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Ignatova v R

Ignatova v R

Case [2010] VSCA 263 13 October 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0216

OLGA IGNATOVA
	v
THE QUEEN

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JUDGES	ASHLEY, NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 September 2010
DATE OF ORDERS	23 September 2010
DATE OF JUDGMENT	13 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 263
JUDGMENT APPEALED FROM	R v Ignatova (Unreported, County Court of Victoria, Judge Pullen, 1 July 2010)

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CRIMINAL LAW – Application – Conviction – Causing serious injury recklessly – Verdict unsafe – Evidence insufficient to support finding that the applicant knew that the acts would probably cause serious injury – Failure to prove beyond reasonable doubt that post offence conduct amounted to an admission of guilt – Application for leave to appeal granted and appeal allowed – Conviction quashed – Sentence set aside – Judgment and verdict of acquittal.

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Appearances:

Counsel

Solicitors

For the Applicant

Mr D A Dann with

Ms J M Fallar

Victoria Legal Aid

For the Crown

Mr D A Trapnell SC

Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Neave JA. They very largely explain why I joined in the orders made on 23 September 2010.

I add only the following. In this Court, counsel for the applicant conceded that it had been open to the jury to find each element of the offence of recklessly causing serious injury proved, other than the requisite mental element.

There had to be a finding about what happened in order that the jury could consider whether the requisite mental element was proved. With respect to that matter, the Crown’s position below and before us as to the relevant factual substratum was inconsistent.

In this Court, counsel for the Crown submitted that the necessary inference which explained the jury’s verdict was that the applicant had not tested the water before directing it onto her daughter.

If the alleged lies and other post-offence conduct relied upon by the Crown in proof of guilt enabled a finding that the applicant had directed the water onto her child without first testing it, I cannot accept that the mental element as described by Neave JA was capable of being made out.

At trial, however, the prosecutor argued that the applicant had tested the water, and found it to be hot, before directing it onto her daughter. This argument was advanced although the prosecutor volunteered that the evidence would not support a conviction for intentionally causing serious injury; and the jury was so directed.

Questioned about the approach taken below, counsel for the Crown submitted that the concession had, perhaps, been made wrongly.

If the lies and other post-offence conduct enabled a finding that the applicant

had first tested the water, and found it hot, it may be that the jury could have concluded that the offence of intentionally causing serious injury was made out. But that offence had been taken away. I consider that it would have…

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 Ignatova v R

Details

AGLC: Ignatova v R [2010] VSCA 263
Case: [2010] VSCA 263
Decision Date: 13 October 2010

CaseChat Overview and Summary

The case of Ignatova v R involves the applicant, Ignatova, who was convicted of causing serious injury recklessly. Ignatova appealed against her conviction to the High Court of Australia, arguing that the evidence was insufficient to support the jury's finding that she knew her actions would likely cause serious injury and that her post-offence conduct did not amount to an admission of guilt. The legal issues before the court were whether the evidence was sufficient to support the conviction and whether the post-offence conduct could be construed as an admission of guilt.

The court considered whether the evidence was sufficient to prove beyond reasonable doubt that the applicant knew her actions would probably cause serious injury. The court also examined whether the applicant's post-offence conduct amounted to an admission of guilt. The court found that the evidence was insufficient to support the finding that the applicant knew that her acts would probably cause serious injury. Additionally, the court found that the post-offence conduct could not be construed as an admission of guilt.

The court granted Ignatova's application for leave to appeal and allowed the appeal. The court quashed the conviction and set aside the sentence. The court found that the evidence was insufficient to support the verdict of the jury, and therefore the verdict of acquittal was entered. The court held that the evidence did not prove beyond reasonable doubt that Ignatova knew her actions would probably cause serious injury, and that her post-offence conduct did not amount to an admission of guilt. The final orders of the court were that the conviction and sentence be quashed, and a verdict of acquittal be entered.

Orders