New South Wales Supreme Court CITATION : Regina v Cakovski [2002] NSWSC 550 FILE NUMBER(S) : SC 70022/02 HEARING DATE(S) : 17/6/02; 18/6/02 JUDGMENT DATE : 18 June 2002 PARTIES : Regina v Daniel Cakovski JUDGMENT OF : O'Keefe J at 1 COUNSEL : Mr Paul Lynch /Mr M Snedden - Crown Mr Bruce Levet - Accused SOLICITORS : DPP, Sydney Downtown - Crown Albert A Macri Partners, Liverpool - Accused CATCHWORDS : Evidence - Tendency evidence - Similar fact evidence - Relevance - Probative value of evidence - Remotely relevant evidence - Comparison of tests under s 101 and s 135 of Evidence Act - Evidentiary onus - Contrast between prejudice and unfair prejudice LEGISLATION CITED : Evidence Act 1995 ss 97, 101, 135 Criminal Appeal Act 1912 s 5F Regina v Boardman (1975) AC 421 Regina v Kilbourne (1973) AC 529 D F Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597 CASES CITED : Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 61 FCR 171 Regina v Lockyer (1996) 89 A Crim R 457 Regina v Edelsten (1989) 18 NSWLR 213 Regina v Steffan (1993) 30 NSWLR 633 Anson v DPP [2002] NSWSC 408, 10 May 2002 (unreported) DECISION : Evidence concerning 1978 events rejected; Evidence concerning events of 19 May 2001 admitted. - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'Keefe J 18 June 2002 70022/02 Regina v Cakovski JUDGMENT INTRODUCTION 1 Daniel Cakovski (the accused) stands charged that on 20 May 2001 at Strathfield, he murdered Eugene Petroff (the deceased), who was born on 11 July 1947. The trial was fixed to commence on 17 June 2002, but due to the unavailability of a court, no jury was able to be empanelled and the trial was unable to commence. However, the time that might otherwise have been lost was utilised by hearing argument on the admissibility of evidence in relation to two matters. Having heard argument I announced my conclusions. However, since the questions that had been decided had been dealt with as preliminary points, I indicated that the matters would need to be raised formally during the course of the trial since there was no right of appeal under s.5F of the Criminal Appeal Act 1912 in respect of the decision made on the preliminary points (Regina v Edelsten (1989) 18 NSWLR 213; Regina v Steffan (1993) 30 NSWLR 633; Anson v DPP [2002] NSWSC 408, 10 May 2002 (unreported)). 2 Counsel for the accused now seeks to adduce evidence of the two matters referred to above, namely : (i) that on 19 September 1978, the deceased murdered three people and killed a dog. The circumstances, which were common ground between the Crown and the accused, were that on the date of the murders the deceased, then aged 31, had been involved in dealing in narcotics and believed that he had been cheated by certain of his associates in the drug trade. He had, as a consequence, shot one person at Wetherill Park and had then driven to Burwood where he shot two other people and a dog. The circumstances in which the shootings occurred, the antecedent situation, the extent of involvement in the perceived cheating by each of the persons who were shot, whether such persons, or any of them, were armed or otherwise, and other events leading up to and surrounding the killings in 1978 are not known, except that the deceased was affected by alcohol at the relevant times. The extent of such affect is, however, not expressed; (ii) that at about 11pm on 19 May 2001 (which was some 5 hours or more prior to the stabbing of the deceased by the accused), the deceased was at a Russian Club at which a Mr Logounov was also present. Again, it was common ground that there had been bad blood between the deceased and Mr Logounov, extending back for a period. The circumstances in which this arose were not revealed for the purposes of argument. However, at about 11pm there was an altercation between the deceased and Mr Logounov in which, for the purposes of the argument it was assumed, the deceased attacked Mr Logounov, scratching him, gouging at his eyes, and inflicting some injuries, albeit not serious injuries. He did, however, go to hospital and report the incident to the police. 3 It was common ground that some time after the time of this attack on Mr Logounov the deceased left the Russian Club in company with some friends, and thereafter for a period was in their company, but not drinking. The facts which the Court was asked to assume for the purposes of the argument included that the deceased appeared to his friends to be in a jovial and non-aggressive mood. 4 The Crown case against the accused is that a young woman lured the deceased into the street in which he was stabbed. Whether this was on a promise that she would engage in sexual relations with him in return for money, which she would use to satisfy her drug craving, is not clear. A further element in the Crown case will be that the accused, who was a friend of the young woman in question, was waiting in an alcove to rob the deceased whilst his attention was otherwise diverted. The case that will be made by the accused is that he killed the deceased in self-defence. His case will be that he came upon the young lady and the deceased in the act of, or in further negotiations in relation to, sex. He sought to intervene, perhaps to prevent any continuance or consummation of an act of sexual gratification on which the accused will say the deceased was bent at the time. Whether this is so and whether his purpose was to protect his female friend, or another purpose, was not made clear for the purposes of the argument before the Court. However, the accused will, according to his counsel, give evidence that when he intervened the now deceased responded with a ferocious attack which, although the deceased was unarmed, put the accused in fear for his life. Thus, it was submitted on behalf of the accused that self-defence will be the issue in the trial – an issue which was described as "a narrow issue". 5 Counsel for the accused further submitted that the matters referred to in paragraphs 2(i) and 2(ii) above, both standing alone and in combination, fell within the tendency rule in s 97 of the Evidence Act 1995 (the Act), and that the evidence should be admitted accordingly. APPLICABLE LAW 6 The law has traditionally been cautious in its dealing with tendency and similar fact evidence. In Regina v Boardman (1975) AC 421, Lord Wilberforce said: "The basic principle must be that the admission of similar fact evidence … is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstances that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence." and: "… much depends in the first instance upon the experience and common sense of the judge. As was said by Lord Simon of Glaisdale in Regina v Kilbourne (1973) AC 529 at 756, in judging whether one fact is probative of another, experience plays as large a place as logic." (supra at 444) 7 The approach adopted by Lord Wilberforce was embraced by Gummow J in DF Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597. He pointed out that: "… whilst evidence of a tendency or propensity to conduct of the kind alleged and in issue may be relevant and admissible as such, it is circumstantial evidence, of a dangerous kind, particularly in a criminal case because of the prejudice that it engenders; accordingly, 'similar fact' evidence will be admitted only if of a sufficiently high degree of relevance to outweigh the prejudice; see Harriman v The Queen (1989) 167 CLR 590 at 597-602 per Dawson J; at 607 per Toohey J (supra at 603)." 8 He reinforced his view by quoting from the paper of Cox J delivered at the AJA Conference in Auckland in January 1991 and entitled "Similar Fact Evidence in Criminal and Civil Cases", namely: "There is high authority for saying that sometimes evidence may pass the test of relevance, but nevertheless be excluded because it is too remotely relevant or would give rise to a multiplicity of issues that it would be profitless to pursue." 9 Gummow J also expressed the view that evidence of or related to the kind in question in the present case: "bears its probative value or cogency not as a matter of deductive logic, but because it allows for the admeasuring of the probability or improbability of the fact or event in issue." (supra at 604) 10 I have referred to the foregoing decisions as indicating the significant reservations with which the common law has hedged the admission of similar fact, tendency and like evidence, especially in criminal trials. The same general reserve has been applied to the situation as provided for under the Act. It was to the cases in which such reserve was expressed that Lehane J, for example, turned for guidance in relation to the application of the Act (Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171). In that case, Lehane J said: "What is clear is that courts have exercised a considerable degree of caution in admitting similar fact or tendency evidence. They have described the degree of cogency required of such evidence in a number of ways, some at least of which give some guidance, I think, as to the meaning of the concept of 'significant probative value' which appears in s 97." (supra at 176) Some of the descriptions include "striking similarities", "underlying unity", "a strong degree of probative force", "a real nexus judged according to experience and common sense". Having looked at a number of these cases, Lehane J concluded: "It is clear … that where … evidence of this kind has been admitted, it has been, as a matter of common sense, clearly and strongly probative of the relevant fact in issue." (supra at 176) 11 Section 97 of the Act relevantly provides as follows: "(1) Evidence of … a tendency that a person has, or had, is not admissible to prove that a person has, or had, a tendency (whether because of the person's character or otherwise) to act in a particular way … if: (a) (Not relevant), or (b) The court thinks that the evidence would not, either by itself, or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." 12 The dictionary set out in Part 1 of the Schedule referred to in s 3 of the Act, defines "probative value of evidence" to mean: "The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 13 In Regina v Lockyer (1996) 89 A Crim R 457 Hunt CJ at CL, having considered s 97 of the Act, pointed out that there was no definition of "significant" in the Act, but that: "in its context … 'significant' probative value' must mean something more than mere relevance, but something less than 'a substantial' degree of relevance'." (supra at 459) In this regard, he thought it of note that the Australian Law Reform Commission had recommended that tendency evidence had to have substantial probative value, but that such recommendation had not been accepted. In the light of this he adopted the view expressed by Dowd J in Regina v Lewis (NSWSC) 20 June 1996, unreported, that "substantial probative value" is a "stronger" test than "significant probative value" (supra id). Hunt CJ at CL then expressed the view that one of the primary meanings of the adjective, significant is "important", or "of consequence". This latter meaning is like the description of an important person as being a person of consequence. He then proceeded: "In my opinion, that is the sense in which it is used in s 97. To some extent, it seems to me, the significance of the probative value of the tendency evidence (whether led by the Crown or by the accused) must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact." (supra id) 14 I approach the meaning and application of s.97 of the Act in the manner deduced from the cases and other material referred to above. 15 If either or both of the matters referred to in paragraph 2 above satisfies or satisfy the requirements of s.97 of the Act, it will still be necessary to consider whether there are discretionary grounds on which the evidence may nonetheless be rejected. Section 135 of the Act relevantly provides that: "The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) … or (c) cause or result in undue waste of time." 16 Counsel for the accused submitted that s.135 should be read and understood against the background of s.101 of the Act. Whilst it is correct to say that an act must be construed as a whole, I do not think that assistance can be gained from s.101 in relation to the meaning or application of s.135. The two sections are different. Section 101 applies only in a criminal proceeding (s.101(1)). Section 135 is of general application, applying to both criminal and civil proceedings (Regina v Lockyer (supra). Section 101 deals with tendency evidence or coincidence evidence about a defendant that is adduced by the prosecution (s.101(2)). Section 135 relates to all evidence including tendency evidence, whether about a defendant or otherwise, and by whomever adduced. Section 101 posits a test that involves a consideration of the probative value of the evidence and a determination of whether the probative value of such evidence substantially outweighs any prejudicial effect it may have on the defendant (s.101(2)). It renders tendency evidence inadmissible unless the Crown can show that its probative value satisfies this test, that is the evidentiary onus lies on the Crown. Section 135 posits a different test. It requires the person who objects to the evidence to demonstrate that the probative value of such evidence is substantially outweighed by a danger of the kind specified in ss.135(a), (b) or (c). Furthermore, insofar as prejudicial effect is concerned it is not any prejudicial effect that is necessary in order to fulfil the requirements of s.135(a). What is necessary is the danger that the evidence might be "unfairly" prejudicial to a party, in the present case, the Crown. ANALYSIS 17 In my opinion the events of 1978 are, as a matter of common sense, too remote in point of time and are not of the strength necessary to warrant admission into evidence. A man when 53 is, according to common experience, likely to be quite different from that man at 31. Furthermore, the fact that such man had spent over 13 years in prison is likely to be a further factor resulting in differences in him over the long period in question. In short, there is no sufficient nexus demonstrated between the deceased in 1978 and the deceased in 2001. Moreover, to allow the evidence would, of necessity, involve an examination of the circumstances of and surrounding the killings in 1978. At this remove in time, that would be a difficult and time consuming exercise. Indeed, given that the persons present at the time of the shootings, whether they be the victims or the perpetrator, are dead, attempting to recreate the situations of 1978 is likely to an impossible or pointless exercise. 18 Given these circumstances and the general reservation of the law to the admission of such evidence, I am satisfied that the evidence would not have significant probative value such as to warrant its admission in the trial. 19 Even were the evidence to have significant probative value within the meaning of that term as used in s 97, I am of opinion that it should nonetheless be excluded on two bases by virtue of the discretion conferred on the Court by s 135 of the Act. The first is that the evidence would be unfairly prejudicial to the Crown. The admission of such evidence would, in my opinion, be likely to concentrate the attention of the jury on events not an issue in the trial in question and in circumstances in which a proper analysis for comparative purposes would be unlikely to be able to be made. The second is that the endeavour to recreate the factual circumstances of and surrounding the killings of 1978 would be likely to cause or result in undue waste of time. For example, establishing the extent to which the deceased was affected by liquor in 1978 or even the amount of liquor that he had consumed prior to the killings in that year, may well be impossible. 20 For these reasons, I am of opinion that evidence concerning the circumstances of and surrounding the conviction of the accused for the triple murders committed in 1978 should be excluded. 21 The night immediately before the stabbing of the deceased is much more proximate to the death of the deceased than the events referred to in paragraph 2(i) above. At most, the time interval between the attack by the deceased on Mr Logounov and the attack on the deceased by the accused is to be measured in hours – probably in the order of five, perhaps a little more. The Crown proposes to adduce evidence that the deceased attended the Club, left some time later it in company with his friends, and was then with them for a further period of time. The events at the Club will therefore be before the jury, and in the circumstances it does not seem to me to be in accordance with reason and common sense to exclude from consideration certain of the events at the Club while admitting others. Furthermore, it is probable that the post mortem examination will include pathology details as to the blood alcohol content of the deceased at the time of death. The circumstances in which any alcohol found in the deceased was ingested, and the period of time over which this occurred will be put before the jury. The effect of the alcohol ingested will be the subject of evidence from the Crown; at least insofar as the period after the deceased left the Club is concerned. To exclude the period of time in which the attack on Mr Logounov occurred would not, in my opinion, be rational. He may in fact have had more drink in this time. He may not have. Either fact would be relevant. That being so, other things he did during such time would, in my opinion, also be relevant. If they included a heavy or violent attack on another person, that could be relevant to show at least the strength or anger of a response by the deceased at a time reasonably proximate to the time he was killed. Furthermore, it is common ground that the attack on Mr Logounov was because of bad blood between him and the deceased. It would be in accordance with common sense and be open to a jury to conclude that the response of the deceased to the accused's intervention in the deceased's sexual pleasure or prospect of sexual pleasure would be likely to be no less heavy or violent than that in which he had engaged but a few of hours before. 22 In these circumstances, I am of opinion that the probative value of the evidence, particularly when taken in conjunction with evidence from the accused (which for the purposes of the present application has been consensually assumed to be as above) is significant. That is, it has importance, and in the sense used above in paragraph 13 above, is of consequence. 23 The effect of the evidence in relation to the assault by the deceased on Mr Logounov does not, in combination with that concerning the events of 1978, operate to cause me to alter my opinion in relation to such last mentioned evidence 24 In view of this conclusion, it is necessary to consider the provisions of s 135 of the Act on the admissibility of the evidence. That section applies to both criminal and civil proceedings (Regina v Lockyer (supra)). 25 An examination of the events involving the deceased and Mr Logounov will not, in my opinion, require a lot of time. There appears to be no issue taken by the Crown to the fact that the deceased did attack Mr Logounov, that he inflicted some (albeit perhaps not serious) injuries upon him, that Mr Logounov was however sufficiently injured or aggrieved to go to hospital, and sufficiently aggrieved to report the attack to the police. It is therefore difficult to see that there will be any prejudice, or any substantial prejudice, to the Crown from the evidence in question. Furthermore, as indicated in paragraph 21 above, the events at the Russian Club on the night of 19 May 2001 will be the subject of evidence whether the events of the period in which the attack took place are admitted into evidence or not. As I have already said, the proximity of the two events is sufficient, as a matter of common sense, for there to be a nexus between them, at least in terms of the extent of the response of the deceased. In these circumstances I do not think that the probative value of the evidence is outweighed by the danger that such evidence might be unfairly prejudicial to the Crown. 26 For these reasons, I am of opinion that to allow the evidence concerning the attack on Mr Logounov would not be either unfairly prejudicial to the Crown or cause or result in undue waste of time. Accordingly, the discretion conferred on the Court by s 135 of the Act should not be exercised against the admission of the evidence and the evidence concerning the attack by the deceased on Mr Logounov at the Russian Club on the night of 19 May 2001 should be admitted. 27 When the matter was further argued this afternoon, counsel for the accused advanced three additional matters of evidence on which he sought a ruling. They were, first, a discussion between the deceased and Mr Pozdeev at the Strathfield railway station in the early hours of the morning of 20 May, 2001 in the course of which it is alleged that the deceased said to Mr Pozdeev, "I wouldn't hurt you," and did so in a mild mannered way. The second is evidence concerning the deceased spitting at the windscreen of a taxi early in the morning of 20 May, 2001. The third is evidence of two incidents said to have been engaged in by the deceased, one in relation to a female person who is said to have sought or obtained an interim apprehended violence order against the deceased; another being an incident to which one witness could depose concerning an alleged admission by the deceased that he had smashed the window of a neighbour's car. Each of these matters, it seems to me, will need to be viewed in the context of the trial as it has proceeded to the time when evidence of such matters came to be addressed. The court would then be in a better position to gauge the way in which either the Crown or counsel for the accused seeks to put such evidence. 28 I think it appropriate therefore that I should defer ruling on the three additional matters raised by counsel for the accused during the course of the argument this afternoon. Rulings on such matters must await the further conduct of the trial. ******* Last Modified: 01/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.