Yovanovic v The King

Case [2023] NTSC 53

CITATION:Yovanovic v The King [2023] NTSC 53

PARTIES:YOVANOVIC, Danny

v

THE KING

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:22126844 & 22129564

DELIVERED:  21 June 2023

HEARING DATES:  3 April 2023

JUDGMENT OF:  Blokland J

CATCHWORDS:

CRIMINAL LAW – Criminal Procedure – stay of proceedings – missing

evidence – second Child Forensic Interview (‘CFI’) missing with respect to

one complainant – likely to be exculpatory but insufficient collateral

evidence to determine the questions and answers – missing CFI may be

inconsistent with particulars in indictment – first CFI exculpatory – police

closed investigation after second CFI – 13 years later complainant gave third

interview implicating accused – fact in issue is complainant’s credibility and

reliability – whether grounds for permanent stay – whether any unfairness

created can be mitigated by directions – grounds for permanent stay made

out – proceedings stayed.

Criminal Code 1983 (NT) ss 132(2)(e), 192(4), 339
Evidence (National Uniform Legislation Act) 2016 (NT) s 165B

Barton v The Queen (1980) ALR 449; Connelly v Director of Public Prosecutions [1964] AC 1254; Dietrich v The Queen (1992) 177 CLR 292; Dupas v The Queen(2010) 241 CLR 237; Ebrahim v Feltham Magistrates Court [2001] EWHC Admin 130; Gilbert v The Queen (2000) 201 CLR 414; Holmden v Bitar; Crawford v Bitar (1987) SASR 509; IMM v The Queen [2016] HCA 14; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; La Rocca v R [2023] NSWCCA 45; Longman v The Queen (1989) 168 CLR 79; Moti v The Queen [2011] HCA 50; R v Ali [2007] EWCA Crim 691; R v Boyd [2002] EWCA Crim 2836; R v Davis (1995) 81 A Crim R 156; R v Dodds & Harris; ex-parte Attorney-General of Queensland [1996] QCA 402; R v Elliott [2002] EWCA Crim 1199; R v Lipton (2011) 82 NSWLR 123; Ridgeway v The Queen (1995) 129 ALR 41; Sofri v Italy, European Court of Human Rights, Application No 37235/97, 4 March 2003; Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; Stringer v The Queen (2000) 116 A Crim R 198; The Queen v Glennon (1992) 173 CLR 592; The Queen v O’Brien [2017] NTSC 34; The Queen v RCA [2022] NTSC 6; Williams v Spautz (1992) 107 ALR 635, referred to.

REPRESENTATION:

Counsel:

Appellant:T Collins

Respondent:  S Lapinski

Solicitors:

Appellant:NAAJA

Respondent:  Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  BLO2308

Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Yovanovic v The King [2023] NTSC 53

No. 22126844 & 22129564

BETWEEN:

DANNY YOVANOVIC

Appellant

AND:

THE KING

Respondent

CORAM:    BLOKLAND J

REASONS FOR JUDGMENT

(Delivered 21 June 2023)

Introduction

  1. This is an application for a permanent stay of proceedings commenced by an indictment covering files…

Continue reading Yovanovic v The King

Sign in free to access the full text

Details
AGLC
Yovanovic v The King [2023] NTSC 53
Case
[2023] NTSC 53
Decision Date

CaseChat Overview and Summary

In the case of Yovanovic v The King, the accused, Danny Yovanovic, faces charges of indecently dealing with a child under the age of 16. The proceedings involve an application for a permanent stay due to the alleged loss of critical evidence, specifically a second Child Forensic Interview (CFI) that was likely exculpatory. The complainant in question is ST, who has given multiple interviews over the years. The first CFI was exculpatory, and the police investigation was closed after the second CFI, which is now missing. Thirteen years later, a third interview was given by the complainant, implicating the accused. The primary legal issue is whether the missing second CFI, which might be inconsistent with the particulars in the indictment, would prevent the accused from receiving a fair trial. The focus of the trial will be on the credibility and reliability of the complainant's testimony.

The court needed to decide whether the missing second CFI, which may have been exculpatory, would significantly prejudice the accused’s right to a fair trial. Additionally, the court had to consider whether any unfairness caused by the missing evidence could be mitigated by providing specific directions to the jury. The court also needed to determine if the missing evidence warranted a permanent stay of the proceedings. Given that the prosecution’s case primarily relies on the complainant's testimony, the absence of the second CFI was a significant concern. The court considered that the second CFI might have been inconsistent with the particulars in the indictment and might have provided critical exculpatory information. Given the centrality of the complainant’s credibility, the court concluded that the missing evidence could not be mitigated by directions to the jury and thus warranted a permanent stay.

The court found that the missing second CFI, which was likely exculpatory, could not be replaced by collateral evidence, and its absence was likely to cause substantial unfairness. The court decided that the unfairness could not be mitigated by directions to the jury and that the missing evidence warranted a permanent stay of the proceedings. The court ruled that the accused could not receive a fair trial given the missing evidence and the reliance on the complainant’s credibility. Consequently, the proceedings were stayed. This ruling does not prevent the Director of Public Prosecutions from filing an amended indictment that omits the current counts 1 and 2 but includes the remaining counts. The court’s decision highlights the importance of ensuring that a fair trial is possible, especially in cases where the credibility of the complainant is paramount.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for a permanent stay of proceedings commenced by an indictment covering files numbered 22129564 and 22126844. The broad basis for the application is that the accused cannot be given a fair trial on two of the counts due to missing evidence, namely a second forensic interview between police and the complainant, likely to be largely exculpatory in nature. Investigating police closed the investigation at that time after that interview. Background Danny Yovanovic (‘the accused’) is charged with two counts against ST. Both are charges of indecently dealing with a child under the age of 16 contrary to ss 132(2)(e) and 192(4) of the Criminal Code. Both offences are alleged to have occurred on the same occasion between 1st January and 31st December 2008. The particulars of the first occasion allege that the accused showed ST a pornographic movie. The particulars of the second count allege that he indecently touched ST on the breast, vagina and buttock while showing her the pornographic movie. The accused also faces 10 charges against another complainant, which are contained on the same indictment. The Court has an inherent power to stay proceedings to ensure a fair trial or prevent an abuse of process. Those powers are additional to, or co-exist with, specific powers under s 339 of the Criminal Code 1983 (NT). Although the specific powers under s 339 permit the Court to quash or amend an indictment, in this matter the Court is not utilizing the specific grounds covered in s 339. Those grounds grant the Court the power to quash an indictment or order a stay when the indictment is ‘calculated to prejudice or embarrass’ is ‘formally defective’ or the proceedings are ‘vexatious or harassing’. In this matter, for the reasons that follow, the proceedings will be stayed, however this ruling is no impediment to the Director of Public Prosecutions filing an indictment which omits current counts 1 and 2, but includes the balance of the counts. The Crown accepts that the prosecution case relies primarily on the evidence of the complainant, there is no medical or forensic evidence.[1] Plainly, this is not unusual and is to be expected in historical sexual abuse cases. There is no reason to be critical of the Crown’s case by virtue of the fact that its case relies predominantly on the evidence of the complainant. Both counsel agree that the main issues in the trial are the credibility and reliability of the complainant.[2] Once again, there is nothing unusual about the central issue being identified as the credibility of the complainant in cases of this kind. In IMM v The Queen, the majority held the probative value and applicable ‘fact in issue’ was not whether certain charged sexual offences were committed but whether the complainant’s account of the commission of charged offences was credible.[3] While the ultimate issue is always whether the Crown can prove the counts on the indictment, the main fact in issue will invariably be whether the complainant can be believed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.