Citation: Vragovic v R [2007] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 27 February 2007
Judge(s): Adams J, Howie J, Price J
Background
The appellant, a 69-year-old man, was convicted in the District Court of maliciously inflicting grievous bodily harm with intent upon his former wife, contrary to s 33 of the Crimes Act 1900. The attack occurred at night at her home in the small village of Yeoval, where she was beaten with an exhaust pipe and a shortened firearm. Her injuries included fractured ribs, a fractured shoulder blade, scalp lacerations and facial swelling.
The central factual issue at trial was whether the victim had correctly identified her attacker. The appellant had given police an alibi account, claiming he had been abducted by a group of men near Orange on the night of the attack. A hire car linked to the appellant was found burned and overturned on a road between Yeoval and Parkes around an hour after the assault.
The appellant was sentenced to 12 years with an 8-year non-parole period, partially accumulated on an existing sentence for a separate but related offence of the same character. His combined effective sentence was 14 years with a non-parole period of 10 years. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge erred by failing to give the jury a direction about lies and consciousness of guilt (the so-called Edwards direction), in circumstances where the defence had submitted no such direction should be given
- Whether that omission, if erroneous, constituted a miscarriage of justice warranting a new trial, or whether the proviso to s 6(1) of the Criminal Appeal Act 1912 applied
- Whether the sentence of 12 years was manifestly excessive
Decision
Conviction appeal: the lies direction
The prosecution relied on the appellant's false alibi as evidence of consciousness of guilt. The trial judge did not direct the jury on how to use lies told by an accused, a direction commonly given following Edwards v The Queen (1993) 178 CLR 193. The appellant's defence had actively submitted that no such direction was needed. The Court of Criminal Appeal accepted that the failure to give the direction constituted an error, but examined whether that error caused a miscarriage of justice.
The Court applied Rule 4 of the Criminal Appeal Rules, which deals with situations where counsel's conduct at trial contributed to the error. Because the defence itself had invited the omission, the Court found the circumstances engaged the rule. Regardless, the Court also applied the proviso to s 6(1) of the Criminal Appeal Act 1912, which permits a conviction to stand even where there has been an error, if no substantial miscarriage of justice actually occurred. Given the strength of the prosecution case, including the victim's direct identification, forensic evidence, the destroyed hire car, and the inherent implausibility of the alibi, the Court was satisfied no miscarriage of justice resulted from the absent direction.
Sentence appeal
The Court considered the sentencing judge's characterisation of the offence as "near the top of the range of seriousness." Adams J clarified that this description referred to the circumstances in which the injuries were inflicted rather than to the physical injuries alone. The appellant had cut telephone lines, forced entry, and attacked a woman alone at night in her own home, all while an apprehended domestic violence order was in force protecting her.
The Court rejected the submission that the sentence was manifestly excessive. The attack was described as cold, calculated and brutal. The appellant had no remorse and had committed a separate, similarly motivated offence against his former wife's new partner. The Court noted that domestic violence offences require significant weight to be given to both general and personal deterrence, particularly where an offender treats past intimate relationships as conferring an entitlement to use violence. No error in the sentencing judge's reasoning was established.
Orders Made
- Leave to appeal against sentence granted
- Appeal against conviction dismissed
- Appeal against sentence dismissed
Key Takeaways
- Where a defence at trial actively submits that a lies direction should not be given, and the trial judge acts on that submission, Rule 4 of the Criminal Appeal Rules is engaged and the appellant faces a higher threshold in relying on that omission as grounds for appeal.
- The proviso to s 6(1) of the Criminal Appeal Act 1912 permits a conviction to stand notwithstanding a trial error if the appellate court is satisfied no substantial miscarriage of justice occurred. In this case, the strength of the identification evidence and the implausibility of the alibi were decisive.
- An Edwards direction on lies and consciousness of guilt exists to protect an accused from the jury misusing evidence of falsehood. Its absence, without more, does not automatically warrant a new trial.
- In dismissing the sentence appeal, the Court of Criminal Appeal affirmed that domestic violence offences warrant strong emphasis on general and personal deterrence, particularly where an offender demonstrates a pattern of targeted, premeditated violence against former intimate partners.
- No error was established in a sentencing judge describing a s 33 offence as "near the top of the range" where the circumstances included deliberate preparation, a vulnerable victim attacked alone at night, and the existence of an apprehended violence order the offender disregarded.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 6(1) (proviso)
- Criminal Appeal Rules (NSW), Rule 4
Cases
- 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)