R v Plevac

[1999] NSWCCA 351

CITATION:	R v Plevac [1999] NSWCCA 351
FILE NUMBER(S):	CCA 60524/96
HEARING DATE(S):	Thursday 28 October 1999
JUDGMENT DATE:	28 October 1999
PARTIES :	Regina v Josef Plevac
JUDGMENT OF:	Grove J at 1; James J at 58; Dowd J at 59

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70041/90
LOWER COURT JUDICIAL OFFICER:	McInerney J

COUNSEL:	C.K. Maxwell QC (Crown) A.J. Bellanto QC (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) Patricia White & Associates (Applicant)
CATCHWORDS:	Criminal Law And Procedure - Murder - Circumstance - Motive - Relationship Evidence Concerning Victim And Appellant - Content Of Charge To Jury - New Evidence - Psychiatrist's Opinion Of Fear Of Fire - Victim Killed By Incineration - Letter Claimed To Be Written By Deceased - Deliberately Withheld On Advice Of Senior Counsel - Content Of Letter Does Not Indicate Miscarriage In Any Event
CASES CITED:	Penney v The Queen 1998 72 ALJR 1316 R v Murphy 1985 4 NSWLR 42 Chamberlain v The Queen (No 2) 1984 153 CLR 521 R v Kotzmann (1999) VSCA 27
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60524/96

GROVE J
JAMES J
DOWD J

Thursday 28 October 1999

REGINA v JOSEF PLEVAC

JUDGMENT

1    GROVE J : This is an appeal by Josef Plevac against the conviction for the murder of his wife Dana Plevac following a trial before McInerney J and a jury. Those proceedings were a retrial following orders made in this court on 5 October 1995.

2    The appellant and his wife lived apart. He had been residing in the former matrimonial home at Bossley Park but this was destroyed by fire in February 1989. The victim (who was the appellant's second wife) resided with their daughter Natalie on the fourteenth level of an apartment building in Parramatta. Natalie was at the time of her mother's death aged five.

3    The deceased had been employed as a paymistress and she had commenced an association with a work colleague, Timothy Sullivan. Mr Sullivan had gone to Western Australia seeking employment and a residence. Dana Plevac joined him in Western Australia for a time but returned to Sydney, although it would appear that this return may have been intended to be temporary.

4    There was in existence a restraining order prohibiting the appellant amongst other things from approaching the residence of the deceased. He claimed that he consented to that order to allay an unfounded apprehension of his wife that he might take Natalie to the Czech Republic where he had family including his mother.

5    On the morning of 22 September 1989 Dana and Natalie Plevac emerged from their apartment and were making their way towards the lift in order to proceed to work and to school respectively. An assailant whose head and face were covered by a balaclava-like disguise, doused the victim in what was later identified as petrol and ignited her. Natalie ran to the door of a nearby apartment and was taken in to safety. The victim, aflame, was found by the building manager. He attempted to apply a fire extinguisher. He had been alerted by a signal system that there had been a conflagration of some sort on the fourteenth level.

6    Dana Plevac was taken by ambulance to Westmead Hospital where she died later in the day. Before lapsing into unconsciousness, questions were asked of her concerning the incident and she said that she could not identify her attacker and also specifically said that it was neither her husband nor her boyfriend.

7    The appellant did not dispute that at the relevant time he was in the vicinity. He had himself suffered burns in the fire at the Bossley Park residence. As at September he had only recently been discharged from hospital where he had further treatment in respect of those injuries. He claimed to be on relatively good terms with his wife. She was doing his ironing. He said that he had an arrangement to collect some shirts from her but that he was diffident about being seen (in breach of the restraining order) in the vicinity of her residence. He claimed that she told him to come up and wait in the stairwell. He removed his shirt in anticipation of replacing it with a clean one. At his trial in an unsworn statement he said that he heard screaming whilst he was within the stairwell and when he opened the door he saw a man "in black - in blue tracksuit, towel over head - over neck, on the left shoulder back, jumping and running down." He saw a fire and panicked and ran to his car. Many witnesses saw a shirtless man running in the Parramatta area. The appellant did not dispute that this was him.

8    He drove to Katoomba where he went to a hairdresser. The hairdresser said that she detected sooty-like substance in his hair. An assistant at the hairdressing salon said that she smelled petrol. He made telephone calls to an acquaintance, Betty Cortis, with whom he had been keeping company. He later visited her and asked her to telephone Dana's place of work. She did and passed to him the news that she was dead. She said the appellant appeared shocked and said, "I don't believe it".

9    At about 4.20pm the appellant was driving in Woodville Road, Parramatta when he was stopped by police. He denied killing his wife. The police noticed some burns on the appellant and in response to questions he claimed that these were an aftermath of the fire at Bossley Park. At about 7pm a police medical officer was called and he expressed the opinion that raw, weeping burns which he detected on the body of the appellant had occurred within the last twenty-four hours. The appellant admitted to the doctor that those burns had occurred that morning.

10    There was evidence from observers of violence in the relationship between the appellant and his wife. A daughter of his first marriage, Eva, who visited him in hospital shortly before the events of 24 September testified that her father had appeared distressed because Dana was said to be wearing a new ring on her finger. (He was aware of the existence of Timothy Sullivan.) He complained that he wanted his wife back and felt that he was being rejected because he was scarred and ugly and he said that he wished "she could feel just one bit of the pain he was in." The appellant did not dispute making this statement but he asserted that he was referring to emotional and not physical pain.

11    There was evidence from Anthony Valenti that he knew the accused, who was a milkman and a customer of his motor garage. He often spoke to the appellant. The appellant repeatedly told him that he wanted his wife back and couldn't live without her and he constantly said things like, "I can't live without her. I won't let her stay without me" and "If I can't have her, no-one else will."

12    There was further evidence that on 22 September the appellant had called at a garage where he purchased about fifteen litres of petrol. The console operator at the garage, who was acquainted with him, said that he could not see whether all of the petrol was discharged from the pump into the vehicle or otherwise. The amount of petrol purchased was larger than would have fitted into a container which was found at the scene of the crime and demonstrated to have previously contained petrol.

13    Subject to some reference to asserted evidence from Natalie, who was aged twelve when she gave evidence in the trial with which this appeal is concerned, there was no direct evidence identifying the appellant as the offender. I say asserted in the context of submission on behalf of the appellant to this court to which I will turn. The foregoing is a sketch of the circumstantial case upon which the Crown relied.

14    Twelve grounds of appeal were filed including seven additional grounds sought to be relied upon. Four of these grounds were formally abandoned and it will be convenient to deal with the remainder in the numeral order allocated to them.

15    Ground 4:

"The trial judge failed to adequately or properly direct the jury as to the issue of 'relationship' and the use to be made of evidence said to be relevant to that issue."

16    A number of complaints were raised under this ground. During the testimony of Mr Fennell, the building manager of the flats at which the victim resided, the learned trial judge declined to admit evidence concerning the existence of the restraining order which was relevant to the physical presence at the premises of the appellant. A transcript notation shows that counsel stated at this point that he objected to any reference to the apprehended violence order either by Mr Fennell or the police or anybody on the basis that it was not relevant to the case. The precise terms of his Honour’s ruling are noted as follows:

“His Honour stated that he would not admit that evidence at this stage but granted the Crown leave to recall Mr Fennell to give that evidence if his Honour ruled later on in the trial that the issue of an apprehended domestic violence order should go before the jury.”
Later, through Det Sgt Southam, evidence was given of a conversation in which the appellant was questioned about his knowledge of the existence of that order. It cannot be imagined that senior counsel appearing for the appellant (who did not appear in the appeal) was unaware of the intended evidence and not only was there no renewed objection, there was no application for a specific direction to be given. Indeed, as I have already mentioned, it was the appellant's claim that he had consented to this order because of the misapprehension of his wife that he may take Natalie overseas and not because she was frightened of him and the matter was left to the jury on the basis of that claim.

17    Counsel has extracted considerable reference in the charge to the jury to the evidence of various witnesses concerning aspects of the relationship between the appellant and the deceased. That reference led to a submission that the summary occupied a disproportionate amount of the summing-up and therefore over-emphasised the significance of that evidence. The volume of reference was necessitated by the considerable number of people who had observed the nature of the relationship and particularly violence emanating from the appellant towards his spouse. The evidence was somewhat confirmed by the appellant himself in his unsworn statement when he said, "It is true that I called Dana by bad names, ill treat her, but I was always sorry and apologised to her. I don't looking for any excuse because there is no excuse for my behaviour."

18    I see nothing to criticise in his Honour's dealing with this topic.

19    Specific argument was addressed to his Honour's rhetorical question to the jury: "Was it all as loving as he would have you believe?" It is contended that this "had a tendency" to reverse the onus of proof. In my view it did no such thing. I would uphold the Crown's submission that the rhetoric did no more than invite the jury to assess critically material relied upon by the appellant.

20    Ground 4 is not made out.

21    Ground 6:

"A miscarriage of justice occurred by the admission of the identification evidence of Natalie Plevac and/or such evidence not being withdrawn from the jury's consideration after it was adduced."

22    At the hearing senior counsel sought to expand his argument under this ground to contend that the relationship evidence possessed a greater significance than being merely background and was intimately connected to his Honour's reference to motive so that in the circumstances of this case it had become associated with intent. Therefore, as it bore upon that element of the defence it demanded a direction that motive be proved beyond reasonable doubt. Attention was drawn to Howard on Criminal Law, 5th edition, where the editor stated, inter alia:

"The conclusion is that there is no factual difference at all between intention and motive, the distinction being a linguistic convenience only."

23    That statement is not entirely compatible with the distinction drawn in the earlier observation:

"Motive is often relevant, however, as an item of proof either that D acted as charged or that he did so intentionally. Since intention and motive are both known to the law but serve different functions, there is some advantage in being able to distinguish one from the other but it is not always easy to do so."

24    Reference was made to Penney v The Queen (1998) 72 ALJR 1316 where Callinan J noted:

"The appellant submitted that the passage confused intention with motive: if motive is to be relied on then it must be proved beyond reasonable doubt."

25    His Honour referred to R v Murphy (1985) 4 NSWLR 42 and Chamberlain v The Queen (No 2) (1984) 153 CLR 521.

26    The remark in Penney has been the subject of subsequent comment. It was noted by James J in R v Pantoja (CCA, unreported, 5 November 1998) that in Penney, Callinan J went on to hold that the relevant evidence in that case had been relied upon not to prove motive but to prove relationship between the victim and the accused. In the same case, Adams J observed:

"It seems to me that, especially having regard to the explanation of Chamberlain v The Queen (No 2) (1984) 153 CLR 520 expressed in Shepherd v The Queen (1990) 170 CLR 573, no direction along the lines submitted by counsel for the appellant was called for in this case. (A direction that motive needed to be proved beyond reasonable doubt.) There may be cases depending upon circumstantial evidence in which proof of motive is an indispensable link in the chain of proof of the guilt of the accused and thus will need to be established beyond reasonable doubt. However, such cases must be rare."

27    Remarks to this same effect were made by Callaway JA in R v Kotzmann [1999] VSCA 27 where he noted, "It is unnecessary to decide whether motive must always be proved beyond reasonable doubt. It is difficult to believe that that could be so." His remark was made in direct reference to what had been said in Penney.

28    The present was a circumstantial case and the jury was not being invited to infer guilt from motive alone. It was not one of the rare cases referred to by Adams J and no such direction was called for. Experienced senior counsel appearing for the appellant at trial made no application for any such direction. The additional argument does not sustain the ground.

29    In her evidence in chief Natalie, who I have said was by then twelve years of age, was asked about what she remembered of the incident. She said that she remembered a man splashing something out of a bucket upon her mother and that she went up in flames. The man said nothing and she saw him go through an exit door close to the lifts. She ran to get help. She then gave this testimony:

"Q. Can you describe that man any more than the way in which you have described him?
A. No.

Q. Are you able to recognise that person?
A. Well sort of.

Q. What do you mean 'sort of'?
A. Well I could tell it could have been - it was my dad because, well my mum was wearing high heels and he was about the same height as her and because of the build.

Q. That is as far as you can say that it could have been?
A. Well, and there was a phone call the night before and it was my dad."

It is clear, particularly from the content of the final question set out above, that the Crown was not relying upon evidence from Natalie as identifying the appellant. This was made even clearer in cross-examination when in a series of questions she confirmed that all she could remember was that the man seemed to be dressed all in black and she could not see his face which was totally covered except his eyes nor could she see his hair. She gave this evidence:

"Q. Now, would I be right if I said to you that when you saw that happen on that day you did not know who that man was. Would that be right or not?
A. Yes.

Q. And would I be right in saying that you did not know who it was because, well I guess you did not see him for long enough, would that be right?
A. Yes.

Q. Would it be right that there was just nothing about him that you saw that brought to your mind any person that you knew?
A. No.

Q. See, was it the situation that when you saw him on that day and got yourself into the unit of these other people, that you did not know who that man was. Would that be right?
A. Yes."

30    She confirmed that she had told the police that she did not know who the offender was. This ground is somewhat aligned with the next.

31    Ground 7:

"His Honour erred in failing to direct the jury in relation to the frailties of the identification evidence given by Natalie Plevac and/or in providing inappropriate or inadequate directions in relation to such evidence."

32    As I have indicated, there was no reliance at trial by the Crown upon any evidence from Natalie identifying the appellant. Indeed senior counsel at trial made no request for the standard identification direction obviously because there was no evidence of identification of the appellant as the offender other than by the circumstantial case. On repeated occasions during his charge to the jury the learned trial judge told them that there was no direct evidence of identification and that the Crown relied upon its circumstantial case.

33    This and the preceding ground had been advanced upon the flawed premise that the jury could have used the evidence of Natalie as identification of the appellant as the offender. Nothing in his Honour's summing-up nor in the content of the evidence invited them so to do. Both of these grounds should be rejected.

34    Ground 8:

"His Honour erred in allowing evidence to be adduced from Mr Tim Sullivan, the deceased's boyfriend, that the appellant had previously attempted to run him off the road."

35    Objection was taken to evidence sought to be led that the deceased and Tim Sullivan were driving near a kindergarten attended by Natalie when the accused used his vehicle to force Mr Sullivan's vehicle from the road and caused it to mount a median strip. Mr Sullivan's description of the incident was simply that the appellant came alongside his vehicle and swerved and he (Mr Sullivan) had to avoid him by going off the road otherwise they would have collided. It might be mentioned that at the time of the fatal attack on Dana Plevac Mr Sullivan was in Western Australia. His Honour overruled the objection and said inter alia:

"It seems to me that there is evidence before the jury that this accused had made statements to Mr Valenti that if he could not have her no-one else could, and it is my view his reaction in those circumstances to seeing Mr Sullivan with the child and Dana is a matter that is relevant for the jury to take into account."

36    There is no error in his Honour's ruling. I would dismiss this ground.

37    Ground 9:

"His Honour erred in directing the jury to 'use your common sense and you will look at the facts in this case to determine who it was that committed this dreadful crime'."

38    It is conceded by the appellant that appropriate directions as to onus of proof appear in his Honour's charge to the jury on at least three occasions. The complaint is that the comment above "had had the potential to undermine or water down the force of such directions". With respect to senior counsel, I find it an astonishing proposition that a judge should be criticised for asking a jury to use their common sense. It is quite an artificial construction of what was said to mutate the words into a qualification upon the clear directions as to onus of proof. His Honour was dealing neither with onus or standard of proof but was directing the jury as to their use of a tool (common sense) in order to determine, in accordance with onus and standard, the exquisite central issue in the case, namely, was the appellant the offender who doused Dana Plevac in petrol and set her alight.

39    Ground 10:

"The verdict is unsafe and unsatisfactory."

40 This ground is to be understood as asserting that the verdict was unreasonable and could not be supported by the evidence in accordance with the jurisdiction of this court to be exercised pursuant to s 6(1) of the Criminal Appeal Act. It is claimed that the Crown case was disproportionately based upon evidence of a deteriorating relationship, prior violent conduct and behaviour said to evince a consciousness of guilt.

41    I have, with the obvious disadvantage of not being able to see the witnesses including the appellant delivering his unsworn statement, read the evidence. Judged from such resources, it is my conclusion that the Crown case was strong. I have sketched some of the background facts in the introduction to this judgment but in short summary it can be said that there was cogent evidence of the following circumstances:

42    The appellant and the deceased had separated; the deceased had openly started a new relationship with Mr Sullivan; there was evidence showing that the appellant was unhappy about that circumstance; inter alia he made statements to Mr Valenti that if he could not have Dana then no-one would; there was evidence of violence and enmity directed from the appellant to the deceased throughout their marriage; he was present at the scene of the crime; he fled from the scene at Parramatta to Katoomba where he was seen by the staff at the hairdressers in circumstances above mentioned; he had fresh burns on the critical day and although he denied that the burns were fresh he did not maintain his denial when confronted by a medical expert; he had made the recent purchase of petrol; he engaged in the charade when talking to Mrs Cortis that he was shocked by his wife's death in the context of his own assertion that he had run away in panic because he had seen someone else put the torch to her.

43    A reading of the evidence left me without the impression that there was a possibility of wrong conviction.

44    Ground 11:

"Expert evidence of the appellant's fear of fire was not adduced at trial, thereby causing a miscarriage of justice."

45    The appellant seeks to tender evidence along the lines of a report from Yvonne Skinner, a psychiatrist, who examined the appellant on 25 January 1999. She did not as a result of that examination and the material that she had been invited to consider (which included the transcript of the unsworn statement of the appellant and his Honour's charge to the jury) find that the appellant was suffering from any psychiatric illness or emotional disorder. As I have said, her examination was earlier this year. She opined that he had not ever completely overcome his fear of fire because of his experience in February 1989 when the home at Bossley Park was burned. She continued that "he had been sensitised to (fear of fire)" and if this can be accepted as an explanation of why he fled the scene then "his appeal might be successful".

46    There is some paradox in this proposed evidence. The appellant's explanation for the fresh burns on his body which the appellant acknowledged to the police medical officer were mentioned in his unsworn statement when he said:

"I saw Dana and how she was holding clothes - it must be my clean clothes, it was in the fire. I jumped towards her because I got bandage on my hand. I pull everything out and I must have been burnt, I don’t know, and at that stage I completely lost it.”

47    Counsel has contended that this should be understood as an explanation for the appellant coming into contact with fire on that morning. It follows then that on his own version he came to the fire rather than as Dr Skinner theorized being sensitized to flee from it.

48    The issue on appeal is not whether or, in isolation, why he fled the scene. The Crown relied upon evidence of flight as part of its circumstantial case indicating the guilt of the accused not for fleeing the scene but for deliberately incinerating the victim.

49    The evidence proposed amounts to no more than opinion of one alternative explanation for one ingredient in a circumstantial case. It was by no means an essential or indispensable link in the circumstantial chain of causation and I am unpersuaded that the foreshadowed new evidence is such that the conviction should be categorised as a miscarriage.

50    As a practical matter, it is of no consequence whether the evidence is technically admitted and the ground rejected or leave refused to argue the ground. I would refuse that leave.

51    Ground 12:

"That the appellant was denied a fair trial in that a letter written by the deceased wife and relevant to his defence was not referred to and/or tendered at his trial."

52    We have provisionally read an affidavit of the appellant proposing that on 16 August 1994 he received from his mother in the Czech Republic a typed letter signed "Dana" and addressed to one "Jitka". He identified the addressee Jitka as a friend of his wife who is now deceased. He recognised the signature of his wife. The letter came to the appellant with a note from his mother saying she had received it from an anonymous person in Australia. The letter was available at the time of the appeal against conviction following the first trial and, obviously, was still available at the time of the trial with which this appeal is concerned. The appellant claimed that he was advised by counsel who conducted the trial that the letter not be used. He recites that he signed an authorisation for counsel not to do so but later withdrew that authorisation. Finally he accepted counsel's advice that it should not be used. Clearly this letter is neither new nor fresh evidence. It is undated. The Crown does not accept the authenticity of this letter. A translation of the letter reveals this content in part:

"And why am I writing to you? I am now having problems with Pepa. He will be going to court in three weeks over the house fire and the problem is in that he knows who has done it and also has evidence. For this reason it would be good if you could extend your holiday stay until such time that Pepa’s court hearings are over. He now runs wild, searching for more evidence. You do not have to worry. I talked to Robert today and he would visit me on Friday with his friend. They already worked out a plan how to stop Pepa and get him finally to prison. As you know, Pepa is presently alone and everybody is against him. However, he trusts me and therefore it will be no problem. The only problem is with Natalie who talks about Pepa all the time and wants to be with him. However, she will forget about him in time, the same way Eva and Martina forgot.
When you ring me on the telephone, please be very careful because I do not know what Pepa is doing now. Even Pepa’s solicitor does not want to talk to me any more about Pepa’s problems and it takes me a bit of time to learn everything.
Make the best of your holiday and do not worry at all as I and Robert have everything under control. On Friday I will write you another letter about the outcome of this all."

53    The appellant may be identified as Pepa. The reference to court proceedings is to a charge of arson preferred against the appellant in connection with the fire at Bossley Park. This prosecution did not proceed. It was abandoned in 1991 after the appellant was sentenced at the conclusion of the trial to penal servitude for life. Eva and Martina are the appellant's daughters from his first marriage. Robert may be identified as the son of the late Jitka (Klasek). It is quite fanciful to imagine that Dana Plevac was involved in a conspiracy to falsely inculpate the appellant for the murder of herself. Even construing the letter with an extravagantly heightened sense of suspicion, at most it would demonstrate that the deceased believed there was something afoot which would see the appellant convicted on the charge of arson. This did not eventuate.

54    It was argued that the "Friday" mentioned in the letter can be located by a process of deduction as being the day of the killing. If that be so, the possible presence of Robert with an unidentified companion was said to be at least suggestively supported by the presence of used coffee mugs in the deceased's flat. There is no evidence that those mugs were used that morning. No question was asked of Natalie about the presence of Robert who, as the son of a friend of her mother's, she might have known, nor any questions about visitors in the flat that morning.

55    On the appellant's own testimony contained in an affidavit which we have provisionally read he acknowledges that he was advised twice by separate senior counsel and by his solicitor that it was not in his interest to rely upon this letter and he accepted their advice.

56    It is impossible to assign any cogency to the content of the letter in the present matter and it can only acquire arguable relevance by attributing credibility to an extremely remote hypothesis. In my view it is unnecessary to examine the issues of authenticity or admissibility of the letter because it fails to demonstrate that even if admitted, there is a significant possibility that a reasonable jury would have acquitted if that had been before them: R v Goonan (1993) 69 A Crim R 338.

57    None of the matters relied upon by the appellant has been made out and I propose that the appeal be dismissed.

58    JAMES J: I agree with the judgment of the presiding judge and with the orders proposed by his Honour.

59    DOWD J: I agree with the orders proposed by the presiding judge and his reasons therefor.

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