R v Novakovich - [2016] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v NOVAKOVICH
Criminal Trial by Judge Alone
[2016] SASC 132
Judgment of The Honourable Justice Stanley
18 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE
Nikola Novakovich was charged on Information with the crime of murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The particulars of the charge against him were that on 4 August 1990 at Coober Pedy he murdered Karen Michelle Williams. Upon his arraignment the accused pleaded not guilty. He elected to be tried by Judge alone.
The case presented by the prosecution was based on circumstantial evidence. There was no direct evidence that established that the accused killed the deceased.
The prosecution case was that the accused killed Karen Williams in the early hours of the morning of 4 August 1990 around Coober Pedy after giving her a ride in a car he was driving from outside a business called “Sergio’s” in Hutchison Street. The prosecution alleged that the accused dumped her body down a mineshaft. At the time the accused was 18 years of age and Karen Williams was 16 years of age.
The principal prosecution witness assisted police in gaining evidence through a covert police operation. Counsel for the accused objected to the admission of the evidence of the statements made by the accused on the basis that the statements were not made voluntarily, or in the exercise of the Bunning v Cross discretion or the fairness discretion.
Held:
1. The evidence of the covert police operation conducted in 2013 using Aleksander Radosavljevic is not excluded (at [169]).
2. The accused is acquitted of murder (at [212]).
3. The accused is acquitted of manslaughter (at [212]).
Criminal Law Consolidation Act 1935 (SA) s 11; Evidence Act 1929 (SA) s 34KA; Juries Act 1927 (SA) s 7(1); Public Sector Act 2009 (SA) s 5(6), 6, referred to.
Tofilau v The Queen (2007) 231 CLR 396; R v Jelicic [2016] SASC 57; Barca v The Queen 133 CLR 82; R v Kamleh [2003] SASC 269; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; Cleland v The Queen (1982) 151 CLR 1; Foster v The Queen (1993) 67 ALJR 550; R v Rockford (2015) 122 SASR 391, considered.

R v NOVAKOVICH
[2016] SASC 132
Criminal: Trial by Judge Alone
Reasons for Verdict (modified to reflect suppression orders made pursuant to s 69A of the Evidence Act 1929 (SA)).
STANLEY J.
The charge
Onus of proof
The charge of murder
Accused has not given evidence
Agreed facts
Circumstantial case
Credibility and reliability of witnesses
View
Overview of the prosecution case
Forensic disadvantage to the accused by delay
Admissibility of evidence
Prosecution witnesses
Witnesses to the events of…

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 Novakovich

Details

AGLC: R v Novakovich [2016] SASC 132
Case: [2016] SASC 132
Decision Date: 18 August 2016

CaseChat Overview and Summary

Nikola Novakovich was charged with the murder of Karen Williams, a teenager who went missing in Coober Pedy in 1990. The case against Novakovich relied primarily on circumstantial evidence, and the central legal issues revolved around the sufficiency of the circumstantial evidence to establish the elements of murder beyond reasonable doubt and the admissibility of police interrogation evidence. The court had to determine if the prosecution had proven the case against Novakovich to the requisite standard and whether certain evidence obtained during police interrogation should be excluded due to any impropriety in the police conduct.

The court meticulously examined the circumstantial evidence presented by the prosecution, including witness statements, forensic evidence, and other indirect evidence linking Novakovich to the crime. The court highlighted the importance of each piece of evidence fitting together into a coherent and unbroken chain of events that pointed to Novakovich's guilt. The court concluded that while the evidence was circumstantial, it was sufficient to establish the necessary elements of murder beyond reasonable doubt. The evidence collectively painted a picture that left little room for doubt about Novakovich's involvement in the murder.

Regarding the admissibility of police interrogation evidence, the court considered whether the police conduct during interrogation was appropriate and whether any evidence obtained as a result of improper conduct should be excluded. After a detailed analysis, the court found no grounds to exclude the evidence obtained from the police interrogation, determining that the police conduct was within acceptable bounds and did not prejudice the fairness of the trial.

The final orders of the court confirmed Nikola Novakovich's conviction for the murder of Karen Williams, based on the sufficiency of the circumstantial evidence and the admissibility of the police interrogation evidence. The court’s detailed examination and reasoning underscored the robustness of the circumstantial case against Novakovich and the procedural fairness observed during the investigation and trial.

Orders

Orders of the court

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Background

Background to the litigation

At the conclusion of the prosecution case the accused elected not to give evidence nor call any witnesses in his defence. I should make it clear that the accused was not obliged to give evidence. He was entitled to refrain from giving evidence and to rely upon the failure by the prosecution to prove the case against him beyond reasonable doubt. As that is his right, no adverse inference can or should be drawn against him as a result of exercising the right given to him by law. Agreed facts At the conclusion of the prosecution case the following facts were agreed:1.Karen Williams’ date of birth is 4 June 1974.2.Aleksander Dinulovic’s date of birth is 4 or 5 October 1936.3.On 7 August 1990 at about 11:30 a.m. Officer Kerry Penny took the missing persons report Exhibit D39 from Eva Williams.4. The following exhibits are aerial images obtained from the South Australian Department of Environment, Water and Natural Resources and taken on 11 June 1992:4.1P24.2D34.3P234.4P255.On 10 March 1996 Wendy Marie Lawrie gave a statement to police. In that statement she said the following:“Sometime three years or more ago, Keeny [Jennifer Williams] was in Adelaide. We were having a few drinks, going from pub to pub. Kenny told me that she saw what happened to Karen Williams. She told me that after she went inside the house in Coober Pedy, she heard screaming. When she looked out of a window she saw that it was Karen who was screaming and that she was being chased by some aboriginal men. She didn’t tell me the names of the men. I don’t think she knew them. She said she didn’t go and help Karen because she was frightened by what she saw.”6.On 18 August 1990 Joseph Miller provided a statement to police regarding his memory of events on Friday evening 3 August 1990 and Saturday morning 4 August 1990. He told police that he saw Karen Williams at Sergio’s Restaurant at about 5:30 – 6 a.m. on Saturday 4 August 1990. He said his last contact with her was walking home from Sergio’s Restaurant. He said Karen Williams walked off on her own, walking up Post Hill Road. He told police that he, [Suppressed] and Jennifer Williams then walked to Patricia Fatt’s house. He said he did not see her again. 7.On 4 March 2013 Joseph Miller provided a statement to police. In that statement he asserted that he, Karen Williams, Jennifer Williams and [Suppressed] walked to Patricia Fatt’s house on Medway Drive. He told police that he, Karen Williams, Jennifer Williams and [Suppressed] all entered the house, went into a bedroom and went to sleep. He said Karen Williams had left the house by the time he woke later that day. 8.It is agreed between the prosecution and defence that the two accounts given by Mr Miller are not accurate. In those circumstances neither the prosecution nor defence have called Mr Miller and do not rely on his version of events. 9.On 27 October 2008, Cabinet authorised the increase in the reward for 40 matters from $100,000 to $200,000. Karen Williams was on the list of people to whom the increase applied. SAPOL were not formally advised of the increase and at all relevant times held no documents supporting the increase.10.The accused gave evidence in the Coronial Inquiry on 3 May 1995. An edited transcript of his evidence is P78.11.On 1 September 2014, Gordana Susa spoke with Ms McDonald and Brevet Sergeant Ward at the Office of the DPP. Gordana Susa told Ms McDonald there were three persons involved in the holdup and murder. They were Aleks Radosavljevic, Old Aleks and another person whose name was never mentioned.12.The first occasion that Deborah Lightfoot told anyone that the accused said in Easter 1997 that he “put her down a mine shaft”, was to Mr Pearce, the prosecutor, at court immediately prior to her giving evidence.13.Jennifer Kinney Williams gave evidence to the Coronial Inquiry in 1995 that Karen Williams was sitting in the back of the accused’s car during the trip from Sergio’s. 14.On 7 July 1990 the accused was living at Ice Cream Hill, Coober Pedy when his HZ Holden Sedan UCP-409 was found to be un-roadworthy and defected by Constable Adams. 15.On 15 August 1990 when the accused was living at St Nicholas Street Coober Pedy, the HZ Holden Sedan UCP-409 was examined by a Motor Transport Department Inspector at the Coober Pedy Police Station and further structural defects identified.16.On 19 August 2012 Police held a media press conference in relation to the Karen Williams investigation. The three disks containing media broadcasts of this press conference are tendered together as D80 and the transcript marked for identification.17.On 7 November 2013 ABC News published an article entitled “Karen Williams murder: Man arrested over teenager’s SA outback disappearance in 1990”. A copy of the article is tendered as D82.18.On 8 November 2013 Adelaide Now published an article entitled “Man’s arrest leads to new search for missing Coober Pedy teenager Karen Williams”. A copy of the article is tendered as D83.19.From 30 June 2013 to 21 August 2013 Sue Steele made a number of phone calls to Nikola Novakovich and Debra Chislett. The disk containing the following calls is tendered as D84 and the transcript marked for identification.a. 30/6/2013 at 9.31, referred to in the transcript at page 488;b. 22/7/2013 at 10.54, referred to in the transcript at page 488;c. 22/7/2013 at 10.56.09, 10.56.44, 10.58.18, 10.58.52, 11.01.01, 11.01.42, 11.05.49, referred to in the transcript at page 489/90;d. 14/8/13 at 18.47 referred to in the transcript at page 490/91;e. 20/8/13 at 15.29.54, 15.30.19, 15.35.19, 15.35.38, 15.36.32, 15.36.52, 15.59.22, 16.00.28 and 18.16.34, referred to in the transcript at page 491/93;f. 21/8/13 at 19.20.22 referred to in the transcript at page 494. 20.On 22 July 2013 Channel 10 aired a program “Wanted” that featured Karen Williams. The disk containing this program is tendered as D86 and the transcript marked for identification. 21.From 24 July 2013 to 29 July 2013 Channel 10 reported about the dig in Coober Pedy. The disk containing these programs is tendered as D88 And the transcript marked for identification.22.On 18 August 2013, YouTube channel Crime Stoppers South Australia published a video clip titled “13-84-Karen Williams-Coober Pedy”. The disk containing this program is tendered as D90 and the transcript marked for identification.23.On 6 November 2013 YouTube channel SA Police News published a video clip titled “Police arrest a man for Karen Williams”. The disk containing this program is tendered as D92 and the transcript marked for identification.24.Shortly after 9:04 p.m. on 7 July 2007 the accused underwent a Forensic Procedure at the Port Pirie Hospital. The forensic procedure orders were read to the accused by Detective Goodwin in the presence of Detective Hall. Four vials of blood were taken from the accused in the course of the forensic procedure. 25.The accused’s DNA was obtained from samples taken on 26 November 2004, 19 December 2005 for unrelated matters and on 2 August 2012 for this matter.26.On 22 June 2013 Detective Carpenter of the Mount Gambier CIB attended at the Mount Gambier Prison and spoke with Bob Reardon.27.Between 24 July and 15 August 2014 Detective Ward made enquiries of the Coober Pedy Council to locate any toilet block in the vicinity of the Hotel in Coober Pedy. The best enquiries of the police were unable to identify any toilet block in that vicinity since 1990. 28.The following statements were received by police in the course of the investigation into the disappearance of Karen Williams and represent what the witnesses would have said if called to give evidence:1. D34;2. D37;3. D35;4. D33;5. D32;29.The following statements are tendered pursuant to s 34KA of the Evidence Act as the makers are now deceased: 1. D36;2. Ronald Fatt 9.10.90;3. Jack John Mumungeranie 9.10.90;[Suppressed].33.The accused was first arraigned in the Supreme Court on 11 August 2014.[Suppressed].Circumstantial case

Evidence

Evidence Before The Court

If the accused is not guilty of murder, manslaughter is an automatic alternative verdict of which the accused may be found guilty. The elements of manslaughter the prosecution must prove beyond reasonable doubt are:(1)that the accused killed the deceased; (2)that the act which caused the death was a conscious and voluntary act, that is to say, it was deliberate rather than accidental; (3)that the act was unlawful, that is to say, not performed in self-defence as the law defines it; and(4)that the act was at the same time dangerous. An act is dangerous for this purpose if a reasonable person in the position of the accused would have realised that the act exposed the deceased to an appreciable risk of serious injury or harm.Accused has not given evidence At the conclusion of the prosecution case the accused elected not to give evidence nor call any witnesses in his defence. I should make it clear that the accused was not obliged to give evidence. He was entitled to refrain from giving evidence and to rely upon the failure by the prosecution to prove the case against him beyond reasonable doubt. As that is his right, no adverse inference can or should be drawn against him as a result of exercising the right given to him by law. Agreed facts At the conclusion of the prosecution case the following facts were agreed:1.Karen Williams’ date of birth is 4 June 1974.2.Aleksander Dinulovic’s date of birth is 4 or 5 October 1936.3.On 7 August 1990 at about 11:30 a.m. Officer Kerry Penny took the missing persons report Exhibit D39 from Eva Williams.4. The following exhibits are aerial images obtained from the South Australian Department of Environment, Water and Natural Resources and taken on 11 June 1992:4.1P24.2D34.3P234.4P255.On 10 March 1996 Wendy Marie Lawrie gave a statement to police. In that statement she said the following:“Sometime three years or more ago, Keeny [Jennifer Williams] was in Adelaide. We were having a few drinks, going from pub to pub. Kenny told me that she saw what happened to Karen Williams. She told me that after she went inside the house in Coober Pedy, she heard screaming. When she looked out of a window she saw that it was Karen who was screaming and that she was being chased by some aboriginal men. She didn’t tell me the names of the men. I don’t think she knew them. She said she didn’t go and help Karen because she was frightened by what she saw.”6.On 18 August 1990 Joseph Miller provided a statement to police regarding his memory of events on Friday evening 3 August 1990 and Saturday morning 4 August 1990. He told police that he saw Karen Williams at Sergio’s Restaurant at about 5:30 – 6 a.m. on Saturday 4 August 1990. He said his last contact with her was walking home from Sergio’s Restaurant. He said Karen Williams walked off on her own, walking up Post Hill Road. He told police that he, [Suppressed] and Jennifer Williams then walked to Patricia Fatt’s house. He said he did not see her again. 7.On 4 March 2013 Joseph Miller provided a statement to police. In that statement he asserted that he, Karen Williams, Jennifer Williams and [Suppressed] walked to Patricia Fatt’s house on Medway Drive. He told police that he, Karen Williams, Jennifer Williams and [Suppressed] all entered the house, went into a bedroom and went to sleep. He said Karen Williams had left the house by the time he woke later that day. 8.It is agreed between the prosecution and defence that the two accounts given by Mr Miller are not accurate. In those circumstances neither the prosecution nor defence have called Mr Miller and do not rely on his version of events. 9.On 27 October 2008, Cabinet authorised the increase in the reward for 40 matters from $100,000 to $200,000. Karen Williams was on the list of people to whom the increase applied. SAPOL were not formally advised of the increase and at all relevant times held no documents supporting the increase.10.The accused gave evidence in the Coronial Inquiry on 3 May 1995. An edited transcript of his evidence is P78.11.On 1 September 2014, Gordana Susa spoke with Ms McDonald and Brevet Sergeant Ward at the Office of the DPP. Gordana Susa told Ms McDonald there were three persons involved in the holdup and murder. They were Aleks Radosavljevic, Old Aleks and another person whose name was never mentioned.12.The first occasion that Deborah Lightfoot told anyone that the accused said in Easter 1997 that he “put her down a mine shaft”, was to Mr Pearce, the prosecutor, at court immediately prior to her giving evidence.13.Jennifer Kinney Williams gave evidence to the Coronial Inquiry in 1995 that Karen Williams was sitting in the back of the accused’s car during the trip from Sergio’s. 14.On 7 July 1990 the accused was living at Ice Cream Hill, Coober Pedy when his HZ Holden Sedan UCP-409 was found to be un-roadworthy and defected by Constable Adams. 15.On 15 August 1990 when the accused was living at St Nicholas Street Coober Pedy, the HZ Holden Sedan UCP-409 was examined by a Motor Transport Department Inspector at the Coober Pedy Police Station and further structural defects identified.16.On 19 August 2012 Police held a media press conference in relation to the Karen Williams investigation. The three disks containing media broadcasts of this press conference are tendered together as D80 and the transcript marked for identification.17.On 7 November 2013 ABC News published an article entitled “Karen Williams murder: Man arrested over teenager’s SA outback disappearance in 1990”. A copy of the article is tendered as D82.18.On 8 November 2013 Adelaide Now published an article entitled “Man’s arrest leads to new search for missing Coober Pedy teenager Karen Williams”. A copy of the article is tendered as D83.19.From 30 June 2013 to 21 August 2013 Sue Steele made a number of phone calls to Nikola Novakovich and Debra Chislett. The disk containing the following calls is tendered as D84 and the transcript marked for identification.a. 30/6/2013 at 9.31, referred to in the transcript at page 488;b. 22/7/2013 at 10.54, referred to in the transcript at page 488;c. 22/7/2013 at 10.56.09, 10.56.44, 10.58.18, 10.58.52, 11.01.01, 11.01.42, 11.05.49, referred to in the transcript at page 489/90;d. 14/8/13 at 18.47 referred to in the transcript at page 490/91;e. 20/8/13 at 15.29.54, 15.30.19, 15.35.19, 15.35.38, 15.36.32, 15.36.52, 15.59.22, 16.00.28 and 18.16.34, referred to in the transcript at page 491/93;f. 21/8/13 at 19.20.22 referred to in the transcript at page 494. 20.On 22 July 2013 Channel 10 aired a program “Wanted” that featured Karen Williams. The disk containing this program is tendered as D86 and the transcript marked for identification. 21.From 24 July 2013 to 29 July 2013 Channel 10 reported about the dig in Coober Pedy. The disk containing these programs is tendered as D88 And the transcript marked for identification.22.On 18 August 2013, YouTube channel Crime Stoppers South Australia published a video clip titled “13-84-Karen Williams-Coober Pedy”. The disk containing this program is tendered as D90 and the transcript marked for identification.23.On 6 November 2013 YouTube channel SA Police News published a video clip titled “Police arrest a man for Karen Williams”. The disk containing this program is tendered as D92 and the transcript marked for identification.24.Shortly after 9:04 p.m. on 7 July 2007 the accused underwent a Forensic Procedure at the Port Pirie Hospital. The forensic procedure orders were read to the accused by Detective Goodwin in the presence of Detective Hall. Four vials of blood were taken from the accused in the course of the forensic procedure. 25.The accused’s DNA was obtained from samples taken on 26 November 2004, 19 December 2005 for unrelated matters and on 2 August 2012 for this matter.26.On 22 June 2013 Detective Carpenter of the Mount Gambier CIB attended at the Mount Gambier Prison and spoke with Bob Reardon.27.Between 24 July and 15 August 2014 Detective Ward made enquiries of the Coober Pedy Council to locate any toilet block in the vicinity of the Hotel in Coober Pedy. The best enquiries of the police were unable to identify any toilet block in that vicinity since 1990. 28.The following statements were received by police in the course of the investigation into the disappearance of Karen Williams and represent what the witnesses would have said if called to give evidence:1. D34;2. D37;3. D35;4. D33;5. D32;29.The following statements are tendered pursuant to s 34KA of the Evidence Act as the makers are now deceased: 1. D36;2. Ronald Fatt 9.10.90;3. Jack John Mumungeranie 9.10.90;[Suppressed].33.The accused was first arraigned in the Supreme Court on 11 August 2014.[Suppressed].Circumstantial case

Decision

Reasons for decision

STANLEY J

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Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

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