R v Markan - [2009] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v Markan [2009] QCA 110

PARTIES:

R
v
MARKAN, Peter
(appellant)

FILE NO/S:

CA No 318 of 2008
DC No 286 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

1 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2009

JUDGES:

Muir JA, Mullins and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – Tests – Circumstances not involving miscarriage or in which miscarriage not substantial – Improper admission or rejection of evidence – where appellant convicted of one count of grievous bodily harm – where at trial police witness gave evidence of statement made to him by appellant – where evidence of that statement had been ruled inadmissible – where at trial evidence which could have referred to appellant’s prior criminal history was given – where cross-examination on that point closed off speculation by jury – whether admission of the evidence caused prejudice supporting a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – Tests – Circumstances not involving miscarriage or in which miscarriage not substantial – Misdirection and non-direction – Generally – where appellant self-represented at trial – where trial judge intervened in appellant’s cross-examination of police witness – whether intervention prevented appellant from cross-examining witness as to credit – where trial judge gave explanation to appellant about trial procedure – whether trial judge adequately assisted the appellant as to strict proof of photographic evidence of injuries, meaning of the term “grievous” and process by which issue of self-defence could be placed before jury – whether trial judge failed to ensure the appellant received a fair trial – whether separately or in aggregate the grounds of appeal supported a miscarriage of justice

Evidence Act 1977 (Qld), s 21O

Blacktown City Council v Hocking [2008] NSWCA 144, considered
MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, considered
R v Kerbatieh (2005) 155 A Crim R 367; [2005] VSCA 194, considered
R v Sitek [1988] 2 Qd R 284, considered
Schmidt v Schmidt [1969] QWN 3, considered

COUNSEL:

T Carmody SC, with D R Wilson, for the appellant
M J Copley SC for the respondent

SOLICITORS:

Russo Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Mullins J and with the order she proposes.

MULLINS J: The appellant was self represented when he was tried in the District Court before a jury on one count of grievous bodily harm. As the complainant was a protected witness for the purpose of s 21O of the Evidence Act 1977, a barrister from Legal Aid Queensland appeared at the trial for the sole purpose of conducting the cross-examination of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Markan

Details

AGLC: R v Markan [2009] QCA 110
Case: [2009] QCA 110
Decision Date: 1 May 2009

CaseChat Overview and Summary

In the case of R v Markan, the appellant was convicted of one count of grievous bodily harm and brought an appeal against his conviction. The appeal raised several issues regarding the trial process, including the admission of certain evidence and the trial judge's interventions during the proceedings. The appeal hinged on whether these issues amounted to a miscarriage of justice warranting a new trial or an inquiry. The High Court was tasked with determining if the trial's outcome was fundamentally flawed due to these alleged errors.

The court examined whether the admission of evidence that could have referred to the appellant’s prior criminal history, despite being ruled inadmissible, and the police witness's testimony about an inadmissible statement, prejudiced the trial process. Additionally, the court assessed whether the trial judge's interventions in the cross-examination and explanations to the appellant about trial procedures adequately assisted the appellant in receiving a fair trial. The key issues were whether these errors individually or collectively resulted in a miscarriage of justice.

The High Court held that the alleged errors did not amount to a miscarriage of justice. The court found that the evidence in question did not prejudice the appellant's defence to a significant degree, and the trial judge's interventions and explanations were sufficient to ensure the appellant's right to a fair trial. The court concluded that there was no substantial miscarriage of justice in the trial process.

Consequently, the appeal was dismissed, and the conviction was upheld. The court determined that the trial was conducted fairly, and the errors did not undermine the outcome of the trial to the extent required for a new trial or inquiry.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Markan [2009] QCA 110
PARTIES:	R v MARKAN, Peter (appellant)
FILE NO/S:	CA No 318 of 2008 DC No 286 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	1 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2009
JUDGES:	Muir JA, Mullins and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – Tests – Circumstances not involving miscarriage or in which miscarriage not substantial – Improper admission or rejection of evidence – where appellant convicted of one count of grievous bodily harm – where at trial police witness gave evidence of statement made to him by appellant – where evidence of that statement had been ruled inadmissible – where at trial evidence which could have referred to appellant’s prior criminal history was given – where cross-examination on that point closed off speculation by jury – whether admission of the evidence caused prejudice supporting a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – Tests – Circumstances not involving miscarriage or in which miscarriage not substantial – Misdirection and non-direction – Generally – where appellant self-represented at trial – where trial judge intervened in appellant’s cross-examination of police witness – whether intervention prevented appellant from cross-examining witness as to credit – where trial judge gave explanation to appellant about trial procedure – whether trial judge adequately assisted the appellant as to strict proof of photographic evidence of injuries, meaning of the term “grievous” and process by which issue of self-defence could be placed before jury – whether trial judge failed to ensure the appellant received a fair trial – whether separately or in aggregate the grounds of appeal supported a miscarriage of justice Evidence Act 1977 (Qld), s 21O Blacktown City Council v Hocking [2008] NSWCA 144, considered MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, considered R v Kerbatieh (2005) 155 A Crim R 367; [2005] VSCA 194, considered R v Sitek [1988] 2 Qd R 284, considered Schmidt v Schmidt [1969] QWN 3, considered
COUNSEL:	T Carmody SC, with D R Wilson, for the appellant M J Copley SC for the respondent
SOLICITORS:	Russo Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent