R v Mijailovic

[1992] QCA 480

IN THE COURT OF APPEAL [1992] QCA 480

QUEENSLAND

C.A. No. 247 of 1992

THE QUEEN

v.

STEVAN MIJAILOVIC

Appellant

Mr Justice Pincus Mr Justice Davies Mr Justice de Jersey

Judgment of the Court delivered on 18th December, 1992

Appeal allowed. Convictions quashed. Order that there be a retrial of the appellant on both counts (numbered 1 and 3 on the indictment).

IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 247 of 1992

Before the Court of Appeal

The Hon. Mr. Justice Pincus

The Hon. Mr. Justice Davies

The Hon. Mr. Justice de Jersey

T H E Q U E E N

v.

STEVAN MIJAILOVIC

Appellant

JUDGMENT OF THE COURT

Delivered the 18th day of December, 1992

Counsel:P. Ridgway for the Crown

P. Nase for the appellant

Solicitors:Director of Prosecutions for the Crown

Rowan, Silva and Associates for the appellant

JUDGMENT OF THE COURT

Delivered the 18th day of December, 1992

The appellant was convicted on two counts, the production of more than 100 cannabis plants near Kirrama Station between 1st April and 18th May, 1991, and the possession of equipment

used in connection with that production. The grounds of appeal pursued before us concerned the admissibility of certain pieces

of evidence, and alternatively, the sufficiency of the learned trial Judge's direction as to how the jury might deal with that evidence.

The charges arose from the apprehension by police officers of the appellant and another man Mrsic near to cannabis crops growing near Kirrama Station, and statements made after that by

both the appellant and Mrsic. The Crown relied on Mrsic's

statements against the appellant on the basis that the appellant had, by his own statements or conduct, adopted what Mrsic said.

The police officers located the men at a camp in a remote mountainous area of dense tropical rainforest. There were three crops of young cannabis plants near to the camp. There was evidence of recent cultivation of those plants. Tools ordinarily used for cultivation were located around the camp site. Tracks led to the camp, and those tracks were concealed by recently felled trees. Mrsic's four wheel drive vehicle was

situated some distance away, also in a remote spot, and it contained more farming equipment. The appellant and Mrsic told the police that during a pig shooting expedition, they had

stumbled across a marijuana crop at another location. There had been nobody about, so they helped themselves to some farming

tools, which they then took with them to this other site where

they set up camp. They denied responsibility for the marijuana
crops.

There was obviously a substantial circumstantial case against the appellant, but the challenge to the convictions was in this appeal based on the admissibility of statements which

could amount to admissions. Those statements fall into two

categories.

The first involved the appellant's question to Detective

Sergeant Nicholls, shortly after his arrival at the site: "Who

put you onto us?". Mr. Nase, who appeared for the appellant,

submitted that evidence of that question was not properly admitted. The basis of the submission was that the expression was equivocal, not clearly capable of indicating guilt. In developing that submission, Mr. Nase also challenged the

reliability of the evidence.

The police officer took only scrappy notes of the site,

leaving it until the next day to set down his recollection

comprehensively in his note book. He unfortunately did not record the conversation by means of a tape recorder. The detective told cross-examining Counsel that the best he could

therefore say was that his account in evidence was "something

along the lines of" the actual conversations. But he stood by his evidence on this point when cross-examined about it, and in

view of its idiomatic character, the difficulties arising from the lack of a contemporaneous record would not render that

evidence so inherently doubtful as to warrant its exclusion. That still leaves the issue whether the equivocal character of

the question should have led to its exclusion.

Mr. Nase urged that no clearly sinister complexion could be

put upon the question. It might, he suggested, be interpreted

simply as an inquiry as to how the detectives had found the men at such a remote location. But the expression plainly does carry a potentially sinister meaning, implicitly acknowledging that the appellant and Mrsic were "up to no good". That being

so, the Judge was correct in overruling the objection to the
admissibility of the evidence.

The appellant alternatively challenged the sufficiency of

the Judge's direction as to how the jury might use the evidence.
The Judge gave the usual direction about the use of evidence of
admissions, adding that the jury had to be satisfied that they
knew "what the words mean". Mr. Nase submitted that the Judge

should have added that the jury should consider whether other words were used, possibly less incriminating or not incriminating at all. The Judge did however direct the jury

that they must be satisfied that the words alleged were in fact

used, and that they were true in the sense of not being mistaken or made under threat or otherwise unreliable, and he then went on to alert the jury to the need to be clear as to the meaning of the words, in the manner mentioned earlier. The direction was therefore sufficient.

The second category of statements involves three items of evidence. By this time, Detective Nicholls had warned the appellant and Mrsic of their right not to answer questions. The two men had spoken together, and although Detective Nicholls could not pick up what they said, he gained the impression that they would not make any statement. The two men were handcuffed

together. Nevertheless, after a while, Detective Nicholls

sought to engage them in conversation. The first item of

evidence emerges from this passage:
"I sat near them and I said to them, 'So, how old are the

plants, Ivan? Three or four weeks, I'd reckon.' He said, 'Yes, about that but we didn't have any seeds. We just found the plants when we were pig hunting.' I recalled Mijailovic at that point also interjecting and agreeing with what Ivan was saying and he said something like, 'Yes, we didn't have any seeds. We just found them.'"

In his direction to the jury, the Judge referred to the
Crown contention that by those words, "Yes, we didn't have any

seeds", the appellant expressly adopted what Mrsic had said (including his expression of view as to the age of the plants),

adding what the Judge described as the "interesting", or as the Crown would say "confessional" words, "we didn't have any

seeds". Mr. Nase submitted that that interpretation was not clearly open, and that the Judge should have said so: in the first place, the appellant's use of the word "Yes" to introduce

his statement should not have been regarded as an adoption of

everything that Mrsic had said; and second, because the statement, "we didn't have any seeds" was not confessional in character, and was consistent with the claim about the pig hunting expedition during which the appellant had innocently

stumbled upon these crops.

A question did arise as to the reliability of this claimed recollection of the words said by the appellant. That question did not arise significantly with relation to the question "Who put you onto us" because of the idiomatic character of that form

of expression. But there was nothing so distinctive about this form of words. The placement of the introductory word, "Yes"

was, on the Crown case, significant. Because of the inadequate recording of the conversation, and the appellant's apparent difficulty with the English language, the jury may therefore have considered whether they could be sure of the form and

content of that statement attributed to the appellant. Although the Judge invited the jury to consider the truthfulness of the police account, he did not advert to the question of its

reliability. A warning specifically directed to that question

would have been desirable.

But that aside, this evidence would be admissible against

the appellant only if it bore an incriminating character. It is

very doubtful whether the statement "we didn't have any seeds", seen in context, could bear that character. Further, accepting that the appellant did begin his statement with the word "Yes",

did he thereby acknowledge the truth of everything Mrsic had

just said, including his expression of opinion, three sentences

earlier, as to the age of the plants? We consider that that would involve reading far too much into his use of that word. This evidence should not have been admitted against the

appellant, because to the extent that the appellant could reasonably have been regarded as acknowledging the truth of what Mrsic had previously said, that was not incriminating, and

because the appellant's own additional statements were not

incriminating.

The second incriminating statement was by Mrsic. The

appellant remained silent following this statement. The

evidence follows on from that just quoted:
"I replied with something like, 'Yes, they all say that,

but you've still been sitting on them for the last three weeks or so and looking after them, and if we hadn't come along and caught you, they would have grown up and you'd have picked and sold it, would you?' Mrsic said, 'Yes, but it's not much. Maybe six or seven kilo. You smoke that in tobacco.'"

The Judge left this to the jury on the basis that they might consider that the appellant thereby acknowledged the truth of Mrsic's admission, by reason of the appellant's own failure to intervene with a denial. But it is difficult to read that

significance into the appellant's having remained silent. Of course one may not infer, from the exercise of the right to remain silent, any consciousness of guilt: Petty v. R. (1991) 173 C.L.R. 95, 99. Should the appellant have been regarded as

exercising that right? Detective Nicholls had warned the appellant of his right to remain silent, and the detective's impression was that he wished to exercise that right. It is

important to note that while Mrsic spoke, the appellant was

handcuffed to Mrsic. He was compulsorily present. With the

appellant having the right to remain silent, being conscious of that right, and being compulsorily in Mrsic's presence as Mrsic

spoke, one should be very reluctant to draw from the appellant's failure to intervene any acknowledgment on the appellant's part

of the truth of Mrsic's assertions or a consciousness of guilt on the appellant's part. While the question whether such inferences should be drawn will ordinarily be a matter for the

jury (cf. R. v. Salahattin (1983) 1 V.R. 521, 528-9), there was here no reasonable basis for regarding the appellant's silence

as consistent with anything but his exercise of the right to which he had been alerted. Apart, therefore, from the question of the reliability of this evidence, the suggested basis for its admission against the appellant was not open, and the evidence should have been excluded.

The third incriminating statement was contained in this

subsequent passage:
"I said, 'So who are you sitting on the crop for?' Mrsic

said, 'No-one'. Mijailovic also said, 'No-one'. Mrsic said, 'You won't believe us. We just found the plants on another crop. I tell you about it. We found it burnt by fire. We got the small plants and put them down here. Did you see that wire cage thing back there?' He then said something which I believe was, 'That's what we brought it down in'. I then said, 'No, what? To carry the plants in'. At that point Mijailovic interjected with a muffled comment which I didn't understand and Mrsic stopped the conversation."

The Crown contended that by not interrupting prior to the "muffled comment", the appellant should be taken to have agreed with what Mrsic was saying. But for the reasons expressed with relation to the last item of evidence, the appellant should be regarded as having exercised his right to remain silent. It may well be that by the muffled comment, the appellant was reminding Mrsic that he, Mrsic, should be doing likewise. This item of

evidence also should have been excluded.

The admission of those three items of evidence against the appellant may have significantly affected the jury's minds against him. Notwithstanding the apparent substance of the circumstantial case against the appellant, the appropriate course in light of decisions including Driscoll v. R. (1977) 137 C.L.R. 517 is to quash the convictions and order that there be a

retrial of the appellant on both counts (numbered 1 and 3 on the
indictment).