. The Court also confirmed that tendency evidence does not lose its probative value merely because its common features overlap with features of the charged offence itself.

Unreasonable verdict and sentence appeal

Each judge independently reviewed the evidence and was satisfied it was reasonably open to the jury to be satisfied of guilt beyond reasonable doubt. On sentence, Beech-Jones CJ at CL held that the trial judge's description of the offences as "objectively serious" constituted a sufficient assessment of objective seriousness for sentencing purposes. While perhaps inelegant, the description was held to be informative, standing in contrast to a finding that the offending was at the lower end of the scale.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • For tendency evidence to have "significant probative value," there must be a sufficient link between distinct events, but that link need not be "striking" or "peculiar" to the accused's conduct alone. Common features that also characterise the charged offence do not automatically deprive tendency evidence of probative value.
  • The Court of Criminal Appeal confirmed that, under the transitional provisions of the Evidence Act 1995 (NSW), the question of when "proceedings began" is answered by reference to the time of first arraignment in the court that subsequently hears the substantive trial.
  • Where an appellant challenges the admission of tendency evidence under the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), the appellant bears the responsibility of identifying any material difference between the evidence adduced on the voir-dire and the evidence actually admitted at trial. Failure to do so entitles the appellate court to assume no material difference exists.
  • Inconsistent authority exists within the Court of Criminal Appeal on whether a challenge to wrongful admission of evidence is assessed by reference to the voir-dire evidence or the trial evidence. Kirk JA's analysis in this decision expresses doubt about the line of authority favouring the trial evidence approach, though the question was left open.
  • A sentencing judge's characterisation of offences as "objectively serious," without more elaborate analysis, can constitute a sufficient assessment of objective seriousness, provided the description conveys a meaningful placement on the spectrum of offending rather than simply restating that offences are serious in the abstract.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101, 165B, Sch 2 Pt 6 cl 28
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), Ch 3 Pt 3 Div 2
- Crimes Act 1900 (NSW), ss 61HA(4)(c), 61I, 61J, 61L, 80AF
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(2)(b), 54A
- Interpretation Act 1987 (NSW), s 30(2)

Key Cases
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5
- Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230
- McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
- Simpson v R [2014] NSWCCA 23