R v Marijancevic - [2001] VSCA 188

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 160 of 2000

THE QUEEN
	v.
JOSEPH MARIJANCEVIC

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JUDGES:	CALLAWAY, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7-8 August 2001
DATE OF JUDGMENT:	26 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 188

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Criminal law – Theft and handling – Direction to be given where the jury are satisfied that the accused either stole the property or handled it but are unable to decide which on the criminal standard – R. v. Bruce [1988] V.R. 579 applied – Gilson v. R. (1991) 172 C.L.R. 353 distinguished – Law reform – Desirability of amendment of Theft Act provisions – Crimes Act 1958, ss.74, 88.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman with Mr P.C. Robinson	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr S. Gillespie-Jones	Ferraro Pruscino & Co.

CALLAWAY, J.A.:

The applicant, who is now aged 51, pleaded not guilty in the County Court to one count of theft contrary to s.74 of the Crimes Act 1958 and to an alternative count of handling stolen goods contrary to s.88 of that Act. After a trial occupying eight days, he was found guilty of theft and, following a plea for leniency, sentenced to four years’ imprisonment with a non-parole period of three years. He seeks leave to appeal against both conviction and sentence.

There are ten grounds of appeal against conviction, of which ground 9 was not argued. The other grounds read:

“1. The prosecutor failed
(a)to call as prosecution witnesses Mario John Farrugia, Sam Tsambikos, and Paul Mallia;
(b)to make Mario John Farrugia and Sam Tsambikos available for the defence.

2.The learned trial judge refused to adjourn the trial to enable the defence to secure the attendance of Mario Farrugia and Sam Tsambikos.
3.The trial miscarried by reason of the absence of goods which were the subject of the counts on the presentment.
4.The prosecution case on the value of the goods in question was substantially more at trial than on sentence in the restitution application.
5.The witnesses Allen and Greaves were wrongly allowed to give evidence of labels on boxes from which they inferred the contents and their value.
6.The learned trial judge erred in his directions to the jury in the following ways:
(a)he failed to direct the jury that the central issues in the trial were
(i)the ostensible authority of Mark Anthony Mott to dispense the goods in question;
(ii)the state of mind of the applicant when he took possession of the goods in question;

(b)he failed adequately to direct on the elements of the offences and to relate the law to the evidence;
(c)he wrongly directed on recent possession in that
(i)recent possession was not an issue;
(ii)such a direction was unfairly prejudicial to the applicant;
(iii)he directed in writing that the jury could not draw an inference of guilt if the applicant’s explanation ‘could reasonably be true’;

(d)he misdirected on lies in that
(i)he failed to identify what…

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 [2001] VSCA 188
Case: [2001] VSCA 188
Decision Date: 26 October 2001

CaseChat Overview and Summary

The case of R v Marijancevic involved the accused, Marijancevic, who was charged with theft and handling stolen goods. The dispute centred around whether Marijancevic was guilty of stealing the property or merely handling it, a situation where the jury could not definitively determine which offence he had committed. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether a specific direction should be given to the jury when they are convinced that the accused either stole the property or handled it but are unable to decide which offence was committed on the criminal standard. The court needed to decide whether the principles established in R. v. Bruce should apply, and if so, how they could be reconciled with the case of Gilson v. R. The court also considered whether there was a need for legislative reform to address the ambiguity in the relevant sections of the Crimes Act 1958.

In delivering the judgment, the court examined the precedent set by R. v. Bruce, which held that a direction should be given to the jury in circumstances where they are satisfied that the accused has committed either theft or handling but cannot decide which. The court distinguished Gilson v. R., where the High Court held that no such direction was appropriate. The court found that the circumstances of Marijancevic's case warranted a direction to the jury similar to that in R. v. Bruce, as the jury was unable to determine whether the accused had stolen or handled the property. The court also noted the potential for legislative reform to clarify the provisions of the Theft Act, as the current legislation could lead to such ambiguities.

The final orders of the court required the jury to be directed in accordance with the principles established in R. v. Bruce, ensuring that they could convict Marijancevic of either theft or handling if they were satisfied beyond reasonable doubt that he had committed one of these offences. The court also recommended that the relevant legislative provisions be reviewed to prevent similar issues arising in future cases.

Orders