Ilioski v Regina

Ilioski v Regina - [2006] NSWCCA 164 - NSWCCA 2006 case summary — Zoe

[70]

57 The appellant was identified as the man involved in the second confrontation by the four Crown witnesses whose evidence has already been described, but which may be relevantly summarised as follows: (1) Braithwaite said that he had a clear view of the man with the knife when he walked straight in front of him holding that knife, and that this man was the man with the blond streaks in his hair involved in the first confrontation. The appellant had such blonde streaks in his hair. Braithwaite was certainly a loquacious and somewhat overly introspective witness, but I see nothing in his evidence which affected the quality of the identification he made. His criticism of the amateur videorecording that several people on it looked the same does not affect his identification either. It was common ground at the trial that the quality of that videorecording was very poor. The argument that Braithwaite's evidence that the man with the knife subsequently gave it to someone else (see pars [20]-[22] supra) was given for the first time in this trial (which was not the first trial) - the witness described it as a "revelation" to him when giving evidence - is easily explicable from the fact that the witness had just been asked yet again to view the amateur videorecording, and it is obvious from the evidence itself (see the passages of his evidence quoted in par [21] supra) that it was the witness's interpretation of what he had just noticed in that videorecording for the first time. He expressly stated that he had no memory of having seen the knife being given to someone else at the time himself (par [19] supra). That criticism was misplaced. (2) Steele gave evidence that he saw the man with the knife (in the second confrontation) from four to five metres away when he was facing him directly, and he identified the man with the knife as the same man involved in the first confrontation. That is so, even though he was unable to identify which of the identical twins with whom that man was fighting in that particular fight. He was not shaken on the identification of the appellant as that man. Importantly, Steele said that the man had his shirt torn off in the first confrontation (pars [34]-[36] supra), and the man involved in the third confrontation is described by other witnesses as having a torn shirt: Masri pointed this out on the amateur videorecording (see par [32] supra); Constable May said that, when she arrested the appellant, he was without his shirt; and the appellant himself conceded that he was bare-chested just before the third confrontation (see par [51] supra). In those circumstances, Steele's concession in cross-examination that he could possibly have made a wrong assumption that the man with the knife in the second confrontation was the man being beaten up in the third confrontation is of less significance. The importance of his evidence is that the man involved in the second confrontation was also the man involved in the first confrontation - and the appellant has conceded that he was that man. (3) Masri also identified the man involved in the second confrontation as the same man involved in the first confrontation. He said that he had clearly seen the left side of the man's face when he came past him holding the knife. The quality of that identification, however, is affected by his concession that he had in a previous trial said that the assailant with the knife could have been wearing a shirt with vertical stripes on it, and his acceptance that there was therefore an ambiguity in his evidence. (4) Karandzulovski gave evidence that he was four to five metres away when he saw the man with the knife. However, he said that he was concentrating on the knife at that stage, and his evidence that he was "pretty sure" that the assailant had a rat's tail also affects the quality of his identification.

[98]

76 As to the expressed desire by three men to seriously harm the victim or his twin brother Slobodan (see par [71(3)] supra), counsel for the appellant has referred to the following incidents: (1) The victim gave evidence that, at the Steelers Club on the evening in question, there was a scuffle between either his twin brother Slobodan or himself (he could not recall which) and a man called "Sash" Petrovski (a fellow Macedonian) and two of his friends in the men's lavatory. The scuffle involved one or two pushes. This incident was also witnessed by Oliver Koltovski, a friend of the twins and a cousin of Jason Hrstovski (who was in turn the victim's cousin). Koltovski described it as "an argument" in which the other men challenged the victim and his brother to "go outside". Subsequently, when the victim and his twin brother returned to the bar, the victim said he heard a man screaming at his brother and himself and he saw that man slide his finger horizontally across his throat. He did not know whether this gesture was directed at himself or his twin brother. The description given by the victim in cross-examination does not suggest that this man was Petrovski, but a further scuffle then took place between his twin brother Slobodan and Petrovski. (2) The victim agreed in cross-examination that his brother-in-law Steven Karandzulovski had informed him a few months after the evening in question that Petrovski had, earlier on the evening in question, telephoned him at the Steelers Club, telling him to bring "the twins" to the Port Kembla Hotel, that he could accompany them to that hotel if he wished but that he would need some people "to bring the dead bodies back", or "the coffins back". Petrovski was said by counsel then appearing for the appellant in his final address as having been described in evidence as having "blondish hair" and "a bit on the slender side". (3) Trevor Braithwaite, a friend of the victim, gave evidence of another incident on the evening in question involving Petrovski, the victim's twin brother Slobodan and a third man, described as a young fellow with a long ponytail, in which there was some pushing and shoving. Slobodan joined the two men and they went outside where they were still arguing and taunting each other and there was more pushing and shoving until police officers "cooled them down". Jason Hrstovski dragged Slobodan away from the scene. This incident was also observed by Oliver Koltovski, who described the man with the ponytail as the "main guy" arguing with the victim and his twin brother Slobodan. The physical appearance of the man with the ponytail involved in this incident was described by Graham Crittenden, the duty manager of the Steelers Club on the night in question, as being of "middle height … not very tall", and by Daniel Steele, undertaking work experience as a security officer of the Club, as "a little guy". (4) The victim's twin brother Slobodan gave evidence of the subsequent incident described in par [3] supra when a man sitting in a motor vehicle parked in an area outside the club had, when looking at Slobodan, run his finger across his throat. It was this incident which preceded the first confrontation between the twin brothers and the appellant.

[154]

127 The evidence on which such a direction should, it is said, have been based comes from three witnesses: (1) The victim's twin brother Slobodan is asserted to have been "adamant" that the man who stabbed his brother had "a distinctive rat's tail" (see par [37] supra). That man and the other two men from the vehicle started to fight Slobodan and his brother the victim (the first confrontation). Slobodan said that the man with the rat's tail ran back to his vehicle and returned with a knife, saying "we'll see who's fucking tough now", or something along those lines (see par [4] supra). There was another fight, and Slobodan saw blood everywhere on his brother (the second confrontation). He grabbed the assailant with the rat's tail and there was a further fight in which the assailant with the rat's tail was kicked by Slobodan and by Jason Hrstovski (the brothers' cousin) and others, who also punched the man (the third confrontation). In cross-examination, Slobodan was asked to describe the assailant once more. He said that the man was chubby, with black hair short at the front with a rat's tail. (2) The evidence of Steven Karandzulovski, the brother-in-law of Slobodan, was referred to more fully in connection with Ground 1A (see par [38] supra). He agreed that he was "pretty sure" that the assailant had a rat's tail hair style. (3) Jovica Radic was a security guard on duty at the Steelers Club, and he was one of those attempting to break up the brawl taking place outside the Club. He said that he knew of the victim and his brother as "the twins", but he did not know them personally. He saw them involved in the brawl. He also saw another man hold his hand in front of his navel in a way someone would hold a knife. He did not actually see a knife. This man was facing one of the twins. The witness said that he was side-on to this man, but he did not see that he had a rat's tail hairstyle. He said that he "thought" this man had a goatee. He said he was not too sure what the man was wearing, but he thought that he was wearing jeans and a jacket, he was short and stocky, with short hair spiky on top. He did not see the stabbing, but he heard someone call out "he's been stabbed" at that time. He was unable to identify the man he had described when shown the amateur videorecording. He could not say that the man he saw with the knife was the same man he had seen being kicked and punched after the stabbing.

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