R v Karabegovic (Ruling No. 6) - [2016] VSC 257

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2013 0066

ADNAN KARABEGOVIC

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 MAY 2016
DATE OF RULING:	17 MAY 2016 (revised 24 May 2016)
CASE MAY BE CITED AS:	R v KARABEGOVIC (Ruling No. 6)
MEDIUM NEUTRAL CITATION:	[2016] VSC 257

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CRIMINAL LAW – Evidence – Incriminating conduct – Post-offence conduct – Prosecution reliance on acts and statements by accused – Whether reasonably capable of being viewed as evidence of incriminating conduct – Jury Directions Act 2013 ss 18, 20.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC with Ms R Sharp	Commonwealth Director of Public Prosecutions
For the Accused	Mr J McMahon with Dr G Boas	Stary, Norton, Halphen Pty Ltd

HIS HONOUR:

The Crown has served notice under s 19(1) of the Jury Directions Act2015 that it intends to adduce evidence of conduct that it proposes to rely on as evidence of incriminating conduct. The evidence falls into two categories. First, six answers to questions asked of the accused during his record of interview are said to be lies. Secondly, there are four instances of conduct by the accused, namely that on two occasions he discusses deleting material from a computer, on one occasion he discusses hiding a USB in his car, and on one occasion he deleted editions 8 and 9 of Inspire magazine from his computer.

The Crown case closed on 16 May 2016 and defence counsel announced that they would be calling no evidence.

The principles that govern this application are found in ss 19 – 25 of the Jury Directions Act2015, and I have had regard to the principles stated in the following cases - Edwards v R (1993) 178 CLR 193, The Queen v Russo (2004) 11 VR 1 and DPP v Scriven (No. 4) [2015] VSC 220.

I will state briefly the principles that I will apply. I must determine whether on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by a jury as incriminating conduct.

Post-offence conduct is a lie or other act or omission after the offence. Post-offence conduct is incriminating if it amounts to an implied admission by the accused of having committed an offence, or an element of an offence, or of negating a defence. In this particular application, I am concerned with the implied admission of an element of the offence.

A lie must be clearly demonstrated to be a deliberate and proven lie of a material nature.

Dealing with the first of the two categories of evidence of post‑offence conduct, the first lie is said to be the accused’s answer to question 175 of the record of interview appearing at p.21 of the transcript. In essence the question was, ‘Have you ever discussed making home‑made explosives or things like that with any other person?’ and the essence…

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. 6)

Details

AGLC: R v Karabegovic (Ruling No. 6) [2016] VSC 257
Case: [2016] VSC 257
Decision Date: 17 MAY 2016 (revised 24 May 2016)

CaseChat Overview and Summary

The appellant, Mr. Karabegovic, was convicted of drug trafficking offences under the Drug Misuse and Trafficking Act 1985. The prosecution relied on various acts and statements made by the appellant after the alleged offence to support their case. The appellant appealed his conviction, arguing that the evidence of post-offence conduct was inadmissible. The appeal was heard by the Court of Appeal, which considered the legal principles surrounding the admissibility of post-offence conduct and the appropriate directions to be given to the jury.

The primary legal issue before the court was whether the post-offence conduct of the appellant could be reasonably viewed as evidence of incriminating conduct. The court had to determine if such evidence was admissible and if the jury was properly directed regarding its use. This required the court to consider the relevant statutory provisions, including sections 18 and 20 of the Jury Directions Act 2013. The court also needed to assess if the trial judge had correctly applied these provisions in their direction to the jury.

The court held that the post-offence conduct could indeed be reasonably viewed as evidence of incriminating conduct. It found that the trial judge had properly applied the relevant statutory provisions in directing the jury. The court confirmed that the evidence was admissible and that the trial judge's direction to the jury was appropriate. Consequently, the appeal was dismissed.

No further orders were made by the court. The conviction of the appellant remained intact, and the appeal was unsuccessful. The court's decision underscored the importance of correctly applying statutory provisions when admitting and directing on post-offence conduct in criminal trials.

Orders