R v Becirovic

Case [2017] SASCFC 156

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BECIROVIC

[2017] SASCFC 156

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)

24 November 2017

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - PROBATIVE VALUE - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Application for permission to appeal against conviction.

The applicant and a co-defendant Ms Hunt were tried by Judge alone in the District Court on three counts of trafficking in a controlled drug, one count of possession of a controlled drug, and two counts of possessing a firearm without a licence relating to drugs and firearms found by police on 7 January 2011 at house premises at Glandore occupied by Ms Hunt and allegedly also occupied on a part time basis by the applicant.

The applicant and Ms Hunt were was found guilty on one count of trafficking and one count of possession of a controlled drug on counts 3 and 4. The applicant was found guilty and Ms Hunt not guilty of the remaining counts.

The grounds of appeal are that the convictions are unreasonable and unsupported by the evidence; error in the admission of and directions regarding discreditable conduct evidence; inadequacy of reasons for the findings of guilt, and error in the admission and use of certain documents found at the premises.

Held, allowing the appeal in part:

1.   Per Lovell & Hinton JJ. The Judge erred in using the documents found at the premises for an impermissible hearsay use (at [194]).

Per Blue J (dissenting). The Judge did not err in the admission and use of the documents found at the premises (at [38]).

2.   Per Blue J and Lovell & Hinton JJ. The Judge did not err in admitting evidence relating to other counts in relation to counts 1, 2, 5 and 6 or engage in impermissible propensity reasoning (at [48] and [203]).

3. Per Lovell & Hinton JJ. The Judge erred in failing to give himself the directions required by section 34R of the Evidence Act 1929 (SA) (at [207]).

Per Blue J (dissenting). The Judge did not err in failing to give himself the directions required by section 34R of the Evidence Act 1929 (SA) (at [57]).

4.   Per Lovell & Hinton JJ (Blue J agreeing). It was open to the trier of fact to be satisfied beyond reasonable doubt of the applicant’s guilt on each count (at [255]).

5.   Per Blue J and Lovell & Hinton JJ. The Judge’s reasons were inadequate in relation to counts 1 and 2 (at [82] and [257]).

6.   Per Lovell & Hinton JJ The Judge’s reasons were inadequate…

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Details
AGLC
R v Becirovic [2017] SASCFC 156
Case
[2017] SASCFC 156
Decision Date

CaseChat Overview and Summary

The applicant, R v Becirovic, appealed to the Full Court of the Supreme Court of South Australia against his convictions. The dispute concerned the admissibility of certain documents seized from a property and a vehicle, and whether their admission constituted an error of law by the trial judge. The prosecution had tendered these documents, along with other evidence, to establish a connection between the applicant and a Ms Hunt, and a property and vehicle associated with her.

The primary legal issue before the Full Court was whether the trial judge erred in admitting the documents under section 45A of the *Evidence Act 1929* (SA). This ground of appeal argued that there was insufficient connection between the documents and the applicant, and that their use was dependent on a hearsay purpose. The court was required to consider the scope and application of section 45A, which provided for the admission of apparently genuine business records unless specific exclusionary grounds were met.

The Full Court reasoned that while section 45A rendered business records admissible without further proof if they were apparently genuine, the court retained a discretion to exclude them. This discretion could be exercised if the maker of the document could and should be called, if the evidentiary weight was slight and outweighed by prejudice, or if admission was otherwise contrary to the interests of justice. The court noted that the onus of persuasion for exclusion lay with the party opposing the tender. In this instance, the court found that the eighth ground of appeal, relating to the admission of the documents, was made out to the extent indicated.

Consequently, the Full Court granted the applicant permission to appeal on all grounds. The convictions on counts 1-4 were set aside, and the matter was remitted for a re-trial on those counts. The court also noted that a prior ruling by the trial judge concerning firearms found in the vehicle, which found the applicant possessed the car, should be reconsidered at the retrial.

Orders

Orders of the court

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Background

Background to the litigation

Ground 9 is that the Judge erred in admitting documents located in the Glandore property and the Chrysler sedan outside the property when there was insufficient connection between the documents and the applicant and the use of the documents was dependent on the testimonial use of the documents involving a hearsay purpose.Background The prosecution tendered at trial documents proving that the applicant and Ms Hunt had a son, Arman, born in October 2009 and had been in a relationship since at least 2007 (notwithstanding that the applicant was married and generally resided with his wife and two children at Eden Hills). The prosecution tendered documents showing that in 2010 Ms Hunt was living at Richmond, in May 2010 she entered into a contract to purchase the Glandore property and in June 2010 settlement took place with the transferees being her parents. The prosecution tendered declarations by police officers who attended at the Glandore premises on 7 January 2011 stating that they observed extensive renovations being undertaken, some rooms having been completed and others uncompleted, and numerous items of new furniture and appliances. They found clothing and accessories belonging to a male and female in each half of a wardrobe and drawers in the bedroom, male toiletries in the bathroom, and male steroids in a medicine cabinet, the pantry and the refrigerator in the kitchen. The prosecution tendered statements by police officers that they found two toothbrushes in the bathroom which they submitted together with the steroid bottle from the medicine cabinet for DNA testing and a statement by a Forensic Science South Australia officer of testing that demonstrated a match between DNA found on the toothbrush and steroid bottle and the DNA of the applicant. The prosecution tendered statements by police officers that they found water bottles in the bedroom and kitchen which they submitted for fingerprint testing and a statement by a Forensic Science South Australia officer of testing that demonstrated a match between fingerprints found on the water bottles and the fingerprints of the applicant. The prosecution tendered numerous photographs obtained from the premises and from Ms Hunt’s phone showing the applicant with and without Ms Hunt. The prosecution also tendered documents that proved that the Chrysler sedan parked in the driveway at the premises was registered in the name of the applicant’s wife. The evidence summarised above demonstrated a clear connection between the applicant and Ms Hunt, the Glandore premises and the Chrysler sedan. Given that evidence, while the documents the subject of this appeal ground added a little colour to the picture, they cannot be regarded as critical in respect of the connection between the applicant and Ms Hunt, the Glandore premises and the Chrysler sedan.The documents The prosecution tendered at trial two groups of documents found by the police at the Glandore premises on 7 January 2011 (the documents). 1.One bundle comprised documents found in the bedroom contained within two “Cocksauld” brand folders and two bundles comprised documents found in the dining room in a sideboard in a leather diary and striped box (which became exhibits P9A, P10A and P11A respectively). 2.One bundle comprised documents found in the glove box of the black Chrysler sedan parked in the driveway registered in the name of the applicant’s wife (which became exhibit P19A).

Evidence

Evidence Before The Court

The prosecutor relied on section 45A of the Evidence Act 1929 (SA) (the Evidence Act) for admission of the documents.[9] Section 45A rendered an ostensible business document admissible as evidence of the truth of its contents without further proof. Section 45A provided:[9] Section 45A has since been repealed and replaced by section 53 in almost identical terms with effect from 4 April 2016.45A Admission of business records in evidence (1)An apparently genuine document purporting to be a business record— (a) shall be admissible in evidence without further proof; and (b) shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence). (2)A document shall not be admitted in evidence under this section if the court is of the opinion— (a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or (b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or (c) that it would be otherwise contrary to the interests of justice to admit the document in evidence. (3)For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters. (4)In this section—business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality; business record means— (a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or (b) any reproduction of any such record by photographic, photostatic, lithographic or other like process. It is to be observed that subsection 45A(1) renders admissible any document that purports to be a business record if it is apparently genuine. If this criterion is satisfied, the document is admissible without more. Subsection 45A(2) confers on the court a discretion to exclude admission of the document on one of three grounds (a statutory embodiment of or variation on the common law general unfairness (Christie) discretion) but the onus of persuasion on exclusion lies on the party opposing tender of the document.[10][10] Burnside Sub-Branch RSSILA Incorporated v Burnside Memorial Bowling Club Inc (1990) 58 SASR 324 at 339 per Jacobs, Cox and Matheson JJ. The documents are all paradigm business records and there was no suggestion at trial otherwise. The Judge initially raised with the prosecutor a question whether under section 45A the prosecution needed to satisfy the court that the maker of the document could not be called to give evidence[11] but the prosecutor later referred the Judge to subsection 45A(2) and demonstrated that it is to be admitted unless a ground is established to reject it (ie it is an exclusionary provision).[11] [T221/38].

Decision

Reasons for decision

BLUE J
We note in passing the Judge’s decision to sever counts 7-9 concerning firearms located in a Chrysler motor vehicle parked in the driveway of the Glandore premises and his finding that the applicant possessed the car. Given that Ms Hunt will not be a co-accused at the retrial, and the probative nature of the evidence, that ruling should be reconsidered. Conclusion We would grant the applicant permission to appeal on all grounds. We find the eighth ground of appeal made out to the extent that we have indicated. We would set aside the applicant’s convictions on counts 1-4 and remit the matter for re-trial on those counts.

Ratio Decidendi

Legal Principle Established

Established by: BLUE J

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