R v Predragovic

Case [2023] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

R v Predragovic [2023] QCA 123

PARTIES:

R
v
PREDRAGOVIC, Nemanja
(appellant)

FILE NO/S:

CA No 190 of 2022
DC No 1612 of 1990
DC No 1993 of 1991

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 672A Criminal Code

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 23 April 1992 (Morley QC DCJ)

DELIVERED ON:

13 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2023

JUDGES:

Mullins P and Morrison and Boddice JJA

ORDERS:

1.   The appeal be allowed.

2.   The convictions in respect of each of counts 1, 2, 3, 4 and 5 be set aside.

3.   The appellant’s pleas of guilty in respect of each of counts 2 and 3 be set aside.

4.   Verdicts of acquittal be entered in respect of each of counts 1, 2, 3, 4 and 5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the appellant was convicted by jury in 1992 of one count of unlawful possession of a motor vehicle with a circumstance of aggravation (count 1) and two counts of unlawful possession of a motor vehicle (counts 4 and 5) – where, during the course of the trial, the appellant pleaded guilty to two counts of official corruption (counts 2 and 3) – where, subsequent to the appellant’s convictions, a Commission of Inquiry into a police operation known as Operation Trident found that police officers had engaged in improper processes in the investigation of criminal activities, including the deliberate modification, falsification and manipulation of material recorded for evidentiary purposes – where two individuals who engaged in that activity were central witnesses in the appellant’s convictions – where the appellant petitioned the Governor of Queensland for a pardon in respect of his convictions – where the Attorney-General referred the whole of the case to this Court – where, on appeal, the Report of the Commission of Inquiry constitutes new or fresh evidence – where the appellant’s case at trial was that the two relevant witnesses had fabricated incriminating statements against him, and deceived the appellant into believing he was dealing with legitimate cars – where the appellant’s counsel made an application at the commencement of the trial to exclude the evidence of the two witnesses on the grounds such evidence had been illegally or improperly obtained – where, after that application was dismissed, the appellant changed his pleas on counts 2 and 3 to guilty – where that application was unsuccessfully renewed at the conclusion of the Crown case – where the Attorney-General concedes the new or fresh evidence establishes a miscarriage of justice in respect of counts 1, 4 and 5 – whether counts 2 and 3 fell into a different category, as they were the subject of pleas of guilty during the course of the trial – whether there was a miscarriage of justice – whether, in the circumstances, the…

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AGLC
R v Predragovic [2023] QCA 123
Case
[2023] QCA 123
Decision Date

CaseChat Overview and Summary

In the case of R v Predragovic, the appellant appealed against his convictions for unlawful possession of motor vehicles and official corruption, arguing that there had been a miscarriage of justice due to new evidence. The appellant had been convicted by a jury in 1992 of three counts, one of which involved the unlawful possession of a motor vehicle with an aggravating circumstance, and two of which involved the unlawful possession of motor vehicles. During the trial, the appellant pleaded guilty to two counts of official corruption. The evidence against the appellant included statements from two witnesses who were later found to have engaged in improper conduct during a police operation known as Operation Trident.

The legal issues before the court were whether the new evidence established a miscarriage of justice in respect of all counts, and whether the guilty pleas entered during the trial should be set aside. The court considered the Report of the Commission of Inquiry into Operation Trident, which found that police officers and undercover agents had engaged in deceitful, dishonest and corrupt practices, including the deliberate modification, falsification and manipulation of material recorded for evidentiary purposes. The court held that the evidence relevant to the counts of unlawful possession of motor vehicles should have been excluded from consideration at the appellant's trial on the grounds of public policy. Once that evidence was excluded, the appellant could not, in law, have been found guilty of those offences on the remaining admissible evidence.

The court concluded that there had been a miscarriage of justice in respect of the appellant's convictions for each of the counts. The reprehensible conduct engaged in by law enforcement officers and those under their control supported verdicts of acquittal being entered in respect of each of the counts. The court allowed the appeal, set aside the convictions in respect of each of the counts, set aside the appellant's pleas of guilty in respect of the counts of official corruption, and entered verdicts of acquittal in respect of each of the counts. The court's decision highlights the importance of maintaining the integrity of the criminal justice system and the consequences of unlawful conduct by law enforcement officers.

Orders

Orders of the court

1. The appeal be allowed.

2. The convictions in respect of each of counts 1, 2, 3, 4 and 5 be set aside.

3. The appellant’s pleas of guilty in respect of each of counts 2 and 3 be set aside.

4. Verdicts of acquittal be entered in respect of each of counts 1, 2, 3, 4 and 5.

Background

Background to the litigation

The issue for determination under the reference is whether there has been a miscarriage of justice.Background On 23 April 1992, a jury convicted the appellant of counts 1, 4 and 5. The appellant had been convicted of counts 2 and 3, following pleas of guilty to those counts being entered during the course of the trial. On 11 November 1992, an appeal against conviction was dismissed and an application for leave to appeal against sentence was refused by the Court of Appeal.[1][1]R v Predragovic [1992] QCA 422. Subsequent to the dismissal of that appeal, a Commission of Inquiry into a police operation known as Operation Trident found that police officers and undercover agents had engaged in improper processes in the investigation of criminal activities, including the deliberate modification, falsification and manipulation of material recorded for evidentiary purposes. Two of the individuals who had engaged in that activity, a police officer and a civilian police agent, were central witnesses in the appellant’s convictions. By letter dated 18 December 2020, the appellant petitioned the Governor of Queensland for a pardon in respect of his convictions.[2][2]The appellant had unsuccessfully petitioned for a pardon in 2013 and 2015. On 5 September 2022, the Attorney-General of Queensland referred the whole of the case to the Court of Appeal, pursuant to section 672A of the Code.Operation Trident In late 1989, members of the Queensland Police Service established an operation known as Operation Trident. The Operation was conducted in circumstances where the then Attorney-General of Queensland authorised a civilian police agent, Anthony Riesenweber, to commit criminal offences under the guise of a purported indemnity from future prosecution of those offences. The aim of the Operation was to have Riesenweber and an undercover police officer, Kevin Carmont, commit offences with alleged car thieves and the receivers of stolen vehicles and in the process, gain evidence against those offenders. Both Riesenweber and Carmont did commit offences in the prosecution of that Operation. Those offences included assisting the thieves of motor vehicles to commit offences. The purported indemnity was subsequently found to have no basis in law.[3][3]R v D’Arrigo, unreported, Macrossan CJ and de Jersey and Dowsett JJ, Court of Criminal Appeal, Qld, CA No 220 of 1991, 17 December 1991.Commission of Inquiry The Commission of Inquiry into Operation Trident found that:(a)The Operation was poorly conceived, incompetently executed and tainted from beginning to end by a variety of deceitful, dishonest and corrupt practices;[4](b)A description of Riesenweber as “the mastermind behind Operation Trident” might be justified by Riesenweber’s manipulative ingenuity and his inventive capacity for deliberate deception. Riesenweber had cleverly manipulated the use of valuable police resources and the processes of investigation for his own purposes, and did so with the encouragement, assistance and support of other members within the police service;(c)Operation Trident was conceived fundamentally on the basis of misinformation advanced by Riesenweber, and woven by him to support a claim that he was able to infiltrate and destroy a large car stealing racket and identify official corruption in high-ranking police officers, who were said to be protectors of the “Mr Big” of that racket, but that “[t]his impressive concoction had no substance”;[5] and(d)The Operation, which was built largely upon that duplicity, had regrettably caused many innocent and unwitting, law-abiding citizens to suffer, with a rash of mindless car theft occurring during the Operation, with the consequence that Riesenweber benefitted enormously financially.[6] Several of those who were ultimately arrested and convicted as a result of the Operation were introduced to the racket by Riesenweber.[4]Affidavit of Fiona Lane: exhibit A, page 439.[5]Affidavit of Fiona Lane: exhibit A, page 443.[6]Affidavit of Fiona Lane: exhibit A, page 444.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The evidence relevant to those counts ought to have been excluded from consideration at the appellant’s trial, on the grounds of public policy. Once that evidence is excluded, the appellant could not, in law, have been found guilty of the offences on the remaining admissible evidence.Conclusion A consideration of the whole of the case establishes there has been a miscarriage of justice in respect of the appellant’s convictions for each of counts 1, 2, 3, 4 and 5. Ordinarily, such a conclusion would result in the convictions being set aside, with a retrial on those counts. However, the reprehensible conduct engaged in by law enforcement officers and those under their control, supports verdicts of acquittal being entered in respect of each of counts 1, 2, 3, 4 and 5.Orders I would order: The appeal be allowed. The convictions in respect of each of counts 1, 2, 3, 4 and 5 be set aside. The appellant’s pleas of guilty in respect of each of counts 2 and 3 be set aside. Verdicts of acquittal be entered in respect of each of counts 1, 2, 3, 4 and 5.

Ratio Decidendi

Legal Principle Established

On 5 September 2022, the Attorney-General of Queensland referred the whole of the case to the Court of Appeal, pursuant to section 672A of the Code.Operation Trident In late 1989, members of the Queensland Police Service established an operation known as Operation Trident. The Operation was conducted in circumstances where the then Attorney-General of Queensland authorised a civilian police agent, Anthony Riesenweber, to commit criminal offences under the guise of a purported indemnity from future prosecution of those offences. The aim of the Operation was to have Riesenweber and an undercover police officer, Kevin Carmont, commit offences with alleged car thieves and the receivers of stolen vehicles and in the process, gain evidence against those offenders. Both Riesenweber and Carmont did commit offences in the prosecution of that Operation. Those offences included assisting the thieves of motor vehicles to commit offences. The purported indemnity was subsequently found to have no basis in law.[3][3]R v D’Arrigo, unreported, Macrossan CJ and de Jersey and Dowsett JJ, Court of Criminal Appeal, Qld, CA No 220 of 1991, 17 December 1991.Commission of Inquiry The Commission of Inquiry into Operation Trident found that:(a)The Operation was poorly conceived, incompetently executed and tainted from beginning to end by a variety of deceitful, dishonest and corrupt practices;[4](b)A description of Riesenweber as “the mastermind behind Operation Trident” might be justified by Riesenweber’s manipulative ingenuity and his inventive capacity for deliberate deception. Riesenweber had cleverly manipulated the use of valuable police resources and the processes of investigation for his own purposes, and did so with the encouragement, assistance and support of other members within the police service;(c)Operation Trident was conceived fundamentally on the basis of misinformation advanced by Riesenweber, and woven by him to support a claim that he was able to infiltrate and destroy a large car stealing racket and identify official corruption in high-ranking police officers, who were said to be protectors of the “Mr Big” of that racket, but that “[t]his impressive concoction had no substance”;[5] and(d)The Operation, which was built largely upon that duplicity, had regrettably caused many innocent and unwitting, law-abiding citizens to suffer, with a rash of mindless car theft occurring during the Operation, with the consequence that Riesenweber benefitted enormously financially.[6] Several of those who were ultimately arrested and convicted as a result of the Operation were introduced to the racket by Riesenweber.[4]Affidavit of Fiona Lane: exhibit A, page 439.[5]Affidavit of Fiona Lane: exhibit A, page 443.[6]Affidavit of Fiona Lane: exhibit A, page 444. The Commission concluded:“Perhaps the most scandalous of the many processes at work in and about Operation Trident was the deliberate modification, falsification and manipulation of the material which was recorded for evidentiary purposes. To use a police operation for ones own purposes and for ones own selfish benefit is bad enough; it is far worse to embellish existing, so called, contemporaneous material, to strengthen or even to create a case for the successful prosecution of another person. That involves the perversion of the processes of the criminal justice system.” (errors in original).