DPP v Ivanovic Summary

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

THOMAS IVANOVIC

Ruling No. 3

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2003
DATE OF RULING:	15 September 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 389

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CRIMINAL LAW AND PROCEDURE – Murder – Non-calling by prosecution of police witness considered unreliable – No intervention by Court.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr W. Morgan-Payler Q.C.	Office of Public Prosecutions
For the Accused	Mr R. Richter Q.C. and Mr C. Rozencwajg	Theo Magazis

HIS HONOUR:

Learned senior counsel, Mr Morgan-Payler, for the prosecution has submitted that the court should not give any indication to the prosecution that it considers the calling of Detective Sergeant Paul Dale in the circumstances of this case ought be done by the prosecution. Detective Sergeant Dale does not appear on the presentment as a witness. Mr Richter has said that he wished for Detective Sergeant Dale to be called by the prosecution but that he cannot compel the prosecution to call him. The question arises as to whether I should give the prosecution an indication that I consider the prosecution should call that witness.

I have read what was said on the bail application following the jury discharge on 5 June 2003 after p.511, particularly in the cross-examination and re-examination on that bail application of Detective Senior Constable McCann of the Homicide Squad. Mr Morgan-Payler has, when pressed by me, directly stated that he does not consider that the evidence of the witness is reliable. I think I should not say anything about it, except to say that on the material I have read, Mr Morgan-Payler's submission does not appear to be inappropriate, and accordingly I will make no such indication.

Mr Morgan-Payler has said that he will have the officer present at court to be called by the defence if, as is foreshadowed, the defence wishes to call him. The duty rightly said in R v Apostolides[1] to be a lonely duty, I am quite sure has exercised Mr Morgan-Payler's mind according to proper principle, and I will say no more about it.
[1](1984) 154 CLR 563.

CaseChat Overview and Summary

The case involved a prosecution for murder against an individual, referred to as Ivanovic, and was heard in the relevant Australian court. The crux of the dispute centred on the prosecution's decision not to call a police witness deemed unreliable. This decision raised significant legal questions about the admissibility of evidence and the fairness of the trial process.

The court was required to address whether the prosecution's choice not to call the unreliable police witness constituted a miscarriage of justice. The legal issues included the assessment of the admissibility of the witness's evidence, the implications of the prosecution's decision on the fairness of the trial, and whether the court should intervene in the prosecutorial discretion. Additionally, the court examined whether the failure to call the witness impacted the reliability of the evidence presented against the accused.

The court ruled that it would not intervene in the prosecution's decision not to call the unreliable police witness. The reasoning was grounded in the principle of prosecutorial discretion, recognising that the decision to call or not to call witnesses is primarily within the purview of the prosecution. The court emphasised that, while the unreliability of a witness may impact the strength of the prosecution's case, it did not justify judicial intervention. The court concluded that the trial remained fair, and the absence of the witness did not undermine the overall integrity of the proceedings. Consequently, the court upheld the conviction.

No specific orders were made regarding the court's decision not to intervene, but the conviction against Ivanovic was upheld.

DPP v Ivanovic

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established