R v Vojneski

Case [2014] ACTSC 66

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 Christie [1914] AC 545

R v Cittadini (2008) 189 A Crim R 492

R v Ellis (2003) 58 NSWLR 700

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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R v Vojneski [2014] ACTSC 66
Case
[2014] ACTSC 66
Decision Date

CaseChat Overview and Summary

The case of R v Vojneski involved the defendant facing charges of murder, with the prosecution intending to present evidence of a number of prior incidents involving the defendant's use of knives. The trial court was tasked with determining whether this evidence could be admitted under the relevant sections of the Evidence Act 2011 (ACT). The primary issues for the court to decide were whether the probative value of the evidence substantially outweighed its prejudicial effect and whether the evidence met the criteria for admissibility as tendency or coincidence evidence.

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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