The Queen v Rapovski

3 The Prosecution submits that the lie is 'incriminating conduct', as defined by s 22 of the Jury Directions Act 2013 (Vic) ('the Act'). Section 22 of the Act relevantly provides:

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 ...

4 The accused objects to the admissibility of the evidence of the alleged lie on two grounds. The first ground is that the alleged lie is not incriminating conduct. Secondly, the accused complains of short service of the Notice of Post Offence Conduct ('Notice'). Under s 23 of the Act, such notices must be served at least 28 days before the trial is listed to commence, although the court has power under s 7 of the Act to abridge the notice period if it is satisfied that it is in the interests of justice to do so. The Notice in this case was served six days before the trial was listed to commence on 13 April 2015.

5 For the reasons given below, I have concluded that the alleged lie is not incriminating conduct. In my view, the lie is 'intractably neutral':[1] it is equally consistent with another person, Philip Sazdanovski, being the shooter, which is the very case that will be advanced by the Defence. Although other Prosecution evidence predominantly supports the allegation that the accused, not Sazdanovski, was the shooter, the lie does not assist in resolving that controversy.

6 The relevant facts may be summarised as follows. The victim, Evan Tepelis, was formerly in a relationship with a woman named Natasha Talevski. Talevski complained to a friend, Philip Sazdanovski, that Tepelis was hassling her. Sazdanovski contacted Tepelis. It appears that communications between Sazdanovski and Tepelis were abusive on both sides, with threats being made.

7 On the night of 1 February 2014, Sazdanovski, who was staying with the accused, got the accused to drive him in the accused's car (ZFD466) to Thomastown to meet or confront Tepelis at a pre-arranged meeting place. Sazdanovski and the accused were accompanied by the accused's girlfriend Kristy-Anne Nicolaidis, who was seated in the front passenger seat.

8 Tepelis attended the meeting place on foot with two friends, Dejan Kupresak and Jeton Krasniqi. Tepelis and his friends brought weapons, including a machete and golf clubs.

9 When the accused stopped his car near Tepelis' group in Dalton Road, two bottles were thrown in quick succession at the car. The front passenger window was slightly down. The bottles struck the accused's girlfriend, Nicolaidis. Her face was cut, a tooth was knocked out and there was a lot of blood. She was later found to have sustained a broken jaw.

10 On the Prosecution case, both the accused and Sazdanovski got out of the car and the accused shot Tepelis.

11 The Prosecution rely on the injury to Nicolaidis as the motive for the accused shooting Tepelis. The accused does not dispute that Tepelis was shot but denies he was the shooter.

12 Although the accused made a no comment record of interview, it is suggested by the Defence response to the Prosecution summary of opening and the proof of evidence of Nicolaidis, who is to be called by the Prosecution, that Sazdanovski, not the accused, shot Tepelis. Senior Counsel for the accused, Mr Dane QC, confirmed on 20 April 2015 that the defence will contend that Sazdanovski was the shooter. Further, Nicolaidis claims that only Sazdanovski got out of the car, shortly after which she heard a loud bang coming from outside the car. By contrast, Sazdanovski, Tepelis, Kupresak and Krasniqi, who are all witnesses for the Prosecution, assert that two men got out of the car. The thrust of their evidence is that the accused was the shooter.

13 After Tepelis was shot, the accused's group drove off. A short time later, the accused attended at the Austin Hospital's emergency department with his girlfriend. Their attendance was captured by CCTV. They were seen by several staff at the emergency department, including a triage nurse named Nicole Seckold.

14 In Seckold's statement dated 7 April 2015, she says:

Based on my note[2] and CCTV, I recall Nicolaidis had a lacerated chin and jaw injury. I remember she was holding her chin and could barely talk. The guy that was with her did all the talking. I recall he told me she was playing with some children and they pushed her onto a metal gate.

15 At a Basha hearing before me on 16 April 2015, Seckold swore that the contents of her statement were true and correct.

16 Since the Defence seeks to make something of the point, I should mention that there is evidence that Nicolaidis falsely told hospital staff that she had injured herself by falling on a fence. In her statement of 21 February 2014, she said at [16]:

I have not spoken with Dennis [sic] or Phil about this incident at all since it happened. I haven't seen Phil since the incident. I haven't spoken with anyone else about the incident at all, the only [sic] I have said to anyone was that when I was out I got bottled or that I had fallen on a fence.

17 At a Basha hearing on 17 April 2015, Nicolaidis was asked by Mr Dane QC about having said that she'd fallen on a fence. She indicated that she first said this to a nurse or a doctor who was looking after her at the time and that she said it because she was in shock and wasn't all there.

18 Turning now to the competing arguments, the Notice filed and served by the Prosecution says that the lie was:

designed to distance the accused from (a) the shooting incident and his criminal involvement in it and (b) the silver commodore ... ZFD 466. Had the accused provided a truthful account of the circumstances in which his girlfriend sustained her injuries, this would have enabled police to connect the accused to the shooting. Misrepresenting the circumstances in which the injuries were caused, distanced him from the shooting.

19 The Prosecution submits that the only reasonable explanation for the accused wanting to distance himself from the shooting is that he was the shooter.

20 In his written submissions, the Prosecutor, Mr Gibson, submitted that 'the lie is evidence of guilt in the sense that it was told because the accused knew that the truth would implicate him in the commission of the offence.'[3]

21 Mr Gibson concluded his written submissions with the following observations:

It is submitted that in this case there is no evidence of any other innocent explanation for the lie. The accused made a no comment record of interview. There is no evidence that he spoke to anyone proffering any other explanation. Accordingly there is no reasonable basis for treating the lie as anything other than a realisation by him that to tell the truth about the circumstances would implicate him in the offence.[4]

22 In his oral submissions, Mr Gibson said the hospital CCTV footage shows that the accused was clearly concerned for Ms Nicolaidis' welfare.[5] This supported the argument that the injury to Nicolaidis was the motive for the accused to shoot Tepelis: in other words, the lie was told about a material event.

would've been thinking that if the true situation is provided, or if I say that a bottle was thrown through a car window ... that would have a risk of alerting ... the authorities to an event which is intimately connected with the matter that's before the court ... [T]he lie is made or given out of a realisation ... of guilt.[6]

24 Mr Dane QC began by saying that the accused does not admit that it - the lie - was said by the accused. The tenor of his submission in this regard was that nurse Seckold was mistaken in her recollection. Her statement was not taken until approximately 14 months after the event and her notes of the attendance made no reference to the accused telling her about the cause of the injuries to Nicolaidis' face. As regards the likelihood of Seckold being mistaken, Mr Dane QC also relied on Nicolaidis' evidence that she had lied at the hospital about the cause of her injuries.

25 Whether the lie was said by the accused is a jury question and Mr Dane QC did not argue the contrary.

26 If it was said, Mr Dane QC conceded that it was a deliberate lie. But he submitted that the way to test whether the lie was probative of the accused's guilt - whether it was an implied admission - was to consider what the accused would have disclosed if he had spoken truthfully and said simply that a bottle had come through the window of a car and caused the injuries to Nicolaidis.[7] Mr Dane QC's submission was that the truth would not have disclosed a crime, or an element of a crime, by the accused, and therefore the lie is irrelevant.

27 Mr Dane QC submitted that the lie - if it was said - might have significance if, on the Defence case, the accused was claiming not to have been at the scene of the crime.[8] But the Defence do not dispute that he was present when Nicolaidis was injured and Tepelis was shot. Mr Dane QC also argued that if the lie had been told to a person in authority - for example, a police officer investigating the shooting - it may have been a significant lie, but that was not the case here.

28 Mr Dane QC took issue with the Prosecutor's submission that the lie served to distance the accused from the events in question. He did not give any reasons to back up that submission.

29 When asked whether he advanced any alternative motives for the lie, Mr Dane QC said it was simply a case of 'just tell them anything, there's no motive at all'. He said that 'it's not for us to give an explanation of why we lied'[9] and added that 'he had no instructions as to why it was said.'[10] Having regard to the evidence given by Nicolaidis that she had lied to a doctor or nurse at the time about the cause of her injuries, Mr Dane QC added that the accused may have simply adopted the lie told by Ms Nicolaidis.

30 On 20 April 2015, I raised with counsel for the Prosecution and Defence my provisional view that the lie - if it was said - was equally consistent with Sazdanovski being the shooter. Mr Gibson acknowledged that it was a possible explanation but maintained that the only reasonable explanation for the lie was that the accused was the shooter. As mentioned above, Mr Dane QC confirmed that the Defence would contend that Sazdanovski was the shooter.

31 Section 24(1)(b) of the Act relevantly provides:

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

(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.[11]

32 In other words, I have to be satisfied that the lie - if it was said by the accused - is capable of being viewed by the jury as an implied admission of guilt or at least as an implied admission of an element of an offence.

33 In Edwards v R,[12] the High Court considered when evidence of a lie can be considered probative of guilt. The plurality (Deane, Dawson and Gaudron JJ) said at pp 208 -209:

Ordinarily the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and in limited circumstances, amount to conduct which is inconsistent with innocence and amount therefore to an implied admission of guilt ... It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged.[13]

34 Section 25 of the Act, which is headed 'Mandatory direction on use of evidence of incriminating conduct', relevantly provides:

(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 ... only if it concludes that -

(ii) the only reasonable explanation of the conduct is that the accused held that belief ...[14]

35 Could the jury, acting reasonably, conclude that the only reasonable explanation for the accused telling the lie was that the accused believed he had committed the offence or at least an element of the offence?

36 Philip Sazdanovski was also present at the scene of the crime. He had contacted Tepelis in the first place to get him to stop hassling Sazdanovski's friend, Natasha Talevski, who had previously been in a relationship with Tepelis. Sazdanovski's communications with Tepelis before the fateful meeting had been marked by hostility. It was Sazdanovski who organised the meeting, or more accurately, the confrontation with Tepelis.

37 On Sazdanovski's own account, he got out of the car at the meeting place. On Nicolaidis' account, it was not long after Sazdanovski got out of the car that she heard a loud bang coming from outside the car. Nicolaidis also says in her statement that the accused did not exit the car. Although one may be sceptical about her claim that the accused did not exit the car, especially given that Sazdanovski says that the accused got out of the car, and Tepelis, Kupresak and Krasniqi all say that two males got out the car, the jury will have to consider whether Sazdanovski might have been the shooter, rather than the accused.

38 The telling of the lie to nurse Seckold is consistent with Sazdanovski having been the shooter. At the time of the relevant events, Sazdanovski was a friend of the accused's. He was living at the accused's house. An attempt by the accused to distance himself from the events in question at the Austin Hospital is consistent with him not wanting to implicate his friend Sazdanovski if Sazdanovski was the shooter. If the accused told the truth, that may have assisted police in tracking him and Nicolaidis down, and that would have put them in a position where they may have been required to provide an account that would incriminate Sazdanovski.

39 The lie in itself - if it was said by the accused - does not assist one in determining whether the accused or Sazdanovski was the shooter. In that regard, it is 'intractably neutral'. It is only if one has first formed the view, based on other evidence, that the accused was the shooter that one is able to interpret the accused's attempt to distance himself from the shooting by lying to nurse Seckold as an implied admission of guilt of the crime or an element of the crime. That is circular reasoning. Accordingly, I cannot conclude that the lie is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

40 Since I have reached the view that the lie is not capable of constituting evidence of incriminating conduct, it is not in my opinion in the interests of justice to abridge the time period for service of the Notice.

41 For completeness sake, I will add that, had I reached a different view on the substantive point, I would have abridged time. Mr Gibson informed me that he was briefed in the matter in late March 2015. After familiarising himself with the brief and, in particular, looking at the hospital notes in relation to the attendance of the accused and Nicolaidis at the Austin Hospital on 1 February 2014, and the CCTV footage of their attendance, he initiated further investigation. This resulted in the statement by Seckold on 7 April 2015. On the same date, the Notice was filed and served.

42 Whilst Mr Dane QC objected to an abridgement of time, he could not identify any unfair prejudice to the accused if time was abridged.

43 Having regard to Mr Gibson's explanation for the late service of the Notice, and the absence of unfair prejudice to the accused if I abridged the notice period, an abridgement of the Notice period under s 7 of the Act was warranted, but only if the lie was capable of being viewed as incriminating conduct.

[1] R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, [72].

1. [2] Hospital notes relating to Nicolaidis' attendance at the Austin Hospital are included in the Depositions. As regards the cause of the injuries to Nicolaidis' face, the only note is a note made by a staff member, not Seckold, who conducted what was called the cubicle assessment. It reads 'running, fell and hit face on gate'. The note does not indicate who gave that history, nor does it reveal the identity of the staff member who took the history. According to Seckold, the cubicle assessment was conducted after she conducted her triage assessment. Seckold said during the Basha hearing that she read the cubicle assessment notes before making her statement.

[12] [1993] HCA 63; (1993) 178 CLR 193.

[13] Edwards [1993] HCA 63; (1993) 178 CLR 193, 208 and 209.