New South Wales Court of Criminal Appeal CITATION: Jovan Nenadov SAVIC v REGINA [2008] NSWCCA 312 HEARING DATE(S): 17 November 2008 JUDGMENT DATE: 16 December 2008 JUDGMENT OF: Allsop P at 1; Kirby J at 63; Hall J at 64 1. Appeal against conviction dismissed. DECISION: 2. Leave to appeal against sentence granted. 3. Appeal against sentence dismissed. CATCHWORDS: CRIMINAL APPEAL – CONVICTION – asserted miscarriage of justice – verdict said to be unsafe and unsatisfactory – whether evidence of guilty plea in separate proceedings admissible or unfairly prejudicial – whether failure of counsel to object to evidence said to be inadmissible displayed flagrant incompetence – whether error in trial judge failing to accede to application for view – whether error in disallowing certain cross-examination on prior inconsistent statement and credit - CRIMINAL APPEAL – SENTENCE – application for reduction in sentence – sentence said to be excessive – whether sentence reflected objective seriousness of offence – whether failure to take into account and give credit for co-operative manner in which the trial was conducted by the accused – where wounding with intent to murder and wounding with intent to do grievous bodily harm – Crimes Act 1990 (NSW) ss 27, 33 - EVIDENCE – identification evidence – voice identification – visual identification – admissibility – advantage of trial judge – prior inconsistent statement – credit LEGISLATION CITED: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) PARTIES: Jovan Nenadov SAVIC REGINA FILE NUMBER(S): CCA 4739/2005 COUNSEL: Self represented G Rowling SOLICITORS: Self represented S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/1208; 04/21/1037 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 11 April 2005 IN THE COURT OF CRIMINAL APPEAL 4739002/2005 ALLSOP P KIRBY J HALL J 16 December 2008 Jovan Nenadov SAVIC v REGINA Judgment 1 ALLSOP P: This is an appeal by Mr Johan Savic against his conviction on the charge of wounding one Daniel John Eschler (the "complainant") with intent to murder him, contrary to the Crimes Act 1900 (NSW), s 27. Mr Savic also seeks leave to appeal against his sentence for this crime and another committed some months before this offence. 2 The trial was conducted before a judge sitting alone (English DCJ) who, on 11 April 2005, found the offence proven beyond reasonable doubt. In the light of the trial judge's conclusion on the more serious charge of wounding with intent to murder, her Honour did not need to come to any conclusion on the lesser and alternative count in the indictment: wounding with intent to do grievous bodily harm, contrary to the Crimes Act, s 33. 3 The appellant had stood trial previously on the same indictment, in November 2004, before a judge and jury. The jury was unable to reach a verdict. 4 The trial proceeded before English DCJ from 5 April 2005, concluding on 11 April 2005. It was submitted by the appellant that he had consented to the course of trial by judge alone on the basis of advice that had been given to him by his then counsel. As part of the appeal, he said that counsel's conduct in so advising him was incompetent. 5 By April 2005 when the trial took place, the appellant had pleaded guilty (on 8 November 2004) to a charge that on 11 September 2002 (about four months before the events that gave rise to the indictment for wounding with intent to murder) he did break and enter a dwelling house and therein maliciously inflict grievous bodily harm upon the complainant in circumstances of aggravation, namely knowing that there were persons present within the house. 6 After his conviction, English DCJ sentenced the appellant on 6 December 2005 in respect of both offences. In relation to the offence committed on 11 September 2002 to which the appellant pleaded guilty, he was sentenced to a fixed term of imprisonment for five years commencing on 10 October 2003 and expiring on 9 October 2008. A non-parole period was not set as the offence was subsumed in the sentence imposed for the more serious crime. On the more serious offence of wounding with intent to murder, English DCJ sentenced the appellant to a minimum term of imprisonment of six years and six months commencing on 9 April 2007 and expiring on 8 October 2013. An additional term of three years and six months was set commencing on 9 October 2013 and expiring on 8 April 2017. The appellant was eligible for release to supervised parole on 8 October 2013. 7 It is important to understand the events of September 2002 which gave rise to the charge to which the appellant pleaded guilty and the place these events had in the Crown case in relation to the charge of wounding with intent to murder. The evidence of the circumstances of the offence in September 2002 was led to provide evidence of motive for the offence said to have been committed on 22 January 2003 and to demonstrate the relationship between the appellant and the complainant. 8 The complainant gave evidence that he was once friends with the appellant (whom he called "Johnny"). During 2001, they had lived together (with others) in Katoomba. After a falling out, the appellant moved out and the complainant did not see him again until 11 September 2002, by which time the complainant was living at Dalrymple Avenue, Wentworth Falls. On that morning, the complainant said that he was asleep in his room and heard banging on the windows and doors and heard a male voice screaming. He said that he did not recognise the voice immediately, but after he walked out of his room and went into the lounge/kitchen area at the front of the house he saw the appellant through the window holding a baseball bat and using it to try to open the back door. The complainant said that shortly after that he saw the appellant at the front door of the house screaming to be let in. He said the appellant hit the window next to the front door and used the baseball bat to break the window. The appellant entered the house and swung the bat at the complainant, who ran to the kitchen where the appellant hit him a number of times with the baseball bat, causing injuries including a broken elbow and broken bone in his right hand. 9 The complainant's evidence was also that he and the appellant used to call each other names by way of friendly rivalry when playing soccer games. He called the appellant (who was of Serbian descent) "Serb scum" and the appellant called him (of Croation descent) a "Cro dog". 10 The complainant also gave evidence that in 2001 he and the appellant used drugs together. He said that he (the complainant) had contracted hepatitis C in prison whilst getting a tattoo. 11 The transcript of the appellant's former partner (Ms Locke) from the first trial was tendered. She said that at around 8.40 am on the day in question in September 2002, she was in the appellant's car and they dropped their son off at day care. The appellant was angry and said "I'm gunna get this cunt". She asked who he was talking about and he said she knew and that she was coming with him. He drove to Dalrymple Street, parking the car across the road from a house. She gave evidence that the appellant went to the boot of the car, grabbed the baseball bat walked to the house and started tapping on the windows with the bat saying in a loud voice "I know you're in there, you dog cunt. Open up or I'll smash my way through the window". Ms Locke saw the appellant walk to the side of the house (where the front door was situated), smash a window and enter the house through the broken window. She heard a male voice yelling "Johnny, don't". Ms Locke heard yelling and screaming. The appellant subsequently came out of the house and returned to the car and drove off. 12 Evidence was also given in the form of transcripts from the first trial from two persons who were in the complainant's house in September 2002 at the time of the above attack. These two persons and the complainant gave evidence that during the assault the appellant was yelling at the complainant "You gave me hep C you Cro dog". 13 The complainant reported the matter to the police. It was the violent background, the reporting of the matter to the police and the evidence of the breakdown in the relationship between them that led the Crown at the trial of the more serious offence to lead this evidence. 14 Though not part of the Crown case at the trial, in cross-examination of the complainant, he gave evidence that on the night of 10 January 2003, a Mr Parker, whom he knew, was at the front of his house with others yelling and throwing rocks smashing two windows. On 13 January the complainant said that he was walking home and saw Mr Parker and Mr Sinclair (who once lived with him in Katoomba) and another male in front of his house. Parker had a bottle and Sinclair had a long knife. Parker smashed the bottle on a rock and walked towards him in a threatening way saying "come on dog". The complainant understood that they were upset because he had caused the appellant to be charged for the offence in September 2002. The complainant ran off. He was chased by Parker who used the broken bottle to cut his (the complainant's) hand and who jammed the broken bottle into his back. These injuries required him to go to hospital. In cross-examination, the complainant agreed that Mr Sinclair had referred to him as "Cro dog". The complainant also said in evidence that the physiques and heights of Mr Parker and Mr Sinclair were nothing like the appellant. 15 The events of the night of 22 January 2003 were recounted by the complainant. He gave evidence that on that night he and a Mr Walden went to the cinema to watch a film. Upon coming back and arriving at the house, the complainant walked to the front verandah and started to unlock the front door. Both the complainant and Walden then gave evidence that while the complainant was unlocking the door a person came on to the verandah from their left. 16 At this point it should be noted that identification was the crucial issue in the trial. Two astronomical certificates were tendered certifying that on the night the moon was 85% visible, moon rise was at 2259 hours and there was maximum cloud coverage. 17 The complainant gave evidence that there was no light at the front of the house, but there were a few street lights along the road. The moon was out and it was dark, but not pitch black. Mr Walden said that the verandah was quite dark. He said that the street lighting did not provide much light and that the nearest light was on the opposite of the road approximately two houses up the street. 18 The complainant said that the person he saw on the verandah was at first 4 to 4.5 metres away from him. The complainant's evidence was that he asked the person "Who's that?" The person replied "Who is that?" At the time Mr Walden was standing between them. At the trial, the complainant said that he did not recognise the person at the time of first seeing him. The exchange between him and the person was repeated and the complainant saw a glimmer of light from the moonlight on a metal object which the person was holding in his hands at the side of his legs. The complainant said that he stepped towards the person and then "kind of realised who it was". He gave evidence that he recognised the voice as being that of the appellant, although this did not appear in his police statement. The evidence of Walden and the complainant was slightly different as to the description of the person at this point. The complainant, however, gave evidence that he knew that the appellant "had it in for him" and he felt scared once he knew who it was, so he ran and he told Walden to run and said "it's Johnny". He ran off the verandah, past the appellant and felt a punch to his chest above his left nipple. He realised later that he had been stabbed. He continued to run down the driveway. He crossed the road. He ended up at the front yard of a neighbouring house and was tackled from behind by the appellant. They struggled and then the complainant ended up on his back. The appellant attacked him at close quarters above him with a knife, inflicting a number of stab wounds. The complainant said at the trial that he recognised who it was who was stabbing him, that he knew for fact who it was and that it was the appellant kneeling over him inflicting these stab wounds. The complainant's evidence was that the appellant was saying to him "I'm goin' kill ya, you dobbed me into the cops". 19 The attack eventually stopped. The complainant said the he "played dead" and the appellant got up and walked away saying "don't dob me into the cops". 20 Walden did not give clear identification evidence. He had headed off in the opposite direction after the appellant chased the complainant. 21 Walden later took the complainant to the hospital where he was treated by Dr Haffner. 22 The complainant was visited at the hospital by a friend, Amy Prince, and by his mother. The complainant gave evidence that Prince asked him who it was and that he had told her it was Johnny. Ms Prince gave the same evidence. 23 The complainant's injuries were a number of serious stab wounds to the upper quadrant of his abdomen, one in the area of the heart to the left of his chest, one in the area of his left shoulder blade, one to his right hand at the base of his little finger, a laceration in the area of his left ear and various superficial scalp lacerations. The complainant underwent emergency surgery for his abdominal wounds at the Katoomba Hospital. Following the operation, he was transferred to Liverpool Hospital because of a life threatening complication, being bleeding from the heart. There was medical evidence as to shock which was relevant as to the reliability of the identification. 24 The appellant gave evidence and was cross-examined. The evidence that he gave of the events of September was significantly different from that of the complainant and was in some respects contrary to the un-cross-examined statements of persons who gave evidence at the first trial. His history of the relationship between him and the complainant was different, emphasising the complainant's familiarity and selling of drugs. The appellant denied the attack. 25 The trial judge accepted the evidence of the complainant as both honest and accurate and rejected the evidence of the appellant as totally unreliable. Ground one: that the trial miscarried as a consequence of the Crown Prosecutor's opening submission to her Honour; namely the admission into evidence by the Crown Prosecutor of inadmissible evidence that the appellant had pleaded guilty to another incident that would prejudice her Honour in determining the issue raised at trial 26 The evidence of the events of September 2002 were said to be inadmissible and "went to the very heart of the proceedings and caused the trial to miscarry". The Crown Prosecutor opened as follows: Your Honour the two matters that are currently before the Court consist of the trial matter that your Honour had just heard particulars of, and a matter that preceded that, which is an aggravated breaking and entering of a house and an assault committed on the same person Mr Eschler. That matter resulted in a guilty plea, and for reasons that I'll elaborate upon in a moment, some of the facts that attach to that case will form part of the evidence in this particular one. So at the end of the case, regardless of the verdict in the trial matter your Honour will be well placed to make a determination as to the facts that effectively surround, not just the trial matter but the earlier one as well. I turn to the trial matter. 27 This was not objected to by counsel. This was said to be an illustration of counsel's incompetence. 28 I reject this submission. 29 The appellant disputed the substance of some of the evidence led by the Crown about September 2002. In that evidence, he denied the account of the circumstances out of which the offence arose that was the Crown case and gave evidence that it arose because the complainant refused to return to the appellant a gold chain which he had handed to the complainant as security for the payment of drugs bought from the complainant on credit. That, however, did not make the evidence inadmissible. 30 As the Crown submitted on the appeal, the evidence about the events of September 2002 was relevant. It was relevant to the Crown case against the appellant, since it was evidence of motive and of the relationship between the complainant and the appellant. It was not admitted as tendency evidence and the judge did not use it as such. In particular, since her Honour was required ultimately to sentence the appellant for the offence, it was not unreasonable for her to be told of the plea. The plea was the legal embodiment of the admission that he had committed the earlier attack. Her Honour directed herself as to the manner in which the evidence of the offence of September 2002 should be used and no complaint was made about that direction. 31 This ground of appeal fails. Ground Two: that the learned trial judge erred in failing to accede to an application by trial counsel to have her Honour attend the location where it was alleged the appellant assaulted the complainant; namely the complainant's evidence was clearly confusing as to his description of what he could or could not hear and see at the time of the assault 32 No error was made by the trial judge in her ruling on 5 April that she was not prepared to have a view. The trial judge expressed the view that if during the course of evidence she thought it might be of assistance she would raise the matter with trial counsel. She did not do so, presumably because she did not feel it necessary. The evidence of identification was as to voice and close visual identification. The assailant was directly upon the victim. 33 No further application was made by trial counsel to have a view. No error has been shown in the trial judge's approach. 34 This ground of appeal fails. Ground Three: the learned trial judge erred by disallowing trial counsel's cross-examination of the complainant as to his participation in an act of injecting himself with heroin; namely, it was put to him that in the previous trial he had said something inconsistent which bore directly on his believability and his credit 35 Credibility and identification were central to the trial. The trial judge permitted a body of cross-examination about whether the complainant injected himself with drugs, whether the appellant injected him, and whether he knew how to inject himself and mix drugs preparatory to injecting himself. 36 After several objections as to relevance and assertions by trial counsel for the appellant that it went to the credibility of the witness, there was a detailed exchange in the absence of the witness. Trial counsel submitted that it was an aspect of his cross-examination to credit and identified inconsistency in the evidence that the complainant had given at the previous trial with the evidence he had given in chief at this trial. 37 After detailed submissions, the trial judge took the view that she could not see how who injected him (the complainant) before 1999 was relevant and disallowed the questions. All this cross-examination went to prior inconsistent statement and credit. Bearing in mind the terms of the Evidence Act 1995 (NSW), ss 102 and 103 and the course of a somewhat disjointed and rambling cross-examination (leaving aside the interruptions by way of objection), it has not been shown the cross-examination that had preceded the ruling by her Honour was of sufficient probative value to lead to the conclusion that there was any error in her Honour stopping the questioning. 38 This ground of appeal fails. Ground Four: the trial miscarried as a consequence of trial counsel's flagrant incompetence; namely that he did not object to the admission into evidence by the Crown Prosecutor of inadmissible evidence and counsel's advice to the appellant to conduct the appellant's trial on the basis of judge alone trial 39 The appeal proceeded on the basis that the advice given by counsel was that there should be, or that there could be, a judge alone trial. There was no waiver of privilege asserted about any other aspect of the communications with counsel. 40 There has been no incompetence shown. The evidence of what happened in September 2002 was not objectionable and it could have been led before a jury or a judge. Identification evidence was crucial, as was credibility. Given the apparent circumstances of the violence of the attack in September 2002 on the complainant's version and the savagery of the attack in January, it might well have been thought to be a prudent course for the appellant's counsel to prefer a judge alone trial in the light of the fact that the evidence was admissible and likely to be admitted. 41 There is no basis to conclude that the advice was other than competent. 42 There was no denial of procedural fairness. There was no lack of competence shown. 43 This ground of appeal fails. Ground Five: the proviso has no application in this case as error has been demonstrated and there has been a substantial miscarriage of justice 44 I will come to this under ground seven, below. Ground Six: for each of the above reasons alone and in combination there has been a miscarriage of justice 45 No error having been shown this ground of appeal does not arise. Ground Seven: the verdict is unsafe and unsatisfactory and should be set aside 46 The Crown case depended upon the acceptance of the credibility and identification evidence of the complainant. The identification was of a man who, at night, in extremely close proximity to the complainant, spoke to and knelt over the body of the victim being stabbed. There was ample ground to think that the complainant could be positive about both the voice and the visual identification, albeit in the night darkness, given his personal familiarity with the appellant. 47 Given the advantage of the trial judge hearing and seeing the witnesses, there was a powerful case of the guilt of the appellant on the evidence that was accepted by the trial judge. There is no basis to conclude that the trial judge in any way misused her position in coming to her views about the credit of the appellant and the complainant. 48 Even if I am wrong as to any aspect of the complaints as to the conduct of the trial by the primary judge I do not see that any such error has caused any substantial miscarriage of justice on the evidence. Bearing in mind the trial judge's advantages, it was a case that on the materials appeared to prove the guilt of the appellant beyond reasonable doubt. 49 In oral address on appeal, the appellant made submissions additional to those in writing. He said that he did not use the phrase "Cro dog". This was a matter dealt with in the evidence. The submission reflected, to a degree, a tendency for the appellant to identify "prejudicial" material (that is, material supporting the Crown's case) with inadmissibility. 50 He submitted that there was a conflict between the evidence of Dr Haffner and of Ms Prince. Dr Haffner said that he did not allow anyone near the complainant at the hospital and Ms Prince said that the complainant said "It was Johnny" to her while waiting to be attended to at the hospital. 51 The trial judge accepted that Ms Prince had this conversation with the complainant. The evidence of Dr Haffner was not such as to require this to be rejected. 52 The appellant also stressed that the attackers of the complainant earlier in January 2003 threw his conviction in doubt. Again, the question of identification was central. Her Honour, after directing herself as to the requisite caution, accepted the complainant's evidence of the close visual and voice identification. 53 The appellant also stressed the last words said by the attacker as he was walking away ("don't dob me into the cops") as indicative of a lack of intent to murder. The trial judge dealt with this, saying it could have been said in a sense of self-justification. It is not a factor which throws into any doubt the strength of the case on intent, given the extrinsic circumstances and the violence of the attack. 54 The appeal against conviction should be dismissed. The application for leave to appeal against sentence 55 There were two grounds identified in relation to sentence: (a) an assertion that the sentences were excessive; and (b) a failure to take into account the utilitarian benefit of the manner in which the appellant conducted his trial. 56 Complaint was made also about the failure to set a non-parole period for the offence committed on 11 September 2002. 57 The offences were ones of serious violence. In each episode, but in particular the second, the victim was subjected to a violent and brutal attack. The sentences in my view adequately reflected the objective seriousness of the offences. In my view, neither was excessive and taken together there was no excessive accumulation. 58 It was said that the trial judge failed to take into account and give credit for the co-operative manner in which the trial was conducted. Trial counsel made no such request to the judge. 59 There was no miscarriage of the discretion. 60 In the circumstances, it does not fall to this Court to resentence the appellant. If the question of resentencing had arisen there were matters of evidence which the appellant wished to address. He made submissions on the appeal which required a body of underpinning evidence to be legitimately made. The Court indicated that if it came to resentencing the appellant he would be given an opportunity to lead that further evidence. 61 Given my view that there is no error revealed in the sentencing judge's approach, the issue of further evidence does not arise. 62 In my view of the orders of the Court should be: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal against sentence dismissed. 63 KIRBY J: I agree with Allsop P. 64 HALL J: I agree with Allsop P. ********** 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.