R v Stojkovic [2004] VSCA 84

12. On 11 October 2001, Madraj Stojkovic was found guilty of murdering his wife. The offence occurred on 30 April 2000. Following plea hearings on 21 Feb 2002, 14 March 2002 and 31 May 2002, he was sentenced to 16 years imprisonment. He was ordered to serve a minimum period of 13 years before being eligible for parole.

15. Stojkovic has applied for leave to appeal against his conviction. His original notice of appeal relied solely on the ground that the verdict was unsafe and unsatisfactory. At the hearing of the appeal, he sought leave to add the following additional grounds:

Ground 2: The learned judge erred in refusing to admit the evidence of Dr Taylor.

Ground 3: The learned judge erred , in the particular circumstance of the case, in directing that it was not necessary to prove beyond reasonable doubt that the blows to the back of the head were struck whilst the deceased was lying on the floor.

Ground 4: The learned judge erred (a) in failing to disabuse the jury of the error in the prosecutor' s argument that self-defence was available only if the applicant had murderous intent and (b) in failing to re-direct on that issue as requested.

Ground 5: The learned judge erred in failing to give a propensity direction in relation to the evidence of "relationship".

Ground 6: The learned judge's observations and comments in relation to the witnesses Lidija Stojkovic, Marjan Stojkovic, Tomoslav Djordjorvic, Radoslav Vukovic and Zoran Spiric were unfair, tended to reverse the onus of proof and gave rise to a miscarriage of justice.

The matter proceeded on the basis that counsel for the applicant would be permitted to present his arguments on the substance of the proposed grounds. The Crown agreed to that course and responded to those arguments.

24. Counsel for the applicant relied upon each of the above grounds in combination in support of, and as particulars of, the first ground - that the verdict is unsafe and unsatisfactory. Accordingly, he commenced his submissions by addressing Grounds 2 to 6.

27. Before addressing the submissions made, I should briefly set out the accounts advanced by the Crown and the applicant about the circumstances of the alleged murder.

31. The Crown alleged that the applicant had punched his wife to the face and had either cut her or caused her to be cut by a sharp knife. The Crown alleged that he then struck her three times to the back of the head with a hammer fracturing her skull and causing fatal brain damage. The Crown alleged that at least one, if not all three blows, were occasioned while she lay helpless on the floor of the laundry. After the assaults, he placed a kitchen knife in her hand and telephoned 000.

34. The applicant in his record of interview and in sworn evidence alleged that his wife had attacked him with a knife, that they had struggled and, in the course of that struggle, he had picked up a hammer and hit her with it on the back of the head. He was unable to give an explanation as to why there were three blows to the back of the head. He maintained that the killing was an accident and that he had at all times acted in self-defence.

38. On 4 October 2001, in the course of the trial, counsel for the applicant obtained a Report from a psychiatrist, Dr Taylor on 4 October 2001. On the following day, submissions were made as to the admissibility of the proposed evidence of Dr Taylor. The learned trial judge ruled against its admission. For the purposes of the submissions and ruling it was assumed that Dr Taylor's evidence would accord with his Report.

41. It appears that Dr Taylor was provided with a Report by the deceased's GP, Dr Gost, a Report and the evidence of Professor Mashford together with the evidence given in the trial by the accused.

44. Dr Gost's Report had been received into evidence. It stated that he had been treating the deceased for depression. She had been complaining of anxiety and her mood being low. He had originally prescribed Aurorix but on 18 April 2000 discontinued that treatment and prescribed Zoloft instead. He told her that until she became used to it, it could cause agitation or mood change.

47. Professor Mashford, a clinical pharmacologist, gave evidence confirming that Zoloft can cause sleep disturbance and some degree of agitation - in about 6 percent of patients. He said that there were anecdotal Reports of marked stimulation, agitation, occasional seizure and risk taking behaviour. He gave evidence of two broad divisions of depression - unipolar and bipolar. He said that people with bipolar disorder range in behaviour from depression to hyperactivity and that antidepressants can have the effect of switching moods abruptly in such persons. He also said that mania and hypersexuality is a common characteristic and that aggression to themselves and to others is not uncommon. He was cross-examined by the Crown and when asked to agree to the proposition that there was no evidence that the deceased suffered bipolar disorder replied "I agree there is no evidence that she did and none that she didn't".

50. Prior to this evidence being led, there had been evidence as to the behaviour of the deceased from her daughter and her son and from family friends. Subsequently there was evidence led from three witnesses called for the accused (Djordjorvic, Vukovic and Spiric) about aggressive behaviour on the part of the deceased and involving the handling of a knife a few days before the incident. Dr Taylor had not had the opportunity to consider the evidence of these witnesses. In considering the accused's evidence, however, he would have considered the accused's account of the same incidents.

53. Dr Taylor's Report contained a statement regarding the nature and symptomatology of bipolar mood disorder. It also considered the relationship between an antidepressant medication Zoloft and bipolar mood disorder. The Report concluded with several propositions:

* that it is not uncommon for pathological elevation to occur with Zoloft in persons with an established diagnosis of bipolar mood disorder;

* that research literature on diagnostic shift is not plentiful, but his clinical experience is that approximately 50 percent of persons who later are diagnosed as suffering bipolar disorder initially present with a depressive episode ;

* that some of the deceased's symptoms described including disinhibition, increased sexuality, irritability and aggression, were consistent with a diagnosis of hypomania or mania and he noted that her treating doctor had Reported sleep disturbance, anxiety and disturbance of mood. He stated, however, that without being able to examine the patient it was difficult "to be more conclusive in this regard".

59. As appears from the transcript of the trial, and as conceded by counsel for the applicant, there were two bases on which counsel for Stojkovic submitted to his Honour that the evidence of Dr Taylor would be relevant. One was that his opinion about the symptoms of the deceased was consistent with a diagnosis of hypomania or mania and would assist the case of the accused by rendering more probable his account of the behaviour of the deceased. The other basis was that it was open to the jury to find that the deceased was taking Zoloft and that Dr Taylor's evidence about the possible side-effects also rendered more probable the accused's account of the deceased's behaviour. In other words, this evidence was said to be indirectly relevant to the issue of the behaviour of the deceased at the critical time and so was said to lend support to a rational hypothesis consistent with innocence.

62. Prosecuting counsel argued in essence that Dr Taylor's evidence could only be relevant if the jury accepted the evidence of the relevant points of the accused and the three male witnesses on the earlier occasions and that if the jury was satisfied of that evidence, calling Dr Taylor would not take the issue any further except perhaps to produce a label and it did not add to the evidentiary equation at all. He also submitted that it was speculative in that the jury would not be able to take the issue further than what was said by Dr Taylor and he could not resolve the issue. He also submitted that there was no evidence before the jury that she had consumed any Zoloft. At most there was evidence of a prescription and no evidence that it had been filled out. Apparently the toxicology Report stated that there was no evidence of alcohol or any other drug or poison in her body at the time of death.

65. In reply, counsel for the accused submitted to His Honour that the learned prosecutor's argument that there was no need for the evidence should be rejected because the evidence added to the mosaic of evidence on which the accused relied. As to the issue whether she was taking the Zoloft, counsel submitted that the jury was entitled to infer that she was. There was then a discussion between counsel and His Honour as to the drawing of such an inference. He conceded that the issue of whether there was Zoloft in the deceased's system at the time of death was not taken up with the pathologist whose evidence was simply that no drugs were found.

68. His Honour reserved his decision and gave it the next day. His Honour noted that

"In effect, the thrust of Dr Taylor's evidence is that some of the signs displayed by the deceased, particularly in the days immediately prior to her death, were consistent with a diagnosis of hypomania or mania."

"Dr Taylor's evidence, of course, depends upon the evidence of that behaviour being accepted by the jury, that is the evidence of the accused and/or the evidence of Mr Vukovic, Mr Djordjorvic and Mr Spiric."

74. His Honour referred to the argument put forward by counsel for the Crown that Dr Taylor's evidence could only be relevant and admissible if the jury accepted the above evidence to which Dr Taylor had access and that if the events described by those witnesses happened his evidence was not relevant as going to any issue and, if they did not happen, there was no basis proved for his opinion.

77. His Honour did not rule the intended evidence inadmissible on the basis of this argument. It did not, in fact, provide a basis for ruling the evidence inadmissible. It is true that the relevance of Dr Taylor's opinion depended in part on there being evidence which the jury could accept about conduct of the kind described by the three men in particular. The situation, however, was one of provisional or conditional relevance[1] and the fact that its relevance depended on the acceptance of other evidence did not, as the Crown appeared to argue, render it inadmissible.

80. After completing his summary of counsel's arguments, his Honour stated that the evidence did not prove Mrs Stojkovic was suffering from bipolar mood disorder. The evidence was that the conduct described was "consistent with one part of the diagnosis of the psychiatric clinical syndrome". His Honour then stated

"I was initially attracted to the possibility that Dr Taylor's evidence may have enabled the jury more easily to accept the proposition that the prescription of Zoloft by Dr Gost and its subsequent ingestion had revealed an otherwise formerly hidden syndrome of bipolar disorder. However, again, such a conclusion has two problems about it. Firstly, it is no better than the conclusion to which I have already referred as being derived directly from a belief in the evidence which has already been given, and more importantly, it involves a number of speculative leaps rather than legitimate inferences. Having considered all of these matters and having considered the principle that even where there is some doubt as to the admissibility of evidence the benefit of that doubt should be given to the accused, I am unable to see how this evidence can be made relevant in this case. Accordingly, the evidence of Dr Taylor is rejected."

Thus, his Honour rejected the tender on the grounds of relevance.

85. Plainly, absent any evidence that any traces of Zoloft were found in the deceased's body, the second basis referred to above was not available to support the relevance of Dr Taylor's evidence. There needed to be some evidence on which it would be open to the jury to decide that she was in fact taking the Zoloft that had been prescribed.

88. The other basis advanced is more difficult to analyse. The argument advanced for the accused appears to have been that the evidence of the deceased's behaviour raised the possibility that she suffered from a bipolar disorder and was exhibiting hypomania on occasions and the evidence of Dr Taylor supported that conclusion. That evidence, it was said, was relevant to the issues because it was possible that as someone possibly suffering from bipolar disorder, the deceased became hypomanic on the day in question and it was, therefore, possible that she had attacked the applicant with a knife.

91. In analysing the relevance of this evidence, it is important to bear in mind the distinction between logical relevance and legal relevance. [2] Evidence that has logical relevance may be excluded at common law as irrelevant because its weight may be so minimal that it does not add to or detract from the probability of the existence of the fact sought to be established. It may be more accurately described as "insufficiently relevant or too remotely relevant".[3] The ultimate question for his Honour was whether the evidence was sufficiently relevant.

94. The first question to consider is whether there was a logical connection between the evidence in question and any facts in issue. The question was whether the opinion of Dr Taylor could raise a reasonable doubt as to one of the elements.[4] For the accused it could be said that the evidence was logically connected because if evidence of the earlier incidents and the treatment for depression were accepted, Dr Taylor's opinion that the deceased could have been suffering bipolar disorder including hypomania could as a matter of logic render the evidence of what the accused said occurred marginally more acceptable. That, however, is not the end of the matter. The applicant must also demonstrate that the evidence was sufficiently relevant or, to put it another way, not too remote - was its weight such that it could "serve to add to or detract from the probability of the principle issue being established." [5]

97. At its highest, the opinion of Dr Taylor confirmed as a possibility, as had already been identified through the evidence of Professor Mashford, a clinical pharmacologist, that the deceased suffered from an undiagnosed bipolar disorder and that it was possible that she might, therefore, behave in a hypomanic fashion (in particular, behave aggressively) and that it was possible, therefore, that she could have behaved in the manner described by the accused if having a hypomanic episode. It might be said that to have a psychiatrist express an opinion about such possibilities could add to the weight of the evidence already given because the other expert lacked that qualification. But the Crown had not attacked the qualifications of the other experts. Its attack was on the basis that there was no evidence that the deceased in fact had a bipolar disorder. Dr Taylor, in his Report, frankly acknowledged that he could do no more than speak also of possibilities, he not having had an opportunity to examine the deceased. The logical connection to the fact in issue was very slight indeed. In those circumstances, I am not persuaded that his Honour erred in ruling that the evidence was not relevant.

100. If the above analysis be incorrect, nonetheless I am satisfied that no substantial miscarriage of justice actually occurred and the proviso should be applied.[6] The evidence of Dr Taylor would at best for the applicant have had an extremely marginal impact. It was very theoretical. The accused had, in any event, introduced to the jury the possibility of bipolar disorder through Professor Mashford, whose qualifications had not been challenged. It is extremely unlikely that evidence from Dr Taylor could have altered the evidentiary position created by Professor Mashford. Finally, it was the evidence of the three men as to the behaviour of the deceased in the few days before the incident that had the potential to influence the jury. It was factual direct evidence suggesting aggressive somewhat manic behaviour on the part of the deceased involving a knife. It was worth 100 psychiatric opinions. Further, the harsh reality for the accused was that the objective evidence of the injuries to the deceased ensured that the Crown would be able to negate self-defence and secure a conviction even if the jury was satisfied that the deceased was bipolar and had a hypomanic episode which triggered the incident.

Ground 3: Direction as to standard of proof and provocation

104. Criticism was directed to the following direction

"It is important for you though to realise that the Crown does not have to prove every fact it alleges beyond reasonable doubt; it has to prove the elements of the offence. For example, in this case the Crown says that the blows, some or all of them, were probably struck at the time the deceased was lying on the floor. That is a theory of how this death might have occurred. But it is not necessary for the Crown to prove that proposition beyond reasonable doubt..... It is important for you to appreciate that it is the elements of the offence which have to be proved beyond reasonable doubt, not every fact that is asserted, or every possible way in which the offence might have been committed. Some of you may take the view that you are satisfied beyond reasonable doubt that the blows were struck when the deceased was on the floor, some of you might be not so satisfied on that particular point, but you may be unanimous on the proposition that the elements of murder have nonetheless been made out, including the elements of intention, so that is an important point."

108. Later, His Honour summarised the address of defence counsel as follows

"He talked about Miss Brown's evidence and he suggested to you that the fact the deceased was struck when she was on the floor is an essential fact if you were going to find the accused guilty. It would only be an essential fact if you considered it to be an essential fact. As I pointed out to you before, in essence the only matter you have to be satisfied about beyond reasonable doubt is the guilt of the accused and any fact by itself that is indispensable to your chain of reasoning in reaching that chain."

Exception was taken to these directions. His Honour declined to redirect.

113. Counsel in the original written submissions filed in this application, submitted that this was an exceptional case where the jury should have been directed that the fact in question - whether she was on the ground when struck on the head - was one that the Crown had to prove beyond reasonable doubt.

116. In oral submissions counsel for the applicant abandoned this argument. He, however, maintained an alternative argument that it was inappropriate to choose the "floor issue" to illustrate the proposition that not every fact had to be proved to the criminal standard. Counsel submitted before this Court that his Honour in fact diluted the standard of proof.

119. I am not persuaded that there was anything objectionable in the choice of the issue and his Honour did not dilute the standard of proof. Similarly, I am not persuaded that his Honour undermined the standard of proof or said anything that might confuse the jury about what the law requires. Reference was made by counsel to the words of his Honour "any fact by itself that is indispensable to your chain of reasoning in reaching that chain." Assuming the transcript to be accurate, the second use of the word "chain" was an unfortunate slip but the jury would have understood his Honour's meaning.

122. Finally, under this ground, complaint is made that it seems to have been forgotten that if the jury found the deceased was on the ground when fatally struck, the defence of provocation was the stronger because it pointed to anger and loss of control. Counsel has submitted that the point should have been made but was not because there was no re-direction.

125. The accused did not himself raise the issue of provocation at the trial but it was put to the jury by the trial judge, and properly so. The opportunity was always there for counsel for the accused to ask by way of exception for this very point to be made by his Honour. For obvious reasons, the accused's case being one of self-defence, counsel would not have wanted his Honour to emphasise the fact that striking the deceased three times in the head when she lay on the ground pointed to anger and loss of control.

Ground 4: Failure to re-direct on self-defence

129. Counsel for the applicant submits that at the trial prosecuting counsel had submitted that the claim of self-defence and lack of murderous intent were inconsistent. Counsel further submits that his Honour, in his charge, endorsed that argument when summarising the addresses of counsel.

132. The first paragraph of the charge referred to for the applicant was the following:

"Mr Horgan says self-defence only arises if all the other elements of murder are proved. Self-defence involved the accused man believing on reasonable grounds that it was necessary to do in self-defence what he did. But he says he did not intend to do it, so self-defence is not an answer here. He says the Crown must eliminate self-defence if you considered that it is something that is possible."

In summarising the case for the accused, His Honour stated that counsel had put that

"The Crown must prove intent and must prove there was no self-defence. The prosecutor must leave you with no reasonable doubt about any element of the charge. If she was upright with the knife, then the Crown cannot prove no self-defence beyond reasonable doubt. Cannot be eliminated. These are the arguments Mr Langslow is putting. The law is that a person under attack does not have to weigh up to a nicety, just what is necessary for him to defend himself when he has only a split second to act. He acted subconsciously to stop her from attacking him. Perhaps now he wishes he had stabbed himself. It was all over in a split second. The defence is not accident. He said I did not intend to kill my wife. It is a way of knowing, Mr Langslow says, whether the defence of self-defence was genuine. A genuine person would always say this, he says."

Counsel sought a re-direction but His Honour declined to give any.

"Did the accused man believe on reasonable grounds that it was necessary to do in self-defence what he did?... The very statement of that proposition poses an insuperable difficulty to the defence in this case and shuts out, in my submission to you, members of the jury, any defence of self-defence that might have been available to him because he says I didn't intend it. Self-defence only arises when you do intend it. So you can't have it both ways. You can't say look, I did, I killed her in self-defence because I believed on reasonable grounds it was necessary if at the same time you're saying I didn't intend to it. The two don't lie together."[7]

Counsel for the accused in his address tackled this argument and in particular the argument that "Self-defence only arises when you have decided his act was intentional". Counsel stated

"That, I suggest, is wrong in law. For a start you are not obliged to approach what you are told are the elements of the charge in any particular order. You go straight to the matter relating to whether there is a lawful excuse, self-defence part of it, and say the prosecution can't prove when he has struck that he was not acting in self-defence. I put he plainly was and the prosecution have to prove beyond reasonable doubt that he was not".

Counsel for the applicant submits that there should have been a re-direction because the jury would have been left with the erroneous impression that self-defence and lack of intent could not sit together.

146. In the passages quoted from his charge, his Honour was referring to the positions taken by the Crown and the accused on the issues of intent and self-defence. His Honour did not state expressly that the prosecutor's argument was erroneous. On the other hand, he did not endorse it.

149. Ultimately, the adequacy of the charge must be considered in light of the whole charge. His Honour gave directions to the jury in the normal way at the start of his charge about his function in directing the jury as to the law and its obligation to follow his directions. His Honour directed the jury as to the law on the elements of murder and self-defence. He also gave the jury a document setting out those elements and in doing so made it clear that intent was an element the Crown had to prove and self-defence was something the Crown had to negative. Further, in directing the jury on the elements of manslaughter, his Honour directed the jury that self-defence was an issue that had to be considered if it came to the conclusion that intent to kill had not been proved and were considering the manslaughter alternative of unlawful and dangerous act. There was nothing in his charge that would have caused the jury to think that he had resolved the debate between counsel in favour of the Crown. Rather, the jury, if it had thought about the issue, would have concluded that his Honour had resolved the debate in favour of the accused.

152. If prosecuting counsel was arguing that an accused charged with murder cannot claim a lack of intent to kill or do really serious injury while at the same time claiming that he acted in self defence, his argument was incorrect. The Crown can fail on both elements in a murder trial. But I am satisfied that, in the present case, when the jury retired to consider its verdict, it was under no misapprehension as to the elements that were in issue and what it had to consider.

Ground 5: Failure to give a propensity warning

156. Counsel for the applicant referred to evidence led from the applicant's children about his relationship with the deceased, including examples of heated arguments and violence and the taking out of an intervention order by the deceased against the applicant. His Honour directed the jury that this evidence was simply relevant to provide a context "and perhaps provides an explanation" for what occurred.

159. Counsel for the applicant submits that his Honour should have given a propensity direction in relation to that evidence. Counsel submits that this was particularly important having regard to the applicant's reliance on the issue of self-defence and an observation made by his Honour in relation to the deceased that

"if someone is violent, I suppose, there is a propensity, it might be said, but it makes it more likely that she was violent on another occasion."

The evidence of the children did not suggest that the father was particularly violent and rather pointed to the mother as being the violent or aggressive partner. Further, his Honour invited the jury to ignore the evidence of the daughter. His Honour's comment about the violence of the deceased and any inference to be drawn from it in fact concerned the evidence of Djordjorvic, Vukovic and Spiric of aggressive behaviour of the deceased.

164. One can well understand, in those circumstances, that counsel for the accused would be happy with a situation that the jury had been told that the evidence of violent behaviour of the deceased was relevant via propensity reasoning to the issue of whether she had acted violently at the relevant time but nothing had been said to suggest that the similar reasoning process might apply to the evidence given by his children which, in any event, did not provide any real basis for reasoning via propensity against him. On balance, the directions given were to the benefit of the accused. It is understandable that no exception was taken.

168. Counsel for the applicant has referred to his Honour's comments on the credibility of the applicant's daughter and son and on the evidence of the three men who gave evidence of violent and odd behaviour of the deceased Counsel submits that, while his Honour was entitled to comment, the comments went too far.

171. His Honour did comment with some force particularly as to the evidence of the daughter. In each instance, the comments were favourable to the Crown and adverse to the accused. His Honour made it clear, however, that his remarks were comments and that the jury should form its own judgment. No exception was taken at the trial. This is particularly significant because it is the overall impact of comment that is important and the fact that no exception was taken confirms the impression gained from reading the transcript that nothing untoward occurred. His Honour gave the usual directions about comment and repeated them.

174. Counsel also referred to a passage in the charge dealing with the evidence of the three men

"Clearly the Crown has made an attack on these witnesses, to their veracity and you will have to determine whether they are telling the truth or not, although you must bear in mind the comments I made earlier, that ultimately it is what happened on the night that is of importance and you may - and this is a comment from me , a matter that you can take into account or not take into account like any comments I have made - you may think that these witnesses, even if they are telling the truth, painted a picture of woman who is violent and she may very well have been violent on the night in the way that the accused says, but that is not by any means the end of the case.... It is only one part of this very complex matter that you have to talk about."

178. Counsel has argued that his Honour emphasised that the jury would have to determine "whether they are telling the truth or not" and a little later, referring to the picture painted by them of the deceased, made a comment about the place of that evidence in relation to the issues - "even if they are telling the truth".

181. Counsel submits that the quoted words strongly implied that before the evidence of the witnesses could be taken into account, the jury had to be satisfied that the events to which they referred had occurred. Counsel submits that this reverses the onus of proof and undermines the standard of proof. Counsel submits that the jury should have been left with an understanding that if there was a reasonable possibility that these events occurred, then it added weight to the possibility that she behaved in a similar fashion on the night in question.

184. The argument ignores reality. It was a question for the jury as to whether those witnesses were telling the truth. The jury had to decide whether and to what extend it would accept their evidence. It then had to decide what bearing it had on the events of the night in question. The charge did not imply that before their evidence could be taken into account the jury would have to be satisfied that the events occurred. The judge, correctly, said the first question for them was whether they accepted the evidence of those witnesses.

187. Counsel for the applicant also submits that in commenting on the place of such evidence in determining what happened on the night, his Honour emphasised that what happened on the night was what was important and that the evidence of these other incidents was only part of a very complex matter. His Honour's comments may fairly be said to have been directed to down-playing the significance of the evidence of the three men. Views may differ on whether to make such comments, his Honour was entitled to make them and he made it clear that he was making comments. Again no objection was taken. This is understandable because his comments included a comment favourable to the accused that their evidence painted a picture of a woman who was violent and one who may very well have been violent on the night in the way the accused said she was.

191. The applicant, having failed to made out grounds 2 to 6, has failed to make out ground 1.

195. The applicant has failed to make out any of his proposed grounds. Leave to amend should be refused and the application dismissed.

[1] R. v. Josifoski [1997] 2 V.R. 68, 82.

[2] R. v. Stephenson [1976] VicRp 34; [1976] V.R. 376; R. v. Priest [2002] VSCA 215; Wakeley v. The Queen [1990] HCA 23; (1990) 93 A.L.R. 79.

[6] Crimes Act 1958 s.568(1).