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R v Ivanovic

R v Ivanovic

Case [2005] VSCA 238 27 September 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 290 of 2003

THE QUEEN
	v.
THOMAS IVANOVIC

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JUDGES:	EAMES and NETTLE, JJ.A. and HOLLINGWORTH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 August 2005
DATE OF JUDGMENT:	27 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 238

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CRIMINAL LAW – Murder – Self-defence – Directions – Whether comments by trial judge rendered charge unbalanced – Whether comments by prosecutor in address invited improper speculation by jury – Whether direction was required that first, not second shot was fatal – Murder recorded by video camera.

CRIMINAL LAW – Murder – Provocation – Defence not left to jury – Whether evidence that accused lost self-control – Objective test – Whether reasonable jury might have failed to be satisfied that killing was unprovoked.

EVIDENCE – Hearsay – Statements by accused to witness five months before killing as to his anxiety about his personal vulnerability, having regard to killings of acquaintances – Admissibility – Whether relevant to state of mind of accused at time when he shot deceased.

SENTENCE – Murder – Unarmed victim shot twice after “road rage” incident – Sentence of 20 years’ imprisonment with non-parole period of 15 years held not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr R. Richter, Q.C. Mr M.J. Croucher	Theo Magazis & Associates

EAMES, J.A.:

The applicant was convicted of murder by verdict of the jury on 26 September 2003. It was the second time he had stood trial. The first trial aborted after some eight days and before a jury verdict was given. The victim, Ivan Conabere, was a 38 year old man with whom the applicant had a confrontation on the roadway in front of the applicant’s house in Cornwall Street, Brunswick. The applicant shot the deceased twice with an unregistered .32 Walther semi-automatic self-loading pistol. One shot was fatal. The incident was filmed by a closed circuit video camera installed at the applicant’s home.

The shooting occurred on 8 January 2002 at about 5.45 p.m. Mr Conabere had been riding a 250cc motorcycle which he had acquired some six months earlier. He was still a learner rider and L-plates were affixed to the motorcycle. In order to gain experience it was his practice to go for rides accompanied by a friend, John Hair, who rode his own motorcycle. On this day, with Conabere in the lead, they had commenced their journey at Munro Street, Coburg. At the intersection of Rose Street a stop sign faced them. Both motorbikes turned left and travelled a couple of kilometres until they turned into Cornwall Street. Near the intersection of Rose Street, Hair first noticed a late model silver sports car. That vehicle was driven by the applicant. Although Hair did not see what caused him to do so Conabere had moved very close to the gutter after turning left at Rose Street and thereafter Conabere travelled behind the…

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 Ivanovic

Details

AGLC: R v Ivanovic [2005] VSCA 238
Case: [2005] VSCA 238
Decision Date: 27 September 2005

CaseChat Overview and Summary

The appeal before the court concerned the conviction and sentence of Mr Ivanovic for the murder of a man during a road rage incident. The incident, which was captured on video, revealed a confrontation escalating to Mr Ivanovic shooting the victim twice. The prosecution argued that the killing was unprovoked, while Mr Ivanovic claimed self-defence. The Court of Appeal was tasked with examining whether the trial judge's directions to the jury were appropriate and if the evidence was sufficient to support the conviction.

The primary legal issues included whether the trial judge's comments during the trial rendered the charge unbalanced and if the prosecutor's remarks invited improper speculation by the jury. Additionally, the court considered whether a specific direction was required regarding which shot was fatal and whether the defence of provocation was adequately left to the jury. The appeal also examined the admissibility of hearsay evidence concerning statements made by Mr Ivanovic to a witness months before the killing, as well as the appropriateness of the sentence imposed.

The Court of Appeal found that the trial judge's comments did not render the charge unbalanced, and the prosecutor's remarks did not invite improper speculation. The court determined that it was not necessary to direct the jury specifically about which shot was fatal. Regarding provocation, the court held that the evidence did not show that Mr Ivanovic lost self-control to the extent that a reasonable jury might not be satisfied the killing was unprovoked. The hearsay evidence was deemed relevant to Mr Ivanovic's state of mind and was admitted. Finally, the court considered the sentence to be not manifestly excessive given the circumstances of the case.

The appeal was dismissed, and the conviction and sentence were upheld. The court affirmed the 20-year imprisonment sentence with a non-parole period of 15 years as appropriate.

Orders