JUDGES:	MAXWELL P, WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 March 2015
DATE OF JUDGMENT:	21 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 113
JUDGMENT APPEALED FROM:	DPP v Destanovic (Unreported, County Court of Victoria, Judge Stuart, 31 January 2014)

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CRIMINAL LAW – Appeal – Conviction – Joint trial – Four accused (D1, D2, D3, D4) – Armed robbery, aggravated burglary, intentionally cause serious injury – Joint criminal enterprise – Application for separate trials refused – Victim (J) identified each accused as having participated – Additional evidence admissible only against D2 and D3 respectively – Whether additional evidence impermissibly enhanced credibility of J in case against D1 – Jury invited by prosecutor to view J’s credibility as enhanced – Jury invited by prosecutor to reason from acceptance of evidence not admissible against D1 to finding of guilty against him – Judge endorsed invitation – Whether breach of separate consideration requirement – Whether misuse of inadmissible evidence – Conviction of D1 quashed – Retrial ordered – Whether conviction of D2 unsafe and unsatisfactory – Conviction of D2 affirmed.

CRIMINAL LAW – Appeal – Sentence – Armed robbery, aggravated burglary, intentionally cause serious injury – Total effective sentence 8 years’ imprisonment with non-parole period of 5 years – Delay of 5 years between offending and sentencing – Whether sentence manifestly excessive – Sentence within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Destanovic	Mr C Boyce SC with Ms G F Connelly	Victor C Andreou
For the Applicant Tangaloa	Mr D A Dann	Valos Black & Associates
For the Crown	Mr R A Elston QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P:

Summary

I have had the advantage of reading in draft the joint reasons of Weinberg and Beach JJA. For the reasons which their Honours give, I too would refuse both of Mr Tangaloa’s applications for leave to appeal. For reasons which follow, however, I have reached a different conclusion on Mr Destanovic’s application for leave to appeal against conviction. Leave to appeal should be granted but the appeal dismissed.[1]
[1]Since mine is a minority view, I have not addressed Mr Destanovic’s sentence application.

The Destanovic appeal raises a point of general importance about the conduct of joint trials and about how jurors assess the credibility of a common witness. In this case, the victim (‘J’) gave evidence against all four accused. Mr Destanovic’s complaint is that the credibility of the evidence which J gave against him was impermissibly enhanced as a result of his being tried jointly with his co-accused, Tangaloa and Vaotangi (‘T’ and ‘V’ respectively).

The impermissible enhancement of credibility is said to have occurred in the following way. The issue in the trial was whether — as the Crown alleged — Destanovic (‘D’), T…

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 Jasmin Destanovic v The Queen

Details

AGLC: Jasmin Destanovic v The Queen [2015] VSCA 113
Case: [2015] VSCA 113
Decision Date: 21 May 2015

CaseChat Overview and Summary

In the case of Jasmin Destanovic v The Queen, the High Court of Australia reviewed the conviction and sentencing of four individuals involved in an armed robbery, aggravated burglary, and the intentional infliction of serious injury. The joint trial of the four accused, D1, D2, D3, and D4, resulted in D1’s conviction being quashed and a retrial ordered, while D2’s conviction was affirmed as safe and satisfactory. The central issues before the court were whether the additional evidence admissible against D2 and D3, but not against D1, improperly influenced the jury’s perception of the victim’s credibility and whether the judge’s endorsement of this influenced breached the requirement for separate consideration of the evidence against each defendant.

The court found that the additional evidence against D2 and D3 did not unduly influence the jury’s view of the victim’s credibility in a way that prejudiced D1’s case. However, the prosecutor’s invitation to the jury to view the victim's credibility as enhanced and to reason from the acceptance of inadmissible evidence against D1 to finding him guilty, coupled with the judge’s endorsement of this approach, did breach the separate consideration requirement. This breach led to the quashing of D1’s conviction and the ordering of a retrial. In contrast, the court determined that the additional evidence did not render D2’s conviction unsafe and unsatisfactory, affirming the conviction against him.

The High Court also considered the sentence imposed on the appellants, totalling 8 years’ imprisonment with a non-parole period of 5 years. The court held that the delay of 5 years between the offending and sentencing did not render the sentence manifestly excessive. The sentence was within the appropriate range for such offences, and thus, the leave to appeal the sentence was refused. The court concluded that the sentence was not excessive and that the delay did not justify a departure from the usual sentencing principles.

The final orders of the court included the quashing of D1’s conviction and the ordering of a retrial, while D2’s conviction was affirmed. The sentence for the appellants was upheld, and the leave to appeal the sentence was refused.

Orders