Kotvas v The Queen

[2010] VSCA 309

SUPREME COURT OF VICTORIA

COURT OF APPEAL

MIHAL KOTVAS	S APCR 2008 0752
	Applicant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, REDLICH and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 July 2010
DATE OF JUDGMENT	19 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 309
JUDGMENT APPEALED FROM	R v Mihal Kotvas (Unreported, County Court of Victoria, Judge Lacava, 11 July 2008)

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CRIMINAL LAW – Conviction – Recklessly causing serious injury – Affray – Direction in circumstantial case where evidence is ‘strand in a cable’ – Direction as to expert evidence – Whether verdicts unsafe and unsatisfactory – Evidence of possible eye witness wrongly treated as consistent with Crown case at trial – Crown conceding on appeal that evidence inconsistent – Crown seeking to discredit eye witness on appeal – Appellate court unable to assess credibility – Unjust to appellant to order retrial – Acquittal entered

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Ann Valos Criminal Law
For the Crown	Ms C Barbagallo	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. I have had the advantage of reading in draft the reasons for judgment of Redlich JA.  I agree with the disposition of the appeal which his Honour proposes, for the reasons which he gives.

REDLICH JA:

1. Following a trial in the County Court, the applicant was convicted on one count of recklessly causing serious injury and one count of affray.  A sentence of six months’ imprisonment was wholly suspended.  The applicant seeks leave to appeal against his conviction.

1. The Crown’s case at trial was that on the evening of Sunday, 26 February 2006, in the car park of the Rifle Club Hotel in Williamstown (‘the hotel’), the applicant attacked Mr Alan Black, an off-duty police officer, by kicking him repeatedly in the head.

1. The following facts were not disputed at trial, and were established in part through the use of video surveillance, a Crown summary of which was provided to the jury at trial.

1. At approximately 6 pm on the 26^th, Mr Black and Mr Lawrence Trussler, another off-duty police officer, arrived at the hotel.  They commenced drinking and playing pool.  Also in attendance at the hotel was a group including the applicant, Mr Wally Mega (the co-accused at trial, who was acquitted), Mr Craig Veal, Mrs Susan Mega (Mr Mega’s wife), Ms Natalie Kelsey (Mr Veal’s partner) and Mr Samuel Sikora, who were also drinking.

1. At about 8 pm, Mrs Mega left her husband at the hotel to go home.  At approximately 10:44 pm, Mr Mega and Mr Veal left the hotel through the rear entry foyer.

1. At some time between 10:38 pm and 11:03 pm there was an argument between Mr Trussler and the applicant, in which Mr Black was also involved, sparked by Mr Trussler taking cigarettes from the applicant.  Overhearing this argument, Mr David Cucanic, the Gaming Manager at the hotel, Mr Khalid Abbas, a security officer, and Mr Tony Schembrey, another employee at the…