Citation: Jovan Nenadov SAVIC v REGINA [2008] NSWCCA 312
Court: NSW Court of Criminal Appeal
Date: 16 December 2008
Judge(s): Allsop P, Kirby J, Hall J
Background
The appellant was convicted at a judge-alone trial in the District Court of wounding with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). The victim and the appellant had a prior personal relationship and a history of serious conflict. Approximately four months before the stabbing, the appellant had attacked the same victim with a baseball bat, an offence to which he later pleaded guilty.
The central issue at trial was identification. The victim identified the appellant by both voice and visual recognition, relying on their prior acquaintance. The trial judge (English DCJ) found the charge proven beyond reasonable doubt on 11 April 2005. The jury at an earlier trial in November 2004 had been unable to reach a verdict.
On sentence, the appellant received a minimum term of six years and six months for the wounding with intent to murder, with an additional term of three years and six months. A separate fixed term of five years was imposed for the earlier assault. The appellant, self-represented on appeal, challenged both his conviction and sentence.
Legal Issues
- Whether the verdict was unsafe and unsatisfactory, particularly given the identification evidence
- Whether evidence of the appellant's guilty plea to the earlier assault was admissible, or whether it was unfairly prejudicial
- Whether defence counsel's failure to object to that evidence constituted flagrant incompetence
- Whether the trial judge erred in refusing to conduct a view of the relevant premises
- Whether the trial judge erred in disallowing certain cross-examination about a prior inconsistent statement and the witness's credit
- Whether the sentences were excessive in light of the objective seriousness of the offences
- Whether the trial judge failed to give credit for the cooperative manner in which the trial was conducted
Decision
Conviction appeal: The Court dismissed all grounds relating to the conviction. On identification, the trial judge had directed herself carefully as to the required caution before accepting the complainant's voice and visual identification. The Court noted the advantage the trial judge held in assessing that evidence and found no basis to disturb her conclusions.
On the guilty plea evidence, the Court found no error. The prior offence was directly relevant to establishing motive and the history between the parties, and its admission did not constitute unfair prejudice. The absence of an objection by trial counsel did not amount to flagrant incompetence, particularly given the legitimate forensic purposes the evidence served.
The refusal to conduct a view and the restrictions on certain cross-examination were also upheld. No error was identified in either decision. The final words attributed to the attacker as he departed ("don't dob me into the cops") did not undermine the finding of intent to murder, given the overall circumstances and the violence of the attack.
Sentence appeal: Leave to appeal was granted but the appeal was dismissed. The Court found that the sentences adequately reflected the objective seriousness of both offences, described as involving serious violence and, in the second episode, a particularly brutal attack on the victim. No excessive accumulation was established. The claim that the trial judge should have credited the appellant for conducting the trial cooperatively was rejected, noting that no such submission had been made to the sentencing judge at first instance.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A trial judge conducting a judge-alone trial retains a recognised advantage in assessing identification evidence, including voice identification based on prior acquaintance, and the Court of Criminal Appeal will be slow to disturb such findings.
- Evidence of a prior offence against the same victim is capable of being properly admitted where it is relevant to establishing motive and the relationship between the parties, even where it involves a guilty plea.
- Where trial counsel's decision not to object to evidence has a plausible forensic rationale, it will not ordinarily meet the threshold of flagrant incompetence required to ground a conviction appeal.
- No error was established in the sentencing judge's approach to either the objective seriousness of the offences or the overall accumulation of terms.
- A claim that credit should be given for the cooperative conduct of a trial will not succeed on appeal where no such submission was advanced before the sentencing court at first instance.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 27 (wounding with intent to murder), 33 (wounding with intent to do grievous bodily harm)
- Evidence Act 1995 (NSW)
Cases: No specific cases were cited in the portions of the judgment provided.