R v Mitrovic [2001] NSWCCA 359

New South Wales Court of Criminal Appeal

CITATION : R v Mitrovic [2001] NSWCCA 359 revised - 12/09/2001 FILE NUMBER(S) : CCA 60177/01 HEARING DATE(S) : 17 July 2001 JUDGMENT DATE : 17 July 2001

PARTIES : Dragan MITROVIC - Appellant Crown - Respondent JUDGMENT OF : Stein JA at 13; O'Keefe J at 14; Simpson J at 1

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : M D Austin - Appellant E A Wilkins - Crown Respondent SOLICITORS : D J Huimphreys - Appellant S E O'Connor - Respondent

LEGISLATION CITED : Criminal Appeal Act 1912 Crimes Act 1900 CASES CITED: R v Gallagher (1986) 160 CLR 392 R v Mickelberg (1988-89 167 CLR 259 DECISION : Convictions quashed, verdicts of acquittal entered.

IN THE COURT OF CRIMINAL APPEAL 60177/01

STEIN JA O'KEEFE J SIMPSON J

17 July 2001

REGINA v Dragan MITROVIC Judgment

SIMPSON J : 1 On 10 January 1997 Mr Mitrovic applied under s 474D(1) of the Crimes Act 1900 ("the Act") for an inquiry into his conviction on 26 April 1990 of offences of possession and supply of prohibited drugs and goods in custody, the offences allegedly having been committed on 18 October 1989. 2 On 9 April 1998, having considered the application, I ordered, pursuant to s 474E(1)(a) of the Act that an inquiry into the convictions be conducted by a prescribed person. On 12 March 2001, no such inquiry having been conducted (by reason, as I understand it, of the inability of the relevant authorities to locate Mr Mitrovic), I vacated that order and ordered instead, pursuant to s 474E(1)(b) of the Act, that the whole case be referred to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912. The sole ground sought to be advanced on Mr Mitrovic's behalf is that fresh evidence casting doubt upon the safety of the convictions is available. 3 The history is a long and inauspicious one but, having regard to the fair and sensible attitude adopted by the Crown, it can be reduced to its bare essentials. 4 The appellant (as I shall hereafter refer to Mr Mitrovic) was arrested and charged on 18 October 1989. Ms Fiona Goodwin was also arrested and charged with a related offence (or offences). The appellant was granted bail. After a number of occasions on which the charges were mentioned in the Local Court, they were listed for hearing on 28 March 1990. The appellant did not appear. He was convicted in his absence. A bench warrant for his arrest was issued. Later in the day he (and Ms Goodwin) appeared. He was represented in relation to sentence and those proceedings adjourned to enable a pre-sentence report to be prepared. There were further adjournments of the sentencing proceedings. Eventually, on 4 May 2000, the appellant was sentenced on the supply charge to imprisonment for three months, to be served by way of periodic detention. In relation to each of the other charges, a fine in the sum of $500 was imposed. 5 The appellant appealed to the District Court against the conviction on the supply charge. After the appeal had been adjourned a number of times and had once been marked not reached, it was finally listed for hearing on 10 February 1992. The appellant did not appear. His counsel gave "car trouble" as an explanation for his non-appearance. The Court, therefore, adjourned the appeal to the following day, but the appellant again failed to appear. On this occasion no explanation was offered. The appeal was, accordingly, dismissed and a bench warrant issued for the appellant's arrest. 6 On 3 October 1996 the appellant was arrested pursuant to the bench warrant. The District Court confirmed the dismissal of the appeal and the sentence and ordered that the term of periodic detention commence on 18 October 1996. The appellant never attended. On 21 May 1997 the order that the sentence be served by way of periodic detention was revoked and the appellant was sentenced to a full-time custodial sentence of eighteen weeks. A bench warrant was issued. The appellant was arrested on 26 December 2000. He remained in custody for eleven weeks, until 14 March 2001, when he was released on bail following the grant of bail made in the Supreme Court two days earlier, pending the outcome of the present proceedings. 7 The prosecution case against the appellant depended significantly upon the evidence of the arresting officer, Detective Constable Ristau. Evidence against Ms Goodwin was given by Constable Lynette Clarke. Other police officers involved in the arrest made statements which are before this Court, but it is not clear whether or not they were before the Local Court or the District Court on appeal. Since the matters proceeded ex parte on each occasion, it is likely that they were not. 8 The fresh evidence upon which the appellant seeks to rely and which formed the basis for the orders I made under s 474E of the Crimes Act concerns the credibility of Detective Ristau and, to a lesser extent, his colleagues in the arrest. It is evidence that emerged in the Royal Commission into the New South Wales Police Service. In short, the evidence strongly suggested that Detective Ristau, who resigned from the Police Service in 1991, was corrupt and was the leader of a corrupt clique of police officers stationed at Fairfield who were known by the appellation "the Rat Pack". One of the corrupt practices attributed to Detective Ristau was the theft of money and drugs from sites of police investigations. 9 It is not clear whether all the police officers involved in the appellant's arrest were part of this allegedly corrupt clique. However, another of those involved in the arrest, Detective Bradley McNamara, died in 1991. 10 The Crown has not disputed that the evidence concerning Detective Ristau's credibility is fresh evidence as that term was explained in R v Gallagher (1986) 160 CLR 392 and R v Mickelberg (1988-89) 167 CLR 259. The Crown has conceded that, that being so, it would be appropriate that this Court quash the convictions. In the ordinary course the consequence would be an order that a new trial be conducted. However, the Crown has also conceded that in the circumstances it is unlikely that a jury properly instructed would convict the appellant and that an order for a new trial would, therefore, be pointless. 11 Further, the Crown acknowledges that the fact that the appellant has served eleven of the eighteen weeks of the sentence imposed is a consideration relevant to the question whether a new trial should be ordered. 12 Accordingly, particularly having regard to the Crown's concessions but independently having undertaken the examination required by s 6 of the Criminal Appeal Act, I propose that the convictions be quashed and verdicts of acquittal entered. 13 STEIN JA: I agree with Simpson J and the orders which she proposes. 14 O'KEEFE J: I agree. 15 STEIN JA: The order of the Court will be as announced by Simpson J. **********