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Arnautovic v The King

Arnautovic v The King

Case [2024] VSCA 286 26 November 2024

Appeal

Jurisdiction

Limitation Periods

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0077
S EAPCR 2024 0156

DRAGAN ARNAUTOVIC	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, McLEISH and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2024
DATE OF JUDGMENT:	26 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 286
JUDGMENT APPEALED FROM:	R v Arnautovic (County Court of Victoria, 27 September 1999 (Conviction), Judge Crossley); Arnautovic v The King (No 3)[2024] VSC 355 (Kaye JA)

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CRIMINAL LAW – Application pursuant to s 326 of the Criminal Procedure Act 2009 (‘CPA’) for leave to bring second appeal – Allegation of misconduct by counsel in appearing when a registered police informer and in appearing when counsel had previously advised a co-accused in terms adverse to the applicant – Evidence not compelling within the meaning of s 326C(3)(b)(iii) – Evidence not highly probative in the context of the issues in dispute at the trial of the offence including the question whether the applicant obtained a fair trial – Fact counsel a registered police informer not sufficient of itself to raise a sufficient suspicion justice miscarried – In all the circumstances of the case no connection between informing and applicant’s trial – No conflict of interest in acting for applicant after advising co-accused – Application for leave to appeal refused.

PRACTICE AND PROCEDURE – Application for leave to appeal abandoned – Application dismissed in consequence – Inherent jurisdiction to reinstate application when no determination on merits – Reinstatement unnecessary to provide vehicle for new grounds of appeal based on fresh evidence – Intention of the Legislature that cases of this kind be dealt with under the provisions of the CPA providing for second or subsequent appeals – Application dismissed.

CRIMINAL LAW – Application for leave to appeal against finding on reference determination made upon referral pursuant to s 319A of the CPA – No error in trial judge’s finding – Leave refused.

Criminal Procedure Act 2009, ss 319A, 326A, 326C, 326D, pt 6.4.

Arnautovic v The King (No 3) [2024] VSC 355, approved.

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Baini v The Queen (2012) 246 CLR 469; Roberts v The Queen (2020) 60 VR 431; Karam v The King [2023] VSCA 318, followed.

Tognolini v The Queen (No 2) [2012] VSCA 311; Grey v The King [2024] VSCA 75; R v Szabo (2000) 2 Qd R 214; Beach Petroleum NL v Kennedy & Ors (1999) 48 NSWLR 1; Mills v The Queen [1995] 1 WLR 511; Clarke & Ors v The Queen (1996) 91 A Crim R 46; Van Beelen v The Queen (2017) 262 CLR 565; AB v CD [2018] HCA 58; AB v CD [2017] VSCA 338; Moti v The Queen (2011) 245 CLR 456; Boardman v Phipps [1967] 2 AC 46, considered.

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Counsel
Applicant:		Mr D Gurvich KC with Mr J Connolly
Respondent:		Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arnautovic v The King

Details

AGLC: Arnautovic v The King [2024] VSCA 286
Case: [2024] VSCA 286
Decision Date: 26 November 2024

CaseChat Overview and Summary

In the matter of Arnautovic v The King, the applicant, Arnautovic, sought leave to bring a second appeal against his conviction and sentence. The case was heard in the Supreme Court of Victoria. The applicant contested his conviction and sentence on various grounds, including misconduct by his trial counsel. The central issues before the court were whether the applicant had demonstrated misconduct by his counsel, whether this amounted to compelling evidence that justice had miscarried, and whether the trial judge's decision to deny leave to appeal was correct.

The court examined the allegations of misconduct by the applicant's counsel, which included claims that the counsel was a registered police informer and had previously advised a co-accused in a manner adverse to the applicant. The court determined that the fact the counsel was a registered police informer was not sufficient on its own to raise a suspicion that justice had miscarried. Moreover, the evidence presented was not highly probative in the context of the issues at trial, nor was it compelling. The court found no conflict of interest in the counsel acting for the applicant after previously advising a co-accused. Consequently, the application for leave to appeal was refused.

Additionally, the court addressed the applicant's abandoned application for leave to appeal against the trial judge's findings on a reference determination. The court concluded that there was no error in the trial judge's findings and, therefore, denied leave to appeal on these grounds. The court dismissed the application, noting that the Legislature intended for cases of this kind to be handled under the provisions of the Criminal Procedure Act providing for second or subsequent appeals.

The court ultimately dismissed the application for leave to appeal, finding no grounds to reinstate the application or to provide a vehicle for new grounds of appeal based on fresh evidence.

Orders