R v Markov - [1999] QCA 479

SUPREME COURT OF QUEENSLAND

CITATION: R v Markov [1999] QCA 479

PARTIES: R
v
MARKOV, Joseph Noje
(Applicant/Appellant)

FILE NO/S: CA Nos 130 and 169 of 1998
Indictment No 71 of 1998

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction and application for leave to appeal against sentence

ORIGINATING COURT:
Supreme Court at Townsville

DELIVERED ON: 17 November 1999

DELIVERED AT: Brisbane

HEARING DATES:
29 April 1999, 21 July 1999

JUDGES: McMurdo P, Pincus JA and Atkinson J

ORDER:
APPEAL AGAINST CONVICTION DISMISSED.

Application for leave to appeal against sentence refused.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – appellant convicted of production of cannabis, unlawful wounding and robbery in company – accomplices in crop production were witnesses for Crown – whether judge's failure to warn jury of dangers of acting on accomplices' evidence caused a miscarriage of justice

Criminal Code, s 632(2)

Robinson v The Queen [1999] HCA 42; (1999) 73 ALJR 1314, considered

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant not identified by victim of robbery – whether sufficient evidence to preclude conviction being unsafe

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – MATERIALITY AND COGENCY - admissions by Crown witnesses that evidence false – inmate alleges that Crown witness claimed to have lied at appellant's trial in order to exact personal vengeance and get a better deal from Crown on murder charge – test for admissibility of fresh evidence

Mickelberg v The Queen (1989) 167 CLR 259
R v Milohanovic and Wessel CA Nos 230 and 237 of 1998, 24 June 1999; [1999] QCA 239, considered
R v Main CA No 387 of 1998, 30 April 1999; [1999] QCA 148, considered

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – whether manifestly excessive

R v Romeo CA No 352 of 1994, 4 November 1994

COUNSEL: Applicant/Appellant appeared on his own behalf
On 29 April 1999, Mr D Meredith for the respondent; on 21 July 1999, Mr G Maguire for the respondent

SOLICITORS: Applicant/Appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P AND ATKINSON J: The appellant was charged with one count of production of a dangerous drug, cannabis, with a circumstance of aggravation between 1 December 1990 and 1 May 1995 (count 1); one count of production of a dangerous drug, namely cannabis, with a circumstance of aggravation between 1 May 1995 and 15 November 1995; one count of attempted murder between 1 October 1995 and 15 November 1995; alternatively, one count of wounding with intent; and one count of robbery in company between 1 October 1995 and 15 November 1995. The appellant pleaded not guilty to all counts. At the close of its case, the prosecution elected…

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 Markov

Details

AGLC: R v Markov [1999] QCA 479
Case: [1999] QCA 479
Decision Date: 17 November 1999

CaseChat Overview and Summary

The case of R v Markov involved an appeal by the appellant against his conviction for production of cannabis, unlawful wounding, and robbery in company. The trial judge had found the appellant guilty, and the matter now came before the court on appeal. The primary issue before the court was whether the judge’s failure to warn the jury of the dangers inherent in acting on the evidence of accomplices constituted a miscarriage of justice. The appellant argued that the omission of such a warning had deprived him of a fair trial, while the respondent maintained that no miscarriage of justice had occurred.

The court examined the legal principles governing the warning to juries about the reliability of accomplice evidence. It considered the relevant authorities and noted that while it is generally necessary for a trial judge to warn the jury about the potential unreliability of accomplice evidence, this does not always lead to a miscarriage of justice. The court assessed the totality of the evidence and the manner in which it was presented to determine whether the failure to give the warning had a significant impact on the outcome. Given the strong and corroborative nature of the evidence against the appellant, the court concluded that the failure to warn did not result in a miscarriage of justice.

Consequently, the court dismissed the appeal against the conviction. The court also considered the application for leave to appeal against the sentence but found no grounds to grant such leave. The decision underscored the importance of caution in finding a miscarriage of justice in criminal appeals and highlighted the need for a comprehensive assessment of all evidence presented at trial.

Orders

Orders of the court

APPEAL AGAINST CONVICTION DISMISSED.

Application for leave to appeal against sentence refused.

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 Markov [1999] QCA 479
PARTIES:	R v MARKOV, Joseph Noje (Applicant/Appellant)
FILE NO/S:	CA Nos 130 and 169 of 1998 Indictment No 71 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and application for leave to appeal against sentence
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	17 November 1999
DELIVERED AT:	Brisbane
HEARING DATES:	29 April 1999, 21 July 1999
JUDGES:	McMurdo P, Pincus JA and Atkinson J
ORDER:	APPEAL AGAINST CONVICTION DISMISSED. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – appellant convicted of production of cannabis, unlawful wounding and robbery in company – accomplices in crop production were witnesses for Crown – whether judge's failure to warn jury of dangers of acting on accomplices' evidence caused a miscarriage of justice Criminal Code, s 632(2) Robinson v The Queen [1999] HCA 42; (1999) 73 ALJR 1314, considered CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant not identified by victim of robbery – whether sufficient evidence to preclude conviction being unsafe CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – MATERIALITY AND COGENCY - admissions by Crown witnesses that evidence false – inmate alleges that Crown witness claimed to have lied at appellant's trial in order to exact personal vengeance and get a better deal from Crown on murder charge – test for admissibility of fresh evidence Mickelberg v The Queen (1989) 167 CLR 259 R v Milohanovic and Wessel CA Nos 230 and 237 of 1998, 24 June 1999; [1999] QCA 239, considered R v Main CA No 387 of 1998, 30 April 1999; [1999] QCA 148, considered CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – whether manifestly excessive R v Romeo CA No 352 of 1994, 4 November 1994
COUNSEL:	Applicant/Appellant appeared on his own behalf On 29 April 1999, Mr D Meredith for the respondent; on 21 July 1999, Mr G Maguire for the respondent
SOLICITORS:	Applicant/Appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent