DPP v Drinovan

[2004] VSC 249

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUMITRIE DRINOVAN

RULING NO. 2

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2004
DATE OF RULING:	29 June 2004
CASE MAY BE CITED AS:	DPP v Drinovan
MEDIUM NEUTRAL CITATION:	[2004] VSC 249

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CRIMINAL LAW AND PROCEDURE – Conspiracy to commit offence namely possess cocaine for the purposes of supply contrary to s.321 and s.321A Crimes Act 1958 – Proposed plea of guilty – Application pursuant to s.359(1) Crimes Act 1958 for removal of matter from Supreme Court to County Court – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr N. Robinson	Commonwealth Office of Public Prosecutions
For the Accused	Mr P. Faris QC	Stephen Andrianakis & Associates

HIS HONOUR:

1. I have an application before me to remit pursuant to s.359(1) Crimes Act 1958 to the County Court from this Court the trial of the accused, Mr Drinovan, currently before this Court.

1. Mr Drinovan was arraigned before this Court together with a Mr Ristic before Teague J on 4 March 2003, on a count of conspiring to import into Australia prohibited imports, namely not less than a commercial quantity of cocaine, contrary to s.233B(1)(cb) Customs Act 1901 (Commonwealth), and conspiracy to commit an offence, namely possess without authorisation a drug, being cocaine, for the purpose of supply contrary to s.321(1) Crimes Act 1958 as extended by s.321A Crimes Act 1958 Mr Drinovan pleaded not guilty, as did Mr Ristic. The presentment had in fact been filed in this Court on 5 December 2002. The matter came before me on 6 October 1993 for hearing on matters of law and I commenced hearing those matters of law. On that day a single count presentment (being the s.321 offence) by leave was filed over. I heard substantial legal submissions. I then made a Ruling on 14 October 1993 in relation to the second accused, Mr Ristic, which directly resulted in the abandonment by the Crown of the prosecution against him and I finally discharged him and he was released from this Court. That was on 14 October 1993. The matter against Mr Drinovan proceeded and was proceeding by way of further submissions of law prior to empanelment of a jury. Then Mr Drinovan absconded on bail overnight. Accordingly the orders were made for arrest. That was on 15 October 1993.

1. Mr Drinovan was arrested interstate on 7 February 2004 and brought back before this Court.  There was a hearing before this Court on 11 February and then on 26 February a trial date was fixed because of my inability to hear a six week trial until later in the year, the trial date being 18 October 2004.  The matter has thus remained before this Court on that basis to the present time.

1. Mr Drinovan is also charged with a count of trafficking in a drug of dependence, namely heroin, contrary to s.71(1) Drugs Poisons and Controlled Substances Act 1981.  That is a matter listed in the County Court for a trial to commence on 28 June 2004, namely yesterday.

1. According to an affidavit filed by Mr S.H. Young, the learned instructing solicitor for the prosecution, of 28 June 2004 (paragraph 5): "Following discussions between the Crown and legal representative for Drinovan the latter indicated that Drinovan proposes to plead guilty to both the count of conspiracy to possess cocaine and the count of traffic a drug of dependence, namely heroin." 

1. As I said to counsel, I consider it is entirely inappropriate for me to look behind what is there stated and I accordingly did not ask counsel anything about what were the terms and ambit of the agreement or discussions between the representatives of the parties.  The fact is that that is the sworn evidence before me.

1. Then on 23 June 2004 an application was made before the Chief Judge of the County Court and the matter before that Court was adjourned over for mention on 13 July 2004.  It was indicated to the Chief Judge that the parties would come before this Court, as indeed they now have, seeking the removal from this Court of the matter before it to the County Court, so that both this Court's matter and the County Court matter can be heard in that Court together and at the one time.  The application before me is by the prosecution and is consented to by the accused.

1. Plainly it is sensible that the matters are heard in the one Court and at the one time.  Further it is plain, as indeed Mr Robinson has indicated latterly in his final submissions to me, that it is in the interests of justice and the interests of the community that the intention of the accused, as conveyed by his legal representatives as quoted from the affidavit of Mr Young, to plead guilty ought be fulfilled.  I agree with all of that.  There is no reason that I can see that the matter before the County Court cannot be uplifted and heard before this Court but that is a matter for the County Court and I say nothing about it, other than it could be accommodated here for the sensible reasons I have just outlined.

1. In relation to the matter before this Court and the application that the matter before this Court be removed below to the County Court I am unpersuaded that I ought to accede to the application.  The matter has been before this Court for a considerable time, a presentment was filed before this Court on 5 December 2002, the accused was arraigned before this Court on 4 March 2003, a fresh presentment was filed over in this Court on 6 October 2003, the accused has been the subject of a substantial hearing, the co-accused has been the subject of a favourable ruling and a discharge, and the present accused was proceeding before this Court when he absconded on bail.  If it is intended as appears from the paragraph 5 of Mr Young's affidavit that the accused proposes to plead guilty to this count and the County Court count he certainly will be enabled to do so.  However, I am not persuaded to grant the application, given the length of time that this matter has been before the Court, the fact that it is presently before the Court, and the circumstance that the only reason the matter did not proceed in the normal way before the Court is that the accused absconded on bail which had been granted by this Court.  It would be wholly inappropriate now to remove this case to another Court simply so that the County Court matter can be heard with it in that Court.

1. The only reasons advanced in support of the application are that the parties apparently have agreed that it should be, which is no reason for this Court to vacate the matter before it, that the County Court trial is imminent and that a plea to both matters can be heard there.  It is before this Court not the County Court that the s.321 matter has had its substantial history and which I have outlined.  Mr Robinson also submitted that the legal complexity of the s.321 matter has now been resolved removing the primary reason for the matter being heard here in the first place.  That does not involve that a matter with the lengthy history in this Court of this matter should be removed elsewhere. The County Court matter can be heard in this Court, and this is the Court which the present s.321 matter is in, and in my view should remain.

1. In order to fulfil the very sensible submission of Mr Robinson that the desire of the accused, as set forth in paragraph 5 of the affidavit in support, ought to be facilitated, I am prepared to list the matter in this Court for further arraignment of the accused on the day before the present County Court listing in order to meet the convenience of the County Court and in order to enable to County Court to know what is the position in this Court and not to have the County Court afflicted by uncertainty. 

1. As the matter is currently adjourned for mention to the County Court on 13 July I propose to have this matter listed in this Court, that is to say the s.321 matter listed in this Court on 12 July, that is the Monday, and the accused can then be arraigned in this Court.  Then the next day the County Court will know what the position is in this Court.  However, I am entirely unpersuaded, given the history of the matter and the circumstances that I have outlined, that the matter before this Court ought to be removed to another Court.  Nothing I have said ought in the ordinary course interfere with the very sensible aim outlined by Mr Robinson in his final submissions. 

1. Accordingly I refuse the application sought, and I will list the matter before this Court on Monday, 19 July at 10.30 a.m.