R v Golubovic

Case [2016] SASCFC 144


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GOLUBOVIC

[2016] SASCFC 144

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Doyle)

21 December 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY - REASONABLE DOUBT

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - DIRECTIONS TO JURY

Appeal against conviction.

The appellant was found guilty by a jury of five counts of possession of child pornography.

In July 2012, officers of the sexual crime investigation branch attended at residential premises where the appellant and his mother lived. The police found in the sleepout of the main house a computer, use of which was shared between the appellant and his mother. The police found on the computer a software program called LimeWire that enabled a user to download files from computers on which LimeWire was also installed so at to share files. The police found five files containing child pornography. In addition, there were records that another 14 files had previously been downloaded but had been deleted which had file names suggestive of child pornography. There were also 483 files that appeared to have been downloaded using LimeWire, the names of some of which were suggestive of generic pornography.

When the police attended, Detective Fitzgerald informed the appellant that he believed that a computer at the premises had files suggestive of child pornography available for sharing through a sharing network and the appellant responded that there was a computer that stayed on constantly, the house was open during the day time, the computer had a downloading device on it that was about 2007 and he rarely used the computer.

At the trial, the appellant’s mother, uncle and cousin gave evidence that they did not download and were not aware of the child pornography on the computer. Detective Fitzgerald gave evidence that some of the words in the names of the files were commonly used and recognised by those interested in child pornography.

No objection was raised at trial to the admission of evidence of other files on the computer and no issue in relation to discreditable conduct evidence was raised.

The defendant appeals, and seeks permission to appeal, against his convictions on grounds that:

1.  evidence by Detective Fitzgerald of a conversation with the appellant’s mother was wrongly admitted;

2.  evidence about the meaning of certain keywords was wrongly admitted and the Judge erroneously summarised the evidence that search terms employed by the user of the computer disclosed an attempt…

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R v Golubovic [2016] SASCFC 144
Case
[2016] SASCFC 144
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for child pornography offences. The appellant, Mr Golubovic, was found guilty on counts 1 to 4 and by majority on count 5. The central issue on appeal was the admissibility of evidence given in re-examination by Detective Fitzgerald concerning a conversation with Vera Golubovic, the appellant's mother.

The court was required to determine whether the re-examination of Detective Fitzgerald was permissible. Specifically, the appellant argued that the topic of his conversation with Vera Golubovic had not been left in an ambiguous state by the cross-examination, and therefore, rehabilitation of the detective's evidence was not justified. The appellant further contended that the re-examination introduced inadmissible hearsay evidence suggesting Vera Golubovic used the computer infrequently and possessed limited computer knowledge.

The Full Court, comprising Blue, Nicholson, and Doyle JJ, allowed the appeal. Blue J, with whom Nicholson and Doyle JJ agreed, found that the re-examination was improper. The court reasoned that the cross-examination had not created ambiguity regarding the detective's reasons for discounting Vera Golubovic as the primary suspect. Consequently, the re-examination, which elicited statements from Vera Golubovic about her computer usage and knowledge, served to introduce inadmissible hearsay evidence rather than to clarify or rehabilitate the detective's testimony.

The court concluded that a miscarriage of justice had occurred due to the wrongful admission of this evidence. Accordingly, permission to appeal was granted, the appeal was allowed, the convictions were set aside, and the matter was remitted to the District Court for a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Judge summed up to the jury. The jury returned after considering its verdict for just over four hours. The jury unanimously found the appellant guilty of counts 1 to 4 and by majority found the appellant guilty of count 5.Admissibility of evidence of conversation with Vera Golubovic The appellant seeks permission to appeal on the ground that his trial miscarried as a result of the Judge wrongly admitting evidence in re-examination of Detective Fitzgerald concerning his conversation with Vera.[15][15] Ground 1.2. Detective Fitzgerald was asked a series of questions in cross-examination leading to a suggestion that he was looking for anything to implicate the appellant. In the course of the cross-examination, it was put to him that he discounted Vera Golubovic as the person in possession of the pornographic material based on a conversation with her. The cross-examination proceeded as follows:Q.I understand that this house, this address where the internet connection was, got flagged somehow and a search was conducted.A. Yes.Q.You've gone in there and there are two people, there was Vera Golubovic and Mr Golubovic living out the back.A. Yes.Q.You were under the suspicion that a computer at this stage might have child pornographic material.A. Yes.Q.After a short conversation with Vera Golubovic you decided that she probably wasn't the person who had possession of that material.A. Yeah.Q. Then you decided it must be Mr Golubovic.A. By the powers of deduction, yes.Q.And you set about looking for anything on that computer that would implicate Mr Golubovic.A. Well, I went about looking for any evidence of child pornography on that computer. In re-examination, Detective Fitzgerald was asked what it was about the conversation with Vera Golubovic that caused him to discount her. The re-examination proceeded as follows:Q. You were just asked some questions about why you, in effect, chose to charge Mr Golubovic over his mother Vera Golubovic and that that was based on some conversations you had with Ms Golubovic.A.Yes.Q.You don't need to say exactly word for word what was said but what was it that she told you that gave you the impression she was not the appropriate person to be charging.A.She told me that she used that computer very little. She had a - she worked on a computer all day with her work and didn't feel the need to sit down and use more computers at home. She also had very little knowledge of computers, in my opinion.Q.Did you engage in a conversation with her to ascertain her knowledge of computers.A.I did, yes.Q.Was that in particular in relation to the peer-to-peer file sharing.A.Yes, I questioned her about that and she wasn't aware of how it worked, what it was, didn't know any of the program names that related to peer-to-peer file sharing. The appellant contends that the re-examination was improper: the topic had not been left in an ambiguous state following cross-examination and rehabilitation of Detective Fitzgerald’s evidence was not needed or justified. The appellant contends that the re-examination merely introduced inadmissible hearsay evidence of two matters, namely that Vera Golubovic used the computer very little and had very little knowledge of computers.

Decision

Reasons for decision

In the circumstances, it is not appropriate to apply the proviso.Conclusion I would grant permission to appeal on all grounds. I would allow the appeal. I would set aside the convictions and remit the matter to the District Court for retrial. NICHOLSON J: I agree with Blue J. DOYLE J: I agree with Blue J.

Ratio Decidendi

Legal Principle Established

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