R v Gojanovic - [2002] VSC 117

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:	5 MARCH 2002
CASE MAY BE CITED AS:	R. v. GOJANOVIC
MEDIUM NEUTRAL CITATION:	[2002] VSC 117	First revision 5/9/03

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CATCHWORDS: Ruling – Admissibility of recorded interview with accused – Issues of voluntariness (overbearing of suspect's will) - Unfairness and public policy discretions – Breach of s.464H of Crimes Act 1958 – Held: interview voluntary and no enlivening of the unfairness and public policy discretion.

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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:

The deceased, Angela Farnsworth, met her death on 12 March 2001 at her home at 68 Pavo Street, Belmont. The cause of her death was strangulation, effected with a dressing gown cord. A number of head injuries had also been inflicted, some at least being consistent with a blow from a rubber mallet.

Based on the evidence of Ms Farnsworth's next-door neighbours, the Hills, who heard her screaming, the time of her death was placed at shortly after 4.15 a.m. Additionally, phone calls to the premises after that time were not answered.

The accused, Denis Gojanovic, had been in a de facto relationship with Ms Farnsworth. She had recently terminated it. There was a child of that relationship, named Nicholas, who was two years old at the time of his mother's death. On 11 March he was effectively in the custody of his father, spending that day and the ensuing night at the house of the accused's sister, Ms Assia Baban, at St Leonards.

It appears that during the early evening there were discussions between the accused and his sister and mother, Mrs Graziella Gojanovic, about the future of Nicholas. The accused expressed a disinclination to return him to his mother, being critical of her parenting practices.

According to Ms Baban, the accused left the house about ten o'clock that evening, having indicated that he intended to go fishing, apparently for squid. She next saw him when he returned to the premises at about 5.00 a.m. The clothes drier was operating and the accused told her he had got squid ink on his pants. Later that morning the accused took his son Nicholas to the deceased's Pavo Street premises, arriving about 9.45 a.m.

He indicated to investigating police that he had come to return Nicholas to his mother and, in response to an enquiry as to his whereabouts the previous night, indicated that he had gone fishing alone some time after 10.00 p.m.

The accused was requested to attend at the Geelong Police Station to make a statement. This he did. That statement, which was taken by Detective Senior Constable Mark Colbert and concluded at 2.10 p.m., was acknowledged as being true and correct and signed…

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 117
Case: [2002] VSC 117
Decision Date: 5 March 2002

CaseChat Overview and Summary

In the matter of R v Gojanovic, the respondent was prosecuted for various criminal offences under the Crimes Act 1958. The dispute centred on the admissibility of a recorded interview with the accused, which was central to the prosecution's case. The Victorian Supreme Court was tasked with determining whether the interview could be admitted into evidence, given concerns about the voluntariness of the respondent's statements and potential breaches of statutory provisions.

The primary legal issues revolved around whether the interview was conducted in a manner that was voluntary, free from any coercion or overbearing of the respondent's will. The court also had to consider whether the admission of the interview would result in unfairness to the respondent or be against public policy, invoking the discretions under s.464H of the Crimes Act 1958. Furthermore, the court had to examine if there was a breach of this section, which mandates the presence of a legal practitioner during interviews of suspects.

The court held that the interview was voluntary, as there was no evidence to suggest that the respondent's will was overborne at any point during the interview. The court found that the respondent was adequately informed of their rights and the consequences of making statements, and that the interview was conducted in a manner that did not amount to unfairness or contravene public policy. As such, the court did not find it necessary to exercise its discretion under s.464H, as the statutory breach did not result in a significant injustice or unfairness to the respondent. The court concluded that the recorded interview could be admitted as evidence against the respondent.

The court ordered that the recorded interview be admitted as evidence in the proceedings against the respondent, finding it to be a voluntary statement and not against the public interest or fairness.

Orders