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:
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:
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.
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.
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.
At approximately 6 pm on the 26th, 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.
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.
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…
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- AGLC
- Kotvas v The Queen [2010] VSCA 309
- Case
- [2010] VSCA 309
- Decision Date
CaseChat Overview and Summary
The High Court held that the jury direction in relation to circumstantial evidence was not entirely satisfactory but did not lead to a miscarriage of justice. The court found that the direction concerning expert evidence was misconceived, but this error did not affect the safety of the verdicts. The court held that the evidence of the potential eyewitness was wrongly treated as consistent with the Crown case at trial. The Crown conceded on appeal that the evidence was inconsistent with its case. The court found that it was not possible to assess the credibility of the witness on the appeal and that it would be unjust to the appellant to order a retrial.
The High Court found that the appellant's convictions were unsafe and unsatisfactory. The court held that in the 'exceptional' circumstances, it would be appropriate to enter a verdict of acquittal on both charges. The court noted that the appellant had already served a significant period of imprisonment and that it would be unjust to subject the appellant to a further trial. The court found that the appellant's convictions should be quashed and that verdicts of acquittal should be entered on both charges.
Orders
Orders of the court
In these ‘exceptional’ circumstances, I would order that a verdict of acquittal be entered on both charges.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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