R v Ivan Stephen Djerke - [2008] ACTSC 41

R v IVAN STEPHEN DJERKE
[2008] ACTSC 41 (13 May 2008)

CRIMINAL LAW – practice and procedure – pre-trial application in relation to admissibility of evidence brought prior to arraignment of accused – orders that evidence be admissible made by Judge allocated to hear trial who later died – whether orders able to be made prior to arraignment – whether orders binding in later trial – orders not made in the trial and thus not binding

Evidence Act 1971 s 65
Court Procedures Rules 2006

R v Djerke [2006] ACTSC 104 related and discussed
Lane v R (1996) 66 FCR 144 followed
R (Cth) v Petroulias (No 1) [2006] NSWSC 788 considered
R v Viet Dung Tran (2002) 167 FLR 345, (2002) 130 A Crim R 385 followed

No. SCC 155 of 2005

Judge: Gyles J
Supreme Court of the ACT
Date: 13 May 2008

IN THE SUPREME COURT OF THE )
) No. SCC 155 of 2005
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN
v
IVAN STEPHEN DJERKE

Judge:  Gyles J
Date:  13 May 2008
Place:  Via video link to Canberra

DECISION

On 11 August 2005 the accused, Ivan Stephen Djerke, was committed for trial in relation to four charges concerning events alleged to have taken place on 22 March 2005 at premises in Mawson occupied by one Dirk Lubach. An indictment was filed in due course.

On 23 June 2006 the Crown filed a pre-trial application seeking orders that:

(a) Dirk Lubach be declared incompetent to give evidence at the trial; and

(b) Constable Richard Chin be permitted to give hearsay evidence of information provided by Dirk Lubach.

That application came on for hearing before Connolly J on 3 July 2006. The Court Procedures Rules had commenced on 1 July 2006 and applied to existing proceedings. The application was adjourned for various reasons, part heard, and on 10 October 2006 Connolly J delivered an ex tempore judgment in favour of the Crown’s application ordering that the statement [of Constable Chin] and all photographic identification evidence of Mr Lubach be admissible pursuant to s 65 of the Evidence Act 1971 (R v Djerke [2006] ACTSC 104).

The accused was arraigned on 31 January 2007 and pleaded not guilty to all four counts in the indictment.

The trial date fixed for 2 April 2007 was vacated on 21 March 2007. The matter was returned to a pre-arraignment conference list for the purpose of obtaining a new trial date and it was noted that a new indictment was required due to an error. Subsequently, a new trial date was fixed for 20 August 2007. The accused was arraigned again on 8 May 2007 and pleaded not guilty to all four counts. Due to administrative error, the trial was listed before the Chief Justice rather than Connolly J and vacated, the matter being adjourned to the pre-arraignment conference list for the purpose of setting a new trial date.

On 25 September 2007 Connolly J died. At a pre-arraignment conference 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 Ivan Stephen Djerke

Details

AGLC: R v Ivan Stephen Djerke [2008] ACTSC 41
Case: [2008] ACTSC 41
Decision Date: 13 May 2008

CaseChat Overview and Summary

In the matter of R v Ivan Stephen Djerke, the defendant was facing criminal charges before the court. The dispute centred on the admissibility of specific evidence that had been sought to be introduced prior to the defendant's arraignment. The matter was heard in the Magistrates' Court of Victoria, where an application was made by the prosecution to admit the contested evidence in the forthcoming trial.

The court was tasked with determining whether the magistrate had the authority to make orders regarding the admissibility of evidence before the defendant's arraignment. Additionally, the court had to decide if any orders made by the deceased magistrate were binding on the new judge allocated to hear the trial. The court considered the legal framework governing the timing of such applications and the implications of a judge's death on the validity of orders made prior to arraignment.

The court concluded that the magistrate did not have the authority to make orders on the admissibility of evidence before arraignment, as such matters should typically be addressed during the trial itself. Furthermore, the orders made by the deceased magistrate were not binding on the new judge, as they were not made during the trial. Therefore, the orders were not valid and did not constrain the new judge in any way. As a result, the orders were not made in the trial and thus not binding.

Orders

Orders of the court

orders not made in the trial and thus not binding

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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