On 2 March 2021, the accused was arraigned upon an indictment dated that day that charged him with the murder of Goran Stevanovic, on or around 8 January 2019, at Sadlier in this State, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). He entered a plea of not guilty to that charge, but pleaded guilty to the statutory alternative of manslaughter. The plea was not accepted by the Crown in full discharge of the indictment, and the matter proceeded to trial.
An election for the trial to proceed before a judge alone had been previously made by the accused, and consented to by the Crown. An order for the trial to proceed in that way was made by the Court on 3 February 2021, and so the matter was heard before me, sitting without a jury.
As the accused's plea to manslaughter suggests, there was no dispute that his deliberate act caused the death of Mr Stevanovic; the issue at trial was whether the accused had acted, albeit disproportionately, in self-defence. The trial was conducted in an efficient manner, focusing on evidence of particular relevance to that question.
[2]
The Crown Case
The Crown called two witnesses in its case, and tendered a number of exhibits. There was no challenge to any of the evidence and, save for the contents of two interviews conducted by police with the accused, there is no reason not to accept it. What follows is drawn from the evidence and, unless otherwise stated, represents the facts found by the Court.
A statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW), Ex. A, establishes some of the background to events the subject of the trial, and other relevant circumstances.
The accused and Mr Stevanovic came to know one another as users of illicit drugs. Both Ex. A and Ex. E.70 point to a short relationship based around Mr Stevanovic's attempts to purchase methylamphetamine and other drugs from the accused, which commenced around the middle to end of December 2019.
For that purpose Mr Stevanovic left the family home at Minto at about 3pm on 8 January 2019, telling his mother he would see her later. He drove his white Chery car to Sadlier and went to the accused's studio apartment, located in a unit block in Eureka Crescent, where he saw the accused and the accused's girlfriend, Kate Lloyd.
Whilst at the apartment and in the accused's company Mr Stevanovic spoke to a friend using his mobile telephone, at 4.28pm. His friend could hear background noise and a male speaking loudly. The male was the accused. Mr Stevanovic was unwilling to tell the accused to "shut the fuck up", as his friend urged him to do, telling his friend that he could not "talk to them like that" (Ex. A). He promised to visit his friend as soon as he had had a cup of tea and freshened up. That was the last contact between Mr Stevanovic and any person other than the accused or Ms Lloyd.
When the same friend tried to get in contact with Mr Stevanovic at 4.57pm, the telephone went unanswered. I am satisfied that Mr Stevanovic was stabbed by the accused as his telephone conversation of 4.28pm ended. By the time of the second telephone call, at 4.57pm, Mr Stevanovic was either dead, or dying.
Ex. A gives as an agreed fact that, when speaking on his mobile telephone with his friend, Mr Stevanovic was sitting on the end of the accused's bed facing a television set, with his back to the accused, who sat behind him.
As the call ended, the accused picked up a large Mundial brand knife that he had by him where he sat on the bed, and stabbed Mr Stevanovic to the back, low down on his right side. Mr Stevanovic had not said or done anything of a threatening nature to the accused. Feeling the injury, Mr Stevanovic jumped up, crying "What have you done" and fled the apartment. He ran out into the common area of the apartment block, before collapsing on some steps at the entrance to the building.
The accused followed Mr Stevanovic, still armed with the knife. On reaching Mr Stevanovic's prone form, he stabbed him a further three times, to the heart, the front of his chest, and the upper left side of his back, inferentially as Mr Stevanovic moved his body, probably in an attempt to move away. Part of the knife blade lodged in his spine with the last knife blow, and snapped from the rest of the knife.
The accused summonsed Ms Lloyd to assist him and together, they dragged Mr Stevanovic inside the apartment, placing him into the shower recess. Returning outside, the accused and Ms Lloyd spoke to a passing neighbour, explaining the large quantity of blood that could be seen on the ground outside the unit as having been caused by a dog killing a rabbit. The pair then cleaned up the blood with water and a broom.
Over that day and perhaps the next, the accused began to dismember Mr Stevanovic's body, intending to bag his disarticulated remains and dispose of his body piecemeal. Although what was done to Mr Stevanovic's body is established on the evidence, I do not intend to set it out here, except insofar as is necessary when considering the Court's verdict.
The accused contacted a neighbour by text message later on 8 January 2019 and again the next day, offering her the deceased's mobile telephone as collateral for a loan he sought from her. The arrangement fell through when the accused reported he couldn't find the phone. Mr Stevanovic's phone has never been recovered.
On 9 January 2019, the accused and Ms Lloyd drove Mr Stevanovic's car to a methadone clinic in Liverpool to collect methadone. The accused also attended his mother's home where he took a meat cleaver and some bleach, and borrowed money from his brother.
During the course of 10 and 11 January 2019 the accused, using Mr Stevanovic's car, both went to collect his daily methadone dose, and moved his belongings from the Sadlier apartment to Ms Lloyd's apartment at Warwick Farm.
On 11 January 2019, Ruzica Stevanovic received a text message at 11.48am from Goran Stevanovic's telephone. The message, ostensibly from Mr Stevanovic, gave an account of him "having fun" with a rich and beautiful nurse, and promised that he would phone in a couple of days.
The first witness called before the Court was the accused's mother, Thi Hon Pham. Ms Pham said that, in 2018, her son was living intermittently at the Sadlier unit. When he was in residence there Ms Pham visited often, usually on a Saturday, and regularly took food to the accused and cleaned the apartment for him. She saw that he was moody and unhappy, and believed that he was "addicted to drugs" (T9:26 2.3.2021). He was frequently angry and Ms Pham was concerned that her son's personality was changing.
In December 2018, the accused told his mother that he had cancer and was dying. He said that the cancer was in his head and was spreading to his legs. Ms Pham did not believe this, attributing his claims to the fact that he was affected by drugs.
He also told her, about three or four weeks prior to 12 January 2019, that someone wanted to kill him. On one occasion, on arriving at the unit, the accused pulled his mother quickly inside, suggesting that there was danger. On a couple of her visits Ms Pham saw that a metal bar had been placed across some cupboards in the kitchen. When she asked the accused why the bar had been placed as it was, the accused told her that "They will come over from the other side and kill me" (T11:32). He was referring to the "other side" of the joint wall with a neighbouring apartment, and indicated that someone would come through the wall and kill him.
Ms Pham did not question her son because of his "angry temper" and her fear of making his temper worse. The accused spoke to his mother on three or four occasions in December 2018 about his neighbour coming through the wall to kill him, and said that he was scared.
On 12 January 2018 Ms Pham again attended her son's apartment, letting herself in with the key that she had when no-one answered to her knock. On entering, she could smell something like food that had gone off, and began to tidy the apartment, which was very messy. There was rubbish strewn around the floor, unwashed dishes lying about, and the garbage had not been taken out to the external bins. Ms Pham cleaned the studio, and took out the rubbish.
Having cleaned the main area of the apartment, Ms Pham could still detect a bad odour, and pushed open the door of the only area she had not cleaned, the bathroom. Putting her head around the door she looked towards the shower area and saw two feet and legs. Believing she had seen her own son lying dead, she left the apartment in a panic and tried to contact family members. When she could not reach either of her other two children, she drove home.
At home, Ms Pham saw her eldest son and told him that the accused was dead. She returned to the Sadlier apartment with him. Without re-entering the apartment the family contacted the police. Police officers arrived soon after and entered the apartment. Whilst waiting outside, Ms Pham received a telephone call on her mobile service, with the accused displayed as the caller. She answered the call, but the caller hung up. A second call was similarly ended without the caller speaking. When a third call was received, Ms Pham heard the accused's voice speaking to her over the telephone. She heard him say "Mum, mum, did you call the police" (T20:02). When she told him yes, he hung up. Although she tried to contact him, he did not respond to her calls or text messages thereafter.
On the evening of 12 January 2019, the accused drove Mr Stevanovic's car to the home of a friend and tried to exchange the car for money. He told his friend that he had to get out of the State, saying it was "something big".
The second witness in the trial was Detective Sergeant ("D/S") Adrian Alston, who with other police officers attended the apartment on Eureka Crescent on 12 January 2019. The detective observed that the apartment was in a very messy state, with detritus strewn about the living and sleeping areas. On entering the bathroom, he saw the partially disarticulated remains of a male.
A crime scene officer attended, and parts of the statement of D/S Shawn Harkins was tendered through D/S Alston, becoming Ex. B.1. D/S Harkins documented the scene and collected relevant items as evidence. He examined evidence of bloodstains in the common entrance of the Eureka Crescent apartment block, observing that many appeared to have been altered by dilution. Swabs taken from a number of the stains were later matched by DNA to Mr Stevanovic.
On examining the bathroom of the accused's unit, he saw the body of a male in the shower recess that showed evidence of significant trauma, and which was in a state of decomposition. A red rope was about the neck of the deceased. D/S Harkins observed pliers, a meat cleaver, a carving fork, cable ties, and a number of knives in the immediate area. Some plastic shopping bags were on the floor; a long bone was visible in one of the bags. Human tissue was found in others. A knife sharpening steel was in the shower recess.
The body was later examined by Dr Kendall Bailey, Forensic Pathologist. The doctor gave as the cause of death sharp force injuries to the torso. Two of the injuries were in the chest and two in the back, and associated injuries to the heart, lungs, liver and blood vessels were noted. Dr Bailey set out in her report (Ex. B.2) the extent of the other, likely post-mortem, trauma observed, which included disarticulation of some limbs, de-fleshing of some parts of the body, and excision of skin and genitals. Two knife fragments were recovered from the body, one being the tip of a blade, and the other almost the whole of a large blade.
D/S Alston told the Court that soon after arriving at the Sadlier residence on 12 January 2019 he caused missing persons reports to be examined, and the deceased was identified as Goran Stevanovic, who had been reported by his father as missing on 10 January 2019. A search for the accused began, and quickly focused on Ms Lloyd's Warwick Farm apartment.
When officers knocked on the door of the unit at about 10.30pm on 12 January 2019, the door was not answered, although both the accused and Ms Lloyd were inside. Once a crime scene warrant was obtained police officers entered the apartment and the accused and Ms Lloyd were arrested. The accused was judged to be affected by a drug.
The accused was interviewed by D/S Alston and Detective Senior Constable Jason Greene much later, shortly after 5.30pm on 13 January 2019, after the effects of the drugs he appeared to have taken had dissipated. It is what the accused said during this and a second interview, on 28 January 2019, that the accused relies upon to argue that, in stabbing Mr Stevanovic, he acted from a belief that he had to so act in his own defence, a matter not excluded by the Crown. It is necessary to consider the contents of each of the interviews in some detail.
[3]
The Interview of 13 January 2019 - Ex. D
At the commencement of the interview of 13 January 2019, the accused was played a recording of a conversation he had with officers from the Homicide Squad, D/S Scott Loy and Senior Constable Fitzgerald, when arrested in the early hours of that morning. The sound quality is poor and some of the conversation inaudible. Noting that there is no transcript in evidence of the conversation, this represents the Court's understanding of some of what was said in the 13 minute discussion:
Q: What's your name?
A: Khanh
Q: Khanh, where do you live? Can you tell me who's the bloke in your shower, mate?
A: Don't know him
Q: You don't know him? How did he end up dead?
A: Had a fight
After the caution had been administered, the conversation continued.
Q: When you had a fight with him, what happened?
A: I grabbed a knife and stabbed him
Q: You stabbed him. Right. And how did all the body parts come off?
A: I wanted to get rid of it, dispose
Q: You wanted to dispose of him. Where are the rest of the body parts now?
A: They're all there
Q: How did you know him? How did you meet him?
A: Around. I did (inaudible)
Q: Drugs and stuff with him?
A: Yeah
After listening to the audio recording the accused told D/S Alston that he did not want to amend anything of what he had said to the Homicide detectives earlier that day.
When asked during the recorded interview what he could tell the interviewing officers about the murder of Goran Stevanovic the accused said that he had pills, he had been at his place drugged, and had lost two days. He said "people", starting with "Rick" had taken stuff when he was asleep (Q&A 83). He went on, at Q&A 86:
"But I was paranoid already, like, before someone was tryin' to get me, so that's why Goran died 'cause he said he was a, he knew taekwondo and he had a attitude and stuff and it, he, he, he ca, like, he came out of nowhere and, like, like, I don't even know how we met or anything."
D/S Alston confirmed in evidence that the deceased had practiced Taekwondo as a child, reaching a particular coloured belt as a measure of achievement.
The accused said that Mr Stevanovic had been talking about him, that is the deceased, dying, and "instigated a fight". The accused then picked up a knife and stabbed him. He said that the blow was delivered to the chest.
The accused said that, when he stabbed Mr Stevanovic, he "took off straight away" and the accused had to go after him and "drag him back inside". When asked if he had anything else to say about the stabbing, the accused said, at A90:
"I dunno ..... it was like do or die. I was paranoid or somethin' like that. I dunno. I felt someone was set, oh, tryin' to set me up."
He described Mr Stevanovic as a guy who "talked crap" and "had a real attitude". He told the officers that Mr Stevanovic had come to his apartment to "score" or obtain drugs, and he thought he had been sent to watch him "and stuff".
Later, the accused said that he stabbed Mr Stevanovic when he was going on about whether he, the accused, would prefer to be shot or bashed (Q&A 175). He described the deceased as sitting on the front of the bed, facing in the direction of a television set; the accused said he was sitting behind Mr Stevanovic, near the wall. Kate Lloyd was lying asleep. A diagram of the respective positions drawn by the accused is in evidence as Ex. C.3.
The accused had not been able to supply Mr Stevanovic with "ice" or methylamphetamine, as he couldn't get any. The accused said that he used ice "not that often […] once or twice a week" (Q&A 243), and also took an anti-depressant, methadone, Rivotril and Lyrica.
The accused said that Mr Stevanovic had a telephone conversation and, as that took place, the accused "got the feeling that there was somethin' bad about him", and he couldn't go through with killing the accused and Ms Lloyd, but was "trying to get out of" it (Q&A 255). Moments later the accused said that Mr Stevanovic saw the knife that the accused had and the accused stabbed him, "because he was gunna kill me so I killed him" (Q&A 279). When asked how Mr Stevanovic was going to kill him he responded "I dunno" (Q&A 280).
D/S Alston asked the accused what Mr Stevanovic had done to make him think he would kill him, to which the accused replied:
"I dunno. Never met someone like him, like, I dunno, he just had a, a arrogant, um, he's always cocky and this, oh, I dunno" (Q&A 281).
He continued:
"[…] he'll stand up, talk on the phone, sit back down. That's what I mean.
[…]
Then he sat down for a period, talked that crap and so then, um, um, there was a knife nearby and I just, I just stabbed him because I just had a feeling (Q&A 339 - 340)".
The accused told the police officers that he had stabbed Mr Stevanovic in the lower back, after which Mr Stevanovic ran from the apartment to get to his car. He referred to the first knife injury as occurring in a situation where it was "do or die". When asked "what does do or die mean to you" he responded:
"Do or die is if, if I, if I don't kill him then one day he's gunna get me" (Q&A 410).
When asked what he thought Mr Stevanovic was going to do at the moment the accused stabbed him, the accused responded "Oh, I dunno. Nobody knows mate" (Q&A 415).
The accused went on to describe how he chased Mr Stevanovic outside "to finish off the job", stabbing him as he lay at the bottom of the steps to the apartment block. He said that he stabbed Mr Stevanovic in the heart to "finish him off" (Q&A 476 - 477), as it was "kill or be killed" (Q&A 487).
Describing some incidents where "some idiots" stole his stuff and put Ms Lloyd's card in his oven and other pranks, the accused said that stabbing Mr Stevanovic was associated with those things.
He went on to describe what he did to Mr Stevanovic after dragging him back inside the unit, when "he wasn't fighting or anything. He was probably unconscious". He said that he put Mr Stevanovic in the shower, still breathing. The accused began dismembering him once he had stopped breathing.
He cleaned up the blood outside the unit because he did not want it discovered, and took a number of other steps to conceal what he had done, including sending a text message to Mr Stevanovic's parents from the deceased's mobile phone to give the impression that he was alive.
The accused maintained that Ms Lloyd had not been involved in these events, but had left before the incident, and knew only that the accused had chased Mr Stevanovic away.
[4]
The Interview of 28 February 2019
A second interview was conducted by D/S Alston and D/S/C Greene with the accused on 28 February 2019 (Ex. F). The accused was given a copy of the transcript of the earlier interview, and he made some annotations to it. He explained to the officers that there were a few things he wished to correct, including his assertion in the first interview that the first stab wound had been inflicted to Mr Stevanovic's chest. The accused said that he had stabbed him in the back instead.
He said that, when Mr Stevanovic was on the phone, what he had been saying did not make sense. He had referred to himself being shot or bashed. The accused later said that this conversation had been conducted in a different language. The accused said that leading up to what had happened to Mr Stevanovic "someone was trying to do something" to the accused, and "this guy", being Mr Stevanovic, came "out of nowhere". That had made him think that Mr Stevanovic was "up to no good" (Q&A 65). He thought that people may have been after Mr Stevanovic, but Mr Stevanovic did not threaten him (Q&A 92).
The accused said that "maybe" Mr Stevanovic had been offered a "hit" or contract to kill him, and was saying on the phone that he did not want to do it (Q&A 103), perhaps because he and Mr Stevanovic "were more like friends" (Q&A 117).
The accused told the police officers that he had armed himself with a knife prior to Mr Stevanovic attending his unit, being on notice that he intended to call around to obtain drugs. He armed himself because he had planned to kill Mr Stevanovic "because of everything that was leading up to it" and his feeling that Mr Stevanovic was going to "do" him (Q&A 313-314) or "get" him (Q&A 332).
When later asked how he thought Mr Stevanovic was going to get him the accused said (at Q&A 1410):
"I don't know. He's the only one that's, I don't know, just his demeanour, and stuff ..... him. Yeah. Could have overreacted, yeah; could be an overreaction."
He corrected his earlier account of Ms Lloyd having left the apartment and having no knowledge of what had happened to Mr Stevanovic, noting that she had in fact assisted the accused to bring Mr Stevanovic back to the apartment after he had run away, and had assisted in the clean-up.
[5]
The Addresses of Counsel
The focus of both counsel in closing address to the Court was on the decision of R v Flame (No 2) [2020] NSWSC 1602, and whether the Court should or should not apply the interpretation of the law articulated in that case to the present evidence.
Counsel for the Crown submitted that there was no evidentiary foundation for the accused's assertion that he had acted in self-defence, and a delusional belief of that nature, if the accused held it, could not meet the test established by s 418 of the Crimes Act. The Crown pointed to the evidence in Ex. A that established that Mr Stevanovic had not participated in any conversation where he discussed being bashed or shot immediately before he was stabbed. The conversation he in fact had held no resemblance to the conversation the accused told police he had heard, whether in English or some other language. Having done nothing that could lead the accused to wrongly perceive he was under threat, self-defence was not available to him, and the Crown had established its case for murder.
Counsel for the accused argued that the accused's accounts to police in the recorded interviews should be accepted as reflecting a truthful account of a genuinely held belief on the part of the accused that he had to kill Mr Stevanovic if he was to avoid being himself killed. Counsel went so far as to urge the Court to declare Flame (No 2) good law, apply it directly to the present circumstances, and indicate the likelihood of a similar outcome. The only correct verdict in the accused's submission to the Court was that he was not guilty of murder but guilty of manslaughter.
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The Law
This being a criminal trial it is the Crown that carries the burden of proving the guilt of the accused, with the standard being that of proof beyond reasonable doubt. The accused has the benefit of the presumption of innocence unless and until the Crown proves his guilt beyond reasonable doubt.
The accused has no obligation to prove anything and he was not required to give evidence, or to participate in the identification line-up that he was offered by D/S Alston. That the accused did not give evidence, or agree to be involved in the line-up, are matters of no relevance, and I put them aside. No adverse inference may be drawn against him with respect to those decisions, and they do not operate to fill in any gaps that might exist in the Crown case.
Although he did not give evidence, the accused did agree to be interviewed by the investigating officers, and the Court must consider what he said in each of the two interviews. He has not, however, by participating in the interviews with police, assumed any burden of proving the truth of what he told the officers. The accused has by his accounts raised the issue of self-defence; it is for the Crown to negative that issue. If what the accused told police is capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the Crown has excluded self-defence, the accused will be entitled to an acquittal.
The evidence is the recording of each interview, although the Court was assisted by the provision of transcripts of each interview as aides memoir. I am conscious of the use to be made of transcripts and corrected my working copy of each transcript where necessary to reflect what I heard those involved to say as the recordings were played in Court.
If the account given by the accused to police of events on 8 January 2019 is accepted by the tribunal of fact as true or reasonably possible, the accused must be acquitted of the charge of murder. If the Court does not believe what he said, the evidence must be put to one side. The fundamental question is, has the Crown proved the accused's guilt beyond reasonable doubt.
The Court must act only on the evidence. Speculation has no place in a criminal trial; neither does emotion.
There is some evidence that suggests that the accused is a person of bad character. He was incarcerated between the first and second interviews with police, it seems for a matter other than that before the Court. There is evidence from his mother that the accused was in and out of prison over the period when he lived at Sadlier. Ms Pham also gave evidence that the accused was a user of illegal drugs, as the accused confirmed in his interviews with police. She also said that he was an angry person in the weeks leading up to 8 January 2019. It seems that the accused was a supplier of methylamphetamine and other drugs. These are matters of no or limited relevance. Evidence that could only go to bad character, such as his incarceration and drug dealing, I have set aside. Evidence of drug use and angry moods I have treated as relevant only to the question of the extent of the accused's intoxication on 8 January 2019, and how that may have affected his perception of events and his state of mind.
There is evidence from which the Court might infer that the accused acted from a consciousness of his guilt for murder, such as the evidence in Ex. A establishing that the accused attempted to sell Mr Stevanovic's car after his death so that he could leave the State. I do not understand the Crown to have advanced that evidence, or evidence of the clean-up of the apartment, or the lies told concerning Ms Lloyd's involvement, as evidence of consciousness of guilt, but rather as evidence relevant to an assessment of the accused's state of mind on 8 January 2019. It is necessary to consider evidence of that nature only on that basis.
Similarly, although there is some evidence that might point to a tendency on the accused's part to act in an angry or even murderous fashion - his chosen Facebook name of "Carnage Pham", and his comments about desiring to be a serial killer of sexual offenders- that evidence was led only to go to the accused's state of mind, and that is the only way in which the Court has considered it.
[7]
What the Crown had to Prove
In order to prove count 1, the charge of murder, the Crown must prove beyond reasonable doubt that (in the circumstances of this case) a deliberate act of the accused caused the death of the deceased, and that this act was carried out with an intention to either kill or to cause grievous, or really serious, bodily harm. None of those elements are in dispute in this trial, with the accused conceding that he fatally stabbed Mr Stevanovic, intending at the time to kill him.
[8]
Self-Defence
The accused has raised the defence of self-defence, although conceding by the plea he entered to manslaughter that his act was disproportionate to the threat he believed had been offered to him by Mr Stevanovic.
A defence of self-defence is governed by Division 3 of the Crimes Act. Sections 418 and 419 are in the following terms:
418 Self-defence - when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary -
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
419 Self-defence - onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.
Although the double negatives inherent in the application of the provisions are unhelpful, the tribunal of fact must ask itself the questions expressed in R v Katarzynski [2002] NSWSC 613 at [22]-[23], and approved in Abdallah v R [2016] NSWCCA 34:
1. is there is a reasonable possibility that the accused believed that his conduct was necessary in order to defend himself; and,
2. if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he perceived them.
The first question falls to be determined from a completely subjective point of view considering all of the personal characteristics of the accused at the time he stabbed Mr Stevanovic, including considerations of his drug consumption and intoxicated state and how that may have affected his state of mind. Such evidence as addresses the question of his intoxication and its effect on his perceptions must be taken into account in determining the circumstances as the accused believed them to be and whether it is possible that the accused believed that his conduct was necessary to defend himself.
The second question is determined by an entirely objective assessment of the proportionality of the accused's response to the situation he believed he faced. That question here is answered by the plea offered to manslaughter, reflecting the accused's concession that it is not reasonably possible that his response was a reasonable one to the circumstances as he perceived them.
Once self-defence is raised, as the Crown accepted was the case here, it is a matter for the Crown to negative the issue. The Crown will negative self-defence if it proves beyond reasonable doubt either:
1. that the accused did not genuinely believe that it was necessary to act as he did in his own defence; or
2. that what the accused did was not a reasonable response to the danger, as he perceived it to be.
Again, because of the plea to manslaughter, the focus for the Court must be on the first question, and whether the Crown has proved beyond reasonable doubt that the accused did not personally believe that it was necessary to fatally stab Mr Stevanovic in his defence. It is the accused's perception that the Court must consider and not what someone else might have perceived. The matter is not to be examined with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation that may have been perceived as frightening. Although with hindsight, it might be thought that the accused was mistaken in believing that it was necessary to do what he did, that is not a relevant consideration.
If the Crown fails to prove beyond reasonable doubt that the accused did not believe that it was necessary to stab Mr Stevanovic as he did then the accused must be acquitted of murder.
I am conscious of the availability of an alternative charge, to which the accused has already entered a plea of guilty. Whilst I am aware of the direction that would be given to a jury concerning an alternative charge, in the circumstances of the present case I do not propose to set the direction out. Suffice to say that the focus of the tribunal of fact will be on the count on indictment, only turning to the alternative if not satisfied beyond reasonable doubt that the charge on indictment has been proved by the Crown to the criminal standard.
In considering the evidence the Court may draw inferences. In drawing inferences it is necessary to carefully examine any possible inference to ensure that it is a justifiable inference on the evidence. Inferences are not always correct or justified and, in the context of a criminal trial, care must be taken to ensure that any inference the Court draws is a rational inference on the evidence.
[9]
Consideration
As already observed, the only matter in dispute and to be resolved by the Court as the tribunal of fact is the question of whether the Crown has proved beyond reasonable doubt that the accused did not personally believe that it was necessary to act as he did in his own defence.
Whilst the parties emphasised the approach to be taken by the Court following Flame (No 2), it is a question of fact that must decide this case. Has the Crown disproved to the requisite standard that the accused personally believed that he had to act as he did to defend himself? In my conclusion, the answer to the question, as a matter of fact, is yes.
The evidence relevant to the accused's state of mind and belief is found in Ms Pham's account of her son in the two or three weeks prior to Mr Stevanovic's death, in the accused's own accounts of it to police, and in the objective evidence of the events themselves.
Ms Pham referred to her son as a "drug addict" and thought when she saw him in December 2018 that he was affected by drugs, and harbouring false beliefs, such as that he had cancer, and that a neighbour would come through the wall of his unit and kill him.
In his interviews with police the accused described his situation on 8 January 2019 as one of "do or die" and said he thought Mr Stevanovic would "kill" or "get" him.
The objective account of events is found in Ex. A, in the evidence concerning the scene of Mr Stevanovic's death, and the forensic pathologist's evidence.
Commencing with the accused's drug use, there is evidence that establishes that the accused was a user of prohibited and other drugs, and that he was likely using prohibited and other drugs on and around 8 January 2019.
I accept that, as late as 29 December 2018, the accused was exhibiting signs of drug induced paranoid delusions, including concerns that a neighbour or "someone" was out to kill him. His state of mind in that period might be inferred to be paranoid in a general way, although focusing to some extent on the person or persons living in the neighbouring apartment.
What the accused himself said about his drug use was as follows:
1. That, at a time not clearly articulated the accused used "pills" and lost two days as a consequence (Q&A 83, 13.1.19).
2. He did not have any "ice" on the day of Mr Stevanovic's visit, although whether to use or to sell is not clear (Q&A 185).
3. Generally, the accused used crystal methylamphetamine, Rivotril without a prescription, prescribed methadone, and cannabis (Q&A 198-199).
4. He used methadone daily, although he did not collect his prescribed dose on 8 January 2019.
5. He used one tablet of Rivotril, probably of 2 milligrams in size, about a week before 13 January 2019 (Q&A 216).
6. He took a pain relief medication, 300mg of Lyrica, twice daily; and an anti-depressant, 75mg of Effexor, daily (Q&A 218ff).
7. The accused used "half a point" of "ice" or methylamphetamine intravenously once or twice a week (Q&A 242ff). He did not initially state when he had last used that drug relative to 8 January 2019.
8. The accused did not collect his prescribed methadone on 8 January 2019 and that made him feel sick (Q&A 504, 28 February 2019).
9. He had "crystal meth" the day before he stabbed Mr Stevanovic, or on that morning, which gave him "energy" (Q&A 506 - 508). He had a $50 deal, or "a point", which he had shared with Ms Lloyd (Q&A 511 - 515; Q&A 518).
10. He used Lyrica on the morning of 8 January 2019. Initially the accused could not say how much of this drug he took (Q&A 519ff), although he later said he took two tablets (Q&A 556).
11. He also took two tablets of Rivotril obtained from the street (Q&A 533ff).
12. The drugs he consumed on 8 January 2019 were taken all at once (Q&A 558).
There is no evidence independent of the accused to confirm his statements to police as to the extent and timing of his drug use. It is clear from what the accused himself said that he was not certain of what he took and when. In the absence of clarity in the evidence, it is reasonable to infer that, as a poly-drug addict, the accused would have been likely to have taken at least some drugs on or around 8 January 2019, and probably any drugs that he could obtain, with the exception of methadone. Independent evidence (Ex. A) established that the accused did not consume methadone that day, despite having a prescription dose available to him.
His account of heavy drug use on or around 8 January 2019, which led to delusions and paranoia, is not directly supported by any other evidence. No pharmacological evidence to interpret the possible or likely effects upon the accused of a combination of the drugs referred to has been placed before the Court (a matter from which I draw no adverse inference against either party). Even without such evidence, it is reasonable to infer that some or all of the drugs referred to, taken in some combination, would have affected the accused's mood and state of mind to some extent on 8 January 2019, and would have had an effect upon his perceptions of the world around him.
The accused says that, labouring under the effects of the drugs he had taken, he thought Mr Stevanovic posed a threat to him, and he acted as he did because he perceived the situation to be one of "do or die".
Whilst counsel for the accused submitted that there was no reason not to accept that the accused's assertions about his fears were truthful or reasonably possible, there are a number of features of them that point to a need to carefully assess them to determine if the versions the accused gave to investigating police can be accepted as supporting a reasonable doubt as to whether the Crown has excluded self-defence. There is a weight of evidence in the Crown case that causes me to conclude that the accused did not stab Mr Stevanovic to death because he personally believed he had to do so to save his own life.
There is evidence that, at about that time, the accused was capable of rational thought, and had a capacity to respond logically to objectively real events.
Immediately after Mr Stevanovic was stabbed in the back, the accused pursued him and brought him back to the apartment, thus preventing anyone from immediately discovering what had happened, and permitting him to conceal the events for a period.
He was able with Ms Lloyd to quickly come up with a plausible story to innocently explain the blood in and around the apartment building - that a dog had killed a rabbit.
He was able to decide upon and then implement a plan to cut up Mr Stevanovic's body, thus lessening the problem of concealing it. Having made the decision, he assembled tools useful for the purpose, including a meat cleaver, pliers, and numerous knives.
Having decided to dismember Mr Stevanovic, the accused undertook the task in the bathroom, where the clean-up would be easiest to manage, and after he had removed clothes that he had only just purchased, because he didn't want to ruin them.
He was conscious of the problem with odour, and was able to take steps in an attempt to address the problem.
The accused took steps directed at securing sufficient funds to flee the State, trying to exchange Mr Stevanovic's mobile telephone and car for money.
All of these acts point to the accused as thinking reasonably rationally, in response to real events, and in a purposive and directed way. This evidence is not supportive of the accused's claims to have been so drug addled when he fatally stabbed Mr Stevanovic as to have believed in a non-existent threat from him, absent any conduct that could have possibly underpinned that belief.
Further, the evidence of the accused's accounts to police of his conduct of themselves point firmly to a conclusion that the Crown has disproved self-defence. Since this evidence is critical to the question of whether the Crown has disproved to the requisite standard that the accused held that belief, it is important to be clear about precisely what the accused said on the subject of self-defence, and in what circumstances his accounts were given.
One of those circumstances is the quality of the accused's memory of his motivation. On his own account the accused's memory was "real bad", and his brain too "stuffed up to work properly" (Q&A 86 and Q&A 856). That may be accepted when the numerous contradictions and internal inconsistencies in his accounts are considered.
The accused had to resort to his imperfect memory because he did not give a contemporaneous (or spontaneous) account of why he acted as he did. He did not, for example, tell the neighbour who observed blood on the steps of the Eureka Crescent apartment block that he had been threatened or attacked and had been forced to defend himself. Instead, he manufactured an account of how the blood came to be on the steps that would ease any suspicion.
The accused's first account of his actions, given five days after Mr Stevanovic was killed, contain numerous inconsistencies and unlikelihoods that can be readily identified.
The accused told the Homicide detectives that he didn't know Mr Stevanovic; later observing that he had known him in the context of drug transactions for some weeks and knew him as Goran. He also told D/S Loy that he had a fight with the deceased, with no reference to a need to defend himself. In his first interview, the accused also described, at least initially, what had happened as a fight, portraying Mr Stevanovic as the instigator. He later noted that there had been no fight, and Mr Stevanovic had not said or done anything that was threatening. Rather, the accused had planned to kill him and stabbed him in the back as he sat on the bed with his back to the accused.
When first describing the stabbing he said that he had stabbed Mr Stevanovic in the chest; later in the same interview, and again in the second, he said that he had stabbed him in the back.
In the first interview the accused did not mention having notice of Mr Stevanovic's visit, and planning to kill him during the visit. He outlined that circumstance over a month later in the second interview.
The accused gave a number of accounts of the telephone conversation Mr Stevanovic had just before he was stabbed, which contradict each other (and are contradicted by Ex. A). In one account of the conversation the accused said that the comments about a preference for bashing or shooting had been directed to him, as if Mr Stevanovic was at the apartment to harm the accused; in another he said the comments were about Mr Stevanovic and not the accused, with the accused concluding that something was going to happen to Mr Stevanovic, and "people" were "after him". He said that the conversation was conducted in a foreign language that the accused did not understand, but later said that parts of it were in English.
The accused gave an account of his general feelings at around this time, telling the police officers that "someone was trying to do something" to him (Q&A 61) with his apartment having been trashed and, in that context, Mr Stevanovic coming out of nowhere, that is, contacting him over the previous weeks as a potential source of drugs, had led him to think that Mr Stevanovic was "up to no good" (Q&A 64). He thought that even though Mr Stevanovic did not threaten him (Q&A 92). The accused said he believed that Mr Stevanovic had been offered a contract on the accused's life but that he wouldn't fulfil it and kill him (Q&A 117).
The accused said he stabbed Mr Stevanovic in a context where Mr Stevanovic had "an attitude", knew Taekwondo, and the accused "had a feeling" about Mr Stevanovic.
Whilst the accused said directly to D/S Alston that he thought the deceased was going to kill him, he also said that he didn't know what Mr Stevanovic had done to make him think that, and no-one could know what Mr Stevanovic had been going to do. Referring to the situation as one of "do or die", the accused later explained that, by that phrase, he meant that at some future time Mr Stevanovic would "get" him (Q&A 410).
The disconnection between an act done from a truly held, even if delusional belief, of that nature and some of the accused's subsequent behaviour also supports acceptance of the Crown case. Notably, the accused's excision of the deceased's genitalia is wholly inconsistent with an original motivation of self-defence, as is, although less starkly, the removal of Mr Stevanovic's tattoo.
These features all point to the unreliability of what the accused said.
That the accused was not always truthful in what he said is a matter he conceded to the Court. He lied to the neighbour who saw Mr Stevanovic's blood at the apartment block and, later, he lied to police about the involvement of Ms Lloyd. He set up a web of falsity in his attempts to sell Mr Stevanovic's car and telephone, and in the message that he sent from that telephone to Mr Stevanovic's family. His ready resort to lies when useful to him must have a bearing on whether the Crown has negatived the question of self-defence.
The question of planning is also relevant to determining whether the Crown has excluded self-defence. In his second interview the accused explained that he had planned to kill Mr Stevanovic before he arrived at the accused's apartment that day. He said that, before Mr Stevanovic attended his apartment, the two men had spoken on the telephone about Mr Stevanovic visiting the accused, which gave the accused about 15 minutes notice of the visit. The accused said because of some of the things that had happened in his apartment, such as a used sanitary product being left in his cupboard, he "felt" that Mr Stevanovic was going to "do" or "get" him (Q&A 311ff). The accused used the 15 minutes he had not to call the police, or leave the apartment and take himself to safety, but to arm himself with a large knife, and prepare to kill Mr Stevanovic. Planning and a defence of self-defence do not sit together well. Ordinarily, the former excludes the latter. Consideration of the accused's particular circumstances must direct whether the axiom holds true for him.
Here, the evidence of what the accused told the police is capable of establishing that the accused was in a state of general paranoia induced by intoxication. That is supported to a degree by the makeshift bamboo weapon that was found in his apartment by police. Whilst I accept that the accused thought that "someone" posed a risk to him, with his paranoia likely focusing on the occupants of the neighbouring unit, as he repeatedly told his mother, this is evidence of general apprehension, pervasively directed. It does not point to a belief personally held that the accused had to act as he did to save his life from Mr Stevanovic.
The accused's acknowledged falsehoods undermine the credibility of his accounts of acting in self-defence. The vague and contradictory nature of his accounts further undermine them as accounts that could reasonably be true. The inconsistency between some of the accused's assertions and actions, and a personally held a belief that it was necessary for him to fatally stab Mr Stevanovic to defend himself, also undermine his account.
Overall, the accused's accounts read to me as speculative, or as an attempt at replacing an entirely absent memory with a reconstructed one.
The other evidence of relevance to determining whether the Crown has negatived the first aspect of self-defence is the evidence of what occurred after the knife blow was struck to Mr Stevanovic.
Firstly, the accused told police and agrees in Ex. A, Mr Stevanovic fled. He made no attempt to defend himself, or take any assertive action. He ran from the apartment, collapsing soon after outside. The accused said that, at a time when Mr Stevanovic had left his home, and fallen to the ground outside, he pursued him, and deliberately stabbed him a further three blows, including one he intended to pierce his heart, to "finish him off".
The accused's conduct in pursuing Mr Stevanovic is not consistent with a genuinely held belief that his life was at risk from Mr Stevanovic. It might be expected that, having seen Mr Stevanovic leave his apartment, the accused would secure the door and remain inside the safety of his apartment. I would not expect that a man frightened for his life would pursue the source of the danger and approach him. The accused's conduct does not point to a genuinely held fear for his life; it is a basis to conclude that the accused was the aggressor here, and not in a justified pre-emptive strike.
Nor do I accept as possible that the accused stabbed Mr Stevanovic as he lay injured on the ground because he believed he had to so act for his own defence.
Rather than seek help, for himself or the deceased, the accused obtained the assistance of Ms Lloyd to drag Mr Stevanovic, who may have been unconscious, inside and put him in the shower unit to wait for him to die. The accused took immediate steps to clean up the blood that had sprayed about the common area of the apartment block, and fallen onto the ground outside the building, having the presence of mind to come up with a false exculpatory account of how blood had been deposited there when a neighbour saw what he was doing.
This is not consistent with a state of mind so drug affected as to have truly perceived that an unarmed, unthreatening man who was like a friend, posed an immediate danger requiring serious or lethal force to be deployed in defence.
Neither are the accused's subsequent steps to clean up the area consistent with a genuinely held belief that what he had done to Mr Stevanovic had to be done in self-defence.
The accused took extensive, difficult, and time consuming steps to dispose of Mr Stevanovic's remains, including going to his mother's house for a meat cleaver to use to disarticulate the body, and spraying bleach over the body to mask the smell of decomposition. He did not at any stage call for help from the authorities or try to secure help for Mr Stevanovic after he had been rendered unconscious. That he took such trouble in an initial attempt to dispose of Mr Stevanovic's body points to his understanding that he had not acted in self-defence.
The excision of Mr Stevanovic's ear and genitalia points not to self-defence but to something much darker.
Rather than seeking help the accused took his belongings to Ms Lloyd's house, taking with him the deceased's wallet and telephone, neither of which have ever been found, and his car, and tried to use the phone and car to secure money. He intended to flee the state.
Although these acts occurred after Mr Stevanovic was stabbed to death, the evidence of them is capable of informing a conclusion about the accused's state of mind at the time of the stabbing, particularly so with respect to those events that occurred immediately after the first blow was struck: Colosimo & Ors v Director of Public Prosecutions (NSW) [2006] NSWCA 293. Taking the whole of the evidence, the accused's acts do not support a conclusion that it is possible he personally believed that he had to stab Mr Stevanovic to death in self-defence. Everything about his later conduct points away from that conclusion.
What is suggested most strongly by the accused's account of events is a version given by an individual who has no real memory of why he acted as he did, and has endeavoured to reconstruct events, describing what he has later concluded must have been his thought processes, rather than what he knows they were. The numerous internal inconsistencies about why he thought Mr Stevanovic posed a threat to him point to a reconstruction of that nature.
Although counsel for the accused submitted that there was no other explanation for the accused's conduct than that he acted from a belief that he was under mortal threat, and thus his account should be accepted, the evidence in fact suggests other reasonable possibilities.
There is no issue that the accused and Mr Stevanovic met to conduct a drug transaction. The prospect that the proposed drug deal went wrong and violence from the accused followed provides one possible explanation for what occurred that is available by inference on the evidence. Robbery provides another credible motive for what occurred, particularly given that the accused took Mr Stevanovic's car and other possessions with him when he left Sadlier, and tried to use them to obtain money. That the accused may have been operating under a delusion other than that he had to defend himself is suggested by his answers to Questions 900 and 901 of the interview of 13 January 2019. He said:
"…I could've, I could've been a serial fuckin' killer, but I wanted a leg, I wanted a legacy to fuckin' be like, kill fuckin' paedophiles and fuckin' rapist pricks 'cause they'll never change. Like, I'm stuffed in the head, like, not normal, I can't work, I can't fuckin' do the 9.00 to 5.00, not everyone's, well, we're not all fuckin' made the same, but I wanted, why do these pricks get fuckin', why is there a protection for these fuckin' maggots? If there wasn't protection, we'd fuckin' hammer these cunts and they wouldn't even come to gaol and they'd stop fuckin' rapin' fuckin', and fuckin' paedophile rings and shit. It's all bullshit, mate. I fuckin' hate it, like, give me some paedophiles to kill. Fuck me dead, mate. And that's, that's it. I've given you everything. Fuck, it, it's a solid fuckin', solid case…"
The accused's attempts to conceal his crime and obtain the resources needed to flee the state are consistent with a drug transaction gone wrong, robbery, or murder for some darker motive. The mutilation of Mr Stevanovic's genital area, and the bizarre text message recorded in Ex. E 77-78 about killing males are not consistent with self-defence, or concealment of the body alone.
Having carefully considered the whole of the evidence, I am of the view that it is not capable of raising a doubt as to whether the Crown has excluded as a possibility that the accused held a belief that he had to stab and kill Mr Stevanovic to defend himself. Put another way, I have concluded that the Crown has succeeded in disproving to the criminal standard that the accused believed that he had to act as he did in his own defence when he stabbed Mr Stevanovic.
[10]
orders
The verdict returned to the charge that the accused, on or about 8 January 2019 at Sadlier in the State of New South Wales, did murder Goran Stevanovic is one of guilty.
[11]
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Decision last updated: 09 March 2021