Velevski v The Queen

[2000] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S130 of 1999

B e t w e e n -

LJUBE VELEVSKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2000, AT 4.23 PM

Copyright in the High Court of Australia

MR S.J. ODGERS:   May it please the Court, I appear with my learned friend, MR A.C. HAESLER, for the applicant.  (instructed by Murphy’s Lawyers Inc)

MR A.M. BLACKMORE:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, this application is two months out of time and I seek an extension of time.

GLEESON CJ:   Is that opposed, Mr Blackmore?

MR BLACKMORE:   It is not opposed, your Honour.

GLEESON CJ:   Yes, you have that extension.

MR ODGERS:   Thank you.  Your Honours, on the basis of what was an entirely circumstantial case, the applicant was convicted of the murder of his wife and three young children and sentenced to 25 years in prison.  One member of the Court of Criminal Appeal considered that the trial miscarried by reason of expert pathological evidence which was tendered and not tendered by the Crown.  He also considered that the verdicts were unreasonable.

GAUDRON J:   But no point was taken about that at the trial, was there?

MR ODGERS:   The unreasonableness of the verdicts?

GAUDRON J:   No, about the witnesses not being called.

MR ODGERS:   It was taken in the sense that defence counsel complained to the jury about the unfairness of the fact that they were not called, but other than that, no.

GAUDRON J:   And no objection was taken to the pathologists giving their opinion as to whether it was homicide or suicide on the basis of facts outside their expertise.

MR ODGERS:   No, it was not, and those matters both relate to two grounds.

GAUDRON J:   That seems to be a very important matter.

MR ODGERS:   Certainly, your Honour, and I appreciate that those two ‑ ‑ ‑

GAUDRON J:   It seems to be the most important matter.

MR ODGERS:   - - - matters are not ones - the strongest grounds upon which I rely for a grant of special leave, and I will leave them till last.

GAUDRON J:   It is true you did not take the point, but I would have thought if experts are able to give opinions as to the ultimate fact in issue when their opinion depends on matters outside their expertise, if that is permissible -–query whether it is – it seems to me then you have a real question about the fairness of the trial.

MR ODGERS:   That is precisely why we have advanced it, your Honour.  Of course, we are relying to some extent on the view that Justice Kirby took in dissent in the Court of Criminal Appeal, but I have to concede that it was not taken at the trial.

There are four grounds of appeal that are sought to be advanced.  I will deal with them in reverse order to how they appear and I will begin with the last and move on to the ones your Honour has referred to in a moment.  The last one is that the majority of the court erred in regarding the verdicts as safe.  That was the issue upon which the members of the court most clearly divided and it is the most fundamental in terms of the central question raised by this application, which is whether there was a real risk in this case of a miscarriage of justice.  I should make clear, your Honours, that we submit that, quite apart from any questions of general importance raised by this case, the interests of the administration of justice in the particular case, in our submission, require a grant of special leave under section 35A(b) of the Judiciary Act.

The challenge we make to the majority rejection of the unreasonableness ground, or the unsafe and unsatisfactory, to use the old terminology, is based on what Justice Grove said at application book page 279.  In paragraph 94 his Honour came to deal with that ground.  I will not read out the whole of the paragraph – I will allow your Honours to read it – but it is really the last sentence which is the nub of the point.  His Honour said there that:

The acceptance of evidence of pathological evidence –

I think it is a misprint –

in support of murder/murder –

that is, a scenario in which the wife was herself murdered rather than committing suicide –

establishes that Snezana –

the wife –

(and the children) were murdered by someone and what remained ‑ ‑ ‑

GAUDRON J:   Establishes beyond reasonable doubt.

MR ODGERS:   That is clear from the preceding sentence.

GAUDRON J:   No, I am just going to that sentence that you are reading:  in circumstances in which the pathologists could not exclude murder.

MR ODGERS:   That is the criticism we advance.

GAUDRON J:   You have to write in there – after the “murder/murder”, you have to say “establishes beyond reasonable doubt”, and that is not there.

MR ODGERS:   True, your Honour, but ‑ ‑ ‑

GAUDRON J:   There is therefore a lack of logic in that sentence, is there not?

MR ODGERS:   Perhaps it depends whichever way you look at it, but we say that his Honour reading that sentence in context, and particularly in the context of the preceding sentence, where he says that:

Once it is determined that it was open to the jury to discard the murder/suicide theory beyond reasonable doubt, it follows that it was reasonably open to find murder/murder proved.

He must be referring there to “beyond reasonable doubt” again; it is implicit.  The following sentence is the same.

GLEESON CJ:   Just remind me:  if this was suicide, what form did the suicide take exactly?

MR ODGERS:   That the wife cut her own throat.

GLEESON CJ:   That is what I meant by the word “exactly”.  Could you be a little more precise about that?

MR ODGERS:   Well, your Honour, it is very complex, as you would appreciate.  Dr Bradhurst, who was the forensic pathologist who was called to the scene and called by the Crown, testified that there was a particular scenario which he thought was most likely in which suicide occurred.  If I could summarise it at the simplest level, the scenario was that the applicant’s wife cut the throats of the three children, she then cut her own throat once ‑ ‑ ‑

GLEESON CJ:   With what?

MR ODGERS:   With a knife which was found at the scene.

GLEESON CJ:   From ear to ear?

MR ODGERS:   Yes, effectively, and that she did this at a point very low to the ground, where she would have lost blood but, on the defence scenario, may not have died for some minutes and, on the evidence of Dr Bradhurst, could have then essentially reached out, pulled the dead children in together, and then she gets up and does the last cut which severs the spinal nerve and collapses on top of them. 

In respect of application book 279, it is our submission that either there is an error of logic or his Honour has reached a conclusion which was manifestly not open to him.  That is, that on the forensic evidence alone, you could exclude suicide.

GAUDRON J:   That seems to be what is being said in that earlier sentence.

MR ODGERS:   Yes, that is our submission.  It is true to say that one of the Crown experts, Dr Oettle, went further than “probable” and came very close to saying he thought that suicide was impossible.  It is possible, although ‑ ‑ ‑

GAUDRON J:   But again he was saying it, was he not, not on the basis of the medical evidence so much ‑ ‑ ‑

MR ODGERS:   That is the criticism Justice Kirby made, yes.  It does seem that ‑ ‑ ‑

GAUDRON J:   - - - as the attendant circumstances.

MR ODGERS:   Yes, that would be our submission, that Dr Oettle, in order to reach that opinion, did rely on material that we say he should not have.  But we also make the point, which is perhaps not necessary, that if Justice Grove was relying on Dr Oettle, quite apart from the problems that were inherent, that there was a separate issue, which was the one that was mentioned in Chamberlain, with which this case has some obvious similarities.  The differences between Dr Oettle and the other experts were at a level of technicality which was so great that it was really not possible for a reasonable jury to choose between the experts on those particular technical points, such that they should have had a reasonable doubt about those technical matters and therefore Justice Grove should have put them to one side in terms of determining whether or not it was open to the jury to convict.  But that is a point that we just add on as an additional problem with the approach that Justice Grove took.

Your Honours, if special leave were granted on this ground, we would point to the many weaknesses in the Crown case, some of which we have listed in the written argument and which include at least two relatively startling facts.  One was that not even the most minute trace of blood was found anywhere else in the bedroom than near the bodies or anywhere else in the house or the plumbing, not even with the use of a polylight which will discover blood which is not visible to the human eye, and also the rather surprising fact that a man who is supposed to have staged things to make it look like suicide told his neighbour some days later, and the police at least initially, that he believed it was not suicide, and yet the Crown case is that that was his whole purport of what he did.

Our remaining grounds relate to three areas where we say the trial miscarried.  The first where we say that happened is reflected in the third ground related to the evidence of an alleged lie about the applicant staying in his daughter’s bedroom between 1 o’clock in the afternoon on the day of the deaths and 6 o’clock the following morning and sleeping there for most of that period.  The issue was given considerable prominence in the trial, both by the Crown and by the judge in his summing up.

There are two aspects to the challenge that we make.  First, we submit that the evidence was not capable of supporting an inference of guilt at all because the lie, if it was one, did not relate to a material fact since the prosecution could only show that he was not sleeping at a time before the deaths occurred.  The point was that the deaths occurred, on the forensic evidence, between 9 o’clock at night at 5 o’clock in the morning.  There was some evidence which was in dispute that the applicant was not sleeping at 8 o’clock that night, but the point we make is that that cannot therefore be a material lie because it does not relate to a material fact.  What he was doing before the deaths occurred was not material.

Even if we are wrong about that, there is an issue of general importance which is one we seek to raise:  whether a jury should be directed that if some circumstantial fact in dispute becomes indispensable to them in their process of reasoning, in our submission, they should be told that it must be proved beyond reasonable doubt.

GAUDRON J:   I suppose it was indispensable in a sense because, if he committed the murders with which he was charged, then he must have left the room in which he says he was.

MR ODGERS:   In that sense it was, yes, your Honour, but not the lie.  It was indispensable that he not be in the room ‑ ‑ ‑

GAUDRON J:   There is a certain circularity about this issue that I find a little puzzling.

MR ODGERS:   Precisely.  Your Honour, there is authority in New South Wales in a case called Zheng that you cannot use the fact that he is guilty to prove that it was a lie.

GAUDRON J:   Well, that is obvious.

MR ODGERS:   But equally, if you can prove that he was lying about something which was material, then that can be used.

GAUDRON J:   The fact that you prove somebody lied does not of itself prove anything.

MR ODGERS:   Quite.

GAUDRON J:   It seems on one view that this may have been elevated out of its real significance.

MR ODGERS:   We submit that it was.

GAUDRON J:   You have to do more than prove that he lied.

MR ODGERS:   Yes.  Unfortunately, it was left to the jury initially as evidence of consciousness of guilt and then his Honour at the last minute said, “Well, it’s not evidence of an admission but it’s a circumstantial fact you can take into account”, which, with respect, does not really assist much in limiting its use.  In fact, it is clear that the jury were giving their minds to the question of lies because they came back and asked if they could take into account other possible lies and they were told not to.  But it is certainly something that took prominence in the trial and we say created a risk of a miscarriage.

Your Honours, the second area where we say the trial miscarried is reflected in the second ground and is based on the judgment of Justice Kirby in which he pointed to the problems with the expert evidence that your Honour Justice Gaudron has mentioned.  He considered ‑ ‑ ‑

GAUDRON J:   There are two problems, are there not?  One is:  was the evidence admissible?  That does not seem to be addressed by you.  Do you say it was inadmissible?

MR ODGERS:   We do, yes, your Honour.  We say that some of it at least ‑ ‑ ‑

GAUDRON J:   Yes, the final opinion as to whether it was homicide or suicide.

MR ODGERS:   Yes, certainly.

GAUDRON J:   If it was admissible, quite apart from the numbers balanced on either side, in a case such as the present there must be a question of what is involved in a fair trial if people can say ‑ ‑ ‑

MR ODGERS:   “We think it was murder” or “We don’t think it was suicide.  It was not suicide”, which is essentially what these experts were permitted to say – in some cases on the balance of probabilities.  As Justice Kirby pointed out, that creates in itself real problems for how the jury is to use that information.  I will not say any more about that issue.

The last matter we raise – and it is reflected in ground 1 – related to the failure of the Crown to call any of the four pathologists who it knew had agreed with Dr Bradhurst and who the police had chosen not to approach for reports.

GAUDRON J:   Thank you.  We will hear what Mr Blackmore has to say.

MR BLACKMORE:   Perhaps if I could deal with these issues slightly out of order and just deal with the last issue as to the admissibility of the opinions.  The trial was run in a way in which it was not objected to that these terms were used.

GAUDRON J:   It might be unfortunate.

MR BLACKMORE:   I accept that, your Honour, that perhaps at an early stage somebody should have said, “Look, this is not the appropriate way to address the matter”.

GAUDRON J:   Many times one is finding that the prosecutors these days are quite happy to sit back and say the point was not taken, but prosecutors have a responsibility in these matters too.  Whoever prosecuted this had a responsibility at the very least to think very carefully about the terms in which that evidence was led, so it is not good enough to say it was not objected to.  I am sorry, Mr Blackmore, it is not your fault but it has happened on several occasions in this Court recently where ‑ ‑ ‑

MR BLACKMORE:   No, I understand your Honour’s point.  Can I make the factual point though that when we come to analyse in this case what was the opinion that they were going to give, the opinion they were going to give related to what happened.  Here it was either going to be that it was self‑inflicted or it was inflicted by somebody else.  Ergo, the only ‑ ‑ ‑

GAUDRON J:   But why was that admissible even?  And if it was admissible, why were not there other considerations that came into play?  I know what the Evidence Act says.

MR BLACKMORE:   Yes, I appreciate that.  In our submission, it was admissible to say self‑inflicted because this was the very issue that forensic pathologists ‑ ‑ ‑

GAUDRON J:   None of them would say certainly self-inflicted, would they?  Why could they not have said the wounds were consistent with self‑infliction and consistent with homicide?  Why did they have to go beyond that?

MR BLACKMORE:   My submission is they did not in fact go beyond that even though they used the terminology which everybody, including the judge, slipped into of using the words “suicide” and “murder”.

GAUDRON J:   It should not have happened, should it?

MR BLACKMORE:   Arguably, no, it should not have happened.  If your Honour goes to page 61, your Honour will see that – this is Dr Oettle and in fairness this is as high as the Crown case got and, yes, it got ‑ ‑ ‑

GAUDRON J:   Where is Dr Oettle - page 61?

MR BLACKMORE:   Yes, about line 5:

“I thought it was homicidal.  I didn’t think it was suicidal.”

He was using ‑ ‑ ‑

GAUDRON J:   That is the highest that your evidence went?

MR BLACKMORE:   In terms of the final opinion, that was the highest it went.  This is in the medical evidence of course, not in the circumstantial case in which there was also substantial evidence.  He then supports it by looking at a number of aspects of the case.

GAUDRON J:   That is right, which are not necessarily in his field of expertise:  where the nightie was, the smears, which one might think would have come about simply by wiping your hands like that.

MR BLACKMORE:   With respect, it is a combination of factors that are forensic, and that word “forensic” added to “pathologists” means that ‑ ‑ ‑

GAUDRON J:   But Dr Oettle is a pathologist.

MR BLACKMORE:   He is primarily a pathologist looking at medical evidence, but he is also assessing forensically the scene.  This was the very precise issue that was relied on very strongly by the defence here and by the applicant in Dr Bradhurst’s evidence where he says he was the one who went to the scene, he was the one who saw the scene, and he even goes to the extent of saying, “My medical opinion in relation to this matter is based on the scene”.  With respect, it is exactly the same point.  The trial was run ‑ ‑ ‑

GAUDRON J:   Two rights – two wrongs.

MR BLACKMORE:   But it is not a matter of cancelling them out.  Everyone was content to run the trial this way because it suited the parties to run it this way, with respect.  It suited Dr Bradhurst’s opinion, it suited the defence to run the case that way.

GAUDRON J:   These criminal trials are somewhat different from party and party proceedings, are they not?

MR BLACKMORE:   Of course; I accept that.

GAUDRON J:   We start from the fact that the prosecutors have a very particular role, a very particular role of fairness, and it has to be accepted.  If people slipped into this language, in all probability it was the prosecution that slipped into it first with what was said by Dr Oettle or similar things in‑chief.

MR BLACKMORE:   I cannot gainsay that.  No doubt the Crown started and, without going to the whole of the transcript, it cannot be said where the first person to use the term arose.  It probably arose in fact in the reports that were prepared by the pathologists themselves and perhaps in the way the judge addressed the jury, but practically, with respect, it did not in fact alter the way the opinions were given.  The opinion was in relation to whether it was self‑inflicted or whether or not it was in relation to someone else inflicting the wounds.  Practically it makes, with respect, no difference to how you address that issue.  Nobody was misled by the terminology in this case.

GAUDRON J:   I know that seems to be the thesis behind it but I am not sure that that is right.  What did the jury think they were doing in the context of this evidence – determining which expert they believed?

MR BLACKMORE:   The jury were given careful instructions that at the end of the day they had to be satisfied beyond reasonable doubt on all of the evidence.  It was a circumstantial case.

GAUDRON J:   Yes, but what did they think they were doing with the pathologists’ evidence?

MR BLACKMORE:   They would have looked at ‑ ‑ ‑

GAUDRON J:   There are real risks in it, are there not?

MR BLACKMORE:   There are risks, with respect, in all evidence of course, but in pathologists’ evidence and experts’ evidence there are some risks that the jury will select one expert over another but, with respect, this happens if not every day, at least every week, in criminal trials throughout Australia and New South Wales in particular, that experts are called and people have to select in essence between those experts in deciding which case.

GAUDRON J:   Expressing their opinion on how the case should be decided in essence.

MR BLACKMORE:   In a sense, yes.  If we go to a diminished case in relation to psychiatric evidence, it is clear that that is what happens every day in relation to those sorts of cases.  The Evidence Act has made clear that it is possible to do it this way.  It is possible to express an opinion and particularly where it is not objected to.  One can accept that the terminology is loose, it should not perhaps have been used, but practically it made no difference to the result in this case and it would be a long bow to accept that somehow this created a miscarriage of justice, in our submission, given the facts.

GAUDRON J:   I cannot see that.  Unless it can be said that this evidence was admissible ‑ ‑ ‑

MR BLACKMORE:   Which evidence is your Honour precisely ‑ ‑ ‑

GAUDRON J:   The evidence of opinions that it was homicidal, not suicidal, that it was murder, not suicide, unless that evidence was admissible, you would have to think, notwithstanding the want of objection, that there was a miscarriage of justice unless you could ascribe some tactical advantage to the accused in letting it go that way, would you not?

MR BLACKMORE:   We submit that if it is merely a matter of the terminology that your Honour is concerned about, the “murder” and “suicide” ‑ ‑ ‑

GAUDRON J:   No, it is a matter about – yes, you could say ‑ ‑ ‑

MR BLACKMORE:   With respect, I come back to our point that practically, whilst the terminology may have been loose and it could be accepted, it made no practical difference because the pathologists in this case – the only scenarios which were being run before the court practically were that this was a case of suicide or it was a case of someone murdering these people.  There were no other issues in this case.

GAUDRON J:   Well, exactly, which is why one would have thought that it was necessary to call the doctors – cause of death, stab wounds, et cetera.  Could they have been self‑inflicted?  Yes.

MR BLACKMORE:   With respect, we say practically that is what happened.  At the end of the day, whilst using the terminology “suicide” meant self‑inflicted – and that is all it could have meant, with respect – and in relation to “murder” the same, that it was inflicted by somebody other than Snezana, the applicant’s deceased wife.  They were the issues, and the mere terminology of itself, in our submission, is not sufficient to warrant the grant of special leave in this case.  It will not amount to a miscarriage of justice at the end of the day because an examination of the facts, in our submission, will show that that is really what the pathologists were addressing.  These were very, very experienced pathologists.  They were the forensic pathologists not only used in this country but in Scotland.  Leading world experts were called in this case and they were using this terminology.

GAUDRON J:   Just say “homicide/suicide” in circumstances in which none of them could positively exclude suicide.

MR BLACKMORE:   With respect, Oettle gets closer to it than that.

GAUDRON J:   “I thought it was homicidal.  I didn’t think it was suicidal”.  That is the highest you could put the Crown case on the pathology evidence.

MR BLACKMORE:   He firmly was of the view, yes, that it was a murder case and it was not suicide.  As to perhaps the other grounds, I am not sure if your Honours want to hear me in relation to ground 1.  Very shortly we have set out an explanation as to what happened in relation to the experts that were not called.  We would submit that that did not amount to a miscarriage of justice.  There is no onus on the Crown to call all experts who may have expressed an opinion.

GAUDRON J:   One can readily understand that, but do special problems arise if the experts are giving opinions as to the very matter to be decided:  guilty or not guilty?

MR BLACKMORE:   I am not sure I understand the distinction that your Honour speaks of.  I am simply addressing those witnesses who were not called, not the ones who were called.

GAUDRON J:   Yes.  What I am saying is that in general terms one can understand it, but it does highlight, does it not, one of the difficulties with giving evidence in this way?  If you are going to give evidence which says, “I thought it was homicidal.  I didn’t think it was suicidal”, and you call five people to say that and there are four people who say, “I thought it was suicidal.  I didn’t think it was homicidal”, you are getting to a very strange system of justice which is almost counting up the witnesses.  I think you are quite right in what you say about not calling them, but I think that highlights the problem with the evidence, does it not?

MR BLACKMORE:   Without obviously going through all the evidence here, we would submit that in fact there was a substantial case made out on the medical evidence and on the circumstantial evidence for murder.  One of the difficulties of addressing this issue is that you always tend to look at the other side of the ledger and say that in this case the obvious evidence was that it was a case of someone else killing those people.  That was reasonably clear from the way in which Snezana died, the way in which she bled.  She bled copiously in one spot and her body moved.  Whether it was moved or whether she moved became a very crucial issue in the case.  Dr Oettle expressed the firm opinion after her throat had been cut and she had bled in the way she did, and the bleeding was so extensive that it was pooled underneath the carpet, but it was in no dispute between any of the experts that her body had moved from that position, Dr Oettle was firmly of the opinion nobody could move from that position having bled like that.

It was a simple issue.  The jury could understand that issue.  If he was right, it had to be murder.  That is the simple issue.  The converse of course is when you look at the defence case.  It involves in effect extraordinary strength, which I think was one of the terms that was used.  People may have extraordinary strength, be able to move around, even after having veins and arteries cut down to the level of your spine.  But that is an extraordinary circumstance, with respect.  The jury were entitled to look at the evidence.  I do not want to give a jury address, your Honour, I understand that.  Perhaps I am venturing into that – because I am really not in a position to do so anyway.

But if I can put it this way, you are looking into an extraordinary series of events to accept a scenario inconsistent with the murder scenario.  That was the case that was presented before the jury.  It was unusual.  There was no question that this was an unusual case.  The aspects in relation to the lack of blood around the house were unusual.  One of the doctors said, “Well, you’re dealing with a murder case.  Who knows that he didn’t prepare?  It’s all hypothesised on the basis that it didn’t happen this way, but who knows that in fact he didn’t prepare to do this?”  We do not know.  All we know is that there was not this evidence.  There was also no evidence of the fact that on her very jacket, despite the copious bleeding that must have come from herself and from having killed her own two babies and her six‑year‑old, she has no blood on her own jacket where she held the knife.  An extraordinary circumstance against the theory of it being a suicide.

This was a very long trial; it went for nearly two months.  It involved extremely detailed evidence.  With respect, at least 12 members of the jury, a trial judge and two Court of Criminal Appeal judges have looked at the evidence in detail and have concluded that there was no miscarriage of justice in this case.  With respect, we submit this is not a matter for special leave for that reason.  It is simply a matter of going through the evidence again and seeing whether or not the case is one where the applicant may be found not guilty.

As to the other grounds, I think my written submissions adequately cover those in relation to the lies.  We do not accept that it was circular, but we have put in the reasons why we do not accept it was circular.  We do not accept, for example, that the lie was somehow not material because there was some evidence that he may have been out of the room at 8 o’clock.  That was what he said.  He said he was in the room for the 17 hours - an extraordinary thing to say – which excluded him from the room where the murder took place.  There were many other circumstances in this case which were themselves extraordinary.

GLEESON CJ:   How long did the argument in this case take in the Court of Criminal Appeal?

MR BLACKMORE:   A day and a half, I am told, your Honour.

GLEESON CJ:   Thank you.

MR BLACKMORE:   It would be of comparable length in the High Court, with respect, because it would require going through the whole of the trial transcript, the photographs and the evidence from the doctors.

GLEESON CJ:   Thank you.

In this case there will be a grant of special leave to appeal.  We will adjourn.

AT 4.57 PM THE MATTER WAS CONCLUDED