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R v Brdarovski

R v Brdarovski

Case [2006] VSCA 231 1 November 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 278 of 2004

THE QUEEN
	v.
ZIVKO BRDAROVSKI

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JUDGES:	NETTLE and ASHLEY, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2006
DATE OF JUDGMENT:	1 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 231

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CRIMINAL LAW – Rape – Appeal against conviction and sentence – Evidence of distress – Evidence of complaint – Whether judge misdirected jury as to significance of distress evidence and complaint evidence – Appeal against conviction allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan, S.C.	Ms A. Cannon Solicitor for Public Prosecutions
For the Applicant	Mr G.F. Meredith	Victoria Legal Aid

NETTLE, J.A.:

On 27 July 2004 the applicant was arraigned before the County Court at Melbourne on one count of rape, to which he pleaded not guilty, and after a trial lasting some three days he was convicted as charged. Following a plea in mitigation in which counsel for the applicant stressed the applicant’s personal history, good character and lack of prior convictions, on 20 October 2004 the judge sentenced the applicant to imprisonment for a period of five and a half years with a non-parole period of four years. The applicant now applies for leave to appeal against his conviction and sentence.

The circumstances of the offence

At the time of the offence the applicant was 42 years of age and employed as an orderly at the Royal Melbourne Hospital. The victim was a thirty-five year old woman who worked night shift at the hospital as a contract cleaner. Her employer’s contract with the hospital was set to expire on 23 May 2003 and that was scheduled to be her last day of work at the hospital. She began work at the hospital that night at about 11.00 p.m. and at about 12.20 to 12.30 a.m. the following morning she and the applicant came across each other on the seventh floor of the hospital. The Crown case and the victims’ evidence at trial was that she needed a rubbish bin for her work and the applicant told her that he would accompany her to the basement where bins were available in a storage room. Once there, he closed the door behind her and forced himself upon her. He said to her that today was her last day and that he and she could do something together about which no-one else would know. She protested and resisted but he held her from behind in order forcibly to remove her clothes and then pushed her towards and over a cabinet and penetrated her vagina with his penis from behind until he ejaculated within her.

When later apprehended by police the applicant at first denied having any sexual contact with the victim and agreed to provide a DNA sample for testing, but later, possibly after he was told that the sample matched with DNA found on the clothes the complainant was wearing at the time of the offence, the applicant admitted…

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.

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Details

AGLC: R v Brdarovski [2006] VSCA 231
Case: [2006] VSCA 231
Decision Date: 1 November 2006

CaseChat Overview and Summary

The case of R v Brdarovski involved the appellant, Brdarovski, appealing against his conviction and sentence for the offence of rape. The appellant was tried in the Supreme Court of Victoria and subsequently convicted. The appeal was heard in the Court of Appeal, which consisted of the Honourable Justices Byrne, Maxwell, and Weinberg. The central issue in the appeal was whether the trial judge misdirected the jury regarding the significance of certain evidence, namely the complainant's distress and her complaint to a third party shortly after the alleged incident. This misdirection, if it occurred, could potentially have affected the safety of the jury's verdict.

The court was tasked with determining whether the trial judge erred in instructing the jury on the weight to be given to the evidence of the complainant's distress and her immediate complaint to a third party. The appellant argued that the judge misdirected the jury by not adequately explaining that such evidence could not be determinative of his guilt. The prosecution contended that the trial judge's directions were appropriate and did not misdirect the jury. The court needed to assess the trial judge's directions in their entirety and determine whether they might have led the jury to place undue weight on the distress and complaint evidence.

In assessing the trial judge's directions, the Court of Appeal found that the trial judge did not adequately explain to the jury that the evidence of the complainant's distress and her immediate complaint could not be determinative of the appellant's guilt. The court determined that this misdirection could have potentially led the jury to convict the appellant on unsafe grounds. Consequently, the Court of Appeal allowed the appeal against conviction, quashed the conviction, and ordered a retrial. No orders were made in relation to the sentence as the conviction was quashed.

Orders