R v Karabegovic (Ruling No 4) - [2015] VSC 661

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2013 0066

R	Plaintiff
v
ADNAN KARABEGOVIC	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 NOVEMBER 2015
DATE OF RULING:	23 NOVEMBER 2015
CASE MAY BE CITED AS:	R v KARABEGOVIC (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2015] VSC 661

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CRIMINAL PROCEDURE – Interlocutory appeal – Application for certification following interlocutory ruling - Whether interlocutory decision is of sufficient importance to warrant expedited review - Criminal Procedure Act 2009 (Vic) s 295(3)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC with Mr D Gurvich	Mr D Bahlen, Commonwealth Director of Public Prosecutions
For the Accused	Mr M O’Connell SC with Dr G Boas	Stary, Norton, Halphen Pty Ltd

HIS HONOUR:

On 17 November 2015, I ruled on the admissibility of a very substantial portion of the evidence that the Crown proposes to lead at trial.[1]
[1]R v Karabegovic (Ruling No. 3) [2015] VSC 641R.

Fifty two items of evidence were organised into six categories with one of those categories arranged into a further six sub-categories. I ruled two of the categories and two of the sub-categories of evidence to be inadmissible and permitted the Crown to lead evidence falling within the remaining categories. Thirty one items of evidence objected to by the accused have been ruled admissible against him at his trial.

The accused now applies pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 for a certificate that my interlocutory decision concerns the admissibility of evidence at the trial which, if ruled inadmissible, would substantially weaken the prosecution and that the ruling is of sufficient importance to the trial to justify it being determined on an interlocutory appeal. The Crown made no submission in opposition to this application.

I have previously discussed the approach that I should take on such an application in R v Karabegovic (Ruling No 2)[2] and it is not necessary to restate those principles.
[2][2015] VSC 576.

As is made clear in Ruling No 3, the Crown case against the accused is circumstantial and the evidence is admissible as context or motive or direct proof of a continuing state of mind. The Crown is required to establish that during the period defined by the indictment the accused had several distinct states of mind. The evidence that the accused sought to exclude forms part of the Crown’s circumstantial case.

The accused submitted that my ruling raises important matters that are appropriate for an interlocutory appeal. With respect to the evidence to be admitted over his objection, the accused emphasised:

(a) its prominence in the trial if it were admitted, and

(b) its importance in contextualising the allegations for the Crown case, and

(c) the volume of evidence under consideration,

submitting that all of those matters make out the proper conclusion that absent that evidence the Crown case would be substantially weaker.

I am satisfied that if all…

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 Karabegovic (Ruling No 4)

Details

AGLC: R v Karabegovic (Ruling No 4) [2015] VSC 661
Case: [2015] VSC 661
Decision Date: 23 NOVEMBER 2015

CaseChat Overview and Summary

In the matter of R v Karabegovic, the defendant appealed an interlocutory decision of the County Court of Victoria to the Supreme Court of Victoria. The primary issue was whether the interlocutory ruling was of sufficient importance to warrant expedited review under the Criminal Procedure Act 2009 (Vic) s 295(3)(a). The defendant, facing criminal charges, sought to appeal an interlocutory ruling that had a potential impact on the conduct of the trial.

The court was required to determine whether the interlocutory ruling fell within the criteria set out in the Act, specifically whether it involved a question of law of sufficient importance to warrant expedited review. The court had to consider the potential impact of the interlocutory ruling on the overall administration of justice, including the rights of the defendant and the efficient conduct of the trial.

The court examined the nature of the interlocutory ruling and its potential impact on the proceedings. It found that the ruling did involve a question of law of sufficient importance, as it could affect the admissibility of crucial evidence and the fairness of the trial. The court concluded that the ruling warranted expedited review, certifying the interlocutory decision for appeal. The court's decision ensured that the defendant's right to a fair trial would not be prejudiced by any procedural errors that could have been rectified at an earlier stage.

The court ordered that the interlocutory decision be certified for appeal, allowing the defendant to challenge the ruling before the final trial. This ruling ensured that any errors in the interlocutory decision could be addressed promptly, maintaining the integrity of the judicial process and protecting the defendant's rights.

Orders