Mario Kramar v The Queen - [2013] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0287

MARIO KRAMAR	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 August 2013
DATE OF JUDGMENT	6 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 236
JUDGMENT APPEALED FROM	DPP (Vic) v Kramar & Anor (County Court of Victoria, Judge Parsons, 24 February 2012)

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CRIMINAL LAW – Application for leave to appeal – Election – Intentionally causing serious injury to secondary victim who came to assistance of primary victim – Acting in concert – Aiding and abetting – Evidence of words or gestures between attackers not necessary to establish agreement – Open to jury to find applicant acting in concert in attack on primary victim was a party to an agreement to attack secondary victim – Open to jury to find applicant aided and abetted attack on secondary victim – Conviction not unsafe and unsatisfactory – Non-compliance with time limits cannot be justified because counsel of choice is unavailable – Application refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC	Tony Hargreaves & Partners
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

On 24 February 2012 the applicant, Mario Kramar, and his co-defendant Bernard Kramar, were found guilty by a County Court jury of intentionally causing serious injury to Frank Picak (charge 1) and intentionally causing serious injury to Martin Picak (charge 3).

The applicant initially sought an extension of time within which to seek leave to appeal. He relied on two grounds of appeal, and was granted an extension of time, but was refused leave to appeal on the second ground. He later abandoned the first ground of appeal, but elected to renew his application on second ground of appeal, which was that the verdict on charge 3 was unsafe and unsatisfactory.

The Evidence

At about 4.50 am on the morning of 26 November 2009, Mr Frank Picak (‘Frank’) was leaving for work. He had a regular arrangement with his nephew, Martin Picak, who lived two doors down in the same street, to pick Martin up and drive him to work. Shortly after Frank walked out of his front door there was a violent altercation between Frank and Martin and two brothers, Mario and Bernard Kramar. As a result of the fight between the men, Frank sustained serious puncture wounds in his back, groin, stomach, lower leg and buttock for which he required surgery involving excision of part of his bowel. Martin was stabbed in the chest, back and leg. At trial there were considerable differences between the parties’ versions of how these events occurred.

The Crown case was that there had been a long history of animosity between Frank Picak and the Kramar brothers, which began when the Kramar brothers lived in the house behind Frank’s mother’s house while the men were growing up. The Crown alleged that, on the day of the fight,…

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 Mario Kramar v The Queen

Details

AGLC: Kramar v The Queen [2013] VSCA 236
Case: [2013] VSCA 236
Decision Date: 6 September 2013

CaseChat Overview and Summary

Mario Kramar was the appellant in a criminal matter heard by the High Court of Australia. The case involved an appeal against his conviction and sentence for intentionally causing serious injury to a secondary victim who came to the assistance of the primary victim. The appellant argued that the trial judge should not have allowed the jury to consider whether he acted in concert with his co-defendants and whether he aided and abetted the attack on the secondary victim. Additionally, the appellant claimed that his conviction was unsafe and unsatisfactory and that the time limits for filing an appeal should be extended because his counsel of choice was unavailable.

The legal issues before the court were whether the trial judge correctly allowed the jury to consider the appellant's involvement in the attack on the secondary victim and whether the appellant's conviction was unsafe and unsatisfactory. The court also considered whether the time limits for filing an appeal should be extended due to the unavailability of the appellant's counsel of choice.

The court held that it was open to the jury to find that the appellant acted in concert with his co-defendants in attacking the primary victim and that he aided and abetted the attack on the secondary victim. The court also found that there was no evidence of words or gestures between the attackers necessary to establish an agreement. The court rejected the appellant's claim that his conviction was unsafe and unsatisfactory. Regarding the time limits for filing an appeal, the court held that non-compliance with the time limits could not be justified because the appellant's counsel of choice was unavailable.

The court refused the appellant's application for leave to appeal. The appellant's conviction and sentence for intentionally causing serious injury to the secondary victim were upheld.

Orders