Malesevic v The Queen

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.