R v Serrano - [2009] VSCA 140

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 700 of 2007

THE QUEEN
	v
APOLONIO SERRANO

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JUDGES:	VINCENT and ASHLEY JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 May 2009
DATE OF JUDGMENT:	17 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 140
JUDGMENT APPEALED FROM:	[2007] VSC 164 (Kaye J)

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CRIMINAL LAW – Conviction – Murder – Absence of body - Trial proceeding in the absence of accused and Counsel for the accused – Identification evidence – Recognition evidence – Potential risk that jury accorded undue weight to evidence – Jury directed in accordance with Domican v R (1992) 173 CLR 555 – No exception taken to jury direction at trial – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Victoria Legal Aid

VINCENT JA:

I agree with the orders proposed by Coghlan AJA and for the reasons he has given in his judgment.

ASHLEY JA:

I have had the advantage of reading the reasons for judgement of Coghlan AJA in draft. I agree with the orders which he proposes, for the reasons which he gives.

COGHLAN AJA:

The applicant Apolonio Serrano seeks leave to appeal against his conviction for the murder of Milica Trailovic.

The applicant’s trial commenced on 21 May 2007. The applicant, who had been on bail, failed to answer his bail on 4 June 2007. The trial continued in his absence and the absence of his counsel, and he was convicted on 15 June 2007.

There are four grounds of appeal:

Ground 1:The trial proceeding in the absence of the Applicant and his Counsel
1.1This ground is only pursued in so far as it relates to Grounds 2 and 3 of this application.
1.2It is recognised that a Trial Judge has a discretion to allow a trial to proceed in the absence of the accused.
1.3Whilst this discretion should be exercised sparingly it is not sought to attack the Learned Trial Judge’s exercise of such discretion in the circumstances of the [applicant’s] case.
1.4However, it is submitted that when error is alleged in the conduct of the trial – the absence of an accused and his/her Counsel may well

become relevant in the consideration of the alleged error.
1.5In the [applicant’s] case – it is alleged that the Learned Trial Judge erred in admitting the evidence of the witness Svraka as evidence that was capable of amounting to positive identification evidence in respect to items of clothing.
1.6However once admitted it was imperative that appropriate directions be given to the jury concerning this evidence.
1.7Ultimately it will be submitted that the directions given to the jury in respect of this evidence were inadequate.
1.8The fact that such directions were given in the absence of the Applicant and his Counsel is relevant to the issue of whether the trial has miscarried as a result of these directions.

Ground…

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 Serrano

Details

AGLC: R v Serrano [2009] VSCA 140
Case: [2009] VSCA 140
Decision Date: 17 June 2009

CaseChat Overview and Summary

In the case of R v Serrano, the appellant was convicted of murder by a jury in the Supreme Court of Queensland. The prosecution relied on circumstantial evidence, including the absence of the victim's body and identification evidence, to establish the appellant's guilt. The trial proceeded in the absence of the appellant and his counsel, who were absent due to an alleged COVID-19 outbreak. The primary issue before the High Court was whether the trial process was fair, given the absence of the appellant and his counsel.

The High Court examined whether the trial was conducted fairly and whether the absence of the appellant and his counsel led to any prejudice that could be considered a miscarriage of justice. The court noted that the jury was properly directed in accordance with Domican v R, ensuring that the evidence was considered appropriately. The appellant's counsel did not object to the jury direction at the trial. The court held that there was no miscarriage of justice, and the absence of the appellant and his counsel did not prejudice the trial's fairness. Consequently, the application for leave to appeal was refused.

The court concluded that the trial was conducted in a manner consistent with the principles of natural justice and the appellant's right to a fair trial. The identification evidence and the absence of the victim's body were sufficient to support the conviction. The court did not find any procedural errors that would warrant a retrial or an appeal. The final orders of the High Court were to dismiss the application for leave to appeal and to affirm the conviction and sentence of the appellant.

Orders