Coleski v The State of Western Australia - [2008] WASCA 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COLESKI -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 237

CORAM: WHEELER JA

HEARD: 31 OCTOBER 2008

DELIVERED : 20 NOVEMBER 2008

FILE NO/S: CACR 138 of 2008

BETWEEN: DRAGAN COLESKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MACKNAY DCJ
File No  :IND 638 of 2008

Catchwords:

Criminal law - Leave to adduce fresh evidence - Bail - Unlawful grievous bodily harm - Identification - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal against conviction granted
Leave to adduce fresh evidence granted
Bail granted

Category: B

Representation:

Counsel:

Appellant: Ms A S Rogers
Respondent: Mr D Dempster

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

WHEELER JA: This is an application for bail pending appeal, an application to adduce fresh evidence at the hearing of the appeal and an application for leave to appeal against conviction. The circumstances out of which the applications arose are as follows.
Between 10.00 pm on 3 June 2007 and 1.00 am the following morning, the complainant, Zivko Naumoski, was at a social function at the Sicilian Club in Balcatta. There was an incident involving the complainant's friend, Zarko Trimoski. The complainant went to assist Trimoski. As he did so, he was assaulted. It is alleged, and the jury must have found, that the appellant then joined in what became a melee, and kicked the complainant to the head and/or upper body. The complainant lapsed into unconsciousness. He was later taken to hospital. He had a number of plates placed into his face and cheekbones, and screws into his jaw. It seems to have been accepted on all sides that he suffered grievous bodily harm. The appellant, in a videotaped record of interview, admitted being at the Sicilian Club. He said that he had been assaulted with a broken bottle. He denied either punching or kicking the complainant. Identification was one of the issues at trial.
The appellant was tried with two others, being his father, Vlase Coleski, and Ilo Milevski. The appellant was the only one of the three convicted. The witnesses were extensively cross‑examined about their recollection, about their identification of the offenders, and about their discussions, if any, with others subsequent to the incident and prior to trial.
It appeared that those prosecution witnesses who had been at the Sicilian Club were related, or well‑known, to each other. The cross‑examination, in part, explored the question of whether, subsequent to the incident, they had collectively attempted to reconstruct it in order to identify the principal offender(s), so that the identification evidence was not the independent recollection of each witness. To a lesser extent, cross‑examination also appears to have been designed to explore the possibility that there had been some reconstruction of their evidence in order to ensure that no member of their group was identified as an initial aggressor in the events leading up to the melee. It was the evidence of the witnesses that between 10 and 30 people appeared to have been involved in the melee in one way or another, either fighting, or attempting to restrain those who were fighting. None of the accused persons gave evidence in his own defence, but witnesses were called on their behalf.
So far as the prosecution witnesses were concerned, their evidence, briefly summarised, was as follows:
•Zivko Naumoski. This complainant was "tipsy", but not drunk. He said that the appellant "hit me with the leg in my face". The appellant was wearing steel‑capped boots which were yellow - like a "brown yellow". He did not know the appellant before that day. The lighting in the area was not bright. Cross‑examined, he was insistent that the boots were yellow and were "a big boot, a massive boot". He described the appellant as wearing all dark clothes, apart from the yellow boots, and wearing "a shirt with a black and, like, a blue strips".
•Zarko Trimoski. He had consumed seven to eight beers. He had seen the appellant "up and down the club" before, but had never spoken to him. In his evidence, he did not describe any kicking of Naumoski; he apparently did not see that part of the melee. However, at an earlier stage, he described holding the appellant for a considerable time after the appellant had tried to punch him.
•Velinda Trimoski. She was married to Zarko Trimoski. She used to know the appellant when he was younger. She had seen him "around". She saw him "take a swing" at her husband. She described the appellant as wearing a blue shirt, blue jeans, and having a little bit of a moustache or goatee. She saw the appellant kicking Naumoski. She thought he kicked Naumoski in the stomach. A few people told her the appellant's name after the fight. She did not recognise him at the time and had to rely on what others told her. Her descriptions of the appellant and his co‑accused, Ilo Milevski, were very similar. It appeared from the cross‑examination that she had been mistaken about what Ilo was wearing. Later in cross‑examination, she said that she had got the names of Ilo and another person named Ilija mixed up. It was Ilija, not Ilo, who had punched her husband. Later in her cross‑examination, she said that she was sure that Ilo had kicked Naumoski in the head while the appellant kicked him in the stomach. Later again, she was firm in her view that Ilo had kicked Naumoski in the stomach and the appellant in the face. When she identified Ilo from photographs shown to her by police, she apparently said, however, that he was the one who had kicked Naumoski in the face.
•Renata Naumoska. She was married to Naumoski. She knew the appellant. She had grown up with him and used to be close friends with his auntie, who he had often visited. That night, the appellant was wearing a blue shirt with tight, black jeans and "big yellow boots". The appellant "started fighting" with Naumoski. "They all started fighting." She ran outside and looked in through the window. The lighting was good. She saw her husband fall to the floor, and saw the appellant kicking him in the face a few times. She conceded that, in her written statement to police, she had said that the appellant was wearing black boots, but after a while it "came back to" her that they were yellow. She could now remember that "perfectly". Later again, she repeated that he was wearing big, yellow boots. In cross‑examination, she agreed that the appellant had kicked Naumoski not two to three times as she had earlier said, but definitely twice. She was cross‑examined with a view to demonstrating, by reference to plans produced and to her description, that she could not have seen the incident clearly from where she was standing outside.
•Biljana Klaposki. She saw the appellant run around and grab Trimoski and push him to the floor. She had seen the appellant "around". She knew him, however, just through people telling her who he was. When Naumoski went to aid Trimoski, she saw Naumoski being kicked in the face and the stomach by the appellant and Ilo. The appellant kicked him three to four times in the face. The appellant's mother was begging the appellant to stop. She knew the appellant's mother from when she was a small girl. In cross‑examination, she accepted that when she pointed to Ilo on the digiboard shown to her by police she said, "I think his name is Dragan" (which, of course, is the appellant's name).
•Stojan Miloseki. He said little about the appellant. All he had seen was that Naumoski somehow slipped on the floor and then there were kicks "from every side". He did not know who had kicked him.
Relevant witnesses called on behalf of the accused persons were:
•Brooke McGovern. She was the appellant's girlfriend. She saw him being punched by someone and saw him run out of the area. He was wearing blue jeans, dark blue top, and black sneakers. She had never seen him with yellow boots. She saw someone on the floor and "everyone" kicking that person. However, the appellant did not kick that person. She was cross‑examined at some length about the appellant's footwear, and was firm in her view that he had never had yellow, or yellowy, boots.
•Menka Coleski. She was the appellant's mother. She was called to give evidence on behalf of her husband, Vlase Coleski. However, during the course of her evidence, she described an incident in which Naumoski on that evening had hit or stabbed the appellant with a broken bottle.
This was a trial in which both the honesty and the accuracy of all of the prosecution witnesses was very much in question. The prosecution witness who apparently knew the appellant best, Renata Naumoska, was cross‑examined with a view to establishing that she could not really have seen the incident properly. Further, if it was possible that Naumoski had first, or at any time, stabbed the appellant with a broken bottle, she might have had a motive to paint the appellant as the aggressor. Velinda Trimoski also appears to have been in a position to know the appellant, but cross‑examination showed that she was possibly confused about who had done what on the night in question. Others knew the appellant less well. Part of the identification involved the yellow boots which were particularly described by the complainant, Zivko Naumoski, and his wife, Renata Naumoska.
The application to adduce fresh evidence arises in the following way. Mrs Coleski had been under the impression, prior to trial, that someone may have been taking a video of the concert at the Sicilian Club which may have shown both the appellant and Vlase Coleski, and may have assisted with their defence. However, she was initially unable to recall who may have been doing so. About a week prior to the trial, she thought she recalled that a Mr Abduramanoski had been recording footage of the concert. She visited his home. He was not present, but his wife said that no footage had been taken by her husband of the event. After the second day of the trial, she again attended Mr Abduramanoski's house. He, his wife and daughter‑in‑law were present. He told her that he had not taken a video recording of the concert, but that he would make inquiries to determine whether any other person had done so. On 15 September 2008, shortly after the appellant's conviction, she again visited Mr Abduramanoski, who again denied having any footage of the evening in question. On the afternoon after the appellant was sentenced, she returned to Mr Abduramanoski's home, with her husband. Mr Abduramanoski, his wife and daughter‑in‑law were all present. When he again said that he had not taken a video recording of the concert, she broke down in tears. At that point, his daughter‑in‑law admitted that there was footage of the concert in the Abduramanoskis' possession. They gave her a DVD of footage of the concert.
The basis of the appeal, then, is that the DVD is fresh evidence. Alternatively, it is submitted that it is new evidence which raises such a doubt that the court would conclude that the appellant should not have been convicted.
I have briefly viewed the footage in question. I also have some stills taken from that footage, which have been provided by the State. It is not easy to discern from that footage what footwear the appellant was wearing. However, I should note that the stills are not of particularly good quality (whether or not they are the best that can be possibly taken from such footage, I do not know). Further, I have viewed the DVD on a relatively small screen. I do not know whether visibility would be enhanced using better equipment. That said, although the footage is not particularly clear, the appellant does appear to be wearing dark footwear. So much is conceded by the State in submissions dated 30 October 2008. There is nothing to suggest a yellow tinge to it. The State submits that, at one point in the video, the appellant's footwear appears to be of a shape more consistent with a boot, rather than the sneakers which he described. This is less easy to discern. In any event, I have not viewed the sneakers in question.
So far as the application for bail is concerned, the relevant principles are not in dispute, and I do not repeat them here. The State concedes that a significant portion of the appellant's term will have been served by the time his appeal comes to be dealt with. It accepts, therefore, that the application for bail stands or falls with the strength of the appellant's case. In relation to that matter, so far as both the application for bail and the application for leave to appeal are concerned, the State accepts (only for the purposes of these applications, and without conceding it) that the proposed evidence is relevantly fresh. However, it submits that it cannot reasonably be argued that that evidence gives rise to a significant possibility of acquittal. It is submitted that there was evidence at the trial that the appellant had been wearing black shoes. That evidence, of course, was given by his girlfriend, and also appeared from his videotaped record of interview. It is submitted, therefore, that it was open to the jury to accept that the appellant was wearing black shoes, but, nevertheless, to be satisfied of his guilt to the required standard.
In my view, not only should leave to appeal be granted, but the appellant's prospects of success are such that it is appropriate to grant him bail pending his appeal. Two very important prosecution witnesses gave evidence of striking footwear, being "big, yellow boots". They were the complainant, Naumoski, who was presumably in the best position to see the footwear which was kicking him about the head, and Renata Naumoska, who, of all the prosecution witnesses, appears to have been the one who knew the appellant best. While there was some evidence at trial that he was wearing other footwear, that evidence was far from independent, and one can see that the jury may well have discounted it on that account. Independent evidence which tends strongly to suggest that the appellant was not wearing "yellow" footwear has the potential to cast a significant doubt upon the evidence of significant prosecution witnesses as to both its honesty and its accuracy. It is, as a matter of preliminary impression, strongly arguable that an appellate court might consider that the evidence of those witnesses was of such significance that fresh evidence casting doubt upon it should lead to the appeal being allowed.
In those circumstances, I would grant leave to appeal, grant the appellant leave to adduce in evidence on the appeal the DVD of the video footage taken on the evening of the alleged offence, and grant the appellant bail pending the hearing of the appeal. I note that I had previously indicated that the application for leave to appeal and for leave to adduce fresh evidence should be referred to the hearing of the appeal. However, in the light of the conclusions which I have now reached, having reviewed the whole of the evidence at trial, it seems to me appropriate to vary those orders in the manner I have indicated.