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

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

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

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.
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.
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.
To express 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 Mikulic

Details

AGLC: R v Mikulic [1999] QCA 349
Case: [1999] QCA 349
Decision Date: 24/08/1999

CaseChat Overview and Summary

In the case of R v Mikulic, the appellant contested the validity of his conviction for a criminal offence, leading to an appeal against the decision of a lower court. The dispute centred on the fairness and accuracy of the trial process, particularly the judge's summing-up and comments made during the trial. The matter was brought before the court to determine whether the trial was conducted with procedural fairness and whether the judge's remarks had any prejudicial impact on the jury's decision-making process.

The legal issues that arose from the appeal related to two main concerns. Firstly, the appellant argued that the directions given by the trial judge regarding his decision not to testify in the witness box had a tendency to reverse the onus of proof, which is an essential element of a fair trial. Secondly, the appellant claimed that certain comments made by the judge went beyond the bounds of fair comment and were prejudicial, potentially influencing the jury's verdict.

The court examined the transcript of the trial and the judge's summing-up to assess the impact of the comments on the trial's fairness. It was determined that the judge's comments about the appellant's absence from the witness box did not reverse the onus of proof, as they were consistent with the legal principle that the accused is not required to give evidence. The court further found that the comments did not exceed the bounds of fair comment, as they were based on the evidence presented and did not improperly influence the jury's decision. As a result, the appeal was dismissed, and the conviction was upheld.

No additional orders were made by the court beyond the dismissal of the appeal and the upholding of the conviction.

Orders