Ivanovic v The Queen

[2006] HCATrans 332

[2006] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M136 of 2005

B e t w e e n -

THOMAS IVANOVIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 12.44 PM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   If the Court pleases, I appear with my learned friend, MR M.J. CROUCHER, for the applicant.  (instructed by Theo Magazis & Associates)

MR C.G. HILLMAN, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions)

HAYNE J:   Yes, Mr Richter.

MR RICHTER:   If the Court pleases, as I understand it, counsel for the respondent have sought that the Court should itself view a video and we would have supported that except we were told in advance that the Court could not do so.  May I indicate this, that in order to see the context of this argument, in my respectful submission, the Court ought to see the video ‑ ‑ ‑

HAYNE J:   Why?

MR RICHTER:   Because it is about that that we say it was impossible to reach a conclusion, for example, that provocation should not be left because it fails to meet an objective test.  Without seeing it, in my respectful submission, it would be impossible to understand the argument that deals with the notion that the prosecutor suggested that the deceased assaulted the applicant mainly because he saw a gun in his hand.  The fact is the video is what the jury saw and it is one of those cases in which the incident itself takes but a minute.  The two shots are three, four seconds apart.  The actual incident takes but a minute.  What we say is this, that so far as the grounds are concerned it would be very, very difficult to make a judgment in this matter without ‑ ‑ ‑

HAYNE J:   A judgment of what issue that would arise in connection with the grant or refusal of leave?

MR RICHTER:   A judgment as to whether or not it was possible for a court which decided that a trial judge who took away provocation was wrong when he said there was insufficient basis for subjective provocation, but then went on to say that the objective test is not met.  In a situation where the matter took so little time and in fact involved a serious physical assault plus, on the evidence, combined with threats to life of applicant and family, it would be impossible as a matter of law, in my respectful submission, to say that a defence of provocation would not meet the objective test, when one looks at what happened, the instance in which it happened and the circumstances in which it happened.

I am not aware of any case in which a serious assault – and it is sometimes described as a push, sometimes as “he set him down on the road” and it is described sometimes as a push to the chest.  It was not.  Anyone seeing that video would see that there is a very, very heavy push around the throat area – and that becomes important – which throws the applicant straightaway onto his back fully.  The applicant immediately gets up, fumbles around with his shirt, has to lift it in order to draw the gun, and then fires a shot and that in the context where there was evidence from a witness, Arico, that the applicant had told him that the man was yelling, “I’m going to kill you and kill your family”.

Now, if that excludes the notion of meeting an objective test for provocation such as it is – and of course we know that in Victoria we do not have it any more but it applies to the rest of the country as well – then it is difficult to see how in some of the cases provocation is left to the jury at all in terms of where there is actual physical violence, which we say is unprovoked physical violence, combined with words threatening death and injury to the applicant and to the applicant’s family.  So, in our respectful submission, the Court ought to see that it is very much a matter of the sort of impression that one has.

Now, what your Honour will say to me is of course, “Well, the jury saw it”, but they saw it in the context in which a number of things happened which are the subject of complaint in the proposed grant and in our outline, and they saw it in a context in which their ability to reason through was hampered by and in a number of ways that taken cumulatively create what we say is a substantial miscarriage of justice.  Indeed, ultimately the grounds are very much interrelated, and if I could just go to the grounds and indicate how they are interrelated, because it is a matter of significance, then the rest of the argument is pretty much there in the outline, if the Court pleases.

The first thing to note is this, that it is common ground that the applicant is on his way home after work and is driving a motor car.  Something happens.  There is no evidence that the applicant is aware of anything happening at a certain intersection some two kilometres from his home.  Something happens that causes the deceased to follow him for some two kilometres all the way to his home.  When I say it is not possible to speculate on or to come to any view about what happened, I say it in the light of the fact that the second motorcycle rider riding with the deceased himself does not know what happened.  He did not see anything that could produce what occurred later.

But what happened is that the deceased motorcyclist then follows the applicant for two kilometres to his home where the applicant, who happens to be armed with a gun for reasons that sort of emerge from some of the evidence that was excluded, indeed, is hailed by the deceased who is gesticulating and gesturing.  It is important to see the vigour of that gesticulation and gesturing, but especially taken in combination with the applicant saying to his friend, Arico, afterwards that the deceased was yelling out, “I’m going to kill you and kill your family, too”.  That is the only evidence that existed on what he was uttering.

Sure, there is speculation in the sense that the Court and, indeed, the prosecution speculated in terms of, “Well, he was remonstrating with him for something that he did”.  Maybe he was, maybe he was not, but that was not the evidence.  The evidence was what is seen on the video and what the deceased told his friend, Arico.  What then happens is that the applicant walks over towards the deceased, who was actually beckoning him whilst he is yelling, and is then fairly viciously pushed down and falls flat on his back, whereupon he jumps up and pulls the gun.

Now, in relation to the grounds that were taken, the first ground raises the question about the sort of examples that one gives in relation to self‑defence and a point of special interest, in our respectful submission, that arises is there has to be a limit and there has to be a well‑defined limit in terms of the ability of a trial judge to give examples to a jury in the course of a direction of law which are rhetorical in nature, despite the enjoinder of words such as “in all the circumstances”, when the example is so close to home and the rhetorical answer that is intended by the example is, “Well, it can’t be self‑defence”.  So that is one issue:  what are the limits of the kind of examples that one gives.

It is not said in a vacuum, in a sense, because your Honours will appreciate that his Honour Justice Eames in the Court of Appeal himself found that the example was not one that he would be giving.  It was not just one example.  There was a series of dichotomies created by his Honour Justice Cummins which led to a situation which, when combined with a number of the other grounds, precluded the applicant having a fair trial.

So the first ground, raising as it does the issue of the examples given, they are fully set out in our outline of submissions and, in our respectful submission, constitute rhetorical examples.  The problem with them is that they are given as part of a direction of law.  They are not given as a comment.  On the evidence, they are given a semblance of examples as part of a direction of law, which of course the jury is bound by.

The second ground, if I could just move on, raises the special issue, in my respectful submission, of temporal limits placed on the rule in Walton’s Case or the construction in Walton’s Case of verbal acts which may give rise to an inference about the state of mind.  What happened in this case of course is that, as your Honours would appreciate from the outline of submissions, the applicant made utterances to his friend, Arico, over a period of time, some months before about fears for his life, the fact that two friends of his had been shot, he is afraid for his life, he is going overseas because he is afraid for his life, when he comes back from overseas he will install a security surveillance system because he is afraid for his life, and the point at which the learned trial judge Justice Cummins excluded it was really on the basis that it was too remote in point of time.  The Court of Appeal rejected it also on that basis.

What is to be noted is that some aspects of fear by the applicant were allowed into evidence, but because of the rejection of the evidence of Arico then met with the kind of critical comments by the learned trial judge about who got hurt – we do not who, we do not know what, we do not know how, we do not know where, et cetera, so essentially saying there is no nexus between any of that and what happened on the day.

The simple answer is there is a nexus.  It is an immediate and obvious nexus because the state of fear is a state that can continue, and we have a situation in which on the day in question he is fearful and expressing fear to others, but he is also carrying a gun, and the significance of that could go one of two ways of course.  Either he is just a gangster who likes guns, or alternatively a jury could take the view that his utterances to his friend, Arico, back in October – September, October, which is not all that long before January – were continuing states of fear and anxiety of dangers to himself and to his family and that that is why he had the gun.  Of course the gun is an illegal weapon; so be it.  But that is why he had the gun.

So it is of importance to join those two together when coming to a conclusion of whether or not we say we can demonstrate a miscarriage of justice, but the special leave issues have to do with first of all - in the first instance with self‑defence, limitations on directions that are to be given, where, in the course of giving a direction of law, one gives examples that are so close to the bone as to dictate a legal answer, which we say these did.

The next issue really that ties into it also is the notion of the fatal shot.  Which one was the fatal shot?  We know that the shot to the abdomen was the fatal shot, but the issue is, was it the first shot or was it the second shot, and should the jury have been directed along those lines?  I might indicate that all these issues were canvassed at trial, objections and exceptions were taken, so none of this is new.

In relation to the two fatal shots we have the following situation.  Yes, they are three to four seconds apart.  The Court of Appeal was mesmerised by the notion that because they are so close there was no need to determine them, but because of the issue of the withdrawal of the provocation, there was seriousness in determining them.  Why?  Because when the first shot was fired the assailant – and that is the motorcyclist – the assailant has just pushed him down and is still there possibly lunging at him.  So, in terms of whether or not the shot was fired in self‑defence, if that was the fatal shot, then it becomes incredibly significant as to whether or not a jury accepts that he had a belief on reasonable grounds that he was in danger and that he was entitled to do that which he did.

Then there is the pause when the deceased steps back, paces back, then there is the gap of three or four seconds before he is shot a second time.  A jury might take the view that if they do not have to decide whether the first shot was the fatal shot, they might take the view that if the second shot was the fatal shot, which was the position that the Crown adumbrated but was unable to establish to the relevant standard, the jury might well take the view that by the time the second shot is fired he knows the man is injured and therefore he is not acting in self‑defence.  Hence the necessity to have tied down which shot was first, the fatal shot or the non‑fatal shot.

The fact is that in this particular instance, if the jury was unable to conclude on the evidence, which it was, the proposition that was put by the defence to the learned trial judge was that consonant with the burden of proof the jury should act on the basis that the fatal shot was the first one, because it is the only safe basis upon which to act if one is to give more than lip service to the burden and standard of proof.  That was rejected, and the treatment it got in the Court of Appeal was one of saying the shots were so close together that it does not matter.  In our respectful submission, it does.

The issue of provocation then which is addressed in ground 4 is also interrelated with the other issues and it is interrelated in this way.  I have already made a submission that in the circumstances as I have outlined them and in the circumstances which we would say are apparent on the video, once one comes to the conclusion that the subjective test has been met, as the Court of Appeal did – the trial judge did not – then it is impossible to say that the objective test, whatever its limits are, has not been met when one sees that there is immediate strong violence and takes into account the accompaniment of the threatening words which are murderous words.  That is not something that was done by either the Court of Appeal or by the learned trial judge, but that was something that was urged on both.

The consequence of removing provocation in this case created a grave situation of injustice in this sense, that the learned trial judge gave to the jury a printed sheet of law defining the elements of murder.  It did so against an objective by counsel for the applicant that one portion there ought not to be in the written directions, and that was the element which said that the killing was without lawful excuse; ie without provocation.

That, once the judge had decided not to lead provocation, should not have found its way into it at all, but his Honour was against me and he did

put it in and the jury – and juries are as clever as we all like to think they are – not unnaturally said, “Why isn’t provocation an issue?”, because when his Honour refused to leave out the element of without provocation, we had to debate some formulation of words that might go in there, seeing that he insisted that it go in there, and the most neutral formulation of words was, “It’s not an issue”.  Well, the jury said, “Why isn’t it an issue?”, and one might think that they would, and the reason one might think that they would is that they would see - having seen the video, they might well take the view, if left to consider it, that there was a provocation, certainly in the lay sense.

But what that combines and marries in is with the prosecutor’s hypothetical assertion that maybe the deceased saw the applicant holding a gun which is why he pushed him in the first place, something which cannot be borne out by looking at the video or by looking at the evidence; it simply cannot be.  More importantly, if that be the case, that would tell the jury why provocation is not an issue, if the issue is referred to at all, because they would say, “Well, it’s not an issue because if the deceased knew that the applicant had a gun and was approaching him with a gun, then the deceased would have been entitled to throw that punch or that application of force”.  So the introduction of an element that need not have been addressed produced a situation of grave and considerable injustice.  That is how those matters tie in together.

The last ground which is taken of course proceeds on the basis that we seek special leave because in all the circumstances there has not been a trial according to law.  There has been a miscarriage of justice, and a serious miscarriage of justice.  But we do say that there are points of special interest that apply in this case and the points of special interest relate to the…..to which examples can be given that are apt in some ‑ ‑ ‑

HAYNE J:   I think you are recapitulating what you have already said, are you not, Mr Richter, and the light is on.

MR RICHTER:   Yes, and I see the light is on.  Thank you, your Honours.

HAYNE J:   We need not trouble you, Mr Hillman.

In order to decide the application for special leave to appeal it is, in our opinion, neither necessary nor appropriate to view the video of events giving rise to the charge against the applicant.  We are not persuaded that an appeal would enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  Special leave, accordingly, is refused.

AT 1.05 PM THE MATTER WAS CONCLUDED