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R v Vjestica

R v Vjestica

Case [2008] VSCA 47 26 March 2008

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 242 of 2005

THE QUEEN
	v
BORISS VJESTICA

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JUDGES:	MAXWELL P, BUCHANAN JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2007
DATE OF JUDGMENT:	26 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 47

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CRIMINAL LAW – Conviction – Murder – Absence of proven motive – Accused ‘angry and disappointed’ with victim – Defence of accident – Whether guilty verdict unsafe and unsatisfactory.

CRIMINAL LAW – Trial – Venue – Pre-trial publicity and local gossip – Trial fixed for hearing in locality where shooting took place – Concerns expressed by potential jurors – Applications for change of venue refused – Safeguards of jury selection and judge’s warnings – Whether discretion miscarried – Whether miscarriage of justice.

CRIMINAL LAW – Juries – Investigation of conduct of jurors – Allegation that juror had informed himself beforehand from newspaper reports – Allegation investigated by Director of Public Prosecutions and dismissed – Whether Court of Appeal should investigate for itself – Allegation that different juror acquainted with victim – Whether apprehension of bias – Whether Court of Appeal should investigate – Juries Act 2000 (Vic) s 78(1), (3), (4).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr L C Carter	Clarebrough Pica

MAXWELL P:

On 15 October 2003, the applicant shot Shaun Finnigan in the driveway of a house in Wodonga. On 27 May 2005, a Supreme Court jury sitting in Wodonga found the applicant guilty of murder. He was sentenced to 21 years’ imprisonment with a non-parole period of 17 years. He now seeks leave to appeal against his conviction. For reasons which follow, I would refuse the application for leave.

Ground 1: refusal of change of venue
Ground 1: The learned trial judge erred by refusing to order that the venue for the trial be changed by reason of the nature and volume of pre-trial publicity:-
(a)when the application was first made by defence counsel; and
(b)when the application was renewed by defence counsel following the taking of excuses from the jury panel (Ruling No 3).

Ordinarily, a trial will proceed in the district in which the offence charged is alleged to have been committed. As Lush J explained in Re Ratten,[1] this course is adopted –

so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community.

More recently, in DPP v Bennett, Cummins J expressed the view that there were
powerful reasons of public policy why the venue of offence should be the venue of trial. The local community is the community in which the alleged crime took place; it is concerned to have the law administered within it; and to remove a circuit trial to Melbourne can lead the vacated community to feel disenfranchised, marginalised or…

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 Vjestica

Details

AGLC: R v Vjestica [2008] VSCA 47
Case: [2008] VSCA 47
Decision Date: 26 March 2008

CaseChat Overview and Summary

The case of R v Vjestica involves a conviction for murder, where the appellant was found guilty of the killing of the victim. The appellant was unhappy and disillusioned with the victim, but no clear motive for the murder was identified. The defence argued that the killing was accidental, but this was rejected by the jury. The matter was brought before the court on appeal, with concerns raised about the fairness of the trial and the potential for a miscarriage of justice.

The primary legal issues addressed in the appeal were the safety and satisfaction of the guilty verdict, the fairness of the trial venue, and the conduct of the jurors. The appellant argued that the trial venue was improperly chosen due to pre-trial publicity and local gossip, which may have prejudiced potential jurors. Additionally, there were allegations of juror misconduct, including claims that one juror had informed themselves from newspaper reports prior to the trial and that another juror was acquainted with the victim. The court had to determine whether these issues warranted a new trial or an appeal against conviction.

The court examined the discretion exercised in setting the trial venue and found that, despite concerns, the safeguards of jury selection and the judge’s warnings were sufficient to ensure a fair trial. The court also reviewed the allegations of juror misconduct. The investigation by the Director of Public Prosecutions dismissed the claim that a juror had informed themselves from newspaper reports. The court found no basis to investigate the allegation that a juror was acquainted with the victim, as there was no evidence of bias or prejudice. Ultimately, the court held that the discretion in setting the trial venue and handling juror conduct was exercised properly, and no miscarriage of justice had occurred.

The final orders of the court were to dismiss the appeal against conviction and sentence. The conviction and sentence of the appellant were upheld, and no new trial was ordered. The court found that the trial had been conducted fairly, and the guilty verdict was both safe and satisfactory.

Orders