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DPP v Marijancevic

DPP v Marijancevic

Case [2011] VSCA 355 11 November 2011

Appeal

Admissibility of Evidence

Reckless

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0264
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JOSEPH MARIJANCEVIC	First Respondent
S APCR 2011 0263
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
CAINE PREECE	Second Respondent
S APCR 2011 0265
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
NOLA PREECE	Third Respondent

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JUDGES:	WARREN CJ, BUCHANAN and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 November 2011
DATE OF JUDGMENT:	11 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 355	1^st Revision 15 November 2011
DECISIONS APPEALED FROM:	Director of Public Prosecutions v Marijancevic, Joseph; Preece, Caine; Preece, Nola (Unreported, County Court of Victoria, Melbourne, Judge Montgomery, 18 October 2011 and 25 October 2011)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence obtained by investigating police in contravention of s 81 Drugs Poisons and Controlled Substances Act 1981 – Evidence obtained pursuant to search warrants – Affidavits in support of warrants – Affidavits signed but not sworn or affirmed – Evidence excluded – Section 138 Evidence Act 2008 – Whether discretion to exclude was wrongly exercised – Gravity of impropriety considered – State of mind of police officers – Whether contravention was deliberate, reckless or careless – Definition of reckless – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr N Papas SC with Ms A Sampson	Mr C Hyland, Solicitor for Public Prosecutions
For the First Respondent	Mr P Tehan QC with Mr M Pena-Rees	Revill & Papa
For the Second Respondent	Mr M Croucher with Mr M Gambleton	Victoria Legal Aid
For the Third Respondent	Mr L Baker	Chester Metcalfe & Co

WARREN CJ
BUCHANAN JA
REDLICH JA:

The respondents are charged with various offences related to drug manufacture and trafficking. Much of the evidence comprising the prosecution case was obtained by the execution of warrants issued under the Drugs Poisons and Controlled Substances Act 1981 (‘the Act’).

During pre trial argument it emerged that the deponent to certain affidavits in support of the warrants had not sworn as to the truth and accuracy of their content but rather, had merely signed them in the presence of an inspector authorised to take affidavits. The trial judge, in a ruling that is not in issue, found that the affidavits relied on to obtain the warrants had not been sworn, in breach of s 81 of the Act, and that the magistrate who granted the warrant was not aware of the deficiencies. The trial judge accordingly found the search warrants were invalid and that the entries, purportedly pursuant to the warrants were unlawful and constituted a trespass.

The respondents objected to the admissibility of the evidence derived from the warrants. The prosecutor applied to have the evidence admitted pursuant to s 138 of the Evidence Act 2008 (the Evidence Act). The trial judge refused that application on 18 October 2011, ruling all of the evidence gathered pursuant to the warrants inadmissible. Further evidence gathered pursuant to other warrants was ruled inadmissible under a second ruling by…

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.

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Details

AGLC: DPP v Marijancevic [2011] VSCA 355
Case: [2011] VSCA 355
Decision Date: 11 November 2011

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Marijancevic is an interlocutory appeal before the court. The matter concerns the admissibility of evidence obtained by police officers in contravention of a statutory provision. The crux of the dispute revolves around the application of section 138 of the Evidence Act 2008, which allows for the exclusion of evidence if its admission would be unfair or would otherwise defeat the ends of justice.

The legal issues that the court had to address include whether the discretion to exclude evidence under section 138 was correctly exercised, particularly in light of the gravity of the impropriety. The court also had to consider the state of mind of the police officers involved in obtaining the evidence and whether the contravention of the statutory provision was deliberate, reckless, or careless. The definition of recklessness was a point of contention in the arguments presented.

The court considered the nature of the statutory contravention, the process by which the evidence was obtained, and the implications of the exclusion of the evidence. It was determined that the police officers' actions were not deliberate or reckless but rather careless. However, the court held that the gravity of the impropriety warranted the exercise of the discretion to exclude the evidence. The appeal was dismissed, affirming the lower court's decision to exclude the evidence obtained in contravention of the statutory provision.

Orders