GLEESON CJ, GAUDRON, GUMMOW, HAYNE AND CALLINAN JJ
LJUBE VELEVSKI APPELLANT
AND
THE QUEEN RESPONDENT
Velevski v The Queen [2002] HCA 4 14 February 2002 S197/2000
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
S J Odgers SC with A C Haesler for the appellant (instructed by Murphy's Lawyers Inc)
A M Blackmore with M C Marien for the respondent (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Velevski v The Queen
Criminal law – Evidence – Expert evidence – Whether certain wounds to deceased were self-inflicted – Whether capable of being the subject of expert opinion – Evidence given by experts on matters of common knowledge of human behaviour – No objection by accused – Whether admissible – Whether conflicting opinion of experts incapable of resolution beyond reasonable doubt by jury because of difficulty and sophistication of purely scientific or medical evidence.
Criminal law – Practice and procedure – Duties of prosecution – Whether prosecution obliged to call other expert witnesses whose evidence might have been favourable to the accused.
Criminal law – Evidence – Confessions and admissions – Lie as evidence of consciousness of guilt – Whether jury could rely upon alleged lie only if satisfied of it beyond reasonable doubt.
GLEESON CJ AND HAYNE J. At some time between 9.00 pm on Sunday, 19 June 1994 and 5.00 am on Monday, 20 June 1994 in a three bedroom suburban house in Berkeley, Wollongong, New South Wales, twin babies aged about three months, and their sister, Zaklina, aged six years, were murdered. All three children were murdered in the bedroom in which their parents and the twins ordinarily slept. Each child's throat was cut. The wounds were very great. The mother of the children, Snezana Velevska, died of similar wounds. The three children, and their mother, all suffered their wounds in the narrow space between the edge of the parents' bed and a cot in which the twins had slept.
There were three other people in the house when the children were murdered and their mother died: the appellant, and his mother and father, who were all then living at the house. The appellant, father of the children and husband of Snezana, was later to tell police that, on the Sunday morning, 19 June 1994, he and his wife had had an argument about the refusal of her mother, the appellant's mother‑in‑law, to care for the children while they went shopping. Zaklina had been staying with her mother's parents and the appellant went straight over to their house to collect Zaklina and bring her home. On his return, there was a further exchange of words in which Mrs Velevska said that "[b]ecause you have taken our daughter from my mother place I don't like…
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.
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Details
AGLC
Velevski v The Queen [2002] HCA 4
Case
[2002] HCA 4
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the decision of the Court of Criminal Appeal concerning the appellant, Velevski, who was convicted of murder. The case arose from the deaths of the appellant's wife and three children, whose bodies were discovered in a locked bedroom with their throats cut. The central dispute revolved around whether the deaths were a result of murder by the appellant or a murder-suicide scenario where the appellant's wife killed the children and then herself.
The legal issues before the High Court included whether certain wounds to the deceased were capable of being the subject of expert opinion, particularly when experts gave evidence on matters of common human behaviour. The court also considered whether conflicting expert opinions, which the jury found difficult to resolve due to the sophistication of the evidence, were admissible. Furthermore, the court examined the duties of the prosecution regarding the calling of expert witnesses who might have provided evidence favourable to the accused, and whether a jury could rely on an alleged lie as evidence of a consciousness of guilt only if satisfied of the lie beyond reasonable doubt.
The High Court reasoned that expert evidence on matters of common human behaviour, even if not strictly scientific or medical, could be admissible if it assisted the jury. The court found that the conflicting expert opinions did not render the verdicts unreasonable, as the jury was entitled to weigh the evidence and form its own conclusions. The court also held that the prosecution was not obliged to call every expert witness whose evidence might have been favourable to the accused. Regarding the alleged lie, the court affirmed that a jury could consider it as evidence of guilt if satisfied of its falsity beyond reasonable doubt.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The appellant now appeals from the decision of the Court of Criminal Appeal to this Court. Amongst other grounds, it is argued that the verdicts are unreasonable. In this regard, it is put that the jury could not exclude, as a reasonable hypothesis, the possibility that the appellant's wife murdered their three children and then committed suicide.The facts The bodies of the appellant's wife and children were found in the main bedroom of their and the appellant's home at Berkeley, a suburb of Wollongong, on Monday, 20 June 1994. The door of the bedroom was locked from the inside and police gained entry by smashing a hole in the door and reaching through to unlock it from the inside. There was no light on in the room. All four bodies were found in a confined area in the main bedroom between a bed and a cot. All had their throats cut. In the case of Snezana, there were two severe cuts into the cervical spine, one of which cut into the spinal cord[10]. The bodies were found on top of one another, with the twins face down on the floor, Zaklina face down on top of the twins and their mother face down on top of her. A knife was found directly under the mother's body, at head height. The room, itself, bore no sign of a struggle or of forced entry.[10]One cut penetrated the intervertebral disc between the 5th and 6th cervical vertebrae by at least 5 millimetres, and the other penetrated the intervertebral disc between the 4th and 5th cervical vertebrae by at least 20 millimetres. The deeper cut penetrated the spinal cord. Dr Bradhurst, who examined the bodies before they were removed from the bedroom and later conducted post-mortem examinations, placed the time of the deaths between 9.00 pm on the night of Sunday, 19 June and 5.00 am on Monday, 20 June 1994. There was a very considerable quantity of blood in the area where the bodies lay. There was also blood on the side of the cot, on the lower part of a bedside cabinet adjacent to the bed, on the wall and skirting board behind the bed, underneath the bed and on part of the bed linen which was overhanging the bed near the floor. The absence of blood in other parts of the bedroom led Dr Bradhurst to conclude that the injuries had been inflicted in the area in which the bodies were found, a view which was not challenged in the trial. Moreover, Dr Bradhurst's unchallenged opinion was that Snezana's head must have been close to the floor when some, if not all, of her injuries were inflicted[11].[11]Dr Bradhurst considered that Snezana may have been standing when she inflicted the final wound to herself. Apart from the appellant and his wife and children, the only other occupants of the house at the relevant time were the appellant's aged parents. Investigations revealed no blood or blood stains on their clothing or on that of the appellant. Extensive tests were also conducted throughout the house for traces of blood, including with polylight equipment which can detect minute traces. Apart from the area of the main bedroom where the bodies were found, no blood was located in any other part of the house or in the drainage system. Nor was any trace of blood found on any of the light switches in the main bedroom. Moreover, testing of the steering wheel of the appellant's car revealed no trace of blood. Importantly, there was also no evidence that any attempt had been made to conceal or remove any blood staining.Conflicting expert evidence
Evidence
Evidence Before The Court
The first matter to which reference should be made in relation to the above summary is that Dr Bradhurst was of the view that Snezana probably suicided. The second is that Dr Oettle also expressed his opinion in terms of probability, saying that "the sum of the probabilities leads me to conclude that Snezana was murdered rather than that she committed suicide". The third is that there was evidence that other pathologists[12], who were not called as witnesses in the trial, agreed with the opinion expressed by Dr Bradhurst.[12]Professor Hilton and Drs Botterill, Lawrence and Duflou.The nature of the expert evidence A number of important points should be made with respect to the expert evidence. The first and most important is that, standing alone, that evidence cannot support a finding beyond reasonable doubt of murder. If the verdicts are to stand, it can only be on the basis that, when the other evidence is considered in conjunction with the evidence of those experts who considered that, in the case of Snezana, homicide was more probable than suicide, the evidence, as a whole, is capable of excluding suicide as a reasonable hypothesis. The second matter to be noted is that no expert witness based his opinion solely on the injuries inflicted on the appellant's wife and children. Rather, each relied on that evidence in combination with other aspects of the forensic evidence. The third matter is that the nature and cause of some of the injuries, on which some of the experts relied for the formation of their opinion that Snezana was murdered, were matters about which different experts expressed different opinions. Finally, it should be noted that, apart from Drs Bradhurst, Cooke and Oettle, the experts who were called as witnesses in the trial based their opinions, in large part, on what they observed in photographs of the bodies and of the bedroom in which the bodies were found. Dr Oettle viewed the body of Snezana from a distance on the Friday following her death. Dr Cooke inspected the bodies some five days after their removal from the main bedroom and, on the same day, inspected the bedroom. Dr Bradhurst, on the other hand, viewed the bodies in the bedroom where they were found and, later, conducted post-mortem examinations upon them.The post-mortem examinations Save for the fact that the post-mortem examination of Zaklina's body revealed that she sustained defensive type wounds, nothing turns on the injuries inflicted on the children. It is, thus, necessary to recount only Dr Bradhurst's findings with respect to Snezana. Dr Bradhurst noted that, on Snezana's body, there was "a large gaping 150 x 40 millimetres deep cut throat across the front of the neck". Measured from the middle of the neck, the wound extended upwards for 6 centimetres towards the left ear and upwards for 9 centimetres towards the right ear. The wound was irregular and there was a series of superficial parallel cuts along the upper and lower margins. In addition to the superficial cuts in the vicinity of the wound, Dr Bradhurst's examination revealed mild bruising below the cut and an abrasion on the right side of the neck with indefinite parallel cuts. There was also a scalp abrasion above the left ear and a superficial wound to the right hand on the pad of the palm at the base of the thumb.