Knezevic v The State of Western Australia
[2017] WASCA 97
•18 MAY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KNEZEVIC -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 97
CORAM: BUSS P
BEECH J
HALL J
HEARD: 18 APRIL 2017
DELIVERED : 18 MAY 2017
FILE NO/S: CACR 33 of 2016
BETWEEN: DRAGO KNEZEVIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 41 of 2012
Catchwords:
Criminal law - Appeal against conviction - Whether verdict unreasonable and cannot be supported having regard to the evidence - Fresh or new evidence - Whether any miscarriage of justice established
Legislation:
Evidence Act 1906 (WA)
Criminal Appeals Act 2004 (WA)
Result:
Extension of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr J C Whalley
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen (1989) 167 CLR 259
Rodi v The State of Western Australia [2017] WASCA 81
Wells v The State of Western Australia [2017] WASCA 27
BUSS P: I agree with the orders proposed by Hall J.
As to ground 1, I agree with Hall J, for the reasons he gives, that the ground is without merit.
I merely note my satisfaction, after examining the trial record and weighing the evidence, that it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on each of the counts of which he was convicted.
A jury, acting reasonably, was not precluded by the state of the evidence at trial from convicting the appellant. The jury had the very significant advantage of seeing and hearing the witnesses (in particular, AB) give their evidence. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on any of the counts of which he was convicted.
The verdicts of guilty are not unreasonable. Each of them was supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses (in particular, AB), I do not have a reasonable doubt as to the appellant's guilt on each of the counts of which he was convicted or as to the correctness of his conviction on any of the counts.
As to ground 2, the principles relating to the discretionary power conferred on this court by s 40(1)(e) of the Criminal Appeals Act 2004 (WA) to admit 'any other evidence', for the purposes of dealing with an appeal, are set out in my reasons (Newnes JA agreeing) in Rodi v The State of Western Australia [2017] WASCA 81 [88] ‑ [105]. It is unnecessary to repeat them.
I am of the opinion, on my assessment of the additional evidence sought to be relied on by the appellant, in the context of the evidence adduced at the trial, that, to the extent the additional evidence is properly characterised as new evidence, the additional evidence does not establish the appellant's innocence or raise such a doubt that this court should be satisfied that the appellant should not have been convicted.
Also, I am of the opinion, on my assessment of the additional evidence in the context of the evidence adduced at the trial, that, to the extent the additional evidence is properly characterised as fresh evidence,
there is no significant possibility that, on the whole of the trial record and the additional evidence, a fact‑finding tribunal, acting reasonably, would have acquitted the appellant.
The additional evidence sought to be relied on by the appellant does not otherwise establish that a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act, occurred at the trial.
Ground 2 is without merit.
BEECH J: I agree with Hall J.
HALL J: The appellant was convicted following a trial in the District Court of one count of indecent assault, one count of sexual penetration without consent and one count of making a threat to kill. On 24 April 2014, he was sentenced to a total effective sentence of 3 years and 3 months' imprisonment. He now seeks leave to appeal against his convictions.
The notice of appeal was filed on 24 February 2016, in excess of 1 year and 10 months out of time. The appellant has applied for an extension of time and filed an affidavit in support of that application. He states that he was refused legal aid for the appeal following an adverse opinion from a barrister briefed by the Legal Aid Commission. He states that he attempted to file a notice of appeal on 7 December 2015, but it was not accepted as it was incomplete. He refers to difficulties he has with the English language and with preparing an appeal case whilst in prison.
The matters referred to by the appellant are all relevant, but they do not adequately explain the long delay. However, an extension can also be granted if it is established that a refusal would result in a miscarriage of justice. This requires consideration of the merits of the grounds of appeal. If the grounds of appeal have no reasonable prospect of succeeding then an extension of time should be refused.
There are two grounds of appeal: first, that the verdict was unreasonable and cannot be supported having regard to the evidence. The wording of the ground and the appellant's written submissions suggest that the appeal is confined to the sexual penetration count, but out of an abundance of caution I will assume that the ground relates to all three of the convictions. Second, that a miscarriage of justice was occasioned by the jury not being provided with evidence of the appellant's injuries at the trial. For the purposes of this ground, an application to adduce additional
evidence has been made. For the reasons that follow, neither of the grounds have any reasonable prospect of succeeding and, accordingly, the extension of time should be refused and the appeal dismissed.
The State's case
The State's case was that in or about May 2012 the complainant, who I will refer to as AB, a 25‑year‑old man, travelled by car to Port Hedland for work. He was accompanied by a friend. They initially camped at a public reserve. The appellant saw them at the reserve and introduced himself. He invited them to stay at his house in a suburb of Port Hedland. They agreed to do so.
AB and his friend slept in their car, which was parked at the appellant's house. Sometime shortly after they arrived, the appellant accused AB's friend of stealing property. This caused the friend to leave. AB stayed, having found work at a shop in South Hedland.
On 18 June 2012, the appellant invited AB into his house for a cup of coffee. AB brought a bottle of whisky with him. They both had a cup of coffee and AB drank some whisky. AB was tired and affected by the alcohol and was assisted by the appellant to lie down on a bed. The appellant then began to undress AB, which AB resisted. The appellant held down AB as he touched and masturbated AB's penis. The appellant then sexually penetrated AB by inserting his penis into AB's anus. The appellant then attempted to insert his penis into AB's mouth, but was unable to do so. The appellant then dragged AB to a caravan that was parked at the premises and left him there. AB awoke the next day with a hangover and what he believed to be semen on his stomach.
Two days later, the appellant walked into AB's place of work and asked if AB wanted some food or a lift home. AB rejected the offer and said that he did not want to see the appellant. A further two days later on 22 June 2012, AB confronted the appellant about what had happened on 18 June 2012. The appellant became angry, grabbed an axe and threatened to kill AB, who then fled. The appellant then walked down the road to neighbouring business premises where he spoke to two security officers and asked them to call police.
Ground 1 - legal principles
The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well known. They were recently summarised by this court in Wells v The State of Western Australia [2017] WASCA 27 [13] as follows:
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
Ground 1 - the submissions
The appellant's argument is that it is unlikely that, as a 75‑year‑old man, he would be able to overpower and hold down a man aged 25. He says that he did not have the ability to carry or drag AB back to the caravan. Further, he submits that the amount of alcohol consumed by AB would not have been sufficient to incapacitate him.
The appellant says that AB's subsequent conduct is not consistent with him being the victim of a sexual assault. In particular, the appellant refers to the fact that AB continued to stay on the property and did not make a report to the police for several days. He also says that it is unlikely that AB would have followed the appellant to the neighbouring property on 22 June 2012 if he had been threatened as alleged.
The State submits that, having regard to evidence as to the height and weight of AB and the amount of alcohol he consumed, it was open for the jury to conclude that the appellant did the things he was alleged to have done. The jury were well placed to make an assessment of the witnesses, in particular AB. There was other evidence that supported the prosecution case and when the evidence is considered as a whole it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
Ground 1 - the evidence
As it is necessary for this court to make its own independent assessment of the sufficiency and quality of the evidence, I will summarise the evidence given at the trial.
The complainant
AB gave evidence that he was born in Sudan in 1987. He came to Australia in 2006. AB said that in 2012 he and a friend were camping at Pretty Pool, Port Hedland. They were there for roughly a week. One night the appellant knocked on the car window. AB got out and had a conversation with the appellant. The appellant offered AB and his friend some sausages that he was cooking and then offered to help them find a place to stay. They followed the appellant to his property where they parked their car. The appellant said they could stay in the house if they paid rent. AB said they had no money, so they decided to continue sleeping in the car until they found work (ts 84, 85).
Over the following three weeks, AB and his friend stayed at the appellant's property while they looked for work. There was little contact with the appellant. AB said that he became scared of the appellant, who would often walk around naked. The appellant would try to engage AB and his friend in conversation whilst he was naked. AB would try to ignore this and walk away, but the appellant would persist and follow him (ts 87).
After some time, the appellant accused AB's friend of stealing (ts 88). There was an argument and the appellant told the friend to leave, which he did. AB continued to stay at the property, still sleeping in his car, or sometimes in a caravan that was also parked there (ts 90).
AB eventually found work at a liquor store in South Hedland. He started looking for another place to stay. He then noticed that a tyre on his car had gone flat. He tried to change the tyre, but the appellant took the jack (ts 90 ‑ 91).
The appellant showed AB a bed in the house where he said his male partner usually slept. He also showed AB some homosexual pornographic magazines that were kept in a drawer next to the oven (ts 94).
On 18 June 2012, AB went shopping. He bought some food, a bottle of whisky and some Coca‑Cola. When he got home the appellant was outside and invited AB to come into the house for a cup of coffee. After the coffee AB wanted to leave, but the appellant told him to stay. AB then offered to share his whisky and poured them both drinks. The appellant did not drink his whisky, but AB had two or three glasses and started to feel drunk. AB said that the glasses were of medium size and indicated the glass provided in the witness box (ts 95 ‑ 97). He said after he had roughly two or three glasses he started feeling really drunk and wanted to leave (ts 97).
AB said he wanted to go because he had work in the morning. However, the appellant said it was too early and kept talking. AB started 'getting really dizzy' (ts 98) and feeling sleepy. AB lay down on a bed in the house. At this time he was wearing a shirt and a black tracksuit (ts 98).
The appellant came to the bed and began pulling AB's clothes off. AB resisted, but he felt very weak and was unable to do much. AB felt 'very intoxicated' and 'more than drunk' (ts 99). The appellant managed to remove AB's clothes. He pulled AB back down onto the bed and lay down next to him. AB told the appellant to stay away, but the appellant began to touch him and commented that AB was not circumcised. The appellant then began to masturbate AB's penis. AB told the appellant to stop and kicked him. The appellant then put one arm across AB's body and the other on his throat (ts 98 ‑ 99).
AB said that the appellant began kissing him on the neck. The appellant then put his penis into AB's anus. AB said this went on for roughly 15 to 20 minutes. While this was happening he was 'very drunk' (ts 102). AB said he tried his best to kick back. He also told the appellant to 'fuck off' and screamed loudly, but there was no‑one around so he gave up (ts 102).
AB said he was very traumatised by what happened. He said that the next thing that occurred was that the appellant tried to put his penis into AB's mouth. AB turned his head away and the appellant persisted, but then gave up (ts 103).
The appellant gathered up all of AB's clothes. He then dragged AB from the house and put him in the caravan, together with his clothes. AB said that he knocked his face on a drawer as he was being dragged and suffered a scratch (ts 103 ‑ 104).
AB said that he woke the next day with a hangover. He also noticed a drop of what he believed to be semen on his stomach. He then had a shower before going to work (ts 104). He said he felt embarrassed and did not want anyone to ever know what had happened. He said he was also feeling sick with a cold or flu at the time (ts 107, 109).
Two days later, the appellant came to the shop where AB was working. The appellant asked AB if he wanted any food. AB said he did not and that he did not want to see the appellant. The appellant then asked AB if he wanted a lift home. AB again said he did not want to see the appellant and asked him to leave. The appellant left and came back a few minutes later with a sandwich which he offered to AB. AB refused the offer (ts 108).
AB said that in the days following the incident on 18 June 2012 he had tried to confront the appellant about what had happened. He went to the house, but the appellant had locked himself inside and did not respond (ts 108 ‑ 109).
Sometime after the appellant had attended at AB's workplace, AB again went to see the appellant at his house. The appellant answered the door and AB said he knew what the appellant had done and that the appellant could not ignore it. The appellant then grabbed an axe and threatened to kill AB. AB told the appellant to calm down and let him leave. AB left, but saw the appellant throw away the axe and get a larger one from the place he kept his tools. AB hid beneath a truck whilst this was happening. He saw the appellant run off towards a neighbouring property. The appellant threw a piece of metal at AB as he went (ts 110 ‑ 111).
After a short time, AB could hear the appellant talking to the security guards at the neighbouring property. AB decided to approach them. The police were called and AB made a statement about what had happened, including the sexual assault. He said that he did not tell anyone about it earlier because it was not a comfortable conversation to have with anyone (ts 114).
In cross‑examination AB accepted that he was fit (ts 129) and was a heavy drinker (ts 135). However, he maintained his account of what had occurred (ts 136). He said he was very weak, although the transcript records that what he said immediately preceding that was indistinct (ts 136). He also said that he had drunk more whisky after first lying down on the bed and before the sexual assault occurred (ts 139, 141). He denied various matters put to him by counsel for the appellant, including that the appellant had asked him, three times, to move out (ts 147, 148, 151) and that, on the occasion that AB went back to the appellant's house, AB was drunk and angry and physically confronted the appellant with a tyre lever (ts 152 ‑ 153). AB was asked by the judge to state his height and weight. He said he was 5 foot 6 inches and '55' (presumably kg) (ts 161).
Karen Shortland
Ms Shortland was one of the security officers working at the neighbouring property on 22 June 2012. She and a colleague were on foot patrol at 10.30 pm that evening. She saw the appellant carrying a long‑handled axe in one hand and a hatchet in the other (ts 221). He appeared agitated and asked for a telephone so that he could call the police. He was not threatening in his manner (ts 222).
Ms Shortland telephoned the police and then escorted the appellant back to the road. Whilst waiting for the police to arrive, the appellant threw the axe and the hatchet into a garden bed. As he did so he said words to the effect, 'Police don't need to see these' (ts 223). Before the police arrived, another man, of African appearance, arrived (AB). There was a heated discussion between the appellant and AB, and Ms Shortland separated them (ts 226).
Flavian Shayne Troxler
Mr Troxler was the other security guard on duty on 22 June 2012. He gave evidence in substantially the same terms as Ms Shortland (ts 31 ‑ 40).
Ross Hedley
Mr Hedley is a forensic scientist. He gave evidence that a number of items had been tested for bodily fluids and for DNA. A bed sheet from the appellant's bed had two stains on it which tested positive for semen. DNA could not be recovered from one of these stains, the other yielded a DNA profile that matched that of the appellant. There were two other stains that tested positive for blood and produced a DNA match for the appellant. A tape‑lift of the unmarked upper portion of the sheet produced a DNA sample that matched the appellant and indicated the possible presence of a second contributor (ts 309 ‑ 311).
A pillow found on the appellant's bed was also tested. Two stains were found that tested positive for semen and yielded a DNA match for the appellant. One stain was on the outside of the pillow case, the other was on the inside (ts 312).
A sleeping bag was tested that yielded DNA samples that matched the appellant and showed indications of the possible presence of a second contributor. Similar results were also produced from testing of a floral sheet from the appellant's bed. One stain had a mixed profile that consisted of the appellant as the major contributor and another unknown contributor (AB was excluded as the second contributor from this sample). The reverse side of this sheet had two stains that tested positive for semen and matched the DNA of the appellant (ts 315).
Black tracksuit pants belonging to AB and identified by him as being worn by him on the night of 18 June 2012 were also tested. A mixed sample of DNA was found on the outside front of these pants that was 253 million times more likely to have come from the appellant and AB than from some unknown person and AB (ts 319). Another mixed sample from the outside back of the pants was 881 million times more likely to have come from the appellant and AB than from some unknown person and AB. Another mixed sample from the inside front of the pants was 253 million times more likely to have come from the appellant and AB than from some unknown person and AB (ts 322). Finally, a further mixed sample from the inside back of the pants was 13.9 million times more likely to have come from the appellant and AB than from some unknown person and AB (ts 323).
Mr Hedley's evidence was not challenged in cross‑examination (ts 324 ‑ 328).
Tanya Maree Schulze
Ms Schulze was the store manager of the shop where AB obtained work. She recalled that on 19 June 2012, AB had a cut to his head when he attended for work. She said that he was very quiet that day and she noticed that he went to the toilet a lot (ts 330).
On 23 June 2012, Ms Schulze offered AB the option of staying at her family home. He stayed for about two weeks (ts 331). Towards the end of that period she saw him hitting his head with a rock (ts 332). She also tried to assist AB in recovering his car, but this proved difficult as it had more than one damaged tyre (ts 332).
Dr Sarah Jane McEwen
Dr McEwen examined AB at the Hedland Health Campus on 23 June 2012. She noted a superficial graze to the head. Due to the lapse of time since the alleged assault and the fact that AB had showered and defecated in the interim, the physical examination was brief. No anal tearing was observed, but Dr McEwen said that it was not uncommon for a person to be anally penetrated and not have injuries (ts 336).
Senior Constable Brett Hackshaw
Senior Constable Hackshaw gave evidence regarding the taking of DNA samples, the taking of photographs and the search of the appellant's house (ts 338, 339). He also referred to the seizure of items, including AB's black tracksuit pants from his car (ts 346).
Defence evidence
The appellant did not give evidence nor call any witnesses.
Ground 1 - the merits
Although the appellant was 74 years of age at the time of the events, there is no evidence that he was frail or otherwise of poor health. AB was not a large man in either weight or height. He only weighed about 55 kg in June 2012 and is only 5 foot 6 inches tall (1.67 m). Though AB's evidence was given by way of a pre‑recording, the jury had the benefit of seeing both AB and the appellant. It is not possible to conclude that what the appellant is alleged to have done was physically impossible, or even inherently unlikely.
As to the level of intoxication of AB, in evidence he was asked to estimate the amount of whisky he consumed. He indicated that the glass that he used was similar in size to the glass of water which he had in the witness box and that the glass was 'actually not really full, but just medium sized' (ts 97). He said that he was drinking the whisky straight. Bearing in mind that AB only weighed 55 kg, it was open to the jury to accept that three medium‑full glasses of straight whisky could have had a significant effect upon him. In any event, in cross‑examination AB said that later in the night he drank more whisky. Further, AB gave evidence as to how badly he was affected by the alcohol he had consumed (ts 97 ‑ 103).
As regards AB's actions on 22 June 2012, his evidence was that after being chased by the appellant he hid for a while and observed the appellant head in the direction of the neighbouring property. He said that when he heard the appellant talking to the security guards, he went there to find out what was going on. The evidence of the security guards supports AB's account that the appellant was armed at the time. There is nothing necessarily inconsistent in AB's conduct in approaching the appellant at this point. The delay in making a complaint was not necessarily inconsistent with AB's account: see s 36BD Evidence Act 1906 (WA).
Having independently assessed the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. There was no discrepancy or inadequacy in the evidence such as to lead this court to conclude that there is a significant possibility that an innocent person has been convicted. Proper regard must be given to the advantage enjoyed by the jury in having seen and heard the witnesses called at the trial, including, importantly, AB. Among other things, this court is at a disadvantage in that the transcript of the trial includes many parts described as indistinct. It is also relevant to take into account that there was circumstantial evidence that was capable of supporting the evidence of AB, in particular the unchallenged DNA evidence. Consequently, this ground of appeal cannot succeed.
Ground 2
The appellant has filed a very brief affidavit annexing additional evidence that he applies to be admitted on this appeal. It consists of what appears to be a page of medical notes and a number of photographs of the appellant. There is no explanation as to the provenance of these documents or why they were not adduced at the trial. It is difficult in these circumstances to determine whether the evidence satisfies the relevant test for admission either as fresh or new evidence.
However, even assuming that this evidence is admissible, it does not assist the appellant. The medical notes are dated 12 July 2012 and refer to multiple sores and grazes to the appellant's ankle, forearm, neck and head. These are described as being 'multiple small wounds all healing'. The notes also record that the appellant was 'released from Roebourne Prison yesterday'. The photographs, which are of poor quality, appear to show some of the wounds (or at least dressings in respect of those wounds). Presumably, the appellant wishes to claim that these injuries were caused in the altercation with AB on 22 June 2012, but there is no evidence to support that contention. The medical notes do not provide any evidence as to when or how any of the injuries were caused.
A ground of appeal that relies upon additional evidence must establish that there has been a miscarriage of justice: s 30(3)(c) of the Criminal Appeals Act 2004 (WA). New evidence will give rise to a miscarriage of justice if it shows that the appellant is innocent or it raises such a doubt that the court concludes that the appellant should not have been convicted: Lawless v The Queen (1979) 142 CLR 659. Fresh evidence will give rise to a miscarriage of justice if it shows that there would be an increased chance of acquittal: Mickelberg v The Queen (1989) 167 CLR 259, 275 and De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [156] ‑ [158]. The evidence sought to be adduced by the appellant in this case, even assuming it is admissible, does not meet either test. Whether it is new evidence or fresh evidence, it does not establish that there has been a miscarriage of justice. For those reasons, this ground has no prospect of success.
Conclusion
I would make the following orders:
1.Application to adduce additional evidence refused.
2.Application for an extension of time refused.
3.Appeal dismissed.
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