Stojcevski v R [2012] NSWCCA 27

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Stojcevski v R [2012] NSWCCA 27 Hearing dates: 1 February 2012 Decision date: 05 March 2012 Before: Whealy JA at [1] R.S. Hulme J at [59] Hidden J at [60] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - Appeal - conviction - reliability of witnesses - whether the trial judge erred in failing to warn the jury that the witness' evidence might be unreliable - s 165 Evidence Act 1995 - whether the trial judge erred in failing to provide reasons concerning the s 165 jury direction. Legislation Cited: Criminal Appeal Act 1912 (NSW) - s 6(1) Evidence Act 1995 (NSW) - s 165 Cases Cited: - R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321 Category: Principal judgment Parties: Steven Stojcevski (Appellant) Crown (Respondent) Representation: Counsel: G.A. Brady (Appellant) Ms T.L. Smith (Crown) Solicitors: Nyman Gibson Stewart (Appellant) S. Kavanagh, Solicitor for Public Prosecutions (Crown) File Number(s): 2010/064171 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-11-12 00:00:00 Before: Conlon DCJ File Number(s): 2010/064171

Judgment 1WHEALY JA : The appellant faced trial by jury on an indictment that charged that: "On 11 March 2010 at Coniston in the State of New South Wales, [he], being armed with an offensive weapon, namely a piece of timber and a knife, robbed Geoffrey Lennox of cash consisting of notes and coins the property of Geoffrey Lennox." 2The trial was held in Wollongong before his Honour Judge Conlon SC (the Trial Judge) and a jury of twelve. There was no issue at trial that Mr Lennox, who was a newsagent at Coniston, had been set upon in the early hours of the morning by an intruder wearing a balaclava, threatened, struck on the head with a piece of wood or a bat and robbed of about $80. The sole issue at trial was whether the appellant was the intruder and assailant. 3On 2 September 2010, the jury returned with a verdict of guilty. The appellant was sentenced on 12 November 2010 to a non-parole period of two years and six months, with an additional term of two years to expire on 11 September 2014. The sentencing was backdated to commence at the time the appellant was arrested and charged on 12 March 2010. The appellant has not sought leave to appeal against the sentence imposed on him but has brought an appeal against his conviction. 4There is a single ground of appeal, as follows: "The Trial Judge erred in his approach to the application for a direction under s 165 of the Evidence Act , that the evidence of Craig Ceely may be unreliable, in that the Trial Judge: a) failed to give adequate reasons for his refusal to give such a direction; and b) failed to give the direction to the jury."