R v Mihajlovic (No 2)

[2019] NSWDC 141

District Court

New South Wales

Medium Neutral Citation:	R v Mihajlovic (No 2) [2019] NSWDC 141
Hearing dates:	13 March 2019
Decision date:	14 March 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Evidence obtained during unlawful search admitted
Catchwords:	Unlawful search by police of motor vehicle; whether evidence should be excluded pursuant to s 138 Evidence Act 1995
Legislation Cited:	Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Evidence Act (NSW) 1995 Road Transport Act 2013
Cases Cited:	Fletcher v New South Wales [2019] NSWCA 31 R v Azar (2014) 239 A Crim R 75; [2014] NSWSC 132 R v Buddee [2016] NSWDC 422 R v Em [2003] NSWCCA 374 R v Huy Huu Lee [2009] ACTSC 98 R v Orm [2011] NSWDC 26 R v Rondo [2001] NSWCCA 540
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) Stefan Mihajlovic (Accused)
Representation:	Counsel: T Pickering (Crown) J Korn (Accused)   Solicitors:
File Number(s):	16/343505
Publication restriction:	Nil

Judgment on preliminary issue

1. On 11 March 2019, the accused was arraigned on an Indictment containing one count as follows:

“On 16 day of November 2016, at Boggabilla, in the State of New South Wales, did deal with certain property, namely the sum of $400,320.00 in Australian currency, in circumstances where there are reasonable grounds to suspect that the sum of $400,320.00 in Australian currency is proceeds of crime.”

The offence is pursuant to s 193C(1) of the Crimes Act 1900.

2. The trial proceeded by judge alone by election of the accused and consent of the Crown and a certificate to that effect signed by the parties was filed with leave.

3. The Crown opened its case by describing a police operation on 16 November 2016 at Boggabilla known as “Operation Northmore XIV”. Pursuant to that operation, at about 5.20pm the accused, who was driving a Toyota Hi-Ace van with Queensland registration plates, south along Merriwa Street Boggabilla, was stopped with a number of other vehicles and required to undergo a random breath test (“RBT”). The result of that test was negative and then he was then directed to move his vehicle a distance of approximately 10 metres for him to undergo a random drug test (“RDT”). Whilst that test was being administered, the Crown outlined that a conversation took place between the accused and a Senior Constable Crandon. The accused was also asked to produce his licence, and the licence was given to another police officer, for him to undertake a criminal history check.

4. It was the Crown case that on the basis of the conversation Senior Constable Crandon had with the accused, Senior Constable Crandon formed a reasonable suspicion to warrant a search of the vehicle. That was based on a lack of luggage and personal items in the vehicle and the vagueness of answers given by the accused as to who owned the vehicle.

5. A search was undertaken of the vehicle by police and a drug detection dog, whereupon no drugs were found, but in…