R v Beljajev
[2007] VSC 308
•21 August 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No.1543 of 2006
| THE QUEEN |
| v |
| BORIS BELJAJEV |
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JUDGE: | Curtain J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July, 2007 | |
DATE OF RULING: | 21 August, 2007 | |
CASE MAY BE CITED AS: | R v Boris Beljajev | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 308 | Revised 14 September 2007 |
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Criminal Law – Murder – “No Case” Submission upheld
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Tinney | Office of Public Prosecutions |
| For the Accused | Mr Richter Q.C. | Mr T Magazis |
HER HONOUR:
At the conclusion of the Crown case Mr Richter QC on behalf of the accused, Boris Beljajev, submitted that there was no case to answer. After hearing argument by Mr Richter and the learned prosecutor, Mr Tinney in reply, I upheld the submission and directed the jury accordingly. Consequently, the jury entered a verdict of not guilty to murder.
The applicable principles are as stated in Doney’s case:
If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in its more usual terms a verdict of not guilty may be directed if there is a defect in the evidence such that taken at its highest it will not sustain a verdict of guilty.[1]
[1](1990) 171 CLR 207 at 214-5.
The sole issue in dispute is the identity of the killer, that is, whether the Crown can prove beyond reasonable doubt that it was the accused who killed Mr Ristic.
There are no eye-witnesses to the killing, no evidence of positive identification of the accused, no forensic evidence linking the accused to the killing, no weapon retrieved, no admissions by the accused and no motive. The case against the accused is entirely circumstantial and Mr Tinney conceded that it was not a strong one.
The Crown case consists of statements made by the deceased to his wife the night before he met his death, that he was going to meet Boris (whom she said her husband referred to as Ben) the following day and various statements made to his mother, Nada Ristic, made on the morning and early afternoon preceding the stabbing, that he was going to meet “Boris, Boris and Kissa” and “someone.” The latter comment being made after he had received a call from a female. The Crown would invite the jury to infer from that evidence that the deceased intended to meet with the accused, and taken together with other evidence that he did so meet with the accused.
Mrs Nada Ristic made a telephone call to her son from the Medical One Surgery at 12.31pm. Mr Ristic then drove his mother to the Balaclava shops and dropped her there saying that he would return to collect her. At 12.34pm the deceased made a call to the holder of the Ben phone, that call lasted one minute and 12 seconds and the Crown would invite the jury to infer that the Ben phone was in the possession of Mr Beljajev at that time. It appears that the 12.34pm call was made in the presence of Mrs Ristic.
The deceased was found stabbed but alive in Sycamore Grove, being one street back from Grosvenor Street where Mr Beljajev lived. At 12.43pm a call was placed to emergency services by Alisdair Rae who had come out of his house and whilst crossing Sycamore Grove was approached by Mr Ristic who told him he had been stabbed and asked him to call an ambulance. Mr Rae then returned to his home, got his mobile phone and made the call. The informant puts the time of the stabbing at 12.40pm to 12.41pm. Although there can be no precision, all that can be said is that the stabbing must have occurred between 12.35pm and 12 seconds and sometime before 12.43pm.
The Crown also relied upon the evidence of Mrs Cody and Ms Khoo, two women who were at the Hahndorf Chocolate Shop that morning. Both witnesses say they were present at the shop throughout the morning, Mrs Cody saying she left the shop at 1.45pm and that they were both present when the two men visited the shop twice. It is not disputed that the two men were Mr Beljajev and Oswald Tauschek and it is not disputed that they visited the coffee shop twice. Nonetheless, the evidence of Mrs Cody and Ms Khoo is inconsistent with each other but more relevantly is inconsistent with the objective evidence.
Mrs Cody said the two men were present when she arrived at the shop at 10am and Ms Khoo initially said the men came at 10 or 10.30am. Security footage taken at Cabrini Hospital depicts Mr Beljajev entering the hospital at 10.40 and exiting at 10.45. Further, a telephone call was made from a public phone box on the corner of Glenferrie Road and Wattletree Road to the C phone at 10.50am, which the Crown alleges and it is not disputed, that the caller was Mr Beljajev. So Mr Beljajev could not have been at the Hahndorf café at any time before 11am.
Ms Khoo agreed that the transaction recorded in the cash register roll at 11.52 records the transaction that occurred during the first visit and that the men were in the shop 15 minutes or so before paying and stayed 10 to 15 minutes after paying. Mrs Cody also agreed that the 11.52 entry related to the first visit but she stated that the departure of the two men was within a minute or so of the tally being made on the till, although she did not see them depart. Evidence of telephone calls establish that Mr Tauschek received calls at 11.41, 11.44 and 12.09 all of which hit the tower in Inkerman Street, which suggests that Mr Tauschek was in the same location when the calls were received and as the evidence establishes that he was at the Hahndorf café shop at 11.52 this provides support for Ms Khoo’s evidence that they remained at the coffee shop for some 10 to 15 minutes after the entry was made on the cash register.
Ms Khoo could not fix the time of the second visit. Initially, she said it was about 1pm and that they stayed for 20 minutes or half an hour. At one point Ms Khoo said it was about two hours between the first and second visit and then at another point she said it was more like an hour.
Ms Khoo could not point to an entry in the cash register roll relating to the items purchased on the second visit, although she originally said it was the entry at 1.24pm and then conceded that apart from the entry at 12.41pm no other entry fitted the second visit. It was never put to Ms Khoo by the Crown that the purchases made on the second visit were not rung up on the cash register and the trial proceeded on the basis that the transaction was recorded.
Mrs Cody placed the second visit at 1pm. She left the shop at 1.45pm and she thought the men were still there, although she did not see them but came to that view because she did not hear the shop door open from 1pm. She would not permit that the men returned to the shop earlier than 1pm other than to say that the 1pm estimate could be varied by a couple of minutes. She said there was about one-and-a-half hours between the first and second visit. If her evidence is accurate, that would place the second visit at about 1.20pm.
None of this evidence is consistent with the objective evidence of the use of the mobile phones. That evidence shows that the Jewellomax phone belonging to Mr Beljajev was used at 1.02pm and 1.03pm when the phone was hitting the North Caulfield tower and at 1.12 and 15 seconds when the phone was in the Southbank area and at 1.14 when the phone was in the Southgate area. The next call is at 1.37pm, which hits the tower located on the corner of Barkly Street and Carlisle Street, St Kilda. Mr Tauschek’s mobile phone hit the Black Rock East tower at 1.19pm and again at 1.46pm so that neither Mr Beljajev nor Mr Tauschek could have been at the Hahndorf café at any time after 1pm and they could not have still been there in the coffee shop at 1.45pm when Mrs Cody left. Therefore, Mr Beljajev and Mr Tauschek must have returned to the shop and left the shop before 1pm. If they stayed on the second visit for 20 minutes or half-an-hour, that would preclude Mr Beljajev from being with Mr Ristic some time after 12.35pm.
The Crown must establish that Mr Beljajev had the opportunity to kill Mr Ristic – the only available opportunity being between 12.35pm and 12.43pm. Taking the Crown case at its highest, an analysis of the times does not establish such an opportunity beyond conjecture and speculation and I accept Mr Richter’s submission that there is here a demonstrated lack of opportunity as proved by the objective evidence.
The Crown also relied upon the evidence of Peter Mikk who saw a man wearing a trench coat wielding a knife in confrontation with two men in Glen Eira Avenue. The Crown opened the case that the knife wielding man was the accused prior to the stabbing of Mr Ristic and the Crown relied upon this evidence as demonstrating possession by the accused of a knife at an earlier point that afternoon. Mr Mikk made no identification of the person wielding the knife other than to describe him as in his fifties with short black wavy hair and of average height. He did not identify that person as speaking with a European accent, although he agreed that such accents are common in the area. Again, the times are important because if Mr Beljajev could not have been at Glen Eira Avenue at the time Mr Mikk saw the knife wielding man then it cannot be him and the jury could not infer that at a later point Mr Beljajev was that same trench coat wearing man who had a knife with him and who killed Mr Ristic. Further, if the jury were not satisfied beyond reasonable doubt that the person seen by Mr Mikk was Mr Beljajev then the Crown will have failed to exclude every rational hypothesis consistent with innocence because it is not disputed that Mr Mikk did see a man wielding a knife.
Mr Mikk’s evidence relating to times was not given with any precision or certainty. Taken at its highest, he arrives at Glen Eira Avenue, he says between 12 and 12.15pm. He saw the man approach the two men and he watched the confrontation from his car whilst trying to look inconspicuous for some five to 10 minutes. When things went quiet and the three men were still present, he went up to his flat and the yelling continued for a further five minutes. He remained in his flat for 20 to 35 to 40 minutes doing paperwork and having lunch. He then left the flat at around 10 to 1 and spoke to his neighbour Bernie for five minutes and while speaking with him a divisional van drove past. The evidence discloses that a divisional van had arrived at Sycamore Grove at approximately 12.54pm.
In cross-examination, Mr Mikk said the whole thing was between 12 and 1 o’clock. He admitted that at the committal he had said he had listened to the 12 o’clock news and that when he got inside he turned on the radio and listened to the end of the news. What he had said at the committal was the truth but before the jury he now said he did not know if the news was on or not. He conceded that at the time he made his statement on 16 June it was his belief that he heard the end of the news when he was in the flat and he was telling the truth. There was evidence before the jury that the 12 o’clock news on 774, being the station that he was listening to, that day ran from midday to 12.10pm and was followed by the program The World Today, which concluded at 1pm. Again, taking the Crown case at its highest and making full allowance for the imprecision in the times as given by Mr Mikk, if the jury accepted that Mr Mikk arrived at 12 and he saw the beginning of the incident (because he saw the man crossing the street and approaching the two men sitting on the fence) and he observed that incident for some five to 10 minutes or so from 12.05 to 12.10, but according to Ms Khoo and consistently with the telephone records of Mr Tauschek, Mr Beljajev would still have been at the shop at least until 12.07 and possibly 12.09 so that person, as seen by Mr Mikk, could not be Mr Beljajev.
Mr Mikk said he left his flat at about 10 minutes to 1 and that he had remained in his flat after hearing the yelling continue for between 20 to 35 to 40 minutes and that would place him leaving his car at 10 past 12, having sat there for some five to 10 minutes watching the confrontation. Again, if that be so, the man that he was observing could not have been Mr Beljajev.
The Crown also relied upon the evidence that Mr Beljajev was seen wearing a trench coat in the security footage taken at Cabrini Hospital at 10.40 and 10.45am on 15 June. Later that night, the police asked Mr Beljajev what his movements were between 12.30 and 1 o’clock and what he was wearing that day. Mr Beljajev produced a waist length Nautica jacket and black tracksuit pants. The Crown relies upon the non-production of the trench coat and the production of the tracksuit pants as conduct evincing a consciousness of guilt.
Mrs Cody described the men at the coffee shop as wearing a t-shirt Mr Tauschek and the other man a hip-length jacket. She did not see any overcoats. Mr Beljajev was not asked on 15 June whether he was wearing a trench coat that day although the police had spoken to Mr Van Dam by then and he had told them a man was wearing a light coloured trench coat. However, although the police became aware of the video footage showing Mr Beljajev wearing a trench coat at a later date, they still never at any point asked him about it and they never asked him to produce it and that coat has never been located. Given the evidence of Mrs Cody that she saw Mr Beljajev in a hip length jacket, and that the two men were wearing the same clothes on the occasion of each visit as attested to by Ms Khoo and the failure of the police to specifically ask Mr Beljajev what he was wearing and when, it is arguable that given the production of a jacket consistent with what Mrs Cody said he was wearing, whether the non-production of the trench coat which he was seen to be wearing approximately two hours before the stabbing, could have gone to the jury as evidence evincing a consciousness of guilt.
In any event, there is no evidence linking Mr Beljajev, as seen in the security footage wearing the trench coat at 10.40 and 10.45, with the person wearing a trench coat as seen by Mr Mikk at some time after midday and there is no evidence linking the coat worn by Mr Beljajev at Cabrini Hospital that morning with the coat worn by the killer. Insofar as the jury would be invited to infer that Mr Beljajev was the person wearing the coat as seen by Mr Mikk, in light of Mrs Cody’s evidence as to what she observed Mr Beljajev to be wearing in the shop, the jury could not draw that inference adverse to Mr Beljajev. Further, no witness was shown an array of coats and asked to identify the style of coat because, as Mr Smith said, not unreasonably, it would be too difficult to expect a witness to pick a trench coat and other than to say it was a cream coloured trench coat. Mr Smith conceded that the descriptions of the coat were not all the same and they were not completely detailed descriptions. In my view, there is a complete absence of evidence linking the coat worn by Mr Beljajev at Cabrini with that worn by the person seen in the street by Mr Mikk or by Mr Van Dam. Mr Van Dam makes his observations two hours later and in that time Mr Beljajev has been to the Hahndorf Chocolate Shop and is not seen to be wearing a trench coat at that point. Again, conjecture and suspicion cannot advance the case or make good a defect in the evidence.
Mr Tinney submitted that consideration must be given to all of the facts and circumstances relied upon by the Crown and not just selective parts of the evidence. Even if the Crown were able to rely upon the production of the tracksuit pants as conduct evincing a consciousness of guilt and Mr Beljajev’s admitted lies about not having seen Alex Ristic for several months and even accepting the considerable telephone traffic between the two of them up to 13 June and even if the jury were prepared to infer that Mr Beljajev must have been in possession of the Ben phone when Mr Ristic rang it at 12.34 and the evidence of the general description of the man seen in the street, none of that evidence makes good the evidence concerning opportunity.
As Mr Tinney frankly conceded, the Crown case may well have been on stronger ground were it not for the cash register roll recording the entry at 11.52. But that objective evidence, like the evidence relating to the telephone calls hitting the Black Rock East tower and the Southgate/Southbank towers, is incontrovertible and fixes the times with precision and certainty in a way that the various witnesses were not able to do. The reality is, opportunity in this case is crucial and bearing in mind the standard of proof which must be met, the burden of proof and the presumption of innocence, the absence of opportunity is such that it cannot be said that the evidence is capable of excluding conclusions other than one of guilt.
Justice Hampel in the unreported decision of Everuss as relied upon by Justice Coldrey in R v Smith[2] remarked:
The correct test is whether the accused can lawfully be convicted, that is whether the Crown’s evidence taken at its highest can support a verdict of guilty by a properly directed jury applying the correct standard of proof. The question whether the accused can properly be convicted is a question of law based though it must be on the judge’s examination of the facts. But it does not depend on the judge’s view of the credibility of the witnesses or the existence of competing inferences. It is concerned with whether the evidence is capable of proving the elements of the charge against the accused. In a case which depends upon circumstantial evidence the question must depend on whether in the trial judge’s view such evidence is capable of excluding conclusions other than one of guilt.
[2](1995) 117 A Crim R 298 at 299
In my view, adopting that approach to this case, the evidence adduced by the Crown is not capable of excluding all reasonable conclusions other than that of guilt and, accordingly, a jury, properly instructed, could not lawfully convict the accused of murder and I so rule.
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