R v Roba & Novosel [2002] VSCA 74

5. It was undisputed at this trial that four men - the accused Roba, Novosel and Wilson together with one Kevelj (who became a principal Crown witness) - assembled at Roba's home in North Geelong on the night of 17 February 1999. The major topic of conversation was the plight of Roba's sister, Natalie, who was living in Drysdale (some 20 kilometres from Geelong) with the deceased, Robert Filipovic. The deceased was regarded by Roba and members of his family to be a bad influence upon Natalie, and had introduced her to heroin which, so it was believed, had induced Natalie to steal from members of her family. In the early hours of the following morning, i.e. 18 February, the four men entered a car driven by Kevelj. They carried with them disguises including balaclavas. Roba was armed with a piece of iron piping, about one metre in length, which he and Novosel had collected from Novosel's house on the way to Drysdale. Novosel was armed with a knife. Their destination was the house in Drysdale at 123 Barrands Lane where it was believed that the deceased and Natalie were living. The car was parked in a shopping centre some 200 metres from the house. The four men alighted, Roba and Novosel donned balaclavas and tracksuit pants, and carried, respectively, the iron pipe and the knife. They made a reconnoitre of the house before coming back to the front door. Wilson put tape around his fingers. Kevelj "hung back" from the other three, professing "cold feet". Roba sought to gain entry to the house by pretending to be a neighbour. Entry was refused. Natalie had recognized her brother's voice; and the deceased had proclaimed to those outside that he was intending to call the police. Roba, Novosel and Wilson then bashed their way through the front door, ran through a short entrance hall and through a further door which took them into the lounge room of the premises. On the far side of the room the deceased, dressed in a pair of boxer shorts, was standing at a doorway which gave access to a rear room, which was called a "sun-room". He was holding a knife. In between the intruders and the deceased were items of furniture, including a bed upon which Natalie Roba was kneeling. Events thereafter happened rapidly. The intruders, with Roba in front carrying the iron bar, moved swiftly across the lounge room towards the place where the deceased was standing holding the knife. Despite the utterance by the deceased of the words "come on, you fucks" (or "thugs"), he was driven back into the sun-room where he was ultimately felled as a consequence of two jabs with the iron bar which struck him in the left temple area. Although these were the blows which fractured the skull of the deceased, and caused his ultimate death about a week later, subsequent investigation revealed multiple injuries to the deceased, including bruising and lacerations to the scalp, broken nose with bruising around both eyes, bruising to left shoulder and across both shoulder blades, bruising to the back of the neck, to the left side of the chest, to the inside of the left wrist, to the back of the left hand and to the back of the right upper arm between the shoulder and the elbow. Additionally there was bruising across the front of both thighs, which the pathologist suggested had been caused by the one blow; and some linear and "striped bruising" across the back of the right thigh indicative, according to the medical evidence, of a blow with a "smooth curved instrument such as a pipe". There was also linear bruising across the left buttock and rear of left thigh. Long bruises running from the shoulder region down the left side of the back were said to have been the product of blunt trauma. There was a similar linear bruise running from the right shoulder to the middle of the back. Finally, there was internal bleeding into the muscles of the right forearm, suggestive of a torn muscle, which could also have been produced by blunt trauma. Overall, the pathologist identified 12 different areas of injury; but death was caused by the injuries which resulted in the fracture of the left temple, which in turn caused cerebral oedema. It was not in issue that, after the deceased was bashed into unconsciousness, the three accused and Kevelj left the premises. On his way out, Roba told Natalie to "stay away from Clonard Avenue" (the home of the Robas). The accused also disposed of the iron bar and the items of disguise in a vacant paddock.

9. It was not in dispute that the injuries inflicted upon the deceased, and which caused his death, were inflicted by Roba. It was the Crown's case against him that, no matter how noble his concern for the plight of Natalie, the blows with the pipe which caused death were inflicted with murderous intent. The Crown contended that he went to Drysdale with the intention of beating the deceased with the iron bar which he carried and, therefore, with the intention of causing really serious injury at the very least. Such an intent could be inferred from all the circumstances, including the procuring of the iron bar, the wearing of the disguise, the force used to break into the premises and the fact that, upon entering the lounge room, he "went straight for" the deceased as soon as he saw him, never "taking a backward step" nor pausing before commencing to beat him with the bar. The Crown asserted that the ferocity of the attack was demonstrated by the number and nature of the wounds inflicted; and that it was open for the jury to conclude that, at that time, Roba's intent had ripened into an intent to kill. Although the trial judge had ruled, over the objection of the prosecutor, that he would leave self-defence to the jury, it was the Crown's contention that it had excluded any reasonable possibility that Roba was acting in self-defence. It was the Crown case that Roba was the aggressor from the moment he broke into the house and that, whilst the deceased had taken up a knife to defend himself and Natalie, there was nothing in the evidence to show that the circumstances had changed so as to suggest that Roba had formed a belief based on reasonable grounds that it was necessary to defend himself against the deceased. On the contrary, so the Crown contended, the evidence showed that the deceased was quickly disarmed as he was beaten into the rear room, knocked to the ground, and beaten some more.

13. The Crown case against Novosel and Wilson was that they, too, were guilty of murder either on the basis of concert or aiding and abetting. In particular, the Crown contended, in relation to Novosel, that at least by the time he entered the Drysdale house of the deceased and Natalie Roba, he was a party to an understanding or agreement with Paul Roba that really serious injury would be inflicted upon the deceased. In support of this contention the Crown relied upon Novosel's admission in his record of interview that he went to Drysdale as a friend "to help out" Roba; that he carried a long knife in respect of which he had said at Roba's house before they left that he would use it to "cut [the deceased's] leg open to show him not to mess around". The Crown further relied upon evidence that, on the way to Drysdale, they stopped at Novosel's house where Novosel and Roba had alighted and returned with balaclavas, tracksuit trousers and iron bars; that thereafter Novosel had said in the car that they were "going to teach [the deceased] a lesson, and bash him around a little bit". In support of the asserted understanding or agreement, the Crown also relied upon the circumstances in which Novosel burst into the house behind Roba in what was said to be a "hyped up condition", and made his way across the lounge room to the point where Roba began to hit the deceased with the iron bar.

16. The alternative case made by the Crown against Novosel was that he aided and abetted the crime committed by Roba. The Crown asserted that, having broken into the house behind Roba, he made his way with Roba to where the deceased was standing with the knife in the doorway leading from the lounge room to the rear sun-room, and observed Roba begin to beat the deceased with the iron bar. Indeed, so the Crown contended, Novosel was so close behind Roba that he was struck with the bar on the lip and the hand as Roba was wielding it against the deceased. Indeed, Novosel was the only one of the intruders to suffer any form of injury, subsequent investigation revealing that a bone in his right hand had been fractured and his lower lip split. Notwithstanding, so the Crown alleged, Novosel - after witnessing the commencement of the attack by Roba upon the deceased and being aware of its ferocity, returned to the lounge room to restrain Natalie from ringing the police. He did this by "pinning" her to the bed until such time as the assault had ended. This aspect of the Crown's case - which the judge, in sentencing, regarded as the one which the jury had probably accepted - was based largely upon admissions made by Novosel in a long answer in his record of interview with the police on 19 February 1999, that is the day after the events in question. In the early part of that interview, Novosel had expressed an unwillingness to comment on those events until he had spoken to his solicitor. Having done so, he was asked "what do you now want to tell us". Novosel then recounted, in narrative form, his version of what had happened in the early hours of the preceding day. In the course of this narrative, he was not prepared to use names, but described Roba as "number 1" or Paul. He said (inter alia):

"I went there [Drysdale] as a friend to help him [Roba] out. Anyway we ended up driving out to Drysdale. And when we got there we parked the car a few hundred metres away. And we walked down the street and the lights came on. ... Paul started talking to the bloke and when he said his name ... somebody kicked the door in. And as we went in there, number 1, he got a knife pulled on him from the other bloke. ... He pulled out the knife on Paul. And as he pulled the knife, we kept on with him - Paul kept on with him. What I did, I helped as in - I went down the side of Paul - never touched him, he went backwards - he went backwards to the back door. As number 1's gone to hit him, he's hit me. As he's hit me he - blood and stuff from me, and I ... I ended up - I ended up going to get the phone off his sister, `cos I was pretty hurt myself. And as I've got the - I got the phone off his sister - She wasn't doing much at all. She was just laying on the bed ... but she was I think screaming a little bit. It happened so quick. And in about 10, 20 seconds later, the only thing I know is Paul said: `Come on, let's go. Let's go, go, go'."

Thus, it was contended by the Crown that Novosel must have seen the deceased struck with the pipe; and that the nature of the assault must have alerted him to the fact that Roba intended to cause really serious bodily injury to the deceased, and that he encouraged the assault by his presence and intentionally assisted its commission by restraining the other occupant - Natalie - from ringing for assistance.

21. The case against Wilson was that he too was acting in concert with and/or aiding and abetting Roba in the latter's assault of the deceased. The Crown asserted that the jury could infer from the fact that he travelled in the company of Roba and Novosel to Drysdale in the early hours of the morning, from the fact that he sought to protect his identification by taping his fingers and from his unlawful entry into the house in company with Roba and Novosel, that he was a party to an agreement to inflict really serious injury on the deceased. It was also asserted by the Crown that Wilson was in the rear sun-room whilst the deceased was being beaten by Roba with the iron bar and that, by his presence, was encouraging Roba to do what he did. The Crown's case against Wilson, however, at all times had to overcome the significance of the evidence (found both in his statement and supported by Kevelj) that Wilson was not party to discussions which had taken place between Roba and Novosel before they left for Drysdale, that he carried no weapon, and - more significantly - that he had intervened in the rear room to prevent Roba from continuing to strike the deceased with the iron bar.

25. No evidence was given at the trial by any of the accused, nor was any evidence called on their behalf. Apart from the debate as to whether there was any basis for leaving self-defence to the jury, no submission was made by counsel that there was no evidence to support a conviction for murder or manslaughter. Indeed, after the Crown had closed its case and the judge had ruled that there was sufficient evidence upon which he should leave self-defence to the jury, the prosecutor informed the Court that, as to the issue of Roba's intent, he would be submitting that between the entry to the house and the attack on the deceased, the intent had escalated from an intent to do serious injury to an intent to kill. Counsel for Roba conceded that it would be open to the prosecutor to argue "both those limbs" on the issue of intent. Nor was it contended by counsel for Novosel that there was no basis upon which his client could be convicted of murder or manslaughter through the application of the doctrines of concert or aiding and abetting. Counsel for Wilson agreed that there was a basis upon which the Crown could contend that his client could be found guilty of murder or manslaughter in accordance with the doctrine of concert, although not on the basis of aiding and abetting because, although there was evidence demonstrating Wilson's presence, there was "no evidence of any help or active encouragement or conveyance of assent such as may be seen perhaps in the circumstances of Mr. Novosel".

28. At the conclusion of the case for the prosecution, there was also a discussion between counsel as to the status of the witness Kevelj - the "reluctant participant". The prosecutor submitted that it would be proper that he should be treated as an "accomplice", and that his Honour should give an appropriate warning. The prosecutor further submitted that several of the uncontested facts, such as the wearing of disguises, the breaking of the door, the disposal of incriminating objects would be capable of corroborating the evidence of Kevelj. Counsel for Roba contended that Kevelj was not an accomplice, and that no warning was needed. However counsel for Novosel and Wilson disagreed and urged the judge to give an accomplice warning. Counsel for Novosel, whilst expressing reservations, submitted that "in general terms" he had "no real truck" with the evidence itemized by the prosecutor as being evidence capable of corroborating the evidence of Kevelj.

31. Ultimately, the trial judge ruled that he would leave concert and aiding and abetting against both Novosel and Wilson, and would give the accomplice warning although, as his Honour said, he was conscious that there was a "level of artificiality" in the sense that much of what Kevelj said was "common ground between all the parties".

36. It was, accordingly, on the basis of the evidence led by the prosecution that counsel for the accused submitted that the jury should not be satisfied that their respective clients were guilty of either murder or manslaughter. Counsel for Roba submitted that the jury should not be satisfied that Roba had the relevant intent; nor should they be satisfied that the Crown had excluded self-defence. Counsel for Novosel and Wilson submitted that the Crown had not proved to the requisite standard that their clients were party to any understanding or agreement with Roba that really serious injury should be inflicted upon the deceased; nor had the Crown proved that they aided and abetted any crime committed by Roba. In so submitting, each counsel relied upon portions of their clients' records of interview, and also upon aspects of the evidence of Kevelj and Natalie Roba. Thus Roba relied upon answers given to the police that there was no arrangement or agreement to do serious injury to the deceased, and that his only intention was "to scare" the deceased and to liberate his sister from his influence. This was consistent with the evidence of Kevelj who agreed that, at Roba's house and in the car, the persons present were vacillating between calling in the police or going to Drysdale to give the deceased and Natalie "a scare". The situation only changed, so Roba said in his record of interview, when the deceased confronted him swinging the knife and it became necessary to "jab him" lightly with the end of the bar, because he thought he was going to get stabbed. He told the police that if he did not wear the disguise and carry the weapon, the deceased would have "just laughed and slammed the door in his face". He was only there to "scare them" and there were only "one or two jabs to the head ... because of the knife getting swung". It was put that Natalie agreed that the deceased had used words like "come on you fucks", an expression which invited confrontation and changed the circumstances into those which called for reasonable self-defence. In respect of manslaughter, so Roba's counsel argued, it was difficult to argue that the wielding of the iron bar was not an unlawful and dangerous act, but that the issue of self-defence nevertheless remained. Counsel conceded that Roba was guilty of the offence of "aggravated burglary".

40. It was contended on behalf of Novosel that there was no "orchestrated plan" to inflict serious bodily injury upon the deceased or to kill him. There was, in fact, no unity of purpose, but rather a plan to take Natalie out of the clutches of the deceased and, perhaps, to "rough him up a bit". The participants, it was submitted, could not make up their minds what they wanted to do. Kevelj, so it was said, regarded the plan as "getting Natalie out"; but his evidence could not lead to any conclusion as to a "concerted plan". It was put that Kevelj was not prepared to suggest that the plan was to do serious injury to the deceased and that the fact that Novosel was a loyal friend of Roba could not be substituted for an agreement that Roba should inflict serious injury. It was put that the highest the evidence got against Novosel was the evidence of Kevelj that, in the car, Novosel said that "we're going to get Natalie, maybe teach her boyfriend a lesson, bash him around a little bit". It was further put that, although Novosel had a knife, it was only to be used "in case there was a dog at the house". There was no evidence that he, Novosel, ever withdrew the knife from its pouch. Kevelj, so it was put, had said that he was to assist Novosel in taking Natalie out of the house, and that was the sum of the evidence as to Novosel's role in the venture. Although Novosel later threatened Kevelj with the knife, and told him not to say anything about what had happened in the house, that could not prove that he was party to an agreement to do serious injury to the deceased. The intention, so Novosel's counsel submitted, was to "get Natalie out". It was also submitted on Novosel's behalf that there was no aiding and abetting of Roba's assault on the deceased. Natalie Roba's evidence was that when the three men burst in the door, only two of them "went for" the deceased and the third, the "shorter one" (who must have been Novosel) came directly to where she was and "pinned" her on the bed. At the time when she heard the words "come on you fucks", and when she heard the "thumps" coming from the rear sun-room, Novosel was holding her down on the bed. Thus, it was put, he could not have been "aiding and abetting" any crime in the rear room which he could not see. To convict Novosel of murder would, so it was submitted, require the jury to ignore the evidence of the independent witness. If Natalie was right, so it was said, Novosel could not be "aiding and abetting" because he did not know what was happening to the deceased in the sun-room. All that Novosel could be convicted of, so his counsel submitted, was the offence of "aggravated burglary".

44. On Wilson's behalf it was submitted that he was at all relevant times a "spectator" to the events which unfolded. He had joined the other participants at Roba's house in West Geelong late in the evening and had not been privy to the earlier conversations. He conceded in his police interview that there had been conversations in his presence about giving the deceased a "roughing up" but he was never party to any agreement to kill him or inflict serious injury. Although he entered the house with Roba and Novosel, his only part was to intervene to stop Roba continuing to assault the deceased with the bar by "grabbing" it and telling him to "stop". It was accepted on his behalf that he had placed band-aids or tape over his fingers, but there was no evidence that he was carrying any weapon. It was put that the evidence of Kevelj did not establish that Wilson was privy to an agreement to cause serious injury and there was no evidence that he was other than a spectator who intervened to prevent Roba inflicting more injury than he had already inflicted. He was the person who said "stop". Again, it was said that his police interview was consistent with the other evidence before the jury; namely that he took no part in and did not agree with the assault. He agreed that he had discarded the iron bar in the vacant paddock, and had been reluctant to tell the police where it was - but that was because of his fear that his fingerprints may be found on it; and that might have been misconstrued. Again it was put that, in his interview with police, he repeatedly stated his belief that they were going to the Drysdale house to frighten the deceased and to get him to stay away from Natalie and the Roba family. There was no evidence, so it was submitted, of any "aiding and abetting" by Wilson; rather evidence of him actively intervening to stop what was happening. Again, it was conceded that he was guilty of aggravated burglary.

The Jury's verdict, and the Judge's interpretation of it for sentencing purposes

49. It is accepted that the learned judge accurately instructed the jury as to the law and related it to the issues in the case. No exceptions were taken by experienced counsel to his Honour's charge. The jury returned verdicts of guilty of murder against Roba and Novosel and a verdict of manslaughter against Wilson. For the purpose of sentencing, the trial judge accepted that Roba was the only person who entered the premises carrying an iron pipe, even though Novosel had introduced two such weapons into the car. The learned judge said, in regard to Natalie Roba's evidence - that each of the intruders carried "something" in his hands - that it was to be expected that her evidence might be inaccurate because of the "trauma" of events. His Honour concluded that, on the evidence, the jury could not have been satisfied that either Novosel or Wilson was armed. His Honour was also of the view that the evidence "did not spell out" an agreement to inflict really serious injury before entering the house at Drysdale. He said:

"... I think it unlikely that the jury would have concluded that there was a pre-existing agreement to inflict really serious injury upon the deceased in the presence of Paul Roba's sister, and after Roba had identified himself. ... Further, it is, in this case, difficult to infer prior intentions from what subsequently occurred in the house because the confrontation between the invaders and the deceased was unexpected and created a new dimension to the conflict."

In the course of sentencing his Honour also said that he was quite clear that the deceased was lawfully entitled to pick up a knife and defend himself, his girl friend, and his property from the unlawful entry of the accused. His Honour concluded that, after entry, the three accused moved swiftly to where the deceased was standing and that the deceased's statement of "all right, come on you fucks" was no more than an act of "desperate bravado"; that it did nothing to deter or halt the advance of the intruding aggressors; and that all that it achieved was to increase the aggression and anger of those who had invaded the premises. As his Honour pointed out, the jury's verdict meant that they had rejected any claim of "self defence" and that, inherent in the verdict, was the finding that Roba had acted with either an intent to kill or cause really serious bodily injury to the deceased. However, his Honour accepted that the accused "did not go to Drysdale either to kill [the deceased] or to cause him really serious injury"; rather it was his Honour's view that, in the course of the "ill-conceived" scheme, Roba's resentment had "exploded into a frenzied anger". In support of this view, his Honour referred to the large number of injuries which had been inflicted to the deceased, well beyond the injuries caused by the "two jabs" which Roba had conceded. As his Honour said, the jury would have been entitled to find that many of the injuries diagnosed by the pathologist were caused by a beating with the iron pipe. In this respect, his Honour pointed out that the evidence was consistent with the beating having been, in the main, occasioned in the rear sun-room because that was where the body of the unconscious deceased was found; that was where the blood was located; and that was where a gouge in the plaster ceiling was identified, consistent with the iron pipe having contacted it during an "arc", the end of the pipe containing material consistent with that of the ceiling. In addition the glass light-shade was shattered. Indeed, so the judge concluded, many of the injuries to the deceased must have been inflicted "when [he] was offering no resistance to you [i.e. Roba]". In support of this finding, his Honour called in aid the evidence of Kevelj that, following the incident, Roba had said that Wilson had stopped his assault on the deceased.

54. In respect of Novosel, his Honour found that the evidence entitled the jury to find that he had accompanied his friend, Roba, across the lounge room towards the deceased and that he was "so close when the attack commenced that [he] received injuries from the flailing pipe to [his] lip, right hand and right thigh". His Honour referred to that passage in Novosel's record of interview to which I have made reference in paragraph [5] and to his later statements that he could not see what finally occurred in the sun-room because he was in the lounge room restraining Natalie Roba. The judge concluded that:

"... the jury verdict is consistent with the view that, having associated yourself with the initial attack by Roba with the pipe on the deceased, you restrained Ms. Roba preventing her from obtaining assistance while the assault, which you knew would cause [the deceased] really serious injury was, to your knowledge, continuing in the sun-room. In other words, your culpability was founded upon aiding and abetting Roba."

In his Honour's view, it was not appropriate to distinguish Novosel's level of culpability from that of Roba for sentencing purposes.

59. In respect of Wilson, the judge interpreted the verdict of manslaughter as an acceptance by the jury of the statements made by Wilson in his police interview; namely that he was a "spectator" to the assault upon the deceased by Roba and Novosel at the door leading from the lounge to the sun-room, and that when he entered the latter room he saw the deceased falling unconscious over the lawn mower, and that he had thereafter sought to satisfy himself that the deceased was alive. He had then intervened to stop Roba from further hitting the deceased with the iron bar. Thus, in his Honour's view, the verdict was consistent with Wilson's claim that he had understood that an assault on the deceased short of really seriously injuring him was to occur, and that he had adopted a role of ensuring that nothing more would occur by intervening to prevent it. Implicit in the jury's verdict against Wilson, his Honour said, was:

"... a finding that you were never a party to any agreement to cause really serious injury to [the deceased]; nor were you guilty of aiding and abetting the perpetration of any violence inflicted with that intention. In reaching that conclusion, the jury must have taken into account your effort to prevent the assault on [the deceased] continuing."

63. In the result, his Honour imposed sentences upon Roba and Novosel of 15 years' imprisonment, fixing non-parole periods of 10 years, and a sentence of six years' imprisonment with a non-parole period of four years upon Wilson.

67. Roba and Novosel have applied for leave to appeal against the convictions recorded against them. Novosel also applied for leave to appeal against sentence; but at the outset of the hearing was given leave to abandon that application. On behalf of Roba, Mr. Holdenson argued only one ground, namely:

"2. That the verdict was against the evidence and the weight of the evidence."

Novosel was given leave to amend his grounds of appeal by the Registrar on 9 April 2002. The grounds, as amended, are as follows:

"1. The jury's verdict with respect to the count of murder ... was unsafe and unsatisfactory, in that: (a) the verdict was not supported by the evidence; or (b) the jury ought to have entertained a reasonable doubt as to guilt ...; 2. The jury's verdict of guilty with respect to the count of murder against the applicant was inconsistent with the ... verdict with respect to Wilson; 3. The learned judge erred in his directions in respect of corroboration; 4. The judge erred in failing to discharge the jury, notwithstanding the stance of counsel for the defence, following the prosecutor's re-examination of the witness Kevelj."

Mr. Morrissey argued each of these grounds save ground 3 with which, ultimately, he did not persist.

75. In support of Roba's application, Mr. Holdenson submitted that the evidence admissible against Roba was insufficient to allow the jury to find either that he had the necessary intent to kill or inflict really serious injury upon the deceased; and was insufficient to allow the jury to have excluded self-defence. He submitted that there was nothing in Roba's record of interview, nor in the evidence of Kevelj, which could have entitled the jury to find that Roba harboured murderous intent at any time before he entered the house. Such intent could not have been found, so it was submitted, from any one or a combination of the undisputed facts; such as the wearing of disguises, the carriage of the iron bar, the breaking down of the door, the subsequent disposal of the weapon, or the drive from Geelong to Drysdale in the early hours of the morning. All of these matters, it was contended, were consistent with Roba's stated intention to "scare" the deceased and to "bring Natalie to her senses". There was nothing in the evidence of Kevelj, it was submitted, which could have enabled the jury to conclude that Roba's intention at the point of entry to the house was other than he had told the police. Further, it was contended, the situation had then changed when Roba was confronted by the knife-wielding deceased calling out in confrontational tone, as Natalie had agreed - "come on, you fucks". In such circumstances, the "one or 2 jabs" with the iron bar, which Roba had admitted to the police in his interview (and which had fortuitously connected with a vulnerable part of the skull), could not bespeak the formation of murderous intent, and could not form an evidential basis for such a finding by the jury. It was not disputed that these were the injuries which caused death, and because the only sensible view of the evidence was that they were the first blows struck by Roba, it was not open to find that they were struck with murderous intent as distinct from a desire to "ward off" the knife. In other words, it was put by Mr. Holdenson that the evidence would not have entitled the jury to exclude, as a reasonable hypothesis, that Roba did not have murderous intent at the time when these blows were struck. Further, so Mr. Holdenson submitted, the evidence was such that the jury could not have been satisfied that, at the time these blows were struck, Roba was not acting in self-defence. The consequence of the acceptance of these submissions, Mr. Holdenson submitted, is that the Court should set aside the conviction recorded against Roba and enter a verdict of acquittal of both murder and manslaughter.

78. It was also submitted by Mr. Holdenson that the multiple injuries which the evidence suggested had been sustained by the deceased could not establish murderous intent on the part of Roba at the time when the relevant blows (that is, the two jabs with the end of the bar) were struck. He submitted, correctly, that the relevant intent had to co-exist with the blows which caused death, and that it was inconsequential that Roba "might have lost his block" after that and inflicted further blows upon the victim. This, so he submitted, was a "further and alternative hypothesis".

81. Whilst the evidence against each of the accused was, in some respects, vague as a consequence of the rapidity with which the events had clearly unfolded, I am far from persuaded by Mr. Holdenson's arguments that the verdict of the jury against Roba was not supported by the evidence. A view that the evidence was not capable of supporting verdicts of murder was not one shared by the experienced counsel who appeared at the trial; nor does it appear to have been shared by the experienced trial judge whose directions to the jury were not the subject of exception at trial, and have not been the subject of any ground of appeal taken by Roba. In my view there was ample evidence upon which the jury could have been satisfied, to the requisite standard, that Roba had an intention to kill or cause really serious injury at the time of entering the house of the deceased, and certainly at the time when he was assaulting the deceased. The evidence supporting such a finding included:

i. Kevelj's evidence that, during the car journey, Roba and Novosel were talking about "teaching [the deceased] a lesson" and "bashing him around a little";

ii. The evidence of Kevelj that, outside the house, Roba and Novosel were "hyped up";

iii. The timing of the visit to the deceased's premises, the acquisition by Roba and Novosel of the disguises and the weapon which ultimately became the weapon used;

iv. The wearing of the tracksuit over-pants capable of being discarded;

v. The violent breaking into the deceased's house after the deceased had told them he was going to call the police;

vi. The evidence of Natalie that, having burst into the house, Roba went straight across the room to where the deceased was standing holding a knife, and then of hearing sounds of "metal on metal" or "wood on wood" coming from the sun-room for a short period before Roba emerged unscathed;

vii. The evidence of Kevelj that he could hear the sounds of a girl screaming, and a male voice (not recognized as one of the accused) yelling "No, No, No";

viii. The vast array of injuries inflicted upon the deceased over such a short period of time, many being consistent with infliction by the iron pipe;

ix. The fact that no injuries were suffered by Roba or his co-accused apart from Novosel who suffered from "friendly fire";

x. The fact that Natalie was restrained whilst the beating was administered and was then warned "never to come back to Clonard Avenue" was, in itself, evidence inconsistent with the proclaimed intention to "give the deceased a scare";

xi. The fact that the accused left the house leaving behind a man whom they knew to be badly injured without calling for assistance, and disposing of weapons and disguises on their way home;

xii. Kevelj's evidence that, after leaving the house, Roba told his compatriots that not only had he hit the deceased with the iron bar, but had "punched and kicked" him (although he said in cross-examination, he was not sure about "kicking").

The factors to which I have referred provided an ample evidentiary basis, in my opinion, to support the jury's finding that Roba had the requisite murderous intent at the time he struck the blows which led to the deceased's death. The jury was not bound to find that the blows with the pipe to the temple were the first blows struck, or that they were delivered in the circumstances stated by Roba in his police interview. Indeed it would be surprising if the jury accepted Roba's explanation in that interview, particularly his statement that the "one or two jabs" were the only times he struck the deceased. Having regard to the totality of the evidence, this was not a case where it could be said that it displayed such inadequacy, or was so lacking in probative force that the appellate court, after making full allowance for the advantages enjoyed by the jury, should conclude that "there is a significant possibility that an innocent person has been convicted"[1].

97. Nor, in my view, was this a case where the jury could not, on the evidence before them, have rejected as a rational inference the possibility that Roba had administered the blows which caused death without murderous intent[2]. In my view, and upon the evidence to which I have referred, this was a case where it was well open to the jury to conclude beyond reasonable doubt that, at the time when the blows which caused death were struck, Roba was intending either to kill or do really serious injury to the deceased. The learned judge gave full instructions to the jury on the need to exclude all rational hypotheses consistent with innocence before concluding adversely to the accused essential elements of the offence charged. Having regard to their verdict, it is apparent that the jury were satisfied that - on the evidence which they accepted - there was no rational hypothesis consistent with "innocent intent". This is not a case like Knight v. R. where the accused was being assailed in his own domain and where the relevant intent which had to be proved was an intent to kill and a shot was fired in the course of a struggle, in circumstances that clearly could not exclude reckless discharge of the rifle. In this case the jury could have been satisfied of the relevant intent, at least to do serious bodily injury, simply upon the number and nature of the wounds inflicted. Certainly, in my view, it would not be open to this Court to conclude that, upon the evidence, the jury could not reasonably have concluded that Roba harboured the relevant intent at the relevant time. Of course, as I have said, it is true that the particular act which causes death must be proved by the prosecution to have been accompanied by the relevant intention - that is, that act and intent must coincide[3] - but it is also true that the jury are entitled to look at the whole of the circumstances in determining whether the acts which caused the death were inflicted with the relevant intent[4]. In this case there was no basis, to be found in the evidence, upon which the jury could reasonably have concluded that Roba harboured differential intents at different times during his short but violent attack upon the deceased.

100. I am also of the view that there is no substance in the contention, made on behalf of Roba, that it was not open to the jury to conclude that the prosecution had excluded self-defence. That submission proceeded on the basis that, although Roba had bashed his way through the front door of the deceased's premises after being told that he would not be admitted, he nevertheless ceased being the aggressor and became a defender when he saw the deceased holding a knife at the rear entrance and uttering words to the effect of "come on, you fucks". Although there was doubt about the precise location at which the assault on the deceased commenced, and whether the deceased had taken a step towards the advancing Roba, it was well open to the jury to have concluded that, from the moment that Roba and his compatriots had forced their way into the house, they did not pause or take a "backward step" before Roba first struck the deceased in the vicinity of the entrance to the rear sun-room. Indeed, it was Roba's statement to the police that he could not retreat because he was "disoriented". Furthermore, there was nothing in the evidence of Kevelj or in Roba's police interview to suggest that, in the conversations which followed the event, Roba had said, or even hinted, that it had become necessary to defend himself against the threat posed by the deceased.

103. It is in my view not surprising that the jury concluded that the prosecution had excluded the possibility of self-defence. It has not been suggested on this appeal that his Honour's directions to the jury on this aspect of the case were, in any way, less than sufficient. Indeed, the judge accurately placed the question of self-defence in its appropriate factual setting and reminded the jury that it should approach its task on this issue in a practical manner. Amongst other things, he told the jury that in the circumstances which existed in this case, where Roba was the original aggressor and had provoked the deceased into taking up arms to defend himself, his de-facto and his premises, it was necessary for the jury to consider whether the original aggression had ceased so as to have enabled Roba to form a belief, based on reasonable grounds, that his actions were necessary in self-defence[5]. In the face of the unchallenged and accurate directions given by the trial judge, it is not surprising that the jury concluded that the prosecution had excluded self-defence upon the evidence before them. In my view, the judge was correct, when ruling that he would leave the issue to the jury, to have categorized it as "weak and tenuous". It follows from what I have said that it is not open to this Court to now say that the jury could not reasonably have excluded the possibility that Roba was acting in self-defence when inflicting the blows which caused death.

107. These grounds assert that the verdict against Novosel is unsafe either because it was unsupported by the evidence or because the jury ought to have entertained a reasonable doubt as to Novosel's guilt. It is further asserted that the verdict is inconsistent with the verdict of manslaughter returned against Wilson.

110. Mr. Morrissey submitted that there was no basis to be found in the evidence upon which a reasonable jury properly instructed (as this one was) could have found that Novosel had acted in concert with Roba or had aided and abetted Roba's crime. He submitted that the evidence could not establish any agreement or understanding, to which Novosel was a party, pursuant to which it was agreed that the deceased should be killed or the victim of really serious injury. It was put that the evidence was far too vague to establish, to the requisite standard, an agreement of that sort, notwithstanding that Novosel was carrying a knife, had threatened to use it to "cut the leg" of the deceased and had participated in the conversation in which it was said that the deceased was to be "bash[ed] around a little" and "roughen[ed] up a bit" to "teach [him] a lesson". It was put that the jury could not reasonably have concluded that, at the time when they entered the house, there was any plan between Roba, Novosel and Wilson to do more than "put a scare" into the deceased and that the undisputed facts of going to the house in the early hours of the morning, armed and in disguise, and forcing their way in would not and could not have entitled the jury to find that the plan was otherwise; and certainly would not have entitled them to conclude that there was a concerted plan to which Novosel was a party that really serious injury was to be inflicted upon the deceased. The evidence against Novosel, it was submitted, was too lacking in credibility and contained too many discrepancies and inadequacies to have enabled the jury to find beyond reasonable doubt the existence of such an agreement between Novosel and Roba[6]. The fact that Kevelj was an accomplice and was clearly an unsatisfactory witness, so Mr. Morrissey contended, rendered the evidence of any such agreement even less reliable - particularly his evidence that Novosel had spoken of "cutting open the leg" of the deceased.

113. Further, so it was submitted, there was no sufficient evidence upon which the jury, acting reasonably, could properly conclude that Novosel aided and abetted Roba. It was submitted by Mr. Morrissey that the jury ought to have entertained a reasonable doubt on that issue. This submission rested largely on the evidence of Natalie Roba, the thrust of which was that, when the three men burst into the lounge-room, the shorter one (conceded to be Novosel) came straight to the bed where she was kneeling and took hold of her whilst the other two went to where the deceased was standing, knife in hand, at the doorway leading into the rear sun-room. She had recognized the voice of her brother when he had tried to gain entry by pretence; and she had told the deceased not to let them in. The deceased had gone into the kitchen and, then, to the rear room when the door burst open. Three men came in, Roba carrying the iron bar; Novosel was next to him and Wilson behind. Natalie believed that Novosel and Wilson were each carrying "something". What occurred thereafter happened quickly, but it was her evidence that the "shorter man" came straight from the door to restrain her on the bed whilst her brother and the other man went to where the deceased was standing. In cross-examination, counsel for Novosel put it to her:

Q. "Of one thing you are clear, the man that came to you on the bed never went into the back room?"

Q. "And at the time that you heard [the deceased] speak the words that you're being asked about [that is `come on you fucks'] that man was with you?"

Q. "... All right. And the man who was with you left before your brother Paul re-emerged from the sun-room, is that correct?"

It was Mr. Morrissey's submission that, in the face of this evidence, the jury could not reasonably have concluded that Novosel had intentionally encouraged the beating given to the deceased by Roba in the rear room because he was not in a position to know what was happening in that room[7].

123. If Natalie Roba's evidence was the only evidence before the jury, admissible against Novosel, there would be much force in Mr. Morrissey's argument. But it was not. The jury were much more likely to have acted on Novosel's own record of interview in determining his role in the events which took place in the house, particularly having regard to the fact that Natalie Roba's evidence was characterized by uncertainty and inaccuracy as to many of those events, no doubt due (as the judge said in his sentencing remarks) to the traumatic nature of the circumstances with which she was confronted. From his own admissions in that record of interview (to which I have referred in paragraph [5]) the jury were, in my opinion, entitled to conclude, not only that Novosel entered the house to assist Roba in whatever way he could, but that he was present and encouraging Roba at least at the time when the latter commenced to beat the deceased with the iron bar and, knowing what was occurring, encouraged it by returning to restrain Natalie from ringing for assistance. It was clear from the evidence that Novosel was right beside Roba when he commenced to swing the iron bar at the deceased. That is what he told the police ("As we went in there ... [the deceased] pulled out the knife on Paul, and as we pulled the knife we kept on with him - Paul kept on with him. What I did I helped as in I went down the side of Paul - never touched him; he went backwards; he went backwards to the back door. [Paul] has gone to hit him and he's hit me. As he's hit me ... I ended up going to get the phone off his sister" (my emphasis).) Novosel told Dr. Eddy at the Geelong C.I.B. office on the day after these events that he had been struck by the bar and sustained an injury to his face, hand and thigh.

126. On this evidence the jury were entitled, in my view, to be satisfied that Novosel was aware of the assault on the deceased with the iron bar, was willingly encouraging it and, when hurt himself, continued to assist it by restraining Natalie. Mr. Morrissey submitted that such a conclusion could not have been drawn from the whole of the evidence. Novosel's record of interview, he submitted, was equivocal in that he later said that he was "not in that room" (that is, the sun-room) and that he did not know what happened and did not see what happened. However, those statements are not necessarily inconsistent with his previous statements. The jury were entitled to regard them as meaning that, once he had retired to restrain Natalie from ringing for assistance, he was no longer able to see what was occurring in the next door room. The jury were entitled to find that he was there when the assault was commenced, he was aware of and, by his presence, encouraged the attack on the deceased with the bar, and further encouraged its continuance when he moved to restrain Natalie.

129. If the jury were entitled to return a verdict of murder against Novosel on the basis that he aided and abetted Roba, as I think they were, it is unnecessary to determine whether they were entitled to return such a verdict on the basis of concert, which was the alternative basis upon which the Crown case was put.

133. It was next submitted by counsel that the verdict of murder returned against Novosel was inconsistent with the verdict of manslaughter returned against Wilson. Counsel recognized that an applicant who seeks to attack the jury's verdicts - particularly those returned against co-accused - on the basis that they are inconsistent, carries a considerable burden. Gaudron, Gummow and Kirby, J.J. said in MacKenzie v. R.[8]:-

"... the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly ... reluctance to accept a submission that verdicts are inconsistent in the relevant sense."

Where there is no legal or technical inconsistency in the verdicts, "a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts"[9].

138. In this case, where the admissible evidence against Roba's co-accused was significantly different, there is - in my opinion - no relevant inconsistency between the verdict returned against Novosel and that returned against Wilson. Because, as I have said, none of the accused gave evidence but relied upon their records of interview, the case against each, as the jury were told, had to be looked at separately in the light of the differential admissible evidence. When so regarded, the evidence provides a rational basis for the different verdicts against Novosel and Wilson. The evidence against Wilson, open to be accepted by the jury, was that he had arrived at the house of Roba shortly before the group left for Drysdale; that he was party to an agreement to inflict some injury (short of serious injury) upon the deceased; that he entered the house behind Roba and Novosel; that he had no weapon; that he did not follow Roba and Novosel across the lounge room to where the deceased was standing, but went to the left of the room to check the hall-way. He turned around when he heard a noise and he saw Roba and Novosel with the deceased, and Roba striking him with the bar at the entrance to the rear room. He then went across to that doorway and saw the deceased falling across the lawn mower which was in the room. When Roba went to hit the deceased again, Wilson intervened and stopped a further assault. There was independent evidence to support Wilson's claim that he had intervened to stop the further assault. On that evidence it was open to the jury to conclude that Wilson was party to an agreement that the deceased was to be assaulted, but not to an agreement that he should be killed or seriously injured. Acceptance of the evidence that he had intervened to prevent further injury to the deceased was no doubt the basis for the jury's merciful verdict, and their lack of satisfaction that he was party to an agreement or understanding beyond one which would found a verdict of "unlawful and dangerous act manslaughter". It was probably also responsible for the view taken by the jury that he was not aiding and abetting Roba's attack on the deceased. The verdict of manslaughter was consistent with the evidence against Wilson, his counsel's submissions and the judge's directions. In the circumstances there is, in my view, nothing in the ground that the verdicts against Novosel and Wilson are inconsistent, and I would reject it.

Misdirections in relation to corroboration and failure to discharge the jury

142. Mr. Morrissey did not persist with the ground asserting misdirection in relation to corroborative evidence. In the light of the fact that the directions had been discussed with counsel and that no exception was taken to them, it was - as it seems to me - a sensible course for him to adopt.

145. Counsel did, however, persist with ground 4 which asserts that his Honour should have discharged the jury following the re-examination of the witness Kevelj. This ground was pursued even though, as Mr. Morrissey conceded, Novosel's trial counsel had made a conscious decision not to press for such a discharge.

148. The prejudice was said to arise from the manner in which the prosecutor had re-examined Kevelj, who had demonstrated himself to be - during the course of cross-examination - a pliable and vacillating witness. In the course of re-examination the prosecutor asked the witness about a series of threats which had been made to him on the return journey from Drysdale. He said that these threats had been made to him by Novosel. He was then asked:

Q. "What was your reaction to the threat? How did you react to that?"

Counsel for Novosel submitted to the trial judge that this line of questioning was designed to implant in the mind of the jury that the Crown's "star witness" had been "nobbled" by the accused; and that that was why he had changed his evidence from time to time. Counsel for the other accused joined with Novosel's counsel in expressing their displeasure, but all refrained from making any application until they had had time to think about it. His Honour said that he regarded the question as inappropriate but did not regard it as conveying any more than the implication that Kevelj had been frightened by the actions which had been taken against him on the night and was still "scared". At the end of the day, no counsel applied for a discharge of the jury, no doubt because they regarded the answers which they had received from the witness as assisting their respective causes.

156. Mr. Morrissey submitted that, despite the attitude adopted by trial counsel, the prejudice to Novosel was "so overwhelming" that the judge should have acted on his own initiative to discharge the jury. The evidence, he said, had a variety of connotations including the implication that Novosel was a violent man of whom the witness was still scared. To this extent, it was submitted, the material damaged the character of Novosel and might well have affected the jury's assessment of his state of mind during the events in issue. It was further submitted by Mr. Morrissey that, even if the Court took the view that the ground should not succeed on its own merits, it should be prepared to take it into account, generally, when considering whether there had been a miscarriage of justice.

159. Although the question asked by the prosecutor was both inappropriate and unnecessary, there is no basis, in my opinion, for this Court now concluding that the judge should have discharged the jury or that the failure to do so has caused a miscarriage of justice. The judge took the view at the time that the question , whilst inappropriate, created little prejudice in the context of the evidence which was relevant and admissible against Novosel; and further was of the view that it was obvious to him, and no doubt to the jury, that the witness was doing his best to be truthful within the limits of his intellectual capacity. If this was the immediate impression of the impact of the question and answer upon the trial judge - and counsel did not demur - then there was no high degree of need for the discharge of the jury, as is now suggested by counsel in an arena remote from the trial[10]. Furthermore, the fact that the three experienced trial counsel made a studied decision not to apply for a discharge tends to confirm the judge's view of the impact (or lack of it) of the question and answer upon the proceedings. This Court must constantly bear in mind that the concept of a fair trial involves, inter alia, frequent decisions being made by experienced counsel on matters of evidence, practice and procedure and in accordance with what they perceive to be the best interests of their clients in the prevailing atmosphere[11]. Of course, it is true that the trial judge's ultimate obligation is to use his or her best endeavours to secure for the accused a fair trial; and it is also true that this Court must be astute to provide an appropriate remedy for apparent miscarriages of justice. However, for the reasons to which I have referred, it is apparent that neither the trial judge nor counsel perceived such unfairness or prejudice flowing from the prosecutor's inappropriate question to warrant a discharge of the jury in the circumstances; and - for my own part - I am far from persuaded that the trial miscarried because of the judge's failure to discharge them of his own motion.

162. It follows that I would dismiss the applications for leave of both Roba and Novosel.

171. The reasons of the President contain a detailed statement both of the relevant evidence before the jury and the arguments of counsel in the appeal, all of which I gratefully adopt. I can proceed at once to my own conclusions.

174. In relation to Roba, the arguments made in reliance on self-defence can, in my view, quickly be dismissed as fanciful. In Zecevic v. Director of Public Prosecutions (Vic.)[12], Wilson, Dawson and Toohey, JJ. said, with the concurrence of Mason, C.J., that -

"Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which bear upon the nature of the occasion and the use which the accused made of it. ... There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence."

In the present case Roba and his co-offenders kicked down the front door of the victim's house at dead of night, and broke in disguised and armed with an iron bar. Thereafter the victim took a knife to defend himself and Natalie Roba. He was clearly entitled to do so in the circumstances. There was no evidence to suggest that Roba took so much as a backward step, participating rather in an onward rush in which he was accompanied by Wilson and, initially at least, by Novosel. The attack occupied a very short period of time and the entirety of the evidence gave no basis for saying that the original aggression ever ceased. Roba certainly never declined further conflict or quit the use of force, nor did he retreat. Insofar as his answers in the interview with the police claimed that he was defending himself, the jury must have rejected the view that he had reasonable grounds for forming the belief that his actions were necessary in self-defence. On the whole of the evidence, this was, I think, the only view that the jury could properly have taken. I am inclined to agree with the submission of the Director of Public Prosecutions that the applicant was fortunate that self-defence was even left to the jury in the judge's charge.

179. There was an abundance of evidence, if the jury accepted it, that Roba at the time he broke into the victim's house had an intention at least to inflict really serious injury upon him. There had been talk of violence during the trip to Drysdale (for example, teaching the victim a lesson, and bashing him around a little) and Roba and Novosel were both "pretty hyped up" by the time the intruders entered. Mr Holdenson for Roba argued that Roba and Novosel's actions were consistent with an intention merely to scare, or make demands on, the victim and Natalie Roba, or to get Natalie out of the house and away from him. But the actions of Roba and Novosel in Drysdale, reconnoitring the house and kicking in the door after having been refused admission, were quite inconsistent with an intention merely to scare the victim, or merely to make either of the occupants listen to their demands. There was indeed no suggestion in the evidence of any attempt to communicate any demand to the victim, and the only demands actually made of Natalie were to be quiet, and not to return, on pain of death according to Natalie in her evidence-in-chief, to her parents' house. Insofar as it was suggested that the visit was made with the intention of getting Natalie Roba out of the house and away from the victim, no attempt at all was made to take her away when the intruders departed. The forcible entry into the house, Roba armed with an iron pipe and Novosel with a knife (albeit concealed), was followed by an immediate and evidently ferocious attack upon the victim, as shown by the number and nature of his injuries. Even if no predetermined plan had existed before the group arrived at Drysdale, it was plainly open to the jury to find that Roba entered the house with the intent to do really serious injury to the victim, and thus had the relevant mens rea at the moment of entry.

182. Reliance was placed upon inconsistencies in the evidence of Kevelj, and there were a number of these. He was clearly not an easy witness to handle, giving different versions of several matters, and agreeing too readily in cross-examination with a variety of propositions. The trial judge appears to have attributed this to a lack of intelligence on his part. But it was, I think, plainly a matter for the jury to evaluate his evidence and to determine in the light of the entirety of the evidence which parts of his testimony they would accept.

185. Mr Holdenson argued that the Crown's approach, that there was some evidence upon which the jury could draw inferences adverse to Roba, was not the proper question for this Court to consider. Rather, he said, relying on Knight v. The Queen[13], the Court must keep in mind the entirety of the evidence. But in my view it was the applicant, rather than the Crown, who sought to subject individual pieces of evidence to microscopic examination, taking the evidence piecemeal rather than as part of the whole. In light of the arguments made for Roba, the proper question for this Court[14] is whether the jury, acting reasonably, could have rejected as a rational inference the possibility that Roba, when he first attacked the victim in the back room, was acting without an intent to inflict really serious bodily injury upon him. In my view the jury were certainly entitled to do so, and, instead, to have been satisfied beyond reasonable doubt that he attacked the victim with the necessary mens rea to justify the guilty verdict.

188. It was contended that the facts in this case were very similar to those in Knight. I do not agree. In Knight the successful appellant, who had been convicted at trial of attempted murder, was resisting an intrusion by a group of some 15 to 30 people into the sports hall he was defending, a position comparable to that of the victim in this case, rather than Roba. Insofar as reliance was placed by Mr Holdenson on R. v. Meyers[15], contending that Roba was not shown to have the necessary mens rea at the time the very first blows were struck, this contention also cannot be made good if the jury were entitled to conclude (as I think they were) that Roba had the relevant intent when he entered the victim's house, and to reject as a reasonable possibility each of the various alternative hypotheses put to us by Mr Holdenson. In this regard the fact that Roba did not give evidence at the trial enables the relevant inference more safely to be drawn from the proved facts.[16]

191. Reliance was also placed on the view taken by the trial judge, expressed in his Honour's sentencing reasons, that the jury were unlikely to have found that there was a pre-existing agreement to inflict really serious injury upon the deceased at the time when entry to the house was first obtained. His Honour expressed the opinion that the jury would have found that the production of the knife by the victim was the prelude to the severe beating inflicted by Roba. Giving full weight to the opinion of this very experienced criminal judge, it was, with respect, open to the jury on all the evidence to take a different view.

194. There was, I think, more substance in the argument made by Mr Morrissey for Novosel that the verdict against his client was unsafe or unsatisfactory. It had never been suggested in evidence that he had struck the deceased, and there was no clear evidence of any oral agreement made between Novosel and Roba to do serious injury to him. Furthermore Natalie Roba's evidence was to the effect that Novosel never went into the back room where the physical assault on the victim had occurred. The principal Crown argument was, however, that there was evidence which would have entitled the jury to find Novosel guilty of aiding and abetting Roba. Novosel had admitted going to the victim's premises to help Roba. He was carrying a knife and the evidence of Kevelj was that Novosel had said that if he went to the victim's house, he would use it to cut Filipovic's leg open. But the most incriminating evidence came from Novosel's record of interview with the police. Having regard to the lengthy answer quoted in paragraph [5] of the President's reasons above, it was open to the jury to say that Novosel was in the back room when Roba commenced his frenzied attack on the victim, that he was injured when the first blow was struck by Roba and that he left the room only to subdue Natalie Roba and prevent her from telephoning the police. The last eight lines of the answer quoted show Novosel saying that as Roba went to hit the victim (and, on the evidence, it must have been with the iron pipe), he hit Novosel instead. Mr Morrissey conceded that the reference to "Number 1" must have been a reference to Roba. After Novosel was hit, he then "ended up going to get the phone off his sister", which again can only have been to prevent her calling for help. On this version of events, Natalie Roba must have been mistaken when she said in her evidence that Novosel held her down immediately upon entering the house whilst her brother and Wilson went into the back room. But the evidence in totality and particularly Novosel's admission and his own injuries gave strong support to the view that Novosel was initially in the back room whilst Roba was hitting the victim with the iron bar, a version of events which it was plainly open to the jury to accept. If the applicant left the scene of the beating to hold Natalie Roba down, and to prevent her using the telephone to call for help, he would then have been guilty of aiding and abetting Roba in his actions, in any of the three forms of such involvement given by Smith, J. in his oft-quoted statement of what can constitute aiding and abetting in R. v. Lowery & King [No. 2][17].

197. This conclusion would by itself be sufficient to answer Mr Morrissey's first and principal ground. But in addition it seems to me that there was evidence upon which the jury could have convicted Novosel of acting in concert with Roba in the latter's attack upon the victim and without inconsistency with the jury's verdict that Wilson was guilty, not of murder, but of manslaughter. The evidence against Roba has already been discussed. Novosel had participated in lengthy discussions beginning in the early evening with Roba, and Wilson did not become party to these conversations until about 11 p.m. Novosel was a participant in the discussions in the car on the way to Drysdale in which there had been talk of violence. Then, at Drysdale, it was Roba and Novosel who, according to Kevelj, carried out the reconnaissance of the block around the victim's house. Novosel was present with Roba when the door was kicked in. He entered the house, disguised, wearing a balaclava and carrying a knife. Novosel's involvement had plainly been much more active than that of Wilson, and there was uncontested evidence that Wilson had tried to stop Roba from continuing his attack upon the victim. On all this evidence I should have thought that the jury would have been entitled to conclude that when Roba and Novosel kicked down the door of the victim's house and rushed towards him, they were acting in concert, having a shared intention at least to inflict really serious injury upon him.

200. Grounds 2, 3 and 4 of Novosel's application were not seriously pressed by Mr Morrissey. He accepted in relation to ground 2 that it would be difficult to contend that inconsistency arose as between Novosel and Wilson if the jury were entitled to convict Novosel on the basis of having aided and abetted Roba. Mr Morrissey did not persist with ground 3, which asserted misdirection in relation to corroborative evidence. In relation to ground 4, Mr Morrissey accepted that all counsel had made an informed decision, after weighing up tactical options, not to seek a discharge of the jury after the offending question had been asked in re-examination on the basis that they had achieved a considerable measure of success in their cross-examination of Kevelj. I agree with the reasons given by the President for saying that grounds 2, 3 and 4 of Novosel's application have not been made out.

203. In my opinion both applications for leave to appeal against conviction should be dismissed.

[1] M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 494; Jones v. R. (1997) 191 C.L.R. 439 at 451.

[2] cf. Knight v. R. [1992] HCA 56; (1992) 175 C.L.R. 495 at 503; Cutter v. R. [1997] HCA 7; (1997) 71 A.L.J.R. 638 at 642.

[3] Ryan v. R. [1967] HCA 2; (1967) 121 C.L.R. 205.

[4] Meyers v. R. [1997] HCA 43; (1997) 71 A.L.J.R. 1488 at 1489.

[5] cf. Zecevic v. D.P.P. (Vic) [1987] HCA 26; (1987) 162 C.L.R. 645 at 662-3.

[7] cf. Johnson v. Youden [1950] 1 K.B. 544 at 546 per Lord Goddard, C.J.; Giorgianni v. R. [1985] HCA 29; (1985) 156 C.L.R. 473 at 506 per Wilson, Deane and Dawson, J.J.

[9] Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316 at 357-8; R. v. Carter [2000] VSCA 6; [2000] 1 V.R. 175 at 194 per Charles, J.A.

[10] R. v. Boland [1974] VicRp 100; [1974] V.R. 849.

[11] Re Ratten [1974] VicRp 26; [1974] V.R. 201 at 214; R. v. Miletic [1997] 1 V.R. 593 at 597-8; R. v. Arundell [1998] VSCA 102; [1999] 2 V.R. 228 at 248-9 per Callaway, J.A..

[12] [1987] HCA 26; (1987) 162 C.L.R. 645 at 663.

[13] [1992] HCA 56; (1992) 175 C.L.R. 495 at 503-505.

[15] [1997] HCA 43; (1997) 71 A.L.J.R. 1488 at 1489.

[16] Cf. Weissensteiner v. R. [1993] HCA 65; (1993) 178 C.L.R. 217, 229.

[17] [1972] VicRp 63; [1972] V.R. 560 at pp.561-562.