R v Novakovic & Ors (Ruling 1) - [2019] VSC 338

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0195
S CR 2018 0196
S CR 2018 0197

Between:

THE QUEEN

-and-

MILOS NOVAKOVIC
MILAN JOVIC &
SASA JOVIC

Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2019
DATE OF RULING:	2 May 2019
CASE MAY BE CITED AS:	R v Novakovic & Ors (Ruling 1)
MEDIUM NETRAL CITATION:	[2019] VSC 338

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CRIMINAL LAW — Evidence — Affray, aggravated burglary and murder — Deceased died as a result of single stab wound inflicted by principal accused during assault at restaurant — Notice of evidence of incriminating conduct against principal accused — In days immediately following stabbing, principal accused conducted internet searches on, inter alia, “video surveillance [of restaurant]”, “prison time for stabbing”, “fingerprints on steel”, “stab fight in self-defence”, “put my house under mother’s name”, “are you allowed to leave the country if you’re a suspect” and “last minute flights”, and he sought to depart Australia for Serbia — Principal accused admits stabbing (and thereby killing) deceased but disputes murderous intent — Principal accused will plead not guilty to murder but guilty to manslaughter in presence of jury — Whether, on basis of evidence as a whole, evidence of conduct to be relied on reasonably capable of being viewed by jury as evidence of incriminating conduct, namely, a belief by the principal accused that he had murderous intent when he killed deceased — On the evidence, not open to jury conclude that only reasonable explanation of conduct was alleged belief — Prosecution application refused — Jury Directions Act 2015 (Vic), ss 18-23; Evidence Act 2008 (Vic), ss 55, 56 & 137.

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Appearances:	Counsel	Solicitors
For the Crown	Mr K Doyle with Ms J Warren	John Cain, Solicitor for Public Prosecutions
For Mr Novakovic	Mr C Mandy SC	Marcevski Lawyers
For Mr M Jovic	Mr P Dunn QC	Emma Turnbull Lawyers
For Mr S Jovic	Mr D Sheales	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

In the early hours of Saturday 9 September 2017, Deni Dimovski was stabbed in the chest and killed during the course of an assault in the kitchen of the Korzo Grill House in Caroline Springs.
As a result of that incident and of the events that preceded it, most of which were captured on the restaurant’s CCTV cameras, Milos Novakovic, Milan Jovic and his brother Sasa Jovic have been indicted in this Court on charges of affray, aggravated burglary and murder.
The prosecution case is that Mr Novakovic is the principal offender, particularly in respect of the alleged murder. Mr Novakovic accepts that he unlawfully inflicted the stab wound that caused Mr Dimovski’s death. Indeed, he intends to plead guilty to manslaughter before the jury. But he denies that he possessed the intention to kill or cause really serious injury required for murder, and will therefore plead not guilty to that charge.
The prosecution case against the Jovic brothers, who will plead not…

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.

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Details

Case: [2019] VSC 338
Decision Date: 2 May 2019

CaseChat Overview and Summary

The defendants, Novakovic and others, faced the Victorian Supreme Court in a criminal trial involving charges of affray, aggravated burglary, and murder. The dispute arose from an incident at a restaurant where the deceased was fatally stabbed by the principal accused. The principal accused admitted to the stabbing but denied having murderous intent. Instead, he planned to plead not guilty to murder but guilty to manslaughter. The court had to decide whether the evidence of the accused's post-incident conduct, including internet searches and an attempted departure from Australia, could be considered incriminating evidence of murderous intent.

The legal issues revolved around the admissibility of the accused's conduct under the Jury Directions Act 2015 (Vic) and the Evidence Act 2008 (Vic). Specifically, the court had to determine if the conduct was reasonably capable of being viewed by the jury as evidence of the accused's belief that he had murderous intent. The court examined the totality of the evidence and concluded that it was not open to the jury to infer that the only reasonable explanation for the accused's conduct was his alleged belief in murderous intent.

The court found that the evidence did not support the conclusion that the principal accused's actions were solely explicable by a belief in murderous intent. Therefore, the prosecution's application to rely on the incriminating conduct as evidence of murderous intent was refused. The court's reasoning focused on the totality of the evidence and the inability to draw a definitive link between the accused's actions and a belief in murderous intent.

In conclusion, the court ordered that the evidence of the accused's conduct would not be admissible as evidence of murderous intent. The trial proceeded with the principal accused pleading guilty to manslaughter and not guilty to murder.

Orders