R v Gojanovic - [2005] VSC 9

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1494 of 2001

THE QUEEN

DENIS GOJANOVIC

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 January 2005
DATE OF RULING:	27 January 2005
CASE MAY BE CITED AS:	R v Gojanovic (Venue Ruling)
MEDIUM NEUTRAL CITATION:	[2005] VSC 9	Revised 1 February 2005

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CRIMINAL LAW – Practice and procedure – Place of trial – Application for change of venue – Test to be applied – Primary entitlement of local community to have local cases tried locally – Application based on publicity given locally to a previous trial and to the result of appeal and upon diabetic condition of accused - s.359(1) Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms M. Williams	The Solicitor for the Commonwealth Office of Public Prosecutions
For the Defendant	Mr B. Lindner	Brugman & Mellas

HIS HONOUR:

This is an application on behalf of the accused, Dennis Gojanovic for a change of venue from the sittings of the Supreme Court of Geelong to its sittings at Melbourne.

The application came on first before Osborn J on 16 December 2004. Unfortunately by reason of technical difficulties a recording of those proceedings was not made and no transcript is available. However, His Honour prepared file notes of his ruling. It is clear from those file notes that His Honour was not satisfied on the material before him at that time that the application should be granted, but he gave both the prosecution and the accused an opportunity to present further material before the court. He adjourned the matter until 24 January 2005 to enable that to occur. He made it clear that he would be unable to deal with the matter that day but that a judge would be available to deal with it. Both the prosecution and those acting on behalf of the accused man have provided further information and Mr Lindner of counsel, who now appears for the accused, has renewed the application for a change of venue to be made.

The accused in this matter is charged with murder. He was convicted before a jury in Geelong in 2002. On 2 July 2004 his conviction was set aside by the Court of Appeal and an order was made for his retrial. That retrial is currently fixed for hearing at Geelong on 9 February 2005.

The application for change of venue is supported by an affidavit sworn by the accused man dated 26 November 2004. The accused in that affidavit states that he suffers from Type 1 Diabetes, and has done so since approximately July 1987. His medical treatment regime requires that he take insulin subcutaneously four times per day at least half an hour before meal times. He has been in receipt of this treatment regime for some time, and in particular during his first trial in 2002, he was required to take insulin subcutaneously four times per day.

At the time that he…

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 [2005] VSC 9
Case: [2005] VSC 9
Decision Date: 27 January 2005

CaseChat Overview and Summary

The case of R v Gojanovic involved the accused, who was being tried for a criminal offence, applying for a change of venue due to concerns about the local publicity and their diabetic condition. The matter was heard in the Supreme Court of Victoria. The primary issue for the court to decide was whether the trial should be moved from its original venue in accordance with section 359(1) of the Crimes Act 1958. This section provides that a trial may be moved if the court is satisfied that the accused cannot receive a fair trial in the local area.

The court considered the established legal test for moving a trial, which balances the right of the community to have local cases tried locally against the need to ensure the accused receives a fair trial. The court noted that while the publicity in the local area was extensive, it did not necessarily mean that the accused could not receive a fair trial. The court also considered the accused's diabetic condition, but found that it did not outweigh the strong public interest in having the trial conducted in the local area. The court concluded that the accused had not satisfied the test for a change of venue and dismissed the application.

As a result of the court's decision, the trial proceeded in the original venue. The court did not make any specific orders regarding the management of the accused's diabetic condition during the trial, as it was not considered necessary to grant the change of venue application. The accused's right to a fair trial was not compromised, and the local community's right to have local cases tried locally was upheld.

Orders