Marijancevic v Mifsud

[2020] VSC 69

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:

1. 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.

1. 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…