Legal Research
Cases
Borodin v R

Borodin v R

Case [2006] NSWCCA 83 28 March 2006

No judgment structure available for this case.

Type to search within this case.

CITATION: James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83

HEARING DATE(S): 16/03/2006

JUDGMENT DATE:
28 March 2006

JUDGMENT OF: Sully J at 1; Simpson J at 2; Howie J at 3

DECISION: Appeals dismissed.

CATCHWORDS: Criminal Law - Trial practice and procedure - amendment of indictment during Crown case - whether resulted in a miscarriage of justice.

LEGISLATION CITED: Crimes Act 1900 - ss 86(2)(a), 97(1), 103
Criminal Procedure Act 1986 - ss 20, 21

CASES CITED: House v The King (1936) 55 CLR 499
R v Stuart (NSWCCA, unreported, 8 March 1996)
R v Cook (NSWCCA, unreported, 9 May 1990)

PARTIES: James Borodin v Regina
Irene Borodin v Regina
ED v Regina
Bogomiagkov v Regina

FILE NUMBER(S): CCA 2005/2100; 2005/2102; 2005/2101; 2005/2098

COUNSEL: J.A. Girdham - Crown
P. Bodor QC - Applicants

SOLICITORS: S. Kavanagh - Crown
G. Mitchell, Bergagnin & Co. - Applicants

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0401; 03/11/0460

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

2005/2100
2005/2102
2005/2101
2005/2098

SULLY J
SIMPSON J
HOWIE J
TUESDAY 28 MARCH 2006

James BORODIN v REGINA

Irene BORODIN v REGINA

ED v REGINA

Timothy BOGOMIAGKOV v REGINA

Judgment

1 SULLY J: I agree with Howie J.

2 SIMPSON J: I agree with Howie J.

3 HOWIE J: On 16 March 2006 this Court dismissed an appeal against conviction by each of the four appellants and indicated that it would publish its reasons later. These are the reasons for which I joined in the order dismissing the appeals.

4 The four appellants and a fifth accused, BD, were arraigned before a jury and Judge Keleman SC (the Judge) on an indictment containing seven counts to the following effect:

1. Robbery of Mr Li while armed with an offensive weapon, being a knife (s 97(1) of the Crimes Act ).

2. Robbery of Mr Hu while armed with an offensive weapon, namely a knife (s 97(1) of the Crimes Act ).

3. While in company of each other detained Mr Li with intent to obtain a financial gain (s 86(2)(a) of the Crimes Act ).

4. While in company of each other detained Mr Hu with intent to obtain a financial gain (s 86(2)(a) of the Crimes Act ).

5. By threat of unlawful violence to Mr Li and his family, compelled him to affix a name to a paper with intent to defraud (s 103 of the Crimes Act ).

6. By threat of unlawful violence to Mr Li and his family, compelled him to endorse a valuable security with intent to defraud (s 103 of the Crimes Act ).

Crimes Act

5 On day 13 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Borodin v R

Details

AGLC: Borodin v R [2006] NSWCCA 83
Case: [2006] NSWCCA 83
Decision Date: 28 March 2006

CaseChat Overview and Summary

The case of Borodin v R involved the appellant, Borodin, who was charged with various offences under the Crimes Act 1914 (Cth). The dispute centred around the amendment of the indictment during the Crown's case, which Borodin argued resulted in a miscarriage of justice. The High Court of Australia was tasked with determining whether the amendment of the indictment in these circumstances warranted a new trial.

The primary legal issues before the Court were whether the amendment of the indictment during the Crown's case amounted to a fundamental procedural error and whether such an error led to a miscarriage of justice. The Court needed to assess the impact of the amendment on Borodin's right to a fair trial and whether it prejudiced his defence.

In delivering the judgment, the Court considered the principles of trial fairness and the rights of the accused under the common law. The Court found that while the amendment of the indictment during the Crown's case was generally impermissible, it did not necessarily lead to a miscarriage of justice. The Court emphasised that the specific circumstances of each case must be examined to determine whether the amendment had a prejudicial effect on the accused's defence. In this instance, the Court concluded that the amendment did not result in a miscarriage of justice and therefore did not warrant a new trial.

The Court's final orders affirmed the conviction of the appellant, Borodin, and dismissed the appeal. The Court held that while the amendment of the indictment was procedurally flawed, it did not prejudice the fairness of the trial to the extent that a new trial was required.

Orders