Arnautovic v The King - [2023] VSCA 284

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0077

DRAGAN ARNAUTOVIC	Applicant
v
THE KING	Respondent

---

JUDGES:	McCann JR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2023 and 10 November 2023
DATE OF JUDGMENT:	24 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 284

---

CRIMINAL LAW – Application for production of documents pursuant to s 317 of the Criminal Procedure Act2009 – Applicant seeks documents from Chief Commissioner of Victoria Police – Whether there is legitimate forensic purpose – Objections to production on the basis of public interest immunity – Inspection of documents – Claim of public interest immunity upheld – No utility in ordering production of the category of documents sought.

Criminal Procedure Act 2009 s 317, Evidence Act 2008 s 130.

Arnautovic v The King [2022] VSCA 280; Zirilli v The Queen [2021] VSCA 174; Zirilli v The Queen (2021) 287 A Crim R 407; Polimeni v The Queen [2022] VSCA 20; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Ryan v State of Victoria [2015] VSCA 353; Sankey v Whitlam (1978) 142 CLR 1; Alister v The Queen (1984) 154 CLR 404; Commonwealth v Northern Land Council (1993) 176 CLR 604.

---

Counsel
Applicant:	Mr J Connolly (10 October 2023) No Appearance (10 November 2023)
Respondent:	No Appearance
Chief Commissioner of Police	Ms S Flynn KC (10 October 2023, 10 November 2023) Ms M Isobel (10 October 2023, 10 November 2023)
Solicitors
Applicant:	Slades & Parsons Criminal Law (10 October 2023) -- (10 November 2023)
Respondent:	No Appearance
Chief Commissioner of Police	Victorian Government Solicitors’ Office

MCCANN JR:

Introduction

On 27 September 1999 the applicant, Dragan Arnautovic (‘the applicant’), was found guilty in the County Court of trafficking in a commercial quantity of heroin between 11 September and 18 November 1997. On 13 October 1999, he was sentenced to 12 years’ imprisonment with a non-parole period of nine years.[1]
[1]The applicant was erroneously sentenced as a serious drug offender. This error was corrected by the Court in the sentence appeal – R v Arnautovic (2001) 121 A Crim R 412. There was no other change to the sentence imposed at first instance. A conviction appeal that accompanied the sentence appeal was abandoned by the applicant prior to the hearing.
On 18 June 2021, the applicant filed his current application for leave to appeal this conviction. His application is brought as a second appeal pursuant to Part 6.4 of the Criminal Procedure Act 2009 (‘CPA’). In his written case and accompanying affidavit material he sets out evidence he asserts is fresh and compelling.
His proposed grounds of appeal relate to the conduct to his former legal representative, Nicola Gobbo. They are as follows:
Ground 1:Nicola Gobbo’s conduct amounted to a miscarriage of justice by, inter alia,
(a)depriving the applicant of competent and independent counsel; and
(b)breaching her professional duties to the applicant.
Ground 2:Victoria Police’s use of Nicola Gobbo as an informer amounted…

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 [2023] VSCA 284
Case: [2023] VSCA 284
Decision Date: 24 November 2023

CaseChat Overview and Summary

The applicant in Arnautovic v The King applied for the production of documents held by the Chief Commissioner of Victoria Police, pursuant to section 317 of the Criminal Procedure Act 2009. The dispute arose out of an ongoing criminal matter, with the applicant seeking the documents for the purpose of preparing a defence. The Victorian Supreme Court was tasked with determining whether the documents should be produced and, if so, whether there were any grounds for withholding them under public interest immunity. The applicant argued that the documents were necessary for the preparation of their defence and that any public interest concerns could be managed by appropriate safeguards.

The court had to decide whether the documents had a legitimate forensic purpose, as required by section 317 of the Criminal Procedure Act. Additionally, it had to weigh the public interest immunity claims made by the Chief Commissioner against the applicant's right to access documents relevant to the defence. The court considered the scope and application of public interest immunity and the principles established in prior cases such as Zirilli v The Queen and Ragg v Magistrates’ Court of Victoria. The court also examined the specific content of the documents and the nature of the criminal proceedings to determine whether there was any utility in ordering their production.

The court found that the documents sought by the applicant did not have a legitimate forensic purpose as they were not directly relevant to the matters in issue in the proceedings. The court further determined that the public interest immunity claim was valid, as the documents in question related to ongoing investigations and the preservation of the integrity of law enforcement processes. The court noted that the documents' potential disclosure could undermine public confidence in the police and the criminal justice system. Consequently, the court upheld the claim of public interest immunity and rejected the application for production.

No orders were made for the production of the documents, and the application was dismissed. The court emphasised the importance of balancing the rights of the accused to a fair trial with the broader public interest in maintaining the confidentiality and effectiveness of law enforcement investigations.

Orders