Citation: Regina v Velevski [1999] NSWCCA 96
Court: New South Wales Court of Criminal Appeal
Date: 10 May 1999
Judge(s): Grove J, James J, Kirby J
Background
The appellant stood convicted on four counts of murder following a trial of almost two months in the Supreme Court before Dunford J. The victims were his wife and three young daughters, one aged six and twin infants aged three and a half months. All four had died from throat wounds in the bedroom of the family home at Berkeley, near Wollongong, in June 1994.
Police attended after the appellant reported that he had not seen his wife and children since the previous night, saying she had taken the children into the bedroom and locked the door. Officers found the bodies stacked in a gap between the bed and a cot, with a knife nearby. The central dispute at trial was whether the Crown had excluded the hypothesis that the wife had killed the three children and then taken her own life, described throughout proceedings as the "murder/suicide" hypothesis, as against the Crown's case that the appellant had killed all four, the "murder/murder" hypothesis.
The appellant appealed against conviction only. His grounds challenged the trial judge's directions on circumstantial evidence, lies, onus of proof, and the use of his father's evidence, as well as contending that the verdicts were unsafe and unsatisfactory.
Legal Issues
- Whether the trial judge erred in leaving the case to the jury at all
- Whether the directions on drawing inferences from circumstantial evidence were adequate
- Whether the directions on lies told by the accused were adequate
- Whether the directions on onus of proof were adequate
- Whether the directions on the use to be made of the father's evidence were adequate
- Whether the verdicts of guilty of murder on all four counts were unreasonable and not supported by the evidence
Decision
The Court of Criminal Appeal dismissed the appeal by majority, with Grove J and James J forming the majority and Kirby J dissenting.
On the grounds relating to the trial judge's directions, the majority found no error. The directions on circumstantial evidence, while general in form, were in terms customarily used and consistent with binding High Court authority. The complaint that the trial judge failed to identify "intermediate facts" indispensable to the Crown's chain of reasoning was rejected because it was not articulated with sufficient precision to disclose an actual deficiency. Similarly, no inadequacy was identified in the directions on onus of proof, lies, or the use of the father's evidence.
On the central question of whether the verdicts were unreasonable, the majority concluded that the evidence was capable of supporting the jury's findings and that the Crown had excluded the murder/suicide hypothesis to the required standard. The forensic and circumstantial evidence, taken as a whole, was held sufficient to sustain the convictions.
Kirby J dissented. His Honour considered that the blood spatter evidence, including marks found on the wall behind the bed, had been given undue weight as incriminating the appellant, particularly given the possibility that the bed had moved on its casters when ambulance officers attended the scene. Kirby J concluded that the jury's verdict was unreasonable, that there was a significant possibility an innocent person had been convicted, and that the medical evidence had given rise to a miscarriage of justice warranting a new trial.
Orders Made
- Appeal against conviction dismissed (by majority)
Key Takeaways
- The Court of Criminal Appeal confirmed, by majority, that a general direction on drawing inferences from circumstantial evidence will not be erroneous merely because it is not tailored specifically to the facts of the case, provided it is consistent with established High Court authority.
- A submission that a trial judge failed to identify indispensable intermediate facts in a circumstantial case must articulate precisely what was missing; an abstract complaint of inadequacy will not succeed.
- Kirby J's dissent illustrates that forensic evidence, particularly blood spatter interpretation, may be of limited probative value where its assumed physical context (such as the position of moveable furniture) has not been definitively established.
- The majority and dissent in this case each applied the "unsafe and unsatisfactory" (unreasonable verdict) standard but reached opposite conclusions on whether the evidence excluded the murder/suicide hypothesis beyond reasonable doubt, underscoring how fact-specific that inquiry is.
- In dismissing the appeal, the majority left undisturbed the principle that, where competing hypotheses are advanced in a murder trial, it is for the jury to assess whether the Crown has excluded the innocent hypothesis, provided the jury is properly directed on that task.
Legislation and Cases Referenced
Cases cited in the judgment:
- Chamberlain v The Queen (No 2) (1983) 153 CLR 521
- Edwards v The Queen (1993) 178 CLR 193
- Shepherd v The Queen (1990) 170 CLR 579
Legislation:
- Criminal Appeal Act (NSW), s 6(1) (the statutory basis for setting aside a verdict as unreasonable)