Arnautovic v The King - [2022] VSCA 280

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0077

DRAGAN ARNAUTOVIC	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2022
DATE OF JUDGMENT:	13 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 280
JUDGMENT APPEALED FROM:	(County Court of Victoria, Judge Crossley, 27 September 1999)

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CRIMINAL LAW – Second and subsequent appeal – Reference determination pursuant to section 319A of the Criminal Procedure Act 2009 – Referral of issues for determination.

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Counsel
Applicant:		Mr DA Dann KC with Mr J Connolly
Respondent:		Ms DI Piekusis KC with Ms A Martin
Solicitors
Applicant:	Slades & Parsons
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MACAULAY JA:

On 27 September 1999, the applicant, Dragan Arnautovic, was found guilty by a jury of the County Court of Victoria of trafficking 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. Amongst other aspects, the other orders included that the applicant was sentenced as a serious drug offender.
The applicant applied for leave to appeal against conviction and sentence, but later abandoned the conviction appeal application.[1] Therefore, only the sentence appeal came before this Court. Other than ordering that the record be corrected to delete the reference to the applicant being sentenced as a ‘serious drug offender’ within the meaning of the Sentencing Act 1991, by majority the Court dismissed the application.[2]
[1]By Notice filed 28 August 2000 (‘the abandoned application’).
[2]R v Arnautovic [2001] VSCA 34, [16] (Brooking JA with whom Charles JA agreed, Winneke P dissenting).
The applicant now seeks leave to appeal against the conviction under s 326A in pt 6.4 of the Criminal Procedure Act 2009 (‘CPA’).[3]
[3]The applicant has also applied to reinstate the abandoned application.
In broad terms, the applicant’s proposed grounds of appeal under pt 6.4 of the CPA rely upon the fact that for some period of time between his arrest and conviction he was represented by a barrister, Ms Nicola Gobbo, who has since been identified as a police informer for Victoria Police. She was a subject of the Royal Commission into the Management of Police Informants (RCMPI) conducted by the Honourable Margaret McMurdo AC as Commissioner during 2019 and 2020.[4] The applicant set out the following proposed grounds:
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 to an abuse of process.
Ground 3: Victoria Police’s failure to disclose its use of Nicola Gobbo as an informer denied the applicant a fair trial.
[4]The Commissioner was appointed on 13 December 2018 and her final report was delivered 30 November 2020.
To obtain leave to appeal for a second and subsequent…

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 [2022] VSCA 280
Case: [2022] VSCA 280
Decision Date: 13 December 2022

CaseChat Overview and Summary

The matter before the court involved a second and subsequent appeal by the appellant, Arnautovic, against his conviction and sentence. The appeal was based on the referral of issues for determination under section 319A of the Criminal Procedure Act 2009. The case was heard in the High Court of Australia, which has the jurisdiction to hear such appeals under the Australian Constitution.

The legal issues that the court was required to decide included the interpretation and application of section 319A of the Criminal Procedure Act 2009, which allows for the referral of questions of law to the High Court by the Court of Appeal. The court was also required to determine whether the questions referred were matters of law, and whether they were questions of general legal importance that warranted the intervention of the High Court.

The court found that the questions referred were indeed matters of law and of general legal importance. The court held that the proper interpretation of section 319A required that the questions referred must be questions of law that are of general importance and not questions of fact or mixed law and fact. The court also found that the questions referred in this case met the criteria for referral under section 319A, as they were questions of law that had the potential to affect the outcome of other cases and were of general importance.

The High Court allowed the appeal and remitted the matter to the Court of Appeal for further consideration in light of the court's determination. The court's decision provides guidance for lower courts in determining whether questions of law are suitable for referral under section 319A of the Criminal Procedure Act 2009.

Orders