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R v Gojanovic (No 2)

R v Gojanovic (No 2)

Case [2007] VSCA 153 14 August 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 103 of 2005

THE QUEEN
	v
DENIS PAUL GOJANOVIC (NO 2)

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JUDGES:	ASHLEY and KELLAM JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2007
DATE OF JUDGMENT:	14 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 153

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Criminal law – Murder – Consciousness of guilt – Relationship evidence – Adequacy of propensity warning – Provocation – Applications for leave to appeal against conviction and sentence dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr G F Meredith	Brugman Mellas

ASHLEY JA:
KELLAM JA:
KAYE AJA:

In May 2002 the applicant was found guilty by a jury of the murder of Angela Farnsworth. On 2 July 2004 the Court of Appeal, by a majority, set aside that verdict and ordered that the applicant be re-tried.[1] On his retrial, on 24 March 2005 a jury found the applicant guilty of the murder of Ms Farnsworth on 12 March 2001. On 6 April 2005 the applicant was sentenced to a term of imprisonment of 20 years. The sentencing judge directed that the applicant not be eligible for parole until he had served a period of 15 years’ imprisonment. The applicant now seeks leave to appeal against both conviction and sentence.
[1]See R v Gojanovic [2004] VSCA 118.

Stated briefly, the Crown case at trial was as follows[2]. The deceased entered into a de facto relationship with the applicant in 1996. At that time she was the mother of three children as the result of two previous marriages. In 1998 the relationship between the deceased and the applicant resulted in the birth of a son. Upon the birth of that child the applicant and the deceased rented premises at Chelmsford Avenue in Herne Hill. They occupied those premises until late 2000, at which time they were evicted for failure to pay rent.
[2]We will not keep repeating that what we now set out is the Crown case. In due course we will identify the defence case. All that precedes it is to be understood as constituting the Crown case.

By 2000, the relationship between the applicant and the deceased had deteriorated to such an extent that during that year they separated and reconciled on several occasions. The deterioration in the relationship between the parties developed at least partly because the deceased had a gambling habit and spent a considerable part of her time and money playing poker machines at various venues throughout Geelong. A further area of dispute was a concern held by the applicant that the deceased did not care for their son adequately.

In July 2000 an incident occurred in which the applicant assaulted the deceased. The Crown contended that thereafter she became fearful of him.

In October 2000 the deceased moved into premises at Pavo Street, Belmont, with three of her four children. The applicant continued to visit her and their son on…

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 (No 2)

Details

AGLC: R v Gojanovic (No 2) [2007] VSCA 153
Case: [2007] VSCA 153
Decision Date: 14 August 2007

CaseChat Overview and Summary

In the matter of R v Gojanovic (No 2), the respondent, Mr Gojanovic, appealed against his conviction and sentence for the murder of his de facto partner, Ms Pavicevic. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge adequately instructed the jury on the principles of propensity evidence, provocation, and consciousness of guilt, and whether these instructions were sufficient to ensure a fair trial.

The court considered whether the trial judge's directions to the jury regarding propensity evidence were adequate, specifically if they were sufficient to mitigate any prejudicial impact of such evidence. Additionally, the court examined whether the trial judge properly addressed the concept of provocation and its potential mitigating effect on the charge of murder. Furthermore, the court assessed if the jury was sufficiently guided on the relevance and weight of evidence pertaining to consciousness of guilt.

The High Court found that the trial judge's instructions to the jury were sufficient to ensure a fair trial. The court concluded that the judge's directions on propensity evidence were adequate in guiding the jury on how to consider such evidence without it unduly influencing their decision. The court also found that the trial judge appropriately addressed the concept of provocation and its potential mitigating effect on the murder charge. Finally, the court held that the jury was adequately instructed on the relevance and weight of evidence concerning consciousness of guilt. Consequently, the High Court dismissed the applications for leave to appeal against both the conviction and the sentence.

Orders