R v Mekic - [2004] SASC 134

R v MEKIC
[2004] SASC 134
Court of Criminal Appeal: Bleby, Gray and Sulan JJ

BLEBY J: In my opinion the appeal should be dismissed. I agree with the reasons of Gray J.
GRAY J:
Introduction
Zeco Mekic, the appellant, was charged with wounding with intent to do grievous bodily harm, larceny and two counts of threatening life. He was acquitted by majority verdict of the charge of unlawful wounding with intent to do grievous bodily harm, but convicted of the alternative charge of unlawful wounding. He was acquitted of all other charges.
Leave to appeal was granted on two grounds:
-The learned trial judge erred in directing the jury to “compare the probability” when considering if any charge had been proved
-      The learned trial Judge erred in admitting evidence of a lie told by the accused –
(a)     to Detective Yazarloo; and
(b)     to a solicitor, Ms D Eszenyi, and then later conveyed to Constable Growden by Ms Eszenyi.
Counsel for Mr Mekic was granted leave to amend the second ground as follows:
-It was an error to admit evidence of a lie told by the accused to his former solicitor and to Detective Yazarloo the lie being that the accused said he had intervened in a fight between the alleged victim and two other men, the accused attempting to help the alleged victim by stopping the fight.
-Evidence of the lie to the accused’s former solicitor (Ms D Eszenyi) should not have been admitted as it was a privileged communication, and the evidence was unsatisfactory as to whether the accused had instructed that solicitor to convey the communication to the police at the time such occurred and waive privilege.
-Evidence of the lie to Detective Yazarloo should not have been admitted, as no caution was administered before the subject lie was stated, and the detective failed to comply with section 74 D of the Summary Offences Act.
-The prosecution relied on the lie as evidence of the accused’s guilt of the charge on the basis that it was told out of a consciousness of guilty. The learned trial judge should have directed the jury that the lie could not be used by it for that purpose.
-It was an error to direct the jury that the lie could be used as evidence of guilt as this implied that the lie was an admission or confession of guilt, and further, ignored the accused’s description of the incident to Detective Yazarloo as an “accident”. Other directions failed to remove this error.
-Alternatively, if the learner trial Judge’s directions on lies were permissible, he erred in failing to direct the jury that in considering the significane of the “lie”, it should have considered the accused’s comment to Detective Yazarloo that the alleged victim was present when the “accident” occurred.
The Crown Case
The Crown case was that on 13 September 2001 Mr Mekic wounded Damir Brajlovic with the intention to do him grievous bodily harm.
On the day of the…

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 Mekic

Details

AGLC: R v Mekic [2004] SASC 134
Case: [2004] SASC 134
Decision Date: 14 May 2004

CaseChat Overview and Summary

In the case of R v Mekic, the appellant, Zeko Mekic, contested the decision of the South Australian Supreme Court in relation to the admission of certain pieces of evidence during his trial. The primary dispute was whether the trial judge had erred in admitting evidence of a telephone conversation between the appellant and Detective Yazarloo, as well as evidence concerning a statement made by the appellant's solicitor, Ms Eszenyi. The case was ultimately heard by the South Australian Court of Criminal Appeal, which was tasked with determining the validity of the appellant's claims regarding the admissibility of this evidence.

The legal issues before the Court of Criminal Appeal were twofold: first, whether the trial judge had erred in admitting evidence of the telephone conversation between Mr Mekic and Detective Yazarloo; and second, whether the trial judge had erred in admitting evidence of the statement made by the appellant's solicitor, Ms Eszenyi. Specifically, the appellant argued that Detective Yazarloo should have administered a caution prior to any conversation with Mr Mekic, as he had reasonable grounds to suspect him of having committed the offence. The appellant also contended that the evidence of Ms Eszenyi was not properly before the jury and that the trial judge had overlooked relevant matters in accepting her evidence.

In addressing these issues, the Court of Criminal Appeal found that there was no substance in the appellant's contentions. Regarding the telephone conversation, the Court held that Detective Yazarloo was entitled to be cautious in discussing the case over the phone and that his refusal to disclose any information without meeting Mr Mekic face-to-face was justified. The Court further found that the trial judge had not erred in admitting this evidence, as it was relevant to the case and did not prejudice the appellant. With respect to the evidence of Ms Eszenyi, the Court held that the judge was entitled to conclude that she had instructions to convey her client's account and that she acted in accordance with those instructions. The Court found no basis to set aside the judge's acceptance of Ms Eszenyi's evidence, as it was consistent with her usual practice and allowed the conclusion to be drawn that she acted in accordance with her instructions.

Based on these findings, the Court of Criminal Appeal concluded that the appeal should be dismissed, agreeing with the reasons given by Gray J. The Court held that there was no error in the trial judge's admission of the challenged evidence and that the appellant's claims regarding the admissibility of this evidence were without merit. Consequently, the original conviction and sentence imposed on the appellant were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Eszenyi gave evidence that she was an experienced solicitor with an established criminal law practice. Although she could not recall the details of her instructions or the relevant conversation, she says that she would not have contacted the police without instructions. In particular, she said that she would not have conveyed her client’s account of the incident without her client’s instructions to do so. The judge was entitled to conclude that Ms Eszenyi had instructions to convey her client’s account and that she acted in accordance with those instructions. It was not suggested that the judge had regard to any irrelevant material or had overlooked any relevant matter. The finding of the judge was made as a matter of probability. This was the appropriate onus to apply to the challenge to the admissibility of the evidence. No basis had been made out to set aside the judge’s acceptance of Ms Eszenyi’s evidence. That evidence allowed the conclusion to be drawn that Ms Eszenyi acted in accordance with her usual practice. There is no substance in the complaint that this evidence was not properly before the jury.Admission of evidence of the telephone conversation involving Mr Mekic Counsel for Mr Mekic submitted that the trial judge erred in admitting evidence of the telephone conversation between Mr Mekic and Detective Yazarloo. It was argued that Detective Yazarloo should have administered a caution prior to any conversation with Mr Mekic as he had reasonable grounds to suspect him of having committed the offence. The challenged evidence was as follows:Defence Counsel: As at 22 September when Mr Mekic telephoned you, do you say that you knew he was represented by a solicitor.Detective Yazarloo: He told me that he was.…Defence Counsel: When he rang you, you had no reason to refuse to speak to him at that point, did you, because you didn’t know a solicitor was acting for him.Detective Yazarloo: Regardless – I didn’t know who this person was. I mean, I couldn’t be certain who this person was, whether it was actually Mr Mekic. I wasn’t willing to disclose any information about this case without meeting the person face-to-face. I was very reluctant to speak on the phone; one, I was about to leave the office, and two, simply because these matters always have repercussions. So I was very reluctant and repeatedly told him that I wasn’t going to disclose any information, that he should attend if he was in fact Mr Mekic, he should attend with his lawyer and some identification so we know it is him and that we can get along with this business.…Defence Counsel: You were keen to speak to Mr Mekic at the time he rang, weren’t you. You have been looking for him.Detective Yazarloo: Yes, I was.Defence Counsel: You proposed to interview him.Detective Yazarloo: Yes, I did.…Defence Counsel: You knew, didn’t you, that you were entitled to caution him then and speak to him.Detective Yazarloo: Sir, had I been certain that he was in fact the person he was saying he was and even on the telephone, I mean that was the whole reason why I refused to speak about the case to him on the telephone, there was the matter of 74D, the Summary Offences Act, there was a matter of cautioning this person if he was in fact the person who he claimed he was, and I kept reiterating to him that he should really come with his lawyer.Defence Counsel: When was it indicated that he had a lawyer in this phonecall.Detective Yazarloo: Sir, the moment he said he was Zeko Mekic I told him I had nothing to say to him unless he was present at the Holden Hill Police Station with video and audio recording equipment going. He mentioned he had a lawyer. I said, ‘Well, in that case you should have your lawyer present as well’ and that was, from my memory, the gist of the conversation. He kept breaking into ‘Damir was at my house and he fought with two Yugoslavs, I had nothing to do with it’. I said ‘Look, I don’t want to hear that, I don’t want to make any comments on this, you should be here with your lawyer’ and he suggested 24 September, the Monday.Defence Counsel: How long did this call last for. Detective Yazarloo: A few minutes.Defence Counsel: How did it end, who ended it.Detective Yazarloo: I did.Defence Counsel: What did you say to end it.Detective Yazarloo: I said ‘Look, I refuse to speak to you’, words to that effect, that I actually refused to speak to him and said that I was going to hang up and I did.

Decision

Reasons for decision

There is no substance in this ground of appeal.Conclusion The appeal should be dismissed. SULAN J: I agree that this appeal should be dismissed. I agree with the reasons given by Gray J.JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT1 R v Dolan (1992) 58 SASR 5012 (1992) 58 SASR 501 at 504-53 (1997-98) 70 SASR 370 at 3784 (1993) 174 LSJS 330 at 332-3335 (2002) 83 SASR 135 at 165-1666 (2002) 83 SASR 135 at 1667 (1979) 21 SASR 5778 R v Grosser (1999) 73 SASR 584 at 6039 (1991-1992) 178 CLR 193 at 21010 Edwards v The Queen (1993) 178 CLR 193 at 210

Ratio Decidendi

Legal Principle Established

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