Regina v Velevski [1999] NSWCCA 96

New South Wales Court of Criminal Appeal CITATION : Regina v Velevski [1999] NSWCCA 96 FILE NUMBER(S) : CCA 60457/97 HEARING DATE(S) : 02/12/98; 14/12/98 JUDGMENT DATE : 10 May 1999

PARTIES : Ljube Velevski (Appellant) The Crown (Respondent) JUDGMENT OF : Grove J at 1; James J at 117; Kirby J at 184

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70042/95 LOWER COURT JUDICIAL OFFICER : Dunford J

COUNSEL : C.J. Maxwell QC ( Crown) T.L. Buddin SC with A.C. Haesler (Appellant) SOLICITORS : S.E. O'Connor (Crown) Murphy's Lawyers Inc (Appellant) CATCHWORDS : Criminal Law - murder - deaths of appellant's wife and three children - whether verdicts of guilty of murder unreasonable and not supported by evidence DECISION : By majority appeal against conviction dismissed

IN THE COURT OF CRIMINAL APPEAL

60457/97

GROVE J JAMES J DAVID KIRBY J

Monday 10 May 1999

REGINA v LJUBE VELEVSKI

JUDGMENT

1 GROVE J: After a trial extending almost two months, the appellant was convicted on four counts of murder. The victims were his wife Snezana, his daughter Zaklina aged six and his twin daughters Daniela and Dijana aged three and a half months. The appeal challenges conviction only, senior counsel for the appellant having indicated that it was not intended to pursue application for leave to appeal against sentence. 2 The appellant and the victims lived in a newly built residence at 10 Castle Court Berkeley, a suburb of Wollongong. As at June 1994 when the deaths occurred they had resided there for about 18 months. The other usual occupants of the house were Petre and Tasa Velevski, the appellant's parents. It will not hinder clarity and avoid much repetition if various members of the family are referred to on occasions simply by their first names. A central, and the most prominent, issue at trial was whether the Crown had excluded any possibility that Snezana had killed the children and then committed suicide. No one contended, as obviously it could not be, that the three children were other than victims of murder. Throughout the trial the Crown case that the appellant was the perpetrator of the four killings was frequently referred to as murder/murder and the hypothesis that Snezana had killed the children and then herself as murder/suicide. It was useful terminology which I will adopt. At about 4pm on Monday 20 June 1994 Police Constables English and Gray responded to a message to call at the residence 10 Castle Court Berkeley. They found in the house the appellant, a niece of his (Dianna Nadjovski) and persons whom they described as two elderly females and two elderly males. One of the latter was the appellant's father Petre. The appellant told police that he had not seen his wife and children since the previous night; that his wife had taken the children (into the bedroom) and locked the door. The "privacy" locking device operated when a button on the inside was pressed. The door could be opened from the outside by the insertion of a flat projector into a rectangular slot on the outer door handle. A screwdriver, a "paddlepop" stick or similar would perform the function. The appellant denied knowledge of how to unlock the privacy device externally. 3 Constable English was able to peer through a gap at the bottom of the door and she saw bare legs of a human being apparently lying upon the floor. Attempts to force open the door without an implement were unsuccessful and Constable Gray and Petre went in search of a screwdriver. The appellant also left the doorway and returned with a hammer which he gave to Constable English. She used this to break through the door and she put her hand inside and released the lock by turning the inside handle. 4 The evidence included both video and still photographs of the scene which confronted the entrants. Within the room in a gap between a large double bed and a baby's cot were the bodies of the four victims. They were stacked in a formation commencing with the bodies of the twin babies (each of whom was clothed in a sleeved and collared sleeping bag) face downwards directly on the floor; Zaklina's body was over the twins with her upper portion resting across them and Snezana was prone above the bodies of her three children. Later, a knife was located near Zaklina's face on top of the bodies of her sisters. One of Zaklina's legs was raised in a stiffened fashion. In each case death had been caused by the individuals' throat being cut. The knife found was capable of inflicting the various wounds and being the relevant weapon. 5 Upon questioning by police the appellant denied any complicity in the killings. The death scene and other surrounding circumstances provoked particular interest and some controversy among forensic pathologists and it will be necessary to elaborate evidence which they subsequently gave and this can conveniently be done when dealing with ground 6 which asserted that the verdicts were unsafe and unsatisfactory. 6 In final form the grounds of appeal relied upon the appellant were as follows: "1. His Honour erred in leaving the case to the jury. 2. His Honour erred in his direction in relation to circumstantial evidence. 3. His Honour erred in relation to his directions on lies. 4. His Honour erred in his directions in relation to onus of proof. 5. His Honour erred in not giving appropriate directions in relation to the use that the jury could make of the evidence of Petre Velevski. 6. The verdict was unsafe and unsatisfactory." 7 Ground 1 can be dealt with in the context of ground 6 and will not require separate reference. 8 Mr Buddin SC with Mr Haesler for the appellant (neither of whom appeared for the appellant at trial) submitted that grounds 2 and 4 "drew their colour" from each other and were considerably interdependent. 9 The first complaint in respect of those grounds referred to his Honour's instructions to the jury concerning the drawing of inferences. His Honour had given this general direction: "As ordinary citizens you are not expected or required to leave your commonsense behind, but you are expected to apply such ordinary commonsense to the evidence that you have heard and to your assessment of the witnesses and, just as you do in your ordinary everyday lives, it is open and proper for you to draw inferences from the direct evidence which you find established.