Citation: R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21
Court: NSW Court of Criminal Appeal
Date: 19 August 2004
Judges: Hodgson JA, Hulme J, Hidden J
Background
The appellant was convicted of the murder of Eugene Petroff, who was stabbed four times in the chest in the early hours of 20 May 2001 near Strathfield Railway Station. The deceased died from those wounds. The appellant did not deny inflicting the stab wounds.
The Crown case was that the appellant and his companion lured the deceased into a side street with the intention of robbing him, and that the appellant stabbed the deceased intending to kill or cause grievous bodily harm. The appellant's case was self-defence: he gave evidence that the deceased, though unarmed, had kicked him repeatedly, threatened to kill him multiple times, and continued advancing even after the appellant produced a knife.
Critical to the self-defence case was evidence the trial judge refused to admit: that the deceased had murdered three people in 1978, and that just hours before his death he had threatened another man at the same reunion by saying, in effect, that he would kill him "like I killed the other three people." The trial judge excluded this evidence, and the jury convicted the appellant of murder. He appealed.
Legal Issues
- Whether the trial judge erred by permitting the Crown to call police evidence in reply (after the defence case closed) about a search of the appellant that found no knife.
- Whether evidence of the deceased's 1978 triple murders, and the deceased's reference to those murders in a threat made hours before his death, was admissible under the Evidence Act 1995, either as tendency evidence under s 97 or on some other basis.
- Whether the trial judge's directions to the jury on self-defence were erroneous.
- Whether, if error was established, the proviso applied so as to preserve the conviction.
Decision
Ground 1: Splitting the Crown case
The Court declined to interfere with the trial judge's decision to allow the Crown to call evidence in reply from the officer who had searched the appellant. The search had occurred more than three hours before the stabbing, and it was not until the appellant gave evidence that the Crown could appreciate the significance of whether a knife had been found. The point had not been taken below. All three judges agreed no error was established on this ground.
Ground 2: Evidence of the three murders
This was the ground that determined the appeal. Hodgson JA (with Hulme J agreeing on the key point) held that the evidence of the 1978 killings and the deceased's reference to them in the Logounov threat was not primarily tendency evidence governed by s 97 of the Evidence Act. Its real probative value lay elsewhere: it made the otherwise highly improbable self-defence account less improbable. The relevant question was not whether the deceased's guilt of some act was proved to any standard, but whether there was a reasonable possibility that the deceased had acted as the appellant described. On that question, evidence that the deceased had previously killed three people, and had invoked those killings in a fresh threat to kill only hours earlier, was held to carry substantial probative value. The three judges were unanimous that the evidence should have been admitted, though they differed in their characterisation of it: Hodgson JA and Hulme J viewed it as admissible otherwise than as tendency evidence, while Hidden J considered it admissible as tendency evidence because it demonstrated a propensity for extreme retaliation.
All three judges agreed the evidence was not admissible as tendency evidence under s 97 in the conventional sense. Hulme J explained that the circumstances of the 1978 killings were insufficiently detailed to establish any particular tendency. The passage of time (23 years), intervening imprisonment of approximately 13 years, and the very different context of the 1978 killings (drug trade disputes) meant that a tendency to kill or act violently when affected by alcohol could not safely be inferred for 2001.
On the s 97 notice requirement, the court noted that the Crown had not raised notice as an issue at trial and it formed no part of the trial judge's reasons for exclusion. The court also declined to exclude the evidence under s 135, noting that the probative value was not substantially outweighed by prejudicial effect in the particular circumstances of this case, where the question was only reasonable possibility rather than proof beyond reasonable doubt.
Ground 3: Directions on self-defence
The initial oral directions contained two errors: "or" was used in place of "and," and the word "not" was omitted. The Court accepted these were errors but found they were corrected in written directions provided to the jury. The directions also did not explicitly address the scenario in which the jury should acquit outright, but the Court considered this implicit. Given the jury returned a murder verdict, the Court was satisfied they must have concluded the Crown proved the appellant did not genuinely believe his conduct was necessary for self-defence. This ground failed.
Proviso
The Crown argued the evidence of guilt was so overwhelming that the appeal should be dismissed even if error was established. The Court rejected this. Although the Crown case was strong and the self-defence account was, on its face, far-fetched, the wrongly excluded evidence was capable of rendering that account substantially less improbable. The Court was not satisfied that a properly directed jury acting reasonably must inevitably have convicted the appellant of murder.
Orders Made
- Appeal allowed.
- Conviction quashed.
- New trial ordered.
Key Takeaways
- Evidence of a deceased person's prior violent conduct can be admissible in a murder trial where the accused raises self-defence, not as tendency evidence under s 97, but because it makes the accused's otherwise improbable account of the deceased's behaviour a reasonable possibility.
- The distinction between the relevant questions matters: the probative value of character evidence differs depending on whether it must establish conduct beyond reasonable doubt or need only make a reasonable possibility of that conduct less improbable.
- Under s 97 of the Evidence Act 1995, evidence of prior misconduct adduced to establish tendency requires significant probative value; where the circumstances of prior incidents are insufficiently detailed, or where the passage of time and intervening imprisonment break the inferential chain, that threshold is unlikely to be met.
- A finding that evidence was wrongly excluded does not automatically enlivens the proviso: the proviso will not be applied where the excluded evidence, if admitted, could reasonably have affected the jury's assessment of a contested defence.
- Hidden J's concurring judgment illustrates that a trial judge in a criminal case should approach the s 135 discretion cautiously when the accused seeks to adduce the relevant evidence, particularly where the Crown, not the accused, bears the burden of proof on the issue to which the evidence goes.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated