CVETKOVIC, Dragan v R [2010] NSWCCA 329

New South Wales Court of Criminal Appeal

CITATION: CVETKOVIC, Dragan v R [2010] NSWCCA 329 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19-22 July 2010

JUDGMENT DATE: 21 December 2010

JUDGMENT OF: Campbell JA at 1; Simpson J at 421; Whealy J at 421

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction and sentence – grounds of appeal – (1) Conviction unreasonable or unsupported by evidence – (2) Wrong interlocutory decisions – (3) Substantial miscarriage of justice – Appeal dismissed – CRIMINAL LAW – Evidence – Issues raised on appeal – Evidence sought to be admitted by the appellant as character and tendency evidence was determined by the trial judge to be evidence going to issues of credit – trial judge decision to admit certain evidence put forward by the prosecution as relationship evidence rather than tendency evidence – whether trial judge ought to have made a section 136 (Evidence Act 1995) ruling in relation to evidence about the credibility of the victim – whether trial judge ought to have imposed a section 136 (Evidence Act 1995) limitation on sexual experience evidence – application for leave to recall witnesses for further cross-examination – CRIMINAL LAW – Particular offences – offences against the person – acts intended to cause or causing danger to life or bodily harm or serious injury – wounding with intent to murder – CRIMINAL LAW – Criminal liability and capacity – defence matters – non-insane automatism – interaction of onus of proof and presumptions of mental capacity and that an action is willed – significance of psychiatric evidence in displacing presumptions [86]-[93] – APPEAL – test for appellate reversal of discretionary decision of practice and procedure no different to test for any other discretionary decision, but satisfaction of the test often harder as a matter of fact [217] – EVIDENCE – tendency evidence – proper procedure for deciding admissibility of tendency evidence [224] – difference between tendency evidence and relationship or context evidence – CRIMINAL LAW – procedure – whether a "prescribed sexual offence" within Criminal Procedure Act 1986 must involve activities that themselves have a sexual component [265]-[277] – effect of a "prescribed sexual offence" being tried with other charges [278] – STATUTES – Acts of Parliament – interpretation – role of definition section – meaning of "except in so far as the context or subject-matter requires" [272]-[276] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – reasons for judgment in other cases – whether admissible under s65(3) [295]-[300] – whether statements in them are first-hand hearsay [299]-[300] – whether admissible under s65(8)(b) [301]-[303] – whether admissible as a public document under s157 [304]-[314] – whether "judgment" in s157 includes reasons for judgment [306] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – first-hand hearsay – onus of proof of unavailability of the person who made the previous representation [341] – form in which evidence of the previous representation can be given by the person who saw, heard or otherwise perceived the representation being made [343] – EVIDENCE – admissibility under the Evidence Act 1995 – what constitutes "evidence of reputation" under s73 [353]-[354]