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Court of Criminal Appeal 28 October 1999

R v Plevac

[1999] NSWCCA 351

Homicide
CRIMINAL LAW AND PROCEDURE MURDER CIRCUMSTANCE MOTIVE CONTENT OF CHARGE TO JURY NEW EVIDENCE

Citation: Plevac v R [1999] NSWCCA 351
Court: Court of Criminal Appeal, New South Wales
Date: 28 October 1999
Judge(s): Grove J, James J, Dowd J

Background

The appellant was convicted at retrial of the murder of his wife, who was killed by an assailant on the fourteenth floor of an apartment building in Parramatta on 22 September 1989. The attacker, whose face was concealed by a balaclava-style disguise, doused the victim in petrol and set her alight. She died at Westmead Hospital later that day, having told emergency responders that she could not identify her attacker and that it was neither her husband nor her boyfriend.

The case against the appellant was entirely circumstantial. He was subject to a restraining order prohibiting him from approaching the victim's residence, yet he acknowledged being in the vicinity at the time. Witnesses placed a shirtless man running in the Parramatta area shortly after the attack, and the appellant did not dispute that this was him. A police medical officer later assessed fresh burns on the appellant's body as having occurred within the preceding twenty-four hours, and the appellant admitted those burns occurred that morning.

Evidence was also led of the appellant's statements expressing obsessive attachment to the deceased, including remarks to the effect that if he could not have her, no one else would. He had purchased approximately fifteen litres of petrol on the morning of the attack. The appeal was brought against the conviction entered following the retrial before McInerney J and a jury.

  • Whether the trial judge adequately directed the jury on "relationship evidence" and its permissible use
  • Whether the trial judge's charge to the jury was otherwise deficient in its treatment of circumstantial evidence and motive
  • Whether a psychiatrist's opinion that the appellant had a fear of fire constituted fresh evidence warranting a new trial
  • Whether a letter, claimed to have been written by the deceased prior to her death and withheld from the trial on the advice of senior counsel, constituted fresh evidence that gave rise to a substantial miscarriage of justice

Decision

The Court of Criminal Appeal dismissed all grounds of appeal. On the question of the jury charge regarding relationship evidence, the Court found no inadequacy in the trial judge's directions. The restraining order and evidence of the appellant's statements about the deceased were properly contextualised for the jury as going to motive and background, and the directions given were appropriate to the circumstances of the trial.

On the proposed fresh evidence of a psychiatrist's opinion that the appellant had a fear of fire, the Court rejected this as a basis for disturbing the conviction. The existence of burns the appellant himself admitted were sustained that morning, combined with the broader circumstantial case, meant this opinion evidence could not have produced a different verdict.

The most substantial ground related to a letter purportedly written by the deceased before her death. The appellant sought to rely on this letter as fresh evidence suggesting a possible conspiracy to implicate him. The Court noted that the letter had been deliberately withheld at trial on the advice of two separate senior counsel and the appellant's solicitor. The Court accepted that the decision not to tender it was a deliberate forensic choice made with legal advice, not an oversight. In any event, the Court held that the letter's content was incapable of establishing any cogent hypothesis in the appellant's favour. Even accepting the most generous reading, the letter at most suggested the deceased believed the appellant might be convicted on a separate arson charge, which itself was ultimately abandoned. The Court applied the test from R v Goonan and found no significant possibility that a reasonable jury would have acquitted had the letter been before them.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that fresh evidence withheld from trial as a result of a deliberate forensic decision, made on the advice of experienced counsel, will face significant obstacles when later sought to be relied upon on appeal.
  • A conviction may be properly sustained on circumstantial evidence where the accumulated body of that evidence, including statements, physical evidence, and conduct after the offence, is sufficiently compelling.
  • Fresh evidence will not warrant a new trial unless there is a significant possibility that a reasonable jury would have acquitted had the evidence been before them, consistent with the test applied in R v Goonan (1993) 69 A Crim R 338.
  • Where proposed fresh evidence depends on an extremely remote or fanciful hypothesis to acquire relevance, the Court may decline to examine questions of admissibility or authenticity, proceeding directly to the question of whether the evidence could have affected the verdict.
  • Adequacy of jury directions on relationship and motive evidence is assessed in light of the particular case; no error was established in the trial judge's directions here.

Legislation and Cases Referenced

Cases:
- Penney v The Queen (1998) 72 ALJR 1316
- R v Murphy (1985) 4 NSWLR 42
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- R v Kotzmann (1999) VSCA 27
- R v Goonan (1993) 69 A Crim R 338

Legislation: No specific legislation was cited in the provided text.