R v Boros - [2002] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 196 of 2001

THE QUEEN
	v.
LORENZO BOROS

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JUDGES:	ORMISTON, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2002
DATE OF JUDGMENT:	21 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 181

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Criminal Law - Judge's directions to jury - Selective answers in record of interview - Judge referring to possible inference that accused had told lies in other answers - No lies relied on by prosecution in address or commented on by defence counsel - Judge then identifying three specific lies, but counsel not given opportunity to address further - Miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Victoria Legal Aid

ORMISTON, J.A.:

The applicant for leave to appeal against conviction was convicted upon the verdict of a jury of one count of recklessly causing serious injury. Upon conviction the applicant by consent agreed to have taken into account his admitted guilt of the summary offence of using a prescribed weapon without exemption, namely a can of CS gas. He had been acquitted by the jury on the primary count of intentionally causing serious injury. The learned judge sentenced the applicant to two years' imprisonment on the count of recklessly causing serious injury and one month for the summary offence which were to be served concurrently. Her Honour ordered that the applicant serve a minimum of 10 months before becoming eligible for parole and made the customary declaration as to time served in custody.

The events leading to the conviction arose out of a dispute between neighbours in a block of units in Dandenong. There was a good deal of confusion as to what precisely occurred from those witnesses who participated and those who at least in part observed the events. Although there were originally three grounds of appeal, there remains only one ground[1], namely that the judge "erred in the direction to the jury concerning lies and consciousness of guilt", which, as argued, primarily related to the applicant's answers to questions 292 to 310 in the applicant's record of interview. It should be noted that a second ground which complained of the judge's ruling as to the admissibility of certain of those answers as demonstrating consciousness of guilt has not been pursued. Before turning to the particular questions and answers which are in issue it is desirable to give a brief summary of the events relied on by the prosecution which, in the absence of any like summary, I take substantially from the judge's remarks on sentence.
[1]The third in the original notice.

It seems that at the time of the alleged offence the applicant and his wife had been residing in a unit in St George Parade, Dandenong for approximately one year. His wife gave evidence at the trial that one evening in March 1999 they had both been watching television when they were disturbed by loud…

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 Boros

Details

AGLC: R v Boros [2002] VSCA 181
Case: [2002] VSCA 181
Decision Date: 21 October 2002

CaseChat Overview and Summary

In the matter of R v Boros, the defendant was tried for an offence under the criminal law of Australia. The case was heard in the higher court which heard the appeal. The primary dispute centred on whether the trial judge's directions to the jury regarding the defendant's record of interview amounted to a miscarriage of justice. The defendant had been questioned and provided answers during an interview which were recorded. Some of these answers were selectively presented to the jury.

The legal issues that arose in this case primarily revolved around the propriety of the trial judge's directions to the jury concerning the defendant's answers in the record of interview. Specifically, the court needed to determine whether the judge's comments, in which he referred to the possibility that the defendant had lied in other answers, were appropriate and whether they unfairly prejudiced the defendant. The defence did not raise any specific lies during their address, nor did the prosecution rely on any lies in their submissions. The judge, however, independently identified three specific instances where he believed the defendant had lied, without giving the defence counsel an opportunity to address these points.

The court found that the judge's directions to the jury, particularly his reference to potential lies in other answers without substantiation or opportunity for the defence to respond, constituted a significant error. This error was deemed to have the potential to mislead the jury and prejudice the defendant's case, thus leading to a miscarriage of justice. The court concluded that the judge's actions were not aligned with the principles of fairness and due process, and that the defendant's right to a fair trial had been compromised. The court allowed the appeal, quashed the conviction, and ordered a retrial.

Orders