R v Roba & Novosel [2002] VSCA 74

R v Roba & Novosel [2002] VSCA 74 - VSCA 2002 case summary — Zoe

[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.

[15]

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".

[16]

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".

[21]

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.

[33]

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.

[49]

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.

[65]

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.

[73]

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.

[84]

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].

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