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Vojneski v The Queen

Vojneski v The Queen

Case [2015] ACTCA 44 31 August 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Vojneski v The Queen
Citation:	[2015] ACTCA 44
Hearing Date:	15 July 2015; 14, 25 August 2015
DecisionDate:	31 August 2015
Before:	Penfold J
Decision:	Leave is granted to the applicant to appeal out of time against his conviction for murder, and for that purpose to amend the notice of appeal against sentence filed on 12 November 2014, including by adding proposed grounds of appeal (f) and (g) as set out at [37] below.
Category:	Interlocutory application
Catchwords:	CRIMINAL LAW – APPEAL AND NEW TRIAL – leave to appeal conviction out of time – explanation for delay – prejudice to Crown – merits of proposed appeal – whether reasonable probability of miscarriage of justice if leave refused. EVIDENCE – Admissibility and Relevance – tendency evidence – capacity of evidence to prove tendency – probative value of tendency evidence to prove fact in issue – fact in issue was appellant’s presence at murder – failure to identify probative value of evidence in relation to accused’s presence – evidence otherwise highly prejudicial.
Legislation Cited:	Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Criminal Appeal Act 1912 (NSW), s 6(1) Evidence (Miscellaneous Proceedings) Act 1991 (ACT), s 43A Evidence Act 1995 (NSW), ss 101, 137 Income Tax Assessment Act 1936 (Cth) Supreme Court Act 1933 (ACT), ss 37J, 37O, 37O(2)(a)(i), 37O(2)(a)(ii), 37O(2)(a)(iii), 37O(3)
Cases Cited:	CW v The Queen [2010] VSCA 288 Dupas v The Queen (2012) 40 VR 182 Filippou v The Queen [2015] HCA 29 Hunter Valley Developments Pty Ltd v Cohen(1984) 3 FCR 344 Merrilees v The Queen [2014] ACTCA 10 Mraz v R (No 1) (1955) 93 CLR 493 O’Keefe v R; R v O’Keefe [2009] NSWCCA 121 Parker v The Queen [2002] FCAFC 133 R v Cittadini (2008) 189 A Crim R 492 R v Costa [2015] ACTSC 63 R v Ellis (2003) 58 NSWLR 700 R v Shamouil (2006) 66 NSWLR 228 R v Aleksander Vojneski [2014] ACTSC 66 Saoud v R (2014) 87 NSWLR 481 The Queen vMeyboom (2012) 256 FLR 450 Velkoski v The Queen [2014] VSCA 121
Parties:	Aleksander Vojneski (Appellant) The Queen (Respondent)
Representation:	Counsel Mr S Gill (Appellant) Mr S Drumgold (Respondent)
Solicitors Darryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 20 of 2015
Decision under appeal:	Court: ACT Supreme Court Before: Burns J Date of Decision: 11 November 2014 Case Title: R v Vojneski Citation: R v Vojneski (No 4) [2014] ACTSC 307

Introduction

On 3 September 2014, Aleksander Vojneski was found guilty by a jury of the murder of Paula Conlon on 27 March 2012.

On 11 November 2014, he was sentenced to life imprisonment.

No notice of appeal against the finding of guilt was filed, but Mr Vojneski filed a notice of appeal against his sentence on 12 November 2014.

The application

On 7 May 2015, Mr Vojneski, by new solicitors, filed an application for leave to appeal…

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 Vojneski v The Queen

Details

AGLC: Vojneski v The Queen [2015] ACTCA 44
Case: [2015] ACTCA 44
Decision Date: 31 August 2015

CaseChat Overview and Summary

The applicant, Vojneski, sought leave to appeal his conviction for murder out of time before Penfold J. The Crown opposed the application, raising concerns about prejudice and the merits of the proposed appeal.

The primary legal issues before the Court were whether there was a reasonable probability of a miscarriage of justice if leave to appeal out of time were refused, and the admissibility and relevance of certain tendency evidence. Specifically, the Court considered whether the tendency evidence had the capacity to prove the fact in issue – the appellant's presence at the murder – and whether its probative value outweighed its highly prejudicial nature.

Penfold J granted leave to appeal out of time. The Court found that the proposed grounds of appeal, particularly concerning the admission of tendency evidence, raised arguable points. The failure to adequately identify the probative value of this evidence in relation to the appellant's presence at the scene, coupled with its inherently prejudicial nature, suggested a potential miscarriage of justice. Accordingly, leave was granted to amend the notice of appeal to include these grounds.

Orders

Orders of the court

Leave is granted to the applicant to appeal out of time against his conviction for murder, and for that purpose to amend the notice of appeal against sentence filed on 12 November 2014, including by adding proposed grounds of appeal (f) and (g) as set out at [37] below.

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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Citations

AGLC Citation

Vojneski v The Queen [2015] ACTCA 44

Most Recent Citation

R v Tamawiwy [2015] ACTSC 274

Cases citing this decision · 8 of 8 shown

McIver v Australian Capital Territory; Williams v Australian; Capital Territory
[2024] ACTSC 112

…362 Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 Vojneski v The Queen [2015] ACTCA 44 Williams v Australian Capital Territory [2023] ACTSC 18; 375 FLR 20 Williams v The Queen [2018] ACTCA 4; 83 MVR 505…
Aitchison v Director of Public Prosecutions (ACT)
[2021] ACTCA 21 Para 1

…erred to in Outram v R [2013] NSWCCA 329 at [19]-[23]. It is consistent with the summary of the approach to such applications in Vojneski v The Queen [2015] ACTCA 44; 262 A Crim R 370 at [20].…
Middleton v Director of Public Prosecutions
[2019] ACTCA 24 Para 1

…considered in light of the importance of finality, and the impact reopening a matter would have on victims and families (citing Vojneski v The Queen [2015] ACTCA 44 ( Vojneski )). It was submitted the present matter in particular “is likely to cause significant distress”. In oral submissions the respondent emphas…
Aroub v The Queen
[2018] ACTCA 13

…Early in the hearing, I drew to the attention of the parties my decision in Vojneski v The Queen [2015] ACTCA 44, in which I set out at [20] the following matters to be considered on an application for leave to appeal a conviction out of time: (a) Whether there is an acceptable explanation for the delay in filing…
AA v McDevitt
[2017] ACTSC 342 Para 1

…nd the related question of whether there is a reasonable probability that refusal of leave might cause a miscarriage of justice: Vojneski v The Queen [2015] ACTCA 44 at [20].…
SV v The Queen
[2017] ACTCA 41 Para 1

…Early in the hearing, I drew to the attention of the parties my decision in Vojneski v The Queen [2015] ACTCA 44, in which I set out at [20] the following matters to be considered on an application for leave to appeal a conviction out of time:…
Vojneski v The Queen
[2016] ACTCA 57 Para 1

…nds that the trial judge had erred by admitting tendency evidence and had misdirected the jury in relation to tendency evidence: Vojneski v The Queen [2015] ACTCA 44 ( Leave Decision ).…
R v Tamawiwy
[2015] ACTSC 274 Para 1

…Recent dicta by Penfold J in Vojneski v The Queen [2015] ACTCA 44, at [76], suggests that the probative value of tendency evidence is to be measured against the rest of the evidence in the case, so that, if the rest of the prosecution case is strong, the probative value of the tendency evidence may be relatively l…

View all 8 citing cases →

Cases cited in this decision · 22 of 22 shown

Filippou v The Queen
[2015] HCA 29 Para 1

…urt has recently reviewed provisions of the kind set out in s 37O, in the context of their application to judge-alone trials, in Filippou v The Queen [2015] HCA 29 ( Filippou ). In that case, French CJ, Bell, Keane and Nettle JJ said:…
R v Costa (No 1)
[2015] ACTSC 63 Para 1

…His Honour’s approach may be contrasted of with that of the Chief Justice in R v Costa [2015] ACTSC 63. In that case, an accused facing a murder charge had raised the defence of mental impairment, based on a claim of dementia. The Crown sought to lead evidence of six “tendency incidents” to support tendencies such…
R v Vojneski (No 4)
[2014] ACTSC 307

…Court: ACT Supreme Court Before: Burns J Date of Decision: 11 November 2014 Case Title: R v Vojneski Citation: R v Vojneski (No 4) [2014] ACTSC 307…
Saoud v R
[2014] NSWCCA 136

…R 492 R v Costa [2015] ACTSC 63 R v Ellis (2003) 58 NSWLR 700 R v Shamouil (2006) 66 NSWLR 228 R v Aleksander Vojneski [2014] ACTSC 66 Saoud v R (2014) 87 NSWLR 481 The Queen v Meyboom (2012) 256 FLR 450 Velkoski v The Queen [2014] VSCA 121…
Velkoski v The Queen
[2014] VSCA 121 Para 1

…s Honour’s approach to the admissibility of the tendency incidents by reference to two recent Court of Appeal decisions, being Velkoski v The Queen [2014] VSCA 121 ( Velkoski ) and Saoud v R 87 NSWLR 481 ( Saoud ).…
Merrilees v The Queen
[2014] ACTCA 10 Para 1

…out of time from a conviction was considered by Refshauge J in The Queen v Meyboom (2012) 256 FLR 450 ( Meyboom ) and again in Merrilees v The Queen [2014] ACTCA 10 . His Honour relied on the approach of the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133 ( Parker ), as follows:…
R v Vojneski
[2014] ACTSC 66 Para 1

…cidents sought to be admitted to establish six specified tendencies. The trial judge, by judgment given on 11 April 2014 ( R v Alexander Vojneski [2014] ACTSC 66), determined that eight of the 14 incidents were admissible to establish five of the specified tendencies.…
Dupas v The Queen
[2012] VSCA 328 Para 1

…f opinion between the NSW Court of Criminal Appeal and the Victorian Court of Appeal apparent in the cases of R v Shamouil (2006) NSWLR 228 and Dupas v The Queen (2012) 40 VR 182 (in each case arising in relation to s 137 of the uniform Evidence Act ) about whether the assessment of the probative value of evidence being co…
R v Meyboom
[2012] ACTCA 48 Para 1

…The grant of leave to appeal out of time from a conviction was considered by Refshauge J in The Queen v Meyboom (2012) 256 FLR 450 ( Meyboom ) and again in Merrilees v The Queen [2014] ACTCA 10 . His Honour relied on the approach of the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133 ( Parker )…
CW v The Queen
[2010] VSCA 288 Para 1

…The case of CW v The Queen [2010] VSCA 288, discussed by the VSCA in Velkoski , is a good example of that distinction. The accused was charged with three counts of arson that were in various ways similar, and the trial judge had ruled that the Crown could rely on evidence of each fire in relation to the charges in…
Dupas v The Queen
[2010] HCA 20 Para 1

…the NSW Court of Criminal Appeal and the Victorian Court of Appeal apparent in the cases of R v Shamouil (2006) NSWLR 228 and Dupas v The Queen (2012) 40 VR 182 (in each case arising in relation to s 137 of the uniform Evidence Act ) about whether the assessment of the probative value of evidence being considered f…
O'Keefe v R
[2009] NSWCCA 121 Para 1

…The case of O’Keefe v R; R v O’Keefe [2009] NSWCCA 121 provides a useful comparison with the current case. The accused was tried in a single trial on four sets of charges, arising from four separate sexual assaults on women committed in bushland in suburban Sydney. There was evidence of various kinds linking the acc…
R v Shamouil
[2009] NSWSC 24

…21 Parker v The Queen [2002] FCAFC 133 R v Cittadini (2008) 189 A Crim R 492 R v Costa [2015] ACTSC 63 R v Ellis (2003) 58 NSWLR 700 R v Shamouil (2006) 66 NSWLR 228 R v Aleksander Vojneski [2014] ACTSC 66 Saoud v R (2014) 87 NSWLR 481 The Queen v Meyboom (2012) 256 FLR 450 Velkoski v The Queen [2014] VSCA 121…
Weiss v The Queen
[2005] HCA 81 Para 1

…My reading of authorities such as Mraz, Weiss v The Queen (2005) 224 CLR 300 ( Weiss ) and Filippou is that the question whether there has been a miscarriage of justice (substantial or otherwise) relates to the conduct of the accused’s trial. The question does not relate to whether, to put it bluntly, “they got the r…
R v Li
[2003] NSWCCA 407

…t in itself involve performance of a contravention of the same provision of the criminal law as that charged, or closely similar behaviour. In R v Li [2003] NSWCCA 407, Dunford J (with whom Spigelman CJ agreed) said at [11]: 'Section 97 is not directed only at evidence showing a tendency to commit a particular crime…
Parker v The Queen
[2002] FCAFC 133 Para 1

…) and again in Merrilees v The Queen [2014] ACTCA 10 . His Honour relied on the approach of the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133 ( Parker ), as follows:…
Regina v Ellis; Regina v Carr
[2002] NSWCCA 211 Para 1

…and coincidence evidence. He then noted several developments in the interpretation of the Evidence Act 1995 (NSW), including that in 2003 ( R v Ellis (2003) 58 NSWLR 700) the NSWCCA concluded by majority (at [99]) that, in applying the test for admission of tendency or coincidence evidence under s 101 of the Evidence…
Gilbert v The Queen
[2000] HCA 15

…Courts should not readily conclude that juries will ignore the directions they are given as to how they may or may not use evidence in a trial: see Gilbert v The Queen (2000) 201 CLR 414 per McHugh J at [31]–[32]. In my opinion, the risk that courts most need to guard against is that the jury will not understand how they may…
Hoch v the Queen
[1988] HCA 50

…cause it is inconsistent with the test of "significant probative value": Simpson J in Fletcher at [60], commenting on a passage from Hoch v The Queen [1988] HCA 50; 165 CLR 292 at 294-295. 40. Thirdly, reliance on such language may distract (by creating a mindset derived from common law experience) and may provi…
Hunter Valley Developments Pty Ltd v Cohen
[1984] FCA 186 Para 1

…The principles found in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 ( Hunter Valley ) were set down in the context of an application for an extension of time within which an application could be made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision under the Income Tax Assessment A…
Murchison, Ian McKenzie v Keating, Paul John
[1984] FCA 176

…when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention…
Mraz v The Queen
[1955] HCA 59 Para 1

…In Mraz v R (No 1) (1955) 93 CLR 493 ( Mraz ) (quoted at [34] below), the High Court said that on a criminal appeal as such, it is for the Crown to make it clear that there is no real possibility that justice has miscarried. The Full Court in Parker did not explicitly address the question of which party to an applic…

Legislation cited in this decision · 7

Supreme Court Act 1933 (ACT)
37J, 37J), 37O, 37O(2)(a)(i), 37O(2)(a)(... 7 mentions (from Para 1)
Evidence Act 1995 (Cth)
101, 137 3 mentions (from Para 1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
5 2 mentions (from Para 1)
Criminal Appeal Act 1912 (NSW)
6(1) 2 mentions (from Para 1)
Evidence (Miscellaneous Proceedings) Act 1991 (ACT)
43A 2 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
1 mention (from Para 1)
Income Tax Assessment Act 1936 (Cth)
1 mention (from Para 1)