R v Alavija No. Sccrm-7-98 Judgment No. S6744

[1998] SASC 6744

R  v  ALAVIJA

Court of Criminal Appeal
Coram: Doyle CJ, Millhouse and Nyland JJ

Nyland J

This is an appeal against a conviction for murder.  On 27 September 1994 the appellant was found guilty by verdict of the jury that on 14 July 1993 at Coober Pedy he murdered Anne Neumann.  By application dated 11 December 1997, the appellant sought leave to appeal on the following grounds:

1.     That the learned judge erred in law by not leaving the alternative verdict of manslaughter to the jury, and

2.     In the light of fresh evidence relating to a key witness for the prosecution (Batzalis) the verdict of the jury was unsafe.

An extension of time within which to appeal and leave to appeal was given with respect to Ground 2.  Leave to appeal on Ground 1 was refused.  The appellant subsequently applied to the Full Court for leave with respect to Ground 1.  The application was considered in private, pursuant to Rule 15(7) of the Supreme Court Criminal Appeal Rules by Cox, Matheson and Debelle JJ.  On 3 April 1998, the Court refused leave.

The Fresh Evidence

The second ground of appeal raises the issue of fresh evidence.  This arises in relation to the prosecution witness Batzalis.  The particulars of the fresh evidence are set out in the Notice of Appeal as follows:

“15.4.1     Prior to July 1993, Batzalis had only minor convictions.

15.4.2       In October 1993 he was convicted of threats to cause harm.  He was also convicted of two counts of assault occasioning actual bodily harm.

15.4.3       In November 1995 he was convicted on a number of counts including unlawful wounding and assault occasioning actual bodily harm.

15.4.4       In December 1995 he was transferred to James Nash House.  Somewhere about that time he was examined by Dr Raeside who formed the view he was suffering from a psychiatric disorder similar to schizophrenia.

15.4.5       He is currently in a secure custody in the Mt Gambier prison and is due to be released on parole on 27th October 1997 (which presumably has occurred).

15.4.6       In Dr Raeside’s report, there is apparently reference to violent behaviour by Batzalis whilst in custody.  There is also reference to a comment about him by a relative that his behaviour changed noticeably after July 1994.

15.4.7       In 1990 Batzalis suffered head injuries in a vehicle accident.”

On the hearing of the application for leave, the appellant’s solicitor filed an affidavit to which was exhibited a report of Dr Craig Raeside.  Dr Raeside is a psychiatrist employed by the South Australian Mental Health Service as a consultant forensic psychiatrist.  He is based at James Nash House, the State psychiatric inpatient unit for prisoners.  The report is dated 7 March 1996 and is addressed to Mr Robert Wyatt, a solicitor acting for Batzalis in relation to other matters.  Dr Raeside subsequently gave evidence before this court and the report became Exhibit 1. 

The Evidence of Dr Raeside

Dr Raeside first saw Batzalis at the Adelaide Remand Centre on 5 December 1995 at the request of Batzalis’ solicitor.  Batzalis had just assaulted a nurse during a medication round by pouring boiling water over her.  Dr Raeside determined that Batzalis was unwell and had him transferred to James Nash House.  Dr Raeside considered that he was psychotic on admission.  He described him as “thought disordered”.  His thoughts and conversations were marked by paranoid delusions.  He described hearing “clicking noises” in his head.  Dr Raeside eventually diagnosed Batzalis as suffering from a psychotic disorder due to a head injury which he had sustained in a motor vehicle accident in which he had been involved in November 1990.  Dr Raeside said that he had “an organic brain damage, principally frontal lobe disorder and disturbance of his right hemisphere function, that is the frontal lobes in the front of the head, and also on the right side of the brain” (Tr 18).  This was not something that would be instantaneous in effect but

“The typical course would be that the damage inflicted at the time of injury would produce the disturbance in brain functioning that would affect such things as memory, speech, possibly all those other day-to-day brain function issues.  What can happen then is over a period of time due to that, two things happen:  One is an underlying damage which can then slowly evolve and then finally produce a clinical manifestation of the damage which, maybe certainly years later, can be weeks later, but not necessarily instantaneous ... the other factor ... the person ... begin[s] to perceive things around them incorrectly and may then, almost as a rolling stone, gather increasing evidence, perhaps falsely perceived that then contributes to the development of the psychotic illness.” (Tr 18, 19)

In broad terms he described the result in Batzalis as being impulsivity and aggression.  Dr Raeside described a further act of violent behaviour by Batzalis on 16 December 1995, approximately three days after he had an EEG, when he had, “in an unprovoked way, assaulted a fellow patient”.  On 29 December 1995, another incident occurred in which Batzalis assaulted a patient.

Batzalis was discharged from James Nash House on 28 February 1996.  He was re-admitted on 9 January 1997 to 15 January 1997 and again from 28 January 1997 to 31 January 1997.  Dr Raeside said that the admission from 9 to 15 January 1997 was arranged while Batzalis was at Mount Gambier prison and was arranged as a period of respite because he was becoming stressed in gaol.  The last admission was only a few days after he was returned to Mount Gambier, after he had been noted as being aggressive.  He had destroyed electrical equipment and his clothes and had attempted to set fire to his cell.

Dr Raeside agreed that in general terms over the period 1995 to 1997, Batzalis exhibited unpredictable and violent behaviour a number of times.  In 1997, at the time of providing information to the Parole Board, Dr Raeside considered that he was potentially dangerous but he could not see any reason why he should not be paroled.

Dr Raeside said that when he saw Batzalis in 1995 he thought he had been psychotic for some time.  He thought that in 1993 he would have been capable of impulsive and violent behaviour.  He thought that the pathological condition was present in 1993 which would have disturbed his ability to control his violent behaviour.  He agreed that he would have been capable during the previous five years of being intimidatory towards others in some degree or other but could not say to what extent.  When asked to express an opinion on Batzalis’ general reliability as a witness in 1993, Dr Raeside said:

........ “I think the first thing is that he is obviously capable of telling the truth.  I don’t think he is deprived of the ability to tell the truth.  His psychiatric condition isn’t of such severity that he can’t distinguish right from wrong and, as I indicated in my report, I believe that at the time, despite being unwell, he was fit to plead regarding his own matters.  However, given the severity of his underlying brain damage, the severity of his psychotic symptoms, I would express an opinion that considerable caution should be used in accepting anything he says on face value.”  (Tr 32)

Dr Raeside agreed with Mr Rofe QC, that he could only speculate about how the psychotic disorder may have affected him through 1993, and that he, to some extent, had to rely on other persons.  In this case he had relied upon Batzalis’ sister, Irene, who had told him that Batzalis’ personality had changed, seeming to have increased over the last year after his involvement as a witness in a murder trial.  Dr Raeside did not think there was any association with the psychotic illness, or even organic brain damage, that typically caused someone such as Batzalis to lie.  A person with a psychotic illness was not necessarily unreliable in what he/she said or did but one would need to exercise more caution because of the nature of the psychotic illness and the propensity of someone suffering therefrom, to misperceive things that had been said or heard due to disorganisation in thinking.  It would be critical to try to corroborate what such a person said.  Dr Raeside said that if a person suffering such an illness made a statement which a number of other people confirmed was the case, then what that person said would have reliability despite the severity of the psychosis.

The evidence of Mr J Bell

Mr John Bell, a clinical psychologist, also gave evidence before this court.  On 6 December 1997, at the request of the secretary of the Parole Board, he conducted a neuropsychological assessment of Batzalis.  He subsequently prepared a report dated 11 November 1997, which was submitted to the Parole Board.  That report was admitted as Exhibit 5.  In his report, he said:

“Mr Batzalis was found to have largely intact verbal functions including verbal memory.  He is clearly seen to have frontal lobe deficits and visual memory deficits.  These symptoms are consistent with an organic disorder localised in the frontal lobes and some right hemisphere functions.  The consistency of these results with those from 1995 unfortunately indicate that they are permanent in nature, and that there is limited prospect of significant cognitive recovery.  The role of the frontal lobes as mentioned above is likely to mean continued disinhibition when faced with provoking situations, particularly if under stress (especially inter-personal conflict) or the influence of alcohol.

The origin of this impairment is likely to be the Closed Head Injury sustained in the road traffic accident (RTA) in 1990.  This is consistent with his family’s statements, reported in his Forensic inpatient notes, describing Mr Batzalis as having changed behaviourally and in personality after the RTA.”

Mr Bell was unable to express an opinion as to Batzalis’ behaviour from 1990 to 1995 but said that he “could only echo Dr Raeside’s development of the hypothesis that there may well have been an increasing intensity of symptoms because, as my opinion outlines, it is my opinion that his disorder is organic in nature” (Tr 59).  He was asked if he could elaborate on what Dr Raeside had said concerning the ability of Batzalis to give a truthful and reliable account and he said:

“... given that his visual memory was only mildly or moderately impaired, and that his verbal memory seemed to be largely intact on testing, that he was capable of, on the basis of the neuropsychological functioning, giving an accurate account.”  (Tr 60)

Batzalis’ offender history record

The affidavit of Briony Nola Kennewell was admitted before this court as Exhibit 6.  Ms Kennewell is a legal practitioner employed by the office of the Director of Public Prosecutions.  BNK1 annexed to that affidavit is a copy of Batzalis’ Offender History Summary Report which was sent to the appellant’s solicitor under cover of letter dated 3 February 1994. 

The offender history record disclosed a history of offences commencing from 28 September 1987 when Batzalis was fined $50 for an offence of disorderly behaviour.  He was also fined for a number of other offences, such as, possess cannabis, disorderly behaviour, hinder police and loitering.

On 7 March 1990, on a charge of building breaking and felony, he was sentenced to imprisonment for nine months, which was suspended on a bond of $500 to be of good behaviour for two years.

On 13 October 1993, he was convicted of a number of offences which included threatening to cause harm, disorderly behaviour and some traffic offences.  In addition, on two charges of assault occasioning actual bodily harm, he was sentenced to imprisonment for 16 months, suspended on a bond of $50 to be of good behaviour for two years, together with a community service order.

Subsequent to the trial of this matter, Batzalis was convicted of some further offences.  In particular, on 24 April 1996, he appeared in the Elizabeth Magistrates Court charged with a series of offences which included a number of driving and minor drug offences for which he received fines.  A term of imprisonment was imposed with respect to four charges of assault occasioning actual bodily harm, one charge of assaulting police, two charges of unlawful wounding and one charge of common assault.  There was also a sentence of imprisonment in respect of a charge of stealing or severing precious stones from a mine and damaging property.  He was sentenced to a total head sentence of five years and two months with a non-parole period of two years.

BNK2 consists of a bundle of apprehension reports.  It includes: a Police Incident Report relating to a charge of threatening another person with a firearm on 19 August 1993 at Coober Pedy; an apprehension report relating to offences on 16 July 1991 of hinder police, resist arrest and carry offensive weapon; a statement of a police officer relating to those matters; an apprehension report with respect to a charge of possess amphetamine on 16 July 1991 and advice as to discontinuance of prosecution dated 28 January 1992; three certificates from the Drug Assessment and Aid Panel relating to the withdrawal of the information dated 3 January 1991 and 14 January 1991 respectively; an apprehension report dated 16 January 1990, relating to obtaining petrol without paying for it; an apprehension report dated 1 July 1987 relating to a charge of disorderly behaviour; an apprehension report dated 28 March 1988 with respect to charges of workshop breaking, larceny and unlawful possession; an apprehension report dated 21 December 1988 with respect to charges of disorderly behaviour, drive unregistered, uninsured and unlicensed; an apprehension report dated 22 May 1988, charges of hinder police, fail to cease loiter and resist arrest.  Those documents were forwarded to the appellant’s solicitors under cover of a letter dated 12 July 1994. 

BNK3 consists of two apprehension reports.  The first relates to a charge of assault occasioning actual bodily harm on 28 November 1992.  This arose out of a scuffle in the bar of the Opal Inn at Coober Pedy in which Batzalis had thrown a glass at another customer at the hotel causing an injury which required medical treatment.  The second apprehension report relates to a charge of threatening to cause harm, the offence having been reported on about 18 August 1993.  The victim in this matter is described as Bill Nagy who complained that between 1 March 1993 and 12 August 1993, he had been told by Batzalis that he was going to cut his throat.  This had occurred on two occasions on 11 August 1993.  These documents were handed to the appellant’s solicitor on the first day of the trial, that is 13 September 1994.

It is now necessary to consider the relevance of these matters to the evidence Batzalis gave at trial in support of the prosecution case.

The Prosecution Case at Trial

There was no real dispute at trial that the offence of murder had been committed.  The issue for the jury centred on proof that the appellant was the person responsible for Ms Neumann’s death.

Anne Neumann was a German tourist in Australia on a back-packing holiday.  On Wednesday 14 July 1993, Ms Neumann travelled by bus from Alice Springs to Coober Pedy.  She arrived in Coober Pedy some time just before 7 pm.  She was travelling alone.  She was met at the bus by a person from the Opal Cave.  She had arranged to stay in a section of the Opal Cave called Bedrock, which is budget accommodation.  At about 9 pm she went for a walk up the main street of Coober Pedy, which is Hutchison Street.  Hutchison Street runs roughly north/south.  The main part of the town with the shops and restaurants is south of Bedrock.

South of Bedrock on the same side of the street is a large vacant area which is next to Coober Pedy’s five star motel, the Desert Cave.  In that area, close to the street, is the biggest tree in Coober Pedy, which is a popular meeting spot for local young people.  The area is known as “the tree”.  This night there were a number of people at the tree at various times.  The appellant was there, having driven there in his white Valiant.  Also in the group were two friends of the appellant, namely Mark Zelenko and a man called Paul Koutsouliotas.  Koutsouliotas drove a white Ford Fairlane.  The appellant got into the Fairlane with the others.

Ms Neumann, on her walk, crossed the road and walked past the three on the other side of the road going south.  She apparently attracted attention because of her long legs and tight leggings.  There was wolf whistling and the like and the Ford Fairlane with Zelenko driving, drove up and followed Ms Neumann at a walking pace and the appellant spoke to her through the window.  Shortly after that the appellant got out of the car and for a time was on foot.  A number of people observed him and Ms Neumann walking together and talking at the southern end of the main street.  They presumably walked back to the tree as they were subsequently seen together at the tree, standing near the appellant’s car.  A number of people saw them together including some young men who were in a car across the road.  They saw Ms Neumann get into the front of the appellant’s car.  The appellant then drove off with her in a northerly direction.  This was the last sighting of Ms Neumann.  Workers at Bedrock later observed that Ms Neumann’s room had not been slept in on the Thursday or Friday and her rucksack had not been moved.  They contacted the police.

The appellant, on the following Sunday, admitted to police that he had a brief conversation with Ms Neumann at the southern end of the town and that she subsequently got into his car.  He said he was going to take her for a cruise.  He said that he “looked at her and touched her on the leg and she said something like ‘I’m not like that, let me out’”.  He said he stopped and she got out of the car by the old Blue Marlin restaurant.  He did not see where she then went.  He said he drove home and arrived there between 10.30 and a quarter to 11.  He had something to eat and then went to a party at Jason Laidlaw’s place.

Shortly after the appellant drove off with Ms Neumann.  Koutsouliotas and Zelenko went back to the tree.  A girl by the name of Alicia McPharlin got into Koutsouliotas’ Fairlane.  Joanne Richards and Jason Laidlaw lived together in a dugout next to Koutsouliotas.  Richards and Laidlaw had been out to dinner and were on their way home.  They wanted to have a drink and invited Zelenko, Koutsouliotas and Ms McPharlin to join them.  They all went back to the Laidlaw dugout for a drink and were there joined by Batzalis.  Batzalis shared the next-door dugout with Koutsouliotas.  He had not been in town with the others.  He had slept virtually all day and only got up when the others arrived home.  He then joined then for a drink.  At the dugout, Koutsouliotas flaked out because he had a lot to drink.  Batzalis eventually drove Ms McPharlin back into town to pick up her car and he then returned to the dugout. 

At about midnight, Zelenko and Batzalis decided that they would go to drink in town at a restaurant called Tom and Mary’s which is at the southern end of Hutchinson Street.  Just as they were leaving, the appellant arrived at the dugout in his car.  Zelenko and Batzalis told him where they were going and all three then went to Tom and Mary’s, the appellant driving his car, and Zelenko and Batzalis in Koutsouliotas’ Ford Fairlane.  All three went into Tom and Mary’s where they had several rounds of drinks.  The appellant was unemployed but the girl who served them at the restaurant noticed that he paid for several rounds with $50 notes.  The evidence at the trial established that Ms Neumann probably had somewhere between $500 and $1,000 cash on her at the time of her death.  At the restaurant, the main conversation was between Zelenko and the appellant although Batzalis was sitting at the same table.  According to Zelenko, the appellant said to him “I’ll freak you out” and “She’s in the shaft”.  Zelenko said that when this was said, Batzalis was leaning in the chair away from them.  Zelenko said that he asked the appellant “What do you mean, freak me out?  Why?” and the appellant then started talking about nightshifting, that is, going into someone else’s claim to steal their opal.  Zelenko said he claimed he was too drunk to go nightshifting but the appellant persisted and eventually he agreed.  Zelenko said that the three of them eventually left the restaurant and went to the dugout of Andy Cucuk to borrow some equipment.  They drove there in the Fairlane.  Zelenko went into Cucuk’s place and asked for some equipment including a winch.  Cucuk was not prepared to help them so they drove back to town and dropped the appellant off at his car.  Zelenko said that when they got back to his car, the appellant drew their attention to the passenger side front of the car.  Zelenko said he saw “small like rain drops of blood, what looked like red”. Zelenko said that they then went back to Koutsouliotas’ place.  Batzalis and Zelenko were still in the Fairlane and the appellant drove his own car.  They then collected some equipment belonging to Batzalis which Laidlaw had been using.  This included a generator, a winch, pole, ladders and a lead for a light.  The equipment was put in the appellant’s car.  Laidlaw, in evidence, confirmed that the three men came to his place and he saw the equipment placed in the boot of the appellant’s car and the three men leave together.  Joanne Richards also saw the three men loading the equipment into the appellant’s car. 

Zelenko said they drove in the appellant’s car to an area known as Olympic Field.  The appellant stopped near a shaft.  Batzalis was told to go to a nearby mine to get some rope which was needed.  Zelenko said he looked down the shaft but could see nothing but flat earth.  The appellant went down the shaft with a shovel.  He had the light.  He was using the generator as the power source using an ordinary globe.  When he was down the shaft the light globe broke and the light went out.  The appellant came back up.  According to Zelenko the appellant then started to threaten him and told him harm would come to his family.  Zelenko said he told the appellant he did not believe him when he said “She’s in the shaft”, whereupon the appellant showed him what appeared to be blood on the ground near the shaft.  They then packed everything up and they returned to the dugout occupied by Batzalis and Koutsouliotas where all three slept the night.  When they got back to the dugout, Zelenko said the appellant made a remark about “wasting her for $600”.

Batzalis said that he had slept most of Wednesday.  At about 10 pm he saw Jason and Joanne return to their dugout and shortly after Zelenko and Koutsouliotas arrived with Ms McPharlin.  Inside they were all drinking.  Koutsouliotas fell asleep and Koutsouliotas took Ms McPharlin back to her car.  Batzalis was adamant that the appellant was not with the group drinking in the dugout.  Batzalis said that he and Zelenko decided to go to town to have a drink and they saw the appellant outside at the bottom of the road.  The three went back to town.  Batzalis said that at Tom and Mary’s the appellant and Zelenko were talking about something on their own.  Batzalis was at the same table but could not hear everything.  Eventually Zelenko asked Batzalis if he could get a winch.  Zelenko and the appellant were talking about wanting to check a shaft.  The appellant said something about “a freak out” to Zelenko and Zelenko replied “You couldn’t freak me out”.  There was further discussion about equipment and they left the restaurant.  Batzalis said the appellant said to Zelenko “there’s blood on the bonnet” and they then went in Koutsouliotas’ car to Cucuk’s place.  Batzalis said that when they returned to the appellant’s car he saw red marks on the bonnet and he described the car as dirty.  They then went in separate cars to Batzalis’ place and after they collected the equipment they drove off to the shaft.  Batzalis said that he went off to urinate.  When he returned, Zelenko was urging to the appellant to tell him something but the appellant refused.

Batzalis said he was then sent to get some rope.  The appellant went down the shaft.  Batzalis said he could not see anything in the shaft.  The light went off.  The appellant came back up the shaft and Batzalis started to freak out and said “What the fuck’s going on out here?”  Batzalis said the appellant then went for him with the shovel.  No contact was made.  Batzalis stopped yelling and the appellant put down the shovel.  The appellant then said to Zelenko “Come over here, I want to show you something”.  Batzalis said they called him over.  Zelenko said “There’s blood here” and Batzalis looked down and saw a patch of blood.  Batzalis said at that stage the appellant said to him and Zelenko that he had killed someone.  They then got back in the car.  Batzalis said he became upset and said “What about our footprints etc” and the appellant was looking back and laughing like it was a joke.  Batzalis said the appellant threatened him and his family.  They returned to the dugout.  Batzalis said he woke Laidlaw up.  Batzalis could not remember anything else in the dugout and he eventually went to sleep.

Koutsouliotas told the court that the following morning he saw the appellant take some ladders and a pole out of the boot of his car.  Laidlaw said he had a conversation with the appellant that morning and the appellant asked him not to mention anything about the generator on the previous night. 

The police were notified of Ms Neumann’s apparent disappearance on the Friday.  On the Sunday, Detectives from Adelaide went to Coober Pedy and made enquiries.  The appellant was spoken to and signed a statement.  He maintained that he had not seen Ms Neumann after she had got out of his car.  The appellant was again interviewed by the police on the Tuesday.  He told them that he had been to the party at Richards and Laidlaw’s dugout.  In his interview with the police, the appellant spoke of drinking at Tom and Mary’s with the others and then going back to the Batzalis’ dugout to sleep the night.  He did not make any mention of his visit with them to the opal fields.  Richards said, however, that the appellant was not in the dugout at all that night.  Laidlaw said that the appellant was not at the party.  He saw the appellant’s car pull up as Zelenko and Batzalis left to go into town.

Zelenko was interviewed by the police on a number of occasions, the first being on 18 July 1993 when he was asked about his movements.  At that time he said nothing about going out to the opal fields.  On 20 July 1993, he did not mention Olympic Field and said he knew nothing about the missing tourist.  On 3 September 1993, he said he told the police everything he knew and on 29 September 1993, he mentioned the $600 for the first time. 

Zelenko, in evidence, also described some strange behaviour by the appellant which included putting blood around his house and taking hairs, but none of this was mentioned to the police until 19 November 1993.  Zelenko said he had changed his attitude to police enquiries once the body was found.  Before that he was scared of the appellant and thought he would be blamed.

Batzalis admitted telling lies to the police on the first two occasions that he spoke to them.  Batzalis said he was scared of the appellant and mentioned threats that had been made.  Eventually, he and Zelenko spoke to a friend called Danny and showed him the shaft.  A few days later, in early September 1993, Zelenko and Batzalis took the police to the shaft where Ms Neumann’s body was found.  The body was covered with about two feet of dirt.  The clothing was in disarray.  Her bumbag, passport and personal papers were found amongst the dirt, but no money.  The state of decomposition of the body indicated that it had been there for approximately two months.  There were a number of injuries but the pathologist was unable to say whether the injuries caused her death or whether she died of asphyxiation.  It also appeared that the body had been subjected to a sexual assault.  Included in the items found was a little metal top of a disposable cigarette lighter of the same brand as a metal top found in the appellant’s car and a piece of Lego similar to some found in the appellant’s house.  Broken pieces of light bulb were found in the dirt covering the body.

Richards gave evidence about a conversation at Batzalis’ dugout with Zelenko, Koutsouliotas, Laidlaw, Batzalis, the appellant and herself.  Batzalis said to tell the police that the appellant was there when they had the party.  She said she got the impression this was to prevent themselves being framed.  She thought this conversation took place on the Thursday night following the murder.

The appellant did not give evidence.  His sister and stepmother gave evidence which essentially supported the appellant’s statements to the police that he returned home some time before 10.30 pm. 

In his summing up, the trial judge described Batzalis and Zelenko as key witnesses for the prosecution.  He directed the jury that they should scrutinise their evidence with great care.  He said:

“Well, ladies and gentlemen, your assessment of these two young men, Zelenko and Batzalis, is an important, indeed vital, function for you in this case.  The Crown case does rely heavily on this evidence, although Mr Jennings has stressed the evidence which supports their versions.

You have heard the submissions made by both the prosecution and the defence and I ask you to take those submissions into account.  You have heard from Mr. David that there may have been a motive for implicating the accused and they may be covering up for themselves.  You have also heard from Richards, who told you about this group discussion.  You know that on the versions given by Zelenko and Batzalis, they did mislead the police for a time and you heard them give reasons for that.

In the light of all this, you will scrutinise the evidence of Zelenko and Batzalis, and I would include Laidlaw, Richards and Koutsouliotas in this group, with considerable care and act upon the evidence of any one of them only after exercising that care.

If, after considering the evidence of any one of these people carefully, you are convinced beyond reasonable doubt that the witness is giving evidence which is truthful and accurate, then you may take it into account.  Of course, you may not be satisfied that everything they say is accurate, but before using any part of their evidence, you must be satisfied of the reliability of that evidence beyond reasonable doubt.”

And later in the summing up the judge again said:

“I remind you that you are to exercise considerable care when assessing the evidence of the witnesses Batzalis, Laidlaw, Richards, Koutsouliotas and Zelenko.  You are entitled to assess the evidence of each of them in the light of the evidence generally, but you will not use the evidence of any of them against the accused unless you are satisfied beyond reasonable doubt of its essential elements.”

The Argument on Appeal

Mr Borick who appeared for the appellant on the hearing of the appeal, submitted that, at the time of the trial, the defence had no way of knowing that Batzalis was suffering from a serious mental disorder.  If they had, evidence would have been led with respect to that matter.  If the jury had been aware of that mental disorder, his violent behaviour and his ability to terrify others they may not only have been less likely to regard him as a reliable witness but also would have understood why Zelenko appeared to support him.

It is well established that medical evidence is admissible to show that a witness suffers from disease or defect or abnormality of the mind if it affects the reliability of his evidence.  In Bromley v R[1], Brennan J said (at 322):

[1] (1986) 161 CLR 315

“The admissibility of the evidence of  person suffering from a mental disorder which affects his capacity to observe, recollect and express the matters which his evidence is tendered to prove is a question for the trial judge:  see Sinclair v The King[2].  Though his evidence is admitted (whether over objection or not), other evidence showing that his capacity to observe, to recollect, or to express is impaired by mental disorder may be called before the jury, for it is relevant to the weight to be given to his evidence:  Toohey v Metropolitan Police Commissioner[3]; Reg v Dunning[4]; Wigmore on Evidence, vol II, par 497(c).  Admission of the impeaching evidence is one of the recognized exceptions to the general rule against calling witnesses to contradict a witness on collateral matters:  Archbold, Pleading, Evidence and Practice in Criminal Cases, 42nd ed (1985), par 4-336, p420.”

[2] (1946) 73 CLR 316 at 333

[3] [1965] AC 595 at 608

[4]      [1965] CrimLR 372

Mr Rofe submitted in this case, however, that the evidence of Dr Raeside as to Batzalis’ medical condition in 1993 and 1994 was only a matter of speculation and, in any event, the opinion he expressed was not such as to affect the reliability of Batzalis as a witness.  The evidence therefore would not be admissible.  In particular, it would not be sufficient simply to prove that Batzalis was prone to impulsive violence or that he was regarded as very dangerous.  In any event, at the time of the trial in September 1994, the defence had some knowledge of Batzalis’ propensity for violence as they had been provided with his criminal history which disclosed convictions for threatening to cause harm and assault occasioning actual bodily harm.  The defence, however, chose not to cross-examine Batzalis as to his criminal history.  Mr Rofe submitted that the offending of the witness since the trial was no more than a continuation of the type of behaviour of which the defence at trial was aware and the further offences committed by Batzalis could not be categorised as fresh evidence.

The principles relevant to fresh evidence have been discussed in a number of cases, in particular in Gallagher v The Queen[5].  The principles emerging from these authorities are conveniently summarised by Duggan J in a judgment (with which Legoe and Mohr JJ agreed) in Winslett v The Queen[6] as follows:

[5] (1986) 160 CLR 392

[6] (1992) 60 SASR 1 at 3

“The principles relevant to ‘fresh evidence’ applications have been discussed in a number of cases.  The considerations relevant to the present case would seem to be these:

1...... The appellate court has a responsibility to examine the probative value of the fresh evidence: Gallagher v The Queen (1986) 160 CLR 392, per Mason and Deane JJ (at 402).

2...... The principal function of the appellate court is to decide whether a miscarriage of justice has taken place because evidence now available was not led at the trial: Re Van Beelen (1974) 9 SASR 163 (at 193).

3...... The conviction will not usually be set aside if the evidence relied upon could, with reasonable diligence, have been produced by the appellant at the trial: Gallagher (supra at 395). However this is not a universal and inflexible requirement: the evidence may be so significant in some cases that interference with the verdict will be appropriate in any event.

4...... The evidence must have cogency and plausibility as well as relevancy: Craig v The King (1933) 49 CLR 429 (at 439).

5...... Differing views have been expressed as to the test to be applied in deciding whether to set aside a conviction.  In Mickelberg v The Queen (1989) 167 CLR 259, Mason CJ (at 274) said the proper question is ‘whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial’. The learned Chief Justice stated that this was the view of four of the five Justices in Gallagher.  In his judgment in Mickelberg (supra) Brennan J said (at 275):

‘The formulation which, in my respectful opinion, was settled by this Court in Ratten v The Queen (1974) 131 CLR 510 (at 519, 528), and in Lawless v The Queen (1979) 142 CLR 659 (at 666, 670, 677, 686), is whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused. That was the formulation to which I adhered in Gallagher (at 409-410). The test has sometimes been expressed not in terms of “likely” but in terms of “might” Stafford v Director of Public Prosecutions [1974] AC 878 (at 893, 907, 912), Gallagher (at 399, 421) or in terms of “significant possibility” Gallagher (at 402). Although I agree with Toohey and Gaudron JJ that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the “likely” formula remains.’

Deane J favoured the ‘significant possibility’ test.  Toohey and Gaudron JJ did not express a preference for one test over another in their joint judgment.

There is much to be said, with respect, for the view expressed by King CJ in R v McIntee (1985) 38 SASR 432 (at 435) that:

‘The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice.  I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.’

This statement  was adopted by Gibbs CJ in Gallagher (at 395) and is in keeping with the view expressed by this Court in Re Van Beelen (at 183) that:

‘In answering the question, the Court will be largely guided by working rules developed for use in the ordinary and general run of cases, but will not be deterred, by the apparent limits of those rules, from treating the passage in s353 [Criminal Law Consolidation Act 1935] “... or that on any ground there was a miscarriage of justice ...” as embodying the cardinal principle.’

The relevance of these comments was reinforced by Gibbs CJ in Gallagher (at 399):

‘No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.  It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.’”

More recently, the issue was considered by the Court of Criminal Appeal in R v Reci[7].  In that case, after referring to the dicta of the various judges in Gallagher, the Chief Justice went on to say (at 25):

[7]      (Doyle CJ, 1 December 1997, S6454, unreported)

“The court must consider the circumstances under which it came about that the evidence was not led at the trial. All sorts of factors can result in evidence not being led at a trial. A court of appeal cannot lightly allow a verdict to be set aside simply because relevant evidence was not adduced at trial. To do so would be quite impractical.  It is not possible to state the relevant principle with precision, but I am content to adopt the following passage from the judgment of the Full Court of the Supreme Court of Victoria in Re Ratten [1974] VR 201 (at 214):

‘In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present, or which he would have desired to present had he not been prevented by such causes from being aware of its existence or its significance, then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice.’”

Clark[8] and Edwards[9] are examples of cases in which fresh evidence was permitted as to a later diagnosed medical condition which reflected upon the reliability and credibility of a principal prosecution witness.

[8] (1993) 171 LSJS 133

[9] 20 ACrimR 463

In Clark, the victim was diagnosed as suffering from an anti-social personality disorder which manifested in a chronic inclination to lie.  Expert evidence confirmed that the witness was suffering from that condition at the time she made the allegations against the accused.

In Edwards, a principal Crown witness in later proceedings was diagnosed as suffering from a severe immature histrionic personality disorder which could affect his reliability and veracity as a witness.  There was positive evidence that that condition existed at the date of giving evidence.

That is not the status of the evidence in the present case.  Dr Raeside is unable to say with any precision whether injury suffered by Batzalis in the 1990 accident had manifested in any significant way at the time of the murder or at the trial, apart from considering that Batzalis would have been capable of impulsive and violent behaviour.  If Dr Raeside were to give evidence limited to what was known in 1993, he would not be able to provide much more information than what was known to the defence at trial, that is, that Batzalis was a man prone to violent behaviour as shown by the convictions for threatening to cause harm and assault occasioning actual bodily harm.  If Dr Raeside’s evidence were to include the evidence of events subsequent to the trial, I do not think the matter is much further advanced.  Dr Raeside is able to be more confident in reaching a conclusion as to Batzalis’ condition as a result of the subsequent history, which includes the commission of further offences of a violent nature, but the conclusion remains the same, that is, that Batzalis is suffering from a condition which manifests in impulsivity and aggressive behaviour which can be related back to the 1990 motor vehicle accident. I do not think that the evidence of Dr Raeside significantly adds to the information available to the defence at trial from the police reports other than providing a possible explanation for his behaviour.  Batzalis’ capacity to be violent was touched on by the defence in any event, as he was cross-examined, by reference to his association with the bikie gang, the Warlords, and his habit of carrying a knife with him.

But, unlike Edwards and Clark this is not a condition which would necessarily affect Batzalis’ credibility as a witness.  As Dr Raeside said, with a condition such as this, it would be necessary to look at what others had to say.

In this case, Zelenko, a longstanding friend of the appellant, was the principal witness as to the events of that night.  Batzalis supported what Zelenko said about the sequence of events.

The evidence of Zelenko and Batzalis as to the obtaining of the equipment for the trip to the opal fields is supported by Laidlaw and Richards.  Koutsouliotas’ evidence that he saw the appellant unloading the equipment next morning also supports their evidence.  Zelenko, Batzalis, Laidlaw and Richards all said in evidence at the trial that the appellant was not at the party in the dugout that night.

Batzalis’ evidence therefore does not stand alone.  The evidence of all of these witnesses contrasts with the lack of any mention by the appellant to the police of the trip to the opal field and his statement that he was present at the party.  If, as appears to be the suggestion, Batzalis has not told the truth about these matters to conceal his own activities that night, it would have been necessary for him to maintain a consistent story and, at the same time, involve the other four witnesses in concocting and maintaining a false story in court in order to implicate the appellant. 

The evidence of Dr Raeside does not support the thesis that Batzalis was the real killer.  The most it could do would be to support the argument that he had threatened the others so that they lied to cover up for him.  The police reports however provided sufficient information to enable the defence to suggest that to the witnesses  at the trial but they refrained from so doing.  The medical evidence does not appear to add to that aspect of the case.  The defence at trial submitted that the witnesses might be covering up for themselves and the trial judge reminded the jury of that matter.  The defence chose not to rely upon the evidence of the offences then known to them.  Dr Raeside’s opinion is that Batzalis suffers from a condition that affects his reliability but does not make him completely unreliable.  He said that it would be critical to try to corroborate  what he said.  In this case, as previously mentioned, essential parts of his evidence were supported by other witnesses. If Dr Raeside’s evidence had been available at the time of the trial the judge would have been obliged to give some emphasis to that evidence in the warning given to the jury relating to Batzalis.  But he gave a very strong warning about Batzalis in any event.  There may be some doubts about the admissibility of the evidence of Dr Raeside in so far as it relates to events subsequent to the date of the trial, but on the assumption that all of this evidence was admissible,  I do not think this would  create a significant possibility that “the jury acting reasonably would have acquitted the appellant had the fresh evidence been before it at the trial”:  Mickleberg v The Queen (supra).

In my opinion, the appeal should be dismissed.

Doyle CJ

In my opinion the appeal should be dismissed.  I agree with the reasons of Nyland J.  There is nothing that I wish to add to those reasons.

Millhouse J

I agree.