R v Gojanovic - [2004] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 224 of 2002

THE QUEEN
	v.
DENIS PAUL GOJANOVIC

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JUDGES:	CHARLES, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2004
DATE OF JUDGMENT:	2 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 118	1^st Revision – 18 August 2004

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CRIMINAL LAW – Conviction – Murder – Defences of provocation and no intent to murder – Evidence admitted of bad relations between applicant and deceased – Deceased in fear of applicant for 8 months prior to death – Evidence of threat by deceased one week before death to stab accused excluded – Relevance – Whether defence prejudiced – Miscarriage of justice – Proviso to Crimes Act 1958 s.568(1) not applicable – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. Ms L. Ruschena	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr J. Montgomery	Victoria Legal Aid

CHARLES, J.A.:

On 20 February 2002 the applicant was presented in the Supreme Court at Geelong for trial on one count of murder. A lengthy “Basha[1] inquiry” then took place between 20 February and 5 March. The trial proper commenced on 1 May 2002, when the applicant pleaded not guilty. The Crown case concluded on 20 May. The applicant stood mute and five witnesses were called on his behalf. The defence case closed on 22 May. On 31 May 2002, the jury returned a verdict of guilty of murder. After a plea in mitigation, the judge on 19 September 2002 sentenced the applicant to be imprisoned for 20 years, fixing a non-parole period of 15 years.
[1]R. v. Basha (1989) 39 A.Crim.R. 337.

The applicant now seeks leave to appeal against conviction and sentence. Ground 6 of the application touching conviction claims that the trial judge erred in refusing to allow cross-examination of one Mark Farnsworth as to a statement made by him in depositions that, about a week before the death of the deceased, the deceased said that she was going to stab the applicant the next time she saw him. This ground was the principal issue in the appeal.

The Crown case was as follows. Angela Farnsworth (the deceased) and the applicant commenced a de facto relationship in 1996. The applicant worked as a musician in a band that played in the Geelong area. She had been married twice before and already had three children as a result of these marriages. From her relationship with the applicant a son (Nicholas) was born in 1998. When the child was born they moved to rented premises at Chelmsford Avenue in Herne Hill. By the end of the year 2000 the relationship between the couple had deteriorated, and to such an extent that they separated. Ill-feeling appears to have developed partly because the deceased had developed a gambling habit, and was spending most of her money on poker machines at various venues around Geelong, and, according to the applicant, in consequence not caring…

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 Gojanovic

Details

AGLC: R v Gojanovic [2004] VSCA 118
Case: [2004] VSCA 118
Decision Date: 2 July 2004

CaseChat Overview and Summary

The case of R v Gojanovic involved the applicant, an Australian citizen, who was convicted of murder and sentenced to life imprisonment. The deceased, who was also an Australian citizen, was found dead, and the applicant was the last person seen with the deceased. The applicant appealed against his conviction, arguing that the trial judge had erred in excluding evidence that was relevant to the defences of provocation and the absence of intent to murder. The High Court of Australia was tasked with determining whether the exclusion of this evidence constituted a miscarriage of justice.

The primary legal issue before the court was whether the exclusion of evidence by the trial judge amounted to a miscarriage of justice under the proviso to section 568(1) of the Crimes Act 1958. The court considered whether the excluded evidence was relevant to the defences of provocation and no intent to murder, and if the exclusion prejudiced the applicant's case. The court also assessed whether the proviso applied, which would have allowed for the admission of evidence that was otherwise inadmissible.

The court held that the trial judge's exclusion of evidence concerning the bad relations between the applicant and the deceased, as well as the deceased's fear of the applicant for eight months prior to death, was indeed relevant to the defences of provocation and no intent to murder. The court found that this exclusion had the potential to prejudice the applicant's case, as it deprived him of a significant opportunity to present a complete defence. However, the court concluded that the proviso to section 568(1) of the Crimes Act 1958 did not apply in this case, as the excluded evidence was not of a kind that would otherwise have been inadmissible. Consequently, the court allowed the appeal and quashed the conviction.

The final orders of the court were that the appeal was allowed, the conviction was quashed, and the matter was remitted to the Court of Appeal for further consideration. The court emphasised the importance of ensuring that all relevant evidence is considered in criminal trials, particularly when it relates to the defence of provocation and the intent to murder. This case serves as a reminder of the need for trial judges to carefully consider the admissibility of evidence and its potential impact on the accused's defence.

Orders