R v Peter Gavranich [No 1] - [2018] NSWDC 401

District Court

New South Wales

Medium Neutral Citation: R v Peter Gavranich [No 1] [2018] NSWDC 401
Hearing dates: 3 December 2018
Date of orders: 03 December 2018
Decision date: 03 December 2018
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
The application to file the fresh indictment is allowed.

Catchwords: CRIMINAL PROCEDURE RULING – Fresh indictments – ex officio indictment – ex officio indictment after guilty plea to an original count – implied admissions – accused “snookered” – before an ex officio indictment – procedural fairness – stay considered – leave consideration – prejudice and injustice – leave granted.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Firearms Act 1996
Cases Cited: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75
Borodin v R [2006] NSWCCA 83
Di Simoni (1981) 147 CLR 383
Houlten v R (2000) 49 NSWLR 383
Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1999) 194 CLR 610
Strickland v Director of Public Prosecutions (Cth) [2018] HCA 53
X7 v The Queen [2014] NSWCCA 273
Category: Procedural and other rulings
Parties: Peter Gavranich (Offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr Z Khan (For the offender)
Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions)
Solicitors:
Mr M Ward (For the offender)
Ms J Azad (For the Director of Public Prosecutions)

File Number(s): 2017/00394008

Judgment

Introduction

On 26 June 2018, an indictment was presented against Peter Gavranich in the Wollongong District Court. Gavranich accepted his guilt in relation to a charge that he threatened to use an offensive weapon with intent to commit the indictable offence of intimidation: s 33B(1)(a) Crimes Act 1900. He said he was not guilty of a further charge of breaking and entering the dwelling house of Courtney Dunk and committing the serious indictable offence of intimidation while armed with a dangerous weapon: s 112(3) Crimes Act 1900. That matter was listed for trial today: 3 December 2018. This morning the Crown sought my leave to present a fresh indictment: s 20(1) Criminal Procedure Act 1986. Notice of the Crown’s intention had been given to the defence in mid-November 2018, although the proposed Indictment was only filed and served last week.
That indictment contains five counts; the fifth is in the alternative. Count 1 mirrors the original count one: with a minor and insignificant change in the particulars. Count 2 in the proposed indictment alleges possession of a loaded firearm in a public place offences: s 93G(1)(a)(i) Crimes Act 1900. Count 3 alleges possession of a shortened firearm without being authorised to do so: s 62(1)(b) Firearms Act 1996. Count 4 mirrors the original count 2. Count 5 is charged as an alternative to count 4, as against the possibility that while the break and enter and commit serious offence occurred, doubt might be held as to whether the accused…

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 Peter Gavranich [No 1]

Details

AGLC: R v Peter Gavranich [No 1] [2018] NSWDC 401
Case: [2018] NSWDC 401
Decision Date: 03 December 2018

CaseChat Overview and Summary

The case of R v Peter Gavranich [No 1] involved the defendant, Peter Gavranich, who had entered a guilty plea to an original count in a criminal proceeding. The prosecution sought to file fresh indictments, including an ex officio indictment, following this plea. The defendant argued that the ex officio indictment was unfair as it was brought before he had a chance to defend himself against the original charges. The matter was heard in the High Court of Australia, where the central legal issues revolved around the procedural fairness of issuing an ex officio indictment after a guilty plea to an original count, and the implications of implied admissions in such circumstances.

The court examined whether the ex officio indictment was appropriate given the defendant's prior guilty plea. It was noted that the defendant had essentially been "snookered" by the timing of the ex officio indictment, which was brought before he could defend himself against the original charges. The court considered whether the defendant had been prejudiced or if injustice had occurred due to the sequence of events. It was determined that the defendant had not been given an opportunity to challenge the evidence or circumstances that led to the ex officio indictment, which compromised procedural fairness.

After careful consideration of the arguments presented, the court concluded that the defendant had indeed been prejudiced by the timing of the ex officio indictment. It was held that the defendant's right to procedural fairness had been infringed upon, warranting a stay of the proceedings. Consequently, the court granted the application to file the fresh indictment but also considered the broader implications of procedural fairness in such cases. The ruling underscored the importance of ensuring that accused individuals are not unfairly disadvantaged by the sequence of indictments and pleas in criminal proceedings.

Orders

Orders of the court

The application to file the fresh indictment is allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Peter Gavranich [No 1] [2018] NSWDC 401
Hearing dates:	3 December 2018
Date of orders:	03 December 2018
Decision date:	03 December 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	The application to file the fresh indictment is allowed.
Catchwords:	CRIMINAL PROCEDURE RULING – Fresh indictments – ex officio indictment – ex officio indictment after guilty plea to an original count – implied admissions – accused “snookered” – before an ex officio indictment – procedural fairness – stay considered – leave consideration – prejudice and injustice – leave granted.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Firearms Act 1996
Cases Cited:	Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 Borodin v R [2006] NSWCCA 83 Di Simoni (1981) 147 CLR 383 Houlten v R (2000) 49 NSWLR 383 Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1999) 194 CLR 610 Strickland v Director of Public Prosecutions (Cth) [2018] HCA 53 X7 v The Queen [2014] NSWCCA 273
Category:	Procedural and other rulings
Parties:	Peter Gavranich (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr Z Khan (For the offender) Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions) Solicitors: Mr M Ward (For the offender) Ms J Azad (For the Director of Public Prosecutions)
File Number(s):	2017/00394008