Malesevic v The Queen

Case [2020] SASCFC 109

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

MALESEVIC v THE QUEEN

[2020] SASCFC 109

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)

18 November 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

This is an application for permission to appeal against conviction and an application for an extension of time within which to do so. 

After a trial by jury the applicant was found guilty of trafficking in a large commercial quantity of a controlled drug, namely cannabis.  She was jointly charged with her husband.  He was also found guilty. 

The appeal concerns whether a miscarriage of justice occurred by reason of the directions given and not given by the trial judge in relation to the evidence of a record of interview with another individual admitted pursuant to s 34KA of the Evidence Act 1929 (SA).

The record of interview was adduced as part of the defence case during the course of evidence given by a police officer.  The defence case was that the other individual had possession of the cannabis.  That was the effect of what the individual said to police in the course of the record of interview.  The defence case was that the evidence of the record of interview, adduced by the applicant, made it a reasonable possibility she was not in possession of the cannabis.

At trial the prosecution submitted to the jury that cross-examination of a witness was important in assessing the credit and reliability of a witness.  The prosecutor emphasised that because there was no cross-examination of the individual there were a number of questions that the jury would have wanted answered but this did not occur because he was not called as a witness.  The prosecution submitted that the evidence of the record of interview should not be accepted; that it was a fabrication and that it was made up because the individual was under pressure.

The applicant submits that her trial miscarried as a result of the judge’s direction concerning the disadvantage the prosecution suffered from its inability to cross-examine the individual and by the judge’s failure to direct the jury that they could not draw an adverse inference against the applicant because was the individual was unavailable for cross-examination.

Held (per Stanley J, Parker and Doyle JJ agreeing):

1.  It was necessary for the trial judge to give direction to the jury as to how they could use the evidence of the record of interview.  The direction given by the judge adequately struck that balance between explaining the limits of the evidence while also explaining its significance to the…

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Malesevic v The Queen [2020] SASCFC 109
Case
[2020] SASCFC 109
Decision Date

CaseChat Overview and Summary

The applicant, Ms. Malesevic, appealed her conviction for possession of cannabis. The central issue revolved around the admissibility and use of an out-of-court statement made by one Mr. Moed, who was unavailable to testify at trial. The applicant's defence relied on Mr. Moed's statement to police, which suggested he alone possessed the cannabis. The appeal was heard by Stanley, Parker, and Doyle JJ of the Supreme Court of South Australia.

The legal issues before the court were whether the trial judge had misdirected the jury regarding the weight to be given to Mr. Moed's out-of-court statement, and whether the judge had failed to adequately direct the jury that no adverse inference could be drawn against the applicant due to Mr. Moed's unavailability for cross-examination. The applicant argued that the judge's directions, particularly concerning the lack of cross-examination, created a disadvantage for the prosecution and potentially prejudiced her defence.

The court reasoned that the trial judge's directions concerning Mr. Moed's record of interview were appropriate. The judge had correctly admitted the evidence under section 34KA of the relevant Act, which allows for the admission of out-of-court statements from unavailable witnesses under certain conditions. The judge's directions to the jury emphasised the need for caution when considering this evidence, highlighting that it had not been tested by cross-examination and was not given under oath. However, the judge also correctly instructed the jury that they could still consider the evidence if they found it credible and reliable, and that the prosecution still bore the onus of proving possession beyond a reasonable doubt. The court found that the judge's instruction not to speculate on Mr. Moed's absence was proper and that a direction explicitly stating no adverse inference could be drawn against the applicant might have inadvertently invited speculation.

Ultimately, the court concluded that the applicant had not demonstrated a miscarriage of justice. The trial judge's directions adequately balanced the need to admit the defence evidence with the inherent limitations of out-of-court statements. Therefore, the court dismissed the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 34KA renders admissible the out-of-court statements of persons who are, relevantly to this application, unable to be found. The statement is admissible, without more, if two preconditions are satisfied. First that the person could have testified as to the contents of the statement, and second, that one of the prescribed reasons, other than fear, for the inability to give evidence is made out. It is unnecessary in this case to consider further the issue of fear. Admission of the evidence of Mr Moed On the voir dire the applicant sought the admission of the record of interview of Mr Moed pursuant to s 34KA(2)(d). The application was brought on the basis that Mr Moed could not be found although such steps as were reasonably practicable to take to find him had been taken. The judge granted the application. The record of interview with Mr Moed was adduced as part of the defence case during the course of evidence given by a police officer. The defence case was that Mr Moed, and Mr Moed alone, had possession of the cannabis. That was the effect of what he said to police in the course of the record of interview. Under caution, Mr Moed told police in the course of that interview that he had found the cannabis, the subject of the charge, by the side of a road. He said he brought it to the house occupied by the applicant and her husband. He told police that he was present on the property in the rear yard when the police raided the house. He said he escaped by jumping the back fence. The defence case was that the evidence of the record of interview, adduced by the applicant, made it a reasonable possibility she was not in possession of the cannabis. The prosecutor’s submissions to the jury concerning Mr Moed At trial the prosecution submitted to the jury that cross-examination of a witness was important in assessing the credit and reliability of a witness. The prosecutor emphasised that because there was no cross-examination of Mr Moed there were a number of questions that the jury would have wanted answered by Mr Moed but this did not occur because he was not called as a witness. The prosecution submitted that the evidence of his record of interview should not be accepted; that it was a fabrication and that Mr Moed made it up because he was under pressure. Ground of appeal The applicant submits that her trial miscarried as a result of the judge’s direction concerning the disadvantage the prosecution suffered from its inability to cross-examine Mr Moed and by the judge’s failure to direct the jury that they could not draw an adverse inference against the applicant because Mr Moed was unavailable for cross-examination.The judge’s directions The judge gave the following directions to the jury concerning the evidence of Mr Moed’s record of interview: As you know, Mr Moed didn’t come to court as a witness and give oral evidence. Do not speculate why.I need to give you an important legal direction about using what he said in this interview with the police as evidence rather than evidence that would usually be in the form of oral evidence. As you would know by now, evidence in a trial comprises evidence of witnesses who come into court and give evidence from the witness box after swearing an oath or giving an affirmation. The witnesses are asked questions by the party who calls them. That is an important opportunity to assess the credibility and reliability of the witness, how the story hangs together, how the witness presents, all those sorts of things.The witness is then cross-examined. Cross-examination of a witness is a very important part of a criminal trial. It enables the evidence of a witness to be tested. It enables the further assessment of the witness’s reliability and credibility. It provides the opportunity to put any inconsistencies to that witness for them to comment upon and it also enables alternative scenarios to be put to that witness and be commented upon. The interview between Mr Moed and the police about the cannabis, his description of the packaging, how he came to be in possession of the cannabis, and all the other matters he raises in his interview with police is evidence you may consider in this case. However, I direct you that you must exercise caution in doing so. None of his statements were made in circumstances where he gave an oath or affirmation. Further, you haven’t seen or heard him as a witness in this court. This [sic] has been no testing of what he said in those statements through cross-examination. The prosecution has not been able to cross-examine Mr Moed as to his memory, credibility and reliability of his account. However, that does not mean you cannot rely upon what he said. What I am directing you to do is that before you do so you must scrutinise what he said with care, taking into account any matters you think might detract from his credibility and reliability, including other evidence in the case. Detective Gladigau, in the absence of Detective Bone at the interview, expressed the view that a lot of what Mr Moed said was accurate but you will pause to consider that there were some details as pointed out by the prosecution which were not quite right. You also heard about Mr Moed’s past criminal history and that is a matter you need to consider in assessing whether what Mr Moed said is credible and reliable, including the circumstances in which he presented at Christies Beach police station. You can take Mr Moed’s criminal history into account in assessing his credibility and reliability.If, however, after considering carefully what he said you consider his account is credible and reliable you can act upon what he said accordingly. You do not have to be satisfied of his version beyond a reasonable doubt. If you think it is a reasonable possibility then that would mean the prosecution have not proved the element of possession beyond reasonable doubt and you will acquit both accused. If you do not accept all or any part of what Mr Moed said, you must not draw any inference adverse to the accused or the case they put forward. In other words, you may not accept any part of what Mr Moed said but in doing so that does not mean the accused are necessarily guilty. The prosecution still have to prove the ingredients of the offence beyond reasonable doubt. The applicant’s submissions

Decision

Reasons for decision

In my view, the applicant has failed to demonstrate that her conviction was the result of a miscarriage of justice. Conclusion I would refuse permission to appeal. I would dismiss the appeal. This makes it unnecessary to decide the question of the extension of time. PARKER J: I would refuse permission to appeal and dismiss the appeal. I agree with the reasons of Stanley J. DOYLE J: I would refuse permission to appeal and dismiss the appeal. I agree with the reasons of Stanley J.

Ratio Decidendi

Legal Principle Established

At the trial the accused’s counsel made no complaint in relation to the direction given by the judge in the impugned passage set out above. No request was made of the judge for redirection or further direction. Consideration When considering the directions given by the judge to the jury in this case it is important to remember that the question of the admissibility of Mr Moed’s record of interview had already been decided. The directions to be given did not concern the admissibility of that evidence but its use. It was necessary for the trial judge to give direction to the jury as to how they could use the evidence of Mr Moed’s record of interview. That direction had to explain the limits of that evidence, given that the jury did not have the opportunity to hear viva voce evidence from Mr Moed, while explaining the significance of that evidence to the defence case in order to ensure that the applicant obtained a fair trial. In my view, the direction given by the judge adequately struck that balance. While consideration of weight can be relevant to the exercise of the discretion to admit evidence pursuant to s 34KA of the Act,[4] once the evidence is admitted, the issue of the weight to be given to such evidence remains relevant. [4] R v Haines [2016] SASC 96 at [39]-[40]. When evidence is admitted pursuant to s 34KA it is permissible, if not necessary, for the trial judge to direct the jury to take into account specific factors affecting the weight to be given to evidence of out-of-court statements. Those factors include that the evidence of the out-of-court statement has not been tested by cross-examination. This is not the only factor. In this case other factors include that Mr Moed did not give evidence in front of the jury and the out-of-court statement was not given under oath or affirmation. The jury was required to assess whether any, and if so, what weight should be given to the evidence of Mr Moed’s record of interview. The judge commenced this part of his directions telling the members of the jury that they must not speculate as to the reasons why Mr Moed did not give oral evidence as a witness at the trial. This was a perfectly proper direction. The judge did not fall into error in doing so. This Court is entitled to assume that the jury acted upon this direction. While the judge could have said to the jury that no adverse inference against the applicant should be drawn from the failure to call Mr Moed as a witness, such a direction was not necessary, particularly in light of the direction not to speculate as to why he was not called as a witness. Indeed, a direction that the jury should not draw an adverse inference from the accused’s failure to call Mr Moed as a witness in her defence might only have served to invite speculation as to the reason why he was not called to give evidence and thereby lead to the drawing of an inference adverse to the applicant from her failure to do so. Accordingly, such a direction carried the risk of occasioning unfairness to the applicant.