DPP v Drinovan & Ristic

[2003] VSC 408

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUMITRIE DRINOVAN &
ALEXANDER RISTIC

RULING No.1

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14 October 2003
DATE OF RULING:	14 October 2003
CASE MAY BE CITED AS:	DPP v Drinovan & Ristic
MEDIUM NEUTRAL CITATION:	[2003] VSC 408

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CRIMINAL LAW AND PROCEDURE – Conspiracy – Evidence - Statement by co-accused in absence of accused not admissible against accused – Ahern v R (1988) 165 CLR 87.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr R. Maidment S.C. and Mr D. Lane	Office of Public Prosecutions
For the accused Drinovan	Mr R. Richter Q.C. and Mr J. Dickinson	Stephen Andrianakis & Associates
For the accused Ristic	Mr S. Shirrefs S.C.	Slades & Parsons

HIS HONOUR:

1. I am obliged to counsel for their very considerable assistance in relation to this matter. 

1. I am not satisfied that the impugned passage falls within the principles of Ahern v. R[1] and I rule it inadmissible in relation to Mr Ristic.

   [1](1988) 165 C.L.R. 87.

1. The impugned passage is Mr Drinovan saying to Mr Om, in call number 29 at 11.49 a.m., on 21 October 2000, as appears at p.66 to 67 of the depositional material:  "I'll send you the noodles with him - he just went to exchange - to see, you know?"

1. It is plain in that passage that Mr Drinovan is saying to Mr Om that Mr Kowadlo will be sent with the noodles - money for an illicit transaction.  And indeed, that is what the prosecution says Mr Kowadlo did, in that the next day he left Australia, 22 October.  Then in Costa Rica on 27 October, Australian time, Mr Kowadlo was arrested about to board a flight for Amsterdam with nine pure kilograms in the form of 15 liquid kilograms of cocaine, and was arrested with some $500 US and some $10,440 Australian.

1. That all relates to Mr Drinovan's alleged part in this matter.  Of course I make no findings as to that.  I simply set out what the prosecution says is the narrative.

1. The issue on this preliminary submission is whether that statement of Mr Drinovan, in the call number 29, out of the hearing of the accused Mr Ristic, can be called in aid under the principle in Ahern's case as to evidence in relation to the charge against Mr Ristic.  In my view it cannot.  It is too uncertain and too speculative to satisfy the principle in Ahern's case.

1. It is true that three minutes before the impugned conversation, in call number 165, Mr Ristic was speaking with Mr Maksimovic at 11.46 a.m. as appears p.65 of the depositional material.  In that conversation Mr Ristic said:  "I need you to do me a favour.  I've got a small job for you."  Maksimovic:  "All right."  Ristic:  "I've got 10 grand here and you'd need to go to Thomas Cook, there's one in Chadstone, one in Toorak, one in the city, so as to exchange the money.  They need to give you American dollars."  Maksimovic:  "All right."  Ristic:  "OK?  Since the one is busy and couldn't do it and later on he is busy again and can't do it, but he has to exchange it.  OK?"

1. That conversation is of course Mr Ristic speaking, and if otherwise relevant is admissible against him, because he is the speaker. 

1. Further, in a later conversation the next day, 22 October 2000, call number 166 between Mr Ristic and Mr Maksimovic, Mr Ristic said:  "You've forgotten to tell me, to give me, how much dough the moustache has given you."  And a little later Mr Ristic said  "He said he wasn't - he didn’t want to carry it all."  Mr Maksimovic replied:  "I saw him putting the dough into the pocket."

1. The prosecution relies upon those interconnections.

1. However, first, there is no witness to be called by the prosecution from Thomas Cook to give evidence as to the fact of an exchange of $10,000 Australian into American dollars occurring on 21 October 2000 in Melbourne.  Second, when Mr Kowadlo was arrested at San Jose Airport at Costa Rica on 26 October he was found to be in the possession $10,440 Australian.  Either the $10,000 was exchanged into American dollars as the Ristic call No.165 foreshadowed and was not the A$10,400 on the person of Mr Kowadlo in Costa Rica at the time of his arrest; or if the $10,000 was not exchanged and was taken by Mr Kowadlo to Costa Rica, it had not been spent by Mr Kowadlo in the purchase in Costa Rica of the cocaine the substratum of this conspiracy charge.

1. All in all it is demonstrable that there are numerous permutations and possibilities as to what in fact occurred, none of which can be pinned down with precision as required by Ahern's case.  There is too much uncertainty as to what was the course of which money and for what purpose.  It is necessary, in my view, for the prosecution to link "the noodles" that Mr Drinovan is talking about, with the "10 grand" that Mr Ristic was talking about three minutes earlier, with the purchase of the cocaine in

Costa Rica.  In my view on the present material that can only be done by selectivity and speculation. 

1. Accordingly I rule that the impugned passage, that is to say, the words by Mr Drinovan, "I'll send you the noodles with him - he just went to exchange - to see, you know?", at pages 66 to 67, are inadmissible, pursuant to Ahern's case, in proof of Mr Ristic's part in the conspiracy charged.

1. Counsel, I think, as a consequence, the antecedent passage, that is to say, in Call No. 27 on 19 October 2000 at page 58, "I don't speak to any Romanians.  This guy who's with me is not Romanian, and I don't speak to any of these - understand", being a statement by Mr Drinovan to Mr Om in the absence of Mr Ristic also would go out.