The State of Western Australia v Radovic
[2018] WASC 297
•26 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RADOVIC [2018] WASC 297
CORAM: FIANNACA J
HEARD: 21 SEPTEMBER 2018
DELIVERED : 26 SEPTEMBER 2018
FILE NO/S: INS 430 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MILOS RADOVIC
Accused
Catchwords:
Nil
Legislation:
Evidence Act 1906 (WA)
Result:
Application to exclude dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Whalley |
| Accused | : | Ms H Prince |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | Ms H Prince |
FIANNACA J:
The issue
The accused, Milos Radovic, is to stand trial in the Supreme Court on a charge of attempted murder. This is a pre-trial ruling on the admissibility of evidence the State intends to adduce in the trial.
The accused was charged on indictment with three offences, being criminal damage (count 1), being armed with an offensive weapon in circumstances likely to cause fear (count 2), and attempted murder (count 3). He has pleaded guilty to count 2, but has maintained pleas of not guilty to the other charges. The State is considering its position as to whether it will proceed with the charge of criminal damage.
In any event, the charge of attempted murder is proceeding to trial on 8 October 2018. The charge alleges that on 19 July 2017, at Rockingham, the accused attempted unlawfully to kill Andrew Thomas Swift (the complainant). The complainant is a police officer who, at the time of the incident, was acting in the course of his duties. The accused is alleged to have attempted to kill the complainant by striking him on the head with a samurai sword. That sword is the weapon that was the subject of count 2.
The State intends to adduce evidence of video footage found on the accused's mobile telephone which shows him engaging in what has been described by the parties as 'sword play' and may properly be regarded as a martial arts demonstration by him with the sword while alone in a room. The State submits the evidence is relevant to proof of the charge of attempted murder. The accused objects to the evidence on the basis that it is not relevant to any of the issues in the trial. Alternatively, the accused submits that the evidence should be excluded by the court in the exercise of discretion, because its prejudicial effect would outweigh any probative value the evidence may have.
The State's case
In order to properly assess the relevance of the proposed evidence, it is necessary to have regard to the State's case and the eye witness accounts upon which it intends to rely.
The State's case is that late on the afternoon of Wednesday, 19 July 2017, the accused went to the residential unit in Rockingham where his former wife, Ms Radovic, was living with their three
children. He was prohibited from approaching them by a court order. He had sought a variation of the order on 18 July 2017 which was opposed by Ms Radovic. There will be evidence that he resented and was upset about the restrictions on his ability to see his children. It is alleged he said things on 19 July 2017 to suggest he wanted to end his life.
On the State's case, the accused had been to the house earlier in an agitated state. Ms Radovic was not home at that time. One of the children informed her of the accused's presence by telephone. Police were called to the unit by Ms Radovic, who then returned home. When the police attended, the accused was not there. However, he arrived while they were in the house making enquiries. He was seen to arrive in a vehicle which he parked at the end of the driveway to the units. A friend of Ms Radovic's brother tried to prevent the accused from getting out of his vehicle, but was unsuccessful.
The accused got out of the vehicle carrying a samurai sword. He was then seen to be swinging the samurai sword and was shouting that he was going to kill 'you all' or 'youse' and saying he wanted to die. The two police officers who were in the house were called outside. The complainant was the first to confront the accused. The accused came towards him with the samurai sword raised above his head. The complainant drew his Taser and shouted to the accused to stop. When the accused continued to move forward, the complainant deployed his Taser, but it was ineffective. The accused then swung the sword down onto the complainant's head causing a large wound. The complainant then wrestled the accused to the ground. His partner, Constable Sgherza, deployed her Taser at the accused, but that too was ineffective. The accused continued to violently resist the officers' attempts to handcuff him. Eventually the complainant was able to apply his Taser directly to the accused's neck to subdue him. The accused was then handcuffed and arrested.
The accused did not participate in an interview with the police.
The State intends to adduce evidence from several witnesses who saw the accused's conduct and heard what he was saying from the time he came out of the vehicle until his attack on the complainant.
One witness describes the accused as 'yelling and raging' and being very aggressive when he got out of the vehicle. She heard the
accused say, 'I am going to kill you all' while 'waving the sword around towards the police officer'.1
Another witness heard the accused shouting, 'I'm going to kill youse. I wanna die.' The accused was 'shaking the samurai sword around as he shouted'. The accused kept shouting the same words 'to everyone he seemed to see'. The witness states that when the accused got closer to the police, 'he lifted the sword above his head, still holding it with both hands, as you would if you were about to chop something'. When the accused got to within a metre of the officer, 'he chopped the sword down onto his head'. The witness states that the accused looked as though he used his full force.2
Another witness states that she saw the accused with his back towards the police officers and then 'saw him turn and face them, at the same time bringing the sword up above his head, holding it with both hands and swung it downwards striking the male officer on the top of his head'.3
Another witness, who did not know the accused, states that the person with the sword was swinging it around. He also states that when that person hit the police officer on the top of his head, it looked like he was swinging it as hard as he could.4
Another witness who did not know the accused states that he saw the male with the sword run with the sword above his head.5
The complainant describes the accused as being very aggressive, that his eyes were wide open and that he (the complainant) could see 'the whites of his eyes'. He describes the manner in which the accused struck him on the head as involving 'a full swing in a downward direction towards me'. He states that the blade of the sword struck him on the top of his head with enough force to cause the blade to bounce up and then back down onto his forehead. He describes it as a heavy blow and says he felt instant excruciating pain.6
The sword was seized by police at the scene.
1 Statement of [SUPPRESSED], [47] - [48]; Brief p 68.
2 Statement of Petar Govedarica, [31], [32], [38], [40], [44], [47] and [49]; Brief pp 112 - 114.
3 Statement of Joanne Hyke-Martin, [44]; Brief p 122.
4 Statement of Gary Martin, [47] - [49]; Brief pp 131 - 132.
5 Statement of Christopher Davis, [58]; Brief p 139.
6 Statement of Andrew Swift, [29] - [36]; Brief pp 150 - 151.
There will be evidence at trial that the accused owned a samurai sword, which usually hung on the wall of the house where he lived with his partner.7
The video footage
The footage in question was found on the accused's mobile telephone. It is not in issue that it was his telephone or that the person in the footage is the accused.
At the hearing, counsel for the accused pointed out that there is no evidence on the prosecution brief as to when the video footage was recorded. Counsel representing the State then informed the court that there will be evidence that the footage was recorded on 3 July 2017, being 16 days before the offence is alleged to have been committed.
I have watched the footage. At the commencement of the recording, the accused displays the blade of the samurai sword in close proximity to the camera. He then moves away from the camera to a position where his movements can be seen in full. He commences to perform a number of movements with the sword, holding it with both hands for some of the movements, including when holding it over his head, and with one hand for other movements. He performs a number of patterns, some of which are repeated, including swinging patterns, cuts and thrusts. Among the movements is a downward swing or chopping motion. The movements appear to be deliberate and controlled. They are slow at the start, but become faster and more vigorous, slowing again towards the end. At the conclusion, the accused again displays the blade of the sword, swivelling it to some extent so that it is apparent that the edge is sharp.
In my opinion, it would be open to the jury to conclude that the accused has undergone training and that he displays a significant degree of skill, dexterity and control in his use of the sword. In my opinion, it would also be open to a jury to conclude that the accused displayed the blade to the camera to emphasise that the blade is sharp, which would serve to underscore his prowess with the sword. Of course, whether a jury draws those conclusions would be a matter for them.
The issue at trial
The charge of attempted murder in this case requires proof that:
7 Statement of Fiona Hitchcock (the accused's partner), [63]; Brief p 77.
(1)the accused intended unlawfully to cause the complainant's death;
(2)he put that intention into effect by striking the complainant on the head with the sword; and
(3)the striking of the complainant on the head with the sword was a means by which the accused's intention could be fulfilled, even though he was not successful.
Counsel for the accused acknowledged that, in respect of the charge of attempted murder, the issue at trial will be whether the accused intended to kill the complainant when he struck him on the head with the sword. Counsel submitted that, in that context, the jury may need to determine whether the striking of the complainant on the head with the sword was deliberate, or whether it may have been a reflex action in response to the deployment by the complainant of his Taser, notwithstanding that the Taser was ineffective at that stage. However, as I have understood counsel's argument, even if the jury were satisfied the accused struck the complainant on the head with the sword deliberately, the issue would remain whether the accused intended to kill the complainant.
It was not submitted on behalf of the accused that the sword was not capable of causing a fatal injury.
Relevance
Evidence is relevant and has 'probative value' if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.8
State's submissions
The State submitted that the evidence of the video footage is relevant to the issue of the accused's intention when he struck the complainant on the head. That is because it is capable of rationally affecting the determination of whether the accused deliberately chose the sword as the weapon he would take to the scene, his familiarity with the features of the sword and whether he wielded the sword in a deliberate manner when he struck the complainant on the head, rather
8 LFG v The State of Western Australia [2015] WASCA 88 [290] (Buss JA); Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] (Steytler P); Smith v The Queen [2001] HCA 50;
(2001) 206 CLR 650 [6] - [7]; Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson
CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50].
than just lashing out. The State submitted that the determination of each of those matters can rationally affect the jury's assessment of whether the accused had an intention to kill when he struck the complainant with the sword.
More specifically, the State submitted that, if the jury was to assess the issue of intent in the absence of the video footage, it might consider that it is reasonably possible that, before setting out from his house, the accused randomly grabbed the nearest implement that came to hand, which happened to be an ornamental sword hanging on the wall. It submitted that, in contrast, a jury viewing the video footage might conclude that the accused deliberately selected the sword because he was practised in handling that weapon and had developed some skills in the offensive use of the weapon.
Further, the State submitted that the jury may conclude from the video that the accused was capable of exercising precise control and dexterity in his handling of the sword. When considering the descriptions to be given by eye-witnesses of the accused's actions, such a conclusion could rationally affect the jury's assessment of whether, in striking the blow to the complainant's head, the accused was carrying out an intention, as opposed to merely lashing out with the weapon.
The State submitted that a further basis of relevance is that the jury may conclude from the video that the accused was familiar with the sword's features, including the sharpness of the blade. It submitted that without the video, a jury might consider it possible that the accused just grabbed the sword off the wall with little or no idea of its features. That, again, will be relevant to the assessment of the accused's intention when he struck the police officer.
Defence submissions
It was submitted on behalf of the accused that the video shows him using the sword to carry out 'set piece' moves and manoeuvres which are not directed to any other person or object. It was submitted that the moves are 'stylised' and made in a calm and measured manner, consistent with the accused being in a calm and controlled state. The accused's argument is that the circumstances in which he was engaging in the 'sword play' and his emotional state at the time were so different to the circumstances in which he confronted the complainant, when he was distressed and agitated, that the video footage could not rationally affect the jury's determination of the accused's intention at the time that he struck the complainant.
However, at the hearing, the accused's counsel conceded that the accused's familiarity with the characteristics of the sword, in particular the sharpness of the blade, would be relevant to the jury's assessment of the accused's intention when he struck the complaint. Counsel acknowledged that, to the extent that the video footage may demonstrate that awareness, it would be relevant.
However, it was submitted on behalf of the accused that, although the State did not rely on s 31A of the Evidence Act 1906 (WA) as the basis for admission of the evidence, the video footage could be regarded as propensity evidence, and there was a danger a jury would regard it in that way and reason impermissibly that the accused was the sort of person who would use the sword to inflict violence with an intention to kill. The context of the argument was the potential prejudice of the evidence, which the accused submitted would outweigh any probative value the evidence may have. However, the argument raises the question whether the threshold for admissibility is the common law test for relevance (referred to above) or the test in s 31A of the Evidence Act.
Consideration
In my opinion, the outcome would be the same, irrespective of whether the basis for admission is at common law or under s 31A of the Evidence Act.
It is sufficient for present purposes to note that the definition of 'propensity evidence' in s 31A includes 'evidence of the conduct of the accused person' and 'evidence of … a tendency that the accused person has or had'. The definition has been described as being extraordinarily wide.9 However, although evidence may come within the definition, it may be admitted without recourse to s 31A if there is another basis for its admission at common law.
In order for evidence to be admissible under s 31A, it must have significant probative value, which must be such that, when compared to the degree of risk of an unfair trial, a fair-minded person would think the public interest in adducing the evidence should have priority over the risk of an unfair trial.10 The public interest aspect of the test replaces the approach at common law of discretionary exclusion if the prejudicial effect of the evidence outweighs its probative value.
9 Preston v The State of Western Australia [2012] WASCA 64 [36] (Mazza JA, Martin CJ and Buss JA agreeing).
10 Evidence Act 1906 (WA) s 31A(2).
However, whereas at common law the discretion may be exercised where evidence is otherwise admissible, under s 31A, if there is a risk of an unfair trial, the public interest test must be met as a condition of admissibility.
In my opinion, the evidence of the video footage is relevant for the reasons outlined in the State's submissions. It is capable of rationally affecting the jury's determination of the issue of intention, which will be affected by factual findings about his actions.
As I noted earlier, the accused's counsel indicated that, in determining the issue of intention, the jury will need to consider whether the blow was struck by the accused deliberately, or whether it may have been a reflex action in response to the deployment by the complainant of his Taser. That will require the jury to consider the manner in which the accused was wielding the sword immediately before the blow and his action in bringing the sword down upon the complainant, as described by the witnesses. If the manner in which he did so accords in one or more respects with his demonstration on the video, that will be relevant to the jury's determination of his state of mind at the time he inflicted the blow.
With respect, the description 'stylised', used by the accused's counsel in respect of the accused's manoeuvres on the video, does not really inform the nature of the practice in which the accused was engaging. Nor is it to the point that there was no person or object to which the accused's actions on the video were directed. It may be accepted that his moves and patterns fit a particular style, but it would be open to the jury to conclude that such martial arts practice is intended to replicate moves in combat.
It is correct, as the accused submitted, that the jury will need to take into account that he was agitated at the time of the alleged offence. However, as the State submitted, the jury may well consider that a person who is practised in the use of a weapon such as the samurai sword may have the capacity to use it in a controlled and purposeful manner, notwithstanding that the person may be in an agitated state. Indeed, their ordinary understanding of human behaviour might suggest that persons engaged in combat with weapons would be expected to experience heightened emotional states, yet be capable of using their weapons with the skills they have acquired. These are matters for a jury to assess. The question at this stage is whether such reasoning would be open. I am satisfied it would be.
I also accept that the video footage is capable of informing the issue of whether the accused's selection of the sword to take with him was a random choice of an ornamental item or the deliberate choice of a weapon that he was skilled in using. A finding that it was the latter could rationally affect the jury's assessment of the probability that the accused intended to kill the complainant when he struck him with the sword. The intention must be found to have existed at that point in time, but such a finding is not made in isolation, without regard to what preceded the blow. The jury would be entitled to have regard to all the circumstances, including his choice of weapon when he left his house and the statements he made threatening to kill persons at the scene.
Finally, the accused's awareness of the sharpness of the edge of the sword and the danger it posed is also capable of rationally affecting the jury's determination of whether the accused intended to kill the complainant when he struck him, especially in light of the observations of witnesses that the accused used considerable force. In my opinion, the video footage is capable of informing the jury's assessment of the accused's awareness of the characteristics of the sword.
Each of the above bases for admission of the evidence does not depend on the evidence being propensity evidence. However, if admissibility depended in this case on the evidence satisfying the conditions in s 31A of the Evidence Act, I would be satisfied that it does.
The test under the first limb of s 31A(2) will be satisfied if the court considers that the evidence 'would' (as distinct from could), either by itself or having regard to other evidence to be adduced, rationally affect, to a significant extent (that is, in a manner that is important or of consequence), the assessment of the probability of the existence of a fact in issue.11 In my opinion, the reasoning on which the State relies in respect of each of the bases for admissibility for which it contends would affect, to a significant extent, the assessment of the probability that the accused intended to kill the complainant. In each instance, the proposed evidence would be of consequence in that assessment, for the reasons I have given.
11 LFG v The State of Western Australia [2015] WASCA 88 [290] (Buss JA).
Whether prejudicial effect outweighs probative value
Evidence that is prima facie admissible can be excluded nonetheless if the court determines that it has prejudicial effect that outweighs its probative value.12
Evidence is not prejudicial merely because it strengthens the prosecution case. The prejudicial effect with which the court is concerned is the likelihood that the jury will give the evidence more weight than it deserves or the potential, because of the nature and content of the evidence, that it may inflame the jury or divert jurors from their task.13 In essence, like the second limb of s 31A of the Evidence Act, the exclusionary rule is concerned with the risk of an unfair trial resulting from the jury uncritically overvaluing the probative effect of the evidence and concluding that the accused must have committed the offence charged simply because he has committed other offences or has done other discreditable things, or is a person likely to do such things, rather than confining the use of the evidence to a process of dispassionate, logical reasoning.14
It was not submitted on behalf of the accused that his actions in the video footage amount to discreditable conduct that might inflame or prejudice the jury. There is nothing unlawful or discreditable about a person engaging in martial arts practice in private.
However, it was submitted on behalf of the accused that the jury might reason impermissibly that, because he is a person who engages in and practises martial arts involving the use of a sword, the accused had a propensity for the use of weapons and, when he took the sword with him, he intended to use it in the manner in which the State alleges he used it to strike the complainant. Although it was not clear from counsel's submission, I have understood the submission to be made in the context of the defence case (indicated earlier), that the blow may have been a reflex action rather than a deliberate strike to the complainant's head. I assume that the defence will be that the accused's actions in going armed in circumstances likely to cause fear can be distinguished from the use of the sword to strike the complainant.
In my opinion, there is an inconsistency in the accused's submissions. On the one hand, it was submitted that the circumstances
12 R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [62] - [64] (Toohey, Gaudron and Gummow JJ).
13 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [51] (McHugh J).
14 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [127] (Roberts- Smith JA); APC v The State of Western Australia [2012] WASCA 159 [15] (Pullin JA).
depicted on the video are not comparable to the alleged offence, because he was not directing his manoeuvres at any person or object. On the other hand, it was submitted that the accused's actions in the video footage might be regarded as evincing a propensity to use the sword on a person, as alleged. In my view, the inconsistency highlights the weakness of the second proposition.
In any event, to the extent that there is a risk that a jury might engage in impermissible propensity reasoning, that risk can be adequately alleviated, in my opinion, by an appropriate direction to the jury that they must not engage in such reasoning and that the use of the evidence is to be confined to the jury's assessment of the accused's intention in the manner I have outlined in dealing with the relevance of the evidence. The bases on which the State relies on the evidence can be readily articulated.
I am not satisfied that the degree of potential prejudice from the proposed evidence is such as to outweigh the probative value of the evidence, so as to justify exclusion of the evidence in the exercise of discretion.
If it were necessary to determine the admissibility of the evidence under s 31A of the Evidence Act, I am satisfied that, comparing the probative value of the evidence to the degree of risk of an unfair trial, fair-minded people (being reasonable members of the community who are not lawyers, but who have informed themselves at least of the most basic considerations relevant to arriving at a conclusion) would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.15 In coming to that view, I have had regard to the direction that would be given to a jury, to which I have referred. I have also had regard to the seriousness of the offence. Most importantly, in my view, fair-minded people would consider that it is in the public interest that the jury should be able to assess the issue of intention in the light of all relevant information. They would consider that to leave the jury in ignorance of the accused's familiarity and abilities with the sword would deprive the jury of the proper context in which to make findings about his state of mind. Of course, whether the jury is satisfied that the accused had the relevant intention will depend on its assessment of all of the circumstances.
15 Evidence Act s 31A(2)(b); LFG v The State of Western Australia [2015] WASCA 88 [291] (Buss JA).
Conclusion
For the reasons I have given, the evidence is admissible and will not be excluded in the exercise of discretion.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Secretary
9 AUGUST 2022
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZB
Associate to the Honourable Justice Fiannaca
22 AUGUST 2022
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