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The Queen v Milohanovic and Wessel[1999] QCA 239

The Queen v Milohanovic and Wessel[1999] QCA 239

 

IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

 

CA No 230 of 1998

CA No 237 of 1998

 

Brisbane

 

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.
  1. 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] for the reasons he gives.
  1. A review of the whole of the evidence in the trial against Milohanovic as summarised by Shepherdson J demonstrates that it was open to a reasonable jury to be satisfied beyond reasonable doubt of the guilt of Milohanovic.[2]
  1. As to the fresh evidence from Tracy Lloyd Clancy relied upon by both appellants, Clancy's extensive criminal history and the delay in making his claims that Mrsic has given false testimony cause me to have serious concerns about his reliability as a witness.  Clancy's claims were subsequently denied in an affidavit sworn by Mrsic.  I am not satisfied Clancy's evidence is sufficiently cogent to meet the test required of fresh evidence.  Furthermore, had Clancy's evidence been called at the trial of the appellants, that evidence, considered with all the other evidence set out by Shepherdson J, does not lead me to conclude that there was a significant possibility or a likelihood that a jury acting reasonably would have entertained a reasonable doubt as to the guilt of either appellant.[3]
  1. I agree with Shepherdson J that in each case the appeal should be dismissed.

 

REASONS FOR JUDGMENT - PINCUS JA

 

Judgment delivered 24 June 1999

 

  1. 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.
  1. 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". 
  1. 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.
  1. 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.

  1. As I have said, I agree with the orders proposed by Shepherdson J.

 

REASONS FOR JUDGMENT - SHEPHERDSON J

 

Judgment delivered 24 June 1999

 

  1. On 18 June 1998 in the Supreme Court at Townsville each of the above appellants was found guilty by a jury of a charge that between 1 May 1995 and 15 November 1995 at Mt Fox, he had unlawfully produced the dangerous drug cannabis sativa - the charge contained a circumstance of aggravation.  The first appellant Milohanovic, has appealed against his conviction on a number of grounds.  He was given leave to add further grounds and on the hearing of the appeal his counsel, Mr Devereaux argued three grounds only.   They were:

Ground 2A (an added ground)

There was a miscarriage of justice as a result of the decision of the Crown Prosecutor not to call two persons namely John Chapman and Doug Evans.

Ground 9 (an added ground)

A miscarriage of justice has occurred by reason of the fact that evidence now available to the applicant was not called at the trial.

PARTICULARS

  1. Evidence is available to the applicant that the principal Crown witness Ivan Mrsic, gave false evidence at the applicant's trial.
  1. The evidence is contained in the affidavit of Tracy Lloyd Clancy to be filed in this Honourable Court.

Ground 1

The verdict is unsafe and unsatisfactory.

  1. The second appellant's notice of appeal contained a number of grounds and on the hearing of the appeal his counsel Mr Lafferty argued only the following ground leave to add which was given by this Court.

1.That a miscarriage of justice has occurred having regard to all of the circumstances of the trial in light of the fresh evidence which has subsequently become available from witnesses Tracy Lloyd Clancy and Trevor Charles Stone.

MILOHANOVIC'S APPEAL

Ground 2A

  1. This ground focuses on the evidence of Ivan Mrsic, a witness in the Crown case and who, at the time he gave evidence, was serving prison sentences including a sentence on his plea of guilty to the same charge of unlawful production of cannabis sativa at Mt Fox and a sentence for his having unlawfully killed Nicola Stepic a man involved in the same production.  His evidence was to the effect that Milohanovic was a crop sitter between some time in May 1995 and 14 November 1995, at a site on Disaster Creek, Mt Fox.  His evidence alleged that Milohanovic engaged in various activities at the crop site including clearing, planting seeds, tending to the plants and looking after the crop.
  1. The evidence showed that on 16 November 1995, police located the cannabis crop in a heavily vegetated area on Mt Fox, outside Ingham.  They found a camp site with a "dwelling of sorts" and a drying shed with numerous cannabis plants near the camp site.  They also found the dead body of Nicola Stepic and I shall again mention this aspect of the case.
  1. There was no physical evidence connecting Milohanovic to the crop site.
  1. About 7 kilometres from the crop site at Oak Hills Springs, was a property owned by a man named Joseph Markov whose wife Elenora Bangau Markov, was  a co-accused with the above two appellants when the trial began.  Later in the trial a nolle prosequi was entered on the charge against her.  One of the witnesses in the Crown case named Geoffrey William Braiding was present at Oak Hill Springs when police arrived there on 20 November 1995.  Oak Hill Springs was searched and items of evidence there obtained were tendered against Elenora Markov and Wessel.
  1. On 23 November 1995, police searched premises which were old cane cutters' premises known as the Cantamessa Barracks.  The barracks belonged to the Cantamessa family who lived next door to Oak Hill Springs.  At this place was a motor vehicle registered in Mr Markov's name.  Several quantities of cannabis and baling twine were found.  These suggested the barracks were used to dry cannabis.  A finger print of the appellant Milohanovic was found on a duchess drawer in the main bedroom in the barracks.
  1. At 15 Gort Street, Ingham, which was the Markovs' home, police found an address book in which were Milohanovic's Melbourne address 37 Clara Street, East Brunswick and telephone number  (AR97/50).  On 16 April 1996 police including Detective James attended at and searched a residence at 37 Clara Street, East Brunswick and arrested Milohanovic (AR103/45).
  1. At this appellant's home police found a number of items which later became evidence against Milohanovic.  They were:-
  1. a document with Markov's telephone number on it (Exhibit 37) (AR106/10).
  1. an envelope containing airline boarding passes (Exhibits 38A to 38C) and these showed the appellant Milohanovic travelled as follows:

●from Townsville to Melbourne on 16 October 1995 - R106/44

●from Melbourne to Townsville on 23 October 1995 - R107/8

●from Townsville to Melbourne on 31 October 1995 - R107/36

  1. documents from NORQEB - North Queensland Electricity Corporation showing the electricity supply for Cantamessa Barracks was in the name of B Milohanovic (Exhibits 36A, 36B and 36C).
  1. During the investigation police had taken statements from Chapman and Evans the persons referred to in ground 2A.
  1. In the Crown case against Milohanovic, Mrsic was the only witness who gave evidence that Milohanovic was actively involved in the production offence.  He said:

●in about April 1995 he had first met Milohanovic at Markov's residence at 15 Gort Street and that at about the beginning of May 1995 he went with Joe Markov to establish a camp site in the Mt Fox area; (AR296)

●the idea of the cannabis crop was Mr Markov's - "it was his idea he financed it"; (AR398)

●Milohanovic's job was "helping out, helping me with the plantation, clearing land"; (AR294/39)

●about 2 weeks after Mrsic and another fellow (identified by Mrsic as Emmie or Imie) had started establishing the area in preparation for the planting, Mr Markov arrived with Milohanovic - Imie left and Milohanovic "was with me then"; (AR296/7)

●the appellant helped carry a food locker onto the camp site; (AR310)

●Mrsic and Milohanovic lived on the camp site permanently; (AR312)

●Milohanovic was present when Mr Markov told them that Mrsic and Milohanovic were each to receive one-half of one-third of the proceeds of the crop and Mr Markov and Wessel were each to receive a third of the proceeds;

●Milohanovic told him that the Cantamessa Barracks was like another drying shed because it was very hard to dry marihuana properly at Mt Fox, because of a lot of moisture in the air and the barracks was ideal for final drying; (AR318)

●about halfway through the tenth month in 1995 Milohanovic left for Melbourne and returned on about 3 November 1995, a day when Mrsic was shot by Mr Markov; (AR316); Mrsic said that before Milohanovic left for Melbourne he said he had some problem in Melbourne with his pension. [Mrsic's evidence as to his being shot did not suggest the shot severely disabled him]

●Cantamessa Barracks was discussed by Milohanovic and a man named Nicola Stepic in his presence.  He said the conversation was "about why they used that and they say that - that Bruno Milohanovic say one time that he didn't want to have his electricity bill from that Cantamessa Barracks because he say it will be easy traced to him" and "that the electricity bill is in his name and the place is used as a marihuana base and if someone finds out he is going to be in trouble". (AR323)

  1. Exhibit 36A was the NORQEB account dated 18 January 1996 addressed to B Milohanovic, Cantamessa Barracks, Hawkins Creek Road via Ingham.  Exhibit 36B was a security deposit receipt from NORQEB for $100 dated 6 February 1995 in the name of "B.  Milohanovic, Hawkins Creek Road via Ingham".  Exhibit 36C was a postage paid envelope from NORQEB addressed to "B.  Milohanovic, 37 Clara Street, East Brunswick Vic 3857".
  1. Mr Devereaux's submissions are that Mrsic's evidence was crucial to the Crown case against Milohanovic and therefore his credibility was crucial.  In a statement made to police, Mrsic alleged that on the day after he was shot, he and others were in a vehicle when they came upon the appellant Milohanovic, not far from the crop site and walking along the road in the direction of Ingham.  The defence case was that Milohanovic had taken no part in the plantation and was never in the area of the plantation.  Milohanovic neither gave nor called evidence in his defence.
  1. Evans and Chapman were in the vehicle with Mrsic.  The Crown did not propose to elicit this evidence from Mrsic and before any evidence was led at the trial, the Crown Prosecutor told the learned trial judge that the Crown did not intend to lead that evidence from Mrsic because the prosecutor saw it as part of the evidence relevant to an armed robbery involving Mr Markov but not involving either Milohanovic or Wessel.  The robbery charge was a matter which had earlier led the trial judge to sever the trial of the above two appellants and Mrs Markov on the production charge from the trial of Mr Markov on the same charge.
  1. Mr Bradshaw, trial counsel for Milohanovic wanted Evans and Chapman called in the Crown case so that he could cross-examine them.  Each of these persons had given evidence at the committal hearing and on that occasion each said that on the occasion of the road incident no-one was picked up.  Such evidence, if led before the jury, would have contradicted Mrsic's evidence on that aspect of the road incident.
  1. Before evidence in the trial began, the learned Crown Prosecutor told the learned trial judge that he considered the evidence of Evans and Chapman inadmissible because it was part of the robbery case and irrelevant to the trial.  The prosecutor said he could not see how the evidence could be led without reference to the robbery for which a separate trial had been ordered (AR16).  His Honour suggested their evidence may well be relevant but accepted the prosecutor's decision not to lead the evidence saying "Well, I can't direct you to call any evidence".
  1. Nevertheless, the issue was raised several times during the trial:
  1. on the second day of the trial Mr Bradshaw asked Detective James, the principal police witness - "During the course of his [Mrsic's] statement and a description of an incident, two names, namely Chapman and Evans were forthcoming, who have not been charged with anything arising out of this and could independently verify my client's ... ."

before objection was taken and the jury retired; (AR119)

  1. on the second day of the trial and in the absence of the jury the trial judge suggested that the evidence as to the presence or otherwise of Milohanovic would be admissible; (AR145) 
  1. on the third day of the trial when Mr Bradshaw raised the matter again, His Honour did not rule on the admissibility of evidence preferring to leave the matter "until it becomes a live issue";  (AR186-188)
  1. at R186, Mr Bradshaw is recorded as saying "I acknowledge it's premature because until we hear from Mrsic I don't want to argue the point fully, but I am giving the Crown notice that unless they put the evidence fully and properly before the Court, I will be seeking to have the trial aborted." [No application to discharge the jury was ever made].  During cross-examination of Mrsic at trial, Mrsic agreed with the suggestion of Mr Bradshaw that on the day after the shooting he was in a car with Chapman and Evans and he came across the appellant on the road, and the car stopped and picked him up; (AR346)
  1. when in cross-examination Mr Bradshaw put to Mrsic "My client says you are a liar that he was not there on that day",  Mrsic replied "Well if your client say that I'm a liar there are Doug Evans, there are - there are John Chapman ... ."  His Honour then interrupted the answer (AR347).   A little later in the same cross-examination Mrsic agreed with Mr Bradshaw's suggestion that Chapman and Evans (and a Gavin Evans) were there and "could come along and back  you up and say Bruno was on the road";  (AR365)

  1. (f)at R371 (in the absence of the jury but still during Mrsic's cross-examination) His Honour, addressing the prosecutor said:

"Mr Collins I am a bit concerned.  Twice now you have said in front of the jury that the evidence of these two men will not be admissible.  That is contrary to what - I haven't ruled on it because I haven't been asked to rule on it, but I have certainly given an intimation that I don't think that is right and I don't think it is appropriate for you to be saying things like that in the way you have twice now in front of the jury."

  1. A little later (also at R371) His Honour said:

"Nobody is trying to place that evidence before the court at the moment, neither Mr Collins nor you [Mr Bradshaw].  Of course it is too early for you to do so but it is at present not a relevant matter to [be] giving a ruling upon."

  1. At the close of the Crown case the learned trial judge was not asked to invite the Crown Prosecutor to reconsider his decision not to call Evans and Chapman (see proposition 3 stated by the High Court in The Queen v Apostilides (1984) 154 CLR 563 at p 575), nor did the judge take that step of his own volition although he had a discretion to do so.
  1. I thought it surprising that Mr Bradshaw did not ask His Honour to take that step and I say that because after the summing-up, Mr Bradshaw sought to have the judge redirect the jury by telling them that the failure of the Crown to call Chapman and Evans in what Mr Bradshaw called "a significant event" may cause the jury to infer that those persons' evidence would not assist the Crown.
  1. When seeking redirections Mr Bradshaw asked the learned trial judge to explain to the jury that "one area they could look to an inference is that Chapman and Evans weren't called in a significant event and you could infer, not speculate, you could infer that they could not give evidence for the Crown."  (AR561-2)  
  1. His Honour declined and pointed out that he, Mr Bradshaw had put that to the jury.

Mr Bradshaw did not call either Evans or Chapman to give evidence for the appellant Milohanovic.  Nor did he apply to have the jury discharged.

  1. Given the way the evidence on this aspect came out in front of the jury there can be no doubt that the jury must have been well aware:
  1. of evidence from Mrsic that Chapman and Evans were in the vehicle with Mrsic when, according to Mrsic, he saw Milohanovic walking on the road and the vehicle stopped and picked him up;
  1. that Milohanovic's counsel, Mr Bradshaw put to Mrsic that he Mrsic was lying in that respect, and that Mrsic denied that suggestion;
  1. that neither Chapman nor Evans was called to give evidence in the Crown case although Mrsic had said during his cross-examination that these two men could support his claim.
  1. To succeed in Ground 2A the appellant must show that the decision not to call Evans and Chapman, when viewed against the conduct of the trial as a whole, is seen to give rise to a miscarriage of justice (Apostilides at p 575).
  1. Mrs Clare for the Crown has submitted that this test has not been met.  She further submitted that:
  1. it was open to the defence to call Chapman and Evans particularly in circumstances where the issue of what Chapman and Evans may have seen was raised by Mr Bradshaw when cross-examining Mrsic;
  1. for tactical reasons the defence chose not to call these two witnesses - Mr Bradshaw addressed after the Crown and in his address appears to have told the jury that it could infer that neither Chapman nor Evans could give evidence for the Crown in support of Mrsic; (AR562)
  1. Now there is no doubt that both these witnesses were available to be called by either side to give evidence.  Obviously Mr Bradshaw wanted to cross-examine them in the Crown case rather than call them himself to give evidence.  Obviously also, by not calling any evidence, Mr Bradshaw was able to address the jury after the Crown.
  1. The decision not to call Evans and Chapman in the Crown case was the prosecutor's alone.  Mrs Clare (who was not the trial prosecutor) has, in response to questions from the Bench, submitted that the Crown was not obliged to call both witnesses and she put this submission on the bases of unfairness to the Crown and unreliability.  I do not understand the Crown Prosecutor at trial to have ever said that either of these matters was a basis for not calling either person as a witness.  Whatever the reason for the prosecutor's decision, neither Chapman nor Evans was called.  The decision not to call them was the prosecutor's alone, but I have concluded from a reading of the transcript, that Mr Bradshaw for tactical reasons decided not to ask the learned trial judge to ask the Crown Prosecutor to reconsider his decision not to call Chapman and Evans and also for tactical reasons did not call either of these persons to give evidence for his client.
  1. Did the Crown's failure to call them as witnesses cause a miscarriage of justice?  In answering this question I think it is important to bear in mind that Mrsic's credibility was under attack by Milohanovic's counsel.
  1. If that attack were to be pressed home by the defence calling two witnesses to contradict Mrsic's evidence of the "road incident", and if their evidence was as important to the defence case as it is now said to be, then given the Prosecutor's decision not to call them, one would have expected Mr Bradshaw to have taken that step.  Instead the opportunity was allowed to pass and now, after conviction, the matter is again raised in the Court of Appeal but in a different form and with a view to having the conviction set aside.
  1. Mrsic's evidence of the "road incident" placed Milohanovic, usually a Melbourne resident, walking along a road not far from the plantation site far away from Melbourne and at a time a few days after he had flown from Townsville to Melbourne. 
  1. There was independent evidence which was capable of connecting Milohanovic to the crop production - the plane trips between Melbourne (where his house was) and Townsville brought him reasonably close to the crop-site, (about 2 hours drive away) his fingerprint in the Cantamessa Barracks, the NORQEB electricity account in his name with power switched on in February 1995 and finally read in January 1996.
  1. A Ms Kondisenko from NORQEB gave sworn evidence that on about 17 January 1996 a Mrs Markov asked that the power account for supply of electricity to Cantamessa Barracks be terminated and she identified the documents in Exhibits 36A, 36B and 36C, 36A being the final electricity bill (AR422).  She said that on 6 February 1995 "electricity was first switched on in the name of B. Milohanovic"  (AR422) .  The fingerprint and the electricity account confirmed Mrsic's evidence as to his conversation with Milohanovic when the latter spoke of the electricity bill for Cantamessa Barracks in his name and thus Milohanovic's connection with those barracks where on 23 November 1996, (AR63) police found green leafy material identified as cannabis sativa, cannabis sativa seeds and orange baling twine which appeared to be the same sort of baling twine as that located at Disaster Creek.  Detective James said the baling twine:

"had significance in that how it was attached to the wall on both sides of the room.  It appeared to have been strung across the room and in conjunction with the floor there was numerous cannabis seeds etc. on the floor.  It appeared that - to have been used to dry cannabis there."  (AR78)

This evidence confirmed or tended to confirm Mrsic's evidence as to his conversation with Milohanovic when the latter spoke of the better drying facilities at Cantamessa Barracks.

  1. As will shortly appear in these reasons when I deal with Ground 1 of Milohanovic's appeal - the "unsafe and unsatisfactory" ground - Mrsic was cross-examined at some length  concerning his honesty and dishonesty and his past criminal record.  Suffice it to say, for the purposes of Ground 2A, the following matters were brought out before the jury:
  1. Mrsic admitted that when on 7 December 1995 police first spoke to him concerning the Disaster Creek plantation he did not mention Bruno Milohanovic saying he was more concerned about a murder charge than the cultivation and "I tried to exclude myself from Bruno and everyone else on marihuana part."  (AR326).  He admitted that on 7 December 1995 he down played his role and in order to do that lied to the police (AR390). 
  1. In January 1996 Mrsic made his second statement to police and then implicated Milohanovic telling Mr Bradshaw "I had no choice but - because they already knew everything."  (AR326/50)
  1. On 14 November 1995 Stepic had been killed and on 16 November 1995 his body was found at the crop site.  Mrsic was subsequently tried on a charge of murdering Stepic.  On 18 June 1997 he was acquitted of that charge but convicted of manslaughter for which he was sentenced to 10 years imprisonment.

He was also sentenced to a term of imprisonment for his part in the production of cannabis at Mt Fox.

  1. Mrsic, who the evidence showed had quite an extensive criminal history since arriving in Australia in 1960, admitted he was sometimes honest and sometimes dishonest (AR390) and that in the 1960's and 1970's he had convictions for stealing including stealing some 370 kilos of gold mixed with mercury.
  1. In summary then, the jury must have been well aware that Mrsic, the principal witness concerning Milohanovic's physical involvement with the Mt Fox cannabis crop was a man with a past history of offences of dishonesty, a man who admitted lying to the police on 7 December 1995, and a man who on his own admission was sometimes honest and sometimes dishonest.
  1. The jury must also have been well aware from the manner in which Mr Bradshaw conducted the defence of his client and from his address to the jury, that the defence case was that Milohanovic had no involvement at all with the Mt Fox crop and was never at the crop site and that on the evidence of Mrsic the principal witness in the Crown case, Mrsic being a dishonest person, the Crown had failed to prove beyond a reasonable doubt that Milohanovic was guilty.
  1. Nevertheless the jury did convict and there were, as I have pointed out a number of pieces of independent evidence which in certain respects confirmed or supported or were capable of confirming or supporting Mrsic's evidence.  Apart from those pieces of evidence, there was evidence of the discovery in Markov's home of an address book containing Milohanovic's address and phone number and the finding at 37 Clara Street of Markov's phone number.   There was evidence of phone calls between Ingham and 37 Clara Street but that evidence did not prove conclusively Milohanovic was one of the callers.  The jury's assessment of Mrsic's credibility was a matter entirely for the jury.    
  1. The jury must have been satisfied to accept Mrsic as a credible witness in the aspects concerning Milohanovic's involvement with the crop and that involvement included activities at the crop site, drying at Cantamessa Barracks the harvested parts of the crop - the electricity supply for which was in his name, he being a person normally resident in Melbourne.
  1. One asks oneself - given the evidence so damning of Mrsic's credibility and elicited before the jury, what effect would evidence from Chapman and Evans that each did not see any person walking along the road and that no person was picked up in the road incident, have been likely to have had on the jury's verdict?
  1. In my opinion the answer to that question in the circumstances of this case must have been "NIL".
  1. I have concluded that the failure by the Crown Prosecutor to call Chapman and Evans did not amount to a miscarriage of justice and this ground of appeal fails. 

Ground 1

  1. Mr Devereaux has submitted that the evidence of Mrsic was so unreliable and the Crown case so reliant on it that the verdict against Milohanovic was unsafe and ought not to stand.
  1. To support this submission he relies on:
  1. a claimed inconsistency between the asserted possible dates of Mrsic being shot and sighting Milohanovic on the road (the road incident) and the date of the boarding pass which shows that on 31 October 1995 the appellant flew from Townsville to Melbourne;
  1. claimed vagueness and lack of detail in Mrsic's evidence about what the appellant did to further the production of the cannabis;
  1. Mrsic's admissions that sometimes he is honest and sometimes dishonest (AR390); that in 1962 he had been convicted of receiving a stolen tyre (AR391); that about a month later he was convicted of stealing a bunch of bananas (AR391); that in 1965 he was convicted of stealing and receiving (AR391) and that on later occasions up to and including 1976 he had convictions for various offences including stealing.  Mrsic agreed in cross-examination that "in earlier young days, in the young days ... I wasn't an angel". (AR394) Mrsic was born on 6 March 1941.  Mrsic admitted that in the 1990's he decided to get into the drug scene and in 1992 he failed to appear in the Supreme Court at Townsville on a charge of producing a crop of cannabis sativa at Kirrima Range and went to the Northern Territory where in 1993 he was sent to prison in Darwin for 2 years on a charge of possessing one pound of cannabis.  He was extradited to Townsville where in February 1994 he was sentenced to 3 years imprisonment for producing the Kirrima Range crop.

Part of Mrsic's criminal history reflected his activities in relation to the Mt Fox production at Disaster Creek.

He agreed that on 18 June 1997 in respect of that production of cannabis sativa he was sentenced to 5 years imprisonment.  He agreed also that he had been tried in Townsville on a charge that he murdered Nicola Stepic and had been found guilty of manslaughter and sentenced to 10 years imprisonment.

  1. Apart from matters I have mentioned above in dealing with this ground, it appears that during Mrsic's cross-examination, the whole of his criminal history was discussed before the jury.
  1. As I have already said when dealing with Ground 2A there was (apart from Mrsic's testimony) evidence to sustain the verdict of guilty brought in against Milohanovic.
  1. In M v The Queen (1994) 181 CLR 487 at p 493 Mason CJ, Deane J, Dawson J and Toohey J in their joint judgment said:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty See Whitehorn v.  The Queen (1983), 152 C.L.R., at p.  686; Chamberlain v.  The Queen [No.  2] (1984), 153 C.L.R., at p.  532; Knight v. The Queen (1992), 175 C.L.R. 495, at pp. 504-505, 511.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations Chamberlain v. The Queen [No. 2] (1984), 153 C.L.R., at p.  621."

  1. The question is answered upon the whole of the evidence against Milohanovic with full regard being paid to the considerations stated in the latter part of the above passage.  In dealing with Ground 2A, I have discussed most of the evidence against him. 
  1. I have mentioned the evidence of Detective James.  While he was in the witness-box a number of photographs were tendered including photographs taken at Cantamessa Barracks.  These included a photograph of a bag of cannabis found in the bottom drawer of shelves (Exhibit 14B), a photograph of a wall in a room showing nails driven in along the side of the wall with cut-off baling twine still adhering to the nails (Exhibit 16C - R78-79), a photograph of the corresponding nails and baling twine on the opposite wall (Exhibit 16D) and a photograph of pieces of green leaf material and seeds on a carpet (Exhibit 16E). 
  1. During James' cross-examination by Mr Bradshaw the following questions and answers appeared:

"MR BRADSHAW:   Now, when you spoke to Mrsic, he identified Bruno as being a person as a crop sitter?-- That's right, yes.

All right.  And that's when you got the name to commence investigations against Bruno?--  Yeah, we had received some information in relation to - to Bruno, but not from Mr Mrsic.

Did you - did you tell Mrsic - you're aware that Mrsic alleges that you told him of Bruno's involvement?-- I'm aware of that, yes.

Yeah.  You disagree with that?-- Yes."

  1. This conversation was recounted by the learned trial judge in his summing-up.  I mention it because during his cross-examination of Mrsic, Mr Bradshaw suggested that Mrsic must have learned of Milohanovic's background other than from conversations Mrsic said he had with Milohanovic at the crop site while working there - "crop sitting".
  1. Mrsic had given evidence-in-chief that he first met Milohanovic at 15 Gort Street in about April 1995 and it was in the beginning of May 1995 that he went with Mr Markov to Mt Fox to establish a camp (AR295).  He said that before that, he stayed at Markov's place for 6 or 7 days.  In cross-examination by Mr Bradshaw, Mrsic agreed that one day - never identified - he and Milohanovic were playing chess - (the place was never identified) - a man named Fabian turned up and talked for a few hours during the chess game.  Mrsic denied a suggestion that it was through Fabian, he "learnt the information about my client". 
  1. Mrsic had given evidence that he and Milohanovic were together at the crop site for a number of months save for occasions when Mr Markov came and "not very many times" when Gary Wessel came (AR314).
  1. Mrsic also spoke of Milohanovic leaving in October 1995 to return to Melbourne to sign some papers to do with his pension (AR323), and he agreed with Mr Bradshaw that this was about the time of Mr Milohanovic's 65th birthday.   
  1. It must have been apparent to the jury that the suggestion to Mrsic that he had learnt of Milohanovic's background from Fabian - a suggestion denied - was asked in the hope of showing that Mrsic obtained this information other than during the time he said he spent crop sitting with Milohanovic.
  1. Mrsic also gave evidence that he had sold for $2,000 some marihuana taken from the Mt Fox crop, that he paid $1,000 to Mr Markov and kept the balance and that he still owed Milohanovic $500 of that balance (AR439).
  1. I have mentioned the evidence of Ms Kondisenko from NORQEB.
  1. Kingsley Bannister an administrative officer from Telstra Corporation, identified a telephone service 03 9383 2749 in the name of Mrs Y Pracepa of 37 Clara Street, East Brunswick (see Exhibit 61 for the bill for that service showing metered calls from 15 September to 12 December 1995).  The evidence showed Mrs Pracepa was the lady with whom Milohanovic lived and although Mrsic said Milohanovic told him he lived with a lady, he, Mrsic, apparently could not correctly recall her name saying her name was "Mena".
  1. Exhibit 61 shows a number of STD calls from the Melbourne number to Ingham to mobile 077 765025 a telephone service at Ingham which was leased by Mrs Markov.  I note that one such STD call was on 2nd November 1995.
  1. Marissa Monique Wicks was an employee of Optus Communications.  Exhibit 65 produced by her was in respect of a Mobile Service 015 161 276 in the name of Mr Markov 15 Gort Street, Ingham.  Exhibit 66 shows STD calls from 077 765 025 in Ingham to Melbourne 03 93832749.  These calls were on 29 September, 7 October, 21 October and 23 October.  It appeared on the evidence that these calls could have been made by any one of Milohanovic, Mr Markov or Mrs Markov, and I do not regard them as significant in the case against Milohanovic.
  1. I return to matters on which Mr Devereaux particularly relies.  It is true that as to the first of these, the airline boarding pass (Exhibit 38C) which showed that Milohanovic flew to Melbourne on 16 October supported Mrsic's evidence that Milohanovic told him he had some problem in Melbourne and had to be absent for a while.  He said Milohanovic left "somewhere about half-way through 10th month 1995". (AR316)
  1. The boarding passes show return flights Melbourne to Townsville via Brisbane on 23 October 1995 and on 31 October 1995 flights from Townsville to Melbourne via Brisbane.
  1. It should be borne in mind these passes were found by police when searching 37 Clara Street and given that they show that a person can fly between Melbourne and Townsville in one day, and given also that the evidence showed driving from Townsville to Ingham took about 2½ hours, there was no reason why Milohanovic could not have returned from Melbourne to Ingham in one day and by about 3 November 1995.
  1. As to the second matter relied on, I have set out (at para 11 ante)  matters of which  Mrsic spoke when describing work performed by Milohanovic.
  1. It was also the Crown case that Milohanovic was at the crop site between some time in May and 15 November.  It was not the Crown case that each of Mrsic and Milohanovic worked equally hard at the site.
  1. Mrsic's evidence was that Milohanovic was involved in:
  1. clearing about 2 acres - at the end not the beginning - using a saw, a cane knife and a mattock; (AR297)
  1. planting cannabis seeds in jiffy pots (AR297) - there were 7000 plants (AR331);
  1. fencing off "a bit" to keep animals out; AR297
  1. carrying (with Mrsic) a food locker on to the site; (AR310)
  1. carrying bags of fertiliser using back packer type rucksacks; (AR310)
  1. once the seeds had germinated and the seedlings reached a certain stage, planting the individual plants each still in its jiffy pot.  The process was described at R313 and 314 after, I note Mr Bradshaw interrupted the description being given saying (inter alia) that in effect he was not going to dispute that there was a marihuana crop there.
  1. Mrsic went on to describe the need to water, the tools used to dig holes e.g. shovel and mattock, and placing of Dynamic Lifter and Urea inside the hole and leaving it for 7 days or so.
  1. It is true to say that a more detailed description of the work was not given but it seems this may well have been because Mr Bradshaw sought to cut it short describing it as "time wasting" and saying "for the jury to be given an education on how marihuana is planted ... is totally irrelevant".  (AR313)  
  1. As to the third matter relied on viz Mrsic's credibility, I have already summarised the effect of this (see paras 33 and 34 ante).
  1. I return now to the test to be applied by this Court in dealing with this ground of appeal (see para 46 ante).
  1. I do not repeat what I said at para 46.  In my opinion it was open to the jury to be satisfied beyond reasonable doubt of the appellant Milohanovic's guilt.

Ground 9

  1. I refer to the particulars in para 1 of these reasons.
  1. Tracey Lloyd Clancy had sworn an affidavit on 12 November 1998 in Milohanovic's appeal.  Mr Devereaux relied on the contents of this affidavit.
  1. In that affidavit Clancy referred to an affidavit he had sworn on 18 December 1997 in the appeal by Wessel. 
  1. I have concluded the reference to 18 December 1997 must be an error because:
  1. in Wessel's appeal his solicitor Mr Kyle has sworn an affidavit in which he said that on 28 August 1998 he, in Ingham, received a telephone call from a Tracy Lloyd Clancy then at Woodford;
  1. Kyle has exhibited to his affidavit an original affidavit by Clancy sworn 18 September 1998;
  1. Wessel was not found guilty until June 1998.
  1. I add that the Crown received this affidavit by Clancy shortly before the present appeals were due to be heard on 14 October 1998 and resulted in the hearing of the appeals then being adjourned.
  1. In his affidavit sworn on 18 September 1998 Clancy swore:
  1. he was a single man 39 years old, then an inmate at Woodford Correctional Centre, then serving a 10 year sentence for rape (imposed in 1996) and he did not know and had never met Gary John Wessel, Joseph Markov or Bruno Milohanovic;
  1. in March 1996 he was an inmate in and confined to maximum security section of Unit 1 of Stuart Creek Correctional Centre in Townsville;
  1. "During this time" he met Ivan Mrsic also an inmate in the same section and friendship developed between Mrsic and him;
  1. from 27 November 1996 to 10 January 1997 he was transferred to medium security section and in this time did not see or talk to Mrsic;
  1. after 10 January 1997 when he transferred to Village Section in a low security area of the prison, Mrsic was working in the laundry and he and Mrsic "maintained our regular contact".
  1. in mid 1997 Mrsic got a job in reception and he, Clancy, often saw him and spoke with him generally;
  1. on 23 June 1998, he, Clancy, was transferred to Woodford Correctional Centre at Woodford and hadn't thereafter spoken to Mrsic
  1. Clancy then went on in that earlier affidavit to speak of Mrsic:
  1. discussing his involvement in a murder and drug crop at Wallaman Falls near Ingham; that he and another fellow were "sitting" that crop; that each of them was to receive 33 per cent of the crop proceeds; that he was not happy with the amount he was going to receive "as the third partner who was also to receive 33 per cent was not putting in enough work or money";
  1. telling "me the name of this other fellow but I cannot recall his name.  I can recall Mrsic telling me he was Yugoslavian"

(emphasis is mine)

  1. boasting that he and another man "whose name I cannot recall" were the main workers and "that the other Yugoslavian fellow from Townsville was involved by just dropping food off"

(emphasis is mine) 

  1. saying that he and a fellow named Nicholai Stepic "who was also involved in some way, were unhappy with the Townsville partner" and Mrsic and Stepic were going to take the crop themselves; that Mrsic and Stepic had a falling out, that Mrsic went into the area to take the crop himself and while walking there came across Stepic, shooting occurred, he may have shot Stepic and Stepic died;
  1. telling him that "he had to implicate other people in relation to the drug crop to get a good deal from the prosecution in relation to the murder charge"; on a number of occasions making comments similar to "without me they don't have any evidence", "I am a very important man"; saying that he had to "extend the truth" and "tell a few lies to make sure he implicated other persons in relation to the drug crop";
  1. being required to give evidence "at Court proceedings (I think it was Markov's trial) at Townsville"; telling him "that during these proceedings, after Detective Paul James had given evidence and prior to Mrsic giving evidence James came to Mrsic's cell and spoke with him for approximately 1-1½ hours"; "that he was discussing with James the evidence which he was required to give so that he could implicate the other people enough to have them convicted so that he could get a lighter penalty"; 

(emphasis is mine)

  1. Clancy's affidavit of 18 September 1998 continued with Clancy swearing that:
  1. [in paragraph 19] he could remember Mrsic giving evidence at both committal  proceeding and at trial.   [He did not say whose proceedings and whose trial but as in paragraph 18 he had referred to Markov's trial, it may be he was referring to that trial]; that at the conclusion of each day's evidence Mrsic "came into my cell and discussed with me the evidence which he gave during that day," and that Mrsic continually boasted about his importance;
  1. he could "clearly recall that during these discussions Mrsic told me that he had lied about other persons involvement with the crop" [paragraph 20]; Mrsic told him "that he had given evidence making out as if Wessell (sic) and Markov were the main organisers" [paragraph 21]; that Mrsic told him he had fabricated this evidence [paragraph 22] and that there were two reasons for fabricating this evidence, one being to ensure he received a reduced sentence for his "involvement" and the second being to get even with Wessel and Markov [paragraph 23]; that he wanted to get even with Wessel "for not being able to join a gambling syndicate with Wessell (sic) Bruno who I now know to be Bruno Milhanovic (sic) and other persons";
  1. Mrsic told him he was friends with Milohanovic, that Milohanovic was to make arrangements for him to join the gambling syndicate, that Milohanovic told him the other syndicate members would not let him join the syndicate and Mrsic was angry about this;
  1. "during our discussions the only reference Mrsic made to Wessell (sic) was in relation to the gambling syndicate and that he was Markov's driver.  He often drove Markov to the Casino"; that Mrsic later told him that he "hates to fabricate evidence especially against Wessel as he has a wife and two children but he had to do it to get the lighter penalty and also to get even with him."  [paragraph 26]
  1. Mrsic often boasted how he got a lighter penalty by extending the truth;
  1. that while Clancy was in the village section Mrsic asked him to write a letter to Elenora Markov, explaining that the police had told him not to have any contact with "the other persons charged and for that reason he requested that I write the letter to Elenora to pass on to Joe Markov"; that the letter was something like "If you don't involve me by saying that I was the one firing the shot that killed Stepic, then I won't give evidence against you in your matter.  Hopefully we can resolve our difference so that we can both stay out of trouble". [paragraph 28]
  1. paragraph 28 concluded "This letter was returned unclaimed".
  1. Although the first affidavit by Clancy mentions Milohanovic (surname slightly misspelt) it at no stage alleged that Mrsic identified Milohanovic as the other fellow with whom he was "sitting the marihuana crop".  Clancy said in paragraph 13 of his affidavit he could not recall his name.  Milohanovic's name is mentioned only in relation to Mrsic's alleged desire to join a gambling syndicate.
  1. I turn now to Clancy's affidavit sworn on 12 November 1998.
  1. In that affidavit he swore:

"4.As I stated in my earlier affidavit, while an inmate of Stuart Correctional Centre, Townsville, I spoke a number of times to Ivan Mrsic, and he told me certain things about the evidence he was then giving at a committal hearing and trial of a number of persons including the appellant, Bruno Milohanovic.

  1. Mrsic told me he had lied in evidence about other persons' involvement in a marijuana crop, which was the subject of the trial.  In particular, Mrsic told me he was angry at the appellant, Bruno Milohanovic, because Milohanovic was part of a gambling syndicate which excluded Mrsic.
  1. Mrsic also said he was giving false evidence against the appellant for some reason which had to do with the civil war in Yugoslavia.  I did not understand these reasons in detail."
  1. In this later affidavit Clancy has extended to include Milohanovic the names of the parties against whom he alleges Mrsic admitted fabricating evidence.
  1. He has also alleged Mrsic said he was angry "at ... Milohanovic because Milohanovic was part of a gambling syndicate which excluded Mrsic".  This is quite a different allegation from that deposed to in paragraph 25 of his earlier affidavit where Clancy said Mrsic told him that "Bruno told him that the other members would not let him join ... " and that he was friends with Milohanovic (see para 76 ante).
  1. In paragraph 6 of his second affidavit Clancy has added an alleged further reason for Mrsic fabricating evidence against Milohanovic.
  1. Before I turn to Clancy's oral evidence before this Court, I note now the circumstances under which his two affidavits came into being.
  1. Mr Kyle, an Ingham solicitor acting for Wessel has sworn an affidavit in which he says he received a phone call at about 4.15 pm on 28 August 1998 "from a person purporting to be Tracy Lloyd Clancy of the Woodford Correctional Centre at Woodford".  Clancy identified himself as having "some information to give Kyle concerning a person by the name of Gary Wessel".
  1. In this same conversation Clancy said he had forwarded a letter to "a Mr Pat Lafferty of counsel" dated 23 August 1998 "stating that he had had certain conversations with one Ivan Mrsic whilst he was located at the Townsville Correctional Centre concerning a person named Gary Wessel"; further, Clancy indicated that "Mrsic had spoken to him in some detail concerning issues that had arisen during the course of Wessel's trial" and further that another prisoner named Trevor Charles Stone, also at Woodford Correctional Centre also had information he wished to discuss with Kyle concerning Wessel's trial and "in particular statements made to him by ... Mrsic".
  1. On 17 September 1998 a Jayson Michael Waldon, one of Kyle's partners attended at the Woodford Correctional Centre and spoke to Clancy.  Clancy's affidavit sworn on 18 September 1998 resulted.
  1. Kyle's affidavit sworn on 12 October 1998 exhibits an unsworn but signed statement by Stone dated 18 September 1998 and supplied by Stone to Waldon.  (see Exhibit B to Kyle's affidavit).  Exhibit C to Kyle's affidavit is an undated document described by Kyle as "a copy of a letter ... by ... Stone which was forwarded to the Legal Aid Officer, marked, Attention Lee Smith, Appeal Section, GPO Box 9898, Brisbane, Qld, 4001". 
  1. Although Exhibit C refers to Mrsic having told Stone he lied in giving evidence against "Bruno Milohanovic in Court proceedings", Mr Devereaux, quite understandably, does not rely on it.
  1. The "Pat Lafferty" referred to in Kyle's affidavit was the Mr Lafferty who appeared for Wessel in this Court - he was not Wessel's counsel at the trial but apparently appeared for Wessel at the committal proceedings.
  1. I should at this stage say that Wessel in his appeal relied on a ground similar to  ground 9 in Milohanovic's appeal - (Wessel has added fresh evidence from Stone to that of Clancy).   Both appeals were heard together and during those hearings Clancy was called and gave oral evidence.  He was questioned first by Mr Lafferty, next by Mr Devereaux and then by Mrs Clare.  The effect of his oral evidence was:
  1. He was at Stuart Creek Prison in Townsville from February 1996 to June 1998 and while there he came in contact with Ivan Mrsic also an inmate at the same prison.
  1. Mrsic and he were in "maximum" in separate cells on opposite sides of a corridor and each sat in his own cell and spoke to the other.  (App Rec52)
  1. They had many conversations in which Mrsic said:
  1. he "was a very important person in a trial with the prosecution against certain people in relation to a drug growing concern at Mt Fox ' ... ' without him they wouldn't have any evidence and ... he was going to hopefully get a more lenient sentence on the charges that he was in trouble for in return for him being co-operative with the prosecution."  (App Rec52)
  1. The people he was giving evidence against were "Joe Markov, Gary Wessel and Bruno Milohanovic."
  1. He did not know any of these people and had no contact with any of them.  (App Rec 53)
  1. When asked what Mrsic said about Wessel he said:
  1. Wessel "was a young bloke with a missus and a couple of kids ... he used to drive Joe Markov around to the casino and that he was ... involved in a gambling syndicate with three other men and that he would have liked to have joined that syndicate but he was excluded and not allowed in for some reason or other."  (App Rec 53)
  1. that "he met them at the casino and a heated argument took place because he was excluded from the gambling syndicate so to speak and that he was very angry about this because he thought that Wessels (sic) might have liked him and that would have included him in the gambling syndicate."  (App Rec 53)
  1. that "he used to drive Joe Markov to the casino on numerous occasions and that he thought that he was actually Joe's driver and took him everywhere because of the fact Joe didn't have a licence or couldn't drive very well."  (App Rec 53)
  1. "he also told me that for him to get this lenient - these lenient charges from the prosecution that he was to implicate Wessels (sic) in drug growing production at Mt Fox."  (App Rec 53)
  1. Mr Lafferty then asked whether Mrsic said whether he was telling the truth or not when implicating Wessel.  Clancy replied:

"Mrsic's always boasted how he was extending the truth, telling a few lies and handling the truth carelessly so to speak and that he was coaxed (sic) to do this by certain people and that in return for that he would get certain preferential treatment."

  1. Although the transcript of Clancy's evidence reads "coaxed" I cannot recall whether or not he said "coaxed" or "coached".
  1. When further examined by Mr Lafferty as to the gist of what he said Mrsic told him, Clancy told this Court that Mrsic said:
  1. that "he was going to exact revenge on those bastards and when they got to gaol he was going to get them bashed up for what they did to him" ; (AR 54)
  1. that he believed it was their fault he was in gaol "due to some fact that there was some double crossing over some large marihuana crop at Mt Fox" ... "that he hated them because of the way they treated him like an outcast" ... "he thought they were plotting against him because he's a Serb - Croat ... and they were all Croats" ... "they were having some discussion about the Civil War ... in Yugoslavia ... they were all ... different nationality and due to that he thought that they were against him ."(AR 54)
  1. When cross-examined by Mr Devereaux Clancy said (inter alia):
  1. Mrsic told him Milohanovic was part of the gambling syndicate he would have liked to have joined ... he thought Bruno would have put a word in for him ... he did put a word in for him but they didn't agree to let him into the syndicate ... that he had a heated argument with him at the Townsville Casino one night because he ... asked Milohanovic for some chips ... and he was denied by Milohanovic on his request for the loan of some money as well as being included in the syndicate and he was very angry about this and he started to get a bit of a set against Milohanovic because of this; (AR56)
  1. Mrsic told him that he and Milohanovic were from different ethnic backgrounds he being Serb Croatian and Milohanovic being Croatian or Yugoslavian and Serbs and Croats hated each other with a passion; (AR 57)
  1. Mrsic told him that at a committal hearing on about 20 March 1996 a detective gave evidence in the morning and during the lunch break the detective came to Mrsic and told him "all the sorts of questions the prosecution were asking him and how he should go about answering those questions so he could get a tighter knit case"; (AR 57)
  1. he repeated much of his allegations in his affidavit concerning the letter to Elenora Markov (see para 78(vi) ante) save that his previously given reason for writing the letter changed to - "because she wasn't supposed to have any contact with any of the witnesses and his handwriting wasn't the best"; (AR 57/50-60)
  1. that Mrsic said that he thought Milohanovic was involved with others in stealing some of the marihuana crop and were gambling with the proceeds of sale and "that's another reason why he had a grudge against Milohanovic as well"; (AR 58 (10-20))
  1. that Mrsic spoke of the nature of his evidence in the trial of Milohanovic ... "that he had to fabricate and that he lied to implicate Milohanovic because in return he was in a lot of trouble over certain other matters ... in trouble with charges and so forth, so he was very cooperative with the prosecution to implicate certain people that the police wanted charged in relation to the production of a crop at Mt Fox"; (AR 58/20-33)
  1. Mr Devereaux asked Clancy whether he eventually took some steps to contact a solicitor about these [matters] and Clancy replied:

"Yes.  I didn't while I was in Townsville, as you can understand due to certain problems I probably had there and when I came down here to Woodford I thought that, you know, I was away from all that stigma so to speak, so I made steps to see a counsellor to make a phone call to ring a solicitor and told them that I had certain information that might be helpful if they ... wanted to hear it and that was Trevor Cole (sic) I think, whom I rang, I think."  (AR58/37-43)

  1. When asked where he got his name from, Clancy said:

"I knew that he was representing one of the people from the committal.  Ivan told me that he was representing one of the people at the committal."  (AR 58/47-50)

  1. This answer did not sit satisfactorily with the explanation Mr Lafferty gave this Court as to how Clancy came to telephone Kyle.  He told the Court he (Lafferty) had received the letter referred to in Kyle's affidavit but then went on to say that he had not been in touch with Clancy before he got the letter or since.
  1. How Clancy got Kyle's name and phone number has not been satisfactorily explained.  Mr Lafferty was not trial counsel for Wessel - that counsel was Mr Lynam.  Mr Lafferty agreed the trial of the present appellants ended on 18 June 1998 and he speculated to this Court that perhaps Mrsic gave Clancy his (Lafferty's) name. (AR30)
  1. When Mrs Clare cross-examined Clancy she asked Clancy "What led you to Mr Lafferty?"  He replied that he knew Mr Lafferty was representing one of the three charged and "Ivan told me that he represented Gary Wessel of the committal."  (AR59)25-35.  Mr Lafferty did represent Wessel at his committal hearing.
  1. During his cross-examination, Clancy repeated that Mrsic told him (and anyone else who would listen) that he wanted to exact revenge on Markov, Milohanovic and Wessel, especially Markov because they had double crossed him in relation to the drug crop.  (AR 60/20-33)
  1. Also in cross-examination by Mrs Clare, Clancy said:
  1. that at the reception area in Townsville, Mrsic had spoken to Stone for a couple of hours and told him "all the details in relation to the trial and ... that Trevor listened to him".  (AR 61/30); said Mrsic discussed with Stone "police involvement ... and what he had to do to receive his favourable treatment";  (AR 61/25)
  1. that "up until I made these statements" he had had no contact with Joseph Markov at Woodford;  (AR62/15)
  1. that he knew Mr Markov was at Woodford as well; (AR 62/11)
  1. he denied that other people had spoken to him about Markov, Milohanovic and Wessel getting their convictions overturned; (AR 62/25)
  1. that another reason given by Mrsic (while he and Mrsic were in maximum security) for cooperating with the police was that he, Mrsic, broke his parole and one detective would look after it for him and make a call to the parole board and he was looking at doing an extra 18 months because he broke his parole from a previous sentence. (AR62/40-45)
  1. Mrs Clare questioned Clancy about the absence from his first affidavit of any allegation that Mrsic had told lies against Milohanovic.
  1. Clancy agreed he had then nominated Wessel and Markov as persons about whom Mrsic had told lies and he did not mention Milohanovic "because the person who seen me at the time wasn't interested in Milohanovic's affairs".  (AR64/40)
  1. Clancy admitted he knew Milohanovic was involved "in these trials and that he was an accused like the other two".
  1. A little later, when questioned about the differences in his two affidavits concerning the person or persons blamed for Mrsic's being unable to join the gambling syndicate (see paras 78(iii) and 83 ante); Clancy gave a limp unconvincing response saying "He was angry at Milohanovic because he wasn't included in the gambling syndicate."  (AR65/38)
  1. In regard to the added reasons allegedly stated by Mrsic to Clancy for the heated argument at the casino (see para 96(i) ante) namely Mrsic's desire to get even with Milohanovic because he wouldn't lend money, Clancy agreed he did not mention that in his affidavits adding "There's a lot of things I don't mention".
  1. As for the letter to Mrs Markov, Clancy asserted in cross-examination that he wrote what Mrsic told him to write saying "I was just the scribe".  (AR 67/50) He said he wrote in English and that prison authorities were entitled to read the letter both when it was sent out in an unsealed envelope for posting and on its return unclaimed.  (AR 60)
  1. When questioned about why he waited until August 1998 to come forward and contact the solicitors for Wessel, Clancy said "I'd been thinking about it for a long time.  I'd been bargaining with it for a couple of months".  (AR71/5)
  1. Clancy's criminal history was tendered in evidence before this Court.  His history dates back to 17 January 1977 and shows that since then Clancy has regularly been dealt with for what amounted in all to a large number of offences.  These offences include a number of stealing offences; there are convictions for this offence in 1978 (1 charge); 1982 (4 charges); 1988 (2 charges); 1995 (2 charges); 1996 (1 charge).
  1. On 5 July 1982 he was convicted on a charge of supplying a false name and there are convictions for some six charges of receiving, the last of these being in 1998.
  1. The ground of appeal now being dealt with requires this Court to deal with the fundamental question whether a miscarriage of justice has occurred by reason of the fact that the evidence of Clancy now relied on was not called at Milohanovic's trial.
  1. In Gallagher v. The Queen (1985) 160 CLR 393; Mason and Deane JJ said (at p 402):

"... the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is ... whether there has been a miscarriage of justice at the trial.  The Appellate Court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant of the charge if the new evidence had been before it in the trial.  Obviously, that question can only be answered in the context of, and by reference to 'the probative force and the nature of the evidence already adduced at the trial'.  Craig v The King (1933) 49 CLR at p 439 per Rich and Dixon JJ." 

(the underlining is mine)

  1. Gibbs CJ (at p 399) said he was in substantial agreement with the part of the above statement which I have underlined.  
  1. Since Gallagher was decided, the High Court in Mickelberg v The Queen (1989) 167 CLR 259, although not asked to reconsider the correctness of Gallagher, did discuss the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence.  In Mickelberg the test was stated in a slightly different manner:

"... the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it [citing Brennan J in Gallagher] or, if there be a practical difference, that there is a significant possibility that the jury, acting reasonably would have acquitted the [accused] [citing Gibbs CJ, Mason and Deane JJ in Gallagher.] (see per Toohey J and Gaudron J at pp 301-302)."

  1. In a recent decision of this Court, R v. Main [1999] QCA 148 (30 April 1999) this Court considered the differences (if any) between the two tests - "significant possibility" or "likelihood" of acquittal.
  1. In her reasons for judgment the President equated the two tests.  Pincus JA said:

"There is a real distinction between a test of likelihood and one of possibility, one which is not erased by attaching the requirement of significance to the latter.  In my opinion Mickelberg does not definitively adopt one test or the other: the test of likelihood is, at least in the usual case, to be preferred on the ground that it pays due regard to the primacy of the jury verdict.  But I accept that circumstances may arise in which the basic criterion, which is whether there has been a miscarriage of justice, will be satisfied even if the court is uncertain whether the additional evidence would have been likely to bring about a different verdict."

  1. White J, the third member of the court, said:

"It may be that there is little practical difference between the two but I agree with Pincus JA that there is a distinction between the test of likelihood on the one hand and one of possibility on the other and adding the requirement that the possibility be significant does not reduce the distinction."

  1. It appears then that since Main, this Court has preferred the likelihood test, at least in the usual case.
  1. In my view the present case falls into the category of "usual".   
  1. There is no debate in this Court as to whether Clancy's evidence could with reasonable diligence have been produced by Milohanovic at the trial and the critical question before us is whether the evidence of Clancy is apparently credible.
  1. This Court is required to form some view of the credibility of Clancy's evidence.
  1. I have already set out the evidence against Milohanovic at his trial.  There was before the jury other evidence which, independently of Mrsic's evidence, connected Milohanovic to the marihuana crop at Disaster Creek.  The jury heard the suggestions put to Mrsic by Mr Bradshaw that he was lying in implicating Milohanovic as a fellow crop-sitter and the jury must have been aware of the matters I have referred to in paragraphs 32, 33 and 34 (ante).
  1. I listened carefully to and observed Clancy giving his evidence.  I formed an unfavourable view of him as a witness of credit.  There were a number of inconsistencies in his evidence.  First, although he did say in para 3 of his first affidavit, sworn 18 September 1998 that he did not know Wessel, Joseph Markov or Milohanovic he specifically said in that same affidavit Mrsic had told him that he had fabricated evidence which he gave to "making out as if Wessell (sic) and Markov were the main organisers".  (paras 21 and 22 of his affidavit)
  1. In that same affidavit Clancy did not mention Mrsic having told him that he fabricated evidence against Milohanovic.  When questioned about this omission, (if it be that) Clancy claimed that he did so because he believed the lawyer he was speaking to, Mr Waldon, was only interested in Wessel.  I thought this a lame excuse given that Clancy would have this Court believe he decided to come forward after "thinking about it for a long time".  On his evidence "it" could only mean Mrsic's statements as to having fabricated evidence against the three men, Wessel, Markov and Milohanovic.  Clancy was, on his evidence, concerned to expose a perjurer who had by his fabricated evidence caused three persons to be convicted.  He told Mrs Clare that he had some reluctance about providing evidence in this matter and eventually said he decided to go ahead because "I thought I'd gone that far with the affidavit given to Mr Waldon that I thought ... I may as well continue on with it now, its no good going halfway and pulling out".  (AR70/35)
  1. If Clancy was so concerned with a person (Mrsic) fabricating evidence and perjuring himself and he, Clancy knew none of Markov, Wessel and Milohanovic, it is surprising that he made no attempt to tell the appropriate person or persons - Milohanovic's lawyers - of Mrsic's alleged perjury at about the same time as he spoke to first Mr Kyle and later Mr Waldon.
  1. The next inconsistency appeared in the apparent identification of Milohanovic in Clancy's second affidavit as one of the persons involved in the Mt Fox crop.
  1. The third matter which caused me real concern as to Clancy's credibility was the allegation in his second affidavit that Mrsic was angry "at Milohanovic" concerning his inability to join the gambling syndicate (see para 83 ante).  This claim was an example of Clancy altering earlier evidence and in so doing strengthening his allegations concerning Mrsic and Milohanovic.
  1. The fourth matter concerns the mention of Wallaman Falls in his first affidavit.  I did not understand the evidence to show that the Disaster Creek crop was at Wallaman Falls.
  1. The next matter concerns Clancy's criminal history.  I thought his many offences of dishonesty, viewed alone made his evidence suspect.  When I combine that aspect with the inconsistencies and other matters I have mentioned, I am left with the very firm view that the fresh evidence on which Mr Devereaux relies is not credible.
  1. I should also add that the pattern of Milohanovic's defence at trial and of this appeal has been consistent - to attack Mrsic's credit at trial, the attack on Mrsic's credibility as a witness in the Crown case with suggestions made to Mrsic that he lied in implicating Milohanovic as a crop sitter (denied by Mrsic) and that he fabricated evidence in order to carry favour with the police and in return for a deal with the police (denied by Mrsic).
  1. Mrsic agreed with a defence assertion that Joseph Markov was the King-pin of the Mt Fox crop.  The defence failed at trial and then some two months after trial and conviction, Clancy approached Mr Lafferty and then Wessel's solicitor and made an affidavit in which he did not state that Mrsic told him that he gave evidence implicating Milohanovic in the Mt Fox crop.
  1. Mr Devereaux on behalf of Milohanovic has relied on Clancy's now extended evidence in order to sustain the present ground of appeal - a ground still attacking Mrsic's credit.
  1. I thought Clancy a witness not worthy of credit and a person to whom an oath meant  very little or nothing and who was prepared to perjure himself.  I note also that in his address to this Court made after Clancy had given evidence, Mr Lafferty when describing Clancy found it "hard to say [he was] a completely credible witness" - this from a barrister whose client Wessel, also relied on Clancy's fresh evidence in support of his appeal. 
  1. When I consider Clancy's evidence in the context of or in combination with the evidence given at Milohanovic's trial and which was such as enabled the Crown to succeed in proving Milohanovic's guilt beyond a reasonable doubt, I have concluded that there was no likelihood nor was there a significant possibility that the jury acting reasonably would have entertained a reasonable doubt about Milohanovic's guilt.
  1. I add that after the hearing of the appeal was adjourned on 14 October 1998 both Detective James and Mrsic have sworn affidavits in each of these appeals.  In Detective James' affidavit (sworn 3 November 1998) he has given short details of the charges against Joseph Markov, Milohanovic, Wessel and Mrsic.  He confirmed that Mrsic gave evidence at each committal hearing and trials of Joseph Markov, Milohanovic and Wessel, and that Mrsic was an important witness.
  1. In that affidavit he swore:

"At no stage was there ever any suggestion by myself to Mrsic as to how or what evidence he should give or how he could implicate the others involved.  In particular at no time did I visit him in any proceedings for 1-1.5 hours and discuss evidence he was required to give."

Mrsic's affidavit was sworn on 15 February 1999.

  1. He swears that on 16 October 1998 he was shown and had read to him "allegations by Tracy Lloyd Clancy and Trevor Charles Stone in their affidavits and statements."
  1. He denies having ever made up any evidence to convict Markov, Wessel or Milohanovic and said "It is fair to say I do not like Markov, he shot me in the face."
  1. In that affidavit Mrsic has denied on oath:
  1. that he ever said to Clancy that he lied;
  1. that he ever sent a letter to Elenora Markov;
  1. that he ever said the others reported him (Mrsic) to the police so they could steal the crop  (saying the police had already taken the crop before they knew I was involved);
  1. that he ever said to Clancy that he (Mrsic) was involved in a shooting or crop at Wallaman Falls.  (He swore "Mine was at Mt Fox ... .")
  1. that he ever told Clancy or anyone else that he (Mrsic) had any deals from the prosecutor;
  1. that he was offered any deals;
  1. that he ever discussed with Detective James what evidence he (Mrsic) should give or how he could implicate anyone.
  1. Mrsic admitted in his affidavit that he had spoken to Detective James a number of times throughout the period since November 1995.
  1. I mention these affidavits to show denials on oath of the allegations made by Clancy in his September 1998 affidavit, but have not taken them into account in assessing Clancy's credibility.
  1. In my view this ground of appeal also fails.
  1. I would dismiss Milohanovic's appeal against conviction.

WESSEL'S APPEAL

  1. Mr Lafferty argued one ground only and that is Ground 1 details of which appear in paragraph two of these reasons.
  1. I have already discussed the affidavit evidence and oral evidence of Clancy.  In Ground 1 the other evidence said to be fresh evidence is contained in an unsworn but signed handwritten statement made by Trevor Charles Stone.  Stone has not sworn to the truth of the contents of that statement and in that circumstance I would give the contents no weight at all.    If Stone is not prepared now to swear to the truth of the contents of his statement, then if a new trial were ordered, it is very highly likely that he would decline to give evidence.  In Wessel's appeal this Court must express a view on Clancy's credibility.
  1. Although in Wessel's appeal there are not the inconsistencies in Clancy's evidence as there were in Milohanovic's appeal, nevertheless my views of Clancy's evidence, which I have stated in Milohanovic's appeal cannot be entirely dismissed and they do influence my assessment of his credibility in Wessel's appeal.
  1. I formed an unfavourable opinion of Clancy's evidence in respect of Wessel's appeal.  His affidavit sworn on 18 September 1998 was drafted in such a form that it could be relied on in Wessel's appeal and Markov's appeal against conviction.  This is apparent from Clancy's statement in paras 21 and 22 of that affidavit (see para 78 (ii) ante).
  1. His second affidavit sworn on 12 November 1998 was expressed to be in Milohanovic's appeal and its contents related to Milohanovic.  His earlier affidavit was not designated by its heading to be in respect of any particular appeal.
  1. Again, Clancy's creditworthiness suffered because of his prior convictions for offences of dishonesty and to which I have already referred (see paras 111 and 112 ante).
  1. As I must consider Clancy's evidence in combination with evidence given at Wessel's trial and which was such as enabled the jury to be satisfied beyond reasonable doubt of Wessel's guilt, I turn now to that evidence.
  1. There were a number of pieces of physical evidence which viewed as circumstantial evidence and considered in conjunction with the remaining evidence against Wessel were capable of connecting him to the marihuana crop at Disaster Creek Mt Fox.
  1. Those pieces of physical evidence were:
  1. A T-shirt bearing the writing "Terry Ellems Panel Beating" and "Rebels" which police found of the crop site on 19 November 1995; (AR99)

When cross-examined at trial by Wessel's counsel, Detective James gave evidence that from his investigations it was established that Wessel was a member of Rebels Indoor Cricket Team and would have received one of up to about 20 such T-shirts which were manufactured (AR130/1-12).

Terrence Ray Ellems gave sworn evidence that in late 1988 or 1989 he conducted a panel beating/spray painting business at Ingham; that he sponsored Rebels Indoor Cricket Team which played at an indoor cricket centre behind Felix Reitano's Store in Ingham; that he knew Gary Wessel who was a member of Rebels Team and the team wore a uniform; that anywhere between 12 and 20 shirts would have been issued to the Rebels Team and he told Wessel's counsel he "could not guarantee that Wessel got a shirt".  (AR419)

Felix John Reitano gave evidence that he knew Gary John Wessel, that he identified Wessel's name on a nomination form (Exhibit 55) and he recalled Wessel playing in Rebels Team (T218).  Reitano identified an indoor cricket membership card dated 1989 in the name of "G Wessel" (Exhibit 56).

Although the T-shirt was apparently in a very poor condition when tendered in evidence at the trial (T158), Detective Campbell, when cross-examined by Wessel's counsel said it was in a lot better condition "when it was seized by myself but it was also damp when I seized it".  He said that with time and being damp "it has deteriorated somewhat".  (T159)

  1. Exhibit 27 which was a strip police found near the front of the tent at the crop site.  It was described as appearing to be a strip off a back pack (T99).  Detective James produced a backpack (Exhibit 41) which police found underneath Wessel's home at 18 Fisher Street, Ingham (T100-101).

The detective described the backpack as being consistent with Exhibit 27 and when asked to show how Exhibit 27 fitted into the use of the backpack said:

"... it goes through these loops on the back of the backpack, through there and obviously so that it ties around your waist so that it doesn't flap around and you can see its the same type of stitching and canvas and everything else."  (T101/40-50).

He described Exhibit 41 as being particularly clean and appearing to have just been washed - it was found beside the washing machine.  (T101)

  1. (c)A water jug, police found in a caravan at Oak Hill Springs.  The names "Sue Wessel" were written on this jug (AR53/20).  Oak Hill Springs was a property owned by Markov and about six to seven kilometres from the crop site.  Exhibit 8H(AR53) was a photograph taken inside the caravan and shows the jug with the name "SUE WESSEL" is clearly printed on it.  There was evidence that Gary Wessel's wife was Sue Wessel.

  1. A number of items police found at Wessel's house at 18 Fisher Street, Ingham  on 28/11/1995, and which were similar to or consistent with items found at the Mt Fox crop site (AR100); they were:
  1. An undetermined number of fertilizer bags (AR100).

When Detective James was cross-examined by Wessel's counsel, he agreed the sort of fertilizer bags found were "not uncommon around the Ingham area" (AR133) and said "not many people buy full fertilizer bags like that for their domestic use" (AR133).  Detective James described Wessel's home as having "a normal household garden as in flowers, plants and whatever" (AR100);

  1. A number of pieces of high pressure hose (AR100) said by Detective James to be like a sample of pipe taken from the crop site (Exhibit 29) (AR100).  The hose found at Wessel's home was used in Wessel's business conducted from his home - he made "back rubbers for cattle" (AR100);
  1. A roll of blue rope (Exhibit 40) used in Wessel's business and said by Detective James to be "consistent with the rope that we'd seen at the crop site" (AR101/20);
  1. An aluminium wash basin (Exhibit 33) similar to but bigger than a wash basin found at the crop site; the latter wash basin was Exhibit 26 (AR99).
  1. Apart from the physical evidence to which I have referred there was sworn evidence from Braiding and Mrsic connecting Wessel with the crop site.  When police found Braiding at Oak Hills Springs on 20 November, he had, he told the jury, been lost for six days before then (AR202).
  1. Braiding appears to have lived in Townsville.  Braiding told the jury that he first became involved in the Mt Fox crop when in late October 1995 (AR229) he was contacted by Mr Markov and he went up to see him at Oak Hill Springs.  He thought this was on 25 October.  He said he was offered and agreed to provide security for Joe Markov on the crop site at Disaster Creek.
  1. Braiding said he went to the crop site and had a look (AR206).  He said that two days after he had been up to the crop site to have a look, he met Gary Wessel "at Joe's place" (AR207) and that on this occasion Wessel asked him (Braiding) "How did he know that we weren't going to rip the crop off?" and Braiding said to him "Look if we were going to rip the crop off we wouldn't be here talking to you now".  (AR207) (15) Braiding went on to say there was a conversation suggesting that Braiding would be paid for his service - "Gary and Joe said that we would get a third share in the ... ".  His answer was cut off and he was then asked "When were you told they would go third shares with you?" and he answered "When Joe and Gary were there".  He said he was present at conversations between Joe Markov and Gary Wessel when money was discussed saying "the same day after we finished talking about the crop", and Gary said that we had the job, Gary said "Joe, here's your share of the money that he got."  He said he saw Gary Wessel hand Joe Markov a roll of money and that he had got the money from "out of his pockets" (AR207).
  1. Braiding also gave evidence that on the day when he had seen Wessel hand Markov  the roll of money Wessel asked Braiding if he could wait for 20 minutes because they had to go away.  Braiding agreed, and he said that about half an hour later Wessel and Joe Markov returned in Wessel's vehicle with a couple of bags of marihuana.  He gave evidence of a discussion with the two of them saying:

"Well after they had came back we went into one of the houses where the trailer was, put the bags down and opened them up and I had a look at them and they asked me whether I knew anyone that wanted to buy them and when I had a look at it it was only rubbish I said 'They're not worth it you might as well just burn them' they wanted $1,500 each for them."  (AR208)

  1. When on 20 November, police found Braiding at Oak Hills Station, Braiding told the jury he had been lost for about six days before then (AR202).  He told the jury that on 14 November, Mrs Markov had driven him and Mr Markov and Stepic to the crop site (AR203); that he Braiding, had a Berretta 22, that Stepic had a 38 revolver and Mr Markov had a 25 calibre baby Browning and a shot gun (AR203).  He said that on arrival at the crop he saw "Graham Jones and his wife and kids" (AR204).  He said Mrs Markov drove away and that Markov and Stepic worked at the crop site - "Joe picking and Nick hanging".   Braiding says he was  there most of the day leaving about 5.30 (AR204-205).  He said "We brought out three bags of marihuana and on the way Stepic was killed", Braiding then "got lost for six days" (AR205).
  1. A little later in his evidence Braiding said that on the first occasion when he went to have a look at the crop site the name Ivan Mrsic was mentioned and on that occasion he said his understanding of his role was that he, Braiding was "to check out the crop site before he, [Ivan Mrsic] went in and to make sure the track was clear as we were walking along it".  (AR209/15) 
  1. Braiding gave evidence of an occasion - the date of which was uncertain - but it was to the effect that Gary Wessel was present during a conversation he and Jones had with Joe Markov to the effect that Mrsic was in town with a couple of guys and they were "up here to try and rip more off the crop".  According to Braiding, Wessel said he was getting fed up with Ivan, he turned around and said 'Look I want Ivan taken care of.  If you do I'll give you $10,000'."  Braiding said he understood that to mean "take out Ivan Mrsic".  According to Braiding Graham Jones who was present said "No" and he, Braiding, said nothing (AR210).
  1. I mention now the witness Graham Jones, who also lived in Townsville.  Braiding told the jury he had asked Jones to be involved in Braiding's provision of security and surveillance because Jones had good bush skills (AR205/50).  Jones told the court that he had been to the marihuana crop in the Mt Fox region twice, perhaps three times (AR267).  He gave evidence that at a room at the casino in Townsville he met a man named "Gary" on an occasion when he met Markov (AR269).  He recalled that in that room the person named Gary said that he felt that Ivan Mrsic was not the threat that Joe Markov was making him out to be and that he (Gary) wanted the crop to stay in for that bit of extra time and that Joe Markov was talking about just pulling it out.  He said the reason Gary gave for leaving the crop in was that it would increase in value (AR270).   These conversations occurred at the Townsville Breakwater Casino Hotel. 
  1. Jones said he did not at any stage see the person Gary at Oak Hills Springs (AR275/5) and he was unable to identify Wessel at the committal (AR289).  Jones told the jury that the only time he met the man "Gary" was at the Townsville casino (AR284).  He said he went to the casino at about 9 or 10 pm and stayed there several hours.  He went as a result of a telephone message received on phone number 891616 which was in the name of his father - Jones lived in Townsville next door to his father and his father had the only phone (AR269).
  1. Jones said he was in Gary's presence for about three quarters of an hour.  He met him only once and that was at the casino - Jones also said that he had been informed at reception that Markov was staying in room 1704 "and that we seemed to be a couple of doors down from that."  (AR270)    
  1. Rhodney Victor Woolley, who was formally Senior Manager of the Sheraton Breakwater Casino Hotel in Townsville gave evidence.  He produced documents showing that on the evening of 8 November 1995, Joseph Markov had two rooms numbered 1704 and 1706 at the Casino Hotel.  Exhibit 57 contains two separate documents showing calls from these rooms.  A call was made from room 1704 to number 889405 at 9.19 pm on 8 November 1995.  On 8 November 1995, four calls were made from 1706 - two were to number 891616, one to 7356000 and one to 753856.
  1. Exhibit 59 was a photocopy of an account from the Hotel for room 1706 showing the arrival date 8 November 1995 and departure date 9 November 1995.  This account was in the name of Joseph M Markov, 15 Gort Street, Ingham.  Exhibit 60 was a photocopy of an account for room 1704 for the same dates.  It was in the name of Mr GARY J ESSEL, 8 Fisher Street, GHAM, QLD.
  1. Exhibit 60 is a photocopy and it is abundantly clear from looking at the document that the photocopy has cut off part of the original.  For instance, instead of "CASINO RESERVATION" there appears "ASINO RESERVATION"; instead of 18 Fisher Street, there appears "8 Fisher Street" and instead of Ingham there appears part of the N and "GHAM".
  1. Mr Woolley said the reservations for rooms 1704 and 1706 must have been made together "initially by the one person booking two rooms".
  1. The number telephoned from room 1706 - 891616 - was Jones' father's phone number.
  1. Mr Lafferty has stressed in his submissions that there was some conflict between Jones and Braiding as to whether one of the two rooms at the Casino Motel was Wessel's room.  Jones said he could remember the name was Gary, Braiding says the room was Wessel's.
  1. The two telephone calls from room 1704 made to telephone number 889405 were calls made from whoever was in room 1704 to a lady named Linda Joan McKinnon.  Evidence showed that this service 889405 was in the name of Linda Joan McKinnon at 96 Marina Drive, Bushland (AR456).  Linda Joan McKinnon was called by the prosecution.  She said she had lived  at that residence from October 1994 to October 1996; she did not at the time of giving evidence recall the phone number but said that 889405 could have been it; that Gary John Wessel was her cousin, and that in 1995 she kept in contact with either Wessel or his wife.  She said that the number 889405 was not published in the phone book, and that she "always had  a silent number". 
  1. Although Jones was unable to even identify Wessel as the man "Gary" in the Casino Hotel room, there was in my view, strong circumstantial evidence from Exhibits 57, 59 and 60 which must have satisfied the jury beyond reasonable doubt that the man "Gary" to whom Jones said he was speaking in the hotel room was Wessel.
  1. Once satisfied on that score, then Jones' evidence of Gary's statements (see para 165    ante) if accepted by the jury as credible was capable of connecting Wessel to the Disaster Creek marihuana crop.
  1. I come now to Mrsic's evidence against Wessel.  It was comparatively sparse in comparison with evidence I have so far mentioned. 
  1. He spoke of an occasion during the time when Emmie was still at the crop site - in Ingham he, Mrsic, assisted in loading a Land cruiser truck with food, jiffy pots, fertilisers, etc. which had been purchased.  He said Wessel was in the vehicle in the car park at either Coles or Food land Store (AR302).  He also said that when he first went to the crop site with Ivan to clear the site he drove up with Joe Markov and Gary Wessel (AR304/60 (AR306/5).
  1. After Milohanovic arrived at the crop site he said Gary and Joe supplied food and he, Mrsic and Milohanovic worked "in the field" (AR307).  He said during evidence-in-chief that he never saw Wessel "much on the crop site at all" (AR308). 
  1. Mrsic also told of speaking with Markov and Wessel where he, Mrsic, was told that he and Milohanovic were each to get half of a third of the proceeds of the crop and each of Wessel and Markov were to get one third (AR315).
  1. When Wessel's counsel cross-examined Mrsic he brought out before the jury Mrsic's criminal history to which I have earlier referred.  Mrsic later told the jury that Wessel may have been at the crop site twice (AR400).
  1. Mrsic disagreed with suggestions that he had never seen Wessel on the crop site at any time, that Wessel was present when items were being transferred to the four-wheel drive behind the supermarket and that he had ever had a conversation in which Wessel participated concerning sharing the proceeds of the crop. 
  1. Mrsic's evidence against Wessel connecting him with the Mt Fox crop was, in my view not as telling as the remainder of the evidence against Wessel.  Even without Mrsic's evidence, the case against Wessel was a strong one.
  1. Clancy's evidence is directed only at attempting to destroy Mrsic's evidence against Wessel - it of course says nothing about credibility of Braiding and Jones.  Of the witnesses, Mrsic, Braiding and Jones, only the former was in prison.  Thus, Clancy could make allegations against him only.  
  1. When I consider Clancy's evidence in combination with the evidence led before the jury in the case against Wessel, I am quite unable to say that the jury would have been likely to entertain a reasonable doubt about Wessel's guilt, or if the "significant possibility" test were applied that there was such a possibility that the jury acting reasonably would have acquitted Wessel.
  1. In my view Ground 1 fails and I would dismiss Wessel's appeal.

Footnotes

[1] The Queen v Apostilides (1984) 154 CLR 563 at 575-577.

[2] M v The Queen (1994) 181 CLR 487 at 493; Jones v The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 72 ALJR 1012.

[3] Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Milohanovic and Wessel

  • Shortened Case Name:

    The Queen v Milohanovic and Wessel

  • MNC:

    [1999] QCA 239

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Pincus JA, Shepherdson J

  • Date:

    24 Jun 1999

Litigation History

EventCitation or FileDateNotes
Appeal Determined (QCA)[1999] QCA 23924 Jun 1999Appeals against convictions dismissed: Shepherdson J (McMurdo P, Pincus JA agreeing with separate additional reasons)

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Apostilides v The Queen (1983) 11 A Crim R 381
1 citation
Jump To
Cite 1 - (1983) 11 A Crim R 381
Craig v The King (1933) 49 CLR 429
1 citation
Jump To
Cite 1 - (1933) 49 CLR 429
Gallagher v R (1985) 160 CLR 393
4 citations
Jump To
Cite 1 - (1985) 160 CLR 393
Cite 2 - (1985) 160 CLR 393
Cite 3 - (1985) 160 CLR 393
Cite 4 - (1985) 160 CLR 393
Gallagher v The Queen (1986) 160 CLR 392
1 citation
Jump To
Cite 1 - (1986) 160 CLR 392
Gipp v The Queen (1998) 72 ALJR 1012
1 citation
Jump To
Cite 1 - (1998) 72 ALJR 1012
Jones v The Queen (1997) 191 CLR 439
1 citation
Jump To
Cite 1 - (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
3 citations
Jump To
Cite 1 - (1994) 181 CLR 487
Cite 2 - (1994) 181 CLR 487
Cite 3 - (1994) 181 CLR 487
Mickelberg v R (1986) 167 CLR 259
2 citations
Jump To
Cite 1 - (1986) 167 CLR 259
Cite 2 - (1986) 167 CLR 259
Mickelberg v The Queen (1989) 167 C.L.R 259
3 citations
Jump To
Cite 1 - (1989) 167 C.L.R 259
Cite 2 - (1989) 167 C.L.R 259
Cite 3 - (1989) 167 C.L.R 259
R v Apostilides (1984) 154 C.L.R 563
6 citations
Jump To
Cite 1 - (1984) 154 C.L.R 563
Cite 2 - (1984) 154 C.L.R 563
Cite 3 - (1984) 154 C.L.R 563
Cite 4 - (1984) 154 C.L.R 563
Cite 5 - (1984) 154 C.L.R 563
Cite 6 - (1984) 154 C.L.R 563
R v Chamberlain (1984) 153 C.L.R 521
2 citations
Jump To
Cite 1 - (1984) 153 C.L.R 521
Cite 2 - (1984) 153 C.L.R 521
R v Knight (1992) 175 CLR 495
1 citation
Jump To
Cite 1 - (1992) 175 CLR 495
R v Main [1999] QCA 148
3 citations
Jump To
Cite 1 - [1999] QCA 148
Cite 2 - [1999] QCA 148
Cite 3 - [1999] QCA 148
Whitehorn v The Queen (1983) 152 CLR 657
1 citation
Jump To
Cite 1 - (1983) 152 CLR 657

Cases Citing

Case NameFull CitationFrequency
Crabbe v Queensland Police Service [2013] QDC 1222 citations
The Queen v Markov [1999] QCA 4793 citations
1

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