R v Povlakic - [2020] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:

R v Povlakic [2020] QCA 213

PARTIES:

R
v
POVLAKIC, Avdulah
(appellant)

FILE NO/S:

CA No 247 of 2019
DC No 1440 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane- Date of Conviction: 13 September 2019 (Lynch QC DCJ)

DELIVERED ON:

2 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2020

JUDGES:

Fraser and Morrison JJA and Jackson J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of kidnapping for ransom and two counts of robbery in company while armed or pretending to be armed with a dangerous weapon, one count involving personal violence – where the issue at trial was one of identity, namely whether it was proved beyond reasonable doubt that the appellant was the co-offender – where the appellant submits that the verdict is unreasonable as there were inconsistencies, discrepancies or inadequacies in the evidence – whether the jury should have entertained a reasonable doubt as to the appellant’s guilt by reason of the inconsistencies, discrepancies or inadequacies of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant submitted that there were three unsatisfactory aspects of the prosecutor’s address to the jury that amounted to unfairness – where the appellant did not request any direction from the trial judge regarding the three aspects of the prosecutor’s address – whether the prosecutor’s address was unfair or encouraged the jury to follow an impermissible path of reasoning

Criminal Code (Qld), s 354A(1)(a)(2), s 409, s 411, s 668E(1)

Pell v The Queen (2020) 94 ALJR 394; (2020) 376 ALR 478; [2020] HCA 12, applied
R v Gathercole[2016] QCA 336, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

K M Hillard for the appellant
J A Wooldridge for the respondent

SOLICITORS:

Anderson Fredericks Turner for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Jackson J and the order proposed by his Honour.
MORRISON JA: I have read the reasons of Jackson J and agree with those reasons and the order his Honour proposes.
JACKSON J: This is an appeal or application for leave to appeal against conviction.
On 13 September 2019, after a five day trial, the appellant was convicted of four offences, namely:
Count 1 - on 8 August 2018, the appellant and Stefan Opacic kidnapped MQ for ransom;[1]
Count 2 - on 8 August 2018, the appellant and Stefan Opacic kidnapped RT for ransom;[2]
Count 3 - on 8 August 2018, the appellant and Stefan Opacic robbed MQ in company and were armed or pretended to be armed with a dangerous weapon and used personal violence;[3]
Count 4 - On…

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 Povlakic

Details

AGLC: R v Povlakic [2020] QCA 213
Case: [2020] QCA 213
Decision Date: 2 October 2020

CaseChat Overview and Summary

The case of R v Povlakic involved the appellant who was convicted of two counts of kidnapping for ransom and two counts of robbery in company while armed or pretending to be armed with a dangerous weapon, one count involving personal violence. The appellant appealed against his conviction, arguing that the verdict was unreasonable or insupportable having regard to the evidence, and that the prosecutor’s address to the jury was unfair and prejudicial. The Court of Appeal was required to determine whether the jury should have been left with a reasonable doubt as to the appellant’s guilt and whether the prosecutor’s address was unfair or encouraged the jury to follow an impermissible path of reasoning.

The Court of Appeal considered the arguments put forward by the appellant. The appellant submitted that there were inconsistencies, discrepancies or inadequacies in the evidence that should have led the jury to doubt the appellant’s identity as the co-offender. The Court noted that the appellant had relied heavily on inconsistencies between evidence as to the locations of the events of the kidnapping and robbery and the location of the appellant’s mobile phone at those times. However, the Court found that the evidence was not as the appellant had suggested, and that the error in the evidence was made in the appellant’s favour at the trial, but did not create a miscarriage of justice in the appellant’s convictions. The Court also considered the appellant’s argument that there were other inconsistencies between the witness accounts, but found that these did not undermine the evidence against the appellant.

The Court of Appeal concluded that the trial judge had properly directed the jury on the evidence and that there was no submission to the jury that invited them to reason in an impermissible manner. The Court found that the prosecutor’s address to the jury did not contain any unfairness or prejudice that would have affected the outcome of the trial. The Court of Appeal dismissed the appeal and upheld the convictions.

The Court of Appeal dismissed the appeal and upheld the convictions.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

These were matters for the jury to consider in relation to whether there were any inconsistencies casting doubt on whether the appellant was the co-offender.Phone service location evidence In addition to the points already mentioned, the appellant relied heavily at trial and also on appeal on suggested inconsistencies between evidence as to the locations of the events of the night of the kidnapping and robbery and the location of the appellant’s mobile phone at those times. The appellant had a mobile telephone service number ending with the digits “032” (“#032 service”), about which evidence was led at the trial. In particular the evidence at trial[57] showed that the #032 service was connected to a particular mobile phone tower at the following times and locations:[57]Ex 41; AB 2/337-339. The evidence was further that a mobile phone service may connect to a tower within a radius of about 10 kilometres.[58] The appellant submitted at trial that these entries were inconsistent with the appellant being at the location of the events of the kidnapping and robbery on 8 August 2018.[59] The prosecution submitted that the defendant could have had another phone on 8 August 2018.[60][58]AB 2/298 line 25 – AB 2/300 line 40.[59]AB 1/52 lines 10-35.[60]AB 1/36 lines 20-35. If the assumption is made that the appellant was in possession of the #032 service phone and it was connecting to telephone towers during the events of the kidnapping and robbery, this evidence supported a significant inconsistency between the appellant’s alleged locations according to the evidence of MQ and the location of the #032 service and, therefore, operated in the appellant’s favour. However, by the time that the appeal was argued, it had become apparent that there was a mistake in the evidence as to the connection to the Coopers Plains tower location of the #032 service. In fact, those entries were for the connection to the Coopers Plains tower of a different telephone service, not the #032 service and not belonging to the appellant.[61] The error was one made in the appellant’s favour at the trial. It did not operate to create a miscarriage of justice in the appellant’s convictions.[61]Affidavit of Peter Wagels sworn 2 September 2020, paragraphs 3-8 and Exs A and D.General inconsistencies The appellant submitted that there were other inconsistencies between MQ’s evidence and his earlier accounts, including in respect of the time of day of the events commencing,[62] the details of what occurred when he first encountered the co-offender and Opacic[63] and his failure to mention in evidence in chief that the offenders had demanded $30,000.[64][62]In the police interview in Ex 4 he said it was 8:30 pm whereas in evidence (AB 2/134 line 19) he said about 6 or 7pm, but accepted that the police interview time was right (AB 2/164 line 4).[63]AB 134 line 40 – AB 135 line 35; AB 2/161 lines 19-34.[64]AB 2 163 lines 5-25. The appellant submitted further that there were differences between MQ’s evidence and RT’s evidence as to events, including that the description of the gun and its use differed,[65] whether the name “Micky” was used in the car,[66] whether MQ was repeatedly slapped[67] and that MQ’s denial of involvement in drugs was questionable.[65]AB 2/164 lines 8-25; AB 2/196 line 14 and AB 2/196 lines 26-38.[66]AB 2/160 lines 20–29; AB 2/213 lines 33-46.[67]AB 2/139 line 45 – AB 2/140 line 3; AB 2/140 lines 5-10; AB 2/155 lines 23-28.

Decision

Reasons for decision

Overall, in my view, there was no submission to the jury that invited them to reason in an impermissible manner. I am fortified in this conclusion by the circumstance that in a careful summing up the trial judge identified in substance all of the reasons advanced by the appellant both at the trial and on appeal as to why the jury should not be satisfied beyond reasonable doubt of the appellant’s identity and guilt of the offences charged.[75][75]AB 1/73 line 15 – AB 1/78 line 2.Conclusion In my view, the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Povlakic [2020] QCA 213
PARTIES:	R v POVLAKIC, Avdulah (appellant)
FILE NO/S:	CA No 247 of 2019 DC No 1440 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane- Date of Conviction: 13 September 2019 (Lynch QC DCJ)
DELIVERED ON:	2 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2020
JUDGES:	Fraser and Morrison JJA and Jackson J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of two counts of kidnapping for ransom and two counts of robbery in company while armed or pretending to be armed with a dangerous weapon, one count involving personal violence – where the issue at trial was one of identity, namely whether it was proved beyond reasonable doubt that the appellant was the co-offender – where the appellant submits that the verdict is unreasonable as there were inconsistencies, discrepancies or inadequacies in the evidence – whether the jury should have entertained a reasonable doubt as to the appellant’s guilt by reason of the inconsistencies, discrepancies or inadequacies of the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant submitted that there were three unsatisfactory aspects of the prosecutor’s address to the jury that amounted to unfairness – where the appellant did not request any direction from the trial judge regarding the three aspects of the prosecutor’s address – whether the prosecutor’s address was unfair or encouraged the jury to follow an impermissible path of reasoning Criminal Code (Qld), s 354A(1)(a)(2), s 409, s 411, s 668E(1) Pell v The Queen (2020) 94 ALJR 394; (2020) 376 ALR 478; [2020] HCA 12, applied R v Gathercole[2016] QCA 336, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied
COUNSEL:	K M Hillard for the appellant J A Wooldridge for the respondent
SOLICITORS:	Anderson Fredericks Turner for the appellant Director of Public Prosecutions (Queensland) for the respondent