SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Vojneski v The Queen
Citation:
[2016] ACTCA 57
Hearing Dates:
2, 3 May 2016
DecisionDate:
10 November 2016
ReasonsDate:
10 November 2016
Before:
Murrell CJ, Refshauge and Wigney JJ
Decision:
Appeal against conviction dismissed.
Appeal against sentence allowed. Appellant sentenced to 19 years’ imprisonment with a nonparole period of 10 years’ imprisonment. See [140].
Catchwords:
CRIMINAL LAW – EVIDENCE – Tendency evidence – use of tendency evidence – tests for admissibility – whether misdirection on tendency evidence –– similarity between tendency incidents – no substantial miscarriage of justice – similarity of tendency incidents and offence incident
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Punishment – sentencing – murder – whether case in the worst category – public protection
Australian Law Reform Commission, Evidence, Interim Report No 26 (1985)
Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury…
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.
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AGLC
Vojneski v The Queen [2016] ACTCA 57
Case
[2016] ACTCA 57
Decision Date
CaseChat Overview and Summary
The Court of Appeal of the Supreme Court of New South Wales heard an appeal by the appellant, Vojneski, against his conviction for murder and his subsequent sentence. The central dispute concerned the admissibility and use of tendency evidence during the trial, and whether the sentencing judge had correctly categorised the murder for the purposes of punishment.
The primary legal issues before the Court of Appeal were whether the trial judge had erred in admitting certain tendency evidence, and if so, whether this constituted a misdirection to the jury. Additionally, the Court was required to determine whether the sentence imposed was manifestly excessive, particularly in light of the judge's assessment of the appellant's culpability and the need for public protection.
The Court of Appeal found that while there were similarities between the tendency incidents and the offence incident, the trial judge’s directions to the jury regarding the tendency evidence were not entirely satisfactory. However, applying the proviso in section 6(1) of the Criminal Appeal Act 1912 (NSW), the Court concluded that no substantial miscarriage of justice had occurred, and therefore dismissed the appeal against conviction. In relation to the sentence, the Court found that the sentencing judge had erred in categorising the murder as falling within the "worst category" of cases, and that the sentence of 25 years’ imprisonment with a non-parole period of 15 years was manifestly excessive. Consequently, the appeal against sentence was allowed, and the appellant was resentenced to 19 years’ imprisonment with a non-parole period of 10 years.
Orders
Orders of the court
Appeal against conviction dismissed.
Appeal against sentence allowed. Appellant sentenced to 19 years’ imprisonment with a nonparole period of 10 years’ imprisonment. See [140].