R v Peter Gavranich [No 2] (Verdict) - [2018] NSWDC 402

District Court

New South Wales

Medium Neutral Citation: R v Peter Gavranich [No 2] (Verdict) [2018] NSWDC 402
Hearing dates: 3 December 2018, 4 December 2018, 5 December 2018
Date of orders: 06 December 2018
Decision date: 06 December 2018
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Decision of (1) Not guilty specially aggravated break enter and intimidate with dangerous weapon (2) Guilty of aggravated break enter and intimidate knowing person present.

Catchwords: CRIMINAL LAW – break and enter circumstances of special aggravation – armed with a dangerous weapon; a rifle – trial by Judge alone – assessing witnesses – an intimidating video message – a threat with a rifle at 2:23AM – no rifle on Police search at 3:15AM – some evidence not disputed – a toxic relationship – disputed evidence – break – dangerous weapon at 6:00AM – an incident at Fairy Meadow – two conflicting versions – accused version rejects – concerns with aspects of complainant’s account – belief on balance is not proof beyond reasonable doubt – reason to doubt rifle at Fairy Meadow – no reason to doubt other aspects of complainant’s account – prosecution onus – lingering doubt – dangerous weapon present – Accused must have benefit of the doubt – no doubt alternative count
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Firearms Act 1996
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Evidence Act 1995
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 (C’th) [2018] HCA 53
X7 v The Queen [2014] NSWCCA 273
Fox v Percy (2003) 214 CLR 118
R v Jovanovic (1997) 42 NSWLR 520
RB v R [2016] NSWCCA 62
Category: Principal judgment
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

At 2:32AM on Saturday, 30 December 2017, Courtney Dunk received a Facebook Messenger video on her mobile phone. The video shows a man is recording what occurs, presumably on his mobile phone. The video shows the man enter a car, sit in the driver’s seat and put a key in the ignition. While his face is not shown – the tattoos on his arms are clear. The man takes a shortened bolt action rifle from inside his shorts. He opens the breach and with his left hand tries to place a bullet into the barrel. He struggles to do so. He changes hands and completes…

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.

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Details

Case: [2018] NSWDC 402
Decision Date: 06 December 2018

CaseChat Overview and Summary

The case of R v Peter Gavranich [No 2] involved the defendant, Peter Gavranich, who was charged with committing a specially aggravated break and enter and intimidate with a dangerous weapon. The incident occurred at Fairy Meadow, where the defendant allegedly entered a property armed with a rifle, threatening the occupants. The matter was tried by a judge alone, without a jury, in the relevant court.

The legal issues that the court had to decide included whether the defendant was guilty of the specially aggravated offence, given the conflicting accounts of the incident. The prosecution argued that the defendant had entered the property armed with a dangerous weapon, while the defendant claimed that he had no such weapon and was not present at the property. The court had to assess the credibility of the witnesses and the evidence presented, including an intimidating video message and the defendant's account of the events.

The court found that there were some aspects of the complainant's account that were not disputed, such as the toxic relationship between the parties. However, there were significant discrepancies in the accounts of what happened at Fairy Meadow at 6:00AM, with the accused rejecting the complainant's version of events. The court had concerns about certain aspects of the complainant's account but found that there was no reason to doubt other aspects of the complainant's account, such as the presence of a dangerous weapon. The court also considered the prosecution's onus of proof and found that there was lingering doubt about whether the defendant had a rifle at Fairy Meadow. As such, the court found that the defendant must have the benefit of the doubt and could not be found guilty of the specially aggravated offence beyond reasonable doubt. However, the court found the defendant guilty of the alternative count of aggravated break enter and intimidate knowing person present.

The court ordered that the defendant be found not guilty of the specially aggravated break enter and intimidate with a dangerous weapon but guilty of the alternative count of aggravated break enter and intimidate knowing person present. The court did not impose any additional orders or penalties beyond the conviction.

Orders

Orders of the court

Decision of (1) Not guilty specially aggravated break enter and intimidate with dangerous weapon (2) Guilty of aggravated break enter and intimidate knowing person present.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Peter Gavranich [No 2] (Verdict) [2018] NSWDC 402
Hearing dates:	3 December 2018, 4 December 2018, 5 December 2018
Date of orders:	06 December 2018
Decision date:	06 December 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Decision of (1) Not guilty specially aggravated break enter and intimidate with dangerous weapon (2) Guilty of aggravated break enter and intimidate knowing person present.
Catchwords:	CRIMINAL LAW – break and enter circumstances of special aggravation – armed with a dangerous weapon; a rifle – trial by Judge alone – assessing witnesses – an intimidating video message – a threat with a rifle at 2:23AM – no rifle on Police search at 3:15AM – some evidence not disputed – a toxic relationship – disputed evidence – break – dangerous weapon at 6:00AM – an incident at Fairy Meadow – two conflicting versions – accused version rejects – concerns with aspects of complainant’s account – belief on balance is not proof beyond reasonable doubt – reason to doubt rifle at Fairy Meadow – no reason to doubt other aspects of complainant’s account – prosecution onus – lingering doubt – dangerous weapon present – Accused must have benefit of the doubt – no doubt alternative count
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Firearms Act 1996 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Evidence Act 1995
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 (C’th) [2018] HCA 53 X7 v The Queen [2014] NSWCCA 273 Fox v Percy (2003) 214 CLR 118 R v Jovanovic (1997) 42 NSWLR 520 RB v R [2016] NSWCCA 62
Category:	Principal judgment
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