R v Stefan Mihajlovic [2019] NSWDC 74

District Court New South Wales

Medium Neutral Citation: R v Stefan Mihajlovic [2019] NSWDC 74 Hearing dates: 11 March to 18 March 2019 Decision date: 22 March 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Verdict of not guilty Catchwords: Deal with proceeds of crime; judge alone trial Legislation Cited: Criminal Procedure Act 1986 Evidence Act (NSW) 1995 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Stefan Mihajlovic (Accused) Representation: Counsel: T Pickering (Crown) J Korn (Offender)

Solicitors: E Navea (Crown Assisting Solicitor) A Tlais (Korn & McDougall) File Number(s): 16/343505 Publication restriction: Nil

Judgment ON VERDICT 1. On 11 March 2019, the accused was arraigned on an Indictment containing one count as follows: "On 16 day of November 2016, at Boggabilla, in the State of New South Wales, did deal with certain property, namely the sum of $400,320.00 in Australian currency, in circumstances where there are reasonable grounds to suspect that the sum of $400,320.00 in Australian currency is proceeds of crime." The offence is pursuant to s 193C(1) of the Crimes Act 1900. 1. The trial proceeded by judge alone by election of the accused and consent of the Crown and a certificate to that effect signed by the parties was filed with leave. 2. The elements of the offence are as follows: 1. The accused dealt 2. with property; and 3. there are reasonable grounds to suspect that the property is proceeds of crime. 1. The Crown bears the onus of proving the charge beyond reasonable doubt. That involves proving each of the elements listed above beyond reasonable doubt. The accused put forward a case in defence but bears no onus in that or any respect. His defence was that he had borrowed a van to travel to Melbourne to obtain work, and he had no knowledge whatsoever of the money secreted in the van. 2. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference. Further, the accused has the presumption of innocence in his favour. 3. The Crown case was that on 16 November 2016 at Boggabilla, a police operation known as Operation Northmore XIV was being carried out on Merriwa Street, Boggabilla. That operation involved stopping a majority of vehicles travelling both north and south on what was the Newell Highway, a major thoroughfare between Queensland and New South Wales, for the purpose of requiring drivers to undergo a random breath test ("RBT"). 4. The accused was driving a Toyota Hi-Ace van with Queensland registration plates, south along Merriwa Street at 5.20pm on 16 November 2016. He was stopped and administered an RBT, which proved negative. He was then directed to move his vehicle a distance of approximately 10 metres for him to undergo a random drug test ("RDT"). The administration of that test took a period of some three minutes, during which, a conversation took place between the accused and Senior Constable Crandon. The accused was also asked to produce his licence, which he did, and Senior Constable Crandon gave his licence to another police officer, who took it to a police vehicle to undergo a criminal history check. 5. It was the Crown case that on the basis of the conversation between Senior Constable Crandon and the accused, Senior Constable Crandon formed a reasonable suspicion to warrant a search of the vehicle. That search was undertaken by police and a drug detection dog, and ultimately, police entered the vehicle and found secreted in the back cargo compartment a black bag containing $400,320.00 in forty bundles, wrapped in rubber bands. 6. I have previously ruled that the search was unlawful, but exercised my discretion pursuant to s 138(1) of the Evidence Act (NSW) 1995 to admit the evidence of the search and the concealment of the cash in the back of the vehicle. Reaching a verdict in this matter requires a consideration of the whole of the evidence in the trial, which includes the evidence in the Crown case which I have previously summarised in my earlier judgment as follows. This summary has been compiled without the benefit of a transcript.