Angelika Gavare v The Queen

[2013] HCASL 58

ANGELIKA GAVARE

v

THE QUEEN

[2013] HCASL 58
A29/2012

1. The applicant was convicted of murder following trial by judge alone in the Supreme Court of South Australia (Kelly J).  She unsuccessfully appealed against her conviction to the Full Court of the South Australian Supreme Court (Vanstone, Anderson and White JJ)[1].  She applies for special leave to appeal from the order of the Full Court.  The application is out of time.  She is in custody and in an affidavit she deposes to the difficulties in preparing her application arising from her custody.  Compliance with the Rules respecting time should be dispensed with and the application considered on its merits[2].

   [1]R v Gavare [2012] SASCFC 52.

   [2]High Court Rules 2004, rr 2.02 and 41.02.1.

2. The prosecution case at trial was largely circumstantial.  It was alleged that the applicant killed an 83 year-old woman for financial gain.  The body of the deceased was dismembered and parts of it were recovered from a reserve located close to the applicant's home.  The prosecution led compelling evidence to prove that the applicant disposed of the body[3].  It was not possible to determine the cause of death from such of the remains as were recovered.  The Full Court agreed with the trial judge's assessment that the "totality of the circumstantial evidence is as powerful as any direct evidence could ever be"[4].  The direct evidence included the evidence of the applicant's mother, Mrs Dombrovska, of a conversation in which the applicant made admissions[5]. 

   [3]R v Gavare [2012] SASCFC 52 at [38].

   [4]R v Gavare [2012] SASCFC 52 at [98] per Anderson J, Vanstone and White JJ concurring.

   [5]R v Gavare [2012] SASCFC 52 at [53].

3. The applicant was represented by senior counsel on her appeal in the Full Court.  The appeal was conducted upon acceptance that the evidence established that the applicant had unlawfully killed the deceased.  The contention was that the evidence was incapable of excluding the reasonable possibility of accident or manslaughter[6].  A second ground of appeal contended that the trial judge misdirected herself with respect to the standard of proof when relying upon motive to establish murderous intent[7].  The Full Court, correctly, rejected both grounds. 

   [6]R v Gavare [2012] SASCFC 52 at [66]-[67].

   [7]R v Gavare [2012] SASCFC 52 at [68].

4. The applicant applies for special leave to appeal on grounds that were not advanced below.  She contends that her mother's evidence ought to have been excluded.  The thrust of her attack is an assertion that Mrs Dombrovska was pressured to give evidence at the trial.  The proceedings were adjourned to ensure that Mrs Dombrovska received advice respecting her right to seek exemption from giving evidence against her daughter[8].  On resumption of the trial the following day, Mrs Dombrovska stated that she did not wish to make such an application.  Other of the applicant's grounds as developed in her summary of argument seek to challenge findings of primary fact and the inferences drawn from those facts.  A number of these contentions are inconsistent with the basis upon which the applicant's case was conducted in the Full Court.

   [8]Evidence Act 1929 (SA), s 21.

5. Nothing in the material filed in support of the application provides a basis for the grant of special leave. 

6. The application is dismissed.  

7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

V.M. Bell
8 May 2013 S.J. Gageler