Gojanovic v The Queen [2011] HCATrans 66 - [2011] HCATrans 66

[2011] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M84 of 2010

B e t w e e n -
DENIS PAUL GOJANOVIC
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2011, AT 12.11 PM

MR K.T. ARMSTRONG: If the Court pleases, I appear for the applicant. (instructed by Robert Stary Lawyers)

MR T. GYORFFY: If it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions)

CRENNAN J: Yes, thank you.

MR ARMSTRONG: If the Court pleases, might I first address, unfortunately, a question of whether the Court has some additional materials which were not in the application book originally. I speak in particular of some additional pages of transcript, they being from the trial transcript, pages 2561 to 2593.

CRENNAN J: Where are they to be found? Additional materials tab 2, is that it?

MR ARMSTRONG: Yes, that would be it.

CRENNAN J: Yes, I see.

MR ARMSTRONG: To explain that, and I apologise for the late delivery of it, that was additional transcript not originally included in the charge transcript but contained a significant question which the jury asked about.

BELL J: This is the question?

MR ARMSTRONG: Yes, about the post‑offence conduct.

CRENNAN J: Yes.

MR ARMSTRONG: The other matter of less significance was the ‑ ‑ ‑

CRENNAN J: Do you want to direct us to a particular page?

MR ARMSTRONG: Yes, your Honour, but might I come to that ‑ ‑ ‑

CRENNAN J: In your own time, yes, certainly.

MR ARMSTRONG: Yes, if I may, thank you. If the Court pleases, it is submitted that in terms of general matters of principle, firstly, going to the grant of special leave, that there are continuing complexities and difficulties in this area of the proper directions to be given to juries in consciousness of guilt cases. You will see in the applicant’s summary that there is reference to two Law Reform Commission reports of recent times that deal with jury directions, but in particular with post-offence conduct complexities, as the authors describe it in each case. By way of further example, the summary records that the Victorian criminal charge book, even just on the so-called straightforward or simple Edwards direction, extends to some six pages of closely typed direction to juries. So there is, it is submitted, a general prevailing concern and complexity about the matter.

The specific application or concern to it submitted in this case is that it is submitted that there is a conflict between intermediate appellate courts, in particular, in that insofar as the issue of whether evidence said to be of consciousness of guilt can be affected in its probative value by regard to the rest of the circumstantial evidence that might be relied upon in any…

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

Case: [2011] HCATrans 66
Decision Date

CaseChat Overview and Summary

In *Gojanovic v The Queen*, the High Court of Australia considered an appeal from a decision of the Supreme Court of Victoria. The appellant, Gojanovic, had been convicted of a number of offences, including aggravated burglary and assault. The appeal concerned the admissibility of certain evidence obtained during the investigation of these offences.

The central legal issue before the High Court was whether the evidence in question, which included a confession made by the appellant, had been obtained in contravention of the *Crimes Act 1958* (Vic) and, if so, whether it should have been excluded under the common law. Specifically, the Court had to determine if the appellant had been unlawfully detained at the time the confession was made, and if the confession was therefore inadmissible.

Crennan and Bell JJ found that the appellant had been unlawfully detained at the time of his confession. Their Honours applied the principles established in *R v Ireland* and *Williams v The Queen*, which dictate that evidence obtained in contravention of statutory provisions or in circumstances where a person's rights have been infringed may be excluded if its admission would be unfair to the accused. The Court held that the confession was inadmissible and that its admission at trial had occasioned a substantial miscarriage of justice.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders