R v Ackoski - [2008] SASC 251

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ACKOSKI
Criminal Trial by Judge Alone
[2008] SASC 251
Judgment of The Honourable Justice Kelly
17 September 2008
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - OTHER CASES - ATTEMPTED MURDER
Accused charged with two counts of attempted murder and two counts of aggravated endangering life in the alternative- trial by judge alone - accused confronted his two victims with a firearm and discharged that firearm at both of them - female victim was the accused's former domestic partner.
Held: accused guilty of two counts of attempted murder.
Criminal Law Consolidation Act 1935 S 11, S 29(1) and S 270A, referred to.

R v ACKOSKI
[2008] SASC 251
KELLY J
Introduction

Kire Ackoski is charged with two counts of attempted murder contrary to Sections 11 and 270A of the Criminal Law Consolidation Act 1935 and two counts of aggravated endangering life contrary to Section 29(1) of the Criminal Law Consolidation Act 1935, in the alternative.
The allegations in brief are that on 30 November 2007 the accused confronted both the alleged victims Marek Konrad Sajewicz and Joanna Dagmara Satrazemis with a firearm and discharged that firearm a number of times.
The prosecution allege that the accused ran to the vehicle in which the two victims were seated, pointed a gun at Mr Sajewicz’s chest, and pulled the trigger. It failed to fire. When Mr Sajewicz got out of the car and fled, the accused fired another shot at the fleeing man.
While Ms Satrazemis was attempting to drive her car from the scene, the accused fired another shot at her. The bullet penetrated the windscreen of her vehicle and lodged in the passenger side of the vehicle.
This incident that occurred late on the night of 30 November 2007, occurred against a background of the breakdown of the accused’s relationship with Ms Satrazemis, a woman he had been in a relationship with for several years. Ms Satrazemis was seeing Mr Sajewicz regularly.
Legal Issues
The accused has been charged with two counts of attempted murder. The two counts of aggravated endangering life have been charged in the alternative.
I begin my consideration of the legal issues that arise in this trial by considering counts 1 and 3 on the information. I have at all times borne in mind that the accused does not have to prove his innocence. It is for the prosecution to prove each and every element of the charge or charges in this case against him and nothing short of proof beyond reasonable doubt will do.
Count 1 alleges that the accused on 30 November 2007 attempted to murder Marek Sajewicz. The act which forms the basis of the charge in count 1 is the firing of the gun at Mr Sajewicz as he was running away from the vehicle in which he and Ms Satrazemis had been sitting.
Count 3 alleges that the accused on the same date and at the same place attempted to murder Joanna Satrazemis. The act which forms the basis of the charge in count 3 is the firing of the gun at Ms Satrazemis as she was attempting to drive her car away from the scene.
Of course each count must be considered separately in determining whether the prosecution have proved its case beyond reasonable doubt. However, the elements of each crime that the prosecution must prove beyond reasonable doubt, are identical.
On a charge of attempted murder the prosecution must prove beyond reasonable doubt:
·First, that the accused actually had an intention to kill. It is not enough for the prosecution to prove an intention on the part of the accused, to cause grievous bodily harm. Therefore, in relation to count 1, I must be satisfied that at the relevant time the accused had an intention to kill Mr Sajewicz. In relation to count 3, I must be satisfied that the accused at the relevant time had an intention to kill Ms Satrazemis
·Second, I must be satisfied that there was an act or a series of acts performed by the accused to carry out the intention, that is, the intention to kill.
·Third, the prosecution must prove that the accused did some act or acts towards committing the intended crime of murder which are immediately, as opposed to not remotely, connected with the commission of the crime of murder and which cannot reasonably be regarded as having any purpose other than to commit the crime of attempted murder. In other words I must be satisfied that the prosecution have proved that the accused performed acts immediately connected with the commission of the intended crime of murder and not merely that the accused took some steps in preparation for committing the crime.
·Next, I must be satisfied that the act or acts on which the prosecution relies were intentional, that is in the sense of being deliberate and not accidental.
·Finally I must be satisfied that the accused has acted unlawfully in the sense that he had no lawful excuse for the actions he took.
Endangering Life
For the sake of completeness, I now mention matters about which I must be satisfied beyond reasonable doubt before finding the accused guilty of either of the alternative charges on the information that is, the charges of aggravated endangering life.
Count 2 alleges that on 30 November 2007 the accused threatened Mr Sajewicz with a firearm knowing that the act was likely to endanger the life of Mr Sajewicz and intending to endanger Mr Sajewicz’s life or being recklessly indifferent as to whether Mr Sajewicz’s life was endangered.
Count 4 alleges identical particulars in relation to Ms Satrazemis.
In relation to count 2 the prosecution has alleged a further particular that the accused used an offensive weapon when committing the offence. In relation to count 4, two aggravating particulars are alleged, first that the accused used an offensive weapon and secondly that when committing the offence he knew that Ms Satrazemis was his former domestic partner.
Leaving aside for the moment the additional aggravating particulars alleged in relation to each count, the essential elements about which I must be satisfied before finding the accused guilty of either count 2 or count 4, are:
·    First I must be satisfied that the accused consciously and deliberately performed an act which was likely to endanger the life of another person. On this charge the prosecution do not need to prove that the act caused any actual injury, it is sufficient if the act was likely to endanger the life of another person. In this case the actions relied upon by the prosecution in each of the counts of endangering life is the alleged firing of the firearm in the direction of each of the named persons in count 2 and count 4.
·    Second, I must be satisfied that at the time of the alleged shooting the accused knew that the act was likely to endanger the life of the other person.
·    Third, I must be satisfied that the accused either positively intended to endanger the life of that other person or at the very least was recklessly indifferent as to whether the relevant act relied on did endanger the life of the other person. For the purposes of the law I acknowledge that reckless indifference in this context means that although the accused may not have intended to endanger the life of another person, he nevertheless performs an act knowing that that act is likely to endanger life. In other words, knowing that the actions are likely to endanger life, not caring, the accused continued to perform the acts.
·    Finally, the actions carried out by the accused, must be without any lawful excuse.
The Evidence
Although the prosecution called a number of witnesses as to events surrounding the night of 30 November 2007, the principal witnesses relied on by the prosecution were the two alleged victims Mr Sajewicz and Ms Satrazemis.
Ms Satrazemis met the accused in October 2003 and commenced a relationship that finally came to an end in October 2007. There is one child from that relationship, a boy named Brendan born on 14 August 2005.
Ms Satrazemis described the relationship as not a happy one however, after giving birth to her son in August 2005 the couple became engaged in December of that year.
Early in 2007 Ms Satrazemis and the child moved out of the home the couple had been occupying at Flinders Park and went to live with her parents at Allenby Gardens. After a seven week separation during which she continued to have some intermittent contact with the accused, she moved back to the house at Flinders Park previously occupied by them.
The relationship did not improve and in the last week of October 2007 Ms Satrazemis told the accused that she no longer loved him and could no longer live together with him. The accused was upset and angry.
Meanwhile Ms Satrazemis looked up an acquaintance of hers, the other victim in this matter Mr Sajewicz, and began to communicate with him by email and mobile phone. The pair of them exchanged mobile phone numbers and in November 2007 saw each other very frequently.
Ms Satrazemis described a number of incidents that occurred in the month of November 2007 leading up to the night of 30 November 2007 involving her and the accused. The accused became argumentative, upset and at times aggressive.
After about two weeks of living separately and apart but still under the same roof, Ms Satrazemis and her son Brendan moved to her parent’s house at Allenby Gardens. On the morning of 28 November 2007 Ms Satrazemis returned the engagement ring that the accused had given her. On that occasion the two became involved in an altercation that led to the victim, Ms Satrazemis phoning the police.
During one of these confrontations between the accused and Ms Satrazemis, the accused uttered a threat to the effect of “shut up bitch or I’ll kill you”. At that time Ms Satrazemis did not take the threat seriously.
On Thursday 29 November 2007 Ms Satrazemis met up with Mr Sajewicz at Mawson Lakes. While she was with him that evening Mr Sajewicz received a text message on his phone allegedly from Ms Satrazemis. It was not from Ms Satrazemis. The spelling of the name “Joana” in the text message was identical to the spelling which the accused and his family habitually used for Ms Satrazemis. During that period of time of about an hour to an hour and a half while the two were at Mawson Lakes, Mr Sajewicz’s phone rang a number of times. Neither Ms Satrazemis nor Mr Sajewicz recognised the phone numbers and Mr Sajewicz chose not to answer the calls. On the same night after she was on her way home after leaving Mr Sajewicz, Ms Satrazemis received a phone call. She was not able to identify the caller as no number came up on the screen but when she answered the phone it was the accused. He wanted to know if she had been with Mr Sajewicz that night. Ms Satrazemis terminated the call.
On the day of the incident Friday 30 November 2007, Ms Satrazemis took her son Brendan to the Port Adelaide Police Station in order for the accused to see his son. She made those arrangements as by that stage as a result of earlier incidents, the accused was on bail, one of his conditions being that he was not to contact Ms Satrazemis and not to have any direct contact with her in relation to the son except through arrangements made with his grandmother. During the contact that took place at the Port Adelaide Police Station Ms Satrazemis and the accused had a heated conversation. The actual terms of that conversation have been disputed, however Ms Satrazemis alleged that on the way back to her car outside the police station the accused uttered this threat “You’re fucked, I’m coming to your house tonight to kill you”.
Later that evening at about 9.45pm Ms Satrazemis left her parent’s home to drive into the city. She had her son Brendan in the back seat with her. She said that he was unable to sleep and she often took him for drives in the car to settle him down. Both she and Mr Sajewicz arranged to meet and she went to the Adelaide Convention Centre where Mr Sajewicz had been at a function and picked him up at the front of the Convention Centre before driving him down to War Memorial Drive at a spot adjacent to the Adelaide University Oval. It was her intention to spend a short period of time with Mr Sajewicz before driving her son back home. Ms Satrazemis wound down the driver’s side window. After they had been there for a short period of time Ms Satrazemis noticed a vehicle approaching from King William Road and drive slowly past, swerving as it did so. She was uneasy as she thought it might have been the accused. The car pulled up several parking bays to her right. Ms Satrazemis could see that there was a sole occupant, the driver who appeared to remain seated in the driver’s seat for longer than usual for someone who was parking to walk into the city. By this stage Ms Satrazemis was frightened and suggested they leave. Before she put any plan into action she saw the accused run from the back of her vehicle to the window. He thrust a gun through the driver’s window and pointed the gun at Mr Sajewicz’s chest. Ms Satrazemis estimated that the gun barrel was about 30 centimetres from his chest. She heard a clicking noise from the gun. She did not hear the accused say anything.
After she heard the clicking noise the accused withdrew the gun, pointed it down to the ground and started fiddling with the gun with both hands. She started to grapple with him trying to get hold of the gun but she couldn’t. She then went to turn the keys in the ignition on and the accused endeavoured to get hold of the keys as she did so. At that point she heard him say something to the effect of “fuck” or “fucking slut”.
She then saw the accused move towards the front of her car, raise his arm and point it at a white shirt which she realised was the back of Mr Sajewicz on the other side of her vehicle. She heard another click and the accused started running down towards King William Road.
At that point she realised that the front passenger door was open and she saw Mr Sajewicz running away. She then heard two gun shots. Finally she managed to put the car in reverse, swerved out and drove down War Memorial Drive in the direction from which she came. As she was reversing she saw the accused either on the kerbside or very close to the kerbside. She denied driving at him but said that as she drove on the opposite side of the road towards him, he lifted up his arm to shoulder level, pointed the gun at the car and then she heard a gunshot and saw that something had hit her windscreen. Her son was shaking, shards of glass covered both her and her son.
The only description that Ms Satrazemis was able to give of the gun was that it was a black gun, it did not have a long barrel but it was long enough for her to see the barrel. She estimated that it might have been five to ten centimetres from the trigger to the end of the barrel.
Ms Satrazemis was cross examined on a number of aspects of her evidence. One important topic was the conversation between Ms Satrazemis and the accused at the Port Adelaide Police Station on 30 November 2007 when Ms Satrazemis took her son Brendan to see the accused.
In cross examination it was put to Ms Satrazemis that she had demanded $50,000 from the accused to gain access to Brendan. She denied saying anything about an amount of $50,000 in any context and she denied generally exaggerating the threats that the accused had made in the previous weeks in order to bolster her case for sole custody of her son Brendan.
Marek Sajewicz gave an account of his relationship with Ms Satrazemis which generally accorded with her evidence about that.
He described in the week prior to 30 November 2007 receiving a number of calls from various different numbers which neither he nor Ms Satrazemis recognised. He spoke about one call in particular from a number that was withheld. He heard a male voice with an accent who said to him words to the effect of “Stop texting Jo. I will find out where you live. I am going to kill you.” Mr Sajewicz terminated that call.
He said that while he was with Ms Satrazemis at Mawson Lakes on the night of 29 November 2007 his mobile phone rang up to 15 times. He saw that there were a number of different numbers displayed each time. He confirmed Ms Satrazemis’ evidence that he also received a text message purporting to be from Ms Satrazemis to the effect of “Hi this is Joanna would you like to meet up tonight.”
Mr Sajewicz first became aware of the accused’s presence by the car at War Memorial Drive when he saw a person to the back of the driver’s side of the car running towards the driver’s door. When the person stuck his arm through the window he saw that he was holding a gun that was pointed about 15-30 centimetres away from Mr Sajewicz’s chest. He pulled the trigger and heard a click. He then heard the man say “fuck” in a frustrated tone of voice, retract the gun and start fiddling with the gun.
At that stage Ms Satrazemis started screaming and panicking. Mr Sajewicz jumped out of the car and ran directly towards the cathedral. When he was at a point towards the front of the car and just outside of the car, he saw the man moving to the front of the car on the driver’s side. As he glanced back he saw the gun pointing again directly at his body. He continued to run and heard what he described as “pops”. He was certain that he had heard one and thought he heard more than one. He estimated that he was about 20-30 metres away from the vehicle by the time he heard the first pop.
He conceded in cross examination that when he heard the man say “fuck”, he wasn’t sure whether he could have said “fuck off”. He was certain that he had heard the gun click once but was not sure whether he had heard a second or a third click.
The accused’s relatives Mr Peter Pana and Diana Pana gave evidence about their relationship with the accused in the months leading up to 30 November 2007. Mr Pana was particularly close to the accused and the accused came to visit him frequently during the break up.
The accused told Mr Pana that he was aware that Ms Satrazemis was seeing a man named “Mav” or “Muv”. He knew that because he had got the details from Ms Satrazemis’ mobile phone or from her email. At one stage the accused asked Mr Pana if he knew how to crack an email password as Ms Satrazemis had placed a block on her emails.
Both Mr Pana and his wife said that the accused was very upset and angry during the time of the break up. He described Ms Satrazemis’ cheating on him. On the Wednesday which was the day when Ms Satrazemis returned the engagement ring and there was an altercation resulting in police involvement, Mr Pana spent some four to five hours with the accused. He said the accused was angry for most of that time and threatened to “kill the fucking bitch”.
Around midnight of Friday 30 November or in the early morning of Saturday 1 December, the Pana’s phone rang. It was the accused. He told Mr Pana “I shot at Joanna and I don’t know if I’ve killed her”. Mr Pana denied that during the course of that conversation the accused said it was an accident or that he did not mean to shoot at her.
In cross examination Mr Pana denied that he had provided the gun which the accused used to shoot at Ms Satrazemis and Mr Sajewicz.
Mrs Pana also confirmed that on the Wednesday prior to Friday 30 November the accused had been extremely angry, upset and anxious for most of the time. He said words to the effect of “the bitch had done that to him” and used the terms “bitch” and “dog” interchangeably when referring to Ms Satrazemis. He also uttered threats to the effect of “I’ll kill the bitch, who does she think she is”.

Jason Vesey, a police officer who was present at the Port Adelaide Police Station on the afternoon of 30 November 2007 gave evidence about his involvement with Ms Satrazemis and the accused on that afternoon.
Constable Vesey was on duty at the Port Adelaide Police Station at the time when it was brought to his attention by an administrative officer at the police station, that there were some difficulties with the accused and Ms Satrazemis. As a result of receiving information that Ms Satrazemis did not want the handover, as the police officer referred to it, to go ahead, he was asked to speak with Ms Satrazemis.
Constable Vesey was not asked to make a statement about the events at the Port Adelaide Police Station in the afternoon of 30 November 2007 until midway through his shift the following day. He therefore did not purport to have a completely accurate memory as to the exact conversation. He said however, that the accused at the police station was very upset and emotional. The accused and Ms Satrazemis appeared to be arguing. Ms Satrazemis told the accused that she would see him in court. He heard a reference to the sum of $50,000 but was not able to say in what context Ms Satrazemis mentioned that figure.
The police officer offered to escort Ms Satrazemis to the motor vehicle. He did not see or hear any threat made by the accused to Ms Satrazemis in the vicinity of the car.
He did, however, say that he was some metres away from both of them, there was a continuous flow of traffic at the front of the station and the accused had his back to the police officer at the time when it was alleged he threatened Ms Satrazemis. He confirmed that Ms Satrazemis did turn around near the front door of her car and alleged that the accused had just threatened her.
Mr Jason Quin, a friend of the accused gave evidence that he loaned his vehicle to the accused on a Friday or a Saturday evening in November 2007. He said the accused told him that he wanted to sit down the end of the street and check out whether his girlfriend (Ms Satrazemis) was playing up on him.
Mr Quin loaned him the Gemini vehicle in which the accused travelled to War Memorial Drive later that night.
Mr Quin said at some point later that night after he had fallen asleep in the lounge, he awoke and saw the accused in his kitchen getting a drink.
In cross examination Mr Quin agreed that he had loaned his vehicle to the accused on more than one occasion however, the occasion when the accused told him he needed the vehicle to check up on his girlfriend was 4 or 5 days before the police took a statement and took his vehicle away for a time. Mr Quin denied that he was present in the motor vehicle with the accused when the accused took possession of the handgun.
Jessica Brooks, a friend of Ms Satrazemis, said that there was an occasion around 12 November 2007 when she visited Ms Satrazemis at her house at Flinders Park.
When she arrived that day the accused and Ms Satrazemis were arguing. She and Ms Satrazemis sat outside having a chat and a coffee and at one stage the accused was sitting nearby near the back door.
The accused and Ms Satrazemis were arguing, Ms Satrazemis was angry and the accused was speaking in an aggressive tone. At one stage during the course of the interaction between the pair of them, the accused threatened Ms Satrazemis to the effect of “shut up you fucking bitch or I’ll kill you”.
Ms Brooks denied that the accused had made any comment in her presence, to the effect that she was “hot”.
Ms Satrazemis’ father, Apostolos Satrazemis, said that on the afternoon of Friday 30 November 2007 the accused telephoned him and asked to see his son Brendan.
Later that afternoon after Ms Satrazemis returned from the Port Adelaide Police Station at about 5 pm, he spoke with his daughter. She was distressed and upset. The conversation which Ms Satrazemis had with Mr Satrazemis was admitted over the objection of defence counsel. It was admitted, not as evidence of the truth of Ms Satrazemis’ allegation about the threat allegedly uttered by the accused to her earlier, but only in order to explain why it was that Mr Satrazemis travelled to the accused’s grandmother’s house later that afternoon and confronted him. Its only purpose was to explain the circumstances in which Mr Satrazemis came to be speaking with the accused that day.
In response to Mr Satrazemis who asked the accused why he was behaving the way he was and threatening Joanna, according to Mr Satrazemis the accused said words to the effect “she’s taking my son away from me” and later, “she’s dumping me for somebody else”.
Mr Satrazemis said at no stage did the accused deny having made any threat to Ms Satrazemis earlier that afternoon. After some discussion the two shook hands and Mr Satrazemis left.
When cross examined specifically about the conversation, Mr Satrazemis said he could not remember one way or another whether the accused had said words to the effect of “I’m not threatening her”, at any stage whilst he was speaking with him.
The remaining witnesses called by the prosecution were police officers who examined the area at War Memorial Drive and located certain items of evidence in the vicinity of where Ms Satrazemis’ car was parked.
Sergeant Rex De Laine, an expert in the field of firearms identification and ballistics, was asked to examine the bullet projectile embedded in the right hand passenger side of Ms Satrazemis’ vehicle, two spent cartridge cases and one live round of ammunition found on War Memorial Drive in the general vicinity of where Ms Satrazemis had parked her motor vehicle.
He identified the ammunition as suitable for use in a .45 calibre semi automatic weapon. There is some evidence to suggest that the two spent cartridge cases had been fired from the same gun but the sergeant was not able to make a positive comparison.
The witness was asked what explanation or explanations there might be for the sounding of a click from the pulling of the trigger of a gun without the gun actually firing.
He said one possibility for that would be if the gun had been cocked before a loaded magazine was loaded into the gun. In that event there would be no live round in the chamber. He went on to say that if the weapon were then loaded it would be necessary to cock the gun again after the loaded magazine had been inserted. If for some reason, the gun was cocked a second time before pulling the trigger, the live round from the chamber would be ejected.
Another possibility for the audible click is that the magazine may not have been loaded into the handle of the gun correctly. If the magazine is not loaded properly, then it is possible that a round will not be fed into the chamber. Sergeant De Laine explained that in relation to similar weapons to a .45 semi automatic handgun the action in pushing the magazine properly into the handle of the gun can produce an audible clicking sound.
Alternatively there may be some fault, either with the gun or the ammunition, which prevented a round going into the chamber. Under that scenario even though the magazine might have been properly loaded, if it is faulty in some way, for example if the firearm is aged or worn or the spring of the magazine is weakened through age, cocking the gun could fail to place a live round in the chamber or cause it to misfeed.
Another possible explanation for an audible click without the gun firing might be that the magazine had been properly loaded, the gun properly cocked, a live round had entered the chamber, but the pulling of the trigger simply failed to discharge the bullet.
Yet another explanation for the clicking of the gun without it firing would be if the magazine was not loaded at all in the first place. In that event, if the firearm was cycled and cocked, the pulling of the trigger would result in an audible click.
The effect of Sergeant De Laine’s evidence was that any of these scenarios was equally possible as an explanation for why the gun might have made an audible click without discharging any bullet. While Sergeant De Laine’s evidence was consistent with both the prosecution hypothesis and the defence hypothesis as to why the gun may have made an audible clicking noise when the accused pulled the trigger in the car, nevertheless I bear in mind that there is also an explanation for how the live round came to be ejected from the gun which is, on all of the evidence, consistent with the prosecution case and which appears to be inconsistent with the accused’s evidence about that.
The Accused Elects to give Evidence
The accused elected to give evidence. I bear in mind that he was not obliged to take this course and could have remained silent, however, having elected to give evidence and submit himself to cross examination, I regard his evidence on exactly the same footing as the other witnesses. The accused was born on 30 September 1982 in Macedonia. He came to live in Australia with his mother after the divorce of his parents when he was about 16 years old.
The accused said that his father had taught him how to use guns and he was familiar with the use of a range of guns including machine guns and semi automatic firearms.
The accused claimed to have such facility with firearms that he could dismantle and put together a semi automatic firearm in one minute.
He also said he did a lot of shooting practice while in Australia with friends of his, shooting at stationary targets as well as extensive experience hunting kangaroos, foxes and rabbits.
The accused did not deny using a firearm at War Memorial Drive on the night of 30 November 2007, however he said that when the gun was loaded he only fired it in the air and it went off accidentally at one stage when he jumped to get out of the way of Ms Satrazemis’ car as she left the scene.
In the previous 5 years or so, prior to the incident, the accused said he had been seeing a psychiatrist and a psychologist for a range of problems he was having, including anxiety, panic attacks and depression. He said he had received medication for some of these problems.
The night before 30 November 2007 the accused said he took Valium, Stilnox, Avanza and Solian in standard dosages prescribed for him by his psychiatrist. There was no other evidence to suggest that the taking of prescription drugs by the accused has any relevance to the legal issues which I have to decide in this matter, in particular, the issue of the accused’s intention.
The accused agreed that his relationship with Ms Satrazemis had been punctuated by angry episodes, with each partner losing their temper at times with the other.
He agreed with his counsel’s suggestion that he could be jealous, possessive and aggressive, however he said there were often occasions when Ms Satrazemis was aggressive without any provocation from him.
His version of the incident where Ms Satrazemis threw the glass at him differed from hers, in that he said she threw it deliberately at his head and it smashed open his head.
His account of the incident when Ms Brooks visited the house also differed from Ms Satrazemis. He said that Ms Satrazemis had abused him for having obtained a tattoo and when the accused made a comment that Ms Brooks was “hot”, Ms Satrazemis started abusing the accused. Nevertheless he denied threatening to kill her or anything like that.
He denied uttering a threat to kill Ms Satrazemis at the Port Adelaide Police Station earlier on 30 November 2007. His account of the meeting at the Port Adelaide Police Station differed from Ms Satrazemis’.
He thought he was going to the police station in order to pick up his son and take him back to his grandparents to spend time together with him. He said Ms Satrazemis was already talking to the police when he arrived there and when he went to pick up his son about 5 minutes later she came storming in, grabbed the child and said she was leaving.
He said there was then a verbal altercation in which Ms Satrazemis said she wanted $50,000 from him in order for him to see his son. He was very angry and was so upset he was nearly crying. A police officer spoke to him and told him he could get legal custody of his son by going to the court. He denied threatening Ms Satrazemis in the vicinity of the car as she was leaving.
He admitted that he had sent some text messages by phone to Mr Sajewicz pretending to be Ms Satrazemis. He said he had done that because he was drunk at the time, with a couple of friends and they all thought it was a joke.
He denied ever having an intention to kill Ms Satrazemis or Mr Sajewicz either on the night of 30 November 2007 or earlier.
He said that he had used a friend’s motor vehicle in order to drive somewhere on the night of 30 November 2007 and kill himself. He said he wanted to do that in someone else’s car other than his own because he did not want to mess his own car up so that it could be sold and the money could go to his son. He did not tell his friend Mr Quin why he wanted the car except to say that he was out of petrol.
He said he had indeed borrowed Mr Quin’s car on an occasion earlier than that telling Mr Quin that he wanted to borrow it to check up on the whereabouts of Ms Satrazemis.
The accused said he obtained the gun from his close friend Mr Pana, the day before 30 November 2007, telling Mr Pana that he was feeling suicidal and depressed. He said he was surprised when Mr Pana did hand over the gun. He said that exchange took place in front of another friend’s house in Maple Avenue. The accused claimed to be sitting in a vehicle with Mr Quin when Mr Pana drove up, stopped behind his car, passed the gun through the window and left.
The reason he was in War Memorial Drive on the night of 30 November 2007 was because he was looking for a quiet place in which to kill himself. He was not expecting to see Ms Satrazemis there with Mr Sajewicz and did not notice them until after he pulled up and stopped his motor vehicle a few parking spaces away.
He said he went to Ms Satrazemis’ car with the gun in order to scare Mr Sajewicz off. He had the magazine to the gun in his pocket and it was not loaded when he pointed it through the window at Mr Sajewicz, as he only wanted to scare him. He said he did not cock the gun until after Mr Sajewicz started running away. That is when he loaded the magazine and cocked it. He said that by the time he had done that Mr Sajewicz was nearly as far away as King William Road.
He agreed that he had pulled the trigger in the motor vehicle but denied that there were any bullets in the chamber. When it was put to the accused in cross examination that in order for the gun to make a click when the trigger is pulled, the gun needed to have been cocked first, he agreed that he might have cocked the gun before he reached Ms Satrazemis’ vehicle.
The accused said he did say something before he pulled the trigger namely, “fuck off, stay away from my kid”. He denied that he thought the gun was loaded and he denied saying “fuck” after he had pulled the trigger.
That account differs from the evidence of both Ms Satrazemis and Mr Sajewicz who both claim that the accused said nothing until after he had pulled the trigger.
He said after Ms Satrazemis tried to push the gun away, he took it out of the car and started to put the magazine in the gun. It was at that point he said he dropped a bullet. He denied that at that stage he was trying to cock the gun again in order to ensure that there was a bullet in the chamber. He denied following Mr Sajewicz when he ran off into the darkness. He said the only shot he fired was into the air and he fired that shot within a couple of metres of Ms Satrazemis’ vehicle.
When it was suggested to the accused that that version could not be correct, given the presence of two bullet casings on the roadway further down, the accused said he wasn’t exactly sure whereabouts he was when he discharged the gun.
He also denied firing deliberately at Ms Satrazemis’ vehicle. He said that he heard the revving of her car and when he turned towards her vehicle, it was coming at him. He jumped out of the way to avoid being run over by her and the gun accidentally discharged. He denied any deliberate attempt to shoot at Ms Satrazemis.
In cross examination the accused said he told Mr Pana that it was an accident during the course of his conversation with him late on the evening of 30 November 2007. The accused’s evidence about his conversation with Mr Pana differs from the evidence of Mr Pana on this topic as well.
The accused agreed that he was in a very emotional frame of mind at the time that he arrived in War Memorial Drive earlier that evening. Although he agreed that he was angry with Ms Satrazemis earlier that day, he denied ever threatening her life on that day.
Although the accused said that Ms Satrazemis’ father came to see him after the incident at the police station, the accused’s version of the conversation they had is different from Mr Satrazemis’. The accused agreed that the father of Ms Satrazemis had accused him of threatening his daughter but he responded by saying he had never threatened her. The accused said that Ms Satrazemis made up the threat at the police station because she did not want the accused to take Brendan from the police station.
The accused agreed that he was depressed and upset by the break up, he was angry about not being able to have access to his son and he was jealous that Ms Satrazemis might be pursuing another relationship with the man he knew as “Mav”.
He denied however, ever having threatened Mr Sajewicz although he did confirm that he had telephoned Mr Sajewicz after finding his number in Ms Satrazemis’ mobile phone. He said he simply politely asked Mr Sajewicz to leave his son and Joanna alone and not to text her or email her. In response to that request, the accused said Mr Sajewicz said words to the effect of “I’m going to do what the hell I want or what the fuck I want and I’m going to be the father of Brendan and take care of Joanna…”.
I simply cannot accept the accused’s evidence about how he came to be at War Memorial Drive on the evening of 30 November 2007. Nor do I believe his explanation for why he pulled the trigger of the gun inside of Ms Satrazemis’ vehicle initially and later fired two shots. There are aspects of his account which are inherently improbable, if not incredible, such as his explanation that he chose a spot to kill himself where Ms Satrazemis and Mr Sajewicz just happened to be two car parks away.
I acknowledge however, that rejection of the accused’s evidence does not necessarily lead to the conclusion that he is guilty of any of the offences with which he is charged. He does not have to prove anything. Moreover, he is not to be convicted on the basis of doubtful or insufficient evidence. Before finding him guilty of any offence, I must be satisfied beyond reasonable doubt, that the prosecution has proved each and every element of each charge. If, after my consideration of all the evidence, I cannot reach that state of satisfaction, the accused must be given the benefit of my reasonable doubt and acquitted.
Analysis of the Evidence and Findings of Fact
My assessment of the evidence starts with the common ground between the prosecution and the defence. At the end of the evidence there can be no doubt, and it was not disputed, that on War Memorial Drive the accused pointed a firearm through the window of Ms Satrazemis’ vehicle at the chest or head of Mr Sajewicz, pulled the trigger and the gun failed to fire. There is also no dispute that two shots were fired from the gun a few moments later, however the circumstances in which those shots were discharged from the gun was very much an issue.
The defence have suggested that the prosecution case on both counts of attempted murder is entirely dependent on the evidence of Joanna Satrazemis. Mr Stokes suggested that Ms Satrazemis’ credit was open to serious question by reason of the fact that she told lies about some important matters, including the conversation between her and the accused at the Port Adelaide Police Station earlier on 30 November 2007. Mr Stokes also pointed to her evidence about the circumstances in which she had met up with Mr Sajewicz on that night, the frequency of contact she had with him in the weeks preceding 30 November 2007, her exaggeration about the conflict between her and the accused, and about the alleged threats by the accused to her in the months leading up to 30 November 2007.

At the very least, Mr Stokes submitted that these matters in combination, together with the fact that she was less than frank with the court about some of these matters, reflect seriously on her credibility. In effect the defence have suggested it would be dangerous to rely on the unsupported evidence of Ms Satrazemis to convict the accused of either of the two counts of attempted murder or the alternatives.
I have taken into account all of the criticisms made of Ms Satrazemis. It is true that there is a conflict between Ms Satrazemis’ account of the incident at the Port Adelaide Police Station on the afternoon of 30 November 2007 and the account given by the accused.
Constable Vesey overheard some of the exchange between the pair and heard both of them yelling at each other, but he did not hear any threat uttered by the accused. He heard a reference to an amount of $50,000, but he was unable to say in what particular context he had heard those words. To that extent Constable Vesey’s recollection of the events at the Port Adelaide Police Station lends some support to the accused’s account of what occurred there.
However, that is not the end of the story. Constable Vesey admitted that he had not been asked until over 24 hours later, midway through his next shift, to recall what had transpired on the day previously. It is plain from his evidence that he came in to speak with Ms Satrazemis after she had arrived at the police station, by which time there was already trouble. It was in the light of the impending difficulty that his intervention was sought by the administrative officer.
It is also obvious that both Ms Satrazemis and the accused were at cross purposes on that day as to the events which each thought were going to take place. Ms Satrazemis had no intention of allowing the child to leave the police station. The accused went with his grandmother to the police station believing he could take the child home. The situation from both points of view was volatile, tense and emotional.
I do not doubt that harsh words were exchanged by both the accused and Ms Satrazemis on that day, the totality of which neither could properly recall. I accept that Ms Satrazemis may have made unreasonable demands on the accused, including reference to the sum of $50,000. However, I do not believe that Ms Satrazemis was evasive or consciously lied about this matter and therefore do not accept that this reflects generally on Ms Satrazemis’ credibility.
I am satisfied that the accused did utter a threat to Ms Satrazemis prior to her departure in the vehicle. The fact that Constable Vesey did not hear the threat is neither here nor there in the light of the fact that he was standing some metres away and the accused by that time had his back to Constable Vesey.
There were similar criticisms made of Ms Satrazemis’ account of the frequency of contact she had with Mr Sajewicz in November 2007 and the apparent conflict between the account she gave of the circumstances in which they met up on the night of 30 November 2007 and the account Mr Sajewicz gave. I do not think anything turns on these minor differences. Mr Sajewicz said that after Ms Satrazemis contacted him by email early in November, they had daily email contact, contact by phone or text messaging regularly and met up in person two to three times a week for the rest of the month. Ms Satrazemis on the other hand, said that after she had contacted Mr Sajewicz at the beginning of November, they had regular contact by phone, text messaging and email and met up about five or six times in person.
It is true that Mr Sajewicz’s recollection of the way in which they communicated to arrange the meeting on the Friday night, is different from Ms Satrazemis’. Originally when she made her statement to the police, Ms Satrazemis agreed that she had told them that no arrangement to meet Mr Sajewicz had been made when she set off at about 9.45pm in her car with her son Brendan, to settle him down, as he would not sleep. At the trial she said she had checked her mobile phone bill and realised that that was not accurate, she had made a call five minutes prior to meeting up with Mr Sajewicz at the Convention Centre. She now recollected that she already knew before she set off from the house on the Friday night at about 9.45pm, that Mr Sajewicz was at the Convention Centre and they might meet up.
Whilst it might be fairly said that Ms Satrazemis was defensive about justifying why she was driving about the city at about 9.45pm with a 2 year old child in the car, I can see no reason to disbelieve or doubt Ms Satrazemis on any material aspect of her account of what occurred that night. I accept that she may well have taken the child out in the car for a drive to settle him down, however it was planned that she would see Mr Sajewicz that night. This does not make her unreliable about that topic, or for that matter, any other topic.
In any event, important aspects of Ms Satrazemis’ account of the events that occurred at War Memorial Drive on the night of 30 November 2007 are supported by other evidence, including the evidence of Mr Sajewicz and the evidence located by the police at the scene and in Ms Satrazemis’ vehicle. In this regard, I am referring to the damaged windscreen and projectile found embedded in the passenger side of Ms Satrazemis’ vehicle and to the two spent cartridge cases and the live round found on the roadway some distance away from where Ms Satrazemis’ car had been parked by the University Oval.
Although the exact location of the projectile and the cartridges found on the roadway is not in itself determinative of where the shooter was standing when those items were discharged from the gun, nevertheless their presence on the roadway together with the finding of the projectile in the car, does tend to support the account given by Ms Satrazemis of the accused’s actions at the time when the gun was fired.
The evidence of Ms Satrazemis as to what occurred immediately after the accused pulled the trigger inside the motor vehicle, is at page 96 of the transcript:
A.…After the fight for the keys he stopped and he had moved a few steps closer to the front of my wheel on the driver’s side.
Q.Moving towards the front of the car.
A.That’s correct.
Q.Could you see what he was doing once he was in that location.
A.He had his arm up, with the gun.
Q.When he had his arm up with the gun could you perhaps demonstrate how he was holding his arm at that point.
A.As he moved up he just pointed it and I looked up and saw a white shirt and I realised Marek was at the front of my car. He pointed at him (INDICATES).
MR KIMBER:             Indicating holding the right arm out pointing away from the body and at shoulder height.
HER HONOUR
Q.    Did you say he was pointing the gun at a white shirt.
A.That’s correct. After fighting for the keys I looked up and when he hadn’t moved I didn’t know what had happened, he had just let go of my keys and that’s when he moved two steps forward to the wheel of my car and I looked up and Marek – saw the top, didn’t see Marek’s face but the white top and realised that he was pointing at him.
XN
Q.    Marek was wearing a white top.
A.    A white shirt for the formal.
Q.When you saw the accused holding the gun in the way you have demonstrated to her Honour and pointing at the white shirt, did you hear anything.
A.Another click.
Q.Did the gun go off.
A.No
That evidence is to some extent supported by the evidence of Mr Sajewicz when he said at page 152:
Q.    When you jumped out of the car did you get out of the front passenger side.
A.    Yes.
Q     When you did that, when you first got out of the car, where did you go.
A.    I ran directly towards the cathedral.
Q.Immediately on getting outside of the car did you run, or did you stay by the car for any period of time.
A.    I took two steps and glanced back.
Q.    When you took two steps, in what direction did you take those two steps.
A.    Would have been to the front of the car.
Q.Towards the front of the car, and you said that you glanced back. When you glanced back could you see the man who was holding the gun.
A.Yes.
Q.Where was he at that point.
A.He was moving towards the front of the car.
Q.Towards the front of Ms Satrazemis’s car.
A.Yes.
Q.What side of the car was he on. Was he on the driver’s side still or the passenger side. Tell us about that.
A.He was still on the driver’s side, moving up towards the front of the car.
Q.Could you see the gun.
A.Yes.
Q.What was the man doing with the gun as he moved towards the front of the car and as you glanced back.
A.He was pointing it at me.
Q.What part of you was he pointing it at.
A.Just my body.
At the stage when the shot which impacted with the windscreen of Ms Strazemis’ vehicle was fired, Mr Sajewicz was well away from the area, nevertheless it is obvious that one of the shots he believed he heard as he fled, must have been that shot.
In addition the evidence of Ms Satrazemis about the firing of the shot, which is the subject of count 3, is supported by the evidence of the trajectory of the spent bullet which penetrated the windshield of her car and travelled across to the passenger side. That trajectory is clearly illustrated in photographs 16, 17 and 19 of exhibit P3.
Ms Satrazemis’ evidence about that is found at page 99:
Q.    As you drove towards him could you see the gun.
A.    Yes.
Q.    Did you see what he did with the gun as you drove towards him.
A.    As I drove towards him he lifted up his hand to shoulder length, to shoulder level.
Q.    Could you demonstrate how he held his arm at that point.
WITNESS INDICATES
MR KIMBER:             Again indicating the right arm straight out the front from the shoulder at shoulder height.
XN
Q.    When he did that where was the gun pointing.
A.As I drove towards him I thought I was going to hit him but as I drove past his hand was constantly aiming and following my car and waiting and as I drove past I heard a gunshot.
Q.    How close was the accused to you when that gun went off.
A.    A metre or two.
HER HONOUR
Q.    Was he on the road or on the kerb side.
A.    On the kerbside, it was close distance, very close.
Q.    Did you ever see him on the roadway.
A.No, after he had stopped running and I had reversed I just had seen him facing towards me. He was standing, I don’t recall him walking back.
XN
Q.When the gun went off did the bullet hit anything.
A.My windscreen.
Q.What did you do.
A.I ducked, I tilted my head to the left.
Q.Did you stop or did you keep going.
A.I kept on driving.
The trajectory of the bullet through the motor vehicle also helps to explain why Ms Satrazemis felt it necessary to duck her head to the left as the accused discharged the gun.
In addition, the evidence of the trajectory of the bullet does not provide any support to the account given by the accused as to what occurred at that time. His explanation that the gun accidentally discharged as he jumped out of the way of the oncoming vehicle, is inconsistent with the evidence of Ms Satrazemis and most importantly with the evidence found in the motor vehicle.
Although both Ms Satrazemis and Mr Sajewicz were terrified at the time when these events were unfolding, there is nothing I heard in the evidence which would cause me to doubt the accuracy and truthfulness of their account of the material events which unfolded at War Memorial Drive shortly after they pulled up in Ms Satrazemis’ vehicle that night.
Nor do I consider there is any reason to disbelieve the evidence of the other witnesses who gave evidence including Peter and Diana Pana, Apostolos Satrazemis and Jessica Brooks as to their observations of the accused in the days and weeks leading up to the incident on 30 November 2007. Where the evidence of these witnesses conflicts with the evidence of the accused, I have no hesitation in accepting their version of what happened. In particular, I accept Mr Apolstolos Satrazemis’ account of the conversation he had with the accused in the early evening of 30 November 2007 and the evidence of both Mr and Mrs Pana about the conversation that they had with the accused together and separately on the Wednesday prior to 30 November 2007.
I find that in the weeks leading up to 30 November 2007 the accused was very upset and angry at the breakdown of his relationship with Ms Satrazemis. During that period of time there were verbal altercations between the accused and Ms Satrazemis.
I accept the evidence of Mr Sajewicz about the phone call he received in the week prior to 30 November 2007. I find it was the accused who telephoned Mr Sajewicz and uttered a threat in the terms recounted by Mr Sajewicz. I accept the evidence of Peter and Diana Pana that on the Wednesday prior to Friday 30 November 2007, the accused threatened to kill Joanna Satrazemis.
I find that on 30 November 2007 the accused was in a very angry, upset and emotionally volatile state. He was in possession of a gun, which he obtained from somewhere. The evidence does not enable me to make any finding as to how or from whom the gun was obtained and I do not think it matters, although I reject the accused’s explanation that he obtained the gun from Mr Pana.
I find that the accused followed Ms Satrazemis’ vehicle to War Memorial Drive on the night of 30 November 2007 and deliberately pulled the trigger of the gun while pointing the gun at close range towards Mr Sajewicz’s chest. I reject the accused’s evidence that at the time when he pulled the trigger in the car, the magazine had not yet been loaded into the gun. I am satisfied that the accused believed it was loaded and attempted to fire a shot at that stage.
When the gun failed to fire, I find that he withdrew the gun and a few seconds later, again fired at Mr Sajewicz deliberately as he ran away down War Memorial Drive.
The location of the spent cartridge cases and the live round found on the roadway does not itself enable any conclusion to be reached as to where the accused was when the bullets were fired or discharged from the gun. Nevertheless, against the background of the whole of the evidence, which I accept, I do not consider that there is any other rational view of the facts proved other than that the accused, when he fired the shot at Mr Sajewicz as he ran away, intended to kill him.
I find that when the accused fired the shot, which resulted in the projectile becoming embedded in the front passenger side of Ms Satrazemis’ vehicle, he did so deliberately and with intention at that moment, to kill Ms Satrazemis. Once again, having regard to the evidence of the trajectory of the bullet and the whole of the evidence leading up to that evening which I accept, I consider that the only rational inference from the proven facts is, that when the accused fired the shot in the direction of Ms Satrazemis’ vehicle, he deliberately shot at her with intent to kill her.
I accept the evidence of Mr Sajewicz and Ms Satrezemis as to the accused’s actions in the car. In particular I am satisfied that the accused did not speak until after pulling the trigger of the gun. That evidence is strongly indicative of the accused’s intention to kill Mr Sajewicz as he ran away only a few moments later.
The fact that he may have quickly regretted his actions, is not to the point. In this regard I do not consider his remark to Peter Pana later that night to the effect that “I shot at Joanna and I don’t know if I’ve killed her”, is determinative one way or another, as to his intention earlier that night. However, I do not consider his later remarks to Peter Pana, to be consistent with the accused’s explanation of the accidental discharge of the gun.
I am satisfied that the prosecution has proved beyond reasonable doubt that the accused deliberately shot at both Mr Sajewicz and Ms Satrazemis with intent to kill. I am therefore satisfied that the prosecution have proved beyond reasonable doubt count 1 and count 3 on the information. I find the accused guilty of the attempted murder of Marek Sajewicz and Joanna Satrazemis.