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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. I am satisfied that if all of the evidence to which the accused has taken objection was ruled inadmissible, the prosecution case would be substantially weakened. That is so for the reasons advanced by the accused’s counsel and I would observe that the prominence and importance of this evidence to which they referred is because the Crown’s case is circumstantial and the evidence directly relevant to proof of the facts in issue is likely to be analysed and interpreted in a manner that may require its proper context to be identified for the jury and for the accused’s motivation to be brought into the matrix. Further a significant volume of the evidence functions in the context of the circumstantial case to assist in non-tendency reasoning about proof of state of mind.

1. As Ruling No 3 makes clear, the issues raised about the admissibility of this evidence are complex and involve considering its proper, and improper, use in jury reasoning in the context of the appropriate directions that might be given about it. These are matters upon which reasonable judicial minds may differ. In addition, the question of admissibility sits at the intersection of permissible uses of evidence for proof as a fact of state of mind at the relevant time and the impermissible use of tendency reasoning to establish an inference of state of mind at that time. The parties put submissions as to the principle properly identified by the New South Wales Court of Criminal Appeal in Elomar & Ors v R,[3] and whether the reasoning of Elomar should be preferred to the reasoning of the Victorian Court of Appeal in Velkoski v The Queen.[4] This appears to be another issue on which reasonable judicial minds may differ.

   [3][2014] NSWCCA 303.

   [4][2014] VSCA 121.

1. Given the complexity of the issues raised on the application, it may be, as the accused submits, that there is sufficient doubt about the correctness of the conclusions that I have reached to warrant review, should the Court of Appeal grant its leave.

1. The offending is alleged to have occurred between May and September 2012 and the relevant evidence related to that period and the earlier period from January 2012. An earlier indictment was signed on 28 June 2013. Although there has been some delay in the progress of this matter to date – about 29 months – that was due principally to the interlocutory appeal taken by the Crown to my first ruling.[5] The Court of Appeal dismissed that appeal.[6]  The Crown then sought special leave to appeal to the High Court of Australia, which was refused.

   [5]R v Karabegovic (Ruling No 1) [2013] VSC 556.

   [6]Director of Public Prosecutions (Cth) v Adnan Karabegovic [2013] VSCA 380.

1. However, the accused is yet to be arraigned and is on bail.  Further, even if there was no interlocutory appeal, the parties have agreed that the time taken to argue and then rule upon the admissibility of this evidence, together with the remaining steps of further preliminary argument and trial preparation that might be necessary, make it impractical to complete the trial prior to the end of term. Further, much, if not all, of the evidence is pre‑recorded and not dependent on a witness' memory. 

1. In these circumstances it is clear that the prospective delay in the trial of the indictment is not likely to be a consequence of an interlocutory appeal. I will order that the trial be refixed to commence on 2 May 2016 (on an estimate of 20 days). 

1. For these reasons I stated that I will certify under s 295(3)(a) of the Criminal Procedure Act 2009 that my ruling concerning the admissibility of evidence at the trial which, if ruled inadmissible, would substantially weaken the prosecution case.

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