The State of Western Australia v Maric
[2023] WADC 64
•16 JUNE 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MARIC [2023] WADC 64
CORAM: RITTER DCJ
HEARD: 17 MAY 2023
DELIVERED : 16 JUNE 2023
FILE NO/S: IND 2077 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DRAZAN DION MARIC
Catchwords:
Criminal law - Trial of issues - Circumstances of aggravation - Stealing - Burglary - Liberato - Whether State proved circumstances of aggravation beyond reasonable doubt
Legislation:
Nil
Result:
Trial of issues determined
Representation:
Counsel:
| Applicant | : | Ms D E Aldous |
| Accused | : | Mr P R Gazia |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | Legal Aid - Perth - Criminal Law Division |
Case(s) referred to in decision(s):
Ashcroft v The Queen (1989) 38 A Crim R 327
De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Kuc v The State of Western Australia [2021] WASCA 101
Liberato v The Queen (1985) 159 CLR 507
MEN v The State of Western Australia [2020] WASCA 118
RITTER DCJ:
The indictment, pleas and issues
By indictment 2077 of 2022 it was alleged:
(1)On 23 September 2021 at East Perth Drazan Dion Maric stole a motor vehicle, namely a Jeep Compass sports utility vehicle, registration number 1EFZ 556, the property of CCM Furniture Pty Ltd.
(2)On 23 September 2021 at East Perth Drazan Dion Maric stole $400 cash, a wallet, bank and other cards, an Armani wrist‑watch, and clothing, the property of Christopher Con Rizidis.
(3)On 23 September 2021 at Belmont Drazan Dion Maric, while in the place of Adam Christopher Couper without his consent, committed the offence of stealing
And that Drazan Dion Maric was armed with a dangerous weapon, namely a pocket-knife
And that Drazan Dion Maric threatened to injure Caleb Josiah Dingle
And that the place was ordinarily used for human habitation
And that Drazan Dion Maric is a repeat offender.
The place which was the subject of count 3 was a residence in Belmont (the Belmont residence).
On 13 April 2023 Mr Maric pleaded guilty before Wager CJDC of each of the charges in the indictment. However, Mr Maric denied two of the circumstances of aggravation in count 3. They were the first circumstance of aggravation that Mr Maric was armed with a dangerous weapon, namely a pocketknife and the second circumstance of aggravation that Mr Maric threatened to injure Mr Caleb Josiah Dingle (Mr Dingle).
Additionally, the State asserted as part of the conduct comprising the factual circumstances of count 3 that Mr Maric headbutted Mr Dingle. This was also denied by Mr Maric.
There was subsequently a trial of issues before me on 17 May 2023.
It was accepted by the State, that it had the onus of trying to establish beyond reasonable doubt, that:
1.During the conduct comprising count 3 Mr Maric was armed with a dangerous weapon namely a pocketknife.
2.During the conduct comprising count 3 Mr Maric threatened to injure Mr Dingle in that whilst brandishing the pocketknife, he threatened to 'gut him'.
3.During the conduct comprising count 3 Mr Maric headbutted Mr Dingle.
The witnesses and exhibits
The State called three witnesses, being Mr Dingle, Detective Senior Constable Samuel Bosustow and First Class Constable Sunil Withers. The State also tendered as exhibits photographs of the premises, photographs of Mr Maric, taken after his arrest on the same afternoon as the offending and CCTV footage and a still photograph from that footage which allegedly showed Mr Maric running from the Belmont residence and having an object which the State asserted was the pocketknife, in his left hand.
It was not in dispute that Mr Maric was at the Belmont residence without the consent of the owner, Mr Couper, and committed the offence of stealing. It was not in dispute that there was interaction between Mr Maric and Mr Dingle within that premises in the area of either the kitchen and/or family room. What was in dispute was what that interaction involved.
Mr Maric also gave evidence in the trial of issues.
Mr Maric's position
Mr Maric's position was that:
1.Whilst a red Swiss army‑style pocketknife was amongst the items he stole from the Belmont residence, he did not arm himself with it whilst in the presence of Mr Dingle. Instead the pocketknife was in his back pocket and he left the premises with the pocketknife in his back pocket.
2.Mr Maric did not threaten to injure Mr Dingle by saying that he would or may gut him.
3.Mr Maric did not headbutt Mr Dingle.
The State did not contend that if the pocketknife remained in the pocket of Mr Maric during his interaction with Mr Dingle that he would nevertheless be armed with the pocketknife as a matter of fact and law.
In my view this was an appropriate concession having regard to the relevant authorities.[1]
[1] See for example Ashcroft v The Queen (1989) 38 A Crim R 327.
The evidence
In summary, Mr Dingle said that he returned home with some shopping and encountered Mr Maric in the kitchen. Mr Dingle said Mr Maric was scowling and leaning forward. He had a knife in his left hand and black tape in the right. He saw the blade of the knife facing him and Mr Maric transferred the tape from his right hand to his left. Mr Dingle was told he should tie himself up. Mr Dingle refused. Mr Maric then snatched car keys from Mr Dingle's right hand, threatened to gut him if he spoke, whilst brandishing the pocketknife and then headbutted him to the upper lip.
By contrast Mr Maric said that he was on the run from the police after stealing a motor vehicle. He was being pursued by the police and his intention had been to hide at the Belmont residence. He was unexpectedly disturbed by Mr Dingle entering the premises. He then wanted to 'get the fuck out of that house' to continue to try to evade police. Accordingly, he told Mr Dingle to tie himself up with the tape. He said both he and Mr Dingle 'freaked out' and he threw the tape towards Mr Dingle and said 'tie yourself up'. Mr Dingle then threw car keys towards him. Mr Maric then said he ran off with the keys in his hand out the back of the house in an attempt to further evade police. He said this was not successful. Mr Maric said that after jumping over the fences of other premises and meeting an elderly gentleman who agreed to call him a taxi in exchange for payment of the sum of $100, he was intercepted by police. Mr Maric said that during his arrest by police his face was slammed into the ground. This was not done by Detective Senior Constable Bosustow.
The State asserted that its contention that Mr Dingle was headbutted by Mr Maric was supported by the evidence of a red mark or marks that were visible on the head of Mr Maric when he was photographed by First Class Constable Withers that afternoon. Mr Maric's contention was that if the photographs did show any redness to his forehead area then this occurred because of the way in which he was arrested by the police.
The State did not call any witnesses to deny that the arrest took place in the circumstances described by Mr Maric. Although Detective Senior Constable Bosustow attended shortly after the arrest and assisted with the taking of Mr Maric into custody, he was not there at the critical time of Mr Maric's first apprehension by police when he says his face was forced into the ground.
The State also submitted the CCTV footage and the still photograph from that footage was consistent with its case as to Mr Maric being armed with a knife and thus making the threat alleged by Mr Dingle. However the State accepted that at the end of the day, proof of each of the three disputed matters, beyond reasonable doubt, depended upon and required acceptance of the evidence of Mr Dingle, on these matters, to that standard.
The directly conflicting evidence of Mr Maric stands as a barrier to the State proving any or all of the disputed issues.
Liberato
The State properly conceded therefore that this is a case of 'oath against oath' and the principles set out by the High Court in De Silva v The Queen,[2] Liberato v The Queen,[3] and the Court of Appeal in Kuc v The State of Western Australia,[4] and MEN v The State of Western Australia[5] are applicable.
[2] De Silva v The Queen[2019] HCA 48; (2019) 268 CLR 57, 5 - 13.
[3] Liberato v The Queen (1985) 159 CLR 507, 515.
[4] Kuc v The State of Western Australia [2021] WASCA 101 [279] - [283].
[5] MEN v The State of Western Australia [2020] WASCA 118 [687] - [691] (MEN).
In MEN, Quinlan CJ and Beech JA said:
687In Liberato v The Queen, Brennan J (who was in dissent) said:
'When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.'
688It is well-established that a Liberato direction is not required as a matter of law. See, for example, Salmon v The Queen. Such a direction should be given if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt.
689Recently, in De Silva v The Queen, Kiefel CJ, Bell, Gageler and Gordon JJ confirmed this position, saying:
'The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.' (citation omitted)
690In Koushappis v The State of Western Australia, this court approved the form of direction suggested in R v Anderson:
'First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?'
691That form of direction was approved by the High Court in De Silva.
(footnotes omitted)
Accordingly, for each of the three disputed items I first need to consider the evidence of Mr Maric. This is because if his evidence is either accepted or causes me to have a reasonable doubt as to the disputed item I must decide the circumstance of aggravation or headbutt issue in favour of Mr Maric.
This is not of course to say that each of these matters needs to be determined in the same way. Indeed it would be inappropriate to axiomatically decide the three matters one way or the other. The evidence with respect to each allegation needs to be considered separately in order to determine whether or not the State has proved the issue beyond reasonable doubt.
The cases that discuss the Liberato issue are not always clear on the way in which the court is to assess whether or not to accept the evidence of the accused. At times it almost appears as though that issue is to be considered in a vacuum, removed from the other evidence in the case.
In my view that would be unrealistic. The determination by me as to whether Mr Maric's evidence is to be accepted cannot be divorced from a consideration of the other evidence in the case including that of Mr Dingle and the circumstantial evidence referred to earlier.
Consideration of the evidence
Given the evidence of Mr Dingle I find that I do not accept Mr Maric's evidence on any of the three disputed issues. That does not of course mean that I necessarily reject Mr Maric's evidence. My position is that whilst I do not accept it, I think it might or could be true on the disputed issues. Accordingly, I have a reasonable doubt as to whether I can accept the evidence of Mr Dingle with respect to the three disputed issues.
Having said this, I record that I thought Mr Dingle was a careful witness who did his best to tell the truth when giving evidence. That of course does not mean that he may not have been mistaken or had a faulty recollection of what occurred.
I do accept the evidence of Mr Maric to the extent that he was hiding in the Belmont residence when disturbed by Mr Dingle, and that his primary intent was to hurriedly get out of the premises and continue to try to evade police. I also accept the evidence of both witnesses which was to the effect that each person 'freaked out' when they interacted even if Mr Dingle did not use those words. The effect of this, in my opinion, was that neither of them necessarily acted in the sort of calm, logical or balanced way that one might have if they were not in the position of circumstantial and emotional upset that occurred.
The sudden, brief and emotionally charged circumstances of their interaction also means a precise remembering of the sequence and what occurred is difficult to attain.
I take into account that although Mr Maric took the Swiss army knife without consent from the Belmont residence, there is no evidence to establish that at the time of taking it he anticipated using the knife in the short term as a weapon. Indeed he was disturbed by Mr Dingle at a time when he was trying to hide in the house. Mr Maric also asserted that the use of the language 'gut you' was not something he would ordinarily say; it was not the sort of language he used.
I also take into account that during his evidence‑in‑chief Mr Dingle did not say that he was threatened by Mr Maric in saying he was going to or would gut him if he spoke. This was despite being asked by counsel whether there was anything else that was said by Mr Maric to him.[6] However Mr Dingle did use those words when cross-examined and re‑examined. The fact that he did not give this evidence in his examination‑in‑chief causes me to pause as to whether I can be satisfied beyond reasonable doubt that the words were said. Further, given the clear denial by Mr Maric that he said the words and the reasons for him being sure of that I am left with a doubt about whether he said he would or may gut Mr Dingle.
[6] ts 32.
For similar reasons I have a doubt about whether the knife was brandished at Mr Dingle in the way he said it was. This is because of the lack of consistency in the evidence by Mr Dingle, the clear denial by Mr Maric and the lack of any clear reason why Mr Maric would brandish the knife when his expressed intent, which I accept, was to quickly exit the house.
I have considered the CCTV footage of Mr Maric (according to the State case) running from the premises. Mr Maric pointed to differences between himself and the person caught by the CCTV footage to support his case. The first suggested difference was that the person caught by the CCTV camera had a dark tattoo on his forearm whereas Mr Maric did not. Although the latter can be accepted, with respect to the former, I accept the submission made by counsel for the State that it is unclear whether there is any tattoo of the type described by Mr Maric. It may simply be a shadow that one can see. Secondly, Mr Maric referred to a difference between the colouration of the footwear he and the person running from the scene were wearing. With respect I am unable to clearly discern the difference in colouring Mr Maric referred to.
In my view the CCTV evidence establishes that it is Mr Maric running from the premises. The person is of a similar build, wearing similar clothes and has backpacks. Mr Dingle said and Mr Maric accepted that he had backpacks at the time. It is also nonsensical to think that there would be another person of similar build wearing similar clothes and backpacks also running from the Belmont residence at about the same time that Mr Maric fled the place.
The State does not allege however that Mr Maric not being truthful about this issue displays the type of consciousness of guilt referred to in Edwards v The Queen[7] with respect to any of the issues in dispute. I therefore do not consider that issue any further.
[7] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
I therefore take into account that the CCTV footage shows Mr Maric running from the house and that there is an object in his left hand which is consistent with being the knife. However this does not provide, in my opinion, on its own or in combination with other evidence proof beyond reasonable doubt that Mr Maric brandished the knife to Mr Dingle or threatened him in the way in which it was alleged. It is hard to see from the footage that the knife blade is out; and even if it was this does not exclude the possibility that Mr Maric exposed the knife blade after his interaction with Mr Dingle.
The further issue that needs to be determined is whether or not Mr Maric headbutted Mr Dingle. Mr Dingle clearly said this occurred and Mr Maric clearly denied it. Again the Liberato approach has been taken in deciding this issue. I am again in the position that I do not reject Mr Maric's evidence and therefore the issue is not proved beyond reasonable doubt by the State. In considering this issue I take into account that there is no evidence corroborating Mr Dingle's evidence on this point, such as a photograph showing redness to his upper lip, medical reports or any other witness who observed redness or injury. Further there is no particular reason why Mr Maric would have headbutted Mr Dingle when his aim was to get out of the house quickly and continue to evade police. Further Mr Maric clearly said the headbutt did not occur. Also, I do not accept that any red marks on the forehead of Mr Maric (even if they can be seen, and as to which I have some doubts) establish by way of inference that there was a headbutting. There is an alternative rational explanation for the red marks which is the way in which Mr Maric said he was arrested. I do not reject that evidence. It was not rebutted by the State. I therefore do not infer from the alleged fact of the red marks on Mr Maric's forehead, that he headbutted Mr Dingle.
Accordingly at the end of the day for these reasons I find that the State has not proved either of the two disputed circumstances of aggravation or that Mr Maric headbutted Mr Dingle, beyond reasonable doubt.
Conclusion
As indicated at the end of the trial of issues, these reasons will be made available to the parties before the sentencing of Mr Maric.
At the request of Mr Maric's counsel I ordered a pre-sentence report and a psychological report which will also be available before sentencing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
16 JUNE 2023
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