SUPREME COURT OF QUEENSLAND

1. McMURDO P AND ATKINSON J:  The appellant was charged with one count of production of a dangerous drug, cannabis, with a circumstance of aggravation between 1 December 1990 and 1 May 1995 (count 1); one count of production of a dangerous drug, namely cannabis, with a circumstance of aggravation between 1 May 1995 and 15 November 1995; one count of attempted murder between 1 October 1995 and 15 November 1995; alternatively, one count of wounding with intent; and one count of robbery in company between 1 October 1995 and 15 November 1995.  The appellant pleaded not guilty to all counts.  At the close of its case, the prosecution elected not to proceed with count 1 which related to an old crop of marijuana near the main crop site.  After a two week trial, the appellant was convicted of production of a dangerous drug with a circumstance of aggravation, acquitted of attempted murder and unlawful wounding with intent, but convicted of the alternative verdict of unlawful wounding and of robbery with violence in company.  He was sentenced to seven years imprisonment in respect of the drug offences, four years imprisonment for unlawful wounding and six years imprisonment for robbery in company.

2. The appellant appeals against his conviction on a number of grounds and also applies for leave to appeal against his sentence, which he claims was manifestly excessive.

The facts

3. The prosecution case was that the appellant grew a crop of cannabis sativa near Mt Fox, west of Ingham at two sites, principally at Disaster Creek and a smaller site at Raspberry Creek. When police searched the Disaster Creek crop site a total of 8,472 plants, some growing and some harvested, a water pump irrigation system, a drying shed and a camp site were located. The prosecution claimed that the appellant used Ivan Mrsic to grow the crops at the Disaster Creek crop site; Mrsic and the appellant subsequently fell out and the appellant shot Mrsic in the neck on a bush track near the crop site. Mrsic returned to the crop site in the company of other men, including Douglas Evans; Evans was detained and robbed of his wallet by the appellant and others.

4. Ivan Mrsic gave evidence that he met Markov in April 1995 and told him he was looking for work; he embraced the appellant's suggestion that he grow drugs for him in return for about 17 per cent of the proceeds from the sale of the crop.  Mrsic was then on parole in relation to cultivation and possession of marijuana; his involvement in these offences and his failure to report constituted a breach of his parole.

5. In about May 1995, Mrsic cleared the area of bush in 40 lines four metres wide with camouflage of three metres of untouched bush in between each line. He went to the appellant's home in Ingham and the appellant and his wife, Elenora Markov, took him to sugar cane workers' barracks on a property belonging to the Cantamessa family. At about that time, he also met Gary Wessel. Markov purchased cooking utensils, plates, pliers, a hammer, a couple of 75 litre galvanised rubbish bins and a 3-4 gallon capacity dish at a hardware store in Ingham, later identified as Mitre 10. Markov purchased 1,000 jiffy pots and potting mix; this equipment was transferred from Markov's Suzuki into Gary Wessel's four wheel drive truck and they returned to the appellant's home. The appellant, Elenora Markov, Wessel, a man referred to as Ian, a native New Guinean, and Mrsic then drove to Mt Fox where they stopped at a cleared area. They carried the equipment which included manure and a battery operated lamp down a 400-500 metre bush track through very dense rain forest to a camp at the crop site.

6. Mrsic, together with Bruno Milohanovic, worked and lived on the crop site from the beginning of May until 3 or 5 November. Mrsic was trying to a produce highly marketable crop rich in THC.

7. Markov gave them a .22 Lone Star pistol with a silencer for use at the crop site. They frequently shot trees for target practice and a bandicoot, wild turkeys and snakes for fresh meat. Markov regularly came onto the crop site bringing food; when Markov returned to Croatia for six weeks and later when he injured his back, Wessel would bring supplies every three to four weeks. Mrsic understood that Markov and Wessel were in control; Mrsic and Milohanovic were to each get one half of one third with a third each of the proceeds of the crop going to Markov and Wessel.

8. Nearby on the Raspberry Creek plantation Nick Stepic and another man were growing about 120 marijuana plants and they sometimes had contact.

9. Mrsic stayed on the crop site throughout except for a three day visit to Townsville when he had teeth removed at the dentist and went to the casino with Markov. He travelled to Townsville in Markov's Landcruiser and took some green cannabis, mostly heads, which weighed three pounds after it had been microwaved at the barracks and stripped. He sold the marijuana, spending the proceeds and lending a woman $1000. Markov was unhappy with him for selling this marijuana without accounting to him. He visited the barracks at least twice, perhaps three times; similarly, he visited the caravan at Oak Hill Springs at least twice, perhaps three times, once with Markov, and once to take 20 litres of petrol to operate the water pump; he left a note in Croatian: "I take fuel 20 litre. Ivan Mrsic." Markov abused him for leaving the note which was later found by police at the caravan. On visits to the barracks, he saw a new brown SKS 7.6 mm Chinese assault rifle with a bayonet attachment and two magazines (containing about 30 bullets) which belonged to Markov.

10. Markov drove him back to the crop site. Mrsic noticed 15-20kg of heads were missing; he was told they were sold for expenses and he had received no money; he was angry and suspicious. Milohanovic then had a break for 14-18 days. Milohanovic left the crop site at least twice. He returned on the first occasion with $10,000 winnings from the casino; on the second occasion, he visited Melbourne to organise his pension as he had turned 65.

11. In about July, Mrsic told Nick Stepic that if the worst came to the worst he would rip off at least 10 or 15 kilos of marijuana, put it on his back and walk. Ninety per cent of the crop could be anticipated to be ready after five months.

12. On about 2 or 3 November, Markov and Milohanovic arrived at the crop site and Milohanovic told Mrsic to go down the track to pick up some food. Mrsic took a large backpack, loaded it with wine casks and beer and was returning to the camp when Markov jumped out from behind a tree saying, "You bastard. You're going to rip off my crop." Markov pointed his gun at him and shot at him as Mrsic fled into the bush. Mrsic was wounded in the neck. He tied his shirt around the wound. He removed the bullet with his fingers; the wound was 8-10 mm deep; he lost a couple of litres of blood; he did not go to a doctor. He showed the jury the scar on his neck. After dark he walked through the bush onto the road, making his way to his friend John Chapman's house.

13. He persuaded Chapman, Chapman's son Gavin and their cousin, Doug Evans to drive him to the crop site; Chapman stayed in the car and the others sat down for a beer. He saw Wessel's dog and Markov with his SKS rifle. Mrsic and Gavin ran off into the bush and hid, but Doug Evans, who was an old man, could not run. Later when they returned to Chapman's truck he saw Doug Evans and as they were leaving they saw Milohanovic. Mrsic was pleased to see Milohanovic alive, even though he suspected he may have been involved in the attack on Mrsic the day before.

14. Mrsic returned to the site on about 14 November 1995 and in an altercation with Markov, Braiding and Stepic, he killed Stepic.

15. Mrsic joined the French Foreign Legion when he was about 15, having falsely stated his age as 18. He was trained in the use of weapons and served in Algeria. He conceded that in some ways he was honest but in other ways not honest. He came to Australia in 1960. He was sentenced to two months imprisonment for unlawful use of a motor bike in October 1960; in May 1962 he was convicted and fined for receiving stolen property and for stealing a bunch of bananas; in January 1965 he was convicted and fined for wilful damage to property; in June 1965 he was sentenced to terms of imprisonment for property offences and for escaping lawful custody; in December 1969 he was convicted of stealing gold and mercury and was sentenced to two years imprisonment; in 1973 he was convicted and sentenced to 12 months imprisonment for escaping legal custody and for property offences; in 1975 he was sentenced to 12 months imprisonment for property offences; he was then convicted of a number of drink driving offences; in August 1992 he was sentenced to two years imprisonment for possessing a commercial quantity of cannabis; he was extradited to Queensland and he was sentenced to three years imprisonment for producing a dangerous drug exceeding 100 plants and other associated offences and in Darwin he was sentenced to two years imprisonment for possession of cannabis. He is now serving ten years imprisonment in respect of the manslaughter of Stepic and five years imprisonment in respect of this production charge.

16. In his statement to police in January 1996 he said he met Markov in March 1995, not April, and agreed it could have been in May; he made no mention in his statement of seeing a dog on the final visit to the crop site.

17. He was questioned by police in early December about Stepic's death. After speaking to his barrister, he decided to tell the police the truth about everything, although this did not include implicating himself in the production of the marijuana.

18. Mrsic, a Catholic Croatian, denied disagreeing with Markov over the political situation in the former Yugoslavia; he thought Markov may have turned him in to police; he neither hated nor liked Markov and was not paying him back; after cross examination as to his evidence at committal, he agreed he was paying him back and did not understand the question at trial because his English was poor; he denied however that he was paying Markov back by making up false allegations against him. At committal he agreed that in his culture it was an honour to pay back someone who shot him in the face and the prospect of Markov going to jail pleased him.

19. Douglas Evans gave evidence that in October or November 1995 he was on holidays at John Chapman's house at Trebonne, west of Ingham.  Mrsic arrived at the house and was nursing a wound to the side of his face which looked infected but which did not appear serious, more like a scratch.  He travelled with Mrsic, John and Gavin to Mt Fox.  Mrsic offered him a beer and they sat down in a dried out gully.  Gavin and Mrsic jumped up and ran off into the bush; three other people and a dog came up behind him, one in Army clothes; two were carrying guns and the other a bayonet or knife.  The three men detained him; they had foreign accents and pointed a firearm at him.  He was frightened; they took his wallet without his permission and he has not seen it since; he did not know them and would not be able to recognise them again.  He was unable to identify the three men from photo boards; nor could he identify any one at Mrsic's committal when he said the men who attacked him were not in court.  During cross examination in answer to leading questions and consistent with the description he first gave to police, he described the person whom the prosecution allege was Markov as roughly 45-50, not old, with solid build and short black hair, wearing trousers, a button up shirt and a hat; it was hard to remember as he was so frightened.  In re-examination he described the person as "European or something" with an olive complexion and a foreign accent.

20. Mr Evans' daughter-in-law, Leonie Evans, who was staying in Mr Evans' home in Cranbrook, Townsville, later received a telephone call from a man who said he had found Mr Evans' wallet; telephone records established a phone call was made from the Markov's phone in Gort Street to the Evans' phone on 26 October 1995 at 1.22 p.m.

21. John Chapman was visited by Mrsic who was in a dirty condition and had a scratch on his face which looked as if it was from a tree branch or a bit of barbed wire.  At Mrsic's request, Chapman, his son Gavin, and Doug Evans drove him to Mt Fox to pick up his gear.  Chapman stayed in the car whilst the others got out.  He later saw Doug Evans in a nervous state.  He received a phone call from someone with a foreign accent who said he had a wallet and some documents belonging to Doug and wanted to return them.

22. Geoffrey Braiding was in custody on a warrant in respect of unrelated drug charges in the Supreme Court at Townsville when he gave evidence.  He first met Markov at a casino.  Markov rang him in November 1995 and he went to Markov's home in Ingham.  Markov told him that he and Ivan (Mrsic) had fallen out and Markov had shot at Mrsic; Mrsic was coming back to kill him and he wanted Braiding and Graham Jones to watch the crops and ensure Markov was safe when he visited the crop site.  Markov took Braiding and Jones to the crop site on the Saturday afternoon at dusk.  Three or four days later he returned with Markov and Stepic armed with two shotguns.  The crop was in good condition and was watered by Stepic and Markov using an installed hose system.  He visited the crop on a number of occasions with Markov.  On his fifth visit to the crop on 14 November he was carrying his Beretta handgun with silencer and was accompanied by Markov who had a pump action 12 gauge shotgun and Stepic who had a .38 revolver made in 1913.  Braiding also had a machete and water bottles.  They arrived at the crop site at about 11.30 and Markov harvested whilst Stepic hung the crop to dry; Braiding inspected the crop site to ensure no-one was present.  Between them they carried out three fertiliser bags full of marijuana.  Markov intended to close the crop site down and insisted on removing a water pump which he carried wrapped in his jumper which Braiding identified from tendered photographs.  As they moved down the bush track they ran into Mrsic who fired three shots at them with a .303 rifle, killing Stepic.  Braiding ran off into the bush where he was lost for six days. 

23. On Monday, 20 November 1995 he made his way to Markov's property at Mt Fox where he was apprehended by police officers. He gave information to police and rang Markov using phone numbers written on paper in his pocket; the telephone conversation was recorded and Markov admitted his involvement in the fracas in which Stepic was killed.

24. Braiding denied he was a gun dealer but agreed that on at least two occasions he had unlawfully purchased a weapon without a serial number. His role in this incident was to provide security to ensure no harm came to any of the workers and if necessary to shoot to kill although he hoped any confrontation would be avoided. Graham Jones was to guard the entrance to the track and to fire warning shots if anyone came. Although he assisted Markov in carrying out the harvested cannabis and in providing security whilst it was harvested, he was not charged with any offences arising out of the incident.

25. Braiding was convicted and fined in 1994 for unlawful possession of handcuffs and for minor drug offences and failing to take precautions to secure weapons; in 1995 he was convicted and sentenced to six months imprisonment suspended for two years for supplying a dangerous drug, possessing a dangerous drug and possessing a pipe; in 1996 he was convicted of possessing an unlicenced weapon arising out of this incident.

26. He was upset with Jones and Markov for deserting him in the bush, and especially with Jones who was a friend.

27. In his statement to police on 28 November he said there were four shots fired by Mrsic whilst in his evidence he said there were three shots fired; in fact all told there were about eleven shots fired but only three shots by his antagonists before he escaped into the bush; they then discharged one or two further shots. He did not tell police that he had fired any shots as this was done only after Mrsic's shots; he deliberately lied to the police about this. He made no mention to police of any involvement of Gary Wessel until an addendum statement on 9 August 1996 as the police were not initially interested in Wessel.

28. When he first visited Markov's house to discuss this matter, Markov showed him a phone number and a video card in a wallet and said the owner was from Cranbrook in Townsville; Markov wanted Braiding to visit or ring the owner to attempt to ascertain Mrsic's address. One time Markov told him that he grabbed an old guy who was with Mrsic and perhaps another near the camp site and took his wallet and threatened him. Braiding had not met Mrsic prior to Stepic's killing, although he had seen him; Braiding gave evidence for the prosecution at Mrsic's murder trial.

29. Graham Jones gave evidence that he knew Braiding for four years prior to Stepic's killing.  He and Braiding went to Markov's house and spoke with Markov and Stepic about a marijuana crop.  They visited the crop on the day of the Maraka Mardi Gras in Ingham.  They travelled to Markov's Oak Hill Springs property in Markov's Toyota Landcruiser.  Markov and Stepic wanted someone to stay at the crop site on a permanent basis, and tend it until it was ready for harvest.  Markov wanted to distance himself from the crop because he was concerned that he or his family may be harmed by Mrsic.  Jones was to act as "cockatoo" while Braiding tended the crop.

30. Markov and Stepic pointed out Mrsic to him one evening at the casino. He noticed Mrsic had a reasonably recent incision-type injury to his neck one and a half to two inches long with a scab on it underneath his right ear.

31. On the day Stepic was killed, Jones sensed something was amiss and refused to go into the camp site. Markov, Stepic and Braiding went in; he remained at the Oak Hill Springs property. An hour before they were due to be picked up, he drove down on a motorbike and sat in a small hide where he could watch the track because he felt concerned. Although he has a hearing difficulty he heard shots. Jones' wife, Sandi, and Markov's wife, Elenora, arrived in the pickup vehicle. Markov returned, ran to the car, got in, slammed the door and drove off. Jones remained at the scene until midnight and then returned to Townsville. The next week the Townsville Bulletin carried a newspaper report that a body had been found at Mt Fox. Jones rang Crimestoppers and gave police a statement. He and Braiding had fallen out since the killing.

32. Jones agreed that he had a poor memory because of medication he took and he would not consider himself a 100 per cent reliable witness. In 1996, he was fined without conviction in the Townsville Magistrates Court for growing marijuana and convicted of possession of a silencer without a licence. In his first statement to police, he said a man called Bruce accompanied him on the first visit to the crop site but he now believes this was incorrect.

33. Police officer Paul James was involved in a search for a cannabis plantation in the Mt Fox area outside Ingham on 16 November 1995.  Stepic's body and the Disaster Creek crop were located and a video was taken of the crop.  Jiffy pots were found on the roots of some of the uprooted plants.  On 17 November, he returned to the scene with other police and photographs were taken.  A yellow pump was located off a track out of the crop site covered by a blue jumper.  A number of items at the camp site next to the crop, including bowls, had price tags on them from "HR Canegrowers Cooperative Society" (the previous name of Mitre 10) and "Mitre 10".

34. On 20 November 1995, at Markov's Oak Hill Springs property 6-7 kilometres from the crop site, he apprehended Braiding who was dressed in camouflage clothing, long pants and shirt, and was carrying a .22 pistol and silencer with magazines. A number of items similar to items at the crop site were found at the Oak Hill Springs property, including "Hamper" brand cans of corned beef, black poly pipe, orange baling cord and green rope. Jars of cannabis seeds and a book with a note written in blue pencil in a foreign language and signed "Ivan Mrsic" were found in a caravan. A water tank, in which particles of green leaf material, later identified as cannabis, were found, had been converted into a drying room. Three bundles of cannabis wrapped in fertiliser bags were also found.

35. Telephone numbers later established to be those of Markov were found in Braiding's pocket. Braiding agreed to phone Markov and to have that phone call recorded.

36. The appellant rented an old canecutters' barracks on the Cantamessa's farm, Hawkins Creek Road near Ingham from 24 March 1994 until 27 December 1995; other than a fridge and some furniture in the storeroom, the furniture did not belong to the Cantamessas. James and other police visited the barracks on 23 November 1995. Some furniture in the barracks was marked with a "Keith Collins Removalist" sticker similar to a sticker located on items at the crop site. A suitcase containing Stepic's property; a gun case containing an SKS Chinese assault rifle with bayonet; a piece of yellow carpet containing loose cannabis and seeds; a microwave and two pistols and ammunition; baling twine similar to that located at the Oak Hill Springs property and at the crop site and an empty can of "Hamper" brand corned beef were also found.

37. On 24 November James executed a search warrant on Markov's home at 15 Gort Street, Ingham and photographs linking Markov with the Oak Hill Springs property were found, together with keys to the Cantamessa barracks; the bag containing the keys was similar to a bag found at the barracks. Cannabis in a bedroom; a phone book with Braiding's phone number flagged with the word "Geoff" and a phone number which was the contact number for Doug Evans and words "Doug Evans" next to it were also located. Cannabis was also found in Markov's three vehicles and under the house.

38. Police officer Hurrell took a statement from Markov on 24 November 1995 in which Markov said that Stepic was his brother-in-law and would occasionally stay with him at Gort Street and help him on his property at Mt Fox; Stepic told him that Mrsic was angry with him as Mrsic was a Serb and Markov had said all Serbs were murderers and should be shot; Stepic told him about 2 weeks before he was killed that there was a crop of marijuana in the bush; Markov told Braiding about this and Braiding, Jones, Stepic and he went to the crop site on a number of occasions; he believed the crop belonged to Mrsic; although he had never seen the pump before, he decided to take it as he needed one on his property.  Stepic was carrying two bags filled with marijuana and Braiding a bag of marijuana and Markov's shotgun; they encountered Mrsic on the track and he began shooting indiscriminately; Markov dropped the pump, jumped behind a tree and ran and hid in the bush; ten to fifteen minutes later, he returned and found Stepic dead.

39. Hurrell located a smaller crop site at Raspberry Creek on 12 December 1995 and noted that the use of jiffy pots and 44 gallon drums and poly pipes in the watering and fertilising systems was similar to that used at the main crop site. Many marijuana crops have been grown in the Mt Fox area but the similar watering system at both sites was unusual. Hurrell also found a pump similar to a pump in a photograph taken from Markov's home.

40. Police officer Williams, a fingerprint expert located a latent fingerprint, marked as "M3" in a photograph, on a Leggo's tomato paste bottle from the barracks identical with Markov's right middle finger; the latent fingerprint on the microwave door, marked in a photograph as "M1", was identical with Markov's right thumb.  No other prints implicating the appellant were found.  In cross examination Williams said he also found other identifiable latent prints inside drawers in a duchess in the main bedroom; one of those prints, which he also said was marked "M1", was identified as belonging to Milohanovic. The fact that Williams said two prints were marked "M1" was not explored further.

41. Kata Sweiger came to Australia from Croatia and met Markov at a Yugoslav club.  Before she become aware that a body had been found near a marijuana crop at Ingham she received a phone call from Markov who told her that there had been trouble: Markov said that he shot Ivan (Mrsic) because Ivan was really aggressive, was tearing apart his friend Bruno and he had to protect himself and Ivan then ran away through the bush.  She thought Markov introduced himself as Joe and called her by name but was unsure whether the conversation was in Croatian, English or a mixture of both.  Telephone records established that a phone call was made to Ms Sweiger from Markov's home phone on 26 October 1995 at 12.29 p.m.

42. She had met Mrsic about five times; there had been some fruitless discussion of marriage; Mrsic had worked on her car brakes for $50 and gave her $500 to help her fix a broken transmission; she was to repay him when she could. Sometime after November 1995, Mrsic came to her house and slept in the back shed; she gave him coffee, $20 and some of her son's clothes, telling him never to return.

43. Police officer Sprenger conducted a interview with Mr and Mrs Markov about their financial affairs on Thursday, 18 April 1996.  During the course of this interview, Markov claimed to have won $150,000 at the casino.  This was not substantiated by casino records although enquiries with the casino revealed Markov won $29,000 in April 1996.

44. The assistant manager of the Mitre 10 store in Ingham identified the price stickers shown in photographs of items located at the camp site as purchased from her store: records demonstrated that on 3 April 1995 items including a tarp similar to one found at the crop site were purchased by J Markov by cheque for $299; a folding plastic picnic table and chairs similar to one located at the crop site were purchased by J Markov for $89.60 on 27 February 1995; on 2 May 1995, Markov purchased a 6 litre galvanised bin with locking lid and an assortment of discounted tools, a file, gardening gloves, a 50cm aluminium basin, some mugs, enamel soup dishes similar to those found at the camp site and marked with a Mitre 10 sticker, a tart plate, mosquito coils,  and an aluminium billy set for $191.20.  On 14 September 1995, Markov purchased a black poly pipe elbow for $41.10.  On 2 October 1995 Markov purchased 178mm x 16mm Flexavit, a 20mm ball valve, a large pump, an axe handle, plastic key tags, black poly pipe elbows, turpentine, paint and sealant for $186.23; Markov ordered and then purchased jiffy pots to the value of $12.00; on 23 October 1995, he purchased a garden shed similar to that found on the Oak Hill Springs property for $599.00.

45. Errol Rose, a Caltex service station proprietor in Ingham, knew Markov as a customer.  From 13 June 1992 to 2 September 1994, Markov spent $2,094 at his business.  From 3 September 1994 until December 1995, Markov paid him $2,845.15 with a further $533.00 outstanding.  A 1995 calendar from the Rose's service station was located at the camp site.

46. Mr Pelleri of Paramount Produce knew Markov as a customer.  Markov purchased 983 seven inch jiffy pots and a garden pruner for $137.60 on 28 April 1995.  Markov purchased a total of $3,619.79 worth of goods, including fertiliser and twine from his business from 1993 to 1995.

47. In the period from 1 January 1991 to 12 June 1996, the Markovs' income calculated from bank statements totalled $414,772.40; during the same period the Markovs' expenditure on the bank statements was $420,396.26, a deficit of $5,623.86. A further $6,090.00 was received as income as winnings from the Sheraton Breakwater casino. Other expenditure not included in bank statements (casino bets, fuel purchases, repayments on cars, payments used to purchase motor vehicles and real estate) totalled $94,815.85. The Markov's total deficit during the period from the available information was therefore $94,349.71.

48. The purchase of the Oak Hill Springs property was partly funded by three bank cheques from three separate banks for a total of $46,032.00 all of which were purchased with cash. The purchase of the Gort Street land by the Markovs for $19,000.00 was funded in part by a $10,000.00 bank cheque purchased with cash.

49. The appellant did not give or call evidence.

The grounds of appeal

50. The appellant, who was not legally represented at this appeal, was initially represented by his adult son who argued a number of grounds, most of which were not contained in the notice of appeal. The appeal was adjourned to allow the appellant to attempt to adduce fresh evidence and to file an affidavit in which he wished to complain about his legal representation; on the adjourned date the appellant represented himself.

The evidence of Mrsic, Braiding and Jones

51. The appellant's major complaint relates to the evidence of Mrsic and to a lesser extent that of Braiding and Jones; he submits that the evidence should not have been allowed to be given or the judge should have warned the jury of the dangers of relying upon it when they had an obvious interest in giving evidence implicating Markov in order to gain preferential treatment.

52. Their evidence was without doubt relevant and admissible; the only issue is whether a warning as to their evidence should have been given.

53. Mrsic, Braiding and Jones were accomplices of Markov and without their evidence it would have been difficult for the prosecution to establish the guilt of the appellant. Section 632 of the Criminal Code no longer requires the common law direction to be given that it is unsafe to convict on the uncorroborated testimony of an accomplice.  Despite s 632(2), many judges would have drawn to the jury's attention the need for special care when assessing Mrsic's evidence: Mrsic had an interest in giving evidence which inculpated Markov and minimised his involvement; he agreed he disliked Markov and had fallen out with him; he admitted he was not honest when dealing with crooks and that in his view Markov was a crook and Mrsic had a long list of criminal convictions including many convictions for dishonesty.

54. In Robinson v The Queen^[1] the High Court, in considering s 632(2) of the Criminal Code in respect of sexual offences involving a child said:

"[20]  ... Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence, its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect.

[21]Sub-section (2) negates a requirement, either generally or in relation to particular classes of case, to warn a jury ' that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.'  That does not mean, however, that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances which bring into operation the general requirement considered in Longman."

55. Similarly in respect of Braiding's evidence, many judges would wish to warn a jury that special care was needed when considering his evidence: on his own testimony he could well have been charged with a drug related offence arising from his involvement in the incident; he was not and therefore had an interest in implicating Markov and minimising his own involvement; he had prior convictions and admitted that he deliberately misled police in his statement to them.

56. Many judges would warn a jury of the need to examine Graham Jones' evidence with care before acting on it: he arguably assisted Markov in the incident but was not charged with any offence and thus had an interest in minimising his role and in implicating Markov; he had a poor memory and did not regard himself as a reliable witness; his first statement to police implicated another person and differed in that respect from his evidence at trial and he had some prior convictions.

57. Robinson requires that a warning be given to jurors as to the dangers of acting on the evidence of accomplices where such a warning is necessary in order to avoid a risk of a miscarriage of justice.

58. The prosecution case was very strong and there was ample independent evidence supporting the evidence of Mrsic, Braiding and Jones. The evidence of each supported the evidence of the other as to the charge of production. Braiding and Jones were not friendly since Stepic's death and did not know Mrsic, so that there was no suggestion of collusion; indeed, Braiding gave prosecution evidence in Mrsic's murder trial. There was also a body of circumstantial evidence supporting Mrsic's evidence. Mrsic said that items found at the camp site were purchased by Markov for the purpose of establishing the camp at the main crop site; some of those items were established to have been purchased by Markov at about this time from the hardware store described by Mrsic. Cannabis was located at Markov's property at Oak Hill Springs, at the barracks, at his home in Gort Street and in his motor vehicles. Markov's financial records indicate that he had a substantial unexplained income. A pump found at the Raspberry Creek site was similar to a photo of a pump found in Markov's home.

59. In respect of the unlawful wounding conviction, there was a substantial amount of evidence supporting Mrsic's version. The jury was able to observe an injury to Mrsic's neck; Mrsic's evidence of injury was also supported by that of Chapman and Evans. Even more significantly, Ms Sweiger swore that Markov admitted to her on the telephone that he shot Mrsic; phone records confirmed a telephone call was made from Markov to her on 26 October 1995. Markov told Braiding he shot at Mrsic.

60. In respect of the robbery conviction, there was also a substantial amount of evidence implicating the appellant; although Mr Evans was unable or unwilling to identify the offenders, it was not disputed that he was robbed by someone; Mrsic's evidence that Markov was one of three men involved was supported by the evidence of Evans' daughter-in-law who received a phone call from someone who had Evans' wallet; that phone call on 26 October 1995 was from Markov's telephone. Braiding said Markov showed him a wallet, phone number and video card; said the owner was from Townsville and that he grabbed an old man who was with Mrsic at the crop site and took his wallet.

61. The learned trial judge gave a detailed summation of the evidence of Mrsic, Braiding and Jones to the jury in the course of his concluding remarks. As to Mrsic's evidence, he reminded the jury of the cross-examination of Mrsic, including discrepancies between his statement to police, his evidence at committal and his evidence at trial and the suggestions, denied by Mrsic, that he had wrongly implicated Markov to improve his own position. The judge told the jury that Mrsic had prior criminal convictions and read to them the following cross examination:

" 'Understand that the jury will have to make some assessment of your honesty, depending whether what you are saying - determining whether what you are saying is the truth or not?' He said he understood that.  He was asked if he described himself as an honest person.  He said he worked 32 years in this country, paid 32 years tax, 'but I have some dishonest parts in me as well,' and he was taken to his evidence at the committal, which he agreed that he said was 50/50 honest.  'Some ways you're honest and some ways you're not?' 'If I think the person is a crook, I'm a crook, too.'  Then he was asked how he viewed Markov, the accused man, and he said, 'I didn't think - I thought he wasn't a crook now.  I know he's a crook now.  I know that.'  It was put to him, 'Well, if you think he's a crook now, then from your answer you're going to be a crook towards him as well, would you agree with that?'  He said, 'I don't agree with that.  I wouldn't tell anybody lie really.' "

62. In relation to Braiding's evidence, his Honour reminded the jury of Braiding's convictions, that Braiding had not told police anything about firing his gun at the time when Stepic was killed and that this was a deliberate untruth, a lie, and that he had not been charged with producing a dangerous drug resulting from the facts of this case.

63. In respect of Jones, the learned judge reminded the jury that:

"... he would not consider himself to be a 100 per cent reliable witness because he loses track of things and gets jumbled up."

His Honour also reminded the jury of Jones' prior convictions and said:

"It was put to him he had given the evidence in an effort to protect Braiding, presumably to implicate somebody else, and he disagreed."

64. Although no special warnings were given to the jury, the relevant issues were left for its consideration; undoubtedly these issues were focussed upon in cross-examination; there was a body of independent evidence supporting the evidence of the accomplices; no redirections were sought and the prosecution case was strong and was not contested by any other sworn or affirmed evidence. In all the circumstances a warning to the jury to take particular care in respect of the evidence of Mrsic, Braiding or Jones was not necessary in order to avoid a miscarriage of justice and no error has occurred.

The testimony of Doug Evans

65. The appellant claims he is entitled to be acquitted in respect of the robbery charge because Evans was unable to identify him as one of his assailants.

66. Mrsic's evidence, which the jury was entitled to accept, placed Markov at the scene where Evans was robbed of his wallet. Evans' daughter-in-law, who was living in Evans' home whilst he visited the Chapmans, received a phone call from a man with a foreign accent who said he had Evans' wallet; that phone call came from Markov's phone; Braiding said he was shown a wallet belonging to a Townsville man who may know Mrsic's whereabouts; Braiding said Markov admitted grabbing an old man who was with Mrsic near the crop site and taking his wallet.  That combination of evidence was sufficient for the jury to infer that Markov was involved in the robbery committed upon Evans.

Fingerprint evidence

67. The appellant claims the appeal should be allowed on the ground that the fingerprint evidence was flawed. There is a sentence in cross-examination of the fingerprint witness Williams which, if the transcript is correct, indicates that Williams was either correct in his evidence that a print he had referred to in chief was that of Markov, or different prints in different photographs were both marked "M1" or there was a verbal slip in his evidence. Reading Williams' evidence as a whole, it seems clear that the print identified as belonging to Milohanovic was a separate print to those identified as belonging to Markov. There appears to have been no suggestion made to Williams that he had contradicted himself, nor did counsel for the defence take any such point, the judge having summed up on the basis that Williams identified two relevant prints as being those of Markov.

68. There is nothing in this ground of appeal.

Other grounds of complaint

69. The appellant has raised a number of complaints about his trial which were not specifically included in his grounds of appeal. For example, he claims that the evidence as to his purchases of gardening and farming equipment is consistent with his interest in his hobby farm and garden rather than in growing marijuana. The relevance of that evidence in context goes far beyond the appellant's contention and some evidence directly links him with the crop site.

70. Another example relates to his conviction for unlawful wounding: the appellant claims that Chapman and Evans only noticed a scratch on Mrsic; Mrsic did not require medical attention; went shopping the next day and Mrsic claimed he treated it with "antiseptic aloe vera" when aloe vera is not an antiseptic. The judge explained the elements of the offence of unlawful wounding to the jury and, as we have already stated, there was sufficient evidence to support the verdict of guilty. These and like complaints are without merit.

71. The appellant claimed that his poor hearing resulted in an unfair trial and perhaps a lack of understanding of his right to give or call evidence. No medical evidence was produced by the appellant as to his poor hearing; he was well able to conduct this appeal on his own behalf without any apparent hearing difficulty on the second day of the hearing.

Unsafe and unsatisfactory

72. The appellant's original sole ground of appeal was that the evidence was unsafe and unsatisfactory. A review of the whole of the evidence which we have conducted demonstrates there was ample evidence upon which a reasonable jury could be satisfied of the guilt of the appellant in respect of each count.

Complaints about legal representation

73. On the first day of the appeal hearing, the appellant complained about his legal representation: in essence, that he was wrongly advised not to give evidence; he should have been advised to file a notice of alibi in respect of the attempted murder and related charges; he could have called character witnesses and Bruno Milohanovic to establish he and Bruno were in Melbourne at the time that Mrsic claims to have been shot, and he wanted to give evidence himself.

74. The appeal was adjourned in part to allow the appellant to file an affidavit containing any complaints about his defence counsel; he did not do so.

75. His barrister cross-examined police officers to establish that the appellant had no prior convictions and the learned trial judge gave an unobjectionable direction to the jury as to the use of the good character evidence in respect of the appellant.

76. The appellant was advised in the usual way of his right to give and call evidence and at his barrister's request was given the luncheon adjournment to enable further instructions to be taken. After the lunch break the judge again addressed the appellant; his barrister on his behalf indicated that he would not give or call evidence.

77. On the material before this Court, there is nothing to suggest that incompetent or improper conduct by counsel at the trial has deprived the appellant of a significant possibility of acquittal: see R v Green.^[2]

Fresh evidence

78. The appellant sought to rely upon fresh evidence as a ground of appeal. Tracy Lloyd Clancy, a single 40 year old male inmate of Woodford Correctional Centre serving a 10 year sentence for rape imposed in 1996, said that in March 1996, he was an inmate of Stuart Creek Correctional Centre in Townsville and was confined to the maximum security section of Unit 1 where he met Ivan Mrsic. They became friendly and in mid-1997 Clancy regularly had contact with Mrsic who had a job in reception.

79. Clancy was transferred to Woodford Correctional Centre on 23 June 1998. He had been visited by Wessel's^[3] lawyer who had mentioned that Markov was in the Woodford Correctional Centre.  He subsequently met Markov and they talked about Stuart Creek and Mrsic.  Mrsic told Clancy he had lied in his evidence about others' involvement in the marijuana crop the subject of this trial; Mrsic was angry with Markov because Markov was part of a gambling syndicate which excluded Mrsic; Mrsic had given false evidence against the appellant for some political reason connected with the civil war in the former Yugoslavia; in late October 1995 Mrsic saw Markov, Milohanovic, Wessel and Stepic gambling at the Townsville casino; he approached Milohanovic, Markov and others for a loan but they refused and would not allow him to join their syndicate;  Mrsic resented this and concluded that Stepic was behind the funding of the gambling from the sale of marijuana stolen from the marijuana Stepic, Mrsic and another were growing; Mrsic was suspicious of Stepic teaming up with Markov, Milohanovic and Wessel; he felt their rejection of him was politically motivated as he was a Serb born in Croatia whilst they were pure Croatians; Mrsic thought that Markov, Wessel and Milohanovic had reported him to police for Stepic's killing; Mrsic said more than once, "It doesn't matter how, I will get all the bastards for messing around with me"; Mrsic and Stepic had dried some marijuana at the barracks where Stepic lived; he was cooperating with police to get a lighter sentence; the police wanted Markov, Milohanovic and Wessel, not Jones and Braiding; Mrsic had to implicate certain people in relation to the drug crop to get preferential treatment from the prosecution in relation to his charge of murdering Stepic; on a number of occasions he said, "Without me they don't have any evidence, I am a very important man" and he had to "extend the truth and tell a few lies" to make sure that he implicated other people in relation to the drug crop.

80. Mrsic told him that during the court proceedings, after Det Paul James had given evidence, but prior to Mrsic giving evidence, James came to Mrsic's cell and coached him in his evidence for one to one and a half hours whilst eating takeaways brought by James.

81. Mrsic said he gave evidence that Markov and Wessel were the main organisers; Det James told him that Markov was the most substantial and he went along with that because he had a score to settle with Markov. Mrsic said he fabricated evidence against Markov and admitted this during the trial but the judge asked him if he understood the question thinking his English was not good. Mrsic said, "I nearly fucked up, Hurrell and James would have had fits. Markov is Stepic's brother-in-law and he put me into the police about shooting Stepic and helped him to double cross me, the old Croatian."

82. Mrsic said there were two reasons for fabricating his evidence: to keep his deal with police and receive a reduced sentence for his involvement and to get even with Markov. Mrsic often boasted about how he got a lighter penalty by extending the truth to help the prosecution; he was disliked by other inmates and on one occasion was bashed.

83. Mrsic lied in implicating Markov as the one who planned and grew the crop, whereas Markov in fact was only involved in the later stages in an effort to steal the crop planted and grown by others. Mrsic also lied about when he first met Markov and about giving Markov marijuana to sell. There may have been other lies but he could not recall.

84. Mrsic asked him to write a letter to Elenora Markov to pass on to Joe to the effect, "If you don't involve me by saying that I was the one firing the shot that killed Stepic, then I won't give any evidence against you in your matter. Hopefully we can resolve our differences so we can both stay out of trouble." The letter was returned unclaimed.

85. Markov arrived at Woodford Correctional Centre on 13 August 1998. Clancy first made contact with lawyers in respect of these claims by phone on 28 August 1998 and was seen by a solicitor at Woodford on 17 September 1998. Clancy claimed he was not aware that Markov was in Woodford from 13 August. Although Markov was at Woodford until 4 June 1999 when he was transferred to Borallon, he was in a separate confined area and Clancy said he had no contact with him until early October 1998.

86. In his handwritten letter to Legal Aid, Clancy said that Mrsic lied as "this was part of an agreement he had for him to receive his preferential treatment from a reduced sentence of life for murder to 10 years for manslaughter."

87. Clancy agreed that prisoners who give evidence against others are referred to as "dogs" and it is not smart for a prisoner to boast about giving such evidence.

88. Clancy's criminal history dates back to 1977 and includes convictions for stealing offences in 1978, 1982, 1988, 1995 and 1996; in 1982 he was convicted of supplying a false name; he has six convictions for offences of receiving and is presently serving a 10 year sentence for rape.

89. Affidavit material relied upon by the respondent from Mrsic denied these allegations. Det Snr Const Paul James denied that he at any time suggested how Mrsic should give his evidence or who he should implicate; he did not visit Mrsic in prison during any court proceedings for one to one and a half hours to discuss Mrsic's evidence.

90. We did not find Clancy's evidence persuasive. He has extensive criminal convictions for dishonesty; although he was transferred to Woodford Correctional Centre in June 1998 he made no complaint to lawyers about Mrsic's statements until 28 August 1998, just two weeks after Markov was transferred to Woodford. It is not plausible that Mrsic, who had been jailed for extensive periods in the past, would boast in prison of giving false testimony against other prisoners. Mrsic's alleged claim that he did a deal with police to give false testimony in order to get a lighter sentence does not sit well with the objective fact that he was charged and tried for murder, found not guilty by a jury of murder but convicted of manslaughter and subsequently sentenced to 10 years imprisonment prior to giving evidence against Markov. Clancy's claims are denied by Mrsic and by Det James. The detail that Clancy claims to recall is surprising bearing in mind the passage of time.

91. As Clancy's evidence is not apparently credible, it should not be accepted as fresh evidence. In any case, even were it apparently credible and unavailable at the time of the trial, it would only result in a successful appeal if it were likely or if there were a significant possibility that a reasonable jury would have acquitted the appellant if the new evidence had been before it at the trial. The latter test was adopted in Gallagher v The Queen.^[4] 

92. In Mickelberg v The Queen,^[5] Mason CJ and Deane J approved this approach.^[6]  Toohey and Gaudron JJ said:

"In essence, 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 or, if there be a practical difference, that there is a 'significant possibility that the jury, acting reasonably, would have acquitted the [accused]'.  If there is a difference it is not material to the outcome of the present applications.  For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it."^[7]

93. Brennan J agreed with Toohey and Gaudron JJ "that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the 'likely' formula remains."^[8]

94. When all the evidence, including the evidence of Clancy, is looked at together, we are not satisfied that had the new evidence been before the jury at trial there is a significant possibility or a likelihood that a reasonable jury would have acquitted the appellant; the evidence against the appellant in respect of each count was strong and as we have noted Mrsic's evidence was supported by other independent evidence in respect of each count.

The applicant's further written submissions made after the appeal hearing but prior to the delivery of these reasons

95. The appellant sought and was given leave to make further written submissions after the appeal was heard but prior to the delivery of these reasons.

96. The appellant produced a further 68 pages of submissions which on the whole merely restated his complaints already aired at the appeal.

97. Many passages of those submissions are an attempt by the appellant to give evidence; he rejected the opportunity to do so at trial and is not entitled to do so now.

98. Other submissions constituted a fresh attack on defence counsel at trial; the appellant was given an opportunity at the appeal hearing to place any allegations against his barrister in an affidavit and he did not; in any case these further complaints do not demonstrate incompetence or improper conduct on behalf of the barrister at trial.

99. The appellant used these submissions to refer to evidence at committal even though he was told in clear terms at the appeal that the appeal must turn on the evidence at trial.

100. In these submissions the appellant first raised the issue of a separate trial in respect of the charge of robbery in company. No such application was made at the trial. The charges were properly joined under s 567(2) of the Criminal Code in that the charges formed "part of … a series of offences committed in the prosecution of a single purpose", namely the commercial production of a large quantity of cannabis.

101. The appellant in these further submissions failed to demonstrate any miscarriage of justice.

Application for leave to appeal against sentence

102. The applicant claims the sentence imposed, 7 years imprisonment for production of a dangerous drug; four years imprisonment for unlawful wounding and six years imprisonment for robbery with violence in company, was manifestly excessive.

103. There were serious aspects to these offences. The applicant was convicted of masterminding a large scale production of an illegal drug for potentially lucrative profits. In pursuing this criminal activity, the applicant used firearms to protect the crop. The learned trial judge imposed a sentence in respect of the production charge which reflected the general criminality of the wounding and robbery charge for which concurrent sentences were imposed.

104. Although the applicant was 63 years old at the time of sentence, he did not have the benefit of remorse shown by a timely plea of guilty. The seriousness and professionalism of the offence and the real possibility of injury to others from the use of firearms warranted a sentence which would act not only as a deterrent to the applicant but also to others who would take part in such illegal and potentially dangerous activities. The sentence imposed of seven years imprisonment was well within the range of a sound sentencing discretion: see, for example, R v Romeo.^[9]  Romeo tended a crop of 8,100 plants cultivated in a sophisticated manner on a property near Roma.  He was involved in the cultivation from its inception over a four month period; he had not invested any capital in the project but was a significant participant in a major criminal enterprise; he was 32 years old, had a recent prior conviction and fine for cultivation of a small number of plants; he pleaded guilty by way of ex officio indictment.  He was sentenced to six years imprisonment and this Court noted that, but for his early plea, a sentence of eight years imprisonment would have been warranted.

105. Whilst Mrsic received five years imprisonment for the offence of production, he pleaded guilty, played a lesser role and was serving a 10 year sentence for manslaughter requiring proportionality considerations.

106. We would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

107. PINCUS JA: I have read the joint reasons of the President and Atkinson J and am in substantial agreement with them.  There was discussion in the appeals of Milohanovic and Wessel (CA Nos 230 and 237 of 1998, 24 June 1999; [1999] QCA 239), of the basis on which fresh evidence could be admitted in a criminal matter.  In Milohanovic and Wessel the principal judgment, that of Shepherdson J, referred to reasons given by White J and by me in Main (CA No 387 of 1998, 30 April 1999;  [1999] QCA 148).  Shepherdson J quoted from Main analysis of the difference between the test of likelihood and that of possibility, in considering admission of fresh evidence.  His Honour remarked –

"It appears then that since Main, this Court has preferred the likelihood test, at least in the usual case".

108. I continue to find it difficult to agree that there is no practical difference between the two tests, and prefer the test of likelihood. Applying that in the present case, one has to give weight to the considerable strength of the Crown case, the principal witnesses supporting which are dealt with in the President's reasons. It seems to me impossible to conclude that the fresh evidence relied on here would have been likely to make a difference to the verdict. Looking at the matter more broadly, I am of the view that the fact that the jury did not hear such evidence as Clancy might have given, if called at the trial, did not bring about a miscarriage of justice.

109. I agree with the orders proposed by the President and Atkinson J.