Marijancevic v Mifsud
[2020] VSC 69
•28 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02069
| JOSEPH MARIJANCEVIC | Plaintiff |
| v | |
| CHARMAINE ROSE MIFSUD, VICTORIA POLICE | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January, 3 February 2020 |
DATE OF JUDGMENT: | 28 February 2020 |
CASE MAY BE CITED AS: | Marijancevic v Mifsud |
MEDIUM NEUTRAL CITATION: | [2020] VSC 69 |
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ADMINISTRATIVE LAW – Judicial review – Plaintiff convicted in Magistrates’ Court of theft and unlawful assault – Whether lawfulness of arrest relevant – Whether conviction reasonably open – Whether relevant matters considered – No error – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DJ Carolan | Simon Legal |
| For the First Defendant | Mr BL Sonnet | Abbey Hogan, Solicitor for Public Prosecutions |
HER HONOUR:
On 12 August 2014, Joseph Marijancevic was arrested by police and interviewed in relation to an allegation that, on 17 July 2014, he stole some items from David Jones at the Highpoint shopping centre in Maribyrnong. Police also alleged that he had assaulted two security officers who approached him outside the store. Mr Marijancevic denied the allegations and declined to answer questions about his whereabouts that evening.
On 2 January 2015, Constable Charmaine Mifsud charged Mr Marijancevic on summons with one count of theft, two counts of unlawful assault, and one count of committing an indictable offence while on bail. The following statement of alleged facts was filed with the charges:
On the 17th of July 2014 at approximately 6:10 pm the accused, Joseph MARIJANCEVIC entered the David Jones store, located at Highpoint Shopping Centre, 200 Rosamond Road, Maribyrnong.
The accused selected 2 Waterford Scotch Tumbler Glasses, two Waterford Wine Glasses, two Boxes of Walker Toffees and one Tin of Farrahs Toffee, total value of $484.00. MARIJANCEVIC exited the store, making no attempt to pay for these items.
Loss Prevention Officer Nick NICOLAOU and Liam FOGARTY followed MARIJANCEVIC outside the store and were assisted by Highpoint Security Officer, Ardy MEKAIEL.
NICOLAOU, FOGARTY and MEKAIEL approached the male on level two of Highpoint Shopping Centre, outside the Ice Cream Kiosk. NICOLAOU identified himself to MARIJANCEVIC and asked that he return the items. MARIJANCEVIC refused and became violent and abusive. NICOLAOU attempted to detain MARIJANCEVIC but MARIJANCEVIC became violent and attempted to hit NICOLAOU, he attempted to punch NICOLAOU twice using a closed fist but did not make contact.
MARIJANCEVIC was asked by NICOLAOU a second time to return the items he had stolen and he complied with the request.
MARIJANCEVIC began removing items from his pockets. He removed a wine glass from his right pocket and handed it to MAKAEIL. The accused struck MAKEIL in the chest with his right hand, this caused pain to MAKAIELS chest.
MARIJANCEVIC returned all items that belonged to David Jones but due to his aggressive behaviour he was not apprehended at this stage but the incident was reported to Police. The theft and the assault was captured on CCTV.
…
On the 2nd of July 2014 MARIJANCEVIC was bailed from the Sunshine Magistrates Court and appeared on the 27th of August 2014. MARIJANCEVIC was on bail at the time the offence of Theft-From-Shop was committed.
The charges were heard by Magistrate Bourke over six days, on 27 November 2017, 15 and 16 February 2018, 6 and 7 June 2018, and 20 August 2018. Mr Marijancevic contested the charges, on the basis that he was not at Highpoint at the relevant time, and was not the man in question. The prosecution relied on CCTV footage, the evidence of Mr Nicolaou, Mr Fogarty, and Mr Mekaiel, and photo board identifications by Mr Nicolaou and Mr Fogarty.
Mr Marijancevic gave evidence, in which he denied being the man in the video footage. He said that at around 6pm on 17 July 2014 he was in a car with his friend and business partner Claudio Pellegrini. They were on their way to a Chinese restaurant in the city, where they ate a meal and drank a bottle of champagne together. Mr Marijancevic said that he was with Mr Pellegrini until about 8:30pm that night. He called Mr Pellegrini as an alibi witness.
On 20 August 2018, the magistrate found Mr Marijancevic guilty of the theft and assault charges, giving detailed oral reasons for his findings. The magistrate recorded convictions and fined Mr Marijancevic $1,200 as part of an aggregate order, with $124.30 statutory costs. The fourth charge, of committing an indictable offence while on bail, was dismissed.
In this proceeding, Mr Marijancevic seeks judicial review of the magistrate’s orders.[1] He seeks declarations that several rulings and findings of the magistrate were invalid. He also seeks orders quashing the magistrate’s order of 20 August 2018, and directing the Magistrates’ Court to rehear and determine the charges according to law. The grounds of review set out in his originating motion were that:
[1]No explanation was given as to why Mr Marijancevic did not appeal against the conviction and sentence to the County Court, under s 254 of the Criminal Procedure Act 2009 (Vic), or appeal to this Court on a question of law, under s 272 of that Act. While the prosecution took no issue with the form of the proceeding, I note that Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 is not an alternative to a statutory right of appeal: Kuek v Victoria Legal Aid (2001) 3 VR 289, [16].
(a) His arrest by police on 12 August 2014 was not lawful, and the magistrate used the wrong test to determine the lawfulness of the arrest;
(b) The unlawful arrest on 12 August 2014 should have been taken into account by the magistrate in determining the proceeding;
(c) He was prejudiced in the proceeding because Constable Mifsud failed to cause the exhibits in the proceeding — the items allegedly stolen — to be forensically tested for fingerprints, in circumstances where identification was the critical issue and he had made a firm request that Constable Mifsud secure the exhibits;
(d) It was not proper for the magistrate not to take into account:
(i) the alibi evidence of Claudio Pellegrini, in circumstances where the police prosecutor conceded that Mr Pellegrini was a witness of truth;
(ii) the period that elapsed between the date of the alleged crime in the proceeding and the date Mr Pellegrini became aware that he was required to give alibi evidence was a credible explanation for the slight time difference between Mr Marijancevic’s account and Mr Pellegrini’s account of events of 17 July 2014;
(iii) Mr Pellegrini’s firm evidence that the images captured in the CCTV footage tendered by the prosecution were not images of Mr Marijancevic;
(iv) the magistrate’s own doubts that the images captured on the CCTV footage were of Mr Marijancevic; and
(v) the unlawfulness of Mr Marijancevic’s arrest on 12 August 2014, which requires proper police investigation.
At trial, counsel for Mr Marijancevic put grounds (c) and (d) on the basis that it was not reasonably open for the magistrate to find Mr Marijancevic guilty of the charges of theft and unlawful assault, given the evidence that he was not at Highpoint at the relevant time. It was common ground that a finding of guilt that is legally unreasonable would involve jurisdictional error. Legal unreasonableness may occur where there is no evidence to support a decision, or if the decision is illogical or irrational, or lacks an evident and intelligible basis.[2]
[2]Rees v County Court [2011] VSC 67, [20]–[26]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [26]–[29] (French CJ), [63]–[72] (Hayne, Kiefel and Bell JJ), [88]–[90] (Gageler J).
Arrest on 12 August 2014
At the hearing before the magistrate, Mr Marijancevic took issue with the lawfulness of his arrest on 12 August 2014. He submitted that, while police do not have power to arrest a person for the purpose of questioning, they had arrested him on 12 August 2014 only in order to interview him, and not to take him before a court.
The magistrate considered this submission and rejected it. His Honour’s reasons were given orally, during the hearing on 7 June 2018:
The evidence of Sergeant Lorraine … is the accused was arrested at 6 Appleby Court, Sunshine, on 12 August 14. When asked under what power he was arrested, Sergeant Lorraine referred to s.459 of the Crimes Act. 459 of the Crimes Act provides that:
“In addition to exercising any of the powers conferred by s.458 of the Crimes Act, a power officer … may at any time without warrant apprehend any person–
(a) he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily);
…”
… The point is raised by the accused in respect of the motive or proper purpose for which the police arrested him on that day. Having heard the evidence of the investigation and the fact that the police evidence is clear that they had reasonable grounds, namely all the evidence related to that date, to believe that he had committed an indictable offence, namely, the theft, being the theft on Charge 1, I have formed the view that it is a lawful arrest.
The decision of R v Clune relied upon by Mr Marijancevic is a decision of the Full Court of the Victorian Supreme Court decided in 1982. In my view, it is not on point in light of the introduction of s.458 and 459 of the Crimes Act. The evidence, in my view, was quite clear that there is two prongs, really, Mr Marijancevic, you make in respect of that particular arrest. One is the unlawful motive in respect of the real desire to execute a warrant of apprehension on you, which was subsequently found to be invalid by the Supreme Court.
On the evidence as it currently stands, I am not satisfied that I can find that at this stage but, as I say, it is ultimately a matter to be taken into account in respect of beyond reasonable doubt and whether it comes in as weight as far as the reliability or veracity of the conduct of the police as to the motives of that particular arrest. The second point in respect that circumstance of the arrest, and having reviewed the relevant legislation under s.458 and 459 of the Crimes Act, I am satisfied that with the caution also being delivered that that arrest was lawful in all the circumstances.
At the hearing before me, counsel for Mr Marijancevic accepted that there was evidence at the time of the arrest that gave the arresting officers reasonable grounds to believe that Mr Marijancevic had committed the indictable offence of theft. In my view, this concession was properly made. On the evidence before the magistrate, it was crystal clear that, by 12 August 2014, police had reasonable grounds to believe that it was Mr Marijancevic who took the items from the store. By that time, they had CCTV footage of a man who looked very like Mr Marijancevic, at the store at the relevant time. They also had statements from Mr Nicolaou and Mr Mekaiel, giving a description of the man concerned.
The magistrate was correct to conclude that the arrest on 12 August 2014 was lawful, under s 459 of the Crimes Act 1958 (Vic).
In any event, the lawfulness of the arrest on 12 August 2014 had no bearing on whether Mr Marijancevic was guilty of the offences charged. There was no issue about the admissibility of the record of interview, during which Mr Marijancevic made no admissions, and denied being at Highpoint at the time the offences were committed. A conclusion that the arrest was unlawful would not have affected the evidence on which the Magistrate found, beyond a reasonable doubt, that Mr Marijancevic was guilty of theft and unlawful assault.
Identification and alibi evidence
The magistrate’s reasons for those findings were delivered orally on 20 August 2018. The reasons were well-structured and thorough, and addressed each of the arguments put by Mr Marijancevic in his defence. His Honour commenced by outlining the evidence presented by the prosecution:
The prosecution case saw the calling of three civilian witnesses and four police witnesses, and they were each cross-examined by Mr Marijancevic who was self-represented and also called evidence, being himself and an alibi witness. Prosecution exhibits were tendered and marked as Exhibits A to G on the court record. Defence exhibits were also tendered and marked 1 to 4 on the court record.
I was carefully and extensively taken through the CCTV footage of the alleged offending tendered by the prosecution which, in essence, follows the offender both during the alleged theft stages and the interception stage before the offender fled the scene. Evidence was produced which is relied upon by the prosecution in making out each charge. The onus, ultimately, is for the prosecution to prove the four charges against Mr Marijancevic individually beyond reasonable doubt.
As I say, CCTV footage was tendered by the prosecution in the form of a CD marked as Exhibits C and D, Exhibit C being a CD of four video footages obtained from inside David Jones on the day in question, Exhibit D is a wide view of about 100 metres from the entrance of the store at Highpoint Shopping Centre; basically, I am referring to as the common area of the centre. The CCTV footage has capabilities of zooming and following individuals, and is also capable of zooming in for better identification of individuals and their actions in court. This was played in open court, I was taken through it carefully, and I have also had the benefit of reviewing same in arriving at my decision.
The CD tendered as footage of the taking of items inside David Jones, whilst one cannot see the specific items taken, the CCTV footage clearly follows the same person observed by the security officer of David Jones up to and including intervention in the common area of the shopping centre. Whilst on this point, I find that, in light of the observations of the security officer, Mr Mekaiel, and the recovery of the items and the person in the common area along with the aggressive behaviour and their flight, that the items were stolen from David Jones and recovered from that person. The items more particularly being referred to as Exhibit A, being two wine glasses, two Waterford tumblers, which were ruby in colour, and two toffee boxes.
A recorded interview was undertaken with Mr Marijancevic on 12 August 14. The recording of same was tendered as Exhibit F. In that, Mr Marijancevic denies the allegations, stated he was not there and protests his innocence. In the course of the interview, he also asks the police — hopefully I have written this down right — “Are there any other facts that I should be aware of? Please put it on the table; let me consider it, just in case I want to answer some of your questions.” He also asks the police if they are preserved exhibits, and that was in Answer 200.
Particularly noting superior quality of fingerprints when transferred onto glass, noting a glass was stolen and seized from the thief, and Mr Marijancevic also provided his fingerprints subsequent to the interview on that day in question, being 12 August 14. Police did not undertake any forensic examination of the glasses at all. The glasses were returned to David Jones and not seized by evidence, and the evidence shows the reason for this is the thief had fled and the investigation was a shop stealing charge in the view, what it appears to be, from the police, not warranting the resources to pursue proper forensics.
By the time Mr Marijancevic was interviewed, the value of the forensics was lost. It is an important point as Mr Marijancevic points to this as a prejudice against him, as it may have been evidence he could have used to exculpate him in respect to these charges. The evidence of the prosecution witnesses, in my view, has not been impugned to such a level that I find [them] unreliable or discredited. They did the best they could in recollecting events on the day in question and also gave evidence consistent with the CCTV footage produced to the court.
Upon the evidence of the witnesses and the revision of the CCTV footage, I am satisfied beyond a reasonable doubt that the person referred to in the CCTV footage, particularly Exhibit D, being the common area where the offender was approached and challenged about the theft, that person has assaulted the witnesses and, accordingly, I am satisfied that an assault has taken place beyond a reasonable doubt.
The magistrate then turned to the defence case. He identified the real issue for determination as being whether the prosecution had proved beyond reasonable doubt that Mr Marijancevic was the person who stole the items from David Jones and engaged in the assaults.
His Honour found that Mr Marijancevic had given adequate notice of alibi evidence, and then considered that evidence:
When evidence of an alibi is raised, the prosecution must negative the alibi for the accused to be convicted. In Killick v the Queen (1981) 147 CLR 565, the majority judgment of the High Court said that:
“Although an alibi is not uncommonly referred to as a defence, no onus of proving an alibi rests on the accused; the prosecution must negative an alibi if one is put forward as it must negative a claim that the accused acted in self-defence or as a result of provocation.”
In R v Small (1994) 33 NSWLR 575, the court stated:
“By raising alibi, the accused was not undertaking to prove anything, that the onus remained on the Crown to remove any reasonable doubt which may have been created by the alibi claim.”
In other words, the Crown had to eliminate any reasonable possibility that the alibi was true.
Mr Pellegrini was called to give evidence as to alibi for Mr Marijancevic. A document was tendered by Mr Marijancevic showing that a memorandum of understanding was signed between himself and Mr Pellegrini on 17 July 2014. Mr Marijancevic stated that he had signed that on that day with Mr Pellegrini. Mr Pellegrini also confirmed as much, and I find accordingly that the MOU, the memorandum of understanding, negotiated up until that date was, in fact, signed on that date. They have been known to each other for some 20 to 25 years, maybe even 30 years.
The evidence was that they had met at Mr Marijancevic’s home at 3 pm, his home being at 6 Appleby Court, Sunshine. The evidence of Mr Marijancevic also was that, after signing the MOU, they drove in his car to the Shark Fin restaurant at Little Bourke Street, and the alleged offending has occurred around 6 pm, and he says that, at around 6 pm, they were in the car driving towards Shark Fin restaurant and they arrived there about 6.30, maybe 6.45. Had their meal, had a bottle of champagne during the meal and then he was dropped back home.
He denies any allegations he was anywhere near Highpoint Shopping Centre around 6 pm. Mr Pellegrini stated that they had negotiated the MOU or the memorandum of understanding up until that particular day. They had signed it that day. But his recollection of events, that they went to the Shark Fin restaurant about 4 o’clock and the evidence of the accused and Mr Pellegrini, in my view, in light of that evidence, and other evidence that Mr Pellegrini gave in respect to the timing of events, as far as the time of the year and the lighting, the dusk and matters of that nature, that, in my view, there [are] inconsistencies in respect to Mr Pellegrini’s evidence and Mr Marijancevic’s evidence.
Whilst I find that Mr Pellegrini did the best he could to remember events from four years earlier, his evidence and reliability as an alibi as to 14 July was unsatisfactory due to the inconsistencies of his evidence with that of Mr Marijancevic, the effluxion of time, his lack of concession in similarities of Mr Marijancevic. In addition, but more importantly, in addition to the contradictory evidence produced to this court, being the clear quality of the CCTV footage and the positive identification of Mr Marijancevic and the photoboard identifications, and my review of same, along with the recorded interview showing similarities of Mr Marijancevic’s facial features and hair, I find that the evidence on a whole produced by the prosecution negates the alibi witness.
The magistrate then turned to the identification evidence:
Section 116 of the Evidence Act requires me to direct myself as to the identification evidence produced by the prosecution. Issues as to memory, quality of identification, inconsistencies, lack of previous familiarity with the accused (indistinct) are just some of the matters to be considered. I have turned my mind to each of those matters. Whilst there was some inconsistency as between witnesses and their observations, it is the quality of the CCTV footage and the selection of Mr Marijancevic in the photo board evidence in respect of the two witnesses which gives me comfort as to being satisfied that Mr Marijancevic is positively identified by the prosecution as the person undertaking the theft and the assault on 14 July 2014 at Highpoint Shopping Centre.
The prosecution relies on the following forms of identification of the accused: that is, the evidence of the civilian witnesses who gave (1) descriptions of the offender; (2) who positively identify the offender in photoboards, which are photographs of Mr Marijancevic; and (3) the CCTV footage of both inside David Jones and in the common area of the shopping complex. Their interactions with the offender on the day in question, followed with the photoboard identifications, in my view, along with the CCTV footage, satisfy the requisite threshold of beyond a reasonable doubt.
In addition, though, the prosecution also cross-examined Mr Marijancevic and his alibi witness as to identification via the CCTV footage. Mr Marijancevic denied being the person in the CCTV footage and denied the offending. Mr Marijancevic, when taken to the footage on CCTV, did not even concede similarities with the person in the footage, which I find there are striking similarities by virtue of the facial features and the hair. Mr Pellegrini also, when taken to the footage on the CCTV, also did not concede it was Mr Marijancevic in the footage or there were some similarities as far as each of the men are concerned.
I watched both men give evidence carefully. Assistance was given to each of them in viewing the footage in the best possible way, along with the angles they watched it from, and whether their eyesight was sufficient or not. Despite the best efforts, neither man conceded any similarity of the CCTV footage to Mr Marijancevic. The lack of concession on this point, particularly in light of the facial features, the hairstyle of the person on the CCTV footage when compared to Mr Marijancevic, I find are strikingly similar, and, in my view, it was detrimental to the credibility of each of their evidence.
In light of the CCTV footage in comparison to that with the record of interview, as requested by Mr Marijancevic only a matter of a couple of weeks later, particularly of the offender exiting David Jones, the evidence of the witnesses positively identifying Mr Marijancevic on the photo board and the inconsistencies of the evidence of Mr Marijancevic and Mr Pellegrini, with that of themselves on the prosecution case, I am satisfied beyond a reasonable doubt the person undertaking the theft and the assault[s] on 14 July 2014 was Mr Marijancevic.
Consideration
It is apparent from these reasons that the magistrate had regard to:
(a) the fact that police had not caused the stolen items to be tested for fingerprints, and whether Mr Marijancevic was prejudiced by the loss of potentially exculpatory evidence;
(b) the alibi evidence of Mr Pellegrini;
(c) the time that had elapsed between 17 July 2014 and 8 June 2018, when Mr Pellegrini gave evidence;
(d) Mr Pellegrini’s evidence that the person on the CCTV footage was not Mr Marijancevic; and
(e) whether it was in fact Mr Marijancevic on the CCTV footage.
Further, I have no difficulty in finding that it was reasonably open to the magistrate to find, beyond reasonable doubt, that it was Mr Marijancevic who stole the items from David Jones and assaulted the security officers. There was ample evidence to support that finding. It was a matter for the magistrate what weight he gave to the various considerations put to him in argument, and how he resolved the contradictions in the evidence before him.[3]
[3]Rees v County Court [2011] VSC 67, [26].
His Honour’s reasons explained how and why he had concluded that Mr Marijancevic was guilty of the theft and the assaults. As is clear from those reasons, that conclusion was open on the evidence, and had an evident and intelligible basis. I do not consider that the magistrate’s decision was legally unreasonable. To the contrary, his Honour’s reasons were considered and logical, and his decision was based on the evidence.
Disposition
The proceeding will be dismissed. I will hear the parties on the question of costs.
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