R v Gojanovic - [2002] VSC 118

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1494 of 2001

THE QUEEN

DENNIS GOJANOVIC

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20-22, 25-28 FEBRUARY; 1 MARCH 2002
DATE OF RULING:	13 MARCH 2002
CASE MAY BE CITED AS:	R. v. GOJANOVIC
MEDIUM NEUTRAL CITATION:	[2002] VSC 118	First Revision 14/8/02

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CATCHWORDS: Ruling – Admissibility of evidence of relationship of accused and deceased – Evidence of statement of the deceased of assault by, and fear of, the accused – Relevant to intent and provocation – Circumstances enabling more flexible approach to the hearsay rule.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.L. leckie SC	P. Fowler, Solicitor for Public Prosecutions
For the Accused	Mr. A. Lewis	M. Brugman

HIS HONOUR:

I am asked to rule on both the relevance and the ambit of evidence of the relationship of the accused Denis Gojanovic and the deceased Angela Farnsworth. Such evidence is available from a large number of witnesses and the Crown seek to adduce it in the course of the trial.

It is perhaps helpful to set out the principles to be applied in determining the extent of admissibility of this evidence.

In R v. Arnott, (an unreported decision of 23 April 1992,) I remarked:

"The principles applicable to this type of evidence have been canvassed in a number of cases. These include Shaw v. R [1952] 85 C.L.R. 365, R v. Tsingopoulos [1964] V.R. 676, Wilson v. R [1970] 123 C.L.R. 334, R v. Iuliano [1971] V.R. 412 and R v. Hissey [1973] 6 S.A.S.R. 280.

From these cases the following propositions relating to admissibility emerge:
(1)The evidence of the prior relationship, (being a relationship of enmity or antipathy), of the accused and the deceased must be reasonably explanatory of the conduct with which the accused is charged;
(2)Such evidence may be adduced to establish motive, or intent, or the fact of the commission of the offence charged;
(3)It is not necessary that any particular incident the subject of evidence pertaining to the relationship should singly and of its own force establish a relationship of enmity. It is sufficient if the incident related makes a contribution which is not insignificant or insubstantial to the climate of enmity or antipathy;
(4)An incident in a relationship which is isolated or remote in time from the death may be insufficient to have any bearing on the issues of motive or intent or the fact of the commission of the crime charged;
(5)Evidence of a prior relationship of enmity or antipathy is not to be led as evidence of bad character or of a propensity towards violence of an accused."

Since that statement, the issue of relationship evidence has received attention in such Victorian cases as R v. Anderson (2000) 1 V.R. 1, per Winneke, P. P.12 ff. and R v. Parsons (2000) 1 V.R. 161 per Brooking, J. at p.167 ff. Both cases refer to the judgment of Gleeson, C.J.…

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 [2002] VSC 118
Case: [2002] VSC 118
Decision Date: 13 March 2002

CaseChat Overview and Summary

In the case of R v Gojanovic, the defendant was charged with the murder of a woman. The dispute involved the admissibility of evidence concerning the relationship between the accused and the deceased, specifically statements made by the deceased about being assaulted by the accused and expressing fear towards him. The case was heard in the Supreme Court of Victoria. The central legal issue was whether the statements of the deceased could be admitted as evidence, despite the hearsay rule, due to their relevance to the accused’s intent and potential provocation.

The court examined the circumstances under which the hearsay rule might be more flexibly applied. It considered whether the statements were necessary to understand the context of the charged offence, specifically in relation to the accused’s state of mind and the possible provocation. The court held that the statements were pertinent as they provided insight into the relationship dynamics and the deceased’s fear, which were crucial in assessing the accused’s intent and potential provocation at the time of the crime. This nuanced understanding was deemed necessary for a fair evaluation of the case.

As a result, the court ruled that the hearsay evidence was admissible. This decision was based on the premise that the statements were relevant to establishing the accused’s intent and the context of the incident. The court determined that the circumstances warranted a more flexible approach to the traditional hearsay rule, allowing the statements to be considered in the overall assessment of the case. This ruling was pivotal in determining the admissibility of the evidence, which ultimately influenced the proceedings against the accused.

Orders