Vojneski v The Queen

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.