R v Serrano [2009] VSCA 140

1 I agree with the orders proposed by Coghlan AJA and for the reasons he has given in his judgment.

2 I have had the advantage of reading the reasons for judgement of Coghlan AJA in draft. I agree with the orders which he proposes, for the reasons which he gives.

3 The applicant Apolonio Serrano seeks leave to appeal against his conviction for the murder of Milica Trailovic.

4 The applicant's trial commenced on 21 May 2007. The applicant, who had been on bail, failed to answer his bail on 4 June 2007. The trial continued in his absence and the absence of his counsel, and he was convicted on 15 June 2007.

Ground 1: The trial proceeding in the absence of the Applicant and his Counsel

1.1 This ground is only pursued in so far as it relates to Grounds 2 and 3 of this application.

1.2 It is recognised that a Trial Judge has a discretion to allow a trial to proceed in the absence of the accused.

1.3 Whilst this discretion should be exercised sparingly it is not sought to attack the Learned Trial Judge's exercise of such discretion in the circumstances of the [applicant's] case.

1.4 However, it is submitted that when error is alleged in the conduct of the trial - the absence of an accused and his/her Counsel may well

become relevant in the consideration of the alleged error.

1.5 In the [applicant's] case - it is alleged that the Learned Trial Judge erred in admitting the evidence of the witness Svraka as evidence that was capable of amounting to positive identification evidence in respect to items of clothing.

1.6 However once admitted it was imperative that appropriate directions be given to the jury concerning this evidence.

1.7 Ultimately it will be submitted that the directions given to the jury in respect of this evidence were inadequate.

1.8 The fact that such directions were given in the absence of the Applicant and his Counsel is relevant to the issue of whether the trial has miscarried as a result of these directions.

Ground 2: Admitting the identification/recognition evidence

2.1 The [applicant's] Counsel had objected to the admissibility of the evidence of the witness Svraka as it related to the purported identification of two items of clothing.

2.2 Essentially the objection went to the use of this evidence as positive identification evidence.

2.3 It was implicit in that objection that because of a number of aspects associated with the identification process - as evidence of positive identification such evidence was inherently unreliable and prone to error.

2.4 The aspects raised included:

(a) single photo presentation;

(b) expectation in the witness that the photo would relate to the alleged victim;

(c) the suggestive nature of the process;

(d) the damaged state of the items of clothing;

(e) the process took place nearly two years after the disappearance of the alleged victim.

2.5 It is significant that in the course of debate the Learned Prosecutor (at least in relation to the dress) disclaimed reliance on this evidence as evidence of positive identification.

2.6 It is submitted that the Learned Trial Judge erred in admitting the evidence as evidence that was capable of amounting to positive identification evidence.

2.7 At most it was evidence concerning the (same) type of clothing.

2.8 Following its admission it is submitted that the Prosecution were permitted to invite the jury to give such evidence a status that the evidence did not deserve.

2.9 Treated in this way the evidence formed a significant part of the case against the Applicant.

Ground 3: Inadequate directions

3.1 Despite the concession made by the Learned Prosecutor during the course of debate - ultimately the jury were invited to treat this evidence as evidence of positive identification.

3.2 As such it was necessary for the Learned Trial Judge to give a Domican type warning.

3.3 Such warning had to be framed with full regard to the fact that the Applicant's Counsel had not made a final address to the jury.

3.4 It is submitted that the warning that was given was deficient in a fundamental aspect.

3.5 There was expert evidence before the jury that discounted the possibility that these items could have been placed in the bushland area following the disappearance of the alleged victim.

3.6 Prior to their departure the Applicant's Counsel had already flagged that this evidence would be relied on to form a central attack on this evidence of positive identification.

3.7 That no mention was made of it as part of the identification warning.

3.8 That very significant omission should also be seen in light of the Learned Prosecutor's failure to refer to the expert evidence in his final address.

3.9 It is recognised that elsewhere in the charge the relevant evidence was summarised and reference made to a potential argument of Counsel.

3.10 However, the point of Domican warning is that the Trial Judge does not simply refer to the arguments of Counsel but lends the weight of his judicial authority to a process whereby the areas of the evidence that undermine the reliability of the identification evidence are fully exposed for the jury's consideration.

3.11 It is submitted that the expert evidence so seriously undermined the 'identification evidence' that it was essential that reference be made to it as part of the identification warning.

3.12 Such was the importance of the 'identification evidence' that in the absence of the accused's Counsel - such reference become an essential component of a fair trial.

3.13 So that whilst it may have been thought that the continuation of the trial in the absence of the Applicant and his Counsel would have caused little prejudice - in the end it can be said that such absence has contributed to a situation where the trial has miscarried.

Ground 4: Unsafe and unsatisfactory

4.1 It is not proposed to argue this ground of appeal.

Ground One is only argued insofar as it relates to Grounds Two and Three. That is because the directions complained of in Ground Three were made in the absence of the applicant and his counsel.

6 At some time near Christmas Day 2003, Milica Trailovic, whom, consistently with the jury's verdict I will call 'the deceased', disappeared from her home.

7 The applicant Apolonio Serrano was in a relationship with her at the time of her disappearance and had been for about two years. The deceased lived in her own home at 25 Skye Crescent, Endeavour Hills. The applicant stayed there on some nights, although he kept his own premises at Unit 7/186 Princes Highway, Hallam.

8 The evidence at the trial was such as to indicate that it was completely out of character for the deceased to go off somewhere without telling her friends and neighbours.

9 The trial also featured much evidence from which it might reasonably be concluded that Milica Trailovic was dead, although her body has never been found.

• A$55,000 and €1755 in cash were found in her shed.

• A large amount of her clothing and other personal items were left at her house.

• No arrangements had been made to sell or let the house.

• Contrary to certain statements attributed to her by the accused, she had made no arrangement to attend, nor attended, any conference with the Jehovah's Witnesses in late December 2003.

• No person with whom she arranged to travel to Sydney, this being another statement attributed to her by the accused, had been found.

11 When a detailed search of the deceased's house was conducted, the police discovered bloodstaining on a two seater couch in the loungeroom and around a dining table in the dining room area. A large blind appeared to be missing. They also found a tooth. In the garage the police found some carpet which had been removed from the dining room (about half the floor area). A broken dining room chair was recovered from behind the shed and one of the pieces of the chair was bloodstained.

12 Scientific evidence established that the missing tooth belonged to the deceased.

13 A forensic expert in bloodstain pattern interpretation gave evidence that the bloodstaining found in the house indicated that a person had received multiple blows with an implement in front of the west wall dining room window. The missing blind was likely to have been bloodstained.

14 The evidence of DNA profiling indicated that there was extremely strong support for the proposition that the blood samples taken from the dining room and from the removed carpet was the deceased's. There was moderately strong support for the proposition that the blood on one of the pieces of chair found at the rear of the shed was the deceased's.

15 Evidence that the carpet had been taken up and partly disposed of and that a blind was missing from the dining room window also supported the proposition that the deceased had been attacked in that room.

16 The applicant gave a number of versions of what happened to the deceased from late December 2003 onwards. He said that at her request he had dropped her off at Dandenong Plaza so that she could travel to Queensland. Over a period of time he gave a number of conflicting descriptions of that event. In some of them he had seen her leave and in others he had not.

17 A lengthy written statement was obtained from the applicant on 4 March 2009. He said that a week prior to the disappearance he and the deceased had visited a close friend of the deceased. The close friend had highly polished floors and the deceased decided she wanted the same. The carpet had been taken up in preparation for polishing. He said that on Boxing Day he had left the deceased at Dandenong Plaza. She said she was going to go to Queensland and would return on 5 January. She refused to say why she was going to Queensland or with whom. The applicant did not see her leave the Plaza. He remained at her house waiting for a telephone call from her, but she did not ring. He left her house on 22 January 2004 when he was asked to do so by the police.

18 After the various bloodstains were found at 25 Skye Road on 5 March 2004, a formal interview was conducted with the applicant at the Narre Warren Police Station. He said that he knew nothing about any blind being missing from the deceased's house and stated he had never sat at the dining room table.

19 On 9 March 2004, the applicant's premises and vehicle were searched. Some of the carpet from the deceased's home was recovered from the back of his vehicle and from his garage. A further interview was then conducted by police. The applicant said he had taken the carpet up at the deceased's insistence and some rolls of it had been disposed of in the rubbish. He denied any physical altercation with the deceased.

20 In late March 2004, the police obtained a warrant from the Supreme Court authorising the installation of a tracking device in the applicant's car.

21 Between 11.25pm and 11.37pm on 12 April 2004, the applicant's car was deduced as having been parked in a parking bay on the Princes Highway in Newborough, between John Field Drive and McGrath's track. The area near where the car was parked was searched on 22 April 2004. A number of items of relevance were found and photographed. They included a burnt brassiere, a burnt dress, a burnt top and a burnt shoe.

22 The size of the burnt clothing was 16 to 18 and the burnt shoe was size 9½. A check of the deceased's clothing at 25 Skye Road found it to be size 16 to 18 and her shoe size - 9½.

23 On 18 November 2005, the witness Zagorka Svraka was shown some photographs of the clothing which was found. She said that the top shown in photograph 13 was one which had been worn by the deceased for gardening and painting. The dress shown in photograph 14 was a dress which she recognised. The witness stated she herself had purchased a dress of the same pattern but a different colour prior to the deceased purchasing hers. Mrs Svraka said she had been shown the dress in photograph 14 following its purchase by the deceased, who she recalled also purchased the same dress in a different colour. The other dress referred to by the witness was produced as Exhibit 'H'. Mrs Svraka stated she had only seen the deceased wearing the dress shown in photograph 14 once and that was some time ago.

24 A final interview was conducted with the applicant on 7 October 2005. He continued his denials. He said that he did go to the area where the clothes had been found, he merely stopped there to go to the toilet or to have a rest. He accepted that the area where he stopped was away from Melbourne. He denied any knowledge of the tooth found in the house or of the bloodstaining or the broken chair. He said that the deceased was very strong. He again denied any knowledge of the missing blind in the dining room.

Ground 2 - Failure to exclude the evidence of Zagorka Svraka as to clothing owned by the deceased.

25 Prior to empanelment of the jury, his Honour the learned trial judge dealt with objections raised by counsel for the applicant. The first of the two matters argued dealt with the admissibility of the applicant's record of interview and the second dealt with the evidence of Mrs Svraka as to the clothes.

26 Objection was taken to the admissibility of that evidence on the basis that the 'identification' or 'recognition' of the items shown was largely captive, involving the police approaching the witness using suggestive language and with a single police photograph. It was submitted that the evidence should be excluded because it had been unfairly obtained.

In my view each of the matters to which Mr Rochford has referred are valid issues which are relevant to an evaluation of the potential weight and reliability of the evidence of the recognition by Ms Svraka of the garments in the photographs as the same clothing she had seen worn by Ms Trailovic. However, I do not consider that of necessity those circumstances render the evidence of so little probative force that I ought not to admit it in the exercise of my discretion.

Ultimately if I were to admit the evidence it would be essentially a question of fact for the jury to determine what weight, if any, it should give to the evidence. Indeed, Mr Rochford did not contend that I should exclude the evidence on the basis that it was of no or little probative value. Rather, as I have stated, his basic submission was that the evidence had been obtained in a manner which was so inherently unfair to the accused that I should not admit it. In effect his submission was that the method used to obtain the evidence was calculated, even if not intended, to have the effect that Ms Svraka would recognise the clothing in the photographs as the same as those she had seen worn by Ms Trailovic.

It is right to observe that the process by which Ms Svraka purported to recognise the garments in the photographs was less than ideal. However, I do not consider that singly or collectively the matters raised by Mr Rochford have so infected that process as to make it unfair to the accused to admit the evidence in the trial.

While, as I have stated, the process was imperfect, its shortcomings were not such as to necessarily have the effect that Ms Svraka did recognise the garments, whether or not that was a true recognition of them by her. Whether the process had that effect, or the extent to which that process affected the accuracy and reliability of Ms Svraka's recognition of the garments is, in my view, fundamentally a question of fact. However, I am unable to conclude that the process was so weighted or loaded that it would be unfair against the accused for the evidence to be admitted.

The issues raised by Mr Rochford are not complex and can be easily understood and appreciated by a jury. Furthermore, in admitting the evidence I consider that the authorities make it both desirable and indeed necessary that I give a direction in my charge to the jury as to the risks involved in that type of evidence. Both the Court of Appeal of Victoria and the Court of Appeal of New South Wales have indicated that a trial judge should give directions to the jury as to the general and specific shortcomings and risks involved where a witness from memory purports to recognise or identify an inanimate object as one which is relevant to an issue in the case. See R v Theos;[1] R v Kotzmann[2] and R v Clout.[3]

28 It was submitted that his Honour admitted the evidence as 'positive identification'. Whether or not the evidence was admitted as 'positive identification' by the learned trial judge is not absolutely clear, but his Honour was dealing with material in which a witness claimed to 'recognise' two items of clothing.

29 It can be seen from his ruling that the learned trial judge was aware of the relevant authorities and made reference to them. Once His Honour had decided that the material was admissible, the real question to be determined was what type of direction he would give. His Honour made it clear at [18] of his ruling:

In my view such a direction, given with the authority of my office, would sufficiently serve to underline to the jury the need to scrutinise the evidence with caution, bearing in mind in particular matters of the kind to which Mr Rochford has referred. I am confident that the jury would understand and adhere to such a direction. Indeed, that type of direction is commonly given to juries in a variety of cases involving issues of identification and recognition.

30 The evidence was admissible. Nothing has been pointed out in the hearing of this appeal to show that his Honour was wrong in admitting it into evidence. The real objection to the evidence in this Court was that due to the manner in which the evidence had been obtained, its prejudicial effect outweighed its probative value. It should be noted that that is not how his Honour was asked to deal with the matter. Since I regard his Honour's careful ruling as subsuming that objection, it is not inconvenient to deal with the matter and there is nothing which arises from putting the argument in that way which would effect the appropriateness of His Honour's ruling to admit the evidence.

31 The argument was put that because the evidence was treated as evidence of positive identification, the directions of the trial judge were rendered inadequate.

32 His Honour, in his original ruling, indicated that he would give directions to the jury about the matter. As soon as Mrs Svraka had concluded her evidence, his Honour gave a detailed direction about recognition and identification, and in it dealt with the criticisms which had been raised by Mr Rochford in his cross-examination of the witness. No exception was taken to the directions. It was in accordance with Domican v R[4] and a direction of the kind which would be expected in cases of 'positive identification'.

33 If this were not a positive identification case, that is, a case which might be dealt with on the basis of similarity, then a less powerful direction would have been justified.[5] That was not the manner in which this case proceeded. Counsel for the applicant at trial had always treated this evidence as 'positive identification' evidence and did so in his opening statement.

34 At the trial, Scott John Azzopardi, a botanist from the Victoria Police Forensic Services Centre, gave evidence. He had examined the clothes found at Newborough. He did so in September 2004. He expressed the opinion the 'clumps of moss represented, or the growth on the fabric and articles of clothing represented at least 12 months'. He went on to say that he could not say it was less than that.

35 The witness conceded in re-examination that nobody had done any studies on growth rates of moss on articles of clothing or pieces of fabric.

36 Mrs Svraka gave evidence in accordance with the summary above. In his charge, his Honour gave a complete Domican direction about the clothing. He returned to that subject when dealing with his summary of the evidence of Azzopardi[6] and he followed it immediately in his summary of the evidence of recognition or identification given by Mrs Svraka and the evidence on this subject from Detective Inspector Waddell who had shown the photograph to Ms Svraka. At the end of those two summaries, he gave a further 'identification' direction.

37 When separately dealing with the question of admissions by conduct, his Honour had told the jury that they could use disposal of the clothes as part of that material if they were satisfied beyond reasonable doubt that the applicant had disposed of the clothes.

38 The major issue raised in this Court was that his Honour did not include Azzopardi's evidence as part of his Domican direction. It is true that he did not do so, but there his Honour was dealing with the intrinsic matters about identification which had been an important part of the cross-examination of Mrs Svraka. But he did so by summarising first the evidence of Mr Azzopardi, following it with a summary of the evidence of Mrs Svraka and Detective Inspector Waddell, and then giving in summary form a further identification direction.

39 Counsel for the applicant submitted that the clothing was an important matter in the trial. It was of some importance. It was part of the circumstantial case, and it could never have been put higher than that.[7] Even if the analysis commenced with evidence of familiarity with the clothing, it was possible on the whole of the circumstantial case for the jury to be satisfied about the clothing beyond reasonable doubt in any event. The exercise proceeds somewhat like this. The clothing is similar clothing. The underwear and shoes are of appropriate size. It is found partially concealed in a place where the applicant parked his car for ten minutes at 11.23pm a few months after the deceased's disappearance. The matter is beyond coincidence to a very high degree.

40 His Honour treated the case of one which was either positive identification or recognition. As a matter of fairness he decided that a full Domican direction was necessary. He gave it. On two other occasions he gave a further direction about it. If there were dangers lurking in this evidence, the jury were well and truly warned about it.

41 The instructions were appropriate and no error has been shown. Nothing occurred which would enliven Ground 1. It follows that I would refuse the application for leave to appeal against conviction.

42 The applicant had also appealed against sentence. No submissions were filed and no argument was pressed on appeal. The sentence of 16 years with a non-parole period of 13 years was moderate in any event. This application should also be refused.

[1] (1996) 89 A Crim R 486, 494-5 (Tadgell JA).

[2] [1999] VSCA 27; (1999) 2 VR 123, 144-5 (Batt JA).

[3] (1995) 41 NSWLR 312, 322 (Kirby ACJ).

[4] [1992] HCA 13; (1992) 173 CLR 555.

[5] See Festa v R [2001] HCA 72; (2001) 208 CLR 593.

[6] His Honour's summary was of two and a half pages in length when Azzopardi's evidence was only a total of six pages in any event.

[7] Except as it related to post offence conduct, see [38].