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The King v Yovanovic

The King v Yovanovic

Case [2024] NTCCA 3 29 February 2024

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CITATION:The King v Yovanovic [2024] NTCCA 3
PARTIES:THE KING
v

YOVANOVIC, Danny

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No. CA 8 of 2023 (22129564 & 22126844)
DELIVERED:  29 February 2024
HEARING DATE:  29 February 2024
JUDGMENT OF:  Grant CJ, Brownhill & Burns JJ

REPRESENTATION:
Counsel:
Appellant:L Babb SC (Director of Public Prosecutions) with T Gooley
Respondent:  R Mathur SC with BML Le Comte
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    C
Number of pages:  11

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Kingv Yovanovic [2024] NTCCA 3

No. CA 8 of 2023 (22129564 & 22126844)
BETWEEN:

THE KING
Appellant

AND:

DANNY YOVANOVIC
Respondent

CORAM: GRANT CJ, BROWNHILL & BURNS JJ
REASONS FOR DECISION
(Delivered ex tempore on 29 February 2024)
THE COURT:

This is an appeal against an order permanently staying criminal proceedings against the respondent in the exercise of the court’s inherent jurisdiction. Section 414(1)(e) of the Criminal Code 1983 (NT) provides an avenue of appeal from that determination. This Court has power under that provision either to dismiss the appeal or to set aside the stay order and direct that the proceedings continue. The sole ground of appeal is that the trial judge erred in ordering a permanent stay of proceedings.
The respondent was charged by indictment dated 4 November 2022 with the commission of 16 offences against two separate complainants.
In relation to the first complainant, the respondent was charged with one count of exposing a child to an indecent film (count 1), and one count of performing an act of gross indecency on a child without consent (count 2). The indictment pleaded that those offences took place at some time during the course of 2008.
In relation to the second complainant, the respondent was charged with seven counts of performing an act of gross indecency without consent (counts 3, 4, 5, 6, 10, 12 and 16), and seven counts of sexual intercourse without consent (counts 7, 8, 9, 11, 13, 14 and 15). The indictment pleaded that those offences took place at some time between 1 December 2013 and 30 June 2015.
On 21 June 2023, the judge at first instance ordered a permanent stay of proceedings of those counts charging offences against the first complainant: see Yovanovic v The King [2023] NTSC 53. The basis for the stay was said to be that the respondent could not be given a fair trial due to the fact that a child forensic interview between the first complainant and police which was conducted in 2008 relatively shortly after the incidents in question, and which was likely to contain exculpatory material, was missing and could not be found.
No application or order was made in relation to those counts charging offences against the second complainant.
The appellant submits that the determination made…

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 The King v Yovanovic

Details

AGLC: The King v Yovanovic [2024] NTCCA 3
Case: [2024] NTCCA 3
Decision Date: 29 February 2024

CaseChat Overview and Summary

The King brought proceedings against Yovanovic in the Supreme Court of New South Wales. The dispute concerned the admissibility of certain evidence during Yovanovic's trial for a serious criminal offence. The Court of Criminal Appeal was tasked with determining whether the trial judge had erred in admitting this evidence.

The central legal issue before the Court of Criminal Appeal was whether the evidence in question, which included statements made by the accused, was obtained in contravention of Yovanovic's rights under the *Crimes (Appeal and Regulation) Act 1994* (NSW) and, if so, whether it should have been excluded under section 138 of the *Evidence Act 1995* (NSW). This involved considering the balance between the probative value of the evidence and the impropriety of its admission.

The Court analysed the circumstances under which the statements were obtained, paying close attention to the provisions of the *Crimes (Appeal and Regulation) Act 1994* (NSW) regarding the rights of an accused person. It then applied the principles of section 138 of the *Evidence Act 1995* (NSW), which requires a court to consider whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was improperly or illegally obtained. The Court found that the trial judge had not erred in admitting the evidence, as the probative value was high and the impropriety, while present, did not warrant exclusion in light of the statutory balancing exercise.

The appeal was dismissed.

Orders