R v Bogunovic [1999] VSCA 133

R v Bogunovic [1999] VSCA 133 - VSCA 1999 case summary — Zoe

[29]

During the search of the applicant's premises on the evening of 5 May, police had recovered a pair of navy blue tracksuit pants and a "T-shirt" from the washing machine in the laundry. Although no eye witness was able to state with any degree of certainty what the applicant had been wearing on that day, Marika Fourkiotis said that she had noticed the tracksuit pants and the "T-shirt" in the machine when the applicant was having a shower at about 6 p.m. in the evening. She said that she had been at the applicant's premises at about 5 p.m. when he had arrived home from work and that he looked "tired and dusty". She said he had then gone out again to Veselinovic's house to recover the dog kennel and had shortly after returned with Veselinovic and the kennel. He had then rung a man called Zweden - on some three occasions - asking him to bring around a gram of marijuana. Thereafter, according to Fourkiotis, the applicant went to have a shower preparatory to them going out for dinner. It was whilst he was having a shower that she saw the "T-shirt" and the tracksuit pants in the washing machine. She asked him whether he had put them there and he said he had. The police accordingly took the "T-shirt" and the tracksuit pants from the washing machine. They also took a pair of Nike sports shoes from a cupboard in the laundry. They also recovered a towel, which appeared to be blood-stained, which was in the washing machine and a white sock which was in the bed room. Stains on the tracksuit trousers, the towel, each of the Nike shoes and the sock were subjected to DNA analysis by Tsonis and found to be the blood of the deceased. No blood was found on the "T-shirt". Tsonis also found and recovered from the tracksuit pants and the right shoe some hair fragments which were labelled and sent to Jane Taupin, a forensic scientist, for analysis. Ms. Taupin compared the hair fragments with samples of the deceased's hair. She concluded that the fragments had similar characteristics to the samples taken from the deceased.

[45]

The applicant, as I have previously said, gave sworn evidence and, for the first time, gave his version of the events in which he had been involved on the 4th and 5th May 1997. He said that at about 9 p.m. on the evening of 4 May he had gone to the premises of the deceased to buy a gram of marijuana which he wanted for recreational use. He spent 10 minutes there. He said that he, Sourbutts and the deceased were "very good friends". On the following day, 5 May, he had been picked up by Csiskos and driven to his place of work at Endeavour Hills. They stopped for lunch at about 11.30 a.m. and he and Csiskos had driven back to his house in Hallam to order lunch. They collected the fish and chips. He told Csiskos that he intended to go to Fountain Gate shopping centre to pay an instalment of a Mastercard bill which he owed. He said that he set off at about 12 noon in his car along a route which took him past the deceased's premises in the Belgrave-Hallam Road. He said that as he was going past the Sourbutt house he ran out of petrol and pulled over to the side of the road some 300 metres on from the house. His fuel gauge, he said, was faulty and that he commonly ran out of petrol. He then decided to walk back to the deceased's premises to see if he could get a lift or make a phone call. He went to the front door which was "slightly open". He said he knocked but, when there was no answer, he pushed the door open. He saw the deceased lying in the hallway. She was "on her side" facing the double doors of the lounge room with her head near the "major pool of blood". He approached her on the left hand side. He said he was "close to her head" and "crouched down on one knee beside her". He said he had been "standing in the middle of those pools" of blood. He said she had green tape around her mouth which he pulled down past her chin so that she could breathe. She was "breathing heavily with blood coming from her mouth, splattering". He said that he checked her pulse and that, as he was doing so, heard a "crunch of glass at the back door". Although he was "horrified" he went towards the back door "to have a look". He moved down towards the back door but "did not see anybody". He saw the glass louvres lying broken on the floor. He could not recall stepping on one but there was "a possible chance" that he did. He walked "to the back porch - that's as far as I looked", but saw nothing. He did not walk around the back path but went back through the rear door into the front foyer and "left through the front door". He had a "quick glance" at the deceased as he went past but she had not moved. When he was asked why he did not "examine her", he said:

[74]

(i) The evidence of Mr. Jones, as I see it, was clearly damning of the applicant. That evidence demonstrated that there was medium velocity spatter of the deceased's blood on the shoes of the deceased and extending up the inside of the trouser legs on each side to approximately knee height which could only have been deposited there in the quantity and distribution found as the consequence of something impacting forcefully upon the blood source in close proximity to where the spatter was deposited resulting in blood being projected sideways and upwards from that source onto the trouser legs and the shoes. This evidence went unanswered. The only explanation given by the applicant was that it must have occurred when he trod in a pool of the deceased's blood which had formed on the carpet. Not only was this explanation rejected by Mr. Jones but the jury was entitled to find that it was contrary to the probability of a foot being placed in a pool of blood which had accumulated on carpet. The fact that the spatter was found on the inside of each trouser leg up to a height of 56 cm on one side and 50 cm on the other side could not reasonably be explained by the actions which the applicant described. He said that he had crouched, or knelt down to one side of the deceased. Such action could not explain the even distribution of medium velocity spatter up the inside of each leg, nor could it explain the "filament lines", consistent with contact with freshly flowing blood on the hair of the deceased found on the inside of each shoe. Dr. Collins, the expert called by the applicant, did not traverse this evidence given by Jones; nor did he give any explanation consistent with an "innocent deposition" of such blood spatter. Collins' evidence was confined to the improbability of such a ferocious assault having been perpetrated without some blood trace being left on the upper garment worn by the perpetrator. But that evidence left untouched the incriminating evidence of Jones which, if accepted by the jury, could only lead them to the conclusion that the applicant was there when the blood was being spattered through the application of force. If accepted, there was no need for the jury to resolve the question left by Collins' evidence; that is, whether the assault could have taken place without blood getting on to the upper garment; or whether the applicant was wearing the "T-shirt" or whether, if he was, that was the outer garment he was wearing.

(ii) Furthermore, the evidence of the bloodied shoe imprints was also incriminating of the applicant. The applicant did not deny that it was his shoe imprints found in the hallway or on the sun-room floor or on the back porch. Indeed his evidence was that when he came upon the scene he did not see any "blood marks" in the hallway other than those where the deceased was lying. When asked whether he had seen any bloodied imprints "down the hallway", he said: "No". He was then asked:

[80]

In the light of the evidence to which I have referred this was not, in my opinion, a case where the nature and quality of the evidence was such that the jury, acting reasonably, were bound to have a doubt as to the guilt of the applicant. There was nothing about the evidence in this case which raises any possibility that the jury may have been mistaken or misled as to its weight or significance or the manner in which they were to approach it in the performance of their task. Indeed, this was a case which, in my view, was particularly apt for jury consideration and determination. Much depended upon the jury's view of the credibility of the applicant and the version of events which he gave, including his explanation for not summoning assistance for the deceased, his reason for going to the premises in the first place and his explanations of his movements within the premises. The jury were entitled to have reservations about his assertion that he was intending to go to Fountain Gate to pay a Mastercard bill, when he had told others he was intending to go to the deceased's premises to pay off a drug debt; they were entitled to have reservations about his claim to have entered and left the deceased's premises via the front door when there was no evidence of prints, even with the aid of Luminol, that supported such a claim. Equally they were entitled to disbelieve his assertion that he had "run out of petrol". That assertion essentially depended upon the jury's acceptance of his claim that he was on his way to Fountain Gate when other evidence suggested that he had intended to go to the deceased's premises to pay a debt. No doubt the jury would have been faced with difficulties in accepting his evidence that he had "run out of petrol" in the face of the evidence of Mrs. Jones and Mrs. Fletcher from which the inference could be drawn that his car had been driven quickly from the scene after he returned to it. This evidence did not, as it seems to me, sit easily with his evidence that, having returned to his car, he had gone to the boot to see whether he could find something to start it, discovered a can of lawn mower petrol which he was able to pour into the tank.

[89]

It seems to me that the applicant's argument in support of this ground proceeds upon the erroneous assumption that the prosecution was relying upon the accused's conduct in leaving the premises without summoning assistance or alerting others as an implied admission of guilt. But in my opinion that was not so. The case made by the Crown to prove that the applicant was the assailant was, as his Honour told the jury, wholly circumstantial and depended for its proof upon the force of a combination of circumstances, one of which was the fact that the applicant had departed the premises without raising an alarm or summoning assistance for a friend whom he knew was gravely injured. As I have already noted, it is apparentthat when the applicant, in evidence, advanced for the jury's consideration his "innocent hypothesis", he was acutely aware that an explanation for this conduct was called for. It was those explanations which the prosecution invited the jury to reject as "unbelievable". But the prosecution did not invite the jury to treat either his conduct, or the explanations given for it, as an implied admission of guilt calling for a judicial direction of the type for which the applicant now contends. No such direction was sought by the applicant's experienced trial counsel and no exception was taken in this regard to his Honour's full and careful charge. This no doubt was because such a direction would have been superfluous in the context of a case where the learned judge was obliged to, and did, give the standard circumstantial evidence direction - namely that unless the jury were satisfied beyond reasonable doubt that the combined force of circumstances, as they found them to be, excluded any reasonable hypothesis consistent with the applicant's innocence, they must acquit. As the only such hypothesis was the one put forward by the applicant in his evidence, it seems to me to have been implicit in the direction which his Honour gave, and presumably acted upon by the jury, that they could not convict the applicant unless they were ultimately satisfied, inter alia, that his conduct in leaving the premises without summoning assistance or informing others was incapable of bearing a construction consistent with his innocence.

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Judgment (110 paragraphs)

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Cases Cited (1)