R v Mihajlovic (No 2) [2019] NSWDC 141

District Court New South Wales

Medium Neutral Citation: R v Mihajlovic (No 2) [2019] NSWDC 141 Hearing dates: 13 March 2019 Decision date: 14 March 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Evidence obtained during unlawful search admitted Catchwords: Unlawful search by police of motor vehicle; whether evidence should be excluded pursuant to s 138 Evidence Act 1995 Legislation Cited: Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Evidence Act (NSW) 1995 Road Transport Act 2013 Cases Cited: Fletcher v New South Wales [2019] NSWCA 31 R v Azar (2014) 239 A Crim R 75; [2014] NSWSC 132 R v Buddee [2016] NSWDC 422 R v Em [2003] NSWCCA 374 R v Huy Huu Lee [2009] ACTSC 98 R v Orm [2011] NSWDC 26 R v Rondo [2001] NSWCCA 540 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown) Stefan Mihajlovic (Accused) Representation: Counsel: T Pickering (Crown) J Korn (Accused)

Solicitors: File Number(s): 16/343505 Publication restriction: Nil

Judgment on preliminary issue 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 Crown opened its case by describing a police operation on 16 November 2016 at Boggabilla known as "Operation Northmore XIV". Pursuant to that operation, at about 5.20pm the accused, who was driving a Toyota Hi-Ace van with Queensland registration plates, south along Merriwa Street Boggabilla, was stopped with a number of other vehicles and required to undergo a random breath test ("RBT"). The result of that test was negative and then he was then directed to move his vehicle a distance of approximately 10 metres for him to undergo a random drug test ("RDT"). Whilst that test was being administered, the Crown outlined that a conversation took place between the accused and a Senior Constable Crandon. The accused was also asked to produce his licence, and the licence was given to another police officer, for him to undertake a criminal history check. 3. It was the Crown case that on the basis of the conversation Senior Constable Crandon had with the accused, Senior Constable Crandon formed a reasonable suspicion to warrant a search of the vehicle. That was based on a lack of luggage and personal items in the vehicle and the vagueness of answers given by the accused as to who owned the vehicle. 4. A search was undertaken of the vehicle by police and a drug detection dog, whereupon no drugs were found, but in the back of the vehicle, underneath a "false floor" a black bag was found containing $400,000 in forty bundles wrapped with rubber bands. A further $800 was found in the driver's door map compartment. Also found under the false floor in the rear of the vehicle were a large number of fishing rods and tackle, and found in the back of the vehicle was a mattress, pillow and sleeping bag. 5. The accused was arrested and underwent an ERISP interview and when the allegations were put to him, he said "No comment". 6. The Crown opened on the basis that there was no dispute that the vehicle was owned by Scott Martins, and the issues in the trial were first, whether the search was legal, i.e. did the police comply with LEPRA, and whether the evidence was admissible, and secondly, whether the accused had knowledge of the $400,000 recovered from the vehicle. 7. Counsel for the accused raised the question of the illegality of the search of the vehicle conducted by the police officers. He submitted the trial could proceed either by leading the evidence in its entirety, or alternatively, by leading the evidence relevant only to the preliminary legal issue. Once that question was determined, the court has a discretion pursuant to s 138 of the Evidence Act to admit the evidence, and the onus was on the Crown to establish that the evidence should be admitted. 8. When asked whether there was any evidence additional to that relating to the question of illegality of the search, both Counsel for the accused and the Crown informed the court that there would be no additional evidence, and for that reason the trial proceeded on the basis that the evidence in the trial would be led in its entirety. It was only after the Crown had closed its case that the accused informed the court for the first time that the accused and a witness would be called in the accused's case and that there would be some unfairness to the accused in calling that evidence prior to the preliminary issue being determined. For that reason, I set aside my previous decision and proceeded to hear submissions on the preliminary issue. This is my judgment on that issue. 9. In determining this issue, I have had regard to the following evidence called in the Crown case.