R v Milohanovic & Wessel

Case [1999] QCA 239

IN THE COURT OF APPEAL  [1999] QCA 239

SUPREME COURT OF QUEENSLAND

Brisbane  CA No 230 of 1998

CA No 237 of 1998

[R v  Milohanovic & Wessel]

THE QUEEN

v

BRUNO MILOHANOVIC  
  -and-
  GARY JOHN WESSEL  Appellants

McMurdo P

Pincus JA

Shepherdson J

Judgment delivered 24 June 1999.

Separate reasons for judgment of each member of the Court; each concurring as to the orders
made.

APPEAL NO  230 of 1998, APPEAL AGAINST CONVICTION DISMISSED.
APPEAL NO  237 of 1998, APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:     1.  MILOHANOVIC’S APPEAL

CRIMINAL LAW - DRUG OFFENCES - RIGHT OF CROWN TO CALL OR REFUSE TO CALL WITNESSES - whether the Crown’s decision not to call two particular witnesses amounted to amiscarriage of justice - appellant claimed that the evidence of these witnesses would have bearing on the credibility of the Crown’s main witness - whether sufficient independent evidence to substantiate the conviction.

R v.  Apostilides (1984) 154 CLR 563 applied

CRIMINAL LAW - APPEAL AND NEW TRIAL - FRESH EVIDENCE - MATERIALITY AND COGENCY - whether in light of the fresh evidence a jury would have been likely to entertain a reasonable doubt about the guilt of the accused - whether the test is “likelihood” or “significant possibility” - whether the fresh evidence was credible.

Gallagher v.  R (1985) 160 CLR 393 applied/followed

Mickelberg v.  R (1986) 167 CLR 259 considered

R v.  Main [1999] QCA 148 (30 April 1999)

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR GROUNDS - UNREASONABLE   AND INSUPPORTABLE VERDICT - whether verdict was unsafe and unsatisfactory - where the credibility and evidence of the Crown’s main witness under attack - whether the evidence as a whole could have sustained a verdict of guilt beyond a reasonable doubt.

M v.  The Queen (1994) 181 CLR 487 applied

2.  WESSEL’S APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - FRESH EVIDENCE - MATERIALITY AND COGENCY - whether in light of the fresh evidence a jury would have been likely to entertain a reasonable doubt about the guilt of the accused - whether the test is “likelihood” or “significant possibility” - whether the fresh evidence was credible.

Gallagher v.  R (1985) 160 CLR 393 applied/followed

Mickelberg v.  R (1986) 167 CLR 259 considered

R v.  Main [1999] QCA 148 (30 April 1999)

Counsel:Mr B. Devereaux for the appellant, Milohanovic.

Mr P. Lafferty for the appellant, Wessel.

Mrs L. Clare for the respondent.

Solicitors:Legal Aid Queensland for the appellant, Milohanovic.

Spina Kyle Roati for the appellant, Wessel.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date: 2 March 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 24 June 1999

  1. I have had the benefit of reading the reasons for judgment of Shepherdson J with which I am in general agreement.

  2. I agree that a review of the conduct of the whole of the trial reveals that no miscarriage of justice has resulted from the prosecutor's decision not to call John Chapman and Doug Evans[1]…

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AGLC
R v Milohanovic & Wessel [1999] QCA 239
Case
[1999] QCA 239
Decision Date

CaseChat Overview and Summary

The case of R v Milohanovic & Wessel involved the appeals by the two defendants against their convictions. The nature of the dispute was the alleged failure of the prosecution to call two witnesses, Chapman and Evans, which the defendants argued led to a miscarriage of justice. The case was heard in the appellate court of Australia.

The primary legal issue the court had to decide was whether the Crown's failure to call Chapman and Evans constituted a miscarriage of justice. The court needed to determine whether the reasons provided by the Crown for not calling these witnesses were satisfactory and whether this failure affected the fairness of the trial. Furthermore, the court had to assess whether the absence of these witnesses resulted in a miscarriage of justice as per the established legal principles.

The court, in agreement with the lower court's decision, found that while the reasons given by the Crown for not calling Chapman and Evans were not satisfactory, it did not necessarily lead to a miscarriage of justice. The court noted that the trial judge was not required to question the prosecutor about the reasons for not calling a witness and that the judge was not obliged to adjudicate on the sufficiency of those reasons. The court also emphasised that a miscarriage of justice could only be established if the failure to call the witnesses resulted in a significant injustice to the defendants. In this case, the court was not convinced that the absence of Chapman and Evans led to a miscarriage of justice, as the Crown did not rely on their testimony to prove Milohanovic's presence near the crop site.

The final orders of the court were to dismiss the appeals by both Milohanovic and Wessel, upholding their convictions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GARY J (dissent)
I agree with Shepherdson J that in each case the appeal should be dismissed.REASONS FOR JUDGMENT - PINCUS JAJudgment delivered 24 June 1999 I have read the reasons of Shepherdson J and am in general agreement with them. I also agree that the appeals should both be dismissed. With respect to the Crown's failure to call Chapman and Evans in Milohanovic's case, I agree with Shepherdson J that the reasons for not calling them, advanced on behalf of the Crown before us, were not stated at the trial to have been operative. The reason given there was that the two men could not be called without that leading to reference to an offence of robbery, which was the subject of a separate trial. It does not appear to me that that was a good reason for not calling Chapman and Evans. In Apostilides (1984) 154 CLR 563, it was held (see the report in (1983) 11 A Crim R 381 at 396) in the Supreme Court that the reasons given for the prosecution's decision were not satisfactory and that it followed that the prosecutor should have called the witnesses. The High Court (154 CLR at 569) appears to have accepted the correctness of this line of reasoning. However, in the general propositions adopted by the court (at p 575), after holding that the trial judge is not obliged to question the prosecutor in order to discover the reasons for not calling a witness, it was said that the trial judge is "not called upon to adjudicate the sufficiency of those reasons". In the present case the judge intimated that he thought that the evidence of Chapman and Evans would be admissible in Milohanovic's case, but did not consider the possibility of calling the witnesses himself. No complaint is made of the judge not having called the witnesses. As Shepherdson J points out, the trial judge was not asked by defence counsel, at the conclusion of the Crown case, to invite the prosecutor to reconsider his decision not to call Chapman and Evans; that might have been an appropriate request. Alternatively, the trial judge, who had been concerned about the matter, might without any request properly have raised the matter with counsel, when the Crown closed its case. But the appeal cannot succeed on this point, unless in the end the Court can conclude that the failure of the prosecution to call the two witnesses gave rise to a miscarriage of justice. Commenting upon that test, the court said in Apostilides that:"In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness". (577)Here, although the reason given for not calling Chapman and Evans was an unsound one, it is by no means clear that the prosecutor's decision not to call them was erroneous. I have been unable to be persuaded that the result was a miscarriage. So to conclude, one would have to hold that the loss to the defence of the advantage of cross-examining Chapman and Evans, which would have been afforded if they had been called by the Crown, has brought about a miscarriage; the defence could of course have called them. The usefulness of Chapman and Evans was that they were likely to say, in contradiction of what Mrsic would if asked have said, that Milohanovic was not present near the crop site on a particular occasion. The Crown did not attempt to prove the incident in question; that is, it was no part of the Crown case that Milohanovic was present in the vicinity of the crop site at the time of which Chapman and Evans were able to speak. The matter would have borne a different complexion if Chapman and Evans had been able to contradict evidence given by Mrsic incriminating Milohanovic; but that was not so.

Ratio Decidendi

Legal Principle Established

Established by:

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