R v Mikulic

[1999] QCA 349

IN THE COURT OF APPEAL	[1999] QCA 349
SUPREME COURT OF QUEENSLAND

C.A. No. 128 of 1999

Brisbane

[R v. Mikulic]

THE QUEEN

v.

CHARLIE RADISLAV MIKULIC

Appellant

McMurdo P. Derrington J. Byrne J.

Judgment delivered 24 August 1999
Separate reasons for judgment of each member of the Court; each concurring as to

the order made.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING-UP - whether directions about the accused’s absence from the witness box had a tendency to reverse the onus of proof - whether comments of fact exceeded the bounds of fair comment.
Weissensteiner v. The Queen (1993) 178 CLR 217 R v. Ellis, CCA SA, 20 March 1998; [1998] SASC 6597
Counsel:	Mr D. R. Kent for the appellant Mr W. A. Clark for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	5 August 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 24 August 1999

1. This case demonstrates the care that has to be taken by trial judges who would comment on factual matters in the course of warning the jury that no adverse inference can be drawn against an accused because of his election not to give or call evidence; it is essential that such comments do not dilute the effect of that warning. I am not satisfied that the comments made in this case had that effect. The appeal should be dismissed for the reasons given by both Derrington and Byrne JJ.

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 24 August 1999

1. I have had the advantage of reading the reasons for judgment of Byrne J with which I fully agree, and would add some remarks by way of endorsement.

2. It would of course be quite wrong of a trial judge to warn the jury against drawing adverse inferences from the accused’s silence and then to imply that they could or should do so. But that does not mean that the judge should give a sterile warning in a limited formal way that has no proper impact, and should avoid further discussion of the point out of fear that it might be misconstrued by a jury, or an appeal court.

3. The jury’s natural tendency is to place some significance upon the accused’s failure to offer in evidence explanations of matters that he could explain, and it is within the judge’s duty to ensure that the warning comes home to them with full force. If then he or she adopts a direct and straightforward approach of referring expressly to the actual issues where the principle is to be applied, it focuses the jury’s mind in a practical way on the point and emphasises it. Its application is then not so likely to be overlooked as when the principle is merely directed in a formal way and without reference to specific applications.

4. To express the adverse inferences in a blunt way that the jury would understand and to replicate their possible untutored thought processes in a stark and simple way is not to endorse them. Indeed, it may help to expose their weakness, but essentially, if it is coupled with the warning in proper terms, it fortifies the warning in the most practical way.

5. However, this requires care to avoid neutralising or diluting the warning. Much depends on the way in which the exercise is performed. The expression of adverse inferences in a tone of disapproval can be very effective in reinforcing the warning, while a tone of acknowledgment of their force would be counter-productive.

6. This court does not have the direct means of determining which applies to the summing-up in the present case, but there are three facts that are useful in inferring it. The first is that there was no complaint or request for redirections by learned counsel for the accused at the time. The second is that no evidence is led to this court on the point. The third is that if the exercise were intended to subvert the effect of the warning, the method adopted would have been remarkably simplistic and transparent, and this is very unlikely to have been the case. It should be added that the defence case was very fully and fairly covered, quite inconsistently with any unfairness in respect of this issue.

7. As against these factors, there is only the interpretation of bare words on the record, which can be very misleading if taken out of their context that includes counsels’ addresses, and without regard to expressive influences. It could be like reading irony at face value. While trial judges and this court must be vigilant to preserve the full force of the warning, equally it would be wrong to visit a proper direction with a fault it does not have. The defect

   complained of in this case has not been demonstrated.

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered 24 August 1999

1. After a trial in the Toowoomba District Court, the appellant was convicted of stealing a video camera owned by Miss Davis. In January 1997, her father gave the camera to the appellant to repair. Mr Davis afterwards contacted the appellant enquiring about the repair to be told that the appellant had needed to obtain a second opinion about what was wrong.

2. In “approximately May, June” 1997, Mr Davis returned to the shop and asked whether the camera had been “fixed”. The appellant went to the back of the premises, staying away for about 15 minutes. On returning, he announced that he could not find the camera, adding that it must be at the place where the second opinion was sourced. A month or so later, Mr Davis discovered that the appellant’s business had closed down. The camera was not returned.

3 The appellant telephoned Mr Davis in 1998. During this conversation,
seemingly by way of explanation for his failure to return the camera, the appellant
said that his “wife”, Ms Mirkac, with whom he had lived at Wyreema, had left him.

1. In May 1998 police officers spoke to the appellant. He told them that Ms Mirkac had taken all his things (“she stole the whole lot; she cleaned the whole garage”) from Wyreema, apparently suggesting that she must also have taken Miss Davis’s video camera.

5 About a year earlier, on 14 May 1997, the appellant had complained to the
police that Ms Mirkac had taken property of his. The complaint related to videos,
television sets, repair equipment, and a “camera” taken, presumably, from Wyreema.

1. Ms Mirkac testified. She denied having possessed any video camera at the end of her relationship with the appellant. She did, however, acknowledge having removed “rubbish” from a shed at Wyreema which the appellant had used during their relationship. This rubbish included “TVs in pieces, videos”. She “very much” doubted that a video camera had formed part of that property.

2. During cross-examination, Ms Mirkac denied a suggestion that she had collected Ms Davis’s camera from a business called Cinamatronics and had taken it to Wyreema before 14 May 1997.

3. No evidence was adduced for the defence.

4. The appellant’s contention is that the summing-up was “unfair”. First, it is said that the directions concerning the absence of the accused from the witness box had a tendency to reverse the onus of proof. Secondly, complaints are made of comments on matters of fact.

5. After directions concerning the burden and standard of proof (about which no complaint is made), the judge turned to the significance of the accused’s choice not to adduce evidence, saying:

   “The accused elected not to give or call evidence. He is entitled to adopt such course and no inference adverse to him may be drawn by following such course. By following such course, he has chosen to leave the evidence in the state it was at the end of the Crown case. He is in effect saying to the Crown ‘I put you to strict proof of my guilt.’ He has chosen not to give any explanation in relation to what might have happened to the video camera, whether, for instance, it ever went to that store for a second opinion, to give any explanation he might have wished in relation to that, any documentation, any matters that could have been checked. He has chosen to follow that course and he is entitled to follow that course and no adverse inference to him may be drawn. He has chosen not to give explanations in relation to a number of matters, such (sic) in relation to when he complained to police on 14 May 1997, whether that was before or after he had the visit from Mr Davis, ... He does not have to prove or disprove anything. The Crown has to prove his guilt beyond a reasonable doubt. You look of (sic) the totality of the evidence before you and on that you decide the facts, you decide the evidence that you regard as credible and reliable, that you accept and are prepared to act on, and then ask yourself the crucial question, ‘has the Crown proved every necessary element of the offence charged beyond a reasonable doubt?’.”

6. The passage is followed by a repetition of the direction concerning the burden and standard of proof. Later, the judge returned to the issue of the significance of the absence of evidence in the defence case. He reminded the jury that an accused is not obliged to give evidence, saying “He is perfectly entitled to do that and no inference adverse to him” may be drawn on account of that choice.

7. Afterwards, the judge referred to Mr Davis’s conversation with the appellant in which reference was made to sending the camera for a second opinion, and commented:

   “The accused is not obliged to give or call evidence. If he had given evidence that matter could have been gone into, where do you say it was, what documentation, what check can be done? It has not, but you decide the case on the evidence of fact before you.”

8. There were requests for redirections. None related to the things which the judge had said concerning the absence of the accused from the witness box. That omission would not matter if the remarks about things that might have been investigated could have substantially undermined the force of his direction that no adverse inference could be drawn from that choice.[1] Still, the absence of a request for relevant redirection rather presents as some indication that defence counsel at the trial (not counsel for the appellant) did not detect in those directions an invitation to the jury to infer guilt more confidently because the accused had not adduced evidence.

   [1]             The judge was not asked to give a direction of the kind discussed in Weissensteiner v The Queen (1993) 178 CLR 217, and we are not here concerned with whether such a direction could have been given despite the existence of an explanation from the accused conveyed through the police evidence: cf R v Ellis, CCA SA, 20 March 1998, SCCRM-97-485; S 6597.

9. Sometimes considerations of fairness may justify embellishing the conventional direction concerning the absence of defence evidence with comment on factual matters. If, for example, a prosecutor’s address invites a jury to use the silence of the accused impermissibly, the judge might readily be persuaded to advert to the suggestion so as to dispel it. And sometimes, having regard to other events or to the evidence, a trial judge might conclude that a jury could reason inappropriately from the absence of the accused from the witness box and, to give emphasis to the usual direction, specially mention impermissible steps in assessing the evidence. However, a judge who is considering such a course needs to be alert to the risk that some jurors may mistake what is intended to be conveyed and proceed to speculate to the disadvantage of an accused about what might have emerged had evidence been called for the defence. The appellant contends that such a risk may have eventuated here.

10. The first of the passages extracted, with its references to absence of explanations, does not expose a serious possibility of misunderstanding by the jury of the effect and significance of the general direction. This initial reference to the facts points up possible approaches to the assessment of evidence which, the jury was unambiguously instructed, could not be adopted. The passage discourages speculation about the absence of defence evidence and pointedly directs the jury not to draw adverse inferences founded on speculation. This is a far cry from remarks with a potential for unfairness to the appellant.

11. The second passage occurred in the context of pointing out that the evidence of Mr Davis concerning conversations with the accused was uncontradicted. It was innocuous.

12. The third extract from the summing up draws attention to “documentation” and other matters which might have been investigated before the jury if the accused had testified. On one view it too is concerned to discourage conjecture; on the other, it might be thought to hint that an adverse inference could more safely be drawn on the basis that what accounts for the appellant’s absence from the witness box is his appreciation that his testimony could not have assisted his defence. But the absence of any request for redirections, coupled with the other directions given, combine to indicate that there is no serious possibility that these, rather unhappily expressed, references to things that might have been exposed by the testimony of the appellant have deprived the other directions of sufficient effect.

13. The other complaints concern comments on facts.

14. In referring to the appellant’s complaint to the police, the judge said that it was for the jury to consider whether the allegation concerning Ms Mirkac was “truthful” or else the statement of “a cunning person trying to cover for stealing property and/or whether it was a tactical move when there was a split with his de facto in relation to possible court proceedings”. Presumably, these were references to the way in which the prosecutor had put his case in addressing the jury; and so the comment is unobjectionable.

15. Next it is said that the summing-up exceeded the bounds of fair comment when the judge discussed Mr Davis’s evidence about the appellant’s visiting the back of his shop before announcing that he could not find the camera. The judge, in that context, invited the jury to consider whether the appellant was “genuinely looking for property that he believed was there”, or whether his going to the rear of the shop was “a charade, a floor show so to speak” conducted at a time when the appellant had already “converted” the video camera. Unfortunately, there is no transcript of the addresses, and it has not been demonstrated that, in the passage in question, his Honour was doing more than stating the rival contentions as they were developed in closing addresses. And, again, there was no relevant request for redirections. In these circumstances, the comments are not shown to amount to a second prosecution address - which no summing-up should appear to be - or to be otherwise unfair.

16. Then there is a complaint concerning the conversation with Mr Davis. The judge posed the question whether, if that conversation took place after 14 May 1997 (when the appellant complained to the police about Ms Mirkac), that assisted them in deciding whether the appellant was a thief, adding that the Crown had submitted that if the conversation occurred after the police complaint, the case presented as clear. In the next sentence, apparently referring to a submission by the prosecutor in his address, the judge mentioned that if the conversation with Mr Davis happened before the appellant complained to the police, it might have been expected that he would have telephoned Mr Davis or his daughter to say that Ms Mirkac had dealt with the camera. The appellant’s complaint is that such a telephone call was not the only logical course of action for the appellant if he were innocent. That may be so, but such a criticism is scarcely a basis for a conclusion that the comment was unfair. The comment, it seems, was a summary of the prosecution case in this respect. And the appellant accepts that the defence case was fully and fairly put to the jury in the summing-up.

17. One or two complaints were made about infelicities of language with no real potential to generate misunderstanding.

18. The appeal should be dismissed.