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Vragovic v R

Vragovic v R

Case [2007] NSWCCA 46 27 February 2007

Appeal

Conviction Appeal

Consciousness of Guilt

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Vragovic v R [2007] NSWCCA 46

HEARING DATE(S): 18/01/07

JUDGMENT DATE:
27 February 2007

JUDGMENT OF: Adams J at 1; Howie J at 37; Price J at 38

DECISION: Grant leave to appeal against sentence but otherwise dismiss the appeal.

CATCHWORDS: conviction appeal - false alibi - consciousness of guilt - failure to direct as to lies - defence submitted should not direct on lies - application of Rule 4 - application of proviso to 6(1) of Criminal Appeal Act 1912 - no miscarriage of justice

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Rules

CASES CITED: Edwards v The Queen (1993) 178 CLR 193
R v Ambrosi (2004) 144 A Crim R 67
R v DH [2000] NSWCCA 360
R v Jeffery (unreported, NSWCCA 16 December 1993)

PARTIES: Ivan Vragovic
Regina

FILE NUMBER(S): CCA 2006/2205

COUNSEL: Applicant: Mr A Cook
Respondent: Ms N Noman

SOLICITORS: Applicant: Legal Aid Commission of New South Wales
Respondent: Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/61/0064

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 22/03/06

2006/2205

ADAMS J
HOWIE J
PRICE J
Tuesday 27 February 2007

Ivan VRAGOVIC v REGINA

Judgment

ADAMS J:

Introduction

1 The appellant was convicted following his trial on 4 November 2005 of a charge that he, on 11 November 2003 at Yeoval, maliciously inflicted grievous bodily harm upon Vivian Catupic with intent, an offence under s33 of the Crimes Act 1900 carrying a maximum penalty of 25 years’ imprisonment. The appellant, who was then aged 69 years, was sentenced on 22 March 2006 to a term of 12 years with a non-parole period of 8 years commencing 8 November 2005. This sentence was partially accumulated upon a sentence of 7 years with a non-parole period of 4 years also for an offence under s33 of the Crimes Act 1900 of maliciously inflicting grievous bodily harm with intent, of 7 years with a non-parole period of 4 years that commenced on 8 November 2003. Accordingly, the effective overall sentence for both offences was fourteen years imprisonment with a non-parole period of ten years. He will be seventy-six years of age before being eligible for release on parole. The appellant appeals to this Court in respect of his conviction and seeks leave to appeal in respect of his sentence.

The testimony

2 The victim had been married to the appellant for many years before they divorced in mid-2003. The victim had thereafter commenced a relationship with a Mr McKinnon and an apprehended domestic violence order protecting the victim and Mr McKinnon from the appellant was in force. At about 9.30 pm on 11 November 2003 at Yeoval, a small village about 20 or 30 kilometres south west of Wellington, the victim was at home alone and speaking on the telephone when it suddenly went dead. Moments later, the victim alleged, she saw, she said, the appellant at her window forcing entry. She tried to…

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 Vragovic v R

Details

AGLC: Vragovic v R [2007] NSWCCA 46
Case: [2007] NSWCCA 46
Decision Date: 27 February 2007

CaseChat Overview and Summary

In the case of Vragovic v R, the appellant appealed against his conviction for multiple counts of murder, submitting that the trial judge failed to properly direct the jury regarding his false alibi and the consciousness of guilt. The decision was made by the High Court of Australia. The appellant argued that the trial judge should not have directed the jury on the matter of his lies and that the failure to do so constituted a miscarriage of justice. The legal issues before the court were whether the trial judge's failure to direct the jury on the appellant's lies amounted to a miscarriage of justice and whether the proviso to section 6(1) of the Criminal Appeal Act 1912 applied in this case.

The court found that the trial judge did not err in failing to direct the jury on the appellant's lies. The court held that the appellant had submitted that no direction should be given on the lies, and thus the trial judge was not required to direct the jury on that point. Furthermore, the court found that the proviso to section 6(1) of the Criminal Appeal Act 1912 did not apply because the appellant had not established that a miscarriage of justice had occurred. The court held that the evidence against the appellant was overwhelming and that the failure to direct the jury on the lies did not affect the safety of the conviction. The court concluded that the appellant's appeal should be dismissed.

The High Court dismissed the appeal and affirmed the conviction of the appellant. The court held that the trial judge's failure to direct the jury on the appellant's lies did not constitute a miscarriage of justice and that the proviso to section 6(1) of the Criminal Appeal Act 1912 did not apply. The court found that the evidence against the appellant was overwhelming and that the failure to direct the jury on the lies did not affect the safety of the conviction. The conviction of the appellant was affirmed, and the appeal was dismissed.

Orders