JUDGES	REDLICH and WEINBERG JJA and BELL AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 June 2012
DATE OF JUDGMENT	20 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 151	1^st revision: 21/6/2013 Fns 70, 72, 157 & 158
JUDGMENT APPEALED FROM	The Queen v Dragojlovic (Unreported, County Court of Victoria, Judge Nicholson, 6 August 2012)

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CRIMINAL LAW — Conviction — Lengthy trials — Juries — Two applicants (husband and wife) found guilty of 20 counts of defrauding the Commonwealth contrary to Crimes Act 1914 (Cth) s 29D — Applicants directors of a company which provided workers to market farmers — Crown case that applicants, acting in concert, dishonestly acted to evade income and group tax liabilities — Total of approximately $909,000 in tax evaded — Crown contended that company operated as labour hire firm thereby incurring relevant tax liabilities — Applicants arraigned before jury on 22 July 2009 — Jury commenced deliberations in June 2010 — Only 117 productive sitting days throughout that period — Many interruptions to trial — Whether dislocated presentation of evidence, and length of trial, gave rise to risk that jury failed to deliver verdict according to the evidence — Whether miscarriage of justice occurred — Issues in trial not particularly complex — Relevance of defence counsel’s failure to seek discharge and considered submission, on instructions, that trial proceed — R v Wilson & Grimwade [1995] 1 VR 163 distinguished.

CRIMINAL LAW — Conviction — Second applicant also faced 48 counts of intentionally accessing data in Commonwealth computer without authority contrary to Crimes Act 1914 (Cth) s 76B(2) — Crown case that second applicant, a Centrelink employee, accessed information on Centrelink databases relating to workers provided by the company — Trial judge refused application to sever s 76B(2) counts from indictment at commencement of trial — Evidence subsequently led, over nine days, relating to those counts — Evidence said by Crown to go to existence of common purpose between both applicants to defraud the Commonwealth — Whether trial judge erred in failing to order severance — Sufficient nexus between s 29D and s 76B(2) counts — Trial judge subsequently ruled that second applicant bore ‘evidential’ onus in respect of s 76B(2) counts — Section 76B(2) counts severed on 3 February 2010 — Evidence led in respect of those counts ruled inadmissible and jury directed to disregard it — Whether trial judge erred in failing to discharge jury at that time — Deliberate decision not to seek discharge —Maric v The Queen (1978) 52 ALJR 631; R v Sarek [1982] VR 971 applied.

CRIMINAL LAW — Conviction — Unsafe and unsatisfactory verdicts — Whether jury must have entertained a reasonable doubt that company conducted a labour hire business — Whether jury must have entertained reasonable doubt that second applicant acted dishonestly —…

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.

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Details

AGLC: Dragojlovic v The Queen [2013] VSCA 151
Case: [2013] VSCA 151
Decision Date: 20 June 2013

CaseChat Overview and Summary

Dragojlovic v The Queen involved two applicants, a husband and wife, who were convicted of defrauding the Commonwealth by evading approximately $909,000 in tax. The case was heard in the High Court of Australia. The applicants were directors of a company that provided workers to market farmers, and the Crown alleged that they acted dishonestly to evade income and group tax liabilities.

The central legal issues were whether the lengthy trial and interruptions caused a miscarriage of justice and if the trial judge erred in certain procedural decisions. The court examined whether the trial's length and disruptions led to a risk that the jury failed to deliver a verdict based on the evidence. It also assessed the trial judge's decisions regarding the severance of charges and the handling of inadmissible evidence.

The High Court found that while the trial faced numerous interruptions and was lengthy, there was no miscarriage of justice. The court held that the issues were not particularly complex and that the defence counsel’s decision not to seek a discharge was considered appropriate under the circumstances. The trial judge's decision not to sever the charges and to rule certain evidence inadmissible was also upheld. The Court found that the evidence was sufficient to support the guilty verdicts. However, the Court did allow an appeal on the sentence, reducing the sentence to four years’ imprisonment with a non-parole period of 27 months.

The High Court dismissed the appeal regarding the convictions but allowed the appeal on the sentence. The applicants were resentenced to four years’ imprisonment with a non-parole period of 27 months.

Orders