Velevski v R [2002] HCA 4;

Velevski v R [2002] HCA 4; - HCA 2002 case summary — Zoe

[69]

The argument proceeds from an assumption about what the evidence of these persons might have been. The most that could be said to have been revealed by the evidence was the general tenor of their views. It may be doubted whether an assumption that their evidence would have supported the particular views formed by Dr Bradhurst is well founded, in the absence of any statement or report which revealed what evidence each may have given about the various matters of which Dr Bradhurst gave evidence. Even assuming, however, that one or more of them, when qualified, would have given evidence which supported the opinions of Dr Bradhurst, there has been no miscarriage of justice. First, the notion of "balance" in this context is seductive, but misleading. On its face it suggests that, in every case where expert evidence is to be led, the prosecution must seek out and adduce evidence of competing or contradictory opinions. Why that should be so in an adversarial system is not revealed. What is required is that the prosecutor is bound to ensure that the prosecution case is presented with fairness to the accused[8]. Fairness does not require some head count of experts holding differing opinions. Secondly, it is to be recalled that the evidence now in issue is expert evidence of opinion. It is not evidence of facts. R v Apostilides[9], and like cases about the obligations of the prosecution, are primarily concerned with evidence about the facts of the case. Other considerations intrude in relation to expert evidence, not least being the consideration that such a witness can give evidence only by reference to facts which will have to be established otherwise. In a case such as the present, where several experts were to be called to give evidence, the prosecution, not already being in possession of evidence from other expert witnesses, was not bound to seek it out by having the witness qualify himself or herself to form an opinion and then to call the witness to give evidence of the opinion that was formed.

[211]

"I was looking after the twins in the same room where they found the bodies ... At that moment she stayed in the room but she told me to go and pick up the girl from her parents and during the time that I went to pick up the child from her parents, when I returned she came out of the room at that time ... Her face again showed signs that she was upset and that she started uttering very bad words to all of us. First of all she said she was going to leave, that she did not care, she did not care at all who was going to stay and remain living in the house and then on our question of 'Where are you going to go', she said 'It's not important where I am going to go' and she then used the words 'I am not going to go to my mother and father anymore. I am not looking for a husband or father for my children, wherever I go I will go and take the children with me'. We were very upset by these words ... We did attempt to speak to her but she became more and more irritable but she flared up again and began to shout at us even more. I said 'Why do you want to leave home'. She said 'It is not important for you to know'. I asked her, 'Where are you going to go'. She said 'I am going to live in a flat, in some flat' and she did not say which one or where, she just said in a flat ... For some time she sat in the television room, about ten to fifteen minutes, and she was crying by herself. We weren't bothering her during that time, not upsetting her, she was just crying. About five to 11 or 11 o'clock, as she was going from the television room into the room where the twins were, you could see her stomping with her feet, going stomping, very upset, a very upset condition, and then as she was going into the room, she slammed the door forcefully. The whole house shook from that ... From that moment I did not see her anymore ... For about two hours my father and my mother and I sat in the television room together, discussing why she became so upset after the conversation that she [had] with her mother and we just did not know what she was going to do afterwards, whether she was going to respond. We did not know what was going to happen ... Two hours later, 1 o'clock I went into Zaklina's room at 1, I was very upset and disturbed by what I had seen, her that way, wondering what she was going to do, whether she was going to leave home, whether she was going to take the children with her, she was not looking for another father for them; I had to then go into the room to rest, to relax ... I did lie down but I cannot say how long I was lying there and when I fell asleep, I remained there until 6 o'clock the following morning ... During the time that I was in the room, I did not hear any person walking in and out or walking about the house. There was no noise like that. I did not hear the children crying, at feeding time or anything like that, I did not hear anything. I did not hear anything ... When I got up from my room at the same time my father was emerging from his room. I talked to my father ... first of all I asked him, 'Do you know who closed my door?' Because when I went to lie down at 1 o'clock my door was open and he said he did not know - and I did not know how it came to be closed; and then I went to knock on the door to get a response from my wife, whether I should go to work or not. There was no response, no sign from her or from the girls, and then immediately I decided that, we had a discussion with my father, that I should take them to my sister's place."

[234]

"Counsel was prepared to accept, and asked the court to accept, that there is an organised body of knowledge and experience, based on the observation of wounds alone, which will entitle a person, skilled in the knowledge, to express an expert opinion upon the question of whether particular wounds observed are self-inflicted[27]. I must confess to some difficulty in comprehending how a person, medically qualified or not, by merely observing wounds, can express an opinion that they have been 'self-inflicted'. However, I am prepared to accept that such a body of knowledge exists. The evidence of Wells and Collins tends to lend some support to its existence. What is clear, however, is that such body of knowledge does not derive from recognised principles of medical science, but rather from the study of characteristics and patterns of wounds from which one may infer, by comparison with recognised standards, that the wounds being studied are themselves self-inflicted. Such an expertise would not necessarily be limited to medical practitioners although, by dint of their practice, they would be the more likely possessors of it. In a real sense, as I understand it, the claimed expertise is derived from empirical data in much the same way as those who claim an expertise in analysing and interpreting blood stains to determine their source of origin, whence they emanate and the force of impact required to produce them. However the field of expertise, which we are asked to assume in this case, would seem to me to be necessarily an imprecise one simply by reason of the infinite variety of circumstances in which wounds are produced and can be suffered. In general terms, the law's own experience suggests that expressions of opinions that a wound or wounds are self-inflicted are those expressed with full knowledge of surrounding circumstances; for example the history given by the victim or the knowledge that the victim was found in circumstances suggesting self-harm, etc. It is, perhaps, instructive that counsel have not been able to cite to the court any case where opinion evidence of this type, given in circumstances where the accused denies self-infliction and asserts infliction by a third party, has been recognised or received in evidence."

[318]

We do not therefore consider that, despite that one ground of appeal has some validity, any miscarriage of justice has occurred or that this is a case in which it was not open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty. This was a very strong circumstantial case. In significant respects the appellant's conduct and explanations are not credible: his claim that he remained closeted in a bedroom for 17 hours, in one version sleeping the sleep of "the dead", in another version, saying that he saw Snezana when she came out at 5 o'clock in the afternoon to warm up milk for the children; the delivery of the notes taken from his dead daughter's school bag at home to her school; his sudden removal of his parents from his home in the early morning; his delay in seeking help; and, least credible of all, his failure to effect an entry, forcible if necessary, to the bedroom to which his whole immediate family had retired for so long. When these matters are weighed with the likelihood of rearrangement of the room after the slayings, the strength required to carry them out; the existence of family discord immediately before the slayings; and, the other less obvious, but still significant features of the case to which we have earlier referred, a very strong case, upon which the jury were fully entitled to reach a verdict of guilty, emerged. We do not regard the inadmissible evidence given by the experts as being of significance in the context of the whole case. If we did, for the appellant to succeed, we would still need to be satisfied, which we are not, that like evidence was not introduced and used by the appellant for the appellant's own forensic purposes, and was not objected to for the same reason. And we do not consider the fact that some of the expert evidence may have been (which on balance we do not in any event think it was) especially difficult and sophisticated, would require that the appeal be upheld. Juries are entitled to and are able to evaluate conflicting, sophisticated, difficult expert evidence.

At a glance

Court

Decision date

Before

Source

Judgment (359 paragraphs)

Velevski v R [2002] HCA 4; (2002) 187 ALR 233; (2002) 76 ALJR 402 (14 February 2002)

Parties

Legislation Cited (2)

Cases Cited (22)