Regina v Cakovski

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL list

1 Application has been made on behalf of the Crown for a ruling in relation to certain questions which the Crown seeks to ask of the accused in the present matter. Those questions relate to an incident which occurred at or shortly after 2am on 20 May 2001, some three and a half hours prior to the death of Mr Eugene Victor Petroff (the deceased) in respect of whose murder Daniel Cakovski (the accused) stands charged. The accused is alleged to have murdered the deceased by stabbing him at about 5.30 am on the morning of 20 May 2001 in Parnell Street Strathfield. The questions relate to a search of the accused by a police officer at Stanmore as a result of which neither a knife nor any money was found on the accused. 2 There is no issue in the trial as to the act of the accused being the cause of the death of the deceased nor that such death resulted from a number of stab wounds inflicted by the accused on the deceased. As counsel for the accused opened the matter the sole issue is self-defence, which the jury was reminded, has to be negatived by the Crown beyond reasonable doubt. 3 The accused has given evidence in his trial and is presently being cross-examined. In the course of his evidence in chief he said that the knife, Exhibit E, was obtained by him from the house of a friend in order to assist him to protect a Ms Sekulovska who the accused said phoned him from Bankstown R S L seeking his protection from attack and possible rape by an unknown person who was said to be in the vicinity of the club. The accused gave evidence that he was at the house of a friend when he received the phone call from Ms Sekulovska and that he took the knife from his friend's house and placed it in its sheath in the inside of his left leg held in position by his left sock. According to the evidence given by the accused there was no need to use the knife at the Bankstown R S L since there was no untoward incident involving Ms Sekulovska. 4 The evidence given both in the prosecution case and by the accused is that after the accused and Ms Sekulovska left the Bankstown R S L they travelled to Kings Cross where heroin was purchased and injected by both. According to the accused and Ms Sekulovska she drove the car which belonged to her to Strathfield and the accused said that he had gone to sleep. The way in which he was examined in chief was capable of the interpretation that the accused took no part in driving the vehicle to Strathfield. 5 The accused deposed to the fact that the knife remained on the inside of his leg held in position by his sock until he was kicked by the deceased. One of the kicks is said to have caused him to fall to the ground and at or about that time the knife fell out of his sock onto the ground. Seeing it and being, as he says, in fear for his life he unsheathed the knife and swung it on several occasions in the direction of or at the deceased. One of the swings of the knife caused a slash of the deceased's face but, according to the accused, he was unaware that any of the other actions by him with the knife had stabbed or caused other injury to the deceased. 6 The Crown has cross-examined the accused on the basis of a video recording obtained from a bank which had an automatic teller machine with a video recorder attached and was adjacent to the place at which the car in which the accused and Miss Sekulovska had travelled from Kings Cross to Strathfield had been parked. The cross-examination has suggested that the accused got the knife which was used in the stabbing from the car at a time shortly before the stabbing occurred. This was denied by the accused. 7 The questions concerning the incident in which it is said the accused was involved at about 2 am were objected to on behalf of the accused. As a consequence a voir dire examination was held. In the course of it Constable A J Venables produced two statements that he had made, one on 20 June 2001, one on 24 June 2002. In the earlier statement Constable Venables records that he was on patrol in Northumberland Avenue, Stanmore when he observed a red Holden Barina being driven the wrong way in that street, which is a one way street. The vehicle was stopped and the driver, the accused, was questioned. In the course of this questioning it emerged that the accused had no licence or other identification on him and when asked his name said he was Lou Balser. Radio inquiries revealed a number of police warnings in relation to a person of that name and that such person held no licence to drive in New South Wales. As a consequence the accused was arrested and, according to the first statement of Constable Venables he: " Conducted a search of him" (the accused) "regarding the warnings I received from the police radio. No item found on his person ". 8 After the accused had given evidence of the placement and retention of the knife in question in his left sock Constable Venables made the second statement in which he gave greater detail of the search that was conducted. In his second statement he said: "At about 2.15 am I informed Balser he was going to be searched prior to being placed in the rear of the caged vehicle before being conveyed to Newtown Police Station where further enquiries were going to be conducted. I placed Balser at the rear of the fully marked caged vehicle, spread his arms horizontal from his bodies approximately shoulder height and his palms turned outwards, stretched his legs and moved them approximately half a metre from the rear of the vehicle and turned his head to one side with his cheek resting on the rear of the vehicle. I started the search from around the neck region of his clothing running my thumb and index fingers around the inside and outside of the clothing. The arms area was searched next by scrunching the clothing along the inside and outside of the arm area. The back area was searched next by dissecting the back in quarters with the poet's palm of my right hand. The waist of the defendant was searched next by placing the thumb and index finger of both hands on the inside and outside of the outer garment and running them around feeling for objects from front to back. The defendant's lower body was searched last by scrunching up the clothing around the pocket region running a poet's palm on the inside of the groin region of the defendant. The ankle area of the defendant was the final area of the body to be searched. This was conducted by lifting the defendant's clothing approximately 20 centimetres above his ankle and running my hands and fingers around the inside and outside of the socks the defendant was wearing. At the completion of the search no item or identification was located on the defendant's person. A short time later I had a look on the inside of the car driven by the defendant with a torch trying to locate any identification on the floor of the vehicle driver's side front and rear and passenger's side front and rear no property located. A number of syringes and swabs were seen to be lying loosely on the rear floor of the vehicle". 9 In his oral evidence Constable Venables adhered in essence to the contents of his statements and, although it was suggested to him that no search was in fact made, he was quite definite that a search of the accused (then thought to be Lou Balser) had in fact been conducted. Constable Venables said that when he made his second statement he was unaware that it was required for a murder trial or for any proceedings involving the accused. The statement (Exhibit Y) is consistent with this, since it is headed "In the matter of: Lou Balser" and is shown as a "Statement of A. Venables in the matter of Lou Balser". Thus the significance of the search and what it was the Crown was seeking to prove as a result of the negative finding from such search were unknown to the constable when he made his second statement. 10 A search was also made by the constable of the vehicle which the accused had been driving when apprehended. The search was made from outside the vehicle, using a torch. Whilst a number of syringes and swabs was seen to be lying loose on the rear floor of the vehicle no other property was seen by the constable in the vehicle. The search was not a close or thorough search and is not inconsistent with an item or items been secreted in the vehicle or being inside the glove box which was not opened during the search. 11 Counsel for the accused has submitted that the evidence should not be admitted, first because the court would not be satisfied that any search of the accused was made shortly after 2am on 20 May 2001. In support of this submission it was put that Constable Venables was unsure and vacillated in his evidence in relation to the search or non-search of Ms Sekulovska. As a consequence it was submitted that his reliability as a witness was called into question generally. 12 The second matter was that the search of the vehicle was cursory and inadequate and consistent with the knife, Exhibit E, being in the vehicle but missed by the constable. The culmination of these submissions was that the probative value of the evidence of Constable Venables was not high. 13 Notwithstanding extensive cross-examination and the fact that Constable Venables gave his evidence without the benefit of reference to his first statement it is, in my opinion, clear that Constable Venables had a distinct recollection of the search and was emphatic that it had been carried out in the manner deposed to by him. It emerged from his evidence that the number of searches he has undertaken in the relatively short period he has been a member of the New South Wales Police Service is quite limited. One would therefore expect that the outcome of the searches as well as the fact they were undertaken would stand out clearly in the mind of this young officer. A search of the kind carried out by the constable almost certainly would have revealed the presence of a knife of the kind in question had it been in the left sock of the accused as the accused said it was in his evidence in chief. 14 For the purposes of determining the admissibility of the evidence I am satisfied that shortly after 2am on 20 May 2001 Constable Venables conducted a search of the person, including clothing, of the accused. This included lifting the accused's clothing well clear of his ankles and socks and running his hands and fingers around the inside and outside of both socks that the accused was wearing. Furthermore for the same purpose I am satisfied that no knife was then in the sock of the accused. I am further satisfied that no wallet or money was found on the accused's person in the course of the search. 15 The evidence before me establishes a search, the findings of which are inconsistent with the evidence of the accused in relation to the whereabouts of the knife between approximately 9pm on 19 May 2001 and shortly before the stabbing at or near 5.30am on 20 May 2001. That evidence is relevant to a matter in issue, namely self-defence. If the accused did not have the knife on his person at 2am it is the Crown case that he either obtained it from some place after 2am or that it was in the car but not on his person and that he took it out of the car shortly before the stabbing. Either version could be regarded by the jury as highly probative in relation to the issues before them and for the purpose of determining the admissibility of the evidence I would characterise its probative value as high. 16 Counsel for the accused further submitted that the evidence should be rejected pursuant to s 135 of the Evidence Act on two bases, namely:

(ii) it would be unfairly prejudicial. 17 In support of the first submission it was suggested it would be necessary to recall Ms Sekulovska and, depending on the answers in the course of the cross-examination of the accused, to call Constable Venables and perhaps his partner in the police patrol on the relevant morning. The evidence of the accused has already been given in relation to the placement of the knife. His further evidence would merely be to the effect he was not searched at all as suggested in cross-examination or was not searched adequately by the police in the early hours of 20 May 2001. This should not take a long time. Indeed one would expect it to be relatively short. Cross-examination (if the evidence were, by leave, to be led in chief) could be expected to be short. Whether Ms Sekulovska would be called in the Crown case or in the case of the accused is a matter yet undefined. The Crown case is closed but the matter raised is a discrete one and within the same timeframe as the evidence adduced to date in the trial. That is, it is within the period between 9pm on 19 May 2001 and approximately 5.30am on 20 May 2001. 18 The evidence of Constable Venables would take somewhat longer. His evidence in chief on the voir dire was short. Cross-examination was longer but not unduly extended. That evidence would be necessary in reply but only in the event that the accused did not clearly admit the substance of the evidence given by Constable Venables in cross-examination. If evidence were to be given by Constable Venables' partner it would be unlikely to be any longer than that of Constable Venables himself. All in all I expect less than half a day at most and more likely two hours would be involved in the additional cross-examination and evidence. 19 Since the evidence is relevant to what has been described as the central or sole issue in the case I do not think that spending such time on an issue of such a kind can properly be regarded as a waste of time. Certainly two hours in a trial of the nature and length of the present trial could not be described as an undue period of time, let alone an undue waste of time. 20 The second basis on which it is said that s 135 should be used to exclude the evidence is that it would be unfairly prejudicial to the accused. It is not all prejudice to which s 135 applies. In order for s 135(a) to operate there must be "the danger that the evidence might ... be unfairly prejudicial to a party". The unfairness relied upon on behalf of the accused is that the evidence will concentrate the minds of the members of the jury on the fact that the accused came to the attention of the police earlier in the evening because of a breach of the law. However, putting to one side for the moment the giving of a false name, the fact that somebody was stopped for driving the wrong way in a one way street would not, in my opinion, suggest significant criminality on the part of the accused nor in any way be really prejudicial to him. Indeed the fact that he was searched in such circumstances could possibly give rise to some sense of sympathy for a citizen who was stopped and searched by police for a mere traffic offence. 21 Counsel for the Crown has indicated he would cross-examine and, if necessary, adduce evidence in such a way so as not to reveal the giving of the false name or suggest any wrongdoing other than the commission of a traffic offence which led to an infringement notice being served on the accused. 22 In all the circumstances, given the high probative value of the evidence, I do not think that there is a danger of undue prejudice to the accused in such evidence and, accordingly, I am of the opinion that the discretion conferred by s 135 of the Evidence Act ought not be exercised so as to exclude the evidence. **********

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