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Representation: Counsel Self-represented (Appellant) Mr J White SC (Respondent)

Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 22 of 2014

Decision under appeal: Court: Supreme Court of the ACT Before: Refshauge J Date of Decision: 28 February 2014 Case Title: R v Jovanovic Court File Number: SCC 90 of 2013

Decision under appeal: Court: Supreme Court of the ACT Before: Refshauge J Date of Decision: 12 May 2014 Case Title: R v Jovanovic Citation: [2014] ACTSC 157

THE COURT:

The Appeal

1. On 28 February 2014, a jury found the appellant guilty of the offence that on 7 April 2013 he intentionally inflicted grievous bodily harm on the complainant, contrary to s 19 of the Crimes Act 1900 (ACT) (Crimes Act).

2. The maximum available penalty for such an offence is 20 years’ imprisonment.

3. On 12 May 2014, the primary judge sentenced the appellant to 10 years and nine months’ imprisonment from 7 April 2013 to 6 January 2024, with a non-parole period of five years and six months’ imprisonment, from 7 April 2013 to 6 October 2018: R v Jovanovic [2014] ACTSC 157.

4. On 16 May 2014, the appellant lodged a notice of appeal against conviction and sentence.

5. At the hearing of the appeal, the appellant was self-represented.

6. The appellant sought to put further evidence before the Court; photographs taken at the time of his arrest (said to show a laceration to his right hand), sketch plan/s of the scene of the incident and CCTV images (that were not tendered at the trial). He explained that the latter evidence would show that the appellant and the victim were physically proximate (consistent with verbal contact between them) a few minutes before the incident.

7. The grounds of appeal are:

(a) The conviction is unsafe and unsatisfactory.

(b) The sentence is manifestly excessive.

The Trial

8. There was no dispute that, on 7 April 2013, the appellant and the complainant were involved in an altercation. Nor was it disputed that the complainant suffered grievous bodily harm; he sustained a punctured left lung and a severed intercostal artery that, without medical intervention, would have been fatal. The contentious issue was whether the appellant was not acting in self-defence.

9. The prosecution case was that the appellant had a motive to attack the complainant; he believed that the complainant had assaulted his son when both were in prison. On 7 April 2013, the complainant and his partner, and the appellant and his partner were at the Belconnen Bus Interchange. The appellant ran up behind the complainant and struck him in the back of the head, causing the complainant to fall forward. There was a scuffle between the appellant and the complainant. The appellant grabbed the complainant and used his left hand to hold the complainant in a headlock or chokehold. The appellant produced a knife (which witnesses described as a Leatherman or Swiss Army pocketknife) and stabbed the complainant five or six times to the side of the back. The appellant then folded the knife and placed it in the pocket of his shorts. There was a conversation between the appellant and the complainant. The appellant and his partner then walked away.

10. The prosecution tendered CCTV footage of the incident and called the complainant, his partner and independent witnesses to the incident.

11. Defence counsel (an experienced criminal barrister) opened on the basis that it was a case of self-defence; the complainant had been in possession of the knife and the appellant had removed it from the complainant and proceeded to fight with him in order to protect himself. However, when he gave evidence, the appellant advanced a significantly different version of events. He said that he and his partner had been seated at the Interchange when the complainant approached them and said words to the effect of, “I’ll cut your head off”. The appellant became frightened as his partner was pregnant. He ran towards the complainant and hit him on the back of the head. The complainant fell to the ground. When he stood up, the appellant saw a knife in the complainant’s right hand. The two men began to wrestle and the appellant managed to remove the knife from the complainant. The appellant says that he then dropped the knife. The appellant did not recall stabbing the complainant and said that he did not know how the complainant became injured, although he acknowledged that it was possible that he had stabbed the complainant. However, he said that if he did stab the complainant, the stabbing was unintentional. He walked off because his partner was stressed and wanted to go home. The appellant agreed that he was unhappy with the complainant because the complainant had injured his son.

12. At [15] of the sentencing, the primary judge said that, having scrutinised the evidence, particularly the CCTV evidence, he was satisfied beyond reasonable doubt that the appellant had been in possession of the knife from the outset.

Leave to Appeal

13. When passing sentence, the primary judge formally ordered that the appellant be convicted.

14. The appellant filed a notice of appeal against conviction and sentence on 16 May 2015, i.e. four days after the sentence was imposed but 77 days after the jury had returned a verdict of guilty.

15. A question arises as to whether the appellant requires leave to appeal out of time against the verdict of guilty.

16. Section 37E(2) of the Supreme Court Act 1933 (ACT) (SCA) refers to the jurisdiction of the Court of Appeal to consider “appeals in relation to orders of the court”. However, the SCA does not expressly confer a right to appeal. Nor does it indicate the point at which the right to appeal against a verdict arises; whether it is when the verdict of guilty is recorded on the indictment, when the trial judge records a conviction (either expressly or inferentially, by imposing a sentence), or at some other time. Similarly the Court Procedures Act 2004 (ACT) does not deal expressly with the right to appeal.

17. Rule 5405 of the Court Procedure Rules 2006 (ACT) (CPR) provides that a notice of appeal must be filed “not later than 28 days after the day the order appealed from was made”. The CPR define “order” to include “conviction”: r 5400. A “conviction” is “a conviction recorded by the Supreme Court” or “a finding of guilt recorded by the Supreme Court”: r 5000 of the CPR. Pursuant to r 5500 of the CPR, “out of time” for a “conviction” means “more than 28 days after the day the conviction was recorded”. In other words, the CPR envisage that a “conviction” occurs (and the right to appeal from that conviction arises) when a finding of guilt is “recorded by the Supreme Court”, and provide that a 28 day appeal period runs from that date.

18. In R v Meyboom [2012] ACTCA 2 the applicant had been tried before a judge sitting alone. The applicant sought leave to cross appeal out of time. At [10], Refshauge J referred to Hinton v The Queen (2000) 115 A Crim R 74 at [21] – [23], where the Full Court of the Federal Court of Australia observed that it was only after judgment had been formally entered, for example by recording a conviction, that the right to appeal arose. Refshauge J noted that, in the proceedings before him, there had been no express reference to the imposition of a conviction, leaving the actual date of the conviction somewhat uncertain. His Honour referred to the observations of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501, Hayne J (with whom Gleeson CJ and McHugh J agreed) in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 and the Victorian Court of Appeal in R v Celep [1998] 4 VR 811 and DPP v Nguyen (2009) 23 VR 66. His Honour held that the finding of guilt by a judge in a trial by judge alone must entail the acceptance of the verdict by the court and thus a conviction: at [30]. Consequently, the 28 day appeal period had commenced when the judge returned a guilty verdict.

19. The issue of when the right to appeal against a verdict of guilty arises was not raised or argued in this appeal. In the context that the appellant is self-represented and the appeal was filed soon after the sentencing proceedings, the delay in appealing against the verdict is understandable. If necessary, the Court grants leave to the appellant to appeal against the verdict of guilty.

Further Evidence

20. The appellant sought to put further evidence before the Court; photographs taken at the time of his arrest (said to show a laceration to his right hand), sketch plan/s of the scene of the incident and CCTV images (that were not tendered at the trial). He explained that the latter evidence would show that he and the complainant were physically proximate and could well have been in verbal contact in the few minutes before the incident.

21. Section 37N(3) of the SCA provides that the Court of Appeal “may receive further evidence” by oral examination, affidavit or other means. There is no statutory restriction on the receipt of further evidence, but the nature of appeals to the Court of Appeal provides some guidance as to the manner in which the Court’s discretion should be exercised.

22. Ordinarily, further evidence will not be admitted on an appeal if it was available, or could reasonably have been obtained at the time of the hearing: Hillier v The Queen (2008) 1 ACTLR 235 at [160]. Different considerations may apply where there is a question about whether an irregularity in the proceedings has prevented a party from putting his or her case effectively: Hillier at [161]. A decision to withhold evidence at trial will weigh heavily against its reception on appeal: Hillier at [164].

23. As noted in Hillier at [160], s 27(1) of the Federal Court of Australia Act 1976 (Cth) similarly provides that when hearing an appeal, the Court may “in its discretion receive further evidence”. In August v Commissioner of Taxation [2013] FCAFC 85 at [116] the Court observed:

The authorities make it clear that in exercising the discretion [to receive further evidence] the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result. At [119] the Court further explained:

...it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result. (citations omitted)

24. The appellant submitted that photographs taken at the time of his arrest would have shown that he sustained a laceration to his right hand; evidence which would have been consistent with his claims that it was the complainant who produced the knife, and prompted the appellant to act in self-defence. However this is at odds with the testimony of the appellant at the trial; the appellant did not refer to any laceration.

25. Assuming that such photographs did exist, they would have been consistent with the appellant’s version that the complainant produced the knife and the appellant was attempting to defend himself. However, a laceration injury to the appellant’s right hand would also be consistent with the prosecution’s version of events. It is unsurprising that the appellant (who was represented by experienced counsel) did not seek to obtain the photographs or use them at the trial.

26. The appellant submitted that a map or plan would have enabled the jury to better understand the layout of the Interchange area. In particular it was said that the map or plan would have made clear the seated location of the appellant and his partner, prior to his attacking the complainant. Such a location would be consistent with the complainant approaching and threatening the appellant before the physical altercation commenced. CCTV footage may have actually depicted such an approach.

27. After the summing up, the jury asked for “a map or plan of the Bus Interchange scene”. The primary judge informed them that no such document was in evidence but some evidence of the scene was available through the CCTV exhibits. The jury did not seek further CCTV footage.

28. The primary judge’s response to the jury’s request was correct. Had the appellant wished to tender a map or plan at the trial, he could have done so. As there was other evidence explaining the scene of the incident (including CCTV footage), a map or plan of the area would have been of limited assistance to the jury.

29. Similarly, the appellant or his legal representatives could have requested additional CCTV footage. However, even if there was further footage that depicted the complainant approaching the appellant and his partner, such evidence would have been of minimal significance. There was no dispute that the appellant had instigated the physical encounter. The appellant had run towards the complainant and hit him on the back of the head.

30. We decline to receive further evidence.

Was the verdict unsafe and unsatisfactory?

31. The appellant contended that the verdict is unsafe and unsatisfactory. This ground of appeal was linked to his submission that the proposed further evidence would demonstrate that the verdict is unsafe and unsatisfactory.

32. Section 37O of the SCA provides:

(2) The Court of Appeal on an appeal against conviction must— (a) allow the appeal if it considers that— (i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or ... (iii) on any other ground there was a miscarriage of justice; or (b) dismiss the appeal.

33. When an appellant alleges that a verdict is unsafe and unsatisfactory, the question for the appellate court is whether, upon the whole of the evidence, and having regard to the benefits enjoyed by the jury, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt: M v The Queen (1994) 181 CLR 487, recently applied in GZ v The Queen [2015] ACTCA 11 at [23] – [24]. In R v WBA [2015] QCA 21 at [3] Fraser JA (with whom Gotterson JA and Jackson J agreed) said that, where such an allegation is raised, it falls to the appellate court: ...to make an independent assessment of the sufficiency and quality of the evidence and to decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences of which he was convicted... (citation omitted)

34. Similar observations were made by the NSW Court of Criminal Appeal in Ceissman v The Queen [2015] NSWCCA 74 at [67]. In Mansaray v The Queen [2015] NSWCCA 40 at [59], Hoeben CJ at CL (with whom Harrison and R A Hulme JJ agreed) said:

The Court must make its own independent assessment of the sufficiency and quality of the evidence. The question is ultimately whether notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand or, whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. (citations omitted)

35. In this case, it was well open to the jury to reject the evidence of the appellant and find that he intentionally caused grievous bodily harm to the complainant. The appellant had a motive to attack the complainant. He instigated the physical altercation by punching the complainant. Independent civilian witnesses saw the appellant in possession of a knife, and saw the appellant stab the complainant five or six times in the back. It was a strong prosecution case, which did not depend upon only one witness, and the evidence came largely from independent sources (CCTV footage and independent civilian witnesses).

36. The foreshadowed argument about self-defence did not clearly materialise on the evidence; the appellant said that he became frightened and tried to wrestle a knife from the complainant, but according to his evidence, he did not even recall stabbing the complainant. The primary judge directed the jury about self-defence, and it is not suggested that there was any deficiency in that regard.

37. For the reasons stated above, the proposed further evidence would have made no difference to the outcome.

38. We are not persuaded that the verdict is unsafe and unsatisfactory.

Sentence Appeal

39. The appellant submitted that the sentence of 10 years and nine months’ imprisonment with a non-parole period of five years and six months’ imprisonment (51% of the sentence) is manifestly excessive.

40. In House v The King (1936) 55 CLR 499 at 505 Dixon, Evatt and McTiernan JJ said:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.

41. An argument of manifest excess will succeed only if it can be shown that no reasonable sentencing judge could have imposed such a sentence: Balthazar v The Queen [2012] ACTCA 26 at [61] applying R v Abbott (2007) 170 A Crim R 306 at [14].

42. In Miller v The Queen [2015] NSWCCA 86 at [59] Schmidt J observed:

...there is no single correct sentence. Sentencing judges have considerable flexibility in their approach to sentencing, consistent with binding principle and the statutory sentencing regime. This Court may not simply substitute its opinion for that of a sentencing judge, because it would have exercised the sentencing discretion differently. (citations omitted) See also Matia v The Queen; The Queen v Matia [2015] NSWCCA 79 at [139] per Hoeben CJ at CL (with whom R A Hulme and Davies JJ agreed).

43. In The State of Western Australia v Smith [2015] WASCA 87 at [34] Martin CJ counselled:

The exercise of discretion by a sentencing judge is not to be regarded as provisional, in the sense that it is conditional until confirmed by an appellate court. Rather, an appellate court only has jurisdiction to set aside the discretion exercised by the sentencing judge if error is demonstrated, such that the exercise of discretion has miscarried.

44. In MLP v The Queen [2014] NSWCCA 183 at [46] Bellew J (with whom Macfarlan JA and Adamson J agreed) said:

The sentence imposed upon the appellant might well be the highest imposed for a single instance of offending [of this kind]... That does not demonstrate that the sentence is unduly harsh.

45. In this case, the sentence is undoubtedly stern. According to the ACT Sentencing Database, it is the highest sentence that has been imposed for an offence against s 19 of the Crimes Act.

46. However, the maximum available penalty is 20 years’ imprisonment. The objective circumstances of the offence were serious. The appellant instigated a vicious attack to avenge his son. He had the knife with him at the start of the incident. He stabbed the complainant five or six times, causing life-threatening physical injuries and a significant emotional impact.

47. The appellant was not entitled to a discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT). His prior criminal record deprived him of the leniency that may have been extended to someone with an insignificant prior criminal record. The appellant did not accept responsibility for the incident and, according to the author of the Pre-Sentence Report, he considered himself to be a victim of circumstance.

48. The primary judge dealt with the subjective circumstances of the appellant, including the appellant’s ongoing struggle with drug addiction. His Honour noted that the subject offence was the first offence of violence since 1991. His Honour accepted that the appellant had dissuaded others within the prison system from assaulting the complainant when the complainant was detained in custody.

49. The primary judge took into account relevant sentencing purposes, including general deterrence, denunciation, accountability and rehabilitation.

50. The primary judge considered two relevant, comparable cases: lslam v The Queen [2013] ACTCA 10 and Munro v The Queen [2014] ACTCA 11. Each of those cases was objectively very serious. In each case, a sentence of nine years’ imprisonment was imposed. But, as the primary judge noted, since the commission of the offences that were considered in those cases, the maximum penalty for an offence contrary to s 19 of the Crimes Act has increased from 15 years’ imprisonment to 20 years’ imprisonment.

51. While the term of the sentence was lengthy, the non-parole period represented only 51% of that term. By imposing a relatively short non-parole period, the primary judge allowed the appellant to demonstrate rehabilitation and re-enter the community at a relatively early stage.

52. Although the sentence is lengthy, we are not satisfied that it reflects an erroneous exercise of the sentencing discretion in that it is outside the range available to a reasonable sentencing judge.

53. The appeal against sentence is dismissed.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 19 June 2015