R v Marijancevic - [2009] VSCA 135

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 827 of 2007

THE QUEEN
	v
JOSEPH MARIJANCEVIC

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JUDGES:	KELLAM and DODDS-STREETON JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2009
DATE OF JUDGMENT:	15 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 135
JUDGMENT APPEALED FROM:	R v Marijancevic (Unreported, County Court of Victoria, Judge Pullen, 3 September 2008)

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CRIMINAL LAW – Conviction – Reckless conduct endangering life and intentionally causing serious injury – Where applicant drove his motor vehicle into a group of youths – Where applicant asserted consciousness was impaired at the time of the offending due to injuries sustained in attack – Medical evidence – R v Abdul-Rasool (2008) 18 VR 586; [2008] VSCA 13 – Where the voluntariness of the acts attributed to the applicant was left to the jury – Where ‘intentionally’ was used interchangeably by the trial judge with ‘voluntary’ and ‘conscious’ in addressing the applicants conduct – General and specific intent – He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 – Where the jury were directed that ‘one starts with the proposition that the acts are willed, conscious and voluntary’ – Whether presumption of innocence circumvented – Whether onus was reversed – Whether jury’s function undermined – Whether directions precipitated confusion such that a miscarriage of justice occurred – Application granted, appeal allowed, new trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P G Priest QC Mr M J Croucher	Ferraro Pruscino and Co

KELLAM JA
VICKERY AJA:

The applicant was convicted in the County Court at Melbourne on 18 August 2008 of two counts of reckless conduct endangering life contrary to s 22 Crimes Act 1958 (counts 3 and 4) and one count of intentionally causing serious injury contrary to s 16 Crimes Act 1958 (count 5).

The applicant was found ‘not guilty’ on three further charges, being count 1 (reckless conduct endangering life contrary to s 22 Crimes Act 1958), count 2 (intentionally causing injury contrary to s 16 Crimes Act 1958) and count 6 (intentionally causing injury contrary to s 16 Crimes Act 1958).

On 3 September 2008 the applicant was sentenced as follows:
Count 3 – 12 months’ imprisonment (six months cumulative)
Count 4 – 18 months’ imprisonment (eight months cumulative)
Count 5 – Three years and six months’ imprisonment (base sentence).
This resulted in a total effective sentence of four years and eight months’ imprisonment. The sentencing judge fixed a period of three years’ imprisonment before the applicant was eligible to be released on parole. Pre-sentence detention of 17 days was declared under s 18(1) Sentencing Act1991. An order directing the obtaining of a DNA forensic sample from the applicant was granted pursuant to s 464ZF Crimes Act 1958. Furthermore, the applicant was disqualified from obtaining a driver’s licence or permit for a period…

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 Marijancevic

Details

AGLC: R v Marijancevic [2009] VSCA 135
Case: [2009] VSCA 135
Decision Date: 15 June 2009

CaseChat Overview and Summary

In the matter of R v Marijancevic, the applicant, a driver, was convicted of charges including reckless conduct endangering life and intentionally causing serious injury. The applicant drove his motor vehicle into a group of youths, and claimed that his consciousness was impaired at the time due to injuries he sustained in a prior attack. The case was heard in the Court of Appeal. The central legal issues revolved around the applicant's state of mind during the commission of the offence and the trial judge's directions to the jury regarding the voluntariness of the applicant's actions. Specifically, the trial judge used the terms 'intentionally', 'voluntary', and 'conscious' interchangeably, which may have led to confusion and misdirection of the jury.

The Court of Appeal examined whether the trial judge's directions circumvented the presumption of innocence, reversed the onus, undermined the jury's function, and caused confusion leading to a miscarriage of justice. The Court considered the relevant legal principles, including the distinction between general and specific intent as elucidated in He Kaw Teh v The Queen, and the requirement that the acts must be willed, conscious, and voluntary as stated by the trial judge. The Court found that the trial judge's directions could have led to a miscarriage of justice, as they may have misdirected the jury about the applicant's state of mind and the requirements of the offence.

The Court concluded that the applicant's conviction should be quashed due to the trial judge's misdirections. The Court of Appeal granted the applicant's application, allowed the appeal, and ordered a new trial. The Court emphasised the importance of clear and accurate directions to the jury in criminal trials, particularly in cases where the accused's state of mind is at issue. The Court's decision underscores the need for trial judges to carefully consider the language they use when directing juries to ensure that the jury's function is not undermined and that the presumption of innocence is not circumvented.

Orders