R v ALEKSANDER VOJNESKI
[2014] ACTSC 66 (11 April 2014)
EVIDENCE – Tendency Evidence – murder – circumstantial case – accused’s use of knives – whether probative value substantially outweighs prejudicial effect on accused – ss 97, 101 Evidence Act 2011 (ACT) – single incident does not normally support a tendency
EVIDENCE – Coincidence Evidence – murder – circumstantial case – accused’s use of knives – whether probative value substantially outweighs prejudicial effect on accused – ss 98, 101 Evidence Act 2011 (ACT) – a combination of non-striking similarities will rarely, if ever, have significant probative value
Crimes Act 1900 (ACT), ss 12, 288
Evidence Act1995 (Cth), s 101
Evidence Act1995 (NSW), ss 97, 98, 101
Evidence Act2008 (Vic), s 137
Evidence Act2011 (ACT), ss 97, 98, 101, 137
Alexander Stewart and Sons Ltd v R (1921) 29 CLR 234
Dao v The Queen [2011] NSWCCA 63
DSJ v The Queen [2012] NSWCCA 9
Dupas v The Queen [2012] VSCA 328
Gilbert v The Queen (2000) 201 CLR 414
Hoch v The Queen (1988) 165 CLR 292
Makin v Attorney-General for New South Wales [1894] AC 57
Melbourne v R (1999) 198 CLR 1
Pfennig v The Queen (1995) 182 CLR 461
R v Cittadini (2008) 189 A Crim R 492
R v Ford (2009) 201 A Crim R 451
R v Gale (2012) 217 A Crim R 487
R v Johnston (2012) 6 ACTLR 297
R v Shamouil (2006) 66 NSWLR 228
P.B. Carter, “The Admissibility of Evidence of Similar Facts” (1953) 69 LQR 80
No. SCC 27 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 11 April 2014
IN THE SUPREME COURT OF THE )
) No. SCC 27 of 2013
AUSTRALIAN CAPITAL TERRITORY )
R
Applicant
v
ALEKSANDER VOJNESKI
Respondent
ORDER
Judge: Burns J
Date: 11 April 2014
Place: Canberra
THE COURT ORDERS THAT:
1. The Crown be permitted to lead as tendency evidence at the trial of the accused, evidence of Incidents 1, 2, 3, 4, 6, 9, 13 and 14 as set out in the Amended Notice of Intention to Adduce Tendency Evidence dated 20 January 2014.
2. The application to adduce coincidence evidence as set out in the Amended Notice to Adduce Coincidence Evidence dated 20 January 2014 be refused.
3. Publication of this decision be prohibited until further order of the Court.
1. The accused is charged with one count alleging that on 27 March 2012 he murdered PC. To this charge he has entered a plea of not guilty, and he is due to take his trial commencing 21 July 2014.
2. By an application dated 19 December 2013 the Crown seeks orders:
a) that it be permitted to adduce tendency evidence at the accused’s trial in the form of evidence outlined as Incidents 1 to 14 set out in an Amended Notice of Intention to Adduce Tendency Evidence; and
b) that…
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CaseChat Overview and Summary
The court considered the statutory provisions of sections 97 and 98 of the Evidence Act, which pertain to the admissibility of tendency and coincidence evidence, respectively. The prosecution argued that the incidents, although separate, showed a pattern of behaviour that was relevant to the charge of murder. The defence contested the admissibility of the evidence, asserting that the prejudicial effect outweighed its probative value. The court concluded that while the incidents involving the accused's use of knives were relevant, they did not individually or collectively meet the criteria for admissibility under section 97 as tendency evidence. The court found that the probative value of the evidence did not substantially outweigh its prejudicial effect. However, the court did permit the prosecution to lead evidence of certain incidents as tendency evidence, specifically Incidents 1, 2, 3, 4, 6, 9, 13, and 14, as outlined in the amended notice. The application to adduce coincidence evidence was refused.
The court ruled that the evidence of the specified incidents could be admitted as tendency evidence at the trial, while the application to introduce coincidence evidence was denied. The court also ordered that publication of the decision be prohibited until further order of the court. This decision balances the need to consider relevant evidence in the trial of serious charges with the protection of the defendant's right to a fair trial.
Orders
Orders of the court
1. The Crown be permitted to lead as tendency evidence at the trial of the accused, evidence of Incidents 1, 2, 3, 4, 6, 9, 13 and 14 as set out in the Amended Notice of Intention to Adduce Tendency Evidence dated 20 January 2014.
2. The application to adduce coincidence evidence as set out in the Amended Notice to Adduce Coincidence Evidence dated 20 January 2014 be refused.
3. Publication of this decision be prohibited until further order of the Court.
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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