R v Vojneski (No 2)

[2014] ACTSC 167

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Vojneski (No 2)

Citation:

[2014] ACTSC 167

Hearing Date(s):

24 June 2014

DecisionDate:

3 July 2014

Before:

Burns J

Decision:

The second application by the Crown to adduce tendency evidence is refused

Category:

Procedural and other rulings

Catchwords:

EVIDENCE – Tendency Evidence – murder – accused’s use of scissors – causing damage to family home – whether probative value substantially outweighs prejudicial effect on accused – allegations ambiguous and imprecise

Cases Cited:

R v Aleksander Vojneski [2014] ACTSC 66

Parties:

Regina (Applicant)

Aleksander Vojneski (Respondent)

Representation:

Counsel:

Mr S Drumgold with Mr J Hiscox (Applicant)

Mr J Pappas (Respondent)

Solicitors:

ACT Director of Public Prosecutions (Applicant)

Ben Aulich & Associates (Respondent)

File Number(s):

SCC 27 of 2013

1. The respondent is currently awaiting trial on one charge of murder. His trial is due to commence on 21 July this year and is estimated to continue for six weeks.

1. On 11 April this year I made orders permitting the Crown to lead tendency evidence at the trial, and gave reasons: R v Aleksander Vojneski [2014] ACTSC 66. The Crown has now served on the respondent a Second Notice of Intention to Adduce Tendency Evidence, and proposes to call additional tendency evidence at the trial. It is regrettable that this application comes before the Court so close to the trial date; it is particularly regrettable because it appears that the material upon which this application is based was in the hands of the prosecution at the time of the first application to lead tendency evidence.

1. I will not repeat what I said in my earlier decision concerning the nature of the Crown case, nor the law applicable to applications of this type.

1. In my decision in April this year I determined that the Crown would be permitted to lead specified tendency evidence to establish that the respondent had, at the relevant time, the following tendencies:

a.    a tendency to become quickly aroused to anger and to act violently when angered;

b.    a tendency to threaten people with knives;

c.     a tendency when angry to use knives to inflict harm on people or damage objects;

d.    a tendency to act violently when under the influence of alcohol or marijuana or a combination thereof; and

e.    a tendency to become angry and violent when people do not provide him with money for drugs.

1. The Second Notice sets out particulars of two incidents the Crown would propose leading as tendency evidence at the respondent’s trial. In the first incident it is alleged that between 23 August 2004 and 2 September 2004, the respondent and his brother argued, resulting in the respondent grabbing a pair of scissors. It is alleged that the respondent’s brother told him to put them down, and he complied. The second incident is alleged to have occurred sometime between 2003 and 2005, when it is alleged that the respondent became angry and cause significant damage to the family home. It is alleged the police were called and took the respondent to a psychiatric ward.

1. In my opinion, the Crown should not be allowed to lead this evidence as tendency evidence at the respondent’s trial. In the first incident, I am satisfied that the proposed evidence is relevant, in the sense that it is capable of allowing the jury to conclude that the respondent has one or more of the tendencies alleged. However, the alleged actions of the respondent are so ambiguous in terms of whether they were intended as a threat that, in my opinion, the probative value of the proposed evidence does not substantially outweigh the likely prejudicial effect on the respondent.

1. Similarly, the allegations in relation to the second incident are imprecise, particularly as to the time when they occurred. I am satisfied that the probative value of this evidence does not substantially outweigh the likely prejudicial effect on the respondent.

1. For this reason, I refuse the application by the Crown to lead this evidence as tendency evidence at the respondent’s trial.

1. I order that this judgment not be published other than to the parties until further order of the Court.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 15 September 2014