R v Szitovszky [2009] VSCA 50

2 He has sought leave to appeal against that conviction.

3 Although the application was based upon a number of grounds, as a result of the conclusion we have reached there is, in the circumstances, need to address only one of them, namely -

4 Counsel, who appears on behalf of the Crown accepted, with commendable directness, that the jury verdict in this case was indeed troublesome, and that there was a serious question to be determined in this regard. Accordingly, it has been necessary for the Court to review carefully the evidence adduced in the applicant's trial and the case that the prosecution presented against him. Applying the test set out by the High Court in M v R[1] -

The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.

...

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

...

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[2]

5 The following outline has been prepared, in large measure, from the Summary of Evidence with which the Court was provided, which accords with the evidence adduced at the trial and concerning which there has been no controversy.

6 The applicant was 21 years of age at the time of the death of the deceased, who came to Australia in the 1960's. The Crown led evidence of past financial difficulties and instability suffered by the family, cumulating in failed business ventures and the loss of the family home on two occasions. They then lived in a succession of rented properties. The deceased also moved back to Hungary, his country of origin, on two occasions. There was evidence of family discord and Simon Szitovszky (the brother of the applicant) told of an altercation with his father when they were living in Wheelers Hill. The applicant was a student at Caulfield Grammar during this time and his mother worked long and hard hours in different jobs in order to pay his school fees. The Crown also led evidence of the behaviour of the deceased during their financial difficulties. He frequently argued with his wife and would spend all day in bed whilst she worked.

7 The applicant went on to complete his VCE at Caulfield Grammar and commenced studying a Bachelor of Arts at Deakin University in 2001. In 2002, he withdrew from the course, but did not obtain employment and spent his days at home, often staying up late in the night. The family moved to their home in Xavier Drive, Wheeler's Hill in July of 2003. By this time, the deceased had obtained employment as a bus and taxi driver. He would drive the bus in two shifts during the day, and then drive the taxi late at night and early in the morning. Mrs Szitovszky also worked two full-time jobs, often late into the night, as they attempted to pay the debts from their failed business ventures. The applicant, when interviewed by the police described his relationship with his father, the business failures and the fact that they moved house five times. He said that his father did not treat his mother well during that period and that he had a verbal confrontation with him. He stated that he hardly ever spoke to his father during his teenage years. He said that the deceased would stay in bed and smoke all day, whilst his mother worked to pay the bills. He stated this caused him to feel resentment towards him. In 2004, his father obtained a job and paid for a trip to Europe. The applicant claimed that thereafter their relationship had improved.

8 The deceased, was attacked outside the front door of his home, on 1 July 2004, at between 3.00am and 4.00am. He had apparently gone to check the computer in his taxi as to the availability of work when he was struck a number of times with an axe causing his neck to be partially severed.

9 The applicant, who was unemployed at the time, was residing with his parents. His mother, Helen Szitovszky, the wife of the deceased gave evidence that she worked during the day in a clothing store and at night with the ANZ bank as a cleaner, normally arriving home at around 10.30pm. She said that her husband would leave home prior to 6.00am as he had a permanent pick up job in his taxi.

10 On the day prior to the attack, the deceased returned home at approximately 9.13pm and sat outside in the taxi completing administrative tasks associated with his job. The applicant told police that he heard his father arrive home and that he went out and greeted him. The Crown, however, produced footage taken from the camera in the vehicle indicating that no one could be seen approaching the victim during the time he was parked outside. Mrs Szitovszky returned from work after midnight and went to bed at approximately 1.00am. She said that the deceased was asleep at this time.

11 The applicant told the police that he went to bed at approximately 10.00pm and had slept until about 2.30am. He returned to sleep and woke again at about 3.30am as their dogs were barking. He heard someone arguing, and a voice say 'Fuck you.' After the dogs finished barking, he went to the toilet, and then returned to bed. He found that he was unable to sleep and remained there awake. He noted, at 4.30am, that a light was still on downstairs. At about 5.00am, he dressed and went to investigate. He noted that the taxi was still parked outside and went to his parents' room. He saw that his father was not in bed. Finding the front door unlocked, he went outside and found his father's body lying on his back on the path by the front steps with an axe lying across his chest. His neck was on an angle. The applicant called 000 at 6.02am and, on instruction, attempted first aid. When he tilted his father's head, he discovered that his neck had been partially severed. The operator informed him that an ambulance was on its way and he went inside and woke his mother.

12 Some neighbours had heard the argument mentioned by the applicant. Two of them, Shane Taylor and Michael Pitts, gave evidence about hearing yelling in the street that night and each gave a brief description of the individual that he saw. The Crown contended that, although there were variations, each of these descriptions was consistent with the appearance of the applicant.

13 Again, the following outline of the evidence of each of these witnesses has been extracted from the Summary of Evidence provided to this Court.

Shane TAYLOR stated that**:**

He went to bed at midnight on 30 June 2004. His bedroom overlooks 17 Xavier Drive. He woke some time before 3.00am as he had an asthma attack and took his Ventolin in bed.

He then went back to sleep and woke about half an hour to an hour later. His wife woke him up and said 'Can you check that out?' It seemed like a lot of yelling, an argument. It sounded like male voices. He went to the bedroom window. He saw a guy walking from the garage at 17 Xavier Drive. He was at the driveway of no. 17. He walked to the corner and he was repeatedly yelling out, 'Fuck' loudly. He stood on the corner for a while then moved in a southerly direction down Xavier Drive. He seemed to be muttering under his breath when standing on the corner. He observed the man for about a minute and a half. He was wearing a beanie with thick brown horizontal stripes, a white hooded windcheater and long dark pants. He was roughly 180 cm tall, medium build and aged in his early to mid 20's.

It was a clear light and full moon but he couldn't really see his face. He was about 30 metres away. He did not hear any other voice. He heard dogs barking but wasn't sure where from.

On 6 July 2004 he went to a shopping centre and took photographs of a beanie and other items to show the police the type of clothing the male was wearing.

He went back to bed and stayed awake for 15 minutes. He did not hear any cars running or starting up in the vicinity.

On 2 July 2004 he and his wife were in their front room at around mid-morning. He observed a person at 17 Xavier Drive. A young male came out of the house and searched through the bushes and grass in front of the house. He went through all the bushes, bending over. He seemed to be looking for something. He then went back into the house. It was Chris. He had not seen him before but his wife told him that it was the youngest son of the deceased.

The Applicant came out again a short while later. He had rubber gloves on and had a tidy bin with him. He went to the front yard and washed the bin out with the tap by the tree. He washed it out quite thoroughly. He then went through the garage.

Cross-examination

He could not recall how the Applicant entered the garage but he went back through the garage.

Further Examination-in -Chief

The appearance in the build of the man he saw on the night of the murder and the Applicant who he saw in his front yard on 2 July 2004 was very similar.

Further cross-examination

He cannot be certain as to the colour of the pants the man was wearing but can say that he wasn't wearing shorts.

The witness described himself as being between 175 and 180 cm tall and that the man he saw was around the same height as him.

The tree in front of his house partially obscured his vision from the front room when he saw the Applicant in his front yard on 2 July 2004.

[He] described where he saw the man on the early hours of 1 July 2004 with the assistance of the overhead projector and the booklet of photographs. Agreed that his vision became more obscured by the greenery as the man moved up the street.

...

He could not see his hair as he was wearing a beanie. He saw mostly the left profile. He could not see his face. He believes it was a young man based on the sound of his voice, build and clothing. He was no more than 30 metres away. He believes dogs were barking when he made his observations.

...

It was broad daylight when he saw the Applicant in his front yard. He and his wife were in their front room and there was a curtain. The Applicant was initially out the front for only a short period of time but when he came out again and washed the bin out he was there a longer period of time.

Re-Examination

There was no obstruction to his view from the front room of the house.

On the night of the murder he observed the man moving. The tone of his voice, way he moved and build made him believe that he was a young man. He did not hear any vehicles running or starting up or driving away.

Michael John PITTS

On 30 June 2004, he was 16 years old and lived at 2 Para Court Wheelers Hill with his parents. He would occasionally say hello to Mr and Mrs Szitovszky. He had very little to do with the sons. He had only seen them 2 or 3 times as at 30 June 2004. His bedroom overlooks Para Court. He went to bed at about 1am and listened to music. His (sic) is not sure what time he went to sleep. He was woken in the early hours of the morning to hear a male voice yelling 'Fuck off, fuck you, get fucked'.

It was a loud and angry tone. He stood on his bed and looked out the window to see what was going on. He saw a male walking backwards 'giving the bird', screaming 'Go and get fucked, fuck off' a few times and was hurriedly walking backwards towards the end of the court. He was sticking his middle finger up, screaming very angry and loud. He saw him [for] 5 to 6 seconds before returning to bed.

It was a male aged mid-twenties with medium build. He had a fringe stuck up at the front with hair gel and his hair was fairly short and dark. He was wearing a white windcheater that looked baggy and dark pants. It was approximately 3am to 4am. He believes 3.40am or 3.50am to the best of his recollection. He did not hear any cars running in the vicinity or any dogs barking. He could not make out any facial features. He presumes the man had a darker ethnic complexion.

Cross-Examination

He did not recognise the man as he could not make out any facial features. He had never heard any argument taking place at the Szitovszky address prior to that day. The voice sounded both cocky and nervous. He did not see any stripes or writing on the pants.

14 The police, regarding the applicant as a suspect, conducted a covert operation under which an undercover officer 'Rick' approached him with the view of ascertaining whether he might be induced to incriminate himself. This occurred on 19 August 2005. 'Rick' told the applicant that he saw him kill his father and that he wanted money. The applicant reported this approach to his mother and then spoke with the informant telling him what had taken place and that 'Rick' had claimed that he had seen him hit his father in the front and then in the back. He denied that that had occurred.

15 It was accepted throughout the trial that the deceased had been murdered and that, for practical purposes, the only issue to be resolved was whether the Crown had established beyond reasonable doubt that the applicant was the murderer.

16 As counsel pointed out in his written submissions to this Court -

The Respondent agrees that the sole issue in the case was whether or not the Applicant was the person who inflicted the wounds on Peter Szitovsky which resulted in his death.

The Respondent concedes that there was no direct identification evidence to implicate the Applicant as the killer.

The Respondent concedes that there was no independent scientific evidence to link the Applicant to the killing of his father.

The Respondent concedes that the alleged lies of the Applicant were not relied on as a consciousness of guilt of having murdered his father. The lies merely went to the credit of his account in the various statements he made to police and in his Record of Interview. To that extent they only challenged the reliability of the account he gave, and did not amount to evidence of guilt.

The Crown's case was entirely circumstantial and consisted of the following strands, which it was contended, given appropriate weight and taken together established that the Applicant was the murderer:

The killing occurred between 3 and 4 am on 1 July 2004;

The deceased was killed near the front door of his home;

An axe was used by the killer to inflict about 14 blows in an attack that was frenzied and showed great anger;

The first and possibly the second blow with the axe was struck when the deceased was standing;

The Applicant had the opportunity to inflict the wounds because he was present at the house at the time the deceased was killed;

Neighbours heard an argument between two males between 3.00 and 4.00 am;

Two neighbours gave a description of a person they saw involved in the altercation

Shane Taylor - the person was wearing a beanie with thick brown horizontal stripes, a white hooded windcheater, dark long pants roughly 180 cm tall, medium build and aged in his early to mid 20's;

Michael John Pitts - male aged mid twenties with medium build, fringe stuck up at front with hair gel and his hair was fairly short and dark; wearing a white windcheater that looked baggy and dark pants.

Neither witness recognised the man or could make an identification;

Paul Edward Chase attended the scene and described the Applicant as approximately 170 cm, aged 20, short dark hair, medium build, wearing a green T-shirt and black track pants;

It was alleged by the Crown that there was animosity between the Applicant and the deceased which was based primarily on statements made by the Applicant to Mr. Woodcock;

Further, the Prosecutor suggested there was resentment that carried through to the time of the killing;

Further, it was put before the jury that the victim did not have set patterns of behaviour (the implication being that no one could lie in wait to kill him);

The victim had no known enemies.

On the basis of this evidence, the Crown asked the jury to infer:

The deceased was killed by someone who knew him;

The only person who had a grudge against him was the Applicant;

The Applicant knew the deceased's movements;

The Applicant was present near the scene at the time of the killing;

The Applicant roughly fits the description of the person seen arguing with the deceased

Obviously, it did not follow that because the deceased had no known enemies that there were none and therefore that 'the only person who had a grudge against him was the applicant'. Nor did it follow that, because the deceased did not have set patterns of behaviour,[3] no one could have been lying in wait for him. Again, it is difficult to see how the inference could be drawn, beyond reasonable doubt, even if the asserted circumstances had been established, that he must have been killed by someone who knew him.

17 As mentioned by counsel for the Crown, some reliance was placed upon statements made by the applicant to the police which, it was contended, were highly unlikely to be true and impacted upon the credibility of his version of events. They concerned, inter alia, such matters as whether he went out to meet his father when the deceased had arrived home on the evening before his death, his claimed reasons for failing to investigate upon hearing an argument when the voice of one of the participants resembled that of his father and his explanation concerning the discovery of his father's body. It was not contended before us that any of the asserted improbabilities in his version was incriminating, whether considered separately or in combination.

18 There was no forensic evidence linking the applicant to the commission of the crime. The murder weapon was not identified as having come from the house or linked with him. The prosecution did not rely on the searching of the garden or the washing of the bin as probative of anything and there was no post-offence conduct relied upon as going to consciousness of guilt. It was recognised by the prosecution that the similarities between the person seen by the witnesses, Taylor and Pitts, were insufficient to identify him as the perpetrator.

19 At heart, the Crown case depended upon the applicant's opportunity to commit the offence, claimed difficulties with his version of events, the asserted similarity of his appearance with that of a person seen arguing with the deceased and the presence of a possible motive.

20 With respect to the presence of a motive, the applicant had indicated to the police that he had, when he was in year 9 at school, felt resentment towards his father. There was no evidence whatever to support the inference that feeling of animosity had continued and he also told them that, in the twelve months prior to his father's death, their relationship had improved.

21 The relevant evidence was given by Detective Senior Constable Woodcock who spoke to the applicant in a police vehicle outside the home of the deceased shortly after 6.22am on 30 June 2007 and later took a statement from him, the relevant part of which reads -

A detective I think asked me what the problem was, I told him I had found my dad on the pavement and I thought he was dead. I was told to wait where I was. A uniform police member waited with me. Another detective came up to me and introduced himself to me. This detective took me over to a car nearby and I got into the rear passenger seat. The detective got into the seat behind the driver's seat. I then told the detective what I could remember. The detective was writing what I was saying down. During my teen years I didn't get along with' 'didn't' - sorry, I will start again, 'During my teenage years I didn't get along very well with my father. We hardly ever spoke to each other. He and my mother ran a clothing store chain. They had three retail stores in shopping stores and two stalls at markets. They lost all the retail stores and one of the market stalls, this caused them to go bankrupt, which caused my dad to go into a state of depression which required him to be medicated. He would stay in bed and smoke all day while mum was working to pay the bills. This caused me to feel resentment towards him and resulted in me not being able to talk to him. He wouldn't make an effort to get things back together and he had to move house five times. At one stage before he was medicated he wasn't treating my mother well which caused me to have a verbal confrontation with him. This would have been when I was Year 9 at Caulfield Grammar at Wheelers Hill. I never got physical with him. It was just verbal. This last year my dad had been getting himself back together. He got a job as a taxi-driver and was also driving for a company called Scope, a service for disabled people. Dad even paid for me, my mother and brother to go to Hungary this April. I was starting to communicate with him better, we were talking ...'

22 After careful consideration of the evidence in this matter, the Court has concluded that it was simply not capable of supporting the inference of the guilt of the applicant beyond reasonable doubt.

23 Accordingly, the verdict must be set aside and a verdict of acquittal entered.

[1] [1994] HCA 63; (1994) 181 CLR 487.

[3] Although, it should be noted, he normally did leave home before 6.00am.