Civic v The Queen

[2016] HCATrans 64

[2016] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  BRISBANE  No B21 of 2015
  No B22 of 2015

B e t w e e n -

MIRKO CIVIC

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 MARCH 2016, AT 1.55 PM

Copyright in the High Court of Australia

MR S. BARATARAJ:   May it please the Court, I appear for the applicant.  (instructed by S Barataraj of Counsel)

MS V.A. LOURY:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions)

GAGELER J:   Yes, Mr Barataraj.

MR BARATARAJ:   Excuse me one minute. 

GAGELER J:   Mr Barataraj ‑ ‑ ‑

MR BARATARAJ:   I think – I am looking for my glasses, it is all right.

GAGELER J:   You can take it that we have read your written submissions, Mr Barataraj.

MR BARATARAJ:   Thank you, your Honour.  I just have to raise a couple of issues in this with respect to the question of fact more than a question of law.  The evidence that was given by the principal witness, Pringle and that was supported by his girlfriend, Zamparutti, was very critical with respect to the conviction of the applicant.  Now, he gave evidence that there was a conversation between him and the applicant just before the incident and during that conversation the deceased interrupted the call and there was an altercation between the deceased and the applicant. 

Now, when the call was finished, obviously, the applicant was coming over to the house.  The information really is provided by the witness, Pringle, was supported by Zamparutti because she said in the evidence that she heard him talking to the applicant.  Now, all this – there was no challenge to that information by the defence counsel and there was no challenge also on the credibility of the witnesses.  Now, I would like to recall ‑ ‑ ‑

GAGELER J:   Are these submissions directed to telling us that this is not a question of fact, there is some question of law involved?

MR BARATARAJ:   This is a question of fact and the fact that the whole evidence that was presented in the trial was – I mean, the main witness, principal witness, and her girlfriend presented evidence which was false which I am trying to prove. 

GAGELER J:   Is there any question of principle raised by your application?

MR BARATARAJ:   The principle is that the applicant is entitled to a fair trial and if for argument’s sake, if a witness gives evidence in a trial that convicts a person and let us say, sometime the guy he recants that information and if that happens obviously the whole trial would have to be reviewed and whether or not the person was indeed guilty of the offence. 

NETTLE J:   Mr Barataraj, we do understand that that was recanted.  We also understand that the recantment was information that was available to the defence at the time of the trial and they chose not to make use of it.  What you seem to be saying is that the Court of Appeal was wrong in holding that there should not be a new trial in which you could adduce it.  Where is the error of law in that in the circumstances where you knew of it and chose not to use it at trial?

MR BARATARAJ:   Well, I have got the evidence of the court records which provide ‑ ‑ ‑

NETTLE J:   Not the evidence, what was wrong as a matter of law with the Court of Appeal’s holding that because you knew of it and because it was not new evidence and because it was unlikely to affect the jury, there ought be no new trial?

MR BARATARAJ:   That is correct, your Honour.  I mean, this is an accepted principle which I accept.  But ‑ ‑ ‑

NETTLE J:   Right, so where did the Court of Appeal go wrong as a matter of law, do you say?

MR BARATARAJ:   Well, I could not say the Court of Appeal has gone wrong on that but all I can say that the Court of Appeal did not look into the evidence that clearly indicates the principal witness had lied to court and I try to – the applicant tried to adduce the evidence to show that there is by court records which indicate the incidence that supporting witness and the principal witness were indicated did not happen.

NETTLE J:   Are you saying that the Court of Appeal erred in law in failing to hold that the verdict was unsafe and unsatisfactory?

MR BARATARAJ:   That is correct, your Honour. 

NETTLE J:   Was it one of your grounds of appeal to the Court of Appeal with the verdict was unsafe and unsatisfactory?

MR BARATARAJ:   That is correct, your Honour.

NETTLE J:   So you say that they erred in law by failing to take into account certain aspects of the evidence which showed the verdict to be against the evidence and the weight of the evidence?

MR BARATARAJ:   That is correct, your Honour. 

NETTLE J:   Whose evidence is that do you say?

MR BARATARAJ:   First of all, the evidence, Peter Civic is a son of the applicant.

GAGELER J:   This was the evidence that was not admitted.

MR BARATARAJ:   I would like to record this, he was called for evidence in the committal trial and it was established, according to him, that he believed the knife belonged to the applicant.  Now, this is very important because if the knife did belong to the applicant then the whole case will be correct.  However, after Christmas that year, he had indicated that he had found the knife that he mistook belonging to the applicant in the Christmas decorations.  So, he has immediately given an affidavit to say that he was mistaken and the knife that – the murder weapon that was brought by the applicant into the house did not belong to the applicant. 

The other question is there is no way on record by Pringle or anybody who have said that the applicant brought the knife to the scene.  There is no record of – there is a record of Pringle saying that the deceased did not bring the knife.  So, the fact that the applicant brought the knife to the scene was an inference rather than a question of fact.  This is important – well, this is very important for the whole trial. 

Now, the other question is that Pringle said that there was a telephone conversation between the applicant and himself interrupted by the deceased and it was supported by Zamparutti, his girlfriend.  Call records indicate that Zamparutti was never at that residence at that time.  The incident happened between 5 o’clock and about 8.30.  Between 5 o’clock and 8.30 she was not at the residence of Pringle even though she claims that she was and she heard the conversation between the deceased and the applicant.  She could not have heard because between 5 o’clock and 8.30 Pringle has been trying to contact her through his mobile on to her mobile and, in fact, had a conversation.  This gives evidence that Zamparutti was never at that residence.  It was very important that Zamparutti supporting what Pringle has said.  These are the critical aspects of the case, your Honour. 

The other – the question of credibility on the applicant – I am sorry, on the principal witness was never raised when, in fact, he has got such a long criminal record and the criminal record is given on page 71.  I refer to page 71 of the appeal book, your Honour.  This is a – he has such a long criminal record that involves violence and this was never – he was never questioned.

GAGELER J:   Page 71 is part of your summary of argument. 

MR BARATARAJ:   I am sorry, your Honour.  It should be two of – sorry, 161, your Honour.  May I go to it, your Honour?  The call records which prove Zamparutti was in is on page 172.  My submission is that, your Honour, if the actual evidence – if it has been proved that principal witness and his girlfriend has lied in court then obviously the whole trial may be based upon false evidence. 

The other aspect is also that Pringle himself came to the scene of the fight with the deceased and he was very close.  He could observe everything that has happened there but he did not – he was very vague about the whole incident and he also said that when the deceased fell down he tried to kick the applicant but failed.  So, that clearly is an involvement of Pringle in the altercation.  The other aspect of it which I have to say is Pringle had deleted phone records, which is in the book.  Why he deleted the records, he said he was trying to protect himself.

GAGELER J:   All right, so all of these submissions go to the proposed appeal against conviction.  You also have an application for special leave to appeal in relation to sentence.  Is there something you want to specifically say about sentence?

MR BARATARAJ:   Yes, which I will do now, your Honour.  In the Court of Appeal it was – the information was provided that the applicant was in hysteria after the event and he was shouting “I am a murderer” and so on, it is all in their report, and the fact that if he had made an attempt and killed on an intention of – some intention or some aberration then he would not have made all these remarks and become hysteria. 

So, there is a lot of witness giving that he was – the fact that the applicant was in shock and hysteria and he accused himself of – he says he did not know what he did but he believes that he has killed somebody.  He did not know who he killed.  It was definitely not – I mean, the deceased, the applicant never knew the deceased.  He does not know who he was.  He has never met him before. 

So, when he has come back, he says he has killed somebody, he thinks he has killed somebody and he is a murderer and he goes back to the house.  He remains in the house and his son calls the police.  So, there was no attempt for him, number one, to hide the knife.  He could have – as he

was from Paradise Point right up to a place where he go – he could have stopped anywhere and threw the knife if he had really wanted to hide the knife.  He never did.  He brought it back with him to the house and he remained there and waited for the police to come. 

So, there was no attempt for him to run or flee, there was no attempt actually to try to hide the knife and hiding the knife in the drawer is the worst possible place to do so.  It is only because it was found in the drawer that it was assumed that he placed it in the drawer.  There is no evidence that it was him who kept that knife in the drawer.

So, taking all that into consideration, your Honour, obviously there is remorse on the part of the applicant.  He was very unhappy what has happened.  He was hysteria – he had hysteria and according to the son, finding him hysteria, asked him to have some glasses of whiskey to calm him down as well as wash his wounds.  As a result of which, I mean, a lot of things – consequences followed. 

So, my submission is this that distinctly there was remorse on hysteria.  He never attempted to flee and also the fact that he did not throw the knife anywhere.  He did not hide the knife and the sentence is harsh.  In the case of Desalvo which was used.  He stabbed once, correctly, as is said, but he was not showing the remorse and he was given eight years and SVOD.  So what my submission is the appropriate sentence in this case would be ten years without SVOD, your Honour.  Thank you.

GAGELER J:   Thank you.  We do not need to call on you, Ms Loury. 

The applications raise no question of principle and disclose no arguable basis for the existence of error on the part of the Court of Appeal.  Each application is dismissed.

The Court will now adjourn to 10.15 am on Tuesday, 5 April in Canberra.

AT 2.15 PM THE MATTER WAS CONCLUDED