R v Roba & Novosel - [2002] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 111 of 2000
No. 122 of 2000

THE QUEEN

PAUL RICHARD ROBA and

ELVIS NOVOSEL

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JUDGES:	WINNEKE, P., PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23 and 24 April 2002
DATE OF JUDGMENT:	28 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 74

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Criminal law – Verdicts of murder returned against applicants – Whether unsafe or unsatisfactory – Whether inconsistent with verdict of manslaughter returned against a co-accused – Applications dismissed.

Criminal law – Murder – Accused raising issue of self-defence – Circumstances in which jury entitled to reject possibility of self-defence discussed.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr. P.A. Coghlan Q.C. (DPP)
and Ms.K. Judd

K. Robertson, Solicitor for Public Prosecutions

For the Applicant Roba

For the Applicant Novosel

Mr. O.P. Holdenson Q.C.

Mr. P.J. Morrissey

Vadarlis & Associates

Grubissa White

WINNEKE, P.:

This application for leave to appeal derives from convictions for murder recorded against two friends arising out of an enterprise which was, they claimed, fuelled by the best of intentions but which went tragically wrong and ended with the killing of another young man whom they knew only by reputation. Their claim to the jury – that the honourable motives which initiated and accompanied their actions were inconsistent with the formation of murderous intent, or a willingness to assist an attack involving such an intent – was rejected. They now submit to this Court that the verdicts are unsafe; and that we should set them aside and enter verdicts of acquittal of murder in their stead.

It was undisputed at this trial that four men – the accused Roba, Novosel and Wilson together with one Kevelj (who became a principal Crown witness) – assembled at Roba’s home in North Geelong on the night of 17 February 1999. The major topic of conversation was the plight of Roba’s sister, Natalie, who was living in Drysdale (some 20 kilometres from Geelong) with the deceased, Robert Filipovic. The deceased was regarded by Roba and members of his family to be a bad influence upon Natalie, and had introduced her to heroin which, so it was believed, had induced Natalie to steal from members of her family. In the early hours of the following morning, i.e. 18 February, the four men entered a car driven by Kevelj. They carried with them disguises including balaclavas. Roba was armed with a piece of iron piping, about one metre in length, which he and Novosel had collected from Novosel’s house on the way to Drysdale. Novosel was armed with a knife. Their destination was the house in Drysdale at 123 Barrands Lane where it was believed that the deceased and Natalie were living. The car was parked in a shopping centre some 200 metres from the house. The four men alighted, Roba and Novosel donned balaclavas and tracksuit pants, and carried, respectively, the iron pipe and the knife. They made a reconnoitre of the house before coming back…

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 Roba & Novosel

Details

AGLC: R v Roba and Novosel [2002] VSCA 74
Case: [2002] VSCA 74
Decision Date: 28 May 2002

CaseChat Overview and Summary

Roba and Novosel sought judicial review of their convictions for murder, arguing that the jury's verdicts were unsafe and unsatisfactory and inconsistent with the verdict of manslaughter returned against their co-accused, Mr. Tomic. The court considered whether the jury's verdicts were unreasonable, given the evidence, and whether the verdict of manslaughter for Mr. Tomic precluded the possibility of self-defence being available to Roba and Novosel. The applicants contended that the jury should have considered the possibility of self-defence in light of the manslaughter verdict for Mr. Tomic, as it indicated that the degree of force used by the applicants was not excessive.

The court examined the evidence and the jury's reasoning, noting that the jury was entitled to reject the applicants' self-defence claims based on the evidence presented. The court found that the jury's verdicts were not unreasonable, given the evidence, and that the verdict of manslaughter for Mr. Tomic did not preclude the possibility of self-defence being available to Roba and Novosel. The court held that the jury was entitled to find that the applicants' use of force was excessive, given the circumstances, and that the applicants' claims of self-defence were not supported by the evidence.

The court dismissed the applications for judicial review, affirming the applicants' convictions for murder. The court found that the jury's verdicts were based on a reasonable consideration of the evidence and that the verdicts were not inconsistent with the verdict of manslaughter returned against Mr. Tomic. The court held that the applicants' arguments regarding self-defence were not persuasive and that the jury was entitled to reject their claims based on the evidence presented. The court emphasised the importance of the jury's role in assessing the credibility of witnesses and the weight to be given to their evidence.

Orders