R v Markovski

Case [2023] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

R v Markovski [2023] QCA 52

PARTIES:

R
v
MARKOVSKI, Damian Marco
(appellant)

FILE NO/S:

CA No 7 of 2022
SC No 767 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 1 December 2021 (Applegarth J)

DELIVERED ON:

28 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2023

JUDGES:

Bowskill CJ and Bond and Dalton JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was tried with two co-accused – where the appellant was convicted by a jury of one count of murder – where counsel for the appellant at trial conceded that the defence of aiding in self-defence under s 273 of the Criminal Code (The Code) was not available to the appellant – where the trial judge found there was no basis in the evidence to leave a defence under s 273 together with s 24 of the Code (mistake of fact) to the jury – whether the trial judge erred in failing to leave a defence pursuant to s 273 of the Code with s 24 of the Code to the jury – whether a miscarriage of justice occurred

Criminal Code (Qld), s 24, s 271, s 272, s 273

CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25, cited
Da Costa v The Queen (1968) 118 CLR 186; [1968] HCA 51, cited
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43, cited
Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28, cited
R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, applied
R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited
R v Muratovic [1967] Qd R 15, cited
R v Pangilinan [2001] 1 Qd R 56; [1999] QCA 528, applied
Rogers v State of Western Australia [2008] WASCA 201, cited
Rummukainen v The Queen (2021) 97 MVR 134; [2021] NSWCCA 188, cited
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, cited

COUNSEL:

C F C Wilson for the appellant
M A Green for the respondent

SOLICITORS:

Cridland & Hua Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. BOWSKILL CJ:  On 1 December 2021 the appellant was convicted of the murder of Mr Frescon.  He was charged and tried jointly with two others, Appleby and Torralba.  At the close of the Crown’s case, the learned trial judge ruled that Torralba had no case to answer and he was discharged.  The jury acquitted Appleby on the charge of murder, and was unable to reach a verdict on the alternative, manslaughter – although he later pleaded guilty to manslaughter.  The jury found the appellant guilty of murder.

  2. The appellant appeals his…

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AGLC
R v Markovski [2023] QCA 52
Case
[2023] QCA 52
Decision Date

CaseChat Overview and Summary

In the case of R v Markovski, the appellant was convicted by a jury of one count of murder. The appeal was against the conviction and sentence. The appellant was tried with two co-accused and was convicted by a jury of one count of murder. The trial counsel conceded that the defence of aiding in self-defence under s 273 of the Criminal Code (the Code) was not available to the appellant. The trial judge found there was no basis in the evidence to leave a defence under s 273 together with s 24 of the Code (mistake of fact) to the jury. The appellant appealed against his conviction and sentence.

The appeal raised two key issues. The first was whether the trial judge erred in failing to leave a defence pursuant to s 273 of the Code with s 24 of the Code to the jury. The second was whether a miscarriage of justice occurred. The appeal court considered whether the trial judge should have directed the jury to consider the defence of aiding in self-defence in conjunction with a mistake of fact. The court examined the evidence and concluded that the trial judge had not erred in finding that the defence of aiding in self-defence, in conjunction with a mistake of fact, was not available to the appellant. The appeal court found that the appellant's case did not establish a reasonable mistake of fact that would have made the defence of aiding in self-defence available to him.

The appeal court dismissed the appeal, finding that the trial judge had not erred in failing to leave a defence pursuant to s 273 of the Code with s 24 of the Code to the jury. The appeal court also found that there was no miscarriage of justice. The court held that the appellant's conviction was safe and that the appeal did not raise any issue that could have affected the result of the trial. The appeal was dismissed, and the conviction and sentence were affirmed.

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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