Markov v The Queen B75/2000 [2001] HCATrans 511 (12 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B75 of 2000

B e t w e e n -

JOSEPH NOJE MARKOV

Applicant

and

THE QUEEN

Respondents

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 OCTOBER 2001, AT 12.35 PM

Copyright in the High Court of Australia

MR J.N. MARKOV appeared in person.

MS L.J. CLARE: If the Court pleases, I appear for the respondent. (instructed by the Director of Public Prosecutions (Queensland))

MR MARKOV: I do not have - - -

KIRBY J: You do not have a lawyer?

MR MARKOV: Only I got interpreter and also because I am deaf, you know, she will tell me what is going on.

THE INTERPRETER: Your Honour my name is Jadranka Brown. I am the accredited interpreter for Croatian and I am here to interpret for Mr Markov.

KIRBY J: Very well. Does Mr Markov wish to address the Court in English or does he wish to address the Court in Croatian?

MR MARKOV: English.

KIRBY J: Very well. You say what you want to say, Mr Markov. We have read all the papers and we know what the issues are in the case.

MR MARKOV: You can see on the page No 2, indictments. For example, there are no dates of my committing my crimes. It says from 1 October to 16 November, which really came to the end of trial which I did not have any chance or choice to defend or get an alibi or whatever, because they change it right on the end of the trial. First it says on the dates such-and-such and they change them right at the end. You know, it was on 26 and 25 October because Mrsic says this happened on 2 November because he bought a watch and the Prouds jeweller put a time and a date so he remember 100 per cent that the crime that I committed happened on 2nd and 3rd. In fact, so it could not be because the other Crown witness, Braiding, he came to my house in Ingham and he talking to Stepic, the man who was killed 10 days after, and to me and the same time happening this crime, attempting to murder a man who killed my brother-in-law. So that is impossible, it is no such thing.

The other thing also, 3 November, the day after I attempted to murder Mrsic, he says that I robbed a man of his wallet. In fact, the victim says, "It is not this man" - that was on committal - "The people who robbed me, they are not in court today". So this was 100 per cent a matter that has been pressed on and put it on to charge me for something what Mrsic saying that I was his boss in production. If you look - - -

KIRBY J: We know all this, but all of this was put before the jury and the jury accepted the prosecution case against you.

MR MARKOV: Okay, your Honour. I just remind you of something. Have you received the other submission, exhibit 29, which I sent a couple of days - you got 29?

KIRBY J: Yes. We have the application book which has all of the material that you are now looking at and we have read it.

MR MARKOV: Did you get an exhibition 29?

KIRBY J: Yes.

MR MARKOV: Which is an impartial summing up by trial judge. Have you got it?

KIRBY J: Yes, we have that.

MR MARKOV: You will see here which is on the original page No 13, we are talking about jury. If you read page No 13 on paragraph 2 - or could be line 5, something like this:

However, the allegation that he was in company is what is described as a circumstance of aggravation, and what you will be asked about that offence, when you return you will be asked, do you find the accused guilty or not guilty of stealing with actual violence whilst in company? If you say, "Not guilty" you will then be asked whether you find the accused guilty or not guilty of stealing with actual violence, that is, without the circumstance of aggravation of being in company. So that if you were satisfied that he stole with actual violence, but not satisfied that he was in company at the time -

That means if I was not in company. Further up he says that means that:

your verdict would be not guilty of the offence of stealing with actual violence whilst in company, but guilty of the offence of stealing with actual violence -

which in fact is the same thing, just repeating on a different way, but deceiving, that in fact, even if you do not believe that he was in company because Evans says that it is not me who was down there, but you have to find him guilty of the stealing with the offence, which means jury did not have any choice but to find me guilty of the offence and so is - - -

KIRBY J: The jury does seem to have been quite discerning and very attentive to the evidence because they acquitted you on counts charging you with attempted murder and unlawful wounding with intent to maim. So that they were discriminating and they decided to acquit you on those charges.

MR MARKOV: Okay. The charge No 1 was primarily done because Mrsic says that I was there in his statement, that I was there with him in 1990 and 1991 and they took my property. They confiscated my property because of that. In fact, later on he says that he met me on 12 May 1995. So that this charge No 1 automatically was - because there was no evidence that I was there doing any drugs because he says suddenly, "Look, he was there with me, blah, blah", to save his murder charges, because he verily thinks that I reported him to the police that he killed my brother-in-law. I was in company there, of course, I seen what has happened. Things like these, it is very difficult to make up the jury's mind because they already - he telling them, you know, exactly, "Even if he is not in company, you have to charge him". That is what the thing says.

Also on the appeal, I was incarcerated. I had no chance to prepare my appeal because I was in high security at the time. They put me from the high security to lower security and that is when I start doing the papers for the Court. They put me back in the high security, SDL, and I had no chance of preparing my papers, so I was working on the committal proceedings and it says here that they completely refused - you know, did not accept my appeal, my document, because they were sort of mixed up with committal. It says here that in page No 54 I wrote here that the document emanating from committal proceedings, see section 53(6), documents emanating from committal proceedings have been treated as legal documents, Eastwood v Bullock (1864) 1 WW & A'B (L) 92.

That means that I was right to present those arguments from what the Mrsic says, that he was more or less what he says in his statement, he was lying and he said - I mentioned this in only appeal - that he met me, not in April, what the prosecution is saying to implicate my buying some equipment for my children in high school, to implicate me that I bought those little things for couple of hundred of bucks for the crop farm for Mrsic. In fact, he met me - and this was on - I bought jiffy pots, my children are selling little things, you know, like on a market and we were making those jiffy pots in my garden next door on 13 Gort Street and the other one was on 2 May and he said that he was not there with me when he rang to the parole officer. But what has happened there - - -

KIRBY J: All of these matters that were put before the jury and the jury heard the case and decided its verdict.

MR MARKOV: Yeah, but because of these things, you know, I could not get a fair appeal because they did not allow me those things, to put it in, you know. But I found later that documents from committal proceedings are legal documents, your Honour, because it is a testimony or whatever under the oath. That is why, you know, I was subjected with the oppression that I could not deal with my things. Also, you see, document from this judge's direction, for example, it was very deceiving. He said to the jury - how can jury can make their own mind, if he says to the jury that, just an example, you see, for example, you find on exhibit 29, page 1, he says:

Page 762 line 31---(His Honour to Jury) you and I together, members of the jury, constitute the Court. My function is to direct you as to matters of law and make such observations about the facts as I see fit. You must accept what I tell you about the law as being correct.

Now, if point of law and facts of law he did not put them properly, as they were, that means he deceived them and like, for example, further up, for example, the first one was D. Graham, which is at page 2 from exhibit 29, paragraph 6, to:

The witnesses fact and Judge's Direction to the jury: Page 773 line 222 ---

(1) Detective Senior Constable Graham. He describes how the body was located -

and he also mentioning that he found bullets .22 there, to implicate me on attempting to murder - attempted murder on Mrsic, while further up you will see that not Graham, but Mr Campbell who is in charge of the operation and here on page 3 of exhibit 29:

Detective Senior Constable Campbell testifies following on the page 207 line 27 ---Would you describe the search with the metal detector as being thorough?---Yes, to the best of my ability, yes.

Then later on, he said:

It wasn't a .22 anyway?

That means they found one 303 bullets which, of course, could have been used with Mrsic, who killed Stepic. He killed with 303. And it was not .22 found. That means he was directing the jury and here in this direction here on page 781, line 32, or whatever of this submission, he deliberately did not mention that not Graham, but Detective Senior Constable Campbell never found any bullets. That means he says on Graham submission or direction that Graham found some four bullets.

Now, Graham had 31 pages of the evidence. There was no mention that he found any bullets, but he mentioned that he was trying to shoot to see the difference between full can of beer and empty can of beer. Actually, Campbell was the one who was in charge of submitting the evidence found on the crop site and around the crop.

Now, the same thing of Mrsic and the, what do you call it, Mrsic chronology is described on my final judgment to the court, from No 1, he reply applicant - - -

KIRBY J: Mr Mrsic was the man who was shot in the neck?

MR MARKOV: Mrsic was who killed my brother-in-law and he alleged that I was attempting to murder him. From six, your Honour - - -

KIRBY J: Yes. You were acquitted by the jury of that charge.

MR MARKOV: Yes, but also the same charge, same evidence, I am stilled charged for six years for unlawfully wounding, same evidence, same charge, which is, you know, it is not fair.

KIRBY J: You have another five minutes. The yellow light has come on.

MR MARKOV: Yes, yes, okay. So all my reply is on after page 136 which is, what do you call it here, on page 138, final judgment, from No 1 everything is there, to paragraph 109. These are the answers of these prosecution allegations or the finding of the Court of Appeal. It is all on these things. So, there were no days, for example, 25, the evidence 25 of these applicants part 2, page 142, the evidence was practically fabricated because no evidence of Braiding going with me to the crop because everything on a statement. 30 October 1995 was phone message confirmed by the Crown witness at Telstra. Then on 2nd Braiding returning telephone and on 2nd - on 1st. On the 2nd he is coming to see me and talking to me.

So 4/11, Saturday, a couple of days, Braiding went to see Graham and on 11, I only met Graham first time and how he can be witness? He only come to see my property and he want to stay there to buy some property, to look around for real estate, and how he can be a witness of me doing any crimes? See, there was no time, prosecution saying, you know, and it is all in these particulars here at 25, the whole story how he was lost in the bushes and still, you know, his statement keep going on, keep going that he was with me and whatever, you know. But everything is here, that, you know, because of judge's long, you know, deceiving directions, which is nothing to do with the really original thing because judges went on what they saying, not what the actual effects were, you see. These oppressions - and that is why I need to go to the Court and explain this situation because all these things are here.

KIRBY J: Your time has expired, Mr Markov. Thank you very much for your submissions. We do not need your assistance, Ms Clare. I would ask the interpreter to take some notes please so that she can explain to Mr Markov the reasons why the Court is refusing his application. Would you tell Mr Markov that these reasons will be available early next week in written form.

The applicant was tried on an indictment charging him with a number of offences. He neither gave nor called any evidence at his trial. The jury acquitted him on counts charging him with attempted murder and unlawful wounding with intent to maim. They convicted him of unlawful production of cannabis of an amount in excess of the scheduled quantity, robbery with violence in company and unlawful wounding. This was a strong prosecution case.

The essential point presented as a basis for special leave to appeal to this Court is that the evidence against the applicant on the offences for which he was convicted was insufficient to warrant the safety of the convictions. He attacked the quality of the evidence called against him at his trial. All of these points and others were considered by the Court of Appeal of Queensland and dismissed. On the face of things, the issues do not present a promising basis for the grant of special leave unless an arguable case were shown that a miscarriage of justice had occurred. We are not convinced that this has been shown.

So far as the evidence is concerned, on each of the counts on which the applicant was convicted there was strong supporting testimony, much of it objective and traceable to the applicant himself. Various other general grounds are maintained in the application, including errors in the directions given by the trial judge to the jury. None of these have been shown to have merit. Special leave to appeal is therefore refused.

AT 12.59 PM THE MATTER WAS CONCLUDED