R v Krezic - [2017] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

R v Krezic [2017] QCA 122

PARTIES:

R
v
KREZIC, Brian Stewart
(appellant)

FILE NO/S:

CA No 115 of 2015
SC No 329 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 19 May 2015

DELIVERED ON:

9 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2017

JUDGES:

Gotterson and McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the trial judge ruled that evidence of conversations and acts between the appellant and covert officers be admitted at trial – where the appellant submits that the evidence admitted breached the appellant’s right to silence – where the appellant submits the trial judge erred in failing to properly balance the need to protect the procedural rights of the appellant – whether the evidence was properly admitted

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant and his co-accused planned to rob the deceased – where the appellant was armed with a knife – where the deceased died from multiple stab wounds – where a co-offender testified against the appellant at trial – where the co-offender admitted at trial that she did not see the appellant stab the deceased – where the appellant submits that the verdict of the jury was unsafe and unsatisfactory having regard to the evidence at trial – whether it was open to the jury on the evidence as a whole to convict

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – where the trial judge ruled that the appellant and his co-accused be tried together – where the trial judge refused separate trials because the evidence was substantially interlinked – where the appellant argued that the trials should have been separated because the evidence of a key witness was admissible against his co-accused only – whether the trial judge erred in dismissing the appellant’s application for separate trials

Police Powers and Responsibilities Act 2000 (Qld) s 396, s 405, s 406

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, cited
R v Belford & Bound (2011) 208 A Crim R 256; [2011] QCA 43, cited
R v SCH[2015] QCA 38, cited
R v Swaffield (1998) 192 CLR 159; [1998] HCA 1, considered
Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39, cited

COUNSEL:

N V Weston for the appellant
D R Kinsella with S J Bain for the respondent

SOLICITORS:

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Krezic

Details

AGLC: R v Krezic [2017] QCA 122
Case: [2017] QCA 122
Decision Date: 9 June 2017

CaseChat Overview and Summary

The case of R v Krezic involves the appellant's appeal against his conviction and sentence for the murder of the deceased. The primary issues before the court included the admissibility of certain evidence, the reasonableness of the jury's verdict, and the trial judge's refusal to grant separate trials for the appellant and his co-accused. The Crown presented evidence that the appellant and his co-accused, Huston, conspired to rob the deceased, with the appellant armed with a knife. The deceased was found to have died from multiple stab wounds. The appellant argued that the evidence admitted at trial breached his right to silence, that the verdict was unreasonable given the evidence, and that the trial judge should have granted separate trials.

The court found that the trial judge's decision to admit evidence from covert operatives and to refuse separate trials was correct. The judge properly balanced the appellant's procedural rights against the need for the evidence and found that the evidence was substantially interlinked, justifying a joint trial. The court further held that the jury's verdict was reasonable and supported by the evidence. The appellant's argument that the evidence was inadmissible or that the verdict was unreasonable was rejected. The court concluded that the evidence was sufficient to establish the appellant's guilt beyond reasonable doubt.

In light of the above, the court dismissed the appeal. The conviction and sentence for the appellant were upheld. The trial was deemed to have been conducted fairly, and the evidence presented was adequate to support the jury's verdict. The court found no basis to interfere with the trial judge's decisions regarding the admissibility of evidence or the conduct of the trial.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Crown case relied on liability on two alternative bases. First, that the appellant was a principal offender pursuant to s 7 of the Criminal Code. Alternatively, that the appellant was liable pursuant to s 8 of the Code on the basis that Huston and the appellant formed a common intention to prosecute an unlawful purpose, robbing the deceased; that the deceased’s murder was committed in the prosecution or carrying out of that unlawful purpose; and that the offence was of such a nature that its commission was a probable consequence of the prosecution of that unlawful purpose.Evidence The Crown case against the appellant relied on evidence from Moutsatsos, who had initially been charged with murder but entered a plea of guilty to manslaughter which was accepted by the Crown in satisfaction of the indictment against Moutsatsos. The Crown also relied on scientific, medical and other evidence linking the appellant to the deceased on the night in question, lies told by the appellant and admissions made by the appellant to covert operatives. Moutsatsos gave evidence that on the night in question Huston asked her to arrange a meeting with the deceased. The deceased was to be told that the purpose of the meeting was to purchase drugs. However, Huston told Moutsatsos he was going to steal the drugs from the deceased. Huston then made a telephone call to someone who Moutsatsos later found out to be the appellant. She described the appellant as ten times bigger than the deceased. Huston arranged for the appellant to come with him to the meeting with the deceased. Moutsatsos said when Huston collected the appellant from his home, the appellant showed Huston a knife. It was the only knife she saw that evening. Huston told the appellant to leave the knife but the appellant replied “nah fuck him”. Huston repeatedly told the appellant not to use the knife. The appellant’s response was to laugh and say “yeah no”. Moutsatsos said Huston and the appellant discussed what would happen at the meeting with the deceased. They agreed the appellant would get into the boot of the vehicle and Huston, after meeting with the deceased, would use an excuse of needing to get his wallet in order to open the boot so that the appellant could exit at the scene. Moutsatsos said when she left the vehicle near the prearranged meeting place, Moutsatsos observed the appellant get inside the boot and put an orange coloured shirt around his head like a balaclava. The boot lid was then pulled down. The vehicle drove off leaving Moutsatsos on the roadway. About two or three minutes later, Moutsatsos heard a “long, loud scream”. Shortly after that scream, the vehicle returned with both Huston and the appellant seated inside it. Moutsatsos said when entered the back seat, the appellant left the vehicle and put something wrapped in an orange shirt into the boot. The appellant spoke about stabbing the deceased when he returned to the vehicle. He was chuckling and indicated stabbing the deceased in the chest area. The appellant told Moutsatsos “if you open your mouth you’re next”. Moutsatsos said the appellant had blood on his shirt. When Huston dropped the appellant back at his house, the appellant went to the boot of the vehicle. Moutsatsos saw his hand in the boot area.

Decision

Reasons for decision

This ground also fails.Conclusions There was no error in the pre-trial Judge’s exercise of the discretion to refuse the appellant’s application for a separate trial. There was also no error by the pre-trial Judge in exercising the discretion not to exclude the evidence of the covert operatives. The verdict of the jury was not unreasonable. A consideration of the evidence admissible against the appellant amply supports a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of all of the elements necessary to establish the appellant’s guilt of the offence of murder.Order I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Krezic [2017] QCA 122
PARTIES:	R v KREZIC, Brian Stewart (appellant)
FILE NO/S:	CA No 115 of 2015 SC No 329 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 19 May 2015
DELIVERED ON:	9 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2017
JUDGES:	Gotterson and McMurdo JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the trial judge ruled that evidence of conversations and acts between the appellant and covert officers be admitted at trial – where the appellant submits that the evidence admitted breached the appellant’s right to silence – where the appellant submits the trial judge erred in failing to properly balance the need to protect the procedural rights of the appellant – whether the evidence was properly admitted CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant and his co-accused planned to rob the deceased – where the appellant was armed with a knife – where the deceased died from multiple stab wounds – where a co-offender testified against the appellant at trial – where the co-offender admitted at trial that she did not see the appellant stab the deceased – where the appellant submits that the verdict of the jury was unsafe and unsatisfactory having regard to the evidence at trial – whether it was open to the jury on the evidence as a whole to convict CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – where the trial judge ruled that the appellant and his co-accused be tried together – where the trial judge refused separate trials because the evidence was substantially interlinked – where the appellant argued that the trials should have been separated because the evidence of a key witness was admissible against his co-accused only – whether the trial judge erred in dismissing the appellant’s application for separate trials Police Powers and Responsibilities Act 2000 (Qld) s 396, s 405, s 406 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, cited R v Belford & Bound (2011) 208 A Crim R 256; [2011] QCA 43, cited R v SCH[2015] QCA 38, cited R v Swaffield (1998) 192 CLR 159; [1998] HCA 1, considered Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39, cited
COUNSEL:	N V Weston for the appellant D R Kinsella with S J Bain for the respondent
SOLICITORS: