Vulovic v R

The Facts 2The applicant boarded at a house in Canley Heights owned by Ilija Plavsic. They had known each other for about 15 years through their work as cement renderers. By November 2009 the applicant had ceased working in that industry, having received a work injury, and was in receipt of an invalid pension. He was 53 years old. 3The deceased, Tony Darkovski, was friends with Mr. Plavsic and worked with him. He was a big man, 32 years old. Mr. Plavsic and Mr. Darkovski worked together on 12 November 2009. During that day the applicant spent a number of hours at a local café. He had beer to drink there. Mr. Plavsic and Mr. Darkovski returned to the house during the afternoon after they had finished work. They had a conversation about money that Mr. Plavsic owed Mr. Darkovski. Mr. Darkovski went out, bought a five litre cask of wine and brought it to the house. He and Mr. Plavsic began to drink. 4Later on the same afternoon the applicant returned home, bringing with him beer he had bought. 5An argument started between the applicant and Mr. Darkovski. Things became violent. A window was broken, a table damaged and an ironing board knocked over. At one stage Mr. Darkovski took the applicant by the throat. 6The applicant went to his room and returned, holding chained fighting sticks called nunchaku. Mr. Darkovski disarmed him. The applicant returned to his room and then went to the kitchen, where he picked up a kitchen knife. He stabbed Mr. Darkovski. There were two wounds to the chest, either of which alone would have been fatal. There were wounds to the left upper arm, the left lower abdomen and the left side of the neck. None of them would have been fatal by itself. There was no evidence how long the attack lasted. The only weapon used was the knife. Bloodstains indicated that the attack had occurred at 3 separate places in the one room. 7Immediately after the stabbing, and before Mr. Plavsic could telephone for an ambulance, the applicant asked him to telephone a friend of his, Ms Olga Savic. He did so and the applicant told Ms Savic: The Macedonian has attacked me. There's blood everywhere. Come down. Call Borsa. 8Borsa was the applicant's sister. 9Immediately afterwards Mr. Plavsic telephoned the emergency services. They attended, but unfortunately Mr. Darkovski was unable to be revived. 10Only two witnesses gave direct evidence of the event, Mr. Plavsic and the applicant. The Crown read a transcript of an interview the applicant had given to the investigating police officers on 12 November 2009, immediately after his arrest. Things said by the applicant in his interview and in evidence were capable of proving provocation by Mr. Darkovski. They included offensive and insulting remarks about the applicant and Ms Savic, threats to the applicant with the assertion that Mr. Darkovski had "bashed three guys", demands on the applicant for money and a physical attack on the applicant by Mr. Darkovski's grabbing him by the hair and hooking a finger in his mouth. 11The Crown contended that the applicant was not provoked but acted out of anger. The defence case was that the applicant should be acquitted because there was a reasonable possibility that Mr. Plavsic was the killer. Understandably, therefore, defence counsel did not mention provocation in his closing speech to the jury. 12In leaving provocation to the jury his Honour said this about the evidence: I will explain to you what it is that raises provocation in this case as an issue for your consideration. In effect, it emerges entirely from the evidence of the accused or his interview with the police given on 12 November 2009. The matters which are pointed to in the evidence are evidence of the accused asserting that Mr. Darkovski grabbed him by the neck, knocking him to the ground, evidence that the deceased was said to be out of control, evidence that the deceased was said to have started a fight against the accused, evidence of the insult which the deceased is said to have made about Olga. You will perhaps remember that, that is part of the accused's evidence. The suggestion from the accused that Mr. Plavsic had made a crude joke about the use of nunchakus, the evidence of the accused that there were demands for money from him by Mr. Darkovski and Mr. Plavsic and that he felt this was intolerable and his suggestion that Mr. Darkovski had been "like a terror" for him in the past asking him for money both at home and in the street. ... I emphasise, ladies and gentlemen, I am pointing to this because it was part of the evidence before you. What you make of that evidence of the accused is a matter for you as a part of your fact-finding function, but the fact that there are things asserted of this type mean that I need to raise with you the issue of provocation. So it is matters of that type which explain why I am giving you this direction. ... You may wonder - why is the judge giving us this very complicated formula in this rather straightforward case? The accused of course is not saying that he did stab Mr. Darkovski. But if you find that he did stab Mr. Darkovski and killed him, then these issues arise because of other parts of the evidence of the accused which say that he was being stirred up, there were insults about Olga, there was aggressive conduct towards him and matters of that sort. So, if you are satisfied beyond reasonable doubt that he did kill Mr. Darkovski, then one gets to this point and because there is some evidence raising the question of provocation, you need to consider these questions if you get to this point. ... The starting point then are the sort of matters that I have raised, what are said to be insults, threats, and aggressive conduct. 13It was only by finding provocation that the jury could properly have returned a verdict of not guilty of murder but guilty of manslaughter. 14The first ground of appeal asserts that his Honour made findings of fact in relation to provocation that were inconsistent with the verdict. His Honour's findings of fact on sentence included these: Consistent with the verdict of the jury, I am satisfied that at least some of the provocative conduct [and His Honour referred to the evidence he had summarised, which is included in the extract at para [12] above] took place. I am satisfied that much of it occurred in the period when the offender and the deceased were alone, and Mr. Plavsic was in his room. The fact that Mr. Plavsic did not agree that the provocative events had occurred in his presence may be explained largely in this way. By the time Mr. Plavsic emerged from his room, there was a substantial and heated argument under way between the offender and the deceased. Mr. Plavsic observed events, including physical interaction between the two men. He was affected by alcohol so that, as I have said, his recall of secondary details of the argument was not clear. ... I am satisfied, as in my view was the jury, that the Offender obtained a knife from the kitchen, after significant acts of provocation had occurred, and that he then used that knife to stab the deceased on some five occasions. The medical evidence of Dr Van Vuuren at trial described five stab wounds to the deceased. Two stab wounds were to the side of the chest. One was to the left upper arm. A further stab wound was in the area of the left lower abdomen and the fifth was to the left side of the neck to the deceased. ... In my view, the jury had particular regard to aspects of the Offender's ERISP made on the evening of 12 November 2009, in which he said that he had been provoked by the deceased, who had used abusive and intemperate language towards him and had been aggressive towards him. ... It is clear from the interview that the Offender was well aware, soon after the fatal attack, that he had been abused and manhandled in a way that made him angry and, in his words, "provoked" him. The jury's verdict is entirely understandable. The fact that the Offender used this word repeatedly at that time would not have been lost on the jury given that, by the time the jury watched the interview again in the jury room during their deliberations, the concept of provocation had been explained in the summing up. ... In my view, the evidence does not permit a finding as to which of the Offender and the deceased instigated the argument, and associated aggressive conduct. It is clear that a verbal argument commenced which included insults from the deceased concerning the Offender and Ms Savic, which were directed to the Offender, leading to a physical altercation between two men. I consider that this aspect of the Offender's account given in his ERISP on the evening of the incident formed the real foundation for provocation in this case. I am satisfied that the Offender and the deceased did not particularly like each other, and that not a great deal was required to lead to friction between the two men. I do not accept the defence submission that the aggressive conduct and words emanated, in a type of one-sided fashion, from the deceased to the Offender. ... I accept that there was some physical contact whereby the deceased held the Offender around the neck in a strangling-type action. This served further to provoke the Offender. However, I do not accept that the offender lost consciousness for a period of time. Rather, I am satisfied that the offender became free of the deceased and then entered the kitchen in an angry state where he obtained the knife which was used to stab the deceased. 15Mr. Brady, counsel for the applicant, submitted that the following findings were inconsistent with the verdict, namely: (i)only some of the acts that might have been provocative took place; (ii)the evidence did not permit a finding as to who started the fight; (iii)that in the verbal argument that led to the fight Mr. Darkovski's insults about the applicant and Ms Savic were the real foundation for the finding of provocation; and (iv)the applicant entered the kitchen in an angry state and obtained the knife with which he stabbed Mr. Darkovski. 16As to (i) above, Mr. Brady submitted that provocation as left to the jury was not so limited, that the jury were not directed that comments about Ms Savic alone would be sufficient to raise a reasonable possibility of provocation, that there was no evidence that "these comments " (meaning Mr. Darkovski's insults about the applicant and Ms Savic) led to the fight in which the deceased was stabbed. 17As to (ii) above, Mr. Brady submitted that his Honour did not direct the jury that they could find that the applicant started the fight and find also that he acted under provocation. He submitted that provocation was left to the jury "very much on the basis of the (deceased's) aggression", including that Mr. Darkovski grabbed him by the neck, knocking him to the ground, Mr. Darkovski was out of control, he started the fight, there were demands for money, there were threats against the applicant and Mr. Darkovski had been "like a terror" (the applicant's description of Mr. Darkovski's behaviour in continually asking to borrow money). For these reasons, the absence of a finding about who was the initial aggressor was "inconsistent with the considerations left to the jury in determining provocation". Finally, Mr. Brady submitted that "it is difficult to envisage that the jury would have concluded that there was a reasonable possibility that the applicant was acting under provocation without concluding that there was a reasonable possibility that the deceased was the aggressor". 18As to (iii) above, Mr. Brady submitted that provocation as left to the jury was not so limited and that his Honour did not direct the jury that Mr. Darkovski's comments about Ms Savic alone would suffice to raise a reasonable possibility of provocation. Finally, Mr. Brady submitted that there was no evidence that the comments led to the "physical altercation". 19 As to (iv) above, Mr. Brady submitted that his Honour's finding that the applicant was angry when he entered the kitchen was not consistent with a finding of provocation since his Honour had told the jury that: Provocation is concerned with a loss of self-control by the accused at the time of the act causing death, that is acting under a temporary loss of reason and not simply in anger or in revenge. 20It was submitted generally that when identifying the evidence relevant to provocation "the matters were put to them effectively as a combination of factors", and while the jury were directed that they could accept part and reject part of the evidence of a witness, the direction "was not linked to the issue of provocation". 21In summary these long and detailed submissions proposed that the effect of his Honour's directions was that the jury could find provocation only if satisfied about all the evidence left to them as relevant to provocation. Since the jury did find provocation, they must have accepted all the relevant evidence. Therefore his Honour, to be consistent with the findings of the jury, had to be satisfied about all of it. To the extent that he did not, his findings were inconsistent with the verdict. In written submissions Mr. Brady identified a number of additional facts that he submitted were relevant to the question of provocation and which the judge ought to have taken into account. They were: -

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Cases Cited (6)