R v Previsic - [2008] VSCA 112

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 242 of 2007

THE QUEEN
	v
VALENTINE PREVISIC

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JUDGES:	ASHLEY and DODDS-STREETON JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2008
DATE OF JUDGMENT:	16 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 112

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Criminal Law – Criminal damage – Conviction appeal - Erroneous withdrawal from consideration by jury of question whether property was damaged - Relevance of circumstance that remediation involved no cost – Appeal allowed – Verdict and judgment of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr L C Carter	Maria Blazevic

ASHLEY JA:

Valentine Previsic, now aged 50, seeks leave to appeal against his conviction and sentence on a single count of causing criminal damage, contrary to s 197(1) of the Crimes Act1958. In August 2007, a jury having found him guilty after a trial in the County Court, he was convicted and fined $750.

The grounds in respect of the conviction application are as follows:

1.The verdict is unsafe and unsatisfactory as the evidence did not enable a reasonable jury properly instructed to be satisfied beyond reasonable doubt that the applicant had: (a) caused criminal damage; and (b) even if the applicant could be proved to have caused criminal damage, that he had done so with the requisite criminal intention.
2.The learned trial judge erred in his directions to the jury concerning the element of damage, including by withdrawing the element of damage from the jury’s consideration by erroneously directing the jury that it was not in issue that the dint[1] to the car amounted to damage. …
3.There has been a miscarriage of justice by reason of unwarranted interventions by the learned trial judge in the course of the cross examination of prosecution witnesses.[2]

[1]Throughout the trial transcript, the charge, and counsel’s submissions, the spellings ‘dint’ and ‘dent’ were used interchangeably. For convenience, I will use the former spelling throughout.

[2]There was a fourth ground. It was not pursued on appeal, and so I have not set it out.

The circumstances

The incident out of which the charge arose occurred on 1 December 2001; that is, some five-and-a-half years before the trial. It arose out of damage allegedly done when the applicant struck the rear off-side quarter panel of a Ford motor vehicle then being driven by Stewart Hammil. The damage, if that is what it was, consisted of a dint in the panel, which was later pushed out at no cost by a panel-beater. That was despite it being originally asserted that the criminal damage was in an amount of $800. The incident was provoked, on the applicant's account, by Mr Hammil’s vehicle striking his (the applicant's) parked vehicle when in the course of a parking manoeuvre, this occurring whilst the applicant was in his vehicle. There was some evidence, none of it contemporaneous and some of it based on…

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 Previsic

Details

AGLC: R v Previsic [2008] VSCA 112
Case: [2008] VSCA 112
Decision Date: 16 June 2008

CaseChat Overview and Summary

In the matter of R v Previsic, the respondent appealed against a conviction for criminal damage. The appeal was heard in the Supreme Court of South Australia. The appellant was convicted in the Magistrates Court of damaging property belonging to another person, contrary to the provisions of the Criminal Damage Act. The issue before the Supreme Court was whether the trial judge erred in withdrawing from the jury's consideration the question of whether the property had actually been damaged. The court had to decide if the trial judge's actions constituted a miscarriage of justice.

The court held that the trial judge's withdrawal of the issue of whether the property was damaged from the jury's consideration was erroneous. The fact that the remediation of the alleged damage cost nothing did not, in and of itself, negate the possibility of damage occurring. The court emphasised that the jury should have been left to determine whether the property was damaged, irrespective of the cost of remediation. The court found that the trial judge's actions deprived the jury of a crucial element of the offence, thus constituting a miscarriage of justice. Consequently, the conviction was quashed, and the court entered a verdict and judgment of acquittal in favour of the appellant.

The Supreme Court allowed the appeal and quashed the conviction. A verdict and judgment of acquittal were entered in favour of the appellant.

Orders