R v Weaver
[2014] ACTSC 228
•29 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Weaver |
Citation: | [2014] ACTSC 228 |
Hearing Dates: | 27 August 2014 – 29 August 2014 |
DecisionDate: | 29 August 2014 |
Before: | Murrell CJ |
Decision: | Verdict of Guilty. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – PARTICULAR OFFENCES – Judge alone trial – circumstantial evidence – accessory after the fact – flight as consciousness of guilt – lies as consciousness of guilt – intentional infliction of grievous bodily harm – view of crime scene |
Legislation Cited: | Crimes Act 1900 (ACT) s 19 Criminal Code2002 (ACT) s 717 Supreme Court Act1933 (ACT) s 68B |
Parties: | The Queen (Crown) Jamie Weaver (Accused) |
Representation: | Counsel Ms S Gul (Crown) Mr J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 25 of 2014 |
MURRELL CJ:
Opening remarks
On 14 May 2014, in accordance with s 68B of the Supreme Court Act1933 (ACT), the accused elected to be tried by a judge alone in relation to two offences (including the relevant offence) and her legal practitioner certified that she had received advice and made the election freely.
When arraigned on 27 August 2014, the accused pleaded not guilty to the offence that, on 7 April 2013 at Canberra, she assisted Miroslav Jovanovic, who had committed an offence (intentionally inflict grievous bodily harm on Peter Manna, the complainant), believing that he had committed that offence or a related offence, and with the intention of allowing Mr Jovanovic to escape apprehension or prosecution.
In summary, the Crown alleges that, at about 4:50 pm on Sunday 7 April 2013 at the Belconnen Bus Interchange, the accused was standing beside Mr Jovanovic when Mr Jovanovic used a knife to stab the complainant, causing serious injury. The couple walked away from the Interchange, crossed a road, rounded the corner and then walked along the western side of the Belconnen Westfield Shopping Complex. The Crown alleges that, at a point that was about 58 m from the scene of the stabbing, Mr Jovanovic handed the knife to the accused and she placed it in her bag. Having observed the arrival of police, the accused continued to walk away from the scene as the police apprehended Mr Jovanovic. The Crown asserts that the accused must have disposed of the knife because, despite extensive searches, it was never located. Much of the assault incident and much of the passage from the scene taken by Mr Jovanovic and the accused was captured by CCTV cameras. The cameras were located at the Interchange, within a bus that was collecting passengers at the interchange, and on the Westfield building. The locations of the alleged assault, the alleged passing of the knife to the accused, the arrest of Mr Jovanovic, and the passage taken from the scene by Mr Jovanovic and the accused are depicted on Exhibit 1, which is an annexure to these reasons.
The accused accepts that she was present at the assault. In a police interview on the evening of the incident (Exhibit 8), she said that she had observed Mr Jovanovic holding the complainant in a chokehold (Q 552). She denied knowledge of any knife or other weapon (Q 562, 563, 625). She expressed shock that the complainant had been stabbed and seriously injured. She said that, when she saw the police arrive, she continued to walk away from the scene because she was hysterical and just wanted to get away (Q 226).
The accused submitted that the prosecution case was circumstantial and the prosecution had not excluded the rational hypothesis that, after the assault and before his arrest, Mr Jovanovic disposed of the knife at one of the “blind spots” that was not visible on the CCTV footage and a third party took the knife before police searched the area.
I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict.
Onus and standard of proof
I am aware that the Crown must prove the guilt of the accused guilt beyond reasonable doubt. The accused is presumed to be not guilty unless and until the Crown proves her guilty beyond reasonable doubt. If I have a reasonable doubt about her guilt, I must return a verdict of not guilty. As the Crown case depends upon circumstantial evidence, to be satisfied of guilt beyond reasonable doubt I must be satisfied that guilt is the only rational inference.
I am aware that the Crown does not have to prove the truth of each fact asserted in the prosecution case. The Crown must prove each legal element of the charge beyond reasonable doubt (and any facts that are essential to proof of a legal element).
I am aware that in making findings of fact I must apply my common sense, and the findings must be based only on the evidence. As in all trials, the bulk of the evidence in this trial was either given by the witnesses or contained in the exhibits.
Inspection to be considered
In this trial, the Court undertook an inspection of the Belconnen Bus Interchange. In accordance with s 54 of the Evidence Act2011 (ACT), the Court is entitled to draw any reasonable inference from its observations during that inspection.
The inspection was of great assistance. It provided a “feel” for the distances and perspectives that were involved. The CCTV footage gives a distorted impression of distances and perspectives. The inspection provided context to the police evidence describing the area in the vicinity of the assault and along the route taken by Mr Jovanovic and the accused following the incident. It is a new, built-up area that provides very limited opportunity for the concealment of an item such as a knife.
The versions provided by the accused
The accused chose to exercise her “right to silence” and she declined to give evidence. I draw no adverse inference against her because she chose to exercise that right.
In the police interview that commenced at 9:18 p.m. on 7 April 2013 (Exhibit 8), the accused provided a version of events. The Crown tendered a telephone conversation between Mr Jovanovic and the accused on 16 April 2013 (Exhibits 10 and 11) and an excerpt of evidence given by the accused at the trial of Mr Jovanovic (Exhibit 12). I take this material into account, not only in relation to the Crown’s contention that it contains a lie that evidences consciousness of guilt in relation to the offence, but also when considering whether the version of events advanced by the accused (that she had nothing to do with any knife) may possibly be true.
Putting to one side the Crown’s submissions about consciousness of guilt, if I reject the version advanced by the accused, that rejection does not advance the Crown case. It is not up to the accused to explain the disappearance of the knife. It always remains the task of the Crown to prove the prosecution case beyond reasonable doubt and, in this case, to dispel all rational hypotheses consistent with innocence.
As a matter of practical reality, in this trial I must be satisfied that the only rational hypothesis is that Mr Jovanovic passed the knife to the accused, and she placed it in her bag with the intention of assisting Mr Jovanovic to escape apprehension or prosecution.
The prosecution witnesses
Without exception, I found the prosecution witnesses to be both honest and reliable. There was no real dispute that the evidence given by the prosecution witnesses was essentially reliable. Indeed, there was very little cross examination of them. There were some differences in the recollections of the eyewitnesses (Ms Isbester, Mr Finch and the complainant), as one would expect when each was observing a traumatic incident from a different perspective. However, the evidence given by each prosecution witness was generally consistent with the evidence given by the other prosecution witnesses and with the CCTV footage. There was no significant conflict in the evidence given by the prosecution witnesses.
The version of the accused about the knife
I find that the version provided by the accused to police was false insofar as the accused asserted that she did not know anything about a knife being used in connection with the assault.
First, as the Crown submitted, she was at “point-blank” range when the assault occurred. The CCTV footage shows that she arrived on the scene very soon after the commencement of the assault. The complainant, Ms Isbester and Mr Finch all saw the knife and were able to describe it in some detail. The accused must have lied to the police when she said that she had no knowledge of a knife.
Second, as stated above, I found Ms Isbester to be a reliable witness. She was an independent and observant witness with a good eye for detail. The CCTV footage taken from the bus confirms that she was observing the assault as it occurred. I accept her evidence that, near the start of the incident, she heard the accused say “Don’t stab him”. In saying those words, the accused acknowledged that she was aware that Mr Jovanovic possessed the capacity to stab the complainant. The words are consistent with knowledge that Mr Jovanovic was in possession of a knife.
Third, as stated above, the complainant impressed as a reliable witness. His evidence was consistent with that of the independent eyewitnesses. He was not cross examined about any significant matter. The CCTV footage confirms that, as the accused began to walk away from the complainant, she turned and said something to him. I accept the complainant’s evidence that, as the couple was walking away, the accused said words to the effect of “You should be in the gutter dead/bleeding out”. These words were consistent with the accused knowing that Mr Jovanovic had used a knife to stab the complainant.
A further matter supports the view that the accused lied to police about the assault. In effect, she said that she had been by herself smoking a cigarette when she heard a commotion and she then went to the scene of the assault to find Mr Jovanovic and the complainant engaged in a scuffle. The CCTV footage taken from the bus tells a different story. It shows the accused in the immediate company of Mr Jovanovic when Mr Jovanovic divested himself of his shoulder bag and ran to attack the complainant.
As the accused was prepared to lie to police concerning the assault and her knowledge of the knife, I conclude that other important parts of the version that she provided to the police may be completely unreliable.
For the reasons set out below, I find that the accused lied when she gave evidence in the trial of Mr Jovanovic to the effect that she recalled him passing cigarettes to her as the couple walked away from the scene of the assault. As she was prepared to lie when giving evidence as a witness in criminal proceedings, she is a person who lacks credibility.
Except insofar as it is relevant to the Crown’s submission about consciousness of guilt, I place no weight on the critical aspects of the version advanced by the accused and I put it to one side when considering whether the Crown has dispelled rational hypotheses consistent with innocence.
Elements of the offence of accessory after the fact
Section 19 of the Crimes Act1900 (ACT) creates the offence of intentional infliction of grievous bodily harm. It provides:
(1) A person who intentionally inflicts grievous bodily harm another person is guilty of an offence punishable, on conviction, by imprisonment for 20 years.
The Dictionary to the Crimes Act defines grievous bodily harm as follows:
grievous bodily harm to a person includes—
(a)any permanent or serious disfiguring of the person; and
...
Section 717 of the Criminal Code2002 (ACT) creates the offence of being an accessory after the fact. Relevantly, it provides:
(1)A person (the accessory ) commits an offence if—
(a)someone else (the principal offender ) has committed an offence; and
(b)the accessory assists the principal offender—
...
(ii) believing the principal offender committed the offence …; and
(c)the accessory does so with the intention of allowing the principal offender to—
(i) escape apprehension or prosecution; or ...
Consequently, in order to prove the offence on the indictment, the prosecution must prove the following elements beyond reasonable doubt:
(a)Mr Jovanovic had committed the offence of intentional infliction of grievous bodily harm in that he had:
(i)engaged in conduct (stabbed the complainant)
(ii)done so intentionally
(iii)by that conduct inflicted grievous bodily harm on the complainant, and
(iv)intentionally inflicted grievous bodily harm on the complainant.
(physical element of circumstance in which the conduct of the accused happens).
(b)The accused voluntarily assisted Mr Jovanovic (physical element of conduct).
(c)She intended (meant) to assist him (fault element re (2)).
(d)At the time, she believed that Mr Jovanovic had committed the offence of intentionally inflicting grievous bodily harm on the complainant or a related offence (fault element re (1)).
(e)She intended that her assistance would allow Mr Jovanovic to escape apprehension or prosecution (additional fault element re (2)).
Element (1) Mr Jovanovic committed the offence of intentional infliction of grievous bodily harm
The CCTV footage from the Bus Interchange and the bus that was passing through the Interchange (Exhibits 2 and 9) shows Mr Jovanovic un-burdening himself by throwing his satchel to the ground and dropping another item on the ground. The footage shows him rushing directly towards the complainant and holding the complainant in a chokehold. The complainant and the independent eyewitness Mr Finch heard Mr Jovanovic making a statement to the effect that he was exacting retribution because of injuries occasioned by the complainant to Mr Jovanovic’s son. The complainant, Mr Finch and the second independent eyewitness, Ms Isbester, saw Mr Jovanovic holding a silver Leatherman type knife (similar to that in Exhibit 6). Ms Isbester saw Mr Jovanovic making sudden movements towards the complainant that, I find, were consistent with stabbing movements. Afterwards, the complainant was bleeding from the back.
The complainant was conveyed to Canberra Hospital, where he presented with multiple stab wounds in the back and left side of the chest. The location of the stab wounds to the back can be seen in Exhibit 4. On admission, the complainant had difficulty breathing and there was decreased air entry to the left side of the chest (Exhibit 5). He required a massive blood transfusion, and urgent thoracic surgery (a left thoracotomy and oversew of the intercostals vessel and the insertion of a chest drain). He was hospitalised for nine days.
It is plain from the actions and words of Mr Jovanovic that he deliberately attacked the complainant for the purpose of exacting retribution. The fact that he rushed directly towards the complainant and seized him in a chokehold, then utilised a knife to stab the complainant many times, not only in the chest but also in the back, provides ample evidence of intention to inflict very serious injury. The hospital records establish injury of such seriousness as to amount to grievous bodily harm.
The prosecution depends on circumstantial evidence to establish elements (2), (3) and (5)
The prosecution relies on circumstantial evidence to establish the most contentious elements of the offence, elements (2) and (5).
On the prosecution case, element (3) is very closely related to element (2). The prosecution submits that it is an inescapable inference that, when the accused took the knife, she intended to assist Mr Jovanovic to escape apprehension or prosecution.
Evidence may be either direct evidence (for example, eyewitness evidence) or circumstantial evidence. A circumstantial evidence case is one in which the prosecution seeks to establish certain facts (or circumstances) and argues that the only rational explanation for those circumstances is that the accused committed the crime, i.e. that the established circumstances show beyond reasonable doubt that the accused committed the crime.
Where, as in the present trial, circumstantial evidence is critical (not merely incidental) to the prosecution case, an accused cannot be convicted unless there is no rational explanation for the established circumstances other than that the accused is guilty of the alleged offence.
.
I must first determine the circumstances that have been established by reliable evidence. Then, taking the established circumstances as a whole, I must determine whether, having regard to all the established circumstances and any direct evidence (called either in the Crown case or in the case the accused), I am satisfied that the only available rational inference is that the accused is guilty.
The circumstances established by reliable evidence
The following factual circumstances relevant to elements (2), (3) and (5) were established on the evidence:
(a)Mr Jovanovic used a silver Leatherman type knife to stab the complainant, and then folded it and placed it in the left pocket of his board shorts (evidence of the complainant, Ms Isbester and Mr Finch in relation to use of the knife, evidence of Ms Isbester in relation to folding and placement in the board shorts).
(b)The accused was well aware that Mr Jovanovic had used a knife to stab the complainant. She arrived at the immediate scene of the stabbing soon after the incident commenced and stood right next to where the assault was occurring (CCTV footage). She said “don’t stab him” (evidence of Ms Isbester). She took hold of the arm in which Mr Jovanovic was holding the knife (evidence of Mr Finch). She remained present during the remainder of the incident (CCTV footage).
(c)Further evidence of the accused’s knowledge that a knife had been used is provided by the words that she used as she left the scene. The accused turned to the complainant and said words to the effect of “You should be in the gutter bleeding out/dead” (evidence of the complainant, CCTV image of the accused turning and speaking). This statement is to be considered in the context of the evidence that Mr Jovanovic attacked the complainant to exact retribution for an injury that the complainant had occasioned to Mr Jovanovic’s son (evidence of the complainant and Mr Finch of a contemporaneous statement made by Mr Jovanovic).
(d)The accused left the scene with Mr Jovanovic and the couple walked together for a total distance of 129 m (Exhibit 1).
(e)When the couple was about 58 m from the scene of the stabbing, Mr Jovanovic reached over towards the accused with his right arm in a manner consistent with passing something to her (CCTV footage, still photograph in Exhibit 3).
(f)Apart from (e), after the couple left the scene of the stabbing and before Mr Jovanovic was arrested, there was an opportunity for Mr Jovanovic to pass the knife to the accused without that conduct being clearly visible on the CCTV. Most, but not all, of the 129 m walk was captured on CCTV. There were two small “blind spots” (these were apparent on the inspection). Much of the CCTV imagery was somewhat blurred.
(g)Immediately after the reaching incident referred to in (e), the couple diverged for a distance of about 30–40 m, then walked together for a further distance of about 30–40 m, at which point Mr Jovanovic was arrested.
(h)Having observed a police vehicle execute a U-turn for the apparent purpose of approaching the couple (Exhibit 8 Q246, 299-300), the accused , in effect, abandoned Mr Jovanovic and continued to walk away from the scene, carrying a supermarket shopping bag and a shoulder bag. For the reasons set out at [44]–[48] below, I do not treat this circumstance as evidence of consciousness of guilt in relation to possession of the knife. However, the conduct is consistent with possession of the knife.
(i)Mr Jovanovic was searched upon his arrest. There was a very extensive search of the relevant area (including police line searches that included bins and drains), inquiries were made of the complainant’s female companion and the accused’s home was searched that evening, but the knife was not located.
(j)The accused demonstrated a consciousness of guilt in relation to acting as an accessory after the fact when she lied in the course of giving evidence in the trial of Mr Jovanovic (see [49]–[58] below).
I find that the only available rational inference is that the accused voluntarily received the knife from Mr Jovanovic. There was simply nowhere else for the knife to go other than to the accused. A very thorough search was undertaken in a small and exposed area. Almost certainly, the accused received the knife at the 58 m point, where CCTV footage shows Mr Jovanovic reaching towards the accused. The divergence at the 58 m point and the fact that the accused continued walking away from the arrest point are circumstances that are consistent with the accused voluntarily receiving the knife at the 58 m point.
Sometimes, there will be one circumstance that, because of its nature, is absolutely critical to the Crown case. If so, that circumstance must be proved beyond reasonable doubt before the tribunal of fact can return a verdict of guilty. There is no critical circumstance in the present case. While it is an important circumstance, the circumstance that Mr Jovanovic reached out in a manner consistent with handing something to the accused (circumstance (e) above) is not critical; looking at the remaining circumstances as a whole, I conclude that the only available rational inference is that the accused voluntarily received the knife from Mr Jovanovic and element (2) is established.
The accused argued that guilt is not the only rational inference. The accused said that Mr Jovanovic could have disposed of the knife at one of the two “blind spots” that were not recorded on CCTV footage and that an opportunistic bystander could have taken the knife before the police search was conducted. Although the accused bears no onus to advance rational alternative hypotheses, I can think of none other than that suggested by counsel for the accused.
The suggested hypothesis is not an alternative rational hypothesis. The prospect that the two proposed circumstances converged is in the realm of the fantastic. The “blind spots” were very small indeed (as the inspection showed) and only the most enthusiastic collector would have been attracted to a bloodstained pocketknife, particularly as police were on the scene almost immediately. Common sense suggests that, having decided to dispose of the knife, the obvious and only sensible way for Mr Jovanovic to do so was to pass the knife to his partner.
I have indicated that, on the basis of the circumstantial evidence, I am satisfied beyond reasonable doubt in relation to element (2).
From the outset, the accused was concerned that Mr Jovanovic had used a knife; she said “Don’t stab him”. It would have been obvious to her that there were witnesses to the incident and that the nature of the injuries themselves suggested the use of a knife. When police spoke to the accused within hours of the incident, the accused disavowed any knowledge of the knife. The knife was never found. It must be inferred that the accused was concerned about the involvement of her partner, Mr Jovanovic, and was particularly concerned about the fact that he had used a knife. When she received the knife, I find that she intended to assist Mr Jovanovic (element (3)) by removing the knife from his possession. She intended to conceal or dispose of it. Consistent with that intention, she did in fact conceal or dispose of the knife, and that is why it was never found. I am satisfied beyond reasonable doubt in relation to elements (3) and (5). Indeed, the parties more or less assumed that, if element (2) was established, then, in the circumstances of this case, elements (3) and (5) would also be established.
Flight as evidence of consciousness of guilt?
The prosecution argued that the accused’s action of continuing to walk away from the scene of Mr Jovanovic’s arrest was evidence of flight showing consciousness of guilt.
In the police interview, the accused said that she continued walking as she was hysterical because of the violence that she had witnessed and that she just wanted to get away.
There is a possibility that this explanation was true. As I have found, the accused was well aware that Mr Jovanovic had used a knife in a violent and shocking way.
Consequently, the evidence does not necessarily point to a consciousness of guilt in relation to possession of the knife.
The evidence of walking away remains relevant, but its weight is limited; it is conduct consistent with possession of the knife, rather than conduct pointing affirmatively to possession of the knife via the mechanism of consciousness of guilt
Lies as evidence of consciousness of guilt?
One of the circumstances upon which the prosecution relied was an alleged lie concerning the possible passing of an item by Mr Jovanovic to the accused as the couple left the scene of the stabbing and when they reached the 58 m point.
In her police interview on the evening of the incident (Exhibit 8), the accused said:
Q 576 Has Miro given you anything afterwards?
A No
Q 577 Okay.
AUnless I’ve got anything – no, because I didn’t have any of my stuff. He didn’t have my cigarettes with him. No, he didn’t, no. No.
In other words, the accused said unequivocally that Mr Jovanovic did not hand cigarettes to her.
In a recorded telephone conversation between the accused and Mr Jovanovic on 16 April 2013 when Mr Jovanovic was in custody (Exhibit 10 and 11) in the context of discussing the police interview of the accused and CCTV footage, the following exchange occurred:
Accused: I said “What? Pass me my smokes so I could calm down.”
...
Accused: You know, because it’s on camera that you passed something to me. I said, “It’s my fucking cigarettes.” Because they did show me the photos. I have seen photos from cameras.
...
Jovanovic:... I must have got the smokes out of the bag. Was it in the bag? Were they in the bag?
Accused: Yeah, yeah, yeah, because you had my smokes. I said, “Can you pass me my smokes please,” because I was, fucking – I just needed to have a cigarette.
Jovanovic: Oh, yeah.
The Crown says that, during this conversation, the accused and Mr Jovanovic agreed that the passing of cigarettes should be used as the explanation for apparently incriminating conduct on the CCTV footage.
At the trial of Jovanovic (Exhibit 12), the accused said:
Q When you walked away, did Miro give you anything?
A He gave me my packet of smokes
Q Did he give you anything else?
A No
Q Did he give you a knife?
A No, he did not.
The Crown submitted that this evidence incorporated the agreed lie and was given for the purpose of explaining the CCTV footage of the 58 m point that showed Mr Jovanovic possibly passing something towards the accused. The Crown submitted that the lie provided evidence of consciousness of guilt in relation to the commission of the offence by the accused.
Any lie may reflect upon the credibility of the liar. Beyond that, if an accused tells a deliberate lie about the offence charged, then, in some circumstances, the lie may also be used to establish that, when she told the lie, the accused felt guilty about the subject offence. A guilty state of mind is one circumstance that can be taken into account to strengthen the prosecution case.
Before a lie may be used as a circumstance supporting a prosecution case that an accused is guilty, the court must be satisfied of four things.
(a)The statement relied upon as a lie was indeed untrue.
In this case, I am satisfied that the statement made in evidence was untrue; it was the product of an agreement between the accused and Mr Jovanovic that the passing of cigarettes would be used to explain apparently incriminating CCTV footage. The accused had no recollection of the passing of cigarettes.
(b)The untrue statement was a deliberate lie i.e. the accused deliberately made the statement, knowing that it was untrue.
On the basis of the recorded telephone conversation, I am satisfied that the accused had decided to deliberately lie about the passing of cigarettes.
(c)The statement was about something important to the offence charged.
In this case, the issue of whether an item was passed by Mr Jovanovic to the accused and the identity of that item were critical to the offence charged.
(d)The motive for the lie was to “cover up” the accused’s involvement in the offence.
The motive for the lie was to cover up Mr Jovanovic’s involvement in the offence and, incidentally, to conceal the accused’s own involvement. It is apparent from the telephone conversation that the accused was aware of the prospect that she might be charged with being an accessory after the fact to the offence committed by Mr Jovanovic.
Even if there was a lie, I must be careful when deciding whether the accused lied because she had a guilty state of mind in relation to the offence, or whether it was for some other reason. I am satisfied that the accused lied both because she had a guilty state of mind in relation to the offence and because she wished to protect Mr Jovanovic; these motives are inseparable.
For the above reasons I return a verdict of guilty.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
Annexure
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