R v Cakovski

[2004] NSWCCA 280

Reported Decision: 149 A Crim R 21

New South Wales

Court of Criminal Appeal

CITATION:	R V. CAKOVSKI, Daniel [2004] NSWCCA 280 revised - 19/08/2004
HEARING DATE(S):	14 May 2004
JUDGMENT DATE:	19 August 2004
JUDGMENT OF:	Hodgson JA at 1; Hulme J at 53; Hidden J at 69
DECISION:	1. Appeal allowed 2. Conviction quashed 3. Ordered that there be a new trial.
CATCHWORDS:	CRIMINAL LAW - EVIDENCE - Appeal against conviction for murder - Defence of self-defence - Evidence given by appellant that he stabbed the deceased in self-defence, when the (unarmed) deceased persisted in aggression and threats to kill him - Trial judge rejected evidence that 23 years earlier the deceased had killed three people, and that a few hours before his death he threatened to kill another person "like I killed the other three people" - Whether that evidence was admissible as tendency evidence or otherwise.
LEGISLATION CITED:	Evidence Act 1995 ss.97, 100, 135, 137 Crimes Act 1900 ss.418-422
CASES CITED:	Festa v. The Queen (2001) 208 CLR 593 Killick v. The Queen (1981) 147 CLR 565 Lawrence v. The Queen 91981) 38 ALR 1 R v. Chin (1985) 157 CLR 671 R v. Soma (2003) 212 CLR 299 R. v. Cakovski [200] NSWSC 608 R. v. Cakovski [2002] NSWSC 550 R. v. Lockyer (1996) ACrimR 457 R. v. Martin [2000] NSWCCA 332 Shaw v. The Queen (1952) 85 CLR 365
PARTIES :	Regina - respondent Daniel Cakovski - appellant
FILE NUMBER(S):	CCA 60279/03
COUNSEL:	Mr. W. Terracini SC with Mr. R. Ponetllo for the appellant Mr. P. Ingram for Crown/respondent
SOLICITORS:	W.H. Parsons & Associates for appellant C.K. Smith for respondent

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 70022/02
LOWER COURT JUDICIAL OFFICER :	O'Keefe J

CCA 60279/03
SC 70022/02

HODGSON JA
HULME J
HIDDEN J

Thursday 19 August 2004

R. v. Daniel CAKOVSKI

Judgment

1 HODGSON JA: On 18 June 2002, the appellant pleaded not guilty to a charge that he, on 20 May 2001, at Strathfield in the State of New South Wales, did murder Eugene Victorovich Petroff. He was tried before O’Keefe J and jury of twelve. On 3 July 2002, the jury returned a verdict of guilty on the charge of murder.

2 On 8 January 2003, the trial judge determined upon a sentence of 18 years imprisonment, with a non-parole period of 12 years; and this, by reason of adjustments due to periods otherwise spent and to be spent in custody, translated to imprisonment from 14 December 2003 to 23 September 2020, with a non-parole period commencing on 14 December 2003 and expiring on 23 September 2014.

CIRCUMSTANCES

3 I will commence with an outline of facts accepted by both the Crown and the appellant.

4 Eugene Petroff was pronounced deceased at 8.15am on 20 May 2001. The cause of death was the combined effect of four stab wounds to the chest and an incised wound to the face. The two most significant wounds were one, with a depth of about 80mm, penetrating the right lung, and another, with a depth of about 120mm, passing through the heart. All the wounds were inflicted by the appellant between about 5.25am and 5.50am on 20 May 2001, in Parnell Street, Strathfield, near Strathfield Railway Station.

5 The deceased had attended a reunion at the Russian Club in Strathfield commencing at about 7.30pm on 19 May 2001, during which he had consumed alcohol. There was evidence that, by the time he left the club, he was considerably affected by alcohol, and this was confirmed by a very high blood alcohol level measured after his death. Between 11pm and midnight on 19 May 2001, the deceased had assaulted a guest at the reunion, George Logounov. This will be dealt with in more detail later. The deceased left the club at about 2am on 20 May 2001, and after sitting for some time with two other men on a bench near the entrance to the Railway Station, he was left by them at the station between about 2.30am and 3.00am.

6 The appellant had met a friend Sonja Sekulovska at Bankstown RSL Club on the evening of 19 May 2001, and had then gone with her in her car to Kings Cross. Both she and the appellant gave evidence to the effect that, shortly after the commencement of this journey, the appellant consumed some Rohypnol pills; and that at Kings Cross they purchased and then injected some heroin.

7 At about 2.10am on 20 May 2001, Constable Venables observed Ms. Sekulovska’s car make a left turn in Stanmore contrary to a one-way sign. The car was then driven by the appellant. Constable Venables asked the appellant to produce his licence and identification, but the appellant was unable to produce either. In a statement prepared by Constable Venables on 20 June 2001, he stated that at this time “I conducted a search of him. No item found on his possession”. The appellant was then taken to Newtown Police Station and issued with a traffic infringement notice. Then the appellant and Ms. Sekulovska went to Strathfield in Ms. Sekulovska’s car.

8 Video surveillance showed the car in The Boulevard, Strathfield, in the vicinity of the corner of Parnell Street, at 5.07am on 20 May 2001; and showed both the appellant and Ms. Sekulovska at various times between 5.07am and 5.25am leaving the car and entering a 7-Eleven Convenience Store on this corner. Ms. Sekulovska spoke to the deceased in the convenience store, at a time when the appellant was outside or in the car. Subsequently, Ms. Sekulovska walked with the deceased into Parnell Street, and some time later the appellant approached them.

9 There was a fight between the appellant and the deceased, and Ms. Sekulovska ran away. She got into the car and started to drive off, when she saw the appellant running towards her. The appellant got into the car and they both drove away. The appellant was arrested on the morning of 20 May at Condell Park, but not charged with murder on that occasion. The knife used to stab the deceased was found nearby: this knife had a blade about a 105cm long.

10 On 16 June 2001, pursuant to a warrant, police monitored a conversation between the appellant and Ms. Sekulovska, which included the following exchange:

Appellant: "I'm the one who killed the poor cunt. "

Sekulovska: "Did you mean it?"

Appellant: "No. Yeah I did. No, I didn't probably ... you know when I think about it I spin out, I think to myself `Fuck I'm a murderer, that's fucked mate ".

Sekulovska: "Fucken asshole tried to kick you. "

Appellant: "Still got the scars on my legs from kicking ... they're all from that son-of-a-bitch and he laughed at me. He goes, `the knife isn't even sharp' and I went ‘yeah' and I go whack, whack, whack - I stabbed him about six times. "

Sekulovska: "It says that he was stabbed in the face and chest. "

Appellant: "No, I slashed the face from there open ... if they found him earlier, he might not have died. When I think about it, man I shouldn't have shanked him, shouldn't have stabbed the poor cunt."

11 Turning now to matters not accepted by both sides, the Crown relied on evidence of Ms. Sekulovska to the effect that, after she had spoken to the deceased in the convenience store, she went back to the car, and she and the appellant agreed that she would lure the deceased into Parnell Street so that they could rob him; and the Crown case was that, when the appellant inflicted stab wounds, he intended to kill or inflict grievous bodily harm on the deceased.

12 The appellant’s case was that he killed the deceased in self-defence. He gave evidence at the trial.

13 The appellant’s evidence was that he went to Bankstown RSL in response to a telephone call from Ms. Sekulovska in which she said she was being attacked, and it was to meet this situation that he put a knife in his sock; and the appellant said that he then forgot about the knife until it fell out of the sock during the fight with the deceased. The appellant denied there was any plan to rob the deceased. His evidence was that Ms. Sekulovska said to him, after coming from the convenience store, that “I can get money off this guy”; and that he believed she would perform a sexual favour for the deceased. The appellant said that he then commenced to drive off, but decided to return to Parnell Street.

14 His evidence was that he approached the deceased and Ms. Sekulovska, and called out her name, whereupon the deceased said: “She’s busy, fuck off”. The appellant formed the view that Ms. Sekulovska was performing oral sex on the deceased. The appellant said to the deceased: “Look, I don’t want no drama. It’s got nothing to do with you. Sonja, let’s go”. The deceased then said to the appellant: “I told you to fuck off” and kicked the appellant very hard on his left shin and said “Now you’re gonna die”. He again kicked the appellant on the shin and said “I’m gonna kill you, you little cunt”. The appellant told Ms. Sekulovska to run, following which the deceased kicked the appellant very hard in the groin yelling: “You fucked everything up. Now you’re gonna die. I’m gonna kill you”. At that time, the appellant was on his hands and knees on the ground and saw the sheathed knife on the ground nearby. He grabbed the knife in his left hand, removed it from the sheath, and the deceased said: “What do you think you’re gonna do with that, you little cunt?” The deceased also said to the appellant: “No matter what you do, you’re gonna die”. The appellant said that he got onto his knees and swung the knife in the direction of the deceased to get him away. He got to his feet and the deceased came at him again so that the appellant swung the knife at the deceased and tried to move away from him. The deceased said: “The knife’s blunt you stupid little cunt” and approached the appellant again at which time the appellant swung the knife twice at the deceased. The appellant tried to take another step back to move away from the deceased. The deceased came at the appellant again. The appellant swung the knife in the air towards the deceased’s face and cut him. The deceased took four or five steps back, and the appellant limped away as fast as he could towards Ms. Sekulovska’s motor car. He got in the car and Ms. Sekulovska drove away. The appellant denied knowing he inflicted stab wounds to the deceased’s chest at the time they were inflicted.

GROUNDS OF APPEAL

15 The appellant relied on three grounds of appeal.

1. The learned trial judge erred in permitting the Crown to split its case.
2. The learned trial judge erred in refusing to admit evidence that the deceased had murdered three people.
3. The learned trial judge’s directions to the jury as to the issue of self-defence were erroneous.

16 I will deal with these grounds in turn, and then deal with submissions made by the Crown concerning the proviso.

SPLITTING THE CROWN CASE

17 In cross-examination, it was put to the appellant that he had armed himself with the knife immediately before his confrontation with the deceased. That was denied, and the appellant confirmed in cross-examination that he had the knife and sheath in his left sock when he was in the Newtown area. The Crown then applied to put to the appellant in cross-examination that he had been searched by Constable Venables and that no knife had been located, and to call evidence from Constable Venables. The trial judge allowed the cross-examination and permitted the Crown to call the evidence in reply: R v. Cakovski [2002] NSWSC 608.

18 Mr. Terracini SC for the appellant submitted that this was in breach of the principle that the prosecution must present its case completely before the accused’s answer is made: Shaw v. The Queen (1952) 85 CLR 365 at 379; Lawrence v. The Queen (1981) 38 ALR 1; The Queen v. Soma (2003) 212 CLR 299; The Queen v. Chin (1985) 157 CLR 671 at 676.

19 Mr. Terracini submitted that the evidence of Constable Venables was directly relevant to prove the prosecution case that the appellant armed himself with the knife immediately before to the confrontation with the deceased; and to rebut in advance any potential assertion by the defence that the appellant, a drug user living a fringe existence, ordinarily carried a knife for protection, or some other purpose not associated with robbing persons. There did not exist in the present case any special circumstances warranting the Crown calling evidence from Constable Venables in reply. Constable Venables was the last witness from whom the jury heard evidence. The evidence, given after the case for the appellant had closed, dealt a fatal blow to his case, which unfairly gained force from the time when it was delivered: see Killick v. The Queen (1981) 147 CLR 565 at 569.

20 I note that the matter now relied on was not relied on before the trial judge. The cross-examination and evidence was objected to on the grounds that the Court would not be satisfied that any search of the accused was made by Constable Venables, that the evidence was not of sufficient probative value, that it would involve an undue waste of time, and that it would be unfairly prejudicial. There was no contention that the Crown was attempting to split its case, and indeed Counsel for the appellant submitted that the evidence could not have been led in chief. The submissions for the appellant relied inter alia on the circumstance that Constable Venables proposed to give evidence of a detailed search, including running his hands and fingers around the inside and outside of both socks that the appellant was wearing, this being a matter not recorded in his statement made at the time and, in the appellant’s submission, inconsistent with the very cursory search made of the car. The grounds argued were rejected by the primary judge, and it is not suggested that there was any error in relation to those matters.

21 Turning to the matter argued on appeal, there is in my opinion a real question as to whether the Crown would have been permitted to lead this evidence in chief. The search was conducted over three hours before the stabbing incident, and, until the appellant gave evidence, the Crown could not know what explanation the appellant would give concerning his possession of a knife. In those circumstances, the probative value at that stage of the evidence could be considered small, and there was a substantial chance that, if objected to, it would be excluded under s.135 and/or s.137 of the Evidence Act.

22 The principles governing a decision whether the Crown should be permitted to call in reply evidence which might conceivably have been admissible in chief are well known: see R v. Chin (1985) 157 CLR 671 at 676, 684-5. At the margins, the application of those principles will often be a matter of judgment and an appeal court should only overrule the decision of the trial judge if satisfied that that decision is wrong. I am not satisfied in this case, a decision in which I am comforted by the fact that the point was not taken below.

EVIDENCE OF THREE MURDERS

23 This ground requires some consideration of s.97 and s.135 of the Evidence Act 1995, which are as follows:

97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.

24 At the trial, the appellant sought to adduce evidence that on 19 September 1978 the deceased murdered three people and killed a dog. The appellant was not aware of this at the time of the incident with the deceased. It was common ground as between the appellant and the Crown that, on the date of the murders, the deceased, then aged 31, had been involved in dealing in narcotics and believed that he had been cheated by certain of his associates in the drug trade. As a consequence, he had shot one person at Wetherill Park and had then driven to Burwood where he shot two other people and a dog. At the time of the murders, the deceased was affected by alcohol.

25 The trial judge refused to admit the evidence: R. v. Cakovski [2002] NSWSC 550. His conclusions were expressed as follows:

17 In my opinion the events of 1978 are, as a matter of common sense, too remote in point of time and are not of the strength necessary to warrant admission into evidence. A man when 53 is, according to common experience, likely to be quite different from that man at 31. Furthermore, the fact that such man had spent over 13 years in prison is likely to be a further factor resulting in differences in him over the long period in question. In short, there is no sufficient nexus demonstrated between the deceased in 1978 and the deceased in 2001. Moreover, to allow the evidence would, of necessity, involve an examination of the circumstances of and surrounding the killings in 1978. At this remove in time, that would be a difficult and time consuming exercise. Indeed, given that the persons present at the time of the shootings, whether they be the victims or the perpetrator, are dead, attempting to recreate the situations of 1978 is likely to [be] an impossible or pointless exercise.

18 Given these circumstances and the general reservation of the law to the admission of such evidence, I am satisfied that the evidence would not have significant probative value such as to warrant its admission in the trial.

19 Even were the evidence to have significant probative value within the meaning of that term as used in s 97, I am of opinion that it should nonetheless be excluded on two bases by virtue of the discretion conferred on the Court by s 135 of the Act. The first is that the evidence would be unfairly prejudicial to the Crown. The admission of such evidence would, in my opinion, be likely to concentrate the attention of the jury on events not an issue in the trial in question and in circumstances in which a proper analysis for comparative purposes would be unlikely to be able to be made. The second is that the endeavour to recreate the factual circumstances of and surrounding the killings of 1978 would be likely to cause or result in undue waste of time. For example, establishing the extent to which the deceased was affected by liquor in 1978 or even the amount of liquor that he had consumed prior to the killings in that year, may well be impossible.

20 For these reasons, I am of opinion that evidence concerning the circumstances of and surrounding the conviction of the accused for the triple murders committed in 1978 should be excluded.

26 That ruling was later extended to affect evidence given by Mr. Logounov. Mr. Logounov gave evidence of the incident to which I referred earlier in the Crown case. His evidence in chief was brief and perfunctory. However, it was expanded as follows in cross-examination:

Q. If I suggest to you that you told Detective Sgt Laycock the following, "He said" that is Mr Petroff said, 'you have no honor'. I didn't reply. I just continued drinking and looking around at people dancing, then all of a sudden, you know, he came from behind, ah, you know, I didn't know it was him at first but bang hit over the ears, area of the nose. Then I felt his hand, he actually penetrated the eyeball and was trying to gouge the eye out, you know, he meant, ah, it was a really low life tactic"?

A. Yes, I did say that.

Q. That describes what was happening?
A. Yes.

Q. You felt he grabbed you from behind and was trying to gouge your eyeball out?
A. Yes.

Q. You were scared?
A. Yes.

Q. At that stage you thought he might do you serious injury?
A. Yes.

Q. You went on "he actually was trying to gouge the eye out, you know. His finger nail scratched me here and blood was oozing out, I was dizzy from what was happening but I forced his hand away. I was lucky he did not gouge my eye. Then I pushed him away". That is what you said to Det Sgt Laycock didn't you?
A. I did.

Q. That accurately reflected what was happening didn't it?
A. Yes.

Q. You also said to Detective Sgt Laycock "I believe he's right handed and I think, you know, like he grabbed me and I think he was, he hit me at that time and he was grabbing my feeling, trying to get the eye, and he hit me because I had blood immediately flowing from the table" you told that to Detective Sgt Laycock didn't you?
A. I did, yes.

Q. You had got your blood, you saw, on the table?
A. Yes.

Q. A lot of it?
A. It wasn't a lot. It was a bleeding nose and scratches.

Q. You then said, "Now, what I did I tore his hand away, I pushed him away. Vadim grabbed him."?
A. Vadim was the fellow sitting next to me, the doctor.

Q. "Vadim grabbed him because my blood was flowing all over the place and I didn't want to spoil the evening for everyone. I just grabbed some tissues and I still have them at home on my nose and I just walked out and I started going home." You then said, "No, ah, I better go to the, you know, to the hospital." Do you remember saying that to Detective Sergeant Laycock?
A. Yes.

…

Q. You said to police, "Dr Leonov grabbed him and prevented him from um, you know, repeating his attack on me. He was so, um, in such a state I believe he would have continued even further." That's what you said then, isn't it?
A. Yes, I did say that at that moment because I was very much emotionally upset as what has happened, and my thinking at that time was coloured by the emotions involved.

Q. He said at that time, did he not, or you said to police that he said, "I'm going to kill you. How would you like a knife through your head." That's what you said to police, isn't it?
A. Yes, I did.

Q. That's what he said to you, isn't it?
A. Yes, he did.

Q. You formed a view that he meant that, didn't you?
A. At that time, yes.

HIS HONOUR: At what time?

LEVET: At that time, your Honour.

HIS HONOUR: Q. No, what is that time?
A. When I was in the club. It was an emotional statement and sometimes I believe that when he said that he felt strong animosity towards me.

27 Counsel for the appellant then sought to elicit the following matter in cross-examination:

LEVET: No, your Honour, it is conceded that he shot the three other people, but his comment this evening to this person was - I can't get away from what was said, your Honour. What was said was, "How would you like a knife through your head? I'm going to kill you like I killed the other three people." If that's, as it were, part of the res gestae.

28 The trial judge refused to allow that to be elicited in cross-examination, consistently with his earlier ruling concerning evidence of the three murders.

29 The Crown Prosecutor, in his address to the jury, attempted to minimise the significance of the incident between the deceased and Mr. Logounov, as follows:

Mr Lugounov was affronted by that, and he was entitled to be. He went to the Concord Hospital, saw a doctor, and was ensured by the doctor it was a minor injury. Went to the police, reported the incident. He came back, and was interviewed by electronic means the following evening.

I think Mr Lugounov fairly conceded that his injury on this particular injury was more emotional. I think that is the word he used, more emotional than physical. He also conceded it was a minor injury, it was more the emotional hurt that he felt, given that there was apparently some ill-feeling between them. Here we have members of the Russian community, present at on this occasion, it may have been that they took great notice of other members of the community. You might have thought this caused Mr Lugounov's dignity may have been undermined. That's why he took it personally and was so upset.

Apart from that, the evidence you might think does not suggest that Mr Petroff conducted himself in anyway other than someone who has gone to a reunion, having a few drinks, got a bit under the weather - you remember the evidence of Mr Nicholas Ostin, one of the organisers, observed Mr Petroff around midnight standing on the edge of the dance floor apparently to watch people dance, and appeared to be having trouble focussing.

30 This was taken up by the trial judge, in his summing-up, after he had outlined Mr. Logounov’s evidence:

I will finish off Mr Lugounov before we adjourn. The thrust of Mr Lugounov's evidence therefore, is that the accused was a person who on that night, with some drink on him, either as an act of animosity or because he lost self control, with his hands made some attack on Mr Lugounov.

I would remind you that the words that are said to have been said, namely "I'll kill you" and "Would you like a knife through your head", were not said in chief, they were a statement made to the police and cross-examined about.

You may think Mr Lugounov was at pains on a number occasions to suggest that the statement was made in emotional circumstances, whatever you draw from that.

31 In his cross-examination of the appellant, and in his address, the Crown Prosecutor suggested that the appellant’s evidence about the circumstances of the stabbing, including his evidence about the deceased’s threats to kill him, was a concoction. This was put by the trial judge to the jury, in the following terms:

The cross-examination of Mr Cakovski was to the effect that this evidence about the sexual favours, this evidence about the threat to kill, this evidence about Mr Petroff repeatedly coming at him, the accused, was a concoction. That was denied by Mr Cakovski.

32 Mr. Terracini submitted that the appellant’s evidence that the deceased threatened to kill him in such a way as to put him genuinely in fear of his life was important to his defence, and evidence that the deceased had previously committed three murders had significant probative value in relation to that evidence.

33 The Crown Prosecutor submitted that the notice requirements of s.97 of the Evidence Act had not been complied with, nor was any application made to the Court to dispense with the requirement of notice pursuant to s.100 of the Act. The Crown Prosecutor also relied on the reasons given by the primary judge.

34 Next, it was submitted for the Crown that, given that the relevant tendency is said to be the tendency to act in a violent way when affected by alcohol, it would be necessary to make an appropriate comparison between the effect of alcohol at the time of the murders in 1978 and the effect of alcohol on his conduct towards the appellant. There was no evidence that the deceased could have been of the view that he had been cheated by the appellant, as with the victims of the 1978 murders. The evidence did not disclose that the deceased had uttered threats to kill the victims of the 1978 murders. Accordingly, the evidence could not have had significant probative value: see R v. Lockyer (1996) 89 ACrimR 457 at 459; R v. Martin [2000] NSWCCA 332 at [67]. Having correctly excluded the evidence of the 1978 murders, the trial judge appropriately excluded the reference to them allegedly made by the deceased to Mr. Logounov.

35 It was further submitted for the Crown that, even if the evidence had been admissible as tendency evidence, it would have been appropriate to exclude it pursuant to s.135 of the Evidence Act.

36 In my opinion, evidence of the 1978 murders, and the reference to them in the threat made by the deceased to Mr. Logounov just a few hours before the stabbing, had significant probative value, in this way. In the absence of that evidence, the appellant’s evidence that the deceased threatened to kill him in such a way as to make him fearful for his life, and continued to make such threats and to attack him notwithstanding the appellant’s use of a knife, seems on the face of it highly improbable. In my opinion, it becomes less so once one knows that the deceased had committed three murders in the circumstances outlined, albeit as long ago as 1978, and also had made reference to those three murders in uttering a threat to kill Mr. Logounov just a few hours before. Of course, both the murders themselves and the threat made in this way to Mr. Logounov were not known to the appellant, but that does not reduce the relevance of the evidence. If the question to be determined was whether it was proved that the deceased actually did what the appellant said he did, beyond reasonable doubt or even on the balance of probabilities, one might consider the probative value of evidence that he murdered three people over twenty years before to be quite small, and also that there was a real chance that this probative value would be outweighed by its prejudicial effect. But in this case the question is rather whether there is a reasonable possibility that the deceased did these things, which otherwise might seem to be extremely improbable. On that question, in my opinion the evidence of the murders in 1978, coupled with evidence from an independent witness that, just a few hours earlier, the deceased had referred to these three previous murders apparently to add force and credibility to a threat to kill that person, is of substantial probative value.

37 On the question of notice under s.97, in my opinion the significant probative value of the evidence is not as tendency evidence, to which s.97 applies: the main relevance of the evidence is not to prove that the deceased had “a tendency … to act in a particular way”, but rather to suggest that the deceased was a person who was not subject to very strong inhibitions against killing and contemplation of killing in the same way as are the great majority of people. This is not to say that the deceased had a tendency to kill, but rather that there is less improbability in the deceased killing or making a serious threat to kill another person, than there would be for the great majority of people. On the question whether there is a reasonable possibility that the deceased made serious threats to kill the appellant in this case, in my opinion the probative value of the evidence is not substantially outweighed by its prejudicial effect, and s.135 would not justify its rejection. (It would be otherwise if the deceased had been before the Court accused of a crime involving killing or threats to kill, so that the relevant question was whether these matters were proved beyond reasonable doubt against the deceased: then, in my opinion, the probative value would have been substantially less, and rejection of the evidence would almost certainly have been justified by s.137.)

38 Considered in that way, in my opinion the evidence did not require or even justify detailed examination of the circumstances of the 1978 killings, and detailed comparison of those circumstances with the circumstances of the encounter between the deceased and the appellant in this case. The brief outline of the circumstances, which was common ground between the appellant and the Crown, was sufficient for this aspect of relevance.

39 It may be that the evidence could have had some relevance as tendency evidence, within s.97, as evidence of a tendency to act violently when affected by alcohol. If that had been the only relevance of the evidence, this could have been affected by a more detailed examination of the circumstances of the 1978 murders. Had the Crown taken the point, the absence of the required notice under s.97 could have been significant, because the Crown could have said it needed an opportunity to investigate further the circumstances of the 1978 murders. However, in my opinion any relevance of the evidence in this respect would be of much less significance than its relevance in the other respect that I have referred to, and may not have added much to what was already indicated by the evidence of the incident with Mr. Logounov. As tendency evidence, it may therefore not have passed the s.97(1)(b) threshold. However, for the reasons given above, the evidence was relevant and admissible otherwise than as tendency evidence.

40 It was vital to the appellant’s defence of self-defence that the jury accept there was at least a reasonable possibility that the deceased had acted in the way described by the appellant, and as I have said the evidence of the 1978 murders and the deceased’s reference to them in the Logounov incident was relevant to this. Furthermore, although provocation was not the defence relied on by the appellant, it was left to the jury. If the jury rejected self-defence but considered that the appellant had lost self-control, the question of whether it was reasonably possible that the deceased acted as the appellant described would have been relevant to the question of provocation also.

41 For those reasons, in my opinion the trial judge was in error in rejecting this evidence.

DIRECTIONS AS TO SELF-DEFENCE

42 The relevant sections of the Crimes Act 1900 applicable to these proceedings are ss.418 to 422, which are in the following terms:

418 Self-defence - when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.

419 Self-defence - onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

420 Self-defence - not available if death inflicted to protect property or trespass to property
This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass.

421 Self-defence - excessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

422 Self-defence - response to lawful conduct
This Division is not excluded merely because:
(a) the conduct to which the person responds is lawful, or
(b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.

43 The primary judge initially gave the following directions concerning self-defence:

As I just said the law of self-defence is now somewhat complicated as a result of recent statutory amendments and will (sic) perhaps be beneficial to you to split the elements of self-defence into tabular form:

(1) The acts of the accused Daniel Cakovski, in stabbing Mr Petroff at Strathfield on 20 May 2001, can be said to be done in self-defence if and only if
(a) Daniel Cakovski personally believed in the circumstances as he saw them, that it was necessary for him to do what he did in order to defend himself; and
(b) His acts of stabbing on a number of occasions, Mr Petroff, was a reasonable response in the circumstances as he saw them.

(2) If the Crown has established beyond reasonable doubt that the accused, Daniel Cakovski, did not in fact personally believe that it was necessary for him to do what he did in order to defend himself, then subject to the other ingredients of murder having been proved - they are the ones I went through yesterday - the Crown will have established that the accused had committed murder. That is it will have removed self-defence from the case.

(3) If however, you are left in the position that:
(a) you are satisfied beyond reasonable doubt that the accused Daniel Cakovski used force intentionally or recklessly, and thereby caused the death of Mr Petroff; or
(b) you are of the view that it is reasonably possible that the accused Daniel Cakovski did believe that his conduct was necessary in self-defence, or putting it in another way, you had a reasonable doubt as to whether he had that belief or not; and
(c) you are satisfied beyond reasonable doubt that his acts of stabbing Mr Petroff were a reasonable response in the circumstances, as he, Daniel Cakovski, perceived them, because the force he used was excessive,
then subject to the other elements being established, the proper verdict is one that he did not commit murder, but that he did commit manslaughter. That is a verdict of not guilty of murder but guilty of manslaughter: SU 66-67.

44 These directions contained two errors: first, the word “or” appears instead of the word “and” after paragraph 3(a), and second, the word “not” is omitted from paragraph 3(c). However, these errors were not present in written directions given to the jury to take to the jury room, or in subsequent oral directions.

45 Mr. Terracini submitted that these errors were such as to cause confusion; and further, the directions were erroneous in that they provided no explanation that if the Crown did not prove beyond reasonable doubt that the accused did not believe it was necessary for him to stab the deceased in order to defend himself, and also did not prove beyond reasonable doubt that the appellant’s conduct was not a reasonable response in the circumstances as the appellant perceived them, then the jury should acquit the appellant entirely.

46 For the Crown, it was submitted that the initial errors were adequately corrected; and that it was plainly implicit in the directions that, if the Crown did not establish the first requirement for the defence and also did not establish the second requirement for the defence, then the appellant had to be acquitted.

47 In my opinion, the correction of the two errors in the initial oral directions meant that there was no real possibility of any real miscarriage of justice being caused by those errors. A trial judge may think it desirable to tell the jury that if the Crown fails to establish that an accused person did not believe the relevant conduct was necessary to defend himself, and also fails to establish beyond reasonable doubt that the accused’s conduct was not a reasonable response to the circumstances as the accused perceived them to be, then the accused is entitled to an acquittal. However in this case, where the jury found the appellant guilty of murder, it would follow that the jury considered that the Crown did establish beyond reasonable doubt that the appellant did not believe that his conduct was necessary to defend himself. Accordingly, the failure of the trial judge to explain the circumstances in which the appellant was entitled to an outright acquittal could not have affected the result.

48 Mr. Terracini in effect submitted that the errors and inconsistencies and omissions in the directions were such that the jury may well have been so confused in relation to the defence that they simply failed to apply it. I do not think that submission is made out.

49 Accordingly, in my opinion this ground fails.

PROVISO

50 The Crown submitted that, having regard to the recorded conversation in which the appellant admitted that he had stabbed the deceased in circumstances such that he referred to himself as a murderer, the evidence concerning the number, location and orientation of four of the stab wounds, videotape evidence suggesting that the appellant armed himself with the knife before alighting from the car and the evidence of Ms. Sekulovska that there was a plan to rob the deceased, the Court would conclude that the appellant had not lost a chance of acquittal that was fairly open to him on the basis that he might have acted in self-defence; or to put this another way, the Court would be satisfied that a jury acting reasonably and properly must inevitably have convicted the appellant of murder: see Festa v. The Queen (2001) 208 CLR 593 at [123] and [229].

51 In my opinion, although the Crown case was very strong and the defence of self-defence was, on the face of it, far-fetched, the rejected evidence was such as to make this defence substantially less far-fetched; and I am not satisfied either that the appellant has not lost a chance of acquittal that was fairly open to him, or that a jury acting reasonably and properly must inevitably have convicted the appellant of murder.

52 Accordingly, in my opinion the appeal should be allowed, the conviction quashed, and there should be a new trial.

53 HULME J: In this matter I have had the advantage of reading a draft of the reasons for judgment of Hodgson JA and I can accordingly be brief.

54 I agree with his Honour’s conclusion that there was no error in permitting the evidence of Constable Venables to be given in reply and with his Honour’s reasons for that conclusion.

55 I also agree with his Honour that evidence to the effect that the deceased had, in 1978, murdered 3 people was admissible. I do not take the same view concerning the evidence that the deceased had at that time killed a dog.

56 However, in my view the only basis upon which the evidence was admissible was that it rendered less improbable the Appellant’s account that the deceased had threatened to kill him. Killing, and thoughts, and threats of killing another human being are sufficiently extreme or unusual that the fact that the deceased had killed people in the past was relevant because it rendered more probable, or perhaps more accurately, less improbable, that the deceased uttered the threats the Appellant attributed to him. Furthermore, although the prejudicial nature of the evidence is clear, in the circumstances of the case, its probative value is such that there was no sufficient basis for excluding the evidence under s135.

57 By parity of reasoning, that part of Mr Logounov’s evidence as referred to remarks by the deceased that he had killed 3 people should not have been excluded.

58 However, the evidence as to the deceased having killed previously was not admissible as tendency evidence. In this regard it is pertinent to observe how little of the circumstances of 1978 seem to have been before his Honour. What was known seems to have been recorded by him as follows (and not amplified during the course of the appeal):-

That on 19 September 1978, the deceased murdered three people and killed a dog. The circumstances, which were common ground between the Crown and the Accused, were that on the date of the murders the deceased, then aged 31 and had been involved in dealing in narcotics and believed that he had been cheated by certain of his associates in the drug trade. He had, as a consequence, shot one person at Wetherill Park and had then driven to Burwood where he shot two other people and a dog. The circumstances in which the shootings occurred, the antecedent situation, the extent of involvement in the perceived cheating by each of the persons who were shot, whether such persons, or any of them, were armed or otherwise, and other events leading up to and surrounding the killings in 1978 are not known except that the deceased was affected by alcohol at the relevant times. The extent of such affect is, however, not expressed.

59 Elsewhere his Honour also referred to the fact that the deceased seems to have spent some 13 years in prison as a result to these murders.

60 It is apparent from this summary that it was not known what were the operative factor(s) that inspired the killing. Experience in this Court shows that in the field of drug dealing, killing at times is just one of the occupational hazards. For all this Court knows, the deceased may indeed have been a major drug dealer and the killings done by way of general deterrence to others tempted to cheat him. Furthermore, while apparently present in 1978, alcohol might have not have had any operative force, so incensed may the deceased have been with being cheated. Without more information the evidence of events in 1978 was not probative of the deceased having any particular tendency.

61 To these considerations must be added also the passage of time and intervening imprisonment. In these circumstances, it is impossible to infer from the events of 1978 that in 2001 the deceased had a tendency to kill or act violently when affected by alcohol.

62 So removed in time were they that I very much doubt if it would even have been possible to infer from events in 1978 what tendency the deceased may have had in 2001. But at the very least if the events of 1978 were to have any probative value on that issue, a substantial if not full account of the circumstances operating on the deceased in 1978 would be necessary. Placing before the jury evidence of such circumstances would have been calculated to greatly complicate the trial of the Appellant without, so far as the evidence before this Court goes, any apparent benefit. On the basis of the material present before this Court, I should have thought it inevitable that, even if otherwise admissible, the evidence of the 1978 killings, as tendency evidence, would be excluded pursuant to the terms of s135 of the Evidence Act. (The fact that it was entitled to admission on other another basis does not, of course, allow it to be used as tendency evidence – Evidence Act, s95.)

63 In remarks quoted by Hodgson JA in paragraph [25] above, O’Keefe J set out reasons why in his view the evidence was not admissible. Providing those remarks are confined to the admissibility of evidence of the 1978 killings as tendency evidence, those remarks provide compelling reasons for excluding the evidence, although they do not, for the reason I have indicated, provide a basis for rejecting it completely.

64 It is, I think, also useful to consider what would have been the situation if it had been the Appellant who had died and the deceased had been charged with his murder. Even putting aside ss101, 135 and 137 of the Evidence Act, on the information there was upon which to make a comparison between the events of 1978 and 2001, it is inconceivable that any court would have regarded evidence of the 1978 events as showing that the deceased had a tendency to kill or be violent when under the influence of alcohol in 2001.

65 For completeness I should say that I do not see in the evidence of violence towards Mr Logounov, with whom the deceased had apparently shared some undisclosed problems and ill will in the past, any basis for a conclusion different from that at which I have arrived.

66 The trial judge’s error in rejecting the evidence of the prior killings by the deceased means that, subject to the application of the proviso to s6 of the Criminal Appeal Act, the appeal must be allowed. On the topic of the proviso I agree with Hodgson JA that the defence was far-fetched. Photographs of the crime scene showed blood over a wide area, including an appreciable degree of spatter over the ground and a post. The Appellant’s evidence involved, inter alia, the proposition that the deceased, after each of 4 serious stab wounds through the chest, 32 to 70 mm in depth, continued and on some occasions having stepped back returned, to attack the Appellant and that the Appellant had no knowledge that on any of these occasions he had actually stabbed the deceased, notwithstanding that one of the wounds must have involved the knife penetrating for about three quarters of the apparent length of its blade.

67 However, apart from eliciting from the pathologist that he “would be surprised if (the deceased) remained standing for much longer than about 30 to 45 seconds” after the 4 chest wounds were inflicted (assumed to be in rapid succession) the Crown adduced no forensic evidence directed to what strikes me as a highly unlikely scenario. In these circumstances, and given that a jury’s impression of the Appellant’s evidence may well be influenced by the evidence which was wrongly excluded, I concur with Hodgson JA that the case is not one for the application of the proviso.

68 Accordingly, I agree with the orders proposed by Hodgson JA.

69 HIDDEN J: I agree with the orders proposed by Hodgson JA and, subject to one matter, with his Honour’s reasons.

70 As to Ground 2, concerning evidence that the deceased had murdered three people on an earlier occasion, I have some reservation about his Honour’s view, and that of Hulme J, that the evidence was admissible other than as tendency evidence. I agree that the evidence had probative force for the reasons identified by their Honours, that is, that it lent some credence to the appellant’s account of the deceased’s behaviour, which otherwise would have seemed highly improbable. However, in my view, it did so because it demonstrated a propensity on the part of the deceased to retaliate in an extremely violent way against anyone who crossed him. (Whether he was affected by alcohol is not the point.) This, it appears to me, is necessarily tendency evidence. The incident involving Mr Logounov, although of a very different character, might be seen as a demonstration of the same propensity.

71 However, the evidence about the murders was admissible as tendency evidence because it had significant probative value despite its remoteness in time and lack of circumstantial detail. That probative value was enhanced by evidence that the deceased referred to those murders in his altercation with Mr Logounov. As it was evidence tendered by the appellant, it did not require the substantial measure of probative force mandated by s101 of the Evidence Act and, as Hodgson JA has pointed out, it was tendered in respect of an issue upon which the Crown, not the appellant, bore the burden of proof.

72 Lack of notice pursuant to s97(1)(a) of the Act formed no part of O’Keefe J’s reasons for rejecting the evidence, and does not appear to have been argued at the trial. No doubt, the Crown would suffer some prejudice from an inability so long after the event to examine the circumstances of the murders. However, that would not justify the exercise of the discretion under s135 of the Act to reject the evidence. In my view, a trial judge would need to think long and hard before exercising that discretion against an accused in a criminal trial.

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Last Modified: 08/20/2004