R v Gojanovic [2004] VSCA 118

R v Gojanovic [2004] VSCA 118 - VSCA 2004 case summary — Zoe

[10]

The Crown alleged that on the evening of 11 March the deceased went out to socialise and play the poker machines. Her children were in the custody of their fathers. At 8.30 p.m. she went to the Lord of Isles Hotel, and spent the evening there. She left the hotel at 3.45 a.m. on the morning of 12 March. She asked an attendant to walk her to her car which was in the car park at the back of the hotel, saying she was scared. She went home to 68 Pavo Street, Belmont, arriving there at around 4 a.m. The Crown claimed that the accused, who had been following her, also arrived at her address at about the same time and gained entry to the house. According to his record of interview, when he entered the house there was an argument with her and some wrestling. He claimed that she was very abusive to him, told him that he "would never have Nicholas", and to get out, and used language to him that "I wouldn't even say to a dog". He said that she began to wrestle with him but also claimed that he did not know how the injuries to the deceased happened. The applicant was a diabetic and at various times claimed both to the police and another prisoner, Phillip Wickham, that his insulin levels were low at the time and that he could not remember much of what happened because of his blood sugar levels. The Crown claimed that the applicant clubbed the deceased around the head a number of times with a rubber mallet, probably rendering her unconscious and leaving her helpless and lying on the floor of the hallway in the house. The prosecution case continued that the applicant then went to the bedroom, only a short distance away, removed a cord or sash from her dressing gown and returned to where she was and then wrapped the cord around her neck and choked her to death. He was then said to have left the house, and returned to where he was living in the St. Leonards area. He then washed his trousers, almost certainly to remove the deceased's blood on them, and waited there. The next morning he went to 68 Pavo Street arriving at a time when the police were present. The prosecution case was that upon his arrival the applicant pretended that he did not know anything about what had happened and at first made a lengthy false statement to the police explaining his relationship to the deceased and effectively denying any knowledge of the death for which he was responsible. Later that day in a formal record of interview which was videotaped, the applicant at first continued his false account of what had occurred. But, the Crown claimed, after reflection the applicant confessed and gave a version of how the deceased was killed.

[24]

Mr McArdle, who appeared for the Crown, submitted in this Court that the application to cross-examine Farnsworth concerning the conversation with the deceased was made tentatively, after cross-examination and re-examination of this witness had concluded. He submitted that the material before the Court concerning the circumstances of the death of the deceased did not suggest that any attack with a knife or other weapon had been made on the applicant by the deceased, referring in particular to the answers given by the applicant in the record of interview. It was put that at best this was evidence of a threat to commit an act of violence, rather than any evidence of the commission of such an act. Mr McArdle submitted that there was no evidence of propensity in the conversation, and at most it was a propensity to make threats rather than to commit acts of violence. It was submitted that the evidence would not have been relevant as a counterbalance to relationship evidence and that the judge was correct in ruling that the evidence was not admissible on the basis that was argued at trial. Mr McArdle reminded the Court that the trial judge was not referred to Walton v. The Queen[3] or the principles discussed therein. He argued that in any event Walton's case had no application to the present case, since the deceased's state of mind was not an issue, and even if it had been evidence of what happened a week or so before her death in the conversation with Farnsworth was not relevant to that state of mind. He submitted that the circumstances of the death of the deceased left no doubt of the applicant's intent to kill, self-defence had not been raised, and the only real issues were whether a sufficient intent had been established on the part of the applicant, and the question of provocation. He argued further that provocation in fact never arose and should not have been left to the jury on the available evidence. Finally it was put that if the judge had erred in refusing to allow cross-examination on the evidence, the evidence was of little substance and the proviso to s.568(1) of the Crimes Act 1958 should apply.

[43]

The onus of persuading the Court that the proviso should be applied rests on the Crown. What it must establish in order to succeed in that regard has been variously described - for example, that it was inevitable that the jury would have convicted the applicant in any event or, that he did not lose a fair chance of acquittal by reason of not being able to lead the excluded evidence or, that the evidence against him was so overwhelming that a conviction was inevitable in any event.[11] It seems to me that the excluded evidence was material to the defence case because it tended to contradict a significant plank in the Crown case, namely, that the relationship between the deceased and the applicant was such that the deceased was constantly in fear of him. It was emphasised by the Crown that the state of the relationship between those parties was a factor relevant to the issues of provocation and intention. Thus, the Crown led hearsay evidence of the applicant's assault on her a considerable time before her death as well as other hearsay evidence, all of which was directed to establishing that the relationship between them was one where the deceased feared the applicant. Such evidence, no doubt, tended to contradict the applicant's implicit defence that he did not intend to kill the deceased or cause her serious injury, but killed her in the context of his being a brittle diabetic after she provoked him with her language and wrestled with him. The Crown case was essentially that, given the deceased's constant fear of the applicant, it was unlikely that she would have provoked him or fought with him as the applicant claimed. The excluded evidence, however, if accepted, tended to paint a different picture of the relationship between the parties that was in existence only a week or so before the deceased's death. If accepted, it showed that at least at that time, the deceased had an aggressive disposition towards the applicant because of what she believed he had done to jeopardise her custody of the children and that she indicated that she was prepared to do him harm. Even though she may have also been frightened of him, it was for the jury to decide what to make of that evidence - whether what the deceased said was a statement of bravado or whether it was a momentary agitation or whether she had an entrenched attitude of belligerence towards the applicant. It is irrelevant, in my view, that the proposed evidence was not evidence of violence by the deceased towards the applicant or that it was not propensity evidence. As I have said, its importance lay in the fact that it bore on the state of the relationship between the deceased and the applicant shortly before her death. After all, it was the prosecution that contended at the trial that relationship evidence was important as going to the issues of provocation and intention. By parity of reasoning the excluded evidence, if accepted, was also relevant to those issues.

[62]

As I have noted, Farnsworth's diary entry of 8 March recorded discussions involving the applicant and the deceased about an appearance before the Residential Tenancies Tribunal which had not yet taken place, and appeared to be due to take place "the next day". It was, in fact, on Thursday 8 March 2001 that the deceased and her father went to the Residential Tenancies Tribunal. Mrs Keran Shaw, a property manager with the real estate agency handling the rent for the Pavo Street property, gave evidence on 13 May 2002[21]. She said that on 8 march 2001 the father of the deceased had accompanied the deceased and paid the rent arrears and she agreed with the deceased that they would attend on the Residential Tenancies Tribunal that day to have the eviction application adjourned. She saw the deceased and her father leave her office and then, outside, they appeared to anxiously acknowledge the arrival of the applicant, who entered the office of Mrs Shaw and asked what the applicant had told her. He then gave Mrs Shaw a range of information adverse to the deceased and encouraged Mrs Shaw to continue with the eviction. Mrs Shaw said that "later that morning, around ten to eleven" she went to the Tribunal where she saw the deceased in the foyer. Then the applicant arrived and said he was going to attend the hearing, and he sat in the foyer "with us" at which the deceased looked "very agitated, very uncomfortable" and asked Mrs Shaw if there was some way he could be removed. Angela then "asked if she could see Denis outside, and they both got up and walked outside", where they remained for a few minutes. The witness was concerned and went outside and saw them standing together talking, the deceased being agitated. They then were called into court. The applicant sat at the parties' table with the deceased and Mrs Shaw, who applied for an adjournment. The tribunal member invited the applicant to comment and he then made a series of complaints about the deceased being a bad tenant, including that she had falsified her tenancy application, and he urged that she be evicted. The member said that it was Mrs Shaw's application to adjourn, which he granted.

[81]

(a) Chris Denmead, (the brother of the deceased) "On one occasion of an argument she was yelling and screaming; he was quiet. On the Tuesday night before her death she told him by telephone that "I'm standing here with a hammer in my hand, making sure Denis takes his stuff and goes". Counsel submitted "that gives you a picture of a woman who wasn't afraid to get stuck into Denis, and indeed to arm herself when she felt it necessary". (b) Paul Ivelja. As to the July 2000 fight, "I know that she attacked him so I assumed that, yes, it was physical". (c) Jillian Johnston She'd swear at him; put him down; he was always trying to placate her; he was never nasty or raised his voice. Had seen her "pushing" him physically; "even when sober, was not scared of literally pushing, physically pushing Denis around". Would tell him to "piss off". (d) Mark Trewin She had " . . .such a bad temper"; he very mild, "complete opposite"; would always try to calm her down. (e) Sharon Mitchell Described as one of the strongest supporters of the deceased. The deceased was "a very strong minded young woman . . she wanted it done her way"; always arguing and fighting. (f) Marcelle Sharp Arguments between them; didn't see Denis get angry, ever; Angela raised her voice; deceased said that if the fathers got her children it would be over her dead body. (g) Craig Hamilton Right from the beginning they fought a lot; she was loud, aggressive, abusive; he was quiet and wouldn't say anything. (h) Monica Ivelja In the July 2000 incident "Angela had attacked him and he'd defended himself, and he said that she just attacked him. ". (i) John Antica She'd be pretty loud; he was just quiet. (j) Trevor Drew She seemed to be aggressive towards Denis; never seen him react aggressively, he was anything but aggressive. He would retreat into kitchen. (k) Sue O'Dwyer A lot of stress, a lot of yelling. She saw an argument in the driveway: "Angela walked up to him and hit him in the driveway . . She slapped him across the face". He was stunned, shocked and did nothing really. Nothing really caused her to slap him. Counsel said that this evidence showed that "she wasn't afraid of having a go at him and when you come to consider whether Denis Gojanovic was telling the truth about, "we had a bit of a wrestle", that evidence should assist you".

At a glance

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Judgment (110 paragraphs)

Parties