Cvetkovic v R - [2010] NSWCCA 329

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: CVETKOVIC, Dragan v R [2010] NSWCCA 329
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19-22 July 2010

JUDGMENT DATE:
21 December 2010

JUDGMENT OF: Campbell JA at 1; Simpson J at 421; Whealy J at 421

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction and sentence – grounds of appeal – (1) Conviction unreasonable or unsupported by evidence – (2) Wrong interlocutory decisions – (3) Substantial miscarriage of justice – Appeal dismissed – CRIMINAL LAW – Evidence – Issues raised on appeal – Evidence sought to be admitted by the appellant as character and tendency evidence was determined by the trial judge to be evidence going to issues of credit – trial judge decision to admit certain evidence put forward by the prosecution as relationship evidence rather than tendency evidence – whether trial judge ought to have made a section 136 (Evidence Act 1995) ruling in relation to evidence about the credibility of the victim – whether trial judge ought to have imposed a section 136 (Evidence Act 1995) limitation on sexual experience evidence – application for leave to recall witnesses for further cross-examination – CRIMINAL LAW – Particular offences – offences against the person – acts intended to cause or causing danger to life or bodily harm or serious injury – wounding with intent to murder – CRIMINAL LAW – Criminal liability and capacity – defence matters – non-insane automatism – interaction of onus of proof and presumptions of mental capacity and that an action is willed – significance of psychiatric evidence in displacing presumptions [86]-[93] – APPEAL – test for appellate reversal of discretionary decision of practice and procedure no different to test for any other discretionary decision, but satisfaction of the test often harder as a matter of fact [217] – EVIDENCE – tendency evidence – proper procedure for deciding admissibility of tendency evidence [224] – difference between tendency evidence and relationship or context evidence – CRIMINAL LAW – procedure – whether a “prescribed sexual offence” within Criminal Procedure Act 1986 must involve activities that themselves have a sexual component [265]-[277] – effect of a “prescribed sexual offence” being tried with other charges [278] – STATUTES – Acts of Parliament – interpretation – role of definition section – meaning of “except in so far as the context or subject-matter requires” [272]-[276] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – reasons for judgment in other cases – whether admissible under s65(3) [295]-[300] – whether statements in them are first-hand hearsay [299]-[300] – whether admissible under s65(8)(b) [301]-[303] – whether admissible as a public document under s157 [304]-[314] – whether “judgment” in s157 includes reasons for judgment [306] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – first-hand hearsay – onus of proof of unavailability of the person who made the previous representation [341] – form in which evidence of the previous representation can be given by the person who saw, heard or otherwise perceived the representation being made [343] – EVIDENCE – admissibility under the Evidence Act 1995 – what constitutes “evidence of reputation” under s73 [353]-[354]

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Interpretation Act 1987
Mental Health Act 2007
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Andrew John Hawkins v The Queen (1994) 179 CLR 500
Bratty v Attorney General (Northern Ireland) [1963] AC 386
Chief Commissioner of State Revenue v Qantas Airways Ltd [2009] NSWCA 163
Conway v R (2000) 98 FCR 204
Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354
Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104
Floor v Davis [1980] AC 695
Ha v The Queen [2010] NSWCCA 83
Hall v R (1988) 36 A Crim R 368
Hawkins v The Queen (1994) 179 CLR 500
House v The King (1936) 55 CLR 499
Kevin Barry Nolan v The Queen (WACCA, 22 May 1997)
M v R (1994) 181 CLR 487
McKinney v R (1991) 171 CLR 468
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Murray v The Queen (2002) 76 ALJR 899
National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223
Qualtieri v Regina [2006] NSWCCA 95
R v Falconer (1990) 171 CLR 30
R v Ford [2009] NSWCCA 306
R v Leonboyer [2001] VSCA 149
R v Mrish (NSWSC, Hidden J, 4 October 1996 unreported)
R v Radford (1985) 42 SASR 266
R v Serratore [1999] NSWCCA 377
R v Singh [2003] SASC 344; (2003) 86 SASR 473
R v Suteski (No 4) [2002] NSWSC 218; (2002) 128 A Crim R 275
Steven Vernon Hall (1988) 36 A Crim R 368
The Official Trustee in Bankruptcy v Buffier [2005] NSWSC 839
The Queen v Falconer (1990) 171 CLR 30

TEXTS CITED: Pearce & Geddes, Statutory Interpretation in Australia, 6th ed 2006

PARTIES: Dragan Cvetkovic (Appellant)
Regina (Crown)

FILE NUMBER(S): CCA 2009/231349

COUNSEL: In Person (Appellant)
M Cinque (Crown)

SOLICITORS: In Person (Appellant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/21/12

LOWER COURT JUDICIAL OFFICER: Sweeney J

LOWER COURT DATE OF DECISION: 7 August 2009

TABLE OF CONTENTS

Para No.

The Charges 4

Factual Outline 6

Uncontroversial Matters 6

Matters Not Common Ground 47

Relationship Between Appellant and Mrs Cvetkovic 47

Bad News From Mr Diamond 59

Circumstances of Stabbing 63

GROUND 1 – CONVICTION UNREASONABLE OR UNSUPPORTED BY EVIDENCE 84

Ground 1(A) – Charge Not Proved Beyond Reasonable Doubt 86

Dr Westmore’s Evidence 95

Dr Nielssen’s Evidence 107

Dr Hay’s Evidence 123

Reasonable Doubt from Various Symptoms of Automatism? 125

Reasonable Doubt Raised by Some Fragments of Expert Evidence? 139

Matters Making Implausible Voluntariness and Intention to Murder? 147

Use of Left Hand 151

The Glasgow Coma Scores 154

Ground 1(B) – Inadequate and Tainted Evidence 161

The Ambulance Officers’ Evidence 162

Unreliability of the Police Interview 166

Contamination of Audio Record of Police Interview? 170

Tainting of Evidence About Voicemail Messages? 172

Inconsistencies in Eyewitness Evidence 176

Mrs Cvetkovic’s Evidence 182

Injury to the Neck 183

Cuts to the Clothing of the Victim: Jacket and Jumper 184

Position of Cars at the Exit of the Carpark 188

Dr Nielssen’s Evidence Wrong 191

Significance of Leaving the Alternative Verdict to the Jury 193

Conclusion on Ground 1 195

GROUND 2 – WRONG INTERLOCUTORY DECISIONS 197

Ground 2(a) – Refusal of Adjournment Application 198

Ground 2(b)(i) – Evidence of Character and Tendency of Victim and her Daughter 219

Ground 2(b)(ii) – Failure to make Section 136 ruling Re Affidavits in Other Proceedings 236

Ground 2(c) – Admission of Relationship Evidence 242

Ground 2(d)(i) – Whether Part 5 Division 1 Criminal Procedure Act 1986 Applied to Trial 265

Ground 2(d)(ii) – Imposing Section 136 Limitation on Sexual Experience Evidence 278

Ground 2(e) – Refusal to Admit Reasons for Judgment in other Cases as Evidence 294

Previous Reasons for Judgment Admissible Under Section 65(3)-(6)? 295

Previous Reasons for Judgment Admissible Under Section 65(8)(b)? 301

Assistance from Section 157 in Showing Admissibility of Previous Reasons for Judgment? 304

Other Provisions Not Relied On 316

Ground 2(f) – Leave to Recall a Witness for Further Cross-Examination 318

Ground 2(g) – Rejecting Entry in Constable Foscholo’s Police Notebook 324

Notebook Entry Admissible as a Business Record? 349

Notebook Entry Admissible as Reputation Evidence Under Section 73? 351

Notebook Entry Admissible as Res Gestae? 356

Application of Proviso in Section 6(1) Criminal Appeal Act 1912 357

Ground 2(h)(l) – Rejection of the “Never Sent” Email 359

Ground 2(h)(ll) – Failure to Admit Certain Medical Records and Correspondence with Lawyer 368

GROUND 3 – SUBSTANTIAL MISCARRIAGE OF JUSTICE 375

Ground 3(A) – Unfairness of the Trial? 376

Ground 3(B) – Misdirections or Inadequate Directions 386

McKinney Direction 386

Inadequate Directions on General and Specific Intent? 392

Inadequate Direction on Extent of the Evidence Required to Raise Reasonable Doubt 398

False or Misleading Directions? 402

Inadequate Directions on Medical Evidence? 405

Inadequate Direction on Glasgow Coma Scale? 407

Other Unspecified Inadequacies 408

Failure to Direct on Difference Between Insane and Non-Insane Automatism 411

Failure to Direct on Voluntariness of Specific Intent? 413

Ground 3(C) – Nature of the Evidence and the Overall Effect 418

Order 420

2009/231349

CAMPBELL JA
SIMPSON J
WHEALY J
21 DECEMBER 2010

Dragan CVETKOVIC v The Queen

Judgment

1 CAMPBELL JA: On Wednesday, 6 June 2007 the Appellant stabbed his wife, Sladjana Cvetkovic (“Mrs Cvetkovic”) over 30 times with a gyprock saw as they sat in the front seats of their motor vehicle in the carpark of the Macquarie Shopping Centre, North Ryde. The stabbing occurred a little after 2:00 pm, wholly or partly in the sight of five eyewitnesses. By the time of the trial the Appellant and Mrs Cvetkovic were divorced.

2 As things transpired, her Honour Judge Murrell determined various pre-trial issues over six days in the period 9-17 March 2009. The trial itself occurred over 40 days in the period May 2009 to July 2009 before her Honour Judge Sweeney and a jury. The Appellant was convicted of a charge of wounding with intent to murder. There was no dispute at the trial that it was the Appellant who had inflicted the stab wounds on Mrs Cvetkovic, and little or no dispute about many of the incidents that led up to the stabbing. The Appellant’s defence at trial, evidently rejected by the jury, was that he had acted in a state of non-insane automatism. The Appellant now appeals against his conviction.

3 There are no substantive rules of law relating to the manner in which automatism bears upon whether a person is guilty of a crime. Rather, whether an accused was in a state of automatism at the time of committing an alleged offence is a question of fact, that bears upon whether the act in question was performed voluntarily, and whether it was performed with any specific intention that constitutes an element of the crime: Hall v R (1988) 36 A Crim R 368 at 371-2 per Roden J.

The Charges

4 The trial related to four separate charges:

1. Between 1 September 2005 and 30 November 2005 at Swansea in the State of New South Wales, detained Sladjana Cvetkovic without her consent and with the intention of obtaining an advantage, namely a psychological advantage, and that at the time of the detaining, actual bodily harm was occasioned to Sladjana Cvetkovic.

2. On 6 June 2007 at Macquarie Park in the State of New South Wales, did wound Sladjana Cvetkovic with intent to murder Sladjana Cvetkovic.

3. On 6 June 2007 at Macquarie Park in the State of New South Wales, did maliciously wound Sladjana Cvetkovic with intent to do grievous bodily harm to Sladjana Cvetkovic.

4. On 6 June 2007 at Macquarie Park in the State of New South Wales, did use an offensive instrument, namely a motor vehicle, with intent to prevent the lawful apprehension of himself.

5 With the Appellant’s consent, all four charges were tried together. Count 3 in the indictment was expressed to be in the alternative to Count 2. The jury gave a not guilty verdict in respect of Counts 1 and 4, and a guilty verdict in respect of Count 2.

Factual Outline

Uncontroversial Matters

6 A skeleton of facts that bear upon the charge of which the Appellant was convicted was not a matter of controversy at the trial. Some detail, that fleshes out that skeleton, was controversial. I shall start by recounting some of the uncontroversial matters.

7 The Appellant and Mrs Cvetkovic both qualified as medical practitioners in what was then Yugoslavia. They married in 1985 and had a daughter, Aleksandra (“Alex”), later in that year. After a period living in Sweden, they moved to Australia in 1998.

8 They lived in rented accommodation in Sydney until August 1999, when they moved to Swansea Heads, where they had recently purchased a house.

9 In the second half of 1999 both the Appellant and Mrs Cvetkovic became unemployed. They remained unemployed for substantially the whole time until February 2006. They obtained income from operating a medical research company which was not financially viable, from a government small business incentive grant and from social security benefits. They made an unsuccessful attempt to establish a business involving website design.

10 In February 2004 Alex moved to Glebe, where she was commencing studies at Sydney University.

11 In February 2006 Mrs Cvetkovic obtained employment with Novogen Laboratories at North Sydney. Apart from a period of about three weeks in June and July when she went to live with Alex, she and the Appellant lived together in a rented unit at Meadowbank on working days from that time until they separated in October 2006.

12 It was Mrs Cvetkovic who initiated the separation, and after it the Appellant repeatedly tried to persuade her to return. Various emails passing between them, predominantly from the Appellant, were in evidence. They contained professions of the Appellant’s love for Mrs Cvetkovic, reminders of occasions when she had said she loved him, and also accusations that she had lied to him, been unfaithful, and had started an affair with her superior at work, Professor Husband. In volume, the emails contained more professions of love and attempts to persuade her to return (including by seeking marriage counselling) than accusations. There was a repeated theme of reproach of her for not returning his messages, or not returning them promptly.

13 After the separation Mrs Cvetkovic lived with Alex in Glebe until January 2007, when Mrs Cvetkovic rented a unit in Pyrmont that she shared with Alex. However, after Mrs Cvetkovic rented the unit in Pyrmont, there were still occasional face-to-face meetings between the Appellant and Mrs Cvetkovic. For example, when the Appellant went overseas in February 2007, Mrs Cvetkovic drove to Swansea, stayed the night, and drove him to the airport. On his return from overseas in mid-March 2007, she collected him from Central Station, and drove him back to Swansea.

14 Though Mrs Cvetkovic had not given the Appellant the telephone number of the landline connection at her Pyrmont home unit, he found it out by obtaining the bills of the mobile telephone that she was using. He telephoned the Pyrmont landline number on the morning of 27 April 2007. He accepted that he probably did that for the purpose of letting her know that he knew where she was.

15 The Appellant’s driver’s licence was suspended for a three-month period starting on 8 March 2007. He agreed to Mrs Cvetkovic using the car that he usually drove, a Mazda 626, during the period of that suspension.

16 After the separation, Mrs Cvetkovic indicated that she wanted a divorce. The Appellant and Mrs Cvetkovic had signed an application for divorce in 2004, but not lodged it. In mid-February 2007 the Appellant, faced with “your clear indication that your decision for divorce is unchanged and final” lodged that application. However, at the end of March 2007 he discontinued that application. In May 2007 Mrs Cvetkovic began her own proceedings in the Family Court seeking a divorce. Her uncontradicted evidence was that those proceedings were due to be heard in July 2007 (tp 53).

17 In early May 2007 the Appellant telephoned the wife of Professor Husband, and told her of his belief that Professor Husband and Mrs Cvetkovic were having an affair. The Appellant also, at that time, spoke to the CEO of Novogen, endeavouring to have a meeting with him to talk about that alleged affair, but the CEO was not prepared to meet the Appellant. On 14 May 2007 the Appellant sent to each member of the Board of Directors of Novogen a letter requesting the Board to conduct a formal inquiry into various matters related to the alleged affair. He also sent each board member a document, in the form of an affidavit suitable for filing in court proceedings, that gave his account, over 14 pages of single-space typing, of matters relevant to the breakdown of relations between himself and Mrs Cvetkovic. There were no extant court proceedings in which that affidavit could be filed, but the coverpage identified the Appellant as the prospective plaintiff, and Professor Husband as the prospective defendant.

18 Ms Lorraine Morgan, the receptionist at Novogen, gave evidence that Mrs Cvetkovic:

“… used to park at the back of the building until one day Dragan came and – with some papers for her. After that she – that day she said she was feeling uneasy and could I walk her to her car? After that she always parked her car in the front car park.” (tp 1265)

19 She put this incident as occurring “one or two months before” the stabbing incident. She was not cross-examined about that evidence.

20 Since June 2003 (tp 230) the Appellant and Mrs Cvetkovic had been conducting Supreme Court litigation against their former employers. They were self-represented in that litigation until some time in the late May to early June 2007 period, no later than 1 June 2007. Then Mr Mark Diamond, solicitor, agreed to act for them on a pro bono basis, to seek to negotiate an end to the litigation on a basis that did not involve the Appellant and Mrs Cvetkovic paying any legal costs.

21 Hall J delivered a judgment in the Supreme Court proceedings on 30 May 2007. In a way not gone into in the evidence, it was adverse to the Appellant and Mrs Cvetkovic. In connection with those Supreme Court proceedings, the Appellant and Mrs Cvetkovic attended conferences with Mr Diamond on both 1 June 2007 and 4 June 2007. The Appellant agreed that before 4 June his belief about settlement of the civil litigation was 20-30% concern that it would not settle, and 70% hope that it would be settled (tp 1790).

22 After the conference on 1 June 2007 Mrs Cvetkovic and Alex accompanied the Appellant while he purchased a guitar, and Mrs Cvetkovic and Alex had dinner with the Appellant at the Opera Bar, then walked with him to Central Station. The next day he completed a sailing course.

23 Hall J’s judgment fixed a directions hearing for the morning of Tuesday, 5 June 2007. The Appellant booked into a Travelodge hotel in central Sydney on Monday, 4 June 2007. His room was on the 14^th floor. The initial booking was for only one day. However, it was extended, day by day, to the morning of 7 June 2007. The hotel booking confirmation form, which was in evidence, nominated the checkout time as “prior to 10.00am”. When the Appellant left his hotel on the morning of 6 June 2007 he left various personal items, including clothes, in the hotel room.

24 Mr Diamond’s efforts to settle the litigation of the Appellant and Mrs Cvetkovic without a costs order were unsuccessful. By 4 June 2007 the Appellant was aware that one of the defendants had not immediately returned an executed copy of a deed of release. At some stage on 5 or 6 June 2007 Mr Diamond told the Appellant that one of the defendants refused to settle the litigation without receiving some money.

25 For some months prior to the stabbing, the Appellant and Mrs Cvetkovic had been discussing what should be done about their matrimonial property affairs. On Monday, 4 June 2007 the Appellant and Mrs Cvetkovic discussed specific terms concerning how to deal with their matrimonial property. They provided for the Appellant to receive the Swansea Heads house, and for Mrs Cvetkovic to take out a loan for $250,000 and to pay that $250,000 to the Appellant. The Appellant later drafted on a computer a one-page document to give effect to that proposal. The draft included provision that Mrs Cvetkovic would be co-operative and proactive to finalise this agreement by the Friday, 08 June 2007.”

26 On 6 June 2007 the Appellant rang Mrs Cvetkovic at her work and asked her to meet with him so that they could go to the bank to make arrangements in relation to the loan, and so that he could print out the form of agreement that he had drafted. Before the Appellant went to Mrs Cvetkovic’s workplace he went to Chatswood, where he made enquiries about buying some shoes. He had with him at the time of his arrest the business card of a Chatswood shoe shop, and Mrs Cvetkovic agreed that he had told her, in the telephone conversation, that he was going to buy shoes.

27 The Appellant arrived at the building in which her workplace was located at about noon, and telephoned her to let her know that he was there. She met him outside the building, and he gave her a flash drive containing the draft agreement in electronic form. She left him outside the building while she went away to print it out. The Appellant telephoned her several times while she was engaged in the printing, and came upstairs to the Novogen reception area.

28 Novogen maintained a system whereby the receptionist kept a note of the time that people left the office and came back. That record showed that Mrs Cvetkovic left the office at 12.25.

29 She then drove him in their car to the Macquarie Shopping Centre, where the branch of the Commonwealth Bank with which they usually dealt was located. The Appellant was carrying with him a leather satchel bag. They went to McDonalds, and ate lunch. He endeavoured to persuade her to return to him, but she said, as she had said before, that the relationship was over.

30 They had returned to the car by 2.00pm. Mrs Cvetkovic sat in the driver’s seat, the Appellant sat in the passenger seat. He placed the leather satchel at his feet.

31 The leather satchel contained the draft document that Mrs Cvetkovic had printed, various other documents, and a gyprock saw. The saw and the draft document were both in the back pocket of the satchel, which was its most accessible part. The gyprock saw had a handle like that of a knife, and a 20 centimetre-long blade with saw-like serrations along one edge of the blade. Those serrations were cut so that the saw was capable of cutting on an in-stroke, and also capable of cutting on an out-stroke. Though there were some differences of evidence about the precise sequence of events, it was common ground that the Appellant removed the saw from the satchel, and soon afterwards was stabbing Mrs Cvetkovic with it.

32 Screams coming from the car attracted the attention of various passers-by. Two of them independently telephoned the police. Ambulance authorities received a message to attend the scene at 2.10pm.

33 Though Mrs Cvetkovic was trying to get out of the car, she was impeded by her seat belt. The Appellant kept on striking at her with the saw blade, though she was twisting, endeavouring to protect herself with her hands, and pleading with him. She suffered injuries on the left shoulder, chest, back, neck and hands. The police officer who conducted a forensic investigation concerning the car did not observe any damage to the front driver’s seat that could be consistent with cuts (tp 1592).

34 She ultimately managed to escape. Witnesses to the incident assisted her to lie down, and tried to stem her bleeding.

35 The Appellant remained in the passenger seat of the car. He used the knife to cut himself on the throat, on the chest and in the stomach. He then moved across to the driver’s seat. The keys were still in the ignition. The Appellant started the car and revved the engine loudly for a time. When some sirens were audible nearby he set the car in motion, crashing into a golf buggy that shopping centre staff had deliberately placed in front of his vehicle to obstruct his path.

36 By that time, two police constables had arrived. One of them, Constable Roberts, drew his service pistol and pointed it at the Appellant and instructed him to stop. The vehicle did not stop: it continued towards Constable Roberts and hit him on the leg, causing him to lose his balance and fall towards a concrete pylon. It is this incident that formed the subject of the fourth charge.

37 The Appellant’s vehicle then headed for the carpark exit, bumping into several vehicles on the way. Then it hit into the back of a vehicle that was blocking the way out from the carpark. Police and other bystanders were able to drag the Appellant from the vehicle. He was sprayed with capsicum spray, then arrested.

38 Then some ambulances arrived. One arrived around 2.22pm, another around 2.38pm. An ambulance officer assessed the Appellant by reference to the Glasgow Coma Score at 2.22, 2.37 and 2.49pm. On each occasion the officer rated the Appellant at 15 (indicating the highest level of consciousness on that scale).

39 Both the Appellant and Mrs Cvetkovic were taken to Royal North Shore Hospital. Hospital records show that Mrs Cvetkovic was admitted at 2:55pm. Both Mrs Cvetkovic and the Appellant were treated for their injuries. Mrs Cvetkovic’s treatment involved surgery taking somewhat more than nine hours.

40 Police recorded an interview with the Appellant at Royal North Shore Hospital at 5.50pm on the same day as the stabbing. Sergeant Andrew Kable recorded the interview on a device called an ERISP machine, that recorded speech onto three audiocassettes simultaneously. Detective Senior Constable Morena Connell was present at the same time. She took handwritten notes as the Appellant spoke. She read those notes in court. They included an account of the Appellant being given the usual warning, and continued:

“Sergeant Kable said ‘Would you like to tell me anything about what occurred earlier today at the Macquarie Shopping Centre?’ the Accused said ‘Oh, undo my hands, what can I say, I cannot believe that this is happening, it’s, I cut myself, my throat’. The accused said ‘It was, what can I say’. The accused raised his arms to about 15 centimetres off the bed, his palms were facing upwards. The accused said ‘I can only believe that this is happening, it’s a nightmare just I can say’.

Sergeant Kable said ‘Can you remember what happened today?’, the accused said ‘I believe, yes.

I wanted to cut pain and suffering that we exposed for years and terminate our lives.

41 Sergeant Kable gave evidence to substantially the same effect (tp 1292-1293). Sergeant Kable’s evidence identified 6.06pm as the time that the recording ended. His evidence also included:

“whilst speaking with the accused I note that his speech was quite slow and deliberate. He spoke with a strong accent and at times he spoke very softly making it difficult to hear him. He paused on many occasions whilst giving his answers. He did not make eye contact with Detective Barnes or myself. He appeared to be looking directly at the ceiling.” (tp 1293)

42 As well as having evidence from these two police officers, the tape recording of the conversation was played to the jury, and the jury were given what was said to be a transcript of it. The transcript had been prepared by someone other than Sergeant Kable and Detective Connell, and omitted some words that they had noted. At the time the transcript was being distributed the judge said to the jury:

“… when you see the transcript and when you listen to the recording you should keep in mind the transcript is someone’s best effort at transcribing what they hear on the tape.

…

But if you notice any differences between what’s on the recording and what’s on the transcript then you should give preference to what you hear on the tape, because the tape is the best evidence and as I said sometimes when people make transcripts they leave things out or they might mis-record a work [word?]. So bear that in mind when listening to the audio.” (tp 826)

43 Detective Connell gave evidence that at 8.30pm a nurse (who she named) told her and Sergeant Kable “he wants to speak to you”. They went to the Appellant’s bedside, with the ERISP machine. Her evidence continued:

“The accused said ‘No, turn don’t machine on, it’s got nothing to do with case’. The accused said ‘Staying in Travel Lodge in Goulburn Street in Wentworth. The room number is 1418’. Sergeant Kable said ‘How did you get there?’ The accused said ‘What do you mean?’ Sergeant Kable said ‘How did you get to Sydney?’ The accused said ‘By train, I’ve been staying for three days. I have extended for a few days, I have things to organise and get my things’. Sergeant Kable said ‘Where you are?’ The accused said ‘10 o’clock tomorrow, it was a bag of mine in the car, keys’. Sergeant Kable said ‘Which car?’ The accused said ‘Mazda 626’. Sergeant Kable said ‘Yes’. The accused said ‘That’s all’. Sergeant Kable said ‘Whose care [sic] is it?’ The accused said ‘Mine, my wife was using the car since I lost my driver’s licence’.” (tp 828)

44 Sergeant Connell made notes of the conversation on a piece of paper. Those notes were tendered. Sergeant Kable also gave evidence of a conversation in substantially the same terms. It appears that the conversation was a request to retrieve his things from the hotel room before the checkout time at 10.00am on the following day.

45 The telephone that Mrs Cvetkovic used at work was connected to an answering machine that could record messages if she did not personally take a call. If a message was left on the machine, the machine contained both a recording of the message, and a note of the time at which the message was left. Two messages were recorded on the answering machine on 6 June 2007 before lunch. Detective Senior Constable Robyn Bartlett attended the Novogen offices on 7 June 2007. She listened to two messages on Mrs Cvetkovic’s answering machine. Her evidence, on which she was not cross-examined, was:

“The first message was a male voice, non-English speaking, recorded at 11:31am on the 6/6/07. The second call was from Bob Jennings, the Commonwealth Bank recorded at 12:08pm on 6/6/07.”

46 She requested the IT manager of Novogen to save those messages. When police returned to the Novogen premises on 15 June, they found it was not possible to retrieve the messages. However, the company secretary, Mr Ron Eratt had recorded one of the messages on his mobile phone. Detective Senior Constable Connell gave evidence that Mr Eratt played that recording to her. She said that the message “was dated 6 June 2007 at 11.30am and was from a male person speaking in an eastern European language.” She recorded it, from Mr Eratt’s mobile phone, onto an ERISP machine. That same day, she played the message to Alex, who told her “That’s my father, I can’t understand some of it but he is talking about an interview.” It was uncontroversial that, while the Appellant had been in Chatswood he had gone to the Commonwealth Bank and talked to an officer there about borrowing money, and someone from that branch of the bank was supposed to call him back (tp 523).

Matters Not Common Ground

Relationship Between Appellant and Mrs Cvetkovic

47 Mrs Cvetkovic gave evidence that the Appellant had been violent to her on occasions from the time when they were living in Sydney in 1998.

48 Mrs Cvetkovic gave evidence that after the move to Swansea the Appellant’s violence to her increased:

he said to me that one day he cut my face and no-one is going to look at me ugly, so bad that no-one would be looking at me anymore

tried to strangle me, kept holding his hands and try to strangle me telling me that, and also holding my head and telling me I, like to, to turn the head and finish off with you. He, like, when we were being in the car driving he used to hit me in the car and then threaten that he can drive into, the car into the wall or off the cliff, kill both of us because he, he used to say that oh there is nothing, ‘I haven’t any, anything to lose anymore’, he doesn’t care, he didn’t care.

49 She gave evidence of an occasion when there was an argument between the Appellant and Alex, about Alex wanting to have boyfriends. She said that when she intervened in the argument he hit her and broke her nose. Mrs Cvetkovic and Alex stayed at a women’s refuge for five days, before returning home. She placed this incident as being in May 2001. The Appellant agreed there had been such an incident, but said her nose had been bleeding, but not broken.

50 She gave evidence of other instances of violence, and other instances when she had left home, but returned. Her evidence included:

“… when I ran away from home and then when I was talking to him then he would say ‘I know, you see, you know where you are. I’m just – I just want you to come but I know where you are I can just come now. Like, I know. I can check your payments where you pay your accommodation and …’.” (tp 43)

51 Her evidence-in-chief included:

I’ll finish off with you because, you know, how much does it take to break someone’s neck?’

happens more than once

52 She gave evidence of an occasion in 2005 when he hit her repeatedly “with his belt all over my body and then my feet, mostly my feet”, until they became swollen and black. Sometimes he used the buckle of the belt. She said:

“… he would like start in the morning, early, and then in the afternoon, late afternoon and evening he’ll give me something to eat, he’ll give me something to drink and say ‘Now go to bed asleep. I’m – like we are starting that again tomorrow morning’.” (tp 46)

53 She gave evidence of another incident, later in 2005, when he hit her head and back in a street near Wentworth Park. Someone called the police.

54 She gave evidence about three incidents of violence after they had moved to Meadowbank. She gave evidence about an occasion, after they had visited Alex’s place, when he was blaming her for various things that had gone wrong, and said, “I cannot stop thinking about strangling you”. During the time at Meadowbank there was a period, she thought the last week of June and two weeks in July, when she moved out and lived with Alex.

55 In cross-examination, concerning remarks that the Appellant made to her when they were living at Meadowbank, Mrs Cvetkovic said:

“Comments are related to me ruining every single piece of his life, me killing his parents, who died of old age in Yugoslavia, of me being the worst mother in this world, the worst wife, I ruined everything, business, everything. That’s always the same story, the same accusations on and on. So they were not only related to what happened two days before, that’s just my whole life, everything I ruined. That’s what he said to me.” (tp 201-202)

56 Alex gave evidence-in-chief that confirmed, though in much less detail than Mrs Cvetkovic’s evidence, that there had been violence between her parents before the move to Swansea Heads and that after the move to Swansea Heads “there was increasing violence which increased in frequency over the time” (tp 547). Her evidence included:

He would say that he would kill her

57 She gave evidence that, after she had moved to Glebe in 2004, she returned home to Swansea maybe every second weekend. She said that on some of those visits there were incidents where she saw the Appellant hit Mrs Cvetkovic, and others she just heard arguments.

58 The Appellant’s evidence accepted that there had been incidents of violence in the marriage. However, he denied that they had started as early as Mrs Cvetkovic and Alex said, denied that they occurred as frequently, denied the detail of the many of the incidents about which they had given evidence, and in particular specifically denied that he had ever threatened to kill his wife.

Bad News From Mr Diamond

59 The Appellant gave evidence that it was on the morning of 6 June 2007, when the Appellant was travelling by bus from Chatswood to North Sydney, that Mr Diamond telephoned him with the news that one of the defendants in the Supreme Court litigation would not settle without receiving money. The Appellant said this news “was like sledge hammer in my head” (tp 1726). Mr Diamond was not sure whether it was on the 5^th or the 6^th that such a conversation occurred. His account of it was that there was one conversation in which Mr Diamond told the Appellant:

“… that we’d hit a wall with Middleton’s client and at that point I could not settle the matter the way you and your wife wanted, that we would have to keep trying and I would try to buy some more time for you in the Supreme Court.” (tp 1823)

60 He gave evidence of a second conversation:

“… about the same subject matter, my inability to convince the lawyers for the other pharmaceutical company to settle the matter and not expose you to costs.” (tp 1823)

61 Mr Diamond said the Appellant’s response to the second conversation was:

“You were silent for a long time on the phone and I remember having to ask you whether you were still there and you said very quietly that you were and I said a couple more things to you about me getting back to you and you were silent again and then I rang off and I remember the silence very well. And in your second conversation with me, whenever that was, I remember you again being – I’m trying to think of the right word here but you were extremely quiet and your voice was very low, I remember that.” (tp 1823)

62 Mrs Cvetkovic gave evidence:

Circumstances of Stabbing

63 Mrs Cvetkovic’s evidence was that about 10.00am on 6 June 2007 the Appellant telephoned her at work to say he was in Sydney and wanted to meet to discuss the property settlement urgently. Her evidence continued:

“And I told him that well it’s not that urgent maybe because we have to go to the bank so I should call the bank and see if we can get any appointment because the fact for me is that I have to see if I can get – how much money I can get and see the whole of my situation and if we need to sign anything then what had to do with the bank because if that is going to happen.

But he just said that no we have to and he said he’s going to Chatswood to buy shoes and then I said ‘Okay, I’ll call the bank and see if we can get any appointment today’ because for me it’s better to do it formally and properly than just – so we ended the conversation and then I called the bank because we usually go to Commonwealth Bank in Macquarie Shopping Centre so I called them. They couldn’t have – they didn’t have any time for us so I called him back telling him sorry, that I couldn’t get an appointment and I think we should – the best thing is to have appointment with the bank and then we solve everything. But he didn’t want, he just said ‘No, it has to be – it cannot be delayed anymore, we have to do it now, we have to do it today’. And he said ‘I’ll come to your work’ and then he said he had prepared the document and I knew that it was a document he was talking about how to put – what would happen if we come to an agreement then that would be our agreement.” (tp 135-6)

64 Her account of the drive to Macquarie Shopping Centre was:

“I parked right in front of the building because there are two spaces, parking spaces, in front and the back of the building and I parked at the time the front and he wasn’t pleased with that. I just – we went to the car, he put the bag on the backseat, I put the paper, because I had this paper with me. I had the paper in my hand so I put also on the back seat and I was the one to drive. We went in the car and then he started ‘Why did you park car in front? You usually do the back’. But I told him that it’s dark and I feel more safe and the reason I changed was actually because I felt more safe in the front. I was afraid that he may turn up and on the back it’s dark and the front is always with lights and would be people, a lot of people going home so I wouldn’t be alone and I felt safe, so I said ‘Well I feel safe to have car here’. And then I start reversing and then he – he was very angry and he started directing me how I should reverse and he said ‘You changed absolutely – you changed and you changed everything’, like me, how I look, I changed everything. And then became a little bit scary for me, I was very – felt very uneasy and I was shaking and I just told him ‘Please, let me drive, just let me drive’. I wasn’t sure, I didn’t know I can continue driving so I just said ‘Just let me drive’. So I drove--“ (tp 136)

65 Mrs Cvetkovic’s evidence about events at the shopping centre after parking the car was:

“… then we decided because we didn’t have an appointment so we decided we are going to have lunch and then after lunch we will go into the bank and see if we can talk to anyone. We went to McDonalds, that’s where the food court is. There was a table in the corner I remember so we sat there and there was a lot of people there, kids and we were talking. I ate my food, he didn’t eat much and he was just talking about the past and how he would want us to come – to get back together and then we shouldn’t forget when we were students and all the good things that happened and – but I didn’t want to talk about that, I kept saying to him that ‘I don’t want to talk about that. We are here to discuss this document and that’s why I met you’. But at some stage he even took my hand and said ‘Oh, hold my hand so remember when we were at uni’. It was so scary, so he’s pulled out of my hand after maybe a minute or less, I just couldn’t, my hands were sweating and I didn’t – I did not – like I didn’t want to talk about the past or anything because there wasn’t us anymore. I just wanted to finish what he want – what he said that he want to talk to me and that’s all, and go back to work. So we just like talking and talking on and on and on about the same thing and in the end we finished lunch and we left McDonalds and then he said that – I remember him saying that people that he called the bank when he was in Chatswood and he said that they are going to call him back, but they didn’t so he decided ‘Okay, that’s enough, we are not going to the bank today’ basically.

So we continue walking towards car park. We came like the car, I was – like but at that stage I really felt I just wanted to go back to work and I didn’t feel comfortable anymore and I was really tired and I said ‘Oh, I’m so tired and I have to drive. I had enough today’. He offered to drive but I said no, I said because he doesn’t have a licence, it was suspended, and the other thing that I was just thinking ‘Woah, if he drives then he will be the one in control and he’ll be driving the car and I wouldn’t know what’s going to happen’. I don’t want to let myself without the – into his control because I know he tread on me so many times so I – so I said ‘No”. I was in driver’s seat and he opened the door and then he’s a tall man and he had his briefcase with him and he put briefcase in the front which he never does. Like he’s always everything is on the backseat. He put it in the front seat, he tried to squeeze in. He sat in the bag, tried to squeeze his legs and because there is not much space.

CROWN PROSECUTOR

I remember, you know, what I saw and I said “Oh, it’s already 2 o’clock I really have to do – to go’. And he said ‘God, give me a couple of more minutes, what’s a couple of minutes compared with your whole life?’ And I said ‘Look if I don’t go – like I want to go’. He said ‘We must resolve our financial situation’ and then I thought well if I don’t go I can lose my job and my financial situation is going to be even worse so I wanted to go. And I said ‘Oh, look I have to go’. And then we stopped talking because I didn’t have anything else to say. I just wanted to go desperately. And then I saw him, he leant down, reaching towards his bag. And because the bag was standing so I could see the piece of paper that I gave him sticking out in the pocket and I thought because he was reaching his bag and I thought that he wants this piece of paper so I said ‘Look, we can do this some other time. I really have to go. Like let’s do it another time and sign and finish’.

And then he turned towards me and then I just saw the knife blade coming towards my stomach and I – I just couldn’t believe what was happen so I tried to stop and then I realised that this is happening; this is not like nothing that I’m dreaming, this is happening because then I felt – I tried to stop it and then I felt blood running from my neck on my top was a lot of blood and then I wanted to go out so I turned to open the door but I kept like this belt was here and I couldn’t – I tried to let the belt off, I tried to open the door, I couldn’t and whenever I would turn I could feel him like stabbing me, hitting me, hitting me in my back, like I could feel – and then – then I realised well that’s not dreaming, that’s like my life I’m going to end up like this, that’s not happening. And I tried to protect myself because whichever way I turned, if I turned to open the door, if I turned to tell him to stop like he’ll constantly – he’ll continue hitting me so I try and hold the knife and – I remember trying to hold the knife away from my face, from my body, and I – at some stage I like was trying to open the door and I could feel his hand holding my hands for a short time and then he like, like my hand go – you do just hold tight and that’s it. And then I turned again to him saying ‘Please, stop this. If you want me I’m back’. Because at that stage I realised that what he was saying – like the reason – I don’t want to die.

I was almost ready to give up but then I thought I have my daughter and that’s the only thing and I kept thinking about her and thinking that I have to live for her so that gave me kind of strength to go back and say ‘Please, if you want me just – I’m back. Take me, I’m back’. Because I thought if he wants me he’ll let me live, or he’ll stop doing that. And then I remember that at some stage I saw someone coming towards the car and I could hear him ‘Oi’ or something ‘Stop’ or – and then I start screaming for help and I kept telling him ‘Please stop. Please stop, we have our child. Just look please stop for our daughter. Stop this. Don’t do this’. But he wasn’t saying anything, he just kept hitting me all the time in the front and my back without saying anything and then I don’t remember – I know I went – I got out the car but how I do not remember but I remember being out of the car and just a man coming and picking me up, helping me and he put me lying on the ground.” (tp 137-139)

66 Her account of the Appellant’s manner of speaking when they were in the car was:

“Calm. He wasn’t yelling, he wasn’t argumentative, he was trying to talk to me normally as, you know, he appealed to resolve things, a little bit nervous and, pushy because he kept saying ‘Now we have to separate’ but this was conversation he wasn’t yelling at me because if he started yelling I probably would run out before it happened but he was just talking to me.” (tp 140)

67 Her evidence also included:

68 It also included:

69 In cross-examination Mrs Cvetkovic confirmed that it was unusual for her to drive the car with her husband as passenger,

“… [W]henever I drop him, whenever I would drop him off he could never ever put things in front of his legs, he’s taller and there is no place. He usually puts things on the back of the seat even when I drive him.” (tp 525)

70 She confirmed the correctness of a statement that she had made in her police statement:

“Dragan was not saying a word, Dragan just continued to try and stab me. Dragan was stabbing me which ever way I was facing.”

71 She also confirmed the correctness of a statement that she had made in an affidavit to the Family Court:

“Mr Cvetkovic reached for his briefcase and pulled out what appeared to be a 20 inch serrated knife. I froze in terror, it was surreal. Mr Cvetkovic then drove the knife into my stomach. He remained silent the entire time. He then slashed my neck with the knife horizontally across my throat and then started to repeatedly stab me on my upper left breast and my upper left shoulder. I tried to grab the knife from Mr Cvetkovic with my hands.” (tp 531)

72 She rejected a suggestion put to her that she touched the blade before she had sustained any injury (tp 535).

73 Another portion of her evidence was:

74 By comparison with the elaborate cross-examination that had taken place concerning collateral matters relating to the general credibility of Mrs Cvetkovic, and the circumstances of the incident that was the subject of the first charge, the cross-examination of Mrs Cvetkovic concerning the events at Macquarie Shopping Centre on 6 June 2007 was extremely brief.

75 The Appellant’s evidence was that on the evening of 4 June, after a meeting in which Mr Diamond told the Appellant that he had not received a deed of release from the second defendant in the civil action, he went back to his hotel room, and contemplated jumping from the window. His evidence was that he had contemplated suicide the previous May, by taking sleeping tablets, and had procured the tablets, but did not carry the plan through. His evidence about the evening of 4 June was:

“Even if I could open the window I wouldn’t dare to jump. So I went back to bed and I continued thinking I should go the next morning to Ashfield and buy a tool to open the window. I could have smashed the window with a chair, I could have jumped from anywhere, the point being, and my feeling and it was not to end life, but to ease or to release the pressure that I was feeling at that particular time.

So in the morning I went to Ashfield, my going to Ashfield, whether that was going to Ashfield or whether that was new morning or new day, it released the pressure, but since I was anyway in the Ashfield I went in the shop, into Bunnings, and I didn’t have clear idea what to buy. I went around looked several things, and on my way out from the tool section it was a table selling cheap things, or on sale things, and I found out this device, it was in quite large box with window. I thought that would do, I thought even that I could stab myself. But again, that was neither my focus was on opening the window, neither my focus was on using that knife. Probably one of the reasons why I bought that tool was that it was cheap, it was less than $10 if I could remember, $7, $8.” (tp 1724)

76 He agreed his sole purpose in going to Ashfield on 5 June was to buy a tool (tp 1788).

77 His account of the immediate circumstances of the stabbing was:

“At that time, when she was to start the car, I asked her to stay, not to go. I ask her I hoped that I would be able to say something more and to probably change something. She said that she has to go, she said that she cannot stay any longer and for a while both of us were quiet. The representation that at that time she said to me that she would go – she would sign document and that was representation that basically was during the lunch time. But it didn’t matter.

But I was not finding what else to say, simply all I had I told my wife and at that time the document, that agreement, was protruding a little bit from the back pocket and I wanted to take the document and just to reinstate conversation to have something to talk about and probably that last link about that property which was issue from February. I hoped that it would keep our conversation or keep our relationship or whatever.

At the time when I went to the bag I saw the knife behind the document. I pushed the pocket open and I took the knife. That was something that happened in that second, second going for that document, second seeing the knife and getting idea to tell her why I got the knife and probably to use this as a further argument to either maintain or to get sympathy – maintain the relationship or get sympathy from her or – and when I took that knife, the knife I was holding in my left hand, the blade was pointing upwards, it was close to me. It never went towards Sladjana.

I did not make any movement with that knife, it was just like this, that was all. It was a second or two from the time that I took the knife to the time that she grabbed for the knife. And the last what I remember, the last feeling, the last impression that I was trying, it is not fear, it is not, it is a feeling of, there is no word that I can find in English. It is something when, when it happens, it, you, you have that reaction, you’re stuck or you’re, and I remember her firmly holding for the knife. That is last what I remember.

I remember the next thing is huge pressure on my back and it was on the right-hand side, me having difficulties to breathe, I tried to move, I couldn’t. I remember someone saying to me not to move that I slashed my throat and all the sudden I got images of my wife and I sitting in the car, me having the knife, my wife grabbing the knife and I was, that is a feeling of I should run, run, that is the feeling that I, I can describe.”

78 In cross-examination he gave a somewhat more detailed account of events immediately after he had taken the knife from the bag:

79 He said again that the last thing he remembered was his wife grabbing for the knife, “grabbing and holding it firmly” (tp 1802).

80 Concerning his interview with police on the afternoon of the stabbing, he said:

“… from that interview I know bits and pieces. What I expressed to them was what I believed at that time was happened. What I expressed to them was either my belief or my fear that this had happened. I knew that I was suicidal, I knew why I bought the knife, or one of the reasons why I bought that knife, although at that time it was, I would never say that I would be ever in my life to, to harm myself in that way. I am the person that I would use poison, I am the person that I would use drugs to kill myself but I would never use knife or anything similar. And when I said about sleeping tablets and taking sleeping tablets and going for drowning the reason was that I would be sedated and easily accept going for swimming and drowning.

So my, what I told to police and what is in that interview, it is the state of mind that was at that time, which is also relevant and that would solve one issue in these proceedings, was about me and my ability to understand whether harming anyone was right or wrong. To the very point of the incident, and to the very point after I, I regained my consciousness when I was at the floor there was no doubt that to harm anyone was wrong. It was wrong to think it was, it was wrong to do, so it was not something that could be ascribed to depression or to the fact of my thinking or the fact of my thought. Since that day, in my memory I had gape [sic: gap?] for the whole day after the incident.” (tp 1728)

81 His evidence also included the following passages:

“During that time in hospital I had few flashbacks from the, from the incident itself. One of flashbacks was my wife rushing out of the car, the other one was me seeing white skin of my stomach.

… my wife’s grabbing for the knife and screaming, I wouldn’t describe as causing me fear or any type of emotion that would be equivalent to what now I would consider as appropriate emotion seeing someone grabbing with a bare hand for the blade and that was the puzzle from the – for all these two years for me.

In the hospital, as I said, I had, and that is the only memory that I have of that event, is her rushing out of the car and me then seeing white skin of my stomach then in the car leaving and a policeman pointing with the gun at me and me crashing. Then they spraying me and these are memories that I get – I got in terms of flashbacks during that hospitalisation in the Royal North Shore Hospital and then later on whilst being in the hospital in prison in D ward.” (tp 1729)

82 He said he only learnt about the extent of his wife’s injuries by being told it when he was in the prison hospital.

83 The Appellant said unequivocally:

“I never intended to harm my wife. I never intended, or I never consider before the incident any downturn in my life or anything that would affect my life detrimentally, even that purchase of that, that knife or too I did this as a, as an awkward way of dealing with the stress and feeling self-pity, you could say I was seeking attention, if not from anyone else, but from myself.”

GROUND 1 – CONVICTION UNREASONABLE OR UNSUPPORTED BY EVIDENCE

84 The first ground of appeal is that the verdict of the jury was unreasonable or unsupported by the evidence. The Appellant submits that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty: M v R (1994) 181 CLR 487 at 493.

85 The Appellant divides the ground into two sub-grounds

Ground 1(A) – Charge Not Proved Beyond Reasonable Doubt

86 The first sub-ground is that the verdict of the jury was unreasonable or unsupported by the evidence because the prosecution has not proved its case beyond reasonable doubt. The principles an appellate court applies in deciding such a ground have recently been reiterated in Ha v The Queen [2010] NSWCCA 83 at [50] by Beazley JA, with whom Howie and Hislop JJ agreed:

M v R

MFA v R

M

significant possibility

87 The Appellant submits that the jury was unreasonable because the Crown has not negatived the possibility that the Appellant was acting involuntarily as a result of a mental state, namely dissociation, which may be experienced by a healthy mind. He further submits that the Crown has not negatived the hypothesis that holding the knife in the left hand, when he was right handed, is inconsistent with evidence of an intention to harm. He submits that that inconsistency is sufficient to displace the inference of intention to harm which ordinary human experience might otherwise draw from the events themselves.

88 The legal test implicit in the preceding sentence is derived from the statement of Deane and Dawson JJ in The Queen v Falconer (1990) 171 CLR 30 at 61:

“The onus of proving guilt remains with the prosecution and that onus is not discharged if an accused is able to raise a reasonable doubt. Of course, common experience teaches us that a person's will ordinarily accompanies his actions and evidence will be required to establish the extraordinary circumstance that an accused's acts occurred independently of the exercise of his will or to raise a doubt whether that was so. It is sometimes said in that situation that the accused is required to rebut an evidentiary presumption or to discharge an evidentiary burden of proof, but it is merely a requirement that there be evidence to displace ordinary human experience. And it will not be enough for an accused merely to assert that his acts were involuntary or that he suffered a loss of memory. Evidence of his condition at the time of the alleged offence supported by some expert medical opinion will be required before an issue of sane automatism can realistically be said to be raised.”

89 Similarly, in Falconer at 41 Mason CJ, Brennan and McHugh JJ quoted with approval the statement of Lord Denning in Bratty v Attorney General (Northern Ireland) [1963] AC 386 at 413:

ultimate

presumption

The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity.”

90 Gaudron J in Falconer at 83 quoted the last two sentences of that extract, again with evident approval.

91 Gaudron J at 83 said:

“In practical terms a claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence that identifies a mental state in which acts can occur independently of the will, assigns a causative explanation for that state and postulates that the accused did or may have experienced that state.”

92 At 83 her Honour also said:

“And again in practical terms, because what is postulated is, of its nature, extraordinary, the evidence must be very persuasive even to raise involuntariness as a reasonable hypothesis such that a jury could find that the prosecution had failed to prove beyond reasonable doubt that the will of the accused accompanied the act charged.”

93 In light of those statements of principle, the psychiatric evidence in the present case is of particular importance in deciding whether the jury ought not have been satisfied beyond reasonable doubt that the actions of the Appellant were voluntary. In my view, the psychiatric evidence provides no basis for the jury to have had a reasonable doubt about whether the stabbing was a willed act.

94 As well as the inference that would ordinarily be drawn that a person’s conduct was the product of his will, there was other material from which the jury could infer that the Appellant’s stabbing was a willed act. It includes the history of disintegration of the relationship between the Appellant and Mrs Cvetkovic, the imminence of the return date of Mrs Cvetkovic’s application for divorce, the presence of the gyprock saw in this briefcase and the unusual story that he told about how it came to be there (the more unusual in light of his own evidence that even if he could open the window in his hotel room he wouldn’t dare to jump), the evidence about his conduct during the course of the stabbing, and the statement he made to the police on the afternoon of the stabbing.

Dr Westmore’s Evidence

95 Dr Bruce Westmore is a psychiatrist who first examined the Appellant on 5 September 2007, and again in September 2008. He produced reports in September and October 2007, following the September 2007 consultation, and another following the September 2008 consultation. At the trial he was called by the Appellant.

96 Dr Westmore’s account of the history he was given in September 2007 included:

“At the time of the incident he told me he was in the car with his wife, he reached into his bag to get the document. The saw was in the bag. He said he then went to show his wife the saw and to tell her that he was going to kill herself [sic]. He said his wife grabbed the blade with her hand, he fought to get it out of her hand and she started to scream. He said ‘I started to stab her’. I asked him was he angry with her at the time and he said ‘No, not at all.’” (tp 1830)

97 After a review of available medical records relating to the Appellant, Dr Westmore’s conclusion, in October 2007, was that the Appellant had a defence of mental illness, because he:

“… suffered a depressive illness, probably a major depression, prior to the incident. He may have had paranoid or persecutory ideas towards previous employers but it is uncertain whether these arose from a paranoid personality structure or from his depression. Nevertheless, a history of depression pre-dating the incident with his wife by several weeks or months is consistently given and immediately after the incident he was diagnosed with depression, and later with melancholic depression with psychotic symptoms.

Based on the history provided by Mr Cvetkovic and with the additional material I am of the view that Mr Cvetkovic, on the balance of probabilities, suffered from a major depressive illness at the time the incident occurred. This is a mental illness which would have, on the balance of probability, totally deprived him of the capacity to know that he ought not to do the act. He would have been deprived of the capacity to be able to rationally consider his behaviour towards the victim, probably at the time of the incident both in a moral and legal sense. I believe that the defence of mental illness should be raised on behalf of Mr Cvetkovic on the basis that he was suffering from a major depressive illness at the time he stabbed his wife.” (tp 1849)

98 Dr Westmore, who has more than 20 years of experience in psychiatry in relation to criminal proceedings said that it was likely that if he had seen any evidence consistent with the Appellant being in an automated state, he would have referred to it in his report (tp 1845).

99 In September 2008 the Appellant raised with Dr Westmore the issue of automatism, and suggested that he was in a state of automatism at the time he stabbed his wife (tp 1827). It was open to the jury to take into account that the suggestion of automatism came from the Appellant himself, and at a time that was of the order of 15 months after the stabbing.

100 Dr Westmore’s 2008 report said, concerning dissociation:

“Patients who suffer symptoms of dissociation frequently have recurrent symptoms of that type and unless there is a severe or specific trauma or some other significant trigger which might explain a single episode, it would be rare for a person to suffer one episode only in the absence of some other condition being present, such as an acute stress disorder.” (tp 1831)

101 In cross-examination Dr Westmore agreed with the proposition that “it was not your opinion that automatism was in any way relevant in this matter”.

102 The prosecutor took Dr Westmore in cross-examination to the history that the Appellant gave him, that Mrs Cvetkovic started to scream and the Appellant started to stab her. His evidence continued:

When they act in complex ways, very repeated goal directed purposeful tasks, it’s usually behaviours that they’re very familiar with, that they’ve done many times before such as driving a – you’re meant to be driving from Brisbane to Melbourne but you finish up in Perth and you don’t know how you got there and why you got there but you had no accidents and you obeyed all the rules. When people have – that’s a complex act.

When people have simple acts in these states it’s more directionless and less purposeless and others identify them as having something wrong with them. I didn’t think he had automatism in the true sense; it is quite possible, though, that during the stabbing, which was multiple, there was an automatic component to it, a repetitive automatic component to it, not necessarily thinking each time a blow was struck. That’s automatic but it’s not a true automatism.

I’ve also indicated in the third report that it is also possible during the stabbing that he may have had some degree of dissociation, that’s not uncommon for victims and for perpetrators of severe aggressive acts, they become – their awareness of their environment gets altered because of the overwhelming nature of the trauma. So there may have been some automatic behaviour and there may have been a degree of dissociation during it, but I don’t believe that is what precipitated it or was the cause of it.” (tp 1886)

103 Dr Westmore said:

“Mr Cvetkovic, as you’re aware, is most unhappy with the evidence that I’m giving today, he does not want to hear my evidence, he does not want it presented to this court or this jury. He, for whatever reason, has chosen not to have the issue of mental illness raised ...” (tp 1887)

104 The prosecutor failed in all her attempts in cross-examination to persuade Dr Westmore to retreat from his opinion that the Appellant had been suffering from a mental illness that deprived him of the capacity to know that his action was morally wrong. It is unnecessary to recount those attempts, or Dr Westmore’s reasons for rebuffing them. That is because the jury did not accept that a defence of mental illness had been made out, and the Appellant does not, on this appeal, submit that the jury were wrong in that respect.

379 The Appellant repeatedly complained to the judge that she was interrupting the presentation of his case, and doing so unfairly. He was shocked and affronted when the judge, after he had repeatedly ignored rulings she had made, raised (in the absence of the jury) the prospect of charging him with contempt. In his submissions in this Court the Appellant describes the judge’s conduct in declining his requests to “speak to the Chief Justice” about the way the judge was conducting the case as “arrogantly insolent and wilful conduct”.

380 On some occasions the Appellant misrepresented to witnesses’ the evidence that they had given. An example occurs in the cross-examination of Ms Hayes:

Q. So both legs were up?

HER HONOUR: I think that’s been asked and answered sufficiently, Mr Cvetkovic,.

ACCUSED

Q. It is not clear. If you could just confirm--

HER HONOUR: No, she’s answered that sufficiently, please don’t ask it again.

ACCUSED

Q. So you agree that both legs were up?

HER HONOUR: No, Mr Cvetkovic, please don’t ask it again.

ACCUSED

Q. That having both legs up and kicking--

HER HONOUR: No, please, don’t ask that because that is not her evidence.

ACCUSED

Q. Your statement is that you were not--

HER HONOUR: No, please don’t ask about legs up again, I’ve disallowed it so many times, I’m not going to say it again.”

381 Another example of what the Appellant submits was excessive interference occurred when the Appellant was addressing the jury. The Appellant said:

“In terms of the second alternative that specific intent or the aim would be that I wanted to cause grievous bodily and grievous bodily harm is something that is serious or permanent disfigurement of a person so I really – according to the charge it is suggested that I wanted to cause my wife serious or permanent disfigurement and--

HER HONOUR: Mr Cvetkovic, I’m going to ask you to stop there. Members of the jury, would you go out for a few minutes, please?”

382 In the absence of the jury, the judge told the Appellant that he was addressing the jury incorrectly on matters of law. He asserted he was correct, by virtue of the definition of “grievous bodily harm” in section 4(1) Crimes Act 1900. When the jury returned, the judge told them that anything the Appellant said on the law would be subject to any directions that she gave. The Appellant regards this as an improper interference with his presentation of his case to the jury.

383 In my view this interference by the judge in the submissions was right. The definition in section 4(1) Crimes Act is:

“Grievous bodily harm includes

(a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and

(b) any permanent or serious disfiguring of the person, and

(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).”

384 When that is an inclusive definition, it was clearly incorrect for the Appellant to tell the jury that grievous bodily harm is something that is serious or permanent disfigurement of a person.

385 I will not deal in detail with each of the Appellant’s complaints about the manner in which the judge conducted the trial. Having considered each of them, I do not consider that any of them provides a stronger ground for complaint than those that I have dealt with expressly. Furthermore, in any complaint about unfairness of the trial, where there is no clear example of judicial misbehaviour, the overall impression and flavour of the transcript is the most important thing. Having read the transcript, I am not left with the impression that the judge intervened excessively, or conducted the trial in an unfair fashion.

Ground 3(B) – Misdirections or Inadequate Directions

McKinney Direction

386 The Appellant submits that the trial judge erred in:

(a) not directing the jury on the exculpatory evidence contained in the police interview of the Appellant,

(b) not directing the jury on the reliability of the inculpatory but repudiated representation, and

387 The “exculpatory evidence” supposedly contained in the police interview was not identified, and no submission was made about what direction the judge should have given concerning it.

388 The “inculpatory but repudiated representation” referred to was that contained in the final paragraph of the police interview as deposed to by Senior Constable Connell, to the effect that the Appellant wanted to “cut pain and suffering that we exposed for years and terminate our lives”.

389 McKinney v R (1991) 171 CLR 468 related to some convictions concerning which the only evidence directly linking the accused with the place where the events in question had occurred was some signed records of interview that were produced at a time when the accused was in police custody. The defence of the accused was that the record of interview was fabricated by the interviewing police officers, and that the accused had signed the fabricated document only because his will was overborne. The majority judgment of Mason CJ, Deane, Gaudron and McHugh JJ held, at 475, that there should be a rule of practice requiring a warning to be given to the jury “whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated”.

390 The incidents from which McKinney arose occurred before it became common practice in New South Wales for police interviews of suspected people to be electronically recorded. The majority judgment in McKinney, at 475, said that “audiovisual recording is one means by which a confessional statement may be reliably corroborated”.

391 In the present case, the police interview was recorded, and the recording was played to the jury. While there was some dispute about whether some of the words of an introductory part of the interview had been included in a transcript that was also made available to the jury, there was no dispute that the words contained in the critical part of the interview, about the Appellant intending to “terminate our lives” had been said. There was no occasion for the judge to give the jury a warning of the type favoured by the majority in McKinney. As mentioned at [168] above, the summing up reminded the jury of the Appellant’s explanation for why he had said he wanted to “terminate our lives”.

Inadequate Directions on General and Specific Intent?

392 The Appellant submits that the judge did not direct the jury that they should not only consider the prosecution and defence case on the issues of general and specific intent, but also whether the lack of required intent was a reasonable possibility. He relies on the decision of the South Australian Court of Criminal Appeal in R v Singh [2003] SASC 344; (2003) 86 SASR 473.

393 The directions that the judge actually gave included:

“The Crown must prove that the acts of the accused which caused the wounds were intentional. The Crown must prove that the accused wounded Dr Cvetkovic, it says by stabbing her, with the intent to kill her.” (summing up 12)

“The accused denies having intent to kill his wife. He says that he was in a state of automatism …” (summing up 13)

“The Crown must prove beyond reasonable doubt that the accused was acting voluntarily, not in a state of automatism. Unless the Crown does that you must find the accused not guilty.” (summing up 27)

“If you are not satisfied on the balance of probabilities that the accused was mentally ill … at the time of doing the alleged acts in counts 2 and 3 and 4 then you go on to consider whether the accused did the acts with the required intent, that is the intent to kill in count 2, the intent to cause grievous bodily harm in the alternative count 3, and the intent to prevent his lawful apprehension in count 4 … If the Crown satisfies you beyond reasonable doubt the accused did have the requisite intent in any of those charges and the Crown has proved all the other elements of the offence beyond reasonable doubt you would find the accused guilty. If the Crown does not satisfy you beyond reasonable doubt that the accused had the requisite intent, or any other element of the offence is not proved, you would find the accused not guilty.” (summing up 30-31)

“I remind you that the Crown must satisfy you beyond reasonable doubt that the accused was not acting in a state of automatism.” (summing up 34)

394 The passages in R v Singh to which the Appellant points are at [91], [169], and [175]-[176]. They were made concerning a summing up in which the judge had directed the jury that it was a matter for them whether they believed the evidence of the accused. Mullighan J (with whom Debelle and Gray JJ agreed) referred at [144] to Murray v The Queen (2002) 76 ALJR 899. There, Gaudron J at 904 [23], and Gummow and Hayne JJ at 910 [57] had expressed the thought that a direction to the jury that it was for them to decide whether they accepted the accused’s version, misstated the onus of proof. The way Gaudron J put it was:

“… as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt.”

395 The way Gummow and Hayne JJ put it was:

“The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.”

396 In Singh, at [175], Mullighan J said:

Murray

397 It is usually sufficient to direct a jury as to the burden of proof by making clear that they are to convict only if they are satisfied of each element of the charge beyond reasonable doubt. It is usually undesirable to try to paraphrase or explain the expression “beyond reasonable doubt”. In Singh, the trial judge had positively misled the jury by the direction that it was for them to decide whether they accepted the appellant’s version. There is no majority in Murray requiring that a jury should be directed, in express terms, that the prosecution must negative the appellant’s version as a reasonable possibility before the jury can convict. In the present case, there was no misdirection to the jury of the kind that was fatal to the conviction’s survival in Singh. I am not satisfied that the judge misdirected the jury as to the onus of proof of general and specific intent, or that the directions on that topic were inadequate.

Inadequate Direction on Extent of the Evidence Required to Raise Reasonable Doubt

398 The Appellant submits that the trial judge misdirected the jury or gave inadequate directions to them on (a) the effect of the medical evidence, opinion and concessions (b) the totality of the evidence regarding the state of consciousness of the Appellant at relevant times, and (c) the extent required to raise reasonable doubt. He submits that the trial judge should have directed the jury according to the principles set out in Falconer. The particular passages in Falconer to which he submits the trial judge should have paid attention in giving directions are in the judgment of Gaudron J, at 85-86:

“The evidence led in the present case raised no issue of insanity, but it did raise the question whether Mrs Falconer's act of discharging the loaded shotgun was done independently of her will. It should have been admitted as relevant to that issue and the jury should have been directed to consider whether, in the light of that evidence, the prosecution had proved beyond reasonable doubt that Mrs Falconer's will accompanied the act of discharging the gun. It should have been explained to the jury that the prosecution would not have proved that issue beyond reasonable doubt if it was a reasonable hypothesis that Mrs Falconer discharged the gun while experiencing that particular mental state described in the evidence as one that may be experienced by a normal or healthy mind and in which the personality is segmented so that acts are performed independently of the will. And it might conveniently have been explained that that hypothesis would be excluded by satisfaction beyond reasonable doubt either that there is no such phenomenon as the particular mental state described in the evidence or that Mrs Falconer did not experience it.”

399 The judge summarised the similarities and differences in the conclusions at which Dr Nielssen and Dr Westmore arrived:

“Doctor Nielssen and Doctor Westmore differed in their opinions about the effect of what they diagnosed as the accused’s major depressive illness at the time of his acts on 6 June 2007. Doctor Nielssen said he thought the accused’s depression did not affect his awareness that his actions in stabbing his wife were morally wrong. Doctor Westmore thought it did. I will say more about their evidence shortly but in essence I think that is the dispute between them.

On the issue of the accused acting in an automatic state they both agreed that the accused did not stab his wife in a state of automatism.”

400 The direction about the extent of the evidence required to give rise to a reasonable doubt on automatism included:

“There is evidence in the trial about the accused’s state of mind at the time of the acts which give rise to counts 2 and 3 and 4, that is the stabbing of Sladjana Cvetkovic and the allegation that the accused drove his car at Constable Roberts with the intention of avoiding his being arrested.

The evidence raises two different legal concepts. I will tell you about the different legal tests, how you go about considering them, the evidence you consider in relation to each and the verdicts which will follow depending on the findings you make.

The two issues raised by the evidence are whether at the time of the acts giving rise to the offences charged in counts 2 and 3 and 4 the accused was acting in a state of automatism or whether at the time of those acts he was mentally ill so as not to be responsible for his acts according to law.

The first issue you consider is whether the accused acted in a state of automatism. The law says that a person can only be convicted of a crime if the act constituting the offence was a voluntary act of the accused. A voluntary act is one done in the exercise of the accused’s free will and choice. The Crown must prove that the accused’s act was voluntary. If an act is done in a state of automatism, without the control or direction of the will of the accused over what is done, then no crime is committed and the accused must be found not guilty. Here the accused’s case is that the psychological blow to him caused by his wife grabbing the knife and screaming when he produced the knife caused him to go into an automatic state, so that he was not conscious and aware of his actions until after he was on the ground outside his car in police custody. It is recognised that a psychological blow can cause automatism.

The accused has raised the issue in the trial but that does not mean he has to prove he was acting in a state of automatism. The Crown must prove beyond reasonable doubt that the accused was acting voluntarily, not in a state of automatism. Unless the Crown does that you must find the accused not guilty.”

401 The jury in substance were directed that one of the matters they had to consider was whether, in the light of the evidence, the prosecution had proved beyond reasonable doubt that the accused’s will accompanied the act of stabbing. For reasons given earlier, the direction expressed in terms of “beyond reasonable doubt” was an appropriate one.

False or Misleading Directions?

402 The Appellant submits that the judge gave various false or misleading directions to the jury. One direction of which the Appellant complains is:

“The accused made a submission to you in his closing address that Doctor Nielssen was biased but you should put that out of your mind because there is just no evidence to support such a submission. It was never suggested to Doctor Nielssen to give him a chance to respond so you should just ignore that.”

403 The totality of the submission made in support of this being a false or misleading direction is:

“(ii) The appellant refers to NOA, paragraphs 357, 358 and 42, 43, 46, 49, 64, 65, 69, 106, 112, 115, 153, 249-259; 446-457, 478; see also 94-96, 102 and 503; see also witness statements (not) provided by the prosecutor (T1520; 35-45).”

404 In that submission “NOA” refers to the Appellant’s notice of appeal. I have read those paragraphs with this submission in mind. I do not accept that anything in them shows that the direction concerning Dr Nielssen was false or misleading. As well, [42] relates primarily to Dr Westmore, not Dr Nielssen. Insofar as the paragraphs relate to Dr Nielssen, they show repeated examples of Dr Nielssen not agreeing with suggestions put to him by the Appellant, or giving evidence not favourable to the Appellant’s case. That is not the same thing as evidence of bias. The judge was correct in saying it had never been suggested to Dr Nielssen that he was biased.

Inadequate Directions on Medical Evidence?

405 The Appellant submits that the judge erred in directing the jury that both Dr Nielssen and Dr Westmore agreed that the Appellant did not stab his wife in a state of automatism. The Appellant submits that that is an error, because of the fragments of evidence to which I have referred at [139]-[144] and [145], and some other aspects of the detail of their evidence.

406 I am not satisfied that the direction did not adequately convey the substance of the opinion of the doctors.

Inadequate Direction on Glasgow Coma Scale?

407 The judge directed the jury that the Glasgow Coma Scale shortly after the incident showed that he was fully alert. The Appellant submits that, for reasons analogous to those identified at [154]-[160] above, this direction was erroneous. For reasons I have given at those paragraphs, I do not accept that the direction was erroneous.

Other Unspecified Inadequacies

408 The Appellant submits that the judge failed to direct or misdirected, or gave inadequate directions to the jury on the fact that the evidence in the trial contained discrepancies, displayed inadequacies, was tainted or otherwise lacked probative force and the weight they should give to the evidence. The Appellant makes that submission in bald terms, without elaboration.

409 The judge’s direction included:

“It is for you as judges of the facts to decide which evidence you accept as truthful and reliable or reject as not truthful or reliable and what weight you give to particular evidence. You have seen and heard the many witnesses as they gave their evidence in the trial. It is for you to assess the witnesses’ evidence and decide if they were being truthful and accurate or perhaps honest but not accurate or neither.

In deciding whether to accept a witness’s evidence you do not have to accept the whole of any witness’s evidence, though if you decide you do, you can. You may accept part and reject part of any witness’s evidence. If you do not accept a part of a witness’s evidence it does not mean that you must reject all of that witness’s evidence. You can reject some and accept some of a witness’s evidence if you think some of it is worthy of accepting. That might occur, say, if you decided that a witness was honest, but mistaken about part of his or her evidence.

You must consider all the evidence you have heard and seen. I will not refer to all the evidence in this summing up, only where I think it is necessary to remind you of evidence, because you have heard the Crown and Mr Cvetkovic summarise the evidence fairly fully.”

410 I do not uphold this submission.

Failure to Direct on Difference Between Insane and Non-Insane Automatism

411 The Appellant submits that the trial judge should have directed the jury on the difference between insane and non-insane automatism. He draws attention to a statement in Falconer at 53, where Mason CJ, Brennan and McHugh JJ approved a statement of King CJ in R v Radford (1985) 42 SASR 266 at 274-275, that included:

R v Porter

412 The Appellant’s reliance on that passage is inapt in this appeal, as the jury has evidently not accepted that there was a state of automatism at all, and thus there was no occasion for it to decide whether a state of automatism was due to a disease of the mind, rather than to a temporary disorder or disturbance of an otherwise healthy mind caused by external factors.

Failure to Direct on Voluntariness of Specific Intent?

413 The Appellant submits that the judge failed to direct the jury on the difference between voluntariness and specific intent. The Appellant refers us to Hawkins v The Queen (1994) 179 CLR 500 at 517. Hawkins involved a charge of murder brought against a young man who had shot his father dead. The defence case was that the accused intended to commit suicide in the father’s presence and that, at the last moment, in a disturbed state of mind he turned the rifle towards his father and pulled the trigger without having the specific intention necessary to establish the crime. The accused’s counsel did not raise a defence of insanity. The High Court held that the judge had been wrong in rejecting medical evidence which cast doubt on whether the accused was able to form a specific intent to either kill or cause bodily harm to his father. The rejected medical evidence included an opinion that the accused’s plan to kill himself was a product of a mental disease, and that that mental disease raised a doubt about whether the accused had the intention to kill his father. The joint judgment of Mason CJ, Brennan, Deane, Dawson and Gaudron JJ observed, at 515:

“To say that evidence of mental disease is admissible on the issue of intent is one thing; the strength of the evidence is another. If the evidence of mental disease does not establish that the accused was incapable of knowing that the act was ‘one which he ought not to do’ (s 16(1)(a)(ii)) or, under the common law, was incapable of knowing the nature and quality of his act, that evidence may not greatly affect the strength of any adverse inference of intent drawn from the objective circumstances. But there is no necessary inconsistency between mental abnormality and the existence of a specific intent.”

414 At 517, their Honours said:

“In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16.

Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done

admissible on the issue of the formation of a specific intent

415 The words in bold are those to which the Appellant specifically draws our attention.

416 In her summing up, the judge followed the course required by Hawkins, of dealing with mental illness before dealing with specific intent. After the direction on mental illness, the summing up continued:

“If you are not satisfied on the balance of probabilities that the accused was mentally ill, in the way that I have just explained, at the time of doing the alleged acts in counts 2 and 3 and 4 then you go on to consider whether the accused did the acts with the required intent, that is the intent to kill in count 2, the intent to cause grievous bodily harm in the alternative count 3, and the intent to prevent his lawful apprehension in count 4. In deciding those questions you take into account the evidence that the accused had a mental illness.”

417 The last sentence quoted satisfies the requirement of the passage in Hawkins to which the Appellant directed our attention.

Ground 3(C) – Nature of the Evidence and the Overall Effect

418 The material on which the Appellant relies under this heading is not really a separate ground of appeal. It is more a summary of other submissions, and a rhetorical peroration. The Appellant submits that there are various “unanswered questions” about some of the evidence in the case. None of those “unanswered questions” is central to whether it was open to the jury to be satisfied beyond reasonable doubt that each element of the charge was made out. The Appellant’s submission goes so far as to submit that the possibility that the act was involuntary is “all one way”. It reiterates that a jury could not, on all the evidence, reasonably have come to a verdict of guilty. Thus, the Appellant submits, the appropriate outcome of the appeal is that the verdict of acquittal should be entered, not merely an order for a new trial.

419 For reasons I have already given at length, I do not accept those submissions.

Order

420 The appeal should be dismissed.

421 SIMPSON J and WHEALY J: We have read in draft the judgment of Campbell JA. We agree with his Honour that the appeal against conviction ought to be dismissed, and we generally agree with his Honour’s reasons.

422 With respect to the first ground of appeal, that the conviction is unreasonable or cannot be supported by the evidence, we make the following short observations.

423 The central facts concerning the events giving rise to the charge were not in issue. The appellant acknowledged that he had equipped himself with what he called a knife, and (although he claimed to have no recollection of using it on his wife) that he had stabbed her with it. He raised the issue of automatism. In those circumstances, the only issue for the jury was whether the Crown had proved beyond reasonable doubt that the act of the appellant in using the implement on his wife was a “willed” act – that is, committed of his own free will and decision: The Queen v Falconer [1990] HCA 49; 171 CLR 30 at 39. The issue for this Court under this ground of appeal is whether, on the whole of the evidence, it was reasonably open to the jury to find that it was: The Queen v M [1994] HCA 63; 181 CLR 487; The Queen v MFA [2002] HCA 53; 213 CLR 606.

424 The various asserted inconsistencies and discrepancies in the evidence of some witnesses, the appellant’s history of disappointment as a result of the unfavourable outcome of litigation, and the logicality (or otherwise) of certain conduct of the appellant did not, and, in our view, could not, contribute to the resolution of that issue. The detailed argument put by the appellant in respect of these matters has confused what is in reality a simple issue.

425 For example, a good deal was sought to be made of what was said to be the “tainted” nature of the evidence of ambulance officers. But unless there were some additional (expert) evidence to show that, had circumstances been different to those described by the ambulance officers, then the case for automatism would have been strengthened, that goes nowhere. Any such evidence was lacking.

426 Similarly, the appellant made much of the evidence concerning cuts to the clothing of Ms Cvetkovic. Without evidence showing that that was somehow relevant to the appellant’s state of mind at the time of the stabbing, it, too, went nowhere.

427 The expert evidence that was called came nowhere near raising a doubt in respect of the appellant’s state of mind.

428 In our opinion, in the absence of evidence (whether by report, evidence in chief, or cross-examination) of the medical experts showing that any of those matters could have had a bearing on their assessment of the appellant’s state of mind at the time of the stabbing, it is strictly speaking unnecessary to go to the detailed analysis of the evidence of what occurred at and around the time of the stabbing. Those arguments tend to mask the real, and simple, issue.

429 In other respects we agree with the reasons of Campbell JA.

**********

07/02/2011 - Replace the word "tended" with "tendered" in final sentence of paragraph. - Paragraph(s) 343

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Citations

Cvetkovic v R [2010] NSWCCA 329

Most Recent Citation

Director of Public Prosecutions v Charlton [2023] VSC 671

Cases Citing This Decision

11

R v Gavin John De Beyer [2017] NSWSC 752

Application of Dragan Cvetkovic pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 260

Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596

Cases Cited

23

Statutory Material Cited

7

M v the Queen [1994] HCA 63

Ha v R [2010] NSWCCA 83

R v Falconer [1990] HCA 49

CITATION:	CVETKOVIC, Dragan v R [2010] NSWCCA 329 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19-22 July 2010
JUDGMENT DATE:	21 December 2010
JUDGMENT OF:	Campbell JA at 1; Simpson J at 421; Whealy J at 421
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction and sentence – grounds of appeal – (1) Conviction unreasonable or unsupported by evidence – (2) Wrong interlocutory decisions – (3) Substantial miscarriage of justice – Appeal dismissed – CRIMINAL LAW – Evidence – Issues raised on appeal – Evidence sought to be admitted by the appellant as character and tendency evidence was determined by the trial judge to be evidence going to issues of credit – trial judge decision to admit certain evidence put forward by the prosecution as relationship evidence rather than tendency evidence – whether trial judge ought to have made a section 136 (Evidence Act 1995) ruling in relation to evidence about the credibility of the victim – whether trial judge ought to have imposed a section 136 (Evidence Act 1995) limitation on sexual experience evidence – application for leave to recall witnesses for further cross-examination – CRIMINAL LAW – Particular offences – offences against the person – acts intended to cause or causing danger to life or bodily harm or serious injury – wounding with intent to murder – CRIMINAL LAW – Criminal liability and capacity – defence matters – non-insane automatism – interaction of onus of proof and presumptions of mental capacity and that an action is willed – significance of psychiatric evidence in displacing presumptions [86]-[93] – APPEAL – test for appellate reversal of discretionary decision of practice and procedure no different to test for any other discretionary decision, but satisfaction of the test often harder as a matter of fact [217] – EVIDENCE – tendency evidence – proper procedure for deciding admissibility of tendency evidence [224] – difference between tendency evidence and relationship or context evidence – CRIMINAL LAW – procedure – whether a “prescribed sexual offence” within Criminal Procedure Act 1986 must involve activities that themselves have a sexual component [265]-[277] – effect of a “prescribed sexual offence” being tried with other charges [278] – STATUTES – Acts of Parliament – interpretation – role of definition section – meaning of “except in so far as the context or subject-matter requires” [272]-[276] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – reasons for judgment in other cases – whether admissible under s65(3) [295]-[300] – whether statements in them are first-hand hearsay [299]-[300] – whether admissible under s65(8)(b) [301]-[303] – whether admissible as a public document under s157 [304]-[314] – whether “judgment” in s157 includes reasons for judgment [306] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – first-hand hearsay – onus of proof of unavailability of the person who made the previous representation [341] – form in which evidence of the previous representation can be given by the person who saw, heard or otherwise perceived the representation being made [343] – EVIDENCE – admissibility under the Evidence Act 1995 – what constitutes “evidence of reputation” under s73 [353]-[354]
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Interpretation Act 1987 Mental Health Act 2007 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Andrew John Hawkins v The Queen (1994) 179 CLR 500 Bratty v Attorney General (Northern Ireland) [1963] AC 386 Chief Commissioner of State Revenue v Qantas Airways Ltd [2009] NSWCA 163 Conway v R (2000) 98 FCR 204 Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 Floor v Davis [1980] AC 695 Ha v The Queen [2010] NSWCCA 83 Hall v R (1988) 36 A Crim R 368 Hawkins v The Queen (1994) 179 CLR 500 House v The King (1936) 55 CLR 499 Kevin Barry Nolan v The Queen (WACCA, 22 May 1997) M v R (1994) 181 CLR 487 McKinney v R (1991) 171 CLR 468 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Murray v The Queen (2002) 76 ALJR 899 National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223 Qualtieri v Regina [2006] NSWCCA 95 R v Falconer (1990) 171 CLR 30 R v Ford [2009] NSWCCA 306 R v Leonboyer [2001] VSCA 149 R v Mrish (NSWSC, Hidden J, 4 October 1996 unreported) R v Radford (1985) 42 SASR 266 R v Serratore [1999] NSWCCA 377 R v Singh [2003] SASC 344; (2003) 86 SASR 473 R v Suteski (No 4) [2002] NSWSC 218; (2002) 128 A Crim R 275 Steven Vernon Hall (1988) 36 A Crim R 368 The Official Trustee in Bankruptcy v Buffier [2005] NSWSC 839 The Queen v Falconer (1990) 171 CLR 30
TEXTS CITED:	Pearce & Geddes, Statutory Interpretation in Australia, 6th ed 2006
PARTIES:	Dragan Cvetkovic (Appellant) Regina (Crown)
FILE NUMBER(S):	CCA 2009/231349
COUNSEL:	In Person (Appellant) M Cinque (Crown)
SOLICITORS:	In Person (Appellant) Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	08/21/12
LOWER COURT JUDICIAL OFFICER:	Sweeney J
LOWER COURT DATE OF DECISION:	7 August 2009