Citation: CVETKOVIC v R [2010] NSWCCA 329
Court: NSW Court of Criminal Appeal
Date: 21 December 2010
Judge(s): Campbell JA; Simpson J; Whealy J
Background
The appellant was convicted in the District Court of wounding with intent to murder his wife. On 6 June 2007, he stabbed her more than 30 times with a gyprock saw while they sat together in the front seats of their car. The central facts were largely uncontested: the appellant acknowledged he had the implement and that he had stabbed her with it, though he claimed no recollection of doing so.
The appellant represented himself on appeal. He argued his conviction was unreasonable, that various interlocutory rulings by the trial judge were wrong, and that the overall conduct of the trial had occasioned a substantial miscarriage of justice.
The trial was conducted before Sweeney J in the District Court, with judgment on sentence delivered on 7 August 2009. The appeal was heard over four days in July 2010.
Legal Issues
- Whether the conviction was unreasonable or unsupported by the evidence, particularly given the automatism defence and psychiatric evidence
- Whether the trial judge erred in refusing an adjournment application
- Whether evidence the appellant sought to admit as character and tendency evidence was correctly treated instead as going to credit
- Whether the trial judge should have made a limiting direction under s 136 of the Evidence Act 1995 in relation to evidence about the victim's credibility
- Whether Part 5 Division 1 of the Criminal Procedure Act 1986 (governing prescribed sexual offences) applied to the trial, and whether the trial judge should have imposed a s 136 limitation on sexual experience evidence
- Whether reasons for judgment in other proceedings were admissible as hearsay under ss 65(3), 65(8)(b), or as a public document under s 157 of the Evidence Act 1995
- Whether the trial judge erred in refusing leave to recall witnesses for further cross-examination
- Whether various other items of evidence were wrongly excluded, including a police notebook entry, an unsent email, and medical records
- Whether the jury directions on automatism, intent, and related matters were adequate
Decision
Ground 1: Conviction unreasonable or unsupported by evidence
The Court found that the sole live issue at trial was whether the Crown had proved beyond reasonable doubt that the appellant's act of stabbing his wife was a "willed" act, consistent with the High Court's analysis of automatism in R v Falconer (1990) 171 CLR 30. Simpson and Whealy JJ observed that the various alleged inconsistencies in witness evidence, the appellant's litigation history, and questions about the logic of certain conduct were all beside the point. None of those matters bore on the central question of the appellant's state of mind at the time of the stabbing.
The psychiatric evidence fell well short of raising a reasonable doubt. Three expert witnesses gave evidence, and none provided material capable of supporting a finding that the appellant was acting in a state of automatism. Campbell JA addressed at length the individual aspects of the evidence the appellant relied upon, including Glasgow Coma Scale scores and the circumstances of the stabbing, and concluded that the jury's verdict was reasonably open.
Ground 2: Wrong interlocutory decisions
The Court addressed each of the numerous interlocutory grounds and rejected them. The trial judge's refusal of an adjournment was a discretionary decision of practice and procedure; the Court confirmed that the test for appellate reversal of such a decision is no different from that applicable to any other discretionary decision, though satisfying it is frequently harder in practice. The admission of prosecution evidence as relationship or context evidence rather than tendency evidence was not in error. The Court also examined the procedure for determining the admissibility of tendency evidence and confirmed it requires proper procedural steps before admission.
On the question of reasons for judgment in prior proceedings, the Court conducted a detailed analysis of the hearsay provisions. Reasons for judgment do not qualify as admissible under s 65(3) of the Evidence Act 1995 because the statements within them are not first-hand hearsay. The Court also held that the word "judgment" in s 157 of the Act does not extend to reasons for judgment, so those documents could not be admitted as public documents. The various other bases for admission were similarly rejected.
Ground 3: Substantial miscarriage of justice
The Court rejected all complaints about the directions given by the trial judge, including contentions about the McKinney direction, directions on intent, and directions on the medical evidence. No miscarriage of justice was established.
Orders Made
- The appeal was dismissed.
Key Takeaways
- Where automatism is raised as a defence and the central physical facts are not in dispute, the sole question for the jury is whether the Crown has proved beyond reasonable doubt that the act was a "willed" act, in accordance with R v Falconer (1990) 171 CLR 30.
- Alleged inconsistencies in witness evidence and tangential factual disputes do not assist an automatism defence unless supported by expert evidence linking those matters to the defendant's state of mind at the relevant time.
- The test for appellate reversal of a discretionary decision about practice and procedure is no different from the general test for overturning a discretionary decision, though satisfying it is often harder as a matter of fact.
- Under s 157 of the Evidence Act 1995, the word "judgment" does not include reasons for judgment, meaning reasons delivered in other proceedings cannot be admitted as public documents through that provision.
- Proper procedural steps must be followed before tendency evidence can be admitted, and courts must carefully distinguish tendency evidence from relationship or context evidence, which serves a different evidentiary purpose.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), including ss 65, 73, 136, 157
- Interpretation Act 1987 (NSW)
- Mental Health Act 2007 (NSW)
Cases:
- The Queen v Falconer (1990) 171 CLR 30
- M v R (1994) 181 CLR 487
- Murray v The Queen (2002) 76 ALJR 899
- Hawkins v The Queen (1994) 179 CLR 500
- McKinney v R (1991) 171 CLR 468
- Bratty v Attorney General (Northern Ireland) [1963] AC 386
- House v The King (1936) 55 CLR 499
- R v Ford [2009] NSWCCA 306
- Ha v The Queen [2010] NSWCCA 83
- R v Serratore [1999] NSWCCA 377
- Qualtieri v Regina [2006] NSWCCA 95