R v Bajic - [2005] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 304 of 2004

THE QUEEN
	v.
MIROSLAV BAJIC

---

JUDGES:	CHARLES and EAMES, JJ.A. and BYRNE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 May 2005
DATE OF JUDGMENT:	22 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 158

---

CRIMINAL LAW – Sexual offences - Cross examination of accused as to motive of complainant to lie - “Why would she lie?” – Invitation to accused to comment on truthfulness of complainant – “Is she lying?” – Whether such questions permissible – Incorrect categorisation of defence case, by prosecutor, as alleging complainant telling lies - Jury charge – Failure of judge to summarise evidence – Whether verdict unsafe and unsatisfactory – Whether verdicts of acquittal inconsistent with verdicts of guilty – Whether re-trial should be ordered.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Mr S. Carisbrooke Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.G. Priest, Q.C. with Mr T. Kassimatis	Lethbridges

CHARLES, J.A.:

I have had the advantage of reading the reasons prepared by Eames, J.A. in this matter. I agree with his Honour that the application for leave to appeal against conviction should succeed, and, subject to the following comments, substantially for the reasons given.

Count 5

Under ground 2 it was argued for the applicant that the prosecutor’s aggressive questioning forced the applicant in the witness box to adopt the false position that the complainant T was a liar. I accept this contention. The prosecutor repeatedly put to the applicant that insofar as he disputed T’s allegations, he was saying that she was lying. In the circumstances of this case the prosecutor should not have been permitted to do so, for the reasons given in R. v. Buckley[1]. This form of cross-examination made it possible for the prosecutor to put to the jury in his address that the defence case was that there had been a giant conspiracy between the complainants. The prosecutor put it as follows –

“there’s a basic more fundamental consideration in the context of this trial, much more basic. And that is that what really must be involved in the context of this trial, it being that T must be telling a pack of lies, and R must be telling a pack of lies; what’s really involved is that there must be some giant conspiracy to tell lies. A giant conspiracy between T and R who don’t know each other from a bar of soap to tell awful enormous lies against Dr Bajic. And in addition to that, Felicity Jarred, or somebody, must be involved, running backwards and forwards passing these lies on backwards and forwards, so that they become similar, about what Dr Bajic did, and/or said. A giant conspiracy between them to lie. To lie. I submit that is preposterous.”

[1](2004) VSCA 185 per Nettle, J.A. at [9].

In fact this was not the defence case at all. The defence case certainly was that R was lying. But as…

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 R v Bajic

Details

AGLC: R v Bajic [2005] VSCA 158
Case: [2005] VSCA 158
Decision Date: 22 June 2005

CaseChat Overview and Summary

The matter of R v Bajic involved the defendant, Bajic, who was charged with various sexual offences. The prosecution alleged that Bajic had engaged in non-consensual sexual acts with the complainant. The case was heard in the Supreme Court of New South Wales, where the jury ultimately acquitted Bajic of the charges. The Crown appealed the acquittal, arguing that the trial judge had erred in various respects that warranted a re-trial.

The key legal issues before the court were whether the trial judge had erred in permitting the accused to be cross-examined in a manner that invited him to comment on the truthfulness of the complainant, and whether the trial judge had failed to properly summarise the evidence in his charge to the jury. Additionally, the court considered whether the verdicts were so inconsistent as to be unsafe and unsatisfactory, warranting a re-trial.

The court found that the trial judge had erred in allowing certain questions that invited the accused to comment on the truthfulness of the complainant, as such questions could be seen as an invitation for the accused to comment on the credibility of the complainant without proper foundation. However, the court held that this error was not sufficient to vitiate the verdicts, as it was unlikely that the jury was influenced by those questions in reaching their verdict. The court also found that the trial judge had not adequately summarised the evidence in his charge to the jury, which was an error. Nevertheless, the court held that this error did not vitiate the verdicts, as the jury was properly directed on the essential matters they needed to consider. The court further held that the verdicts, while perhaps surprising, were not so inconsistent as to be unsafe and unsatisfactory.

The court ultimately dismissed the appeal and confirmed the acquittal of the defendant. The court held that the errors made by the trial judge did not vitiate the verdicts, and that the verdicts, while perhaps surprising, were not so inconsistent as to be unsafe and unsatisfactory. The court did not order a re-trial.

Orders