Milosevic v The Queen - [2022] SASCA 38

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MILOSEVIC v THE QUEEN
[2022] SASCA 38
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)
27 April 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - RECKLESSNESS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY
Following a trial by jury, the appellant was convicted of the murder of his housemate.
At trial, the prosecution alleged that the appellant had committed five acts of violence against the deceased over a period of three to four hours, including, inter alia, dropping a wheelie bin on his head twice (“fourth act of violence”). The appellant gave evidence at trial; he admitted the first three acts of violence but denied his involvement in the final two.
It was the prosecution case at trial that the appellant, in the course of committing the five acts of violence alleged, intended to kill or at least inflict grievous bodily harm upon the deceased. At the request of the prosecution, the Trial Judge directed the jury on the elements of reckless murder and left reckless murder to the jury as an alternative pathway to guilt for murder.
The appellant appeals his conviction on three grounds: first, that the Trial Judge erred in leaving reckless murder to the jury; second, that the Trial Judge failed to relate the directions on recklessness to the evidence at trial; and third, that the Trial Judge misdirected the jury by ascribing undue prominence to the use of the wheelie bin by the appellant in the fourth act of violence.
Held, by the Court, granting permission to appeal on Ground 2, but dismissing the appeal:
1.The Trial Judge did not err in leaving reckless murder to the jury. Further, the Trial Judge’s directions on the difference between murder and manslaughter by an unlawful and dangerous act were appropriate.
2.The Trial Judge appropriately directed the jury on the evidence at trial relating to reckless murder.
3.The Trial Judge did not misdirect the jury by ascribing undue prominence to the “wheelie bin” incident.

Aubrey v The Queen (2017) 260 CLR 305; JGS v The Queen [2020] SASCFC 48; La Fontaine v The Queen (1976) 136 CLR 62; Nudd v The Queen (2006) 80 ALJR 614; Pemble v The Queen (1971) 124 CLR 107; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Barrett (2007) 16 VR 240; R v Cooke (1985) 39 SASR 225; R v Crabbe (1985) 156 CLR 464; R v Sergi [1974] VR 1; R v TY (2006) 12 VR 557, considered.

MILOSEVIC v THE QUEEN
[2022] SASCA 38

Court of Appeal – Criminal: Lovell, Livesey and Bleby JJA
THE COURT:
On his arraignment before a jury on the charge of murdering…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Milosevic v The Queen

Details

AGLC: Milosevic v The Queen [2022] SASCA 38
Case: [2022] SASCA 38
Decision Date: 27 April 2022

CaseChat Overview and Summary

The appeal concerned a conviction for murder. The appellant, Milosevic, was found guilty of murder by a jury in the Supreme Court of South Australia. The prosecution's case was that Milosevic inflicted multiple acts of violence upon the deceased over several hours, resulting in injuries that cumulatively caused death. Milosevic admitted to some of the assaults but denied others and disputed the intent to kill or cause grievous bodily harm.

The legal issues before the Court of Appeal were whether the trial judge erred in leaving the charge of reckless murder to the jury, whether the directions given to the jury regarding the distinction between murder and manslaughter by an unlawful and dangerous act were appropriate, and whether the trial judge unduly emphasised the "wheelie bin" incident in the directions to the jury.

The Court of Appeal held that the trial judge did not err in leaving reckless murder to the jury, nor in the directions provided on the difference between murder and manslaughter by an unlawful and dangerous act. The court found that the directions given regarding the evidence relevant to reckless murder were also appropriate. Furthermore, the court determined that the trial judge did not misdirect the jury by giving undue prominence to the "wheelie bin" incident. Consequently, the appeal was dismissed.

Orders

Orders of the court

Held, by the Court, granting permission to appeal on Ground 2, but dismissing the appeal:

1. The Trial Judge did not err in leaving reckless murder to the jury. Further, the Trial Judge’s directions on the difference between murder and manslaughter by an unlawful and dangerous act were appropriate.

2. The Trial Judge appropriately directed the jury on the evidence at trial relating to reckless murder.

3. The Trial Judge did not misdirect the jury by ascribing undue prominence to the “wheelie bin” incident.

Background

Background to the litigation

We would dismiss the appeal; our reasons follow.Background The appellant and the deceased lived in shared accommodation in Plympton with three other men. On 22 August 2019, the appellant had been living at the premises for about four years; the deceased had been residing there for a longer period. The prosecution case was that the appellant struck the deceased to the head and body in five separate acts of violence with the intention to at least inflict grievous bodily harm upon him. The five separate acts of violence against the deceased occurred over a period of approximately three to four hours, from approximately 10.30 pm on 22 August 2019 to the early hours of 23 August 2019. The five acts of violence were punctuated by periods of inaction. The cause of death could not be attributed to any one particular act, but rather to the cumulative effect of injuries sustained from one or more of the five acts. The appellant gave evidence admitting the first three episodes of violence, but denied being involved at all in the last two acts of violence. He denied intending to kill the deceased or cause him grievous bodily harm. The appellant conceded that his admitted acts were a substantial cause of the deceased’s death.The five alleged acts of violence On 22 August 2019, the deceased smashed a window in the appellant’s bedroom by throwing a pot plant through it. He then pinned a note to the appellant’s door with a knife. The note read “You delusional fuckwit. Play like you’re asleep and I’ll put a fuckin axe through your head”. Upon returning home to the broken window and note, the appellant went to the deceased’s bedroom and assaulted him (“first act of violence”). The circumstances of that assault were in dispute at trial. The prosecution case was that the appellant kicked the deceased in the head while he was laying in his bed. The appellant, in evidence, said that the deceased tried to stab him with a knife and that he disarmed the deceased by delivering several ‘karate’ kicks to his head area. Approximately one to two hours later that evening, the deceased was in the backyard and was heard cursing. The appellant gave evidence that the deceased was smashing his car windows with a cargo barrier, before moving towards him and hitting him with it. The appellant admitted that, using a baseball bat, he hit the deceased about 10 to 15 times in the legs (“second act of violence”). During the assault, the deceased allegedly said “Harder. Harder”. Approximately 20 minutes later, the appellant threw a bicycle on the deceased (“third act of violence”), and returned to the house. Between 45 minutes to an hour after the third act of violence, the prosecution alleged that the appellant picked up and dropped a wheelie bin on deceased’s head twice (“fourth act of violence”), before kicking him in the head once more (“fifth act of violence”). On the prosecution case, about 15 minutes earlier, the appellant said words to the effect of “I’m going to put him to sleep. I’ve had enough”, to a witness. The appellant denied the fourth and fifth acts of violence.

Evidence

Evidence Before The Court

It was not put to the appellant that he inflicted any other blows to the deceased after those with the baseball bat and wheelie bin.Dr Langlois’ evidence Dr Langlois, a qualified forensic pathologist, conducted the post-mortem on the deceased. His qualifications were not challenged. The deceased suffered many injuries to his head and other parts of his body, particularly the right leg. Some injuries to his head were likely to be caused by blunt force trauma of moderate force. The deceased also suffered a broken jaw likely to have been caused by blunt force trauma of moderate to severe force. He also suffered a broken ankle caused by the application of severe force. It is possible that blunt force was applied to one area a number of times, but it is also possible for one impact to cause more than one injury. Given those uncertainties, Dr Langlois considered that the deceased sustained no less than four blows to the head. Further, the deceased suffered an acceleration/deceleration injury to his brain. The pathological changes noted in the brain were consistent with a mild brain injury. It was noted that it might not have been obvious to someone else that the deceased had sustained a brain injury. Dr Langlois observed foreign material in the deceased’s airway. Whilst foreign material in the airway is a relatively common finding at post-mortem, the amount of such material in the air spaces in the lungs was particularly extensive in the upper and lower lobes of both lungs. Dr Langlois considered that the material was likely gastric contents that had “refluxed” or come up from the stomach and then had been actively inhaled by the deceased while he was still alive. The inhaling of the stomach contents prevented the deceased’s lungs from working, therefore obstructing his breathing. The degree of aspiration involving the upper and lower lobes of both lungs would have impaired the deceased’s breathing to such a degree that death would have been rapid. Toxicology tests revealed that the deceased had a blood alcohol reading of 0.21% at post-mortem, and an estimated 0.22% at the time of death. Dr Langlois considered this to be a high reading and a risk factor in aspiration. Testing also revealed that the deceased had ingested methylamphetamine, codeine, Mirtazapine (an anti-depressant) and paracetamol. At the levels detected, the ingestion of those drugs was considered to be non-toxic. Dr Langlois did not consider that death was caused by alcohol intoxication alone; he had rarely seen such a degree of aspiration at an alcohol concentration of 0.21%. Given the degree of aspiration noted, Dr Langlois said he would have expected to see a much higher concentration of alcohol in the blood. Dr Langlois opined that the cause of death was blunt force head injuries complicated by acute aspiration in a man with a blood alcohol of 0.21%. He considered that the aspiration occurred after the blunt force head injury. The prosecution, in relation to the fourth incident involving the wheelie bin, focussed attention on what Dr Langlois described as a “horizontal 6 cm laceration across the midline 1.5 cm superior to the bridge of the nose on the forehead leading to an undermining/flap laceration of skin superiorly 4 cm over frontal bone”. Dr Langlois considered that this injury was caused by blunt force trauma as the skin was split or torn due to force but “not due to a cutting implement”. The blow had split the skin causing it to separate from the bone. However, as skin does not adhere to bone, it separates from bone easily. Of the injuries to the head area, Dr Langlois considered that the injury described above was consistent with having been caused by force from the base of the wheelie bin.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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