R v Mrsic [1997] QCA 317

Court of Appeal (Qld)|1997-09-01|Before: Davies JA, Derrington J, Jersey J

DAVIES JA: The appellant was convicted of manslaughter after a trial in the Supreme Court at Townsville. The conviction was the result of a gun fight between rival groups of persons who had been involved in a marijuana plantation in a national park at Mt Fox.

The appellant and a man called Markov appear to have been leaders of the opposing groups. There had been two earlier confrontations, in the first of which shots had been fired and the appellant had sustained a wound in his neck. On the second occasion, the appellant and some companions had returned armed to the crop site. They were confronted on the track leading to the site by a group led by Markov. Also in the group was Kirola Stepic whose fatal wounding resulted in the appellant's conviction. In Markov's group was Geoffrey William Braiding who was a Crown witness at the appellant's trial. Hans Obrenonvic, who was indicted as an accessory after the fact to the appellant's charge of murder, was in the appellant's group.

In the gun fight, the appellant did not intend to wound Stepic. He had apparently aimed his rifle in Markov's direction but had mistakenly wounded Stepic. An issue at the trial was who had fired the first shot. The appellant pleaded in self defence that Markov had fired the first shot and that he had returned the fire in self defence. However, he did not give evidence at his trial.

The sole ground of appeal is that there is fresh evidence that Braiding, in the course of his evidence, knowingly gave a false account of the order and circumstances of the shots fired. The fresh evidence is said to be a conversation which Braiding had with Obrenovic on the verandah of the Supreme Court on 12 June 1997 during the course of the trial. He is said to have told Obrenovic that Markov had shot the appellant first and that the appellant in effect returned his fire in self defence. It is said that this conversation was overheard by a government security officer and reported to a correctional officer, Ms Seedwell. The appellant has provided no evidence to support these contentions.

On the other hand, the Crown has investigated these contentions. Braiding, who is shortly to be sentenced for a matter, apparently cannot be found. Barbara Seedwell said that all the information which she received came from Mr Pinkerton, the State Government security officer at the Townsville Courts who overheard a conversation between Obrenovic and Braiding. Pinkerton made no mention to her that the conversation referred in any way to Markov. That is confirmed by Pinkerton's statement. He recalls the following conversation. Obrenovic said, in relation to the incident, words to the effect "You didn't shoot at me", to which Braiding replied, "No, I shot over your head, I didn't see you". That was consistent with the evidence which Braiding gave at the trial. Obrenovic also said something about there being a machine pistol in a bag. There was no reference to Markov in the conversation.

The only evidence of the conversation before this Court therefore does not support the appellant's contended version of it. In those circumstances, there is no fresh evidence which might, when viewed in combination with the evidence given at the trial, have been likely to cause a jury to entertain a reasonable doubt about the appellant's guilt.

The appellant raises a number of points in his oral submissions before this Court today which are unrelated to the only ground of appeal. The only one of these which calls for comment and which, at first glance, appears as if it might have had some substance, was that two bullets were found in the deceased's body and yet there was only one entry point. However there are two answers to that. One is that the only expert evidence at the trial indicated that both bullets came from a 303 rifle, that is the rifle of the kind used by the appellant, that they indicated shots in quick succession coming from the same general direction. Perhaps even more important is that it was accepted at trial on the appellant's behalf that the appellant had killed the deceased, the defence being that the killing had not been deliberate.

In those circumstances, there is nothing in the point which is raised orally and there is nothing in the other points and I need not even mention those raised during the course of the appellant's oral submissions.

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