R v Plevac [1999] NSWCCA 351

New South Wales Court of Criminal Appeal CITATION : R v Plevac [1999] NSWCCA 351 FILE NUMBER(S) : CCA 60524/96 HEARING DATE(S) : Thursday 28 October 1999 JUDGMENT DATE : 28 October 1999

PARTIES : Regina v Josef Plevac JUDGMENT OF : Grove J at 1; James J at 58; Dowd J at 59

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70041/90 LOWER COURT JUDICIAL OFFICER : McInerney J

COUNSEL : C.K. Maxwell QC (Crown) A.J. Bellanto QC (Applicant) SOLICITORS : S.E. O'Connor (Crown) Patricia White & Associates (Applicant) CATCHWORDS : Criminal Law And Procedure - Murder - Circumstance - Motive - Relationship Evidence Concerning Victim And Appellant - Content Of Charge To Jury - New Evidence - Psychiatrist's Opinion Of Fear Of Fire - Victim Killed By Incineration - Letter Claimed To Be Written By Deceased - Deliberately Withheld On Advice Of Senior Counsel - Content Of Letter Does Not Indicate Miscarriage In Any Event Penney v The Queen 1998 72 ALJR 1316 CASES CITED: R v Murphy 1985 4 NSWLR 42 Chamberlain v The Queen (No 2) 1984 153 CLR 521 R v Kotzmann (1999) VSCA 27 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60524/96

GROVE J JAMES J DOWD J

Thursday 28 October 1999

REGINA v JOSEF PLEVAC

JUDGMENT 1 GROVE J : This is an appeal by Josef Plevac against the conviction for the murder of his wife Dana Plevac following a trial before McInerney J and a jury. Those proceedings were a retrial following orders made in this court on 5 October 1995. 2 The appellant and his wife lived apart. He had been residing in the former matrimonial home at Bossley Park but this was destroyed by fire in February 1989. The victim (who was the appellant's second wife) resided with their daughter Natalie on the fourteenth level of an apartment building in Parramatta. Natalie was at the time of her mother's death aged five. 3 The deceased had been employed as a paymistress and she had commenced an association with a work colleague, Timothy Sullivan. Mr Sullivan had gone to Western Australia seeking employment and a residence. Dana Plevac joined him in Western Australia for a time but returned to Sydney, although it would appear that this return may have been intended to be temporary. 4 There was in existence a restraining order prohibiting the appellant amongst other things from approaching the residence of the deceased. He claimed that he consented to that order to allay an unfounded apprehension of his wife that he might take Natalie to the Czech Republic where he had family including his mother. 5 On the morning of 22 September 1989 Dana and Natalie Plevac emerged from their apartment and were making their way towards the lift in order to proceed to work and to school respectively. An assailant whose head and face were covered by a balaclava-like disguise, doused the victim in what was later identified as petrol and ignited her. Natalie ran to the door of a nearby apartment and was taken in to safety. The victim, aflame, was found by the building manager. He attempted to apply a fire extinguisher. He had been alerted by a signal system that there had been a conflagration of some sort on the fourteenth level. 6 Dana Plevac was taken by ambulance to Westmead Hospital where she died later in the day. Before lapsing into unconsciousness, questions were asked of her concerning the incident and she said that she could not identify her attacker and also specifically said that it was neither her husband nor her boyfriend. 7 The appellant did not dispute that at the relevant time he was in the vicinity. He had himself suffered burns in the fire at the Bossley Park residence. As at September he had only recently been discharged from hospital where he had further treatment in respect of those injuries. He claimed to be on relatively good terms with his wife. She was doing his ironing. He said that he had an arrangement to collect some shirts from her but that he was diffident about being seen (in breach of the restraining order) in the vicinity of her residence. He claimed that she told him to come up and wait in the stairwell. He removed his shirt in anticipation of replacing it with a clean one. At his trial in an unsworn statement he said that he heard screaming whilst he was within the stairwell and when he opened the door he saw a man "in black - in blue tracksuit, towel over head - over neck, on the left shoulder back, jumping and running down." He saw a fire and panicked and ran to his car. Many witnesses saw a shirtless man running in the Parramatta area. The appellant did not dispute that this was him. 8 He drove to Katoomba where he went to a hairdresser. The hairdresser said that she detected sooty-like substance in his hair. An assistant at the hairdressing salon said that she smelled petrol. He made telephone calls to an acquaintance, Betty Cortis, with whom he had been keeping company. He later visited her and asked her to telephone Dana's place of work. She did and passed to him the news that she was dead. She said the appellant appeared shocked and said, "I don't believe it". 9 At about 4.20pm the appellant was driving in Woodville Road, Parramatta when he was stopped by police. He denied killing his wife. The police noticed some burns on the appellant and in response to questions he claimed that these were an aftermath of the fire at Bossley Park. At about 7pm a police medical officer was called and he expressed the opinion that raw, weeping burns which he detected on the body of the appellant had occurred within the last twenty-four hours. The appellant admitted to the doctor that those burns had occurred that morning. 10 There was evidence from observers of violence in the relationship between the appellant and his wife. A daughter of his first marriage, Eva, who visited him in hospital shortly before the events of 24 September testified that her father had appeared distressed because Dana was said to be wearing a new ring on her finger. (He was aware of the existence of Timothy Sullivan.) He complained that he wanted his wife back and felt that he was being rejected because he was scarred and ugly and he said that he wished "she could feel just one bit of the pain he was in." The appellant did not dispute making this statement but he asserted that he was referring to emotional and not physical pain. 11 There was evidence from Anthony Valenti that he knew the accused, who was a milkman and a customer of his motor garage. He often spoke to the appellant. The appellant repeatedly told him that he wanted his wife back and couldn't live without her and he constantly said things like, "I can't live without her. I won't let her stay without me" and "If I can't have her, no-one else will." 12 There was further evidence that on 22 September the appellant had called at a garage where he purchased about fifteen litres of petrol. The console operator at the garage, who was acquainted with him, said that he could not see whether all of the petrol was discharged from the pump into the vehicle or otherwise. The amount of petrol purchased was larger than would have fitted into a container which was found at the scene of the crime and demonstrated to have previously contained petrol. 13 Subject to some reference to asserted evidence from Natalie, who was aged twelve when she gave evidence in the trial with which this appeal is concerned, there was no direct evidence identifying the appellant as the offender. I say asserted in the context of submission on behalf of the appellant to this court to which I will turn. The foregoing is a sketch of the circumstantial case upon which the Crown relied. 14 Twelve grounds of appeal were filed including seven additional grounds sought to be relied upon. Four of these grounds were formally abandoned and it will be convenient to deal with the remainder in the numeral order allocated to them. 15 Ground 4: "The trial judge failed to adequately or properly direct the jury as to the issue of 'relationship' and the use to be made of evidence said to be relevant to that issue." 16 A number of complaints were raised under this ground. During the testimony of Mr Fennell, the building manager of the flats at which the victim resided, the learned trial judge declined to admit evidence concerning the existence of the restraining order which was relevant to the physical presence at the premises of the appellant. A transcript notation shows that counsel stated at this point that he objected to any reference to the apprehended violence order either by Mr Fennell or the police or anybody on the basis that it was not relevant to the case. The precise terms of his Honour's ruling are noted as follows: "His Honour stated that he would not admit that evidence at this stage but granted the Crown leave to recall Mr Fennell to give that evidence if his Honour ruled later on in the trial that the issue of an apprehended domestic violence order should go before the jury."