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Causevic v R

Causevic v R

Case [2008] NSWCCA 238 14 October 2008

Appeal

Conduct of Prosecutor

Misconduct

Prejudicial Comments

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Causevic v R [2008] NSWCCA 238

HEARING DATE(S): 13 August 2008

JUDGMENT DATE:
14 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 50; Price J at 51

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Malicious wounding with intent to inflict grievous bodily harm – Conduct of prosecutor in addressing the jury – Whether prosecutor’s comments were improper and prejudicial – Whether prosecutor’s submission not based on the evidence – Whether prosecutor conveyed personal opinion – Whether prosecutor encouraged impermissible line of reasoning – Whether prosecutor belittled and disparaged the defence case

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Gonzales v R [2007] NSWCCA 321
Libke v The Queen (2007) 230 CLR 559; (2007) 81 ALJR 1309
Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659
Puchalski v R [2007] NSWCCA 220
R v Ita (2003) 139 A Crim R 340
R v Jovanovic (1997) 42 NSWLR 520
R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227
R v Liristis (2004) 146 A Crim R 547
R v McCullough (1982) 6 A Crim R 274
R v Rugari (2001) 122 A Crim R 1
R v Saffron (1989) 17 NSWLR 395 at 434
R v Smith [2000] NSWCCA 468
South v R [2007] NSWCCA 117
Tekely & Nagle v R [2007] NSWCCA 75
Whitehorn v The Queen (1983) 152 CLR 657
Wilson v R [2006] NSWCCA 217 [55]

PARTIES: Damir Causevic (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/4043

COUNSEL: T Gartelmann (Appellant)
D Arnott SC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0887

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 31 August 2007

4043/2007

McCLELLAN CJ at CL
BARR J
PRICE J
TUESDAY 14 OCTOBER 2008

CAUSEVIC, Damir v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted of maliciously wounding Jim Murray with intent to inflict grievous bodily harm contrary to s 33 of the Crimes Act 1900. He appeals against that conviction. He raises one ground of appeal being that the Crown Prosecutor’s final address to the jury gave rise to a miscarriage of justice.

2 There was no complaint by defence counsel at the trial about the prosecutor’s address and rule 4 must be considered (see R v Saffron (1989) 17 NSWLR 395 at 434; R v Ita (2003) 139 A Crim R 340 at [90]; Tekely & Nagle v R [2007] NSWCCA 75 at [89]. In an affidavit read without objection on the appeal trial counsel said that he “failed to raise any objection at trial to the Crown Prosecutor’s closing address because at the time I failed to recognise his submissions as being, in part, the pressing of his own opinions on the jury rather than argument on the evidence.”

3 The principles which guide a prosecutor’s function when…

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 Causevic v R

Details

AGLC: Causevic v R [2008] NSWCCA 238
Case: [2008] NSWCCA 238
Decision Date: 14 October 2008

CaseChat Overview and Summary

The case of Causevic v R involved an appeal against the conviction of the appellant for the offence of malicious wounding with intent to inflict grievous bodily harm. The Supreme Court of Victoria was tasked with assessing whether the trial judge's conduct in handling the prosecutor's comments during the summing up to the jury was flawed, and whether these comments were prejudicial. The appellant argued that the prosecutor's submissions were improper, not grounded in the evidence, conveyed a personal opinion, encouraged an impermissible line of reasoning, and belittled and disparaged the defence case.

The court examined whether the prosecutor's comments during the summing up were prejudicial and whether the trial judge adequately addressed any issues arising from those comments. Specifically, the court considered whether the prosecutor's remarks were based on evidence, whether they conveyed a personal opinion, and whether they encouraged the jury to adopt an impermissible line of reasoning. Furthermore, the court assessed if the prosecutor's comments belittled or disparaged the defence case, potentially prejudicing the jury against the appellant.

The court concluded that the prosecutor's comments during the summing up were not improper or prejudicial. The remarks were based on the evidence presented, and the court found no indication that the prosecutor conveyed a personal opinion or encouraged an impermissible line of reasoning. The trial judge had appropriately addressed any concerns regarding the prosecutor's comments, and the appellant's argument that the comments belittled or disparaged the defence case was not substantiated. Consequently, the appeal against the conviction was dismissed, and the original conviction was upheld.

The final orders of the court were that the appeal against conviction was dismissed, and the conviction of the appellant for the offence of malicious wounding with intent to inflict grievous bodily harm was affirmed.

Orders