The Queen v Novakovic & Ors

1 In the early hours of Saturday 9 September 2017, Deni Dimovski was stabbed in the chest and killed during the course of an assault in the kitchen of the Korzo Grill House in Caroline Springs.

2 As a result of that incident and of the events that preceded it, most of which were captured on the restaurant's CCTV cameras, Milos Novakovic, Milan Jovic and his brother Sasa Jovic have been indicted in this Court on charges of affray, aggravated burglary and murder.

3 The prosecution case is that Mr Novakovic is the principal offender, particularly in respect of the alleged murder. Mr Novakovic accepts that he unlawfully inflicted the stab wound that caused Mr Dimovski's death. Indeed, he intends to plead guilty to manslaughter before the jury. But he denies that he possessed the intention to kill or cause really serious injury required for murder, and will therefore plead not guilty to that charge.

4 The prosecution case against the Jovic brothers, who will plead not guilty to all charges, is that they are guilty of murder by way of complicity. In particular, it will be alleged that they assisted or encouraged Mr Novakovic to commit murder or, alternatively, that they assisted or encouraged him to assault Mr Dimovski and were aware that it was probable that murder would be committed in the course of carrying out the assault.

5 Pursuant to s 19(1) of the Jury Directions Act 2015 (Vic) ("the JDA"), the Director of Public Prosecutions has given notice that the prosecution intends to adduce evidence that the prosecution proposes to rely on as evidence of incriminating conduct in the case against Mr Novakovic.

6 After some refinements made in the course of oral submissions, the alleged conduct relied on by the prosecution was reduced to two categories and several sub-categories of conduct. First, it is alleged that, on 9 and 10 September 2017, Mr Novakovic used his sister's mobile phone to make numerous searches for information on the following topics or related topics:

5. transferring money and transferring ownership of his house into his mother's name;

6. "are you allowed to leave the country if you're a suspect";

7 The second category of conduct relied on is that, at about 1:00 p.m. on Sunday 10 September 2017, Mr Novakovic suddenly announced to his mother and his sister that he was going overseas on a holiday to Serbia and that, later that day, he went to Melbourne Airport and prepared to board a flight bound for Belgrade, in Serbia (via Qatar).

8 Mr Doyle, who appears with Ms Warren for the Crown, made it clear that, in view of Mr Novakovic's proposed plea of guilty to manslaughter, the prosecution's only purpose in leading the evidence of incriminating conduct would be to assist in proof of the only element of murder left in dispute - namely, murderous intent.

9 The application is governed by the provisions of the JDA.

10 Relevantly, ss 18, 20 and 21 of that Act provide as follows:

"conduct" means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

"incriminating conduct" means conduct that amounts to an implied admission by the accused -

(a) of having committed an offence charged or an element of an offence charged; or

"offence charged" includes any alternative offence.

(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -

(a) the prosecution has given notice in accordance with section 19; and

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.

(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

21 Mandatory direction on use of evidence of incriminating conduct

(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that -

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that -

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.

Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to "knew" rather than "believed" to better describe what the incriminating conduct, if accepted, may prove.

12 Mr Doyle submitted that I should be satisfied, pursuant to s 20(1)(b) of the JDA, that, on the basis of the evidence as a whole, the evidence of the conduct in question is reasonably capable of being viewed by the jury as evidence of incriminating conduct in respect of murderous intent. Put another way, as I understood him, Mr Doyle submitted that, consistently with the mandatory jury direction provided for in s 21(1)(a)(ii) of the JDA that must accompany the prosecution's reliance on evidence of incriminating conduct, as adapted to the particular circumstances that obtain here, it would be open to a jury to conclude that the only reasonable explanation for the conduct involved in the various internet searches and the attempt to leave the country, when considered with the evidence as a whole, is that Mr Novakovic believed that he had killed Mr Dimovski with murderous intent. Thus, it is argued, the evidence may be left as evidence of incriminating conduct.

13 Mr Mandy SC, who appears for Mr Novakovic, opposed the prosecution application. I understood his submission to be that the conduct in question, if accepted, whether considered alone or with the whole of the evidence, was incapable of adding to the evidence of murderous intent. Or, put another way, it was not open for a jury to exclude, as another reasonable explanation for the conduct in question, that Mr Novakovic believed that he had committed something other than the offence of murder, such as manslaughter. It therefore follows, submits Mr Mandy, that the prosecution's application must fail.

14 I turn now to my analysis of the matters in issue.

15 At the outset, I must confess, as I did in the course of oral argument, that I find incriminating conduct to be one of the more elusive and difficult areas of the law of evidence as it applies to criminal matters. Over my time discussing matters of this type with colleagues first as counsel and then as a judge, it has struck me that reasonable minds can reach quite different - even implacably opposed - conclusions on the same sets of facts. In the end, however, a judge must be true to what his own analysis tells him about whether, on the basis of the evidence as a whole, the evidence of the conduct in question is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

16 In this case, given the approach taken by the prosecution and the matters that are and are not in issue by virtue of Mr Novakovic's proposed pleas of guilty to manslaughter and not guilty to murder, the sense in which the phrase "incriminating conduct" is to be understood is evidence that the accused believed that he had murderous intent when he stabbed and killed Mr Dimovski. It should be made clear - and, I hasten to add, Mr Doyle accepted this - that it does not avail the prosecution to say that the conduct in question may be, and I think is, reasonably capable of being viewed by a jury as evidence that Mr Novakovic believed that he had unlawfully stabbed and killed Mr Dimovski.

17 After wrestling with the matter yesterday and again overnight, I have come to the firm view that the answer must be that none of the evidence in question is capable of being viewed by the jury as evidence of incriminating conduct in the sense required. More particularly, I am of the opinion that, whether each of the searches is considered individually or in combination, or together with the attempt to flee to Serbia, none of that behaviour by Mr Novakovic is reasonably capable of adding anything to the prosecution's case that he possessed murderous intent when he stabbed Mr Dimovski. Put another way, it seems to me to be impossible for any rational jury to conclude that the only reasonable explanation for the conduct in issue is that Mr Novakovic held the belief that he had killed Mr Dimovski with murderous intent. Another obvious and eminently reasonable explanation for each and every aspect of his conduct, and for all pieces of that conduct considered collectively (and, for that matter, in combination with the evidence as a whole), is that he believed he had merely unlawfully killed Mr Dimovski.

18 Taking the prosecution arguments at their highest, as Mr Doyle put them, and focussing, for the moment, just on Mr Novakovic's inquiries concerning the transfer of property or money and his attempt to flee the jurisdiction by booking a flight and attending the airport, while they may be regarded by some as rather extreme measures, I do not accept that any rational jury could exclude as a reasonable explanation for such conduct that he believed that he had merely killed Mr Dimovski unlawfully but without any intention to cause death or really serious injury.

19 If general deterrence has any currency at all, the public is presumed to know that, these days, the average head sentence for manslaughter is in the order of eight or nine years' imprisonment. Such knowledge would be a reasonable explanation for the conduct alleged. Indeed, I do not think it is open to say that the conduct alleged is reasonably capable of being viewed as so disproportionate as to admit only of a belief that, at the time of the stabbing, Mr Novakovic had acted with murderous intent.

20 But let us assume he did not know that. Indeed, it might be argued that the nature of some of his inquiries suggest that he did not know, for he asked internet search questions including "prison time for stabbing in a fight", "prison time for stabbing", "Victoria's sentencing laws", "stabbing cases in Victoria that resulted in death" and "fight involving knives results in death". While there is no evidence before me as to what those searches produced, it would be reasonable to expect that he would have come away from those inquiries with the basic idea that those who, without lawful excuse, deliberately stab another who dies, and are found guilty of manslaughter, would go to prison, and for a substantial period. It is also likely that he would have learned that those who are convicted of murder in such circumstances go to prison for a much longer period. Nevertheless, it still seems to me to be impossible for a jury to say that, faced with such information in the present case, a decision to attempt to flee the jurisdiction admits of no reasonable explanation other than that Mr Novakovic held a belief that, when he stabbed Mr Dimovski, he did so with murderous intent.

21 While it is a harking back to the common law rather than the new statutory test, I think it is instructive to observe that this is not a case like R v Rice.[1] In that matter, when analysing the principles concerning consciousness of guilt in circumstances in which the applicant for leave to appeal against a manslaughter conviction had concealed his deceased girlfriend's body in a lime-filled drum and told lies regarding her movements and plans, Brooking JA, with whom Charles JA and Southwell AJA agreed, asked rhetorically, "Why should a man take such a risk if the explanation for her death was an innocent one?"[2] While that case was complicated by the fact that murder had been taken away at trial level and his Honour was there dealing with whether the behaviour in question might have amounted to consciousness of guilt of manslaughter, it is plain that he also thought that murder should not have been removed from the jury's consideration, because the evidence of consciousness of guilt was capable of going to murderous intent.

22 But, in my view, when considering what might be meaningfully extreme - or disproportionate - behaviour, it is arguably one thing to conceal a body in a lime-filled drum in the circumstances of that case, which, under the JDA regime, may well be reasonably capable of going to a belief in murderous intent, and entirely another to conduct the internet searches alleged here and to attempt to flee the jurisdiction, which, in light of the whole of the evidence in this case, is not, in my opinion, conduct that is reasonably capable of going to such a belief to the exclusion of others.

23 I should add that, as I understand the proposed evidence as a whole, an absence of evidence of incriminating conduct would not deny the prosecution a reasonable case of murder against Mr Novakovic. As I have said, Mr Novakovic will admit manslaughter by pleading guilty to that offence before the jury. As for evidence of murderous intent, there is the evidence of the behaviour of Mr Novakovic during the alleged affray and in the immediate lead-up to the confrontation with Mr Dimovski in the kitchen, including his alleged anger when kicking the door of the restaurant, his yelling "the singer, the singer" (which, it is said, was a reference to Mr Dimovski), and his repeated yelling, "I'm going to kill them (or him)."[3] There is also the evidence that, while Mr Novakovic entered through the rear door, he was punching Mr Dimovski. In addition, there is the CCTV footage of the rather frenzied incident during which the fatal stabbing must have occurred, albeit that it does not show the full picture as to the relevant goings-on. Further, there is the fact - indeed, acceptance - that Mr Dimovski was stabbed twice by Mr Novakovic, once, as it happens, in a vital area.

24 While the alleged conduct involved in the internet searches and the attempt to flee the country are, either individually or collectively, reasonably capable of being viewed by a jury as consistent with a belief in murderous intent, I cannot see how that conduct is reasonably capable of adding anything to the foregoing evidence of murderous intent. If that is correct, then the evidence of such conduct, if before the jury, is either irrelevant to any fact in issue or at least apt to be misused by a jury.

25 In those circumstances, as well as failing to pass the test under s 20(1)(b) of the JDA, the evidence must be excluded as irrelevant, pursuant to s 56(1) of the Evidence Act 2008 (Vic), or, at the very least, it must be excluded because its probative value (which, given the matters in issue in the case, is nil) is outweighed by the danger of unfair prejudice to the accused, pursuant to s 137 of the same Act.

26 Accordingly, I refuse the prosecution application to rely on any of the alleged conduct listed in the notice as evidence of incriminating conduct.

27 In consequence of this ruling, since Mr Novakovic was arrested at the airport, we may need to discuss whether or how that evidence might be put before a jury and, if the latter course is taken, whether a direction of the type spelt out in s 23(1) of the JDA might be required.

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[2] R v Rice [1996] 2 VR 406 at 412.

[3] See, e.g., the Summary of Prosecution Opening at [80]-[81].