R v Stojkovic - [2004] VSCA 84

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 144 of 2002

THE QUEEN
	v.
MADRAJ STOJKOVIC

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JUDGES:	ORMISTON and PHILLIPS, JJ.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2004
DATE OF JUDGMENT:	18 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 84

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CRIMINAL LAW – Murder – Conviction appeal – Expert evidence of mental condition of victim excluded as insufficiently relevant – Directions as to standard of proof of elements of subsidiary facts – Whether provocation open – Whether denial of intent to kill inconsistent with self-defence – Propensity evidence and warnings – Judicial comment on witnesses.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Victoria Legal Aid

ORMISTON, J.A.:

I agree, for the reasons stated in the judgment to be given by Smith, A.J.A., that leave to amend the grounds of appeal in the manner appearing in that judgment should be refused and that the application be dismissed.

PHILLIPS, J.A.:

I too agree.

SMITH, A.J.A.:

On 11 October 2001, Madraj Stojkovic was found guilty of murdering his wife. The offence occurred on 30 April 2000. Following plea hearings on 21 Feb 2002, 14 March 2002 and 31 May 2002, he was sentenced to 16 years imprisonment. He was ordered to serve a minimum period of 13 years before being eligible for parole.

Stojkovic has applied for leave to appeal against his conviction. His original notice of appeal relied solely on the ground that the verdict was unsafe and unsatisfactory. At the hearing of the appeal, he sought leave to add the following additional grounds:

Ground 2: The learned judge erred in refusing to admit the evidence of Dr Taylor.
Ground 3:The learned judge erred , in the particular circumstance of the case, in directing that it was not necessary to prove beyond reasonable doubt that the blows to the back of the head were struck whilst the deceased was lying on the floor.
Ground 4:The learned judge erred (a) in failing to disabuse the jury of the error in the prosecutor' s argument that self-defence was available only if the applicant had murderous intent and (b) in failing to re-direct on that issue as requested.
Ground 5:The learned judge erred in failing to give a propensity direction in relation to the evidence of "relationship".

Ground 6:The learned judge's observations and comments in relation to the witnesses Lidija Stojkovic, Marjan Stojkovic, Tomoslav Djordjorvic, Radoslav Vukovic and Zoran Spiric were unfair, tended to reverse the onus of proof and gave rise to a miscarriage of justice.

The matter proceeded on the basis that counsel for the applicant would be permitted to present his arguments on the substance of the proposed grounds. The Crown agreed to that course and responded to those arguments.

Counsel for the applicant relied upon each of the above grounds in combination in support of, and as particulars of, the first ground - that the verdict is unsafe…

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 Stojkovic

Details

AGLC: R v Stojkovic [2004] VSCA 84
Case: [2004] VSCA 84
Decision Date: 18 May 2004

CaseChat Overview and Summary

The case before the court was an appeal against a conviction for murder, where the appellant, Stojkovic, challenged the exclusion of expert evidence concerning the mental condition of the victim. The Court of Appeal was tasked with reviewing the lower court’s decision, focusing on the admissibility of certain evidence and the instructions given to the jury regarding the standard of proof for subsidiary facts. Additionally, the court examined whether the lower court erred in determining that provocation was not available as a defence and whether the denial of intent to kill was inconsistent with a plea of self-defence. The appeal also touched upon the admissibility of propensity evidence and the adequacy of the trial judge's warnings to the jury. Furthermore, the court considered whether the trial judge's comments about witnesses were prejudicial.

The legal issues central to the appeal included the relevance and admissibility of expert evidence on the victim’s mental condition, the proper standard of proof for subsidiary facts, and the applicability of provocation and self-defence in the circumstances of the case. The court was also required to assess whether the trial judge's comments about witnesses could have influenced the jury’s perception. Another issue was the admissibility of propensity evidence and the effectiveness of the warnings given by the trial judge concerning this evidence.

The Court of Appeal found that the lower court had correctly excluded the expert evidence on the victim’s mental condition as it was deemed not sufficiently relevant to the issues at hand. Regarding the standard of proof for subsidiary facts, the Court of Appeal held that the trial judge had adequately directed the jury. The court further determined that provocation was not available as a defence given the evidence presented. It also concluded that the denial of intent to kill did not preclude a plea of self-defence. The propensity evidence was found to be admissible, but the trial judge’s warnings were considered adequate. The comments made by the trial judge about the witnesses did not constitute a miscarriage of justice.

The appeal was dismissed, and the conviction for murder was upheld. The court found no grounds for setting aside the conviction and upheld the original decision of the lower court.

Orders