Velevski v The Queen S197/2000 [2000] HCATrans 668 (2 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S197 of 2000

B e t w e e n -

LJUBE VELEVSKI

Applicant

and

THE QUEEN

Respondent

Bail Application

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 2 NOVEMBER 2000, AT 10.19 AM

Copyright in the High Court of Australia

MR THANGARAJ: I appear for the applicant, your Honour. (instructed by Murphy's Lawyers Inc)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

HIS HONOUR: Yes, Mr Thangaraj.

MR THANGARAJ: Your Honour, I rely on an affidavit of my instructing solicitor, Philippa Alexis Winston, dated 31 October 2000.

HIS HONOUR: There are two affidavits from her, actually.

MR THANGARAJ: The amended affidavit encompasses completely the original affidavit.

HIS HONOUR: All right. Is there any objection to that, Mr Blackmore?

MR BLACKMORE: No, your Honour.

HIS HONOUR: Yes, I have read that affidavit.

MR THANGARAJ: Thank you, your Honour. Your Honour, the submission is in this case that exceptional circumstances arise from a combination of factors. The primary one and the one I will deal with first is that there are strong prospects of success at the appeal in this case. This is a case where, as your Honour knows, special leave has been granted.

HIS HONOUR: I think I was a party to the decision to grant special leave, was I not?

MR THANGARAJ: Yes, your Honour. In this case, it will be argued that the expert medical opinion was based on material outside their expertise and the leave application that was referred to was the attendant circumstances. That will be one of the grounds. The second will be the imbalance which, we say, caused a miscarriage of the trial in that the Crown did not call all relevant medical witnesses. Three of those witness - out of the three - at that stage supporting the hypothesis of innocence and, further, that any suggestion that there was a material lie had been, as Justice Gaudron said in the leave application, may have been elevated out of its real significance with respect to how many hours it was suggested that Mr Velevski had been in the room and asleep.

HIS HONOUR: Would you just explain that?

MR THANGARAJ: Your Honour, it was suggested - it was put to the jury that it was a material lie that Mr Velevski had slept or been in his daughters' bedroom for 17 hours continuously.

HIS HONOUR: Your complaint is about the directions to the jury on lies?

MR THANGARAJ: On a material lie, that is right, yes, your Honour. Justice Kirby, in his dissenting judgment, stated why that was not a material lie and, essentially, that will be part of the argument in Canberra.

The Crown has stated in its submissions that the essence of the leave argument really related to the medical evidence in which - that is correct, before the Crown was called upon, but it will be argued at the appeal that a verdict of acquittal should be entered and the reasons are really those set out in Justice Kirby's six reasons for why he thought there were certain things that supported the hypothesis postulated at trial by the accused. I will not take your Honour through those but they are found in the judgment. They really relate to the absence of motive, the absence of any traces of blood anywhere outside the immediate scene, the consistency in the police interviews, the discussions with the neighbours, the possible psychiatric disturbance of the wife, et cetera, those sort of things. I will not take your Honour to those now but in the appeal proper it will be argued that a verdict of acquittal should be entered.

HIS HONOUR: What was the defence case as to how exactly these deaths occurred?

MR THANGARAJ: That the wife murdered the three children and then committed suicide.

HIS HONOUR: By doing what?

MR THANGARAJ: By cutting her throat from ear to ear.

HIS HONOUR: Yes.

MR THANGARAJ: The Crown has said that there is no guarantee that there will be an acquittal, and that is correct. The Crown relies on certain things to say - and ultimately it will argue than an acquittal should not be entered. But that is not the end of the matter in this case because the appeal, obviously in the alternate, would seek that there be a retrial. If there is a retrial, it is almost the inevitable that Mr Velevski will get bail because he got bail below. He had bail during his trial and prior to his trial.

So, in our submission, there really are only two realistic scenarios for this Court: either that a verdict of acquittal be entered or that there will be an order for a retrial. There are prospects of success put in my instructing solicitor's affidavit. They come on the advice of senior counsel. I am not briefed on the appeal. Senior counsel is on the appeal. In our submission, the likelihood of success of the appeal is more than likely. There are high prospects of success and, in our submission, the proviso cannot apply in this case because of the reasons, really, that were ventilated at the special leave application.

Now, if that is the case and given that he had bail prior, therefore, inevitably he will get bail in the Supreme Court after an order of retrial. We say that exceptional circumstances arise given especially that he has already spent three years in custody post-conviction.

Now, the Crown says, and in its written submissions it is said that the evidence of Dr Oettle plus other circumstantial evidence, in itself, was enough to convince the jury of guilt beyond reasonable doubt and therefore there should be no verdict of acquittal entered. Despite Dr Oettle's beliefs about the movement of the body, et cetera, of the wife's body, he still could only place it as high as that he thought it was homicidal which Justice Gaudron thought was a very relevant matter on the special leave application. He could not even put it higher than he thought it was homicidal.

HIS HONOUR: What were the reasons he gave for thinking that?

MR THANGARAJ: One of the reasons was that he did not think that she could have moved herself after one of the initial cuts; the blood splattering on the wall. However, Dr Oettle did rely on attendant circumstances outside his expertise, as Justice Kirby said in his dissenting judgment such as the displacement of the nightie, the displacement of the hair clip, the absence of buttons. No buttons were found at the scene, so there is no suggestion - there can be no finding that the buttons were pulled off in any struggle. There was no buttons found at the scene. There was no blood which would indicate that a button had been picked up off the floor even. So, all these attendant circumstances were used to come to his conclusion. Firstly, it was a conclusion that he should not have made. Despite his expertise, he should not have said it was homicide over suicide. Secondly, he used material outside his expertise. They were the criticisms made by Justice Kirby and they are criticisms that will be made in the appeal.

The Crown also says that Justice Kirby did not deal with the movement of the body in his judgment and that was a significant issue that would weigh against an acquittal. However, it was agreed between the parties or it was consistent between the parties that Dr Bradhurst, the Crown pathologist who favoured the suicide hypothesis - he said the wife could have moved after the blood had come out from the carotid artery being cut. So, there was inconsistent medical evidence on this point. Even this was equivocal.

Now, your Honour, most of the cases that have come before this Court for bail applications have related to futility. There is no suggestion, whatever, in this case that the appeal would become futile in any way. Of course, with the minimum term of 19 years, it could not, but that does not mean that bail is not available. In Chamberlain Justice Brennan decided bail in that case. He refused bail but the reasons that his Honour gave at page 520 of the CLRs - it is on the Crown's list of authorities - was, his Honour said:

In the present case, the verdict of the jury has survived an attack upon it in the Federal Court. It cannot be said that the verdict is likely to be set aside.

That was the critical element for the application of bail in Chamberlain. It was also, obviously, a murder case. There was no suggestion that because of a lack of futility that that bail application should be summarily dismissed. We say the same thing in this case except we say in this case it is likely that the verdict will be set aside. Given that he already spent three years in custody, that will become an exceptional circumstances.

The Crown has dealt with futility. In its submissions, it seems to suggest that Markovina states the proposition that futility is the only basis on which bail can be granted in this Court that the inherent jurisdiction can be invoked. There is an extract from Markovina in the Crown submissions. However, the preceding words of that same sentence have been left out and those words are, "so far as is presently relevant." In Markovina there was a futility argument. That was the only basis on which bail was sought, so that was not propounding a test in any way.

The test is - what we say the test is, is as Justice Gaudron has said in Robinson, simply to serve the ends of justice and to perfect the administration of justice. In that case and all the other bail application cases it has never been suggested that futility is the first question or that it is a requirement before bail will be granted. If it was, then Chamberlain would never have been decided - the likelihood of the verdict being set aside.

The Crown also relies on what Justice Brennan said in Chamberlain with respect to whittling away a jury's verdict. Simply because bail is granted, whether it is in this Court or in the CCA, does not mean that the jury's verdict has been whittled away. Conviction stands until it is set aside, whether someone has a suspended sentence or bail. In my respectful submission, it is not whittling away a jury's verdict such that bail should not be granted when that verdict is tainted. If that verdict is based on inadmissible and prejudicial material or is based on the Crown not calling a balance of medical opinion, then it is a verdict that can and perhaps should be whittled away, and that is not something that would normally count against someone.

HIS HONOUR: It will be for this Court to decide on the hearing of the appeal whether the verdict is tainted.

MR THANGARAJ: Yes, that is right. This is not a case where it is only an appeal on unreasonableness. That would be one where perhaps the jury's verdict should stand or would otherwise - should not be whittled away. But this is a case where it will be submitted that inappropriate material went before the jury and the jury came to a decision and justifiably, but came to a decision based on material that it should not have received, that is, the inadmissible material, but also came to a decision without having all the relevant material. The Crown did not call three supporting doctors but tried to then say that the one supporting doctor, the pathologist, was simply sticking by his original position.

There is no suggestion in this case that the applicant would abscond if bail was granted. That was a relevant consideration in Malvasso and also Hayes. If we get to that stage, your Honour, there is agreement between the solicitors in this case as to what the bail conditions would be. We need some instructions on one thing which we do not think would be a problem but at this stage, if we get that far, that is not going to be a problem.

Your Honour, the summary of our application is that exceptional circumstances arise from the likelihood of prospect of an appeal success, at least of a retrial, in circumstances where bail would then be continued. He has already spent three years in gaol. It is likely that it will be one year before this Court handed down its decision. Given that he has already spent three years - a fourth year, in circumstances where it is more likely than not that he would receive bail in one years time, exceptional circumstances arise.

HIS HONOUR: Thank you. Yes, Mr Blackmore.

MR BLACKMORE: Your Honour, the respondent says that what is required to demonstrate exceptional circumstances "must relate to the proceedings to be conducted and their relationship with the sentence to be served". That is what her Honour Justice Gaudron said in Robinson's Case. Logically, that focuses upon two things: the ultimate merit of the appeal and the length of the sentence, and those two matters could be interrelated. Here, there was no possibility that the sentence would be served. So, with respect, the futility argument is not a strong one.

The merit argument though, despite what is said in the affidavit, you have to look at both sides of the merit: there is a possibility of a retrial; there is a possibility of an acquittal. In relation to the retrial, we would submit that there are strong arguments available, and we cannot deny that. Leave was given on those arguments. But the arguments that were run on the leave application were ones which would amount to a retrial and a retrial only.

In relation to the possibility of an acquittal, we would submit that the possibility of an acquittal is remote, given the evidence in this case. There was positive evidence given in the case by Dr Oettle, which was medical evidence - I am not sure whether your Honour has had access to the books, the appeal books, but there was positive evidence given by Dr Oettle to this effect - I quoted it in the appeal book - that the mother was injured; her throat was cut at a place in the bedroom where she bled profusely to such an extent that, according to Dr Oettle, she could not herself have moved. This is all objective evidence. None of this evidence depends upon any observations he may have made about buttons or anything else. This depends upon medical evidence which was accepted by all of the parties about what happened at the scene. She bled profusely at one particular place in the bedroom. His medical opinion was, having bled in that way, having bled, in essence, most of your blood, you could not move - that was his medical opinion - given that involves the interventions; because she was not found in that position, ultimately, it involves the intervention of another party to move her body to where, ultimately, it was found, stacked on top of her children's bodies.

HIS HONOUR: What was the distance between the place where she bled profusely and the place where she was ultimately found?

MR BLACKMORE: It was not a great deal of distance. It was a very confined space, however, and it would, in a sense, need - I think I mentioned on the leave application, we will have to look at the photographs of the scene at this particular place. It was not a great distance but it was a very confined space. There were other difficulties involved: technical difficulties of medical evidence. She could not have cut - there were two cuts to her throat, both so substantial that they went down to the spinal cord. One of them, in fact, cut the spinal cord. Obviously, if that was the first cut, she could not have moved thereafter. That was not in dispute.

So, if it was she who inflicted the first cut, she cut her own throat down to the point of the spinal cord but did not cut it. She then bled so profusely at that point that most of her blood drained from her body at that point. She would not have been able to then raise her head above her heart, but despite that had to have manoeuvred the children's bodies, which were also killed at different spots from where they were found, into a pile and then raised herself above the pile and cut her own throat down to the level of the spinal cord. It is in that context that Dr Oettle says - - -

HIS HONOUR: Sorry. You mean on that theory she administered two cuts to herself?

MR BLACKMORE: Yes. That is the only theory available to the appellant.

HIS HONOUR: Could you repeat that again?

MR BLACKMORE: She administered two substantial cuts down to the level of her spinal cord in order to kill herself, despite the fact that the first cut would have killed herself without any question of doubt. The case for the appellant here is, based on the medical evidence, "Well, it's a possibility that humans can do extraordinary things" and, as a matter of scientific possibility we could not exclude that she could have moved around after that first cut. Dr Oettle says, "Well, yes, but look how much blood she has bled at this spot. It's most of her blood. People don't get up after having cut their throats like this and bled to that extent." There was no trail of blood, for example, where she had been moving around. "Bled to that extent and then do the other exercises which were necessary."

HIS HONOUR: Including cutting her throat again.

MR BLACKMORE: Including cutting her throat down to the spinal cord over the stack of bodies that she has formed. It means that she has, having cut her throat, bled to that extent, moved around, manoeuvred the bodies into a position, in a very awkward position beside the bed, and then cut her throat again down to the spinal cord.

HIS HONOUR: So, the hypothesis for which the defence were contending required, did it, that she cut her throat twice?

MR BLACKMORE: Yes. There was no other - it was an either/or. It was accepted pretty much and that was the reason that perhaps people slipped into using "murder and suicide" in this case because there really was not any other alternatives available. It was either him or her. Either someone else was there, and it was accepted it was him; or it was her. She had to have cut her throat twice because that was the medical evidence. That is, with respect, why we say it is unlikely in this case, or remote, even, that an acquittal would be ordered. If the evidence is tainted, if there was material that went before the jury that should not have been before the jury - there has been no finding of any court so far that that is the case. The only finding of any court so far is that the jury have convicted this man of a quadruple murder and the Court of Criminal Appeal have upheld that conviction. Admittedly, they have upheld it in a majority decision.

In those circumstances, in our submission - your Honour has our written submissions and no doubt has had access to them, I will not proceed through them. We submit there are a number of circumstances that need to be looked at. Firstly, I have already said, this was a very serious murder. It has been through the process of an appeal. There have been positive decisions from a jury and from the appellate court who have looked at whether or not this was an unreasonable verdict specifically and found that it was not. This is not a case where futility raises itself. There is no possibility his gaol term will be completed prior to the appeal.

Whilst one of the judges in the Court of Criminal Appeal did conclude that the verdict was unreasonable, in our submission, there are errors in that judgment which we did set out some of the errors in our special leave submissions and we will obviously be taking the Court to those on the appeal, and those errors of approach detract from that judgment. I only raise that judgment because it was one of the matters that was raised by Justice Callinan, that there was a dissenting judgment available to the appellant. But, with respect, there are, in our submission, significant difficulties with that dissenting judgment.

In essence, we submit that in this case there is insufficient material before the Court, even taking the matters which militate in favour of the appellant, to say that this is a case of exceptional circumstances and, in that circumstance, bail should be refused.

HIS HONOUR: Yes, Mr Thangaraj.

MR THANGARAJ: Your Honour, as I said earlier, in this case it does not matter whether this Court orders an acquittal or a retrial. For the purposes of this bail application, the same issue arises because it is inevitable that bail will be granted in the Supreme Court if there is a retrial, given that he had bail before.

My friend has just spoken to your Honour about what Dr Oettle said about the possibility of the moving of the body. That question only arose from a question from the trial judge. I know your Honour does not have the application book but I will read out the question, the previous question and answer. Dr Oettle was asked by counsel:

What if there were more minor structures within the throat cut. Could you see that being responsible for that amount of blood loss shown in the photographs?

A. No.

Q. Why is that?

A. Because the minor structures don't carry the volume that that obviously has had. Neither is there evidence of movement away from that area. The bleeding has all happened in one area in front of that cabinet.

The doctor has said, "Neither is there evidence of movement". That is what he said, and then his Honour has interpreted that in a certain way and asked this question:

In other words, are you saying that, having lost that amount of blood at the spot shown in the photographs near the cabinet, irrespective of whether she had at that stage received the cut that cut into the spinal column, because of the loss of blood, she would not have been able to move to the spot where she was found?

A. Yes.

The question that his Honour has asked does not follow from the preceding question.

HIS HONOUR: I did not follow one thing that was put earlier. You might be able to explain it. There was some suggestion, as I understood it, that on the defence hypothesis, not only must she have cut her throat deeply and twice but that in between the first and second cuts, she not only moved herself but had to rearrange the bodies of the children who were by then dead, is that right?

MR THANGARAJ: Yes. That is right. However, despite that - I mean, the doctors who the defence called and the Crown pathologist, the only doctor that came to the scene, still thought that it was more likely that it was suicide. As I said, the Crown pathologist thought that because of the small area of the space that there was no problem removing the body - moving herself, but that question - - -

HIS HONOUR: I am sorry, the point of my earlier question was is it the defence hypothesis that she not only moved herself but also moved the bodies of her three children?

MR THANGARAJ: Yes. The children were found stacked and she was slumped on top. So, they had to have been moved.

HIS HONOUR: Why do they have to have been moved after she cut her throat the first time?

MR THANGARAJ: Because there was some of the children's blood on her back and there was some of her blood that was on top of earlier dried blood, so it was inevitable that the children had to have been moved.

HIS HONOUR: After the first cut?

MR THANGARAJ: Well, whether or not it was after the first cut, I cannot say.

HIS HONOUR: That is the point of my questioning to you. I will repeat the question if I may.

MR THANGARAJ: Yes.

HIS HONOUR: Is it the defence hypothesis that not only did she cut her throat deeply and twice but that in between the two cuts, she not only moved herself but moved and stacked the bodies of the deceased children?

MR THANGARAJ: Yes.

HIS HONOUR: That is the defence case?

MR THANGARAJ: Yes, it is, your Honour. That was the case that was presented to the jury. The case was consistently presented and no doubt all the witnesses were cross-examined on that basis. Dr Oettle, who was the one who was the most - who placed his opinion at the highest, who said he thought it was homicide, he said he said that on the balance of probabilities. That was another concern that Justice Kirby had, that doctors could pronounce this ultimate issue of their opinion but only on the balance of probabilities and informing that opinion on the balance, he used attendant circumstances.

This question that the Crown relies on of the movement of the body, in my submission, it will be argued at the appeal, was ambiguous because it only came about from cross-examination from his Honour, not from being led in-chief of something that would otherwise, one would have thought, would have been an important issue. In my submission, it does not follow, in any case, from the previous question and it could really have been something that was misunderstood.

Now, there were only two hypotheses presented at trial. That was something that also concerned Justice Kirby in that simply because to exclude beyond reasonable doubt the suicide hypothesis, does not mean that there is then sufficient evidence automatically to convict of murder. It may be the only reasonable hypothesis but you still have to get over the evidentiary threshold. That was the criticism made of Justice Grove's reasoning in the majority decision in that he, by excluding suicide, was saying it was open to the jury to convict, and that was another error that pointed to in the majority decision.

The errors that my friend says exist in the minority decision, while they may or may not tell against an acquittal, the errors that were argued at the leave application, in our respectful submission, still would have to result in or more likely than not result in a retrial, and if a retrial is given then he should not spend a fourth year in custody, using the "bail application" test that her Honour Justice Gaudron stated in Robinson.

HIS HONOUR: On 15 July 1997, following a trial in the Supreme Court of New South Wales before Dunford J and a jury, the applicant was convicted of four counts of murder. The victims were his wife and three infant daughters. The applicant was sentenced to penal servitude of 25 years consisting of a minimum term of 19 years and an additional term of six years. The minimum term is due to expire on 14 July 2016.

The applicant appealed to the Court of Criminal Appeal on 10 May 1999. By a majority, the Court of Criminal Appeal dismissed his appeal. On 4 August 2000, this Court granted special leave to appeal to this Court. I was a party to the decision to grant special leave. The applicant, having already made an unsuccessful application for bail to the Court of Criminal Appeal, now applies to this Court to grant bail pending the hearing of his appeal.

There has been no dispute between counsel as to the principles to be applied in dealing with an application such as this. They are explained in cases such as Robinson v The Queen (1991) 65 ALJR 519, Chew v The Queen [No 2] (1991) 66 ALJR 221 and Parsons v The Queen (1998) 72 ALJR 1325. Of course, the statements of principle in those cases have to be read in the context of the facts and circumstances, and the arguments that were advanced.

It is common ground that, as Gaudron J said in Robinson v The Queen, that the jurisdiction which is invoked is that which is inherent and which exists to serve the ends of justice and to perfect the administration of justice. For that reason, circumstances which might properly be described as exceptional and sufficiently exceptional as to justify the grant of bail pending appeal must be made to appear.

A circumstance which is sometimes relied upon in applications of this nature is that, by the time an appeal is heard and determined, the applicant for bail will have served the whole or the major part of his or her sentence. There is no suggestion that such a circumstance exists in the present case. Equally, however, there can be no suggestion that such a circumstance is a necessary condition for a grant of bail. It is simply a circumstance that is commonly relied upon.

Counsel for the applicant placed principal reliance upon the following features of the case. I agree that each is a matter to be taken into account and weighed in favour of the applicant.

First, counsel relies upon the fact that there has been a grant of special leave to appeal. That, in itself, indicates that at least two members of the Court, including me, have taken the view that there are sufficient prospects of success of an appeal to warrant a grant of special leave. It would be inappropriate for me to expand upon the reasons for the decision to grant special leave to appeal, not least because it is possible that I may, myself, be sitting on the appeal when it ultimately comes on for hearing.

Counsel went further, however, and argued that in this case the prospects of success of an appeal are strong. He explained in some detail his reasons for that submission. In particular, he relied upon the reasoning in the dissenting judgment in the Court of Criminal Appeal.

Secondly, reliance was placed upon the circumstance that the applicant was granted bail pending his trial. Counsel argued that there was a significant possibility of outright acquittal if an appeal were to succeed, but he also submitted that even if a retrial were ordered following a successful appeal it is highly likely that the applicant would be granted bail pending his retrial.

Thirdly, it was submitted, in conjunction with the submissions that were made concerning the prospects of success of an appeal, that this is not likely to be a case in which the proviso would be applied even if error were found in relation to the conduct of the trial.

Fourthly, it was observed that the applicant has already spent three years in custody since his conviction.

Fifthly, attention was drawn to the times likely to be involved between now and the hearing of an appeal and between the hearing of the appeal and the giving of judgment.

A consideration of those submissions involves, amongst other things, a judgment as to the weight of the arguments relating to the prospects of success of an appeal. I have paid close attention to those arguments as they were outlined on the special leave application and again this morning.

In my view, the circumstances relied upon by the applicant, considered together, do not amount to exceptional circumstances sufficient to warrant the grant of bail in the present case. The application should be refused.

I will adjourn.

AT 10.57 AM THE MATTER WAS CONCLUDED