R v Zivkovic - [2024] QCA 167

SUPREME COURT OF QUEENSLAND

CITATION:

R v Zivkovic [2024] QCA 167

PARTIES:

R
v
ZIVKOVIC, Stephen
(appellant)

FILE NO/S:

CA No 245 of 2023
DC No 5 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bowen – Date of Conviction: 28 November 2023 (Coker DCJ)

DELIVERED ON:

10 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2024

JUDGES:

Mullins P, North and Henry JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of a single count of rape at trial – where the appellant accepts that intercourse occurred but contends the complainant was unreliable because of inconsistencies in the complainant’s evidence, including about drug use and other events on the night preceding the rape – where the complainant awoke in the morning already being penetrated by the appellant – where the complainant was in a distressed condition and immediately complained to her neighbour and employer after the rape occurred – whether the inconsistencies compel a conclusion the complainant was unreliable – whether the verdict is unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant contends the verdict should be set aside on the basis the trial judge erred by failing to direct the jury about erroneous reasoning regarding the complainant’s motive to lie or absence of motive to lie – where the complainant said she had no reason to lie about drug use –where the appellant submits the combination of the defence questioning and the complainant’s assertions meant the trial judge should have given a direction to the jury safeguarding against the jury erroneously reasoning the complainant’s evidence was reliable as there was no motive to lie – where no such direction was sought at the trial – whether the trial judge erred in not giving such a special direction to the jury – whether a miscarriage of justice has occurred

Criminal Code (Qld), s 1, s 632, s 668E
Criminal Code Amendment Act 1997 (Qld), s 113

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, cited
R v Baskerville [1916] 2 KB 658, cited
R v Bevinetto [2019] 2 Qd R 320; [2018] QCA 219, cited
R v Coss[2016] QCA 44, cited
R v May [1962] Qd R 456, cited
R v Van Der Zyden [2012] 2 Qd R 568; [2012] QCA 89, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited

COUNSEL:

C J Grant for the appellant
M A Sheppard…

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 Zivkovic

Details

AGLC: R v Zivkovic [2024] QCA 167
Case: [2024] QCA 167
Decision Date: 10 September 2024

CaseChat Overview and Summary

In the case of R v Zivkovic, the appellant was found guilty of a single count of rape following a trial. The appellant accepted that intercourse had occurred but argued that the complainant was unreliable due to inconsistencies in her evidence, particularly concerning drug use and other events on the night before the alleged rape. The complainant had awoken to find the appellant already penetrating her and was in a distressed condition, immediately reporting the incident to her neighbour and employer. The appellant contended that these inconsistencies necessitated a conclusion that the complainant was unreliable and that the verdict was unreasonable.

The legal issues before the court involved whether the inconsistencies in the complainant's evidence were sufficient to compel a conclusion that the verdict was unreasonable or insupportable. Additionally, the court had to determine whether there was a misdirection or non-direction by the trial judge that amounted to a miscarriage of justice. The appellant argued that the trial judge failed to direct the jury about potential erroneous reasoning regarding the complainant’s motive to lie, despite the complainant’s assertion that she had no reason to lie about drug use. The appellant contended that the combination of the defence questioning and the complainant’s assertions meant the trial judge should have provided a special direction to the jury to prevent them from erroneously concluding that the complainant’s evidence was reliable due to the absence of a motive to lie.

The court found that the inconsistencies in the complainant's evidence did not compel a conclusion that the verdict was unreasonable. The court also concluded that the trial judge did not err in failing to give a special direction to the jury regarding the complainant’s motive to lie, as no such direction was sought at the trial. The appellant’s arguments did not demonstrate a miscarriage of justice or any error on the part of the trial judge that would warrant setting aside the verdict. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Zivkovic [2024] QCA 167
PARTIES:	R v ZIVKOVIC, Stephen (appellant)
FILE NO/S:	CA No 245 of 2023 DC No 5 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Bowen – Date of Conviction: 28 November 2023 (Coker DCJ)
DELIVERED ON:	10 September 2024
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2024
JUDGES:	Mullins P, North and Henry JJ
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of a single count of rape at trial – where the appellant accepts that intercourse occurred but contends the complainant was unreliable because of inconsistencies in the complainant’s evidence, including about drug use and other events on the night preceding the rape – where the complainant awoke in the morning already being penetrated by the appellant – where the complainant was in a distressed condition and immediately complained to her neighbour and employer after the rape occurred – whether the inconsistencies compel a conclusion the complainant was unreliable – whether the verdict is unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant contends the verdict should be set aside on the basis the trial judge erred by failing to direct the jury about erroneous reasoning regarding the complainant’s motive to lie or absence of motive to lie – where the complainant said she had no reason to lie about drug use –where the appellant submits the combination of the defence questioning and the complainant’s assertions meant the trial judge should have given a direction to the jury safeguarding against the jury erroneously reasoning the complainant’s evidence was reliable as there was no motive to lie – where no such direction was sought at the trial – whether the trial judge erred in not giving such a special direction to the jury – whether a miscarriage of justice has occurred Criminal Code (Qld), s 1, s 632, s 668E Criminal Code Amendment Act 1997 (Qld), s 113 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, cited R v Baskerville [1916] 2 KB 658, cited R v Bevinetto [2019] 2 Qd R 320; [2018] QCA 219, cited R v Coss[2016] QCA 44, cited R v May [1962] Qd R 456, cited R v Van Der Zyden [2012] 2 Qd R 568; [2012] QCA 89, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited
COUNSEL:	C J Grant for the appellant M A Sheppard…