Vragovic v R

Introduction 1 The appellant was convicted following his trial on 4 November 2005 of a charge that he, on 11 November 2003 at Yeoval, maliciously inflicted grievous bodily harm upon Vivian Catupic with intent, an offence under s33 of the Crimes Act 1900 carrying a maximum penalty of 25 years' imprisonment. The appellant, who was then aged 69 years, was sentenced on 22 March 2006 to a term of 12 years with a non-parole period of 8 years commencing 8 November 2005. This sentence was partially accumulated upon a sentence of 7 years with a non-parole period of 4 years also for an offence under s33 of the Crimes Act 1900 of maliciously inflicting grievous bodily harm with intent, of 7 years with a non-parole period of 4 years that commenced on 8 November 2003. Accordingly, the effective overall sentence for both offences was fourteen years imprisonment with a non-parole period of ten years. He will be seventy-six years of age before being eligible for release on parole. The appellant appeals to this Court in respect of his conviction and seeks leave to appeal in respect of his sentence.

The testimony 2 The victim had been married to the appellant for many years before they divorced in mid-2003. The victim had thereafter commenced a relationship with a Mr McKinnon and an apprehended domestic violence order protecting the victim and Mr McKinnon from the appellant was in force. At about 9.30 pm on 11 November 2003 at Yeoval, a small village about 20 or 30 kilometres south west of Wellington, the victim was at home alone and speaking on the telephone when it suddenly went dead. Moments later, the victim alleged, she saw, she said, the appellant at her window forcing entry. She tried to close the window but the appellant prevented her from doing so. She ran out of the house towards the rear where, the intruder beat her with a piece of exhaust pipe and a shortened firearm, resulting in a number of serious injuries including fractures of the left lower ribs, a small left-side pneumothorax, a fracture of the left scapula, lacerations on the scalp and head, and significant soft tissue swelling of the mid-face. Police later recovered from the scene the firearm and exhaust pipe said to have been used and DNA analysis detected blood on these items with the same DNA profile as that of the victim. Three live rounds were also found at the scene. Police noted that the telephone wires had been interfered with, the front window was open and the flyscreen had been cut. A number of witnesses playing tennis nearby saw a man in blue overalls running from the house. The victim told a number of witnesses, including attending police and ambulance officers en route to the hospital, that the appellant had attacked her. 3 The only real issue in the trial was whether the victim's recognition of the appellant as her attacker was a mistake. As will be seen, the appellant gave police an alibi. 4 A neighbour who became aware of the attack very shortly after it occurred, telephoned Sergeant Blain at the Yeoval police residence at 9.35 pm to inform him of the attack. He attended the premises and was involved in police investigations at the scene. At 10.26 pm (about an hour after the attack), following a report being made to police by a member of the public, he, and a Constable Cremers went to a place about fifteen kilometres out of Yeoval, the place of the attack, where they saw a small sedan on its roof engulfed in fire. For some distance along the dirt road and leading to the upturned vehicle, skid marks were seen. It was apparent that the car was travelling towards Parkes from Yeoval when it had hit the graded dirt embankment on the roadside. The registration plate was still legible. It was not disputed that the appellant hired this vehicle from Thrifty Car Hire at Taree about midday on 11 November 2003, using the name of Tom Pelican, which he described as his "other name". I will come later to the appellant's account of events but it should be noted that the vehicle did not have a bull bar. 5 Peter Humphries, who knew the appellant well for a number of years, gave evidence that, at 9pm on 10 November 2003, the appellant had telephoned him to ask him to pick him up from somewhere in the Bulahdelah district in the mid-north coast but that Humphries said that he did not think this was practical and suggested that the appellant should hire a car, which the appellant told him he would do. He did not speak to or see the appellant again until 13 November 2003 when he was a support person for the appellant following his arrest. At that time the appellant told him he had indeed hired a vehicle. Mr Humphries did not know what kind of car he hired or what had happened to it. 6 A Mr Brown, who lived in the nearby township of Tichborne and knew the appellant, said that he was at home watching television at some time between 6pm and 6.30pm on 12 November 2003 when he received a telephone call from the appellant who said that he was at his (Brown's) son's house in Parkes and asked if he could pick him up. Accordingly, Mr Brown borrowed a car, went to his son's house, collected the appellant and brought him out to his property, returning at about 7 o'clock. He said that the appellant had told him that he had been robbed and abducted and taken to a place between Forbes and West Wyalong where he was tied up all night on the bull bar attached to his car. Mr Brown's house is situated on the highway between Forbes and Parkes, about 10 kilometres from Parkes and 25 kilometres from Forbes. The appellant told Mr Brown that he had been abducted from somewhere near Orange. He said to Mr Brown that he had hired a car up the coast, had come back to Orange where he was having a rest and that these men pulled up and put a gun on him and were going to shoot his kneecaps out, claiming that he owed them money. He told Brown that this occurred the previous night namely, on 11 November. The appellant told Mr Brown that the men were Arabs, that there was a carload of them at first and then another group came in an old Falcon station wagon, took his car from him and took him away. He said that he had hitchhiked to Mr Brown's house. The appellant told Mr Brown that he would contact the police when he got home to Mumbil and Mr Brown agreed to take him home, getting some food from a Kentucky Fried Chicken shop on the way. He said that the appellant gave him $50 to pay for petrol. He said that he had this money with him though he did not know from where he got it. In cross-examination Mr Brown said that the appellant seemed a bit upset - "half crying" - and that he noticed no injuries on him. Mr Brown's daughter-in-law, Michelle Birmingham, said that the appellant had arrived at her home in Parkes at about 6 pm. He had a backpack with him. He said he needed someone to drive him home as he had court the following day and offered to pay. He spoke on the telephone with Mr Brown but she did not hear the conversation and, shortly afterwards, her father-in-law arrived to pick the appellant up.