R v Stefan Mihajlovic

[2019] NSWDC 74

District Court

New South Wales

Medium Neutral Citation:	R v Stefan Mihajlovic [2019] NSWDC 74
Hearing dates:	11 March to 18 March 2019
Decision date:	22 March 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Verdict of not guilty
Catchwords:	Deal with proceeds of crime; judge alone trial
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act (NSW) 1995
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Stefan Mihajlovic (Accused)
Representation:	Counsel: T Pickering (Crown) J Korn (Offender)   Solicitors: E Navea (Crown Assisting Solicitor) A Tlais (Korn & McDougall)
File Number(s):	16/343505
Publication restriction:	Nil

Judgment ON VERDICT

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 elements of the offence are as follows:

1. The accused dealt

2. with property; and

3. there are reasonable grounds to suspect that the property is proceeds of crime.

4. The Crown bears the onus of proving the charge beyond reasonable doubt. That involves proving each of the elements listed above beyond reasonable doubt. The accused put forward a case in defence but bears no onus in that or any respect. His defence was that he had borrowed a van to travel to Melbourne to obtain work, and he had no knowledge whatsoever of the money secreted in the van.

5. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference. Further, the accused has the presumption of innocence in his favour.

6. The Crown case was that on 16 November 2016 at Boggabilla, a police operation known as Operation Northmore XIV was being carried out on Merriwa Street, Boggabilla. That operation involved stopping a majority of vehicles travelling both north and south on what was the Newell Highway, a major thoroughfare between Queensland and New South Wales, for the purpose of requiring drivers to undergo a random breath test (“RBT”).

7. The accused was driving a Toyota Hi-Ace van with Queensland registration plates, south along Merriwa Street at 5.20pm on 16 November 2016. He was stopped and administered an RBT, which proved negative. He was then directed to move his vehicle a distance of approximately 10 metres for him to undergo a random drug test (“RDT”). The administration of that test took a period of some three minutes, during which, a conversation took place between the accused and Senior Constable Crandon. The accused was also asked to produce his licence, which he did, and Senior Constable Crandon gave his licence to another police officer, who took it to a police vehicle to undergo a criminal history check.

8. It was the Crown case that on the basis of the conversation between Senior Constable Crandon and the accused, Senior Constable Crandon formed a reasonable suspicion to warrant a search of the vehicle. That search was undertaken by police and a drug detection dog, and ultimately, police entered the vehicle and found secreted in the back cargo compartment a black bag containing $400,320.00 in forty bundles, wrapped in rubber bands.

9. I have previously ruled that the search was unlawful, but exercised my discretion pursuant to s 138(1) of the Evidence Act (NSW) 1995 to admit the evidence of the search and the concealment of the cash in the back of the vehicle. Reaching a verdict in this matter requires a consideration of the whole of the evidence in the trial, which includes the evidence in the Crown case which I have previously summarised in my earlier judgment as follows. This summary has been compiled without the benefit of a transcript.

Evidence in the Crown case

10. The first witness called on behalf of the Crown was Mr Nigel Noffke, who in 2016 was a Senior Constable of police and a highway patrol officer. On 16 November 2016 he was engaged in a traffic operation known as Northmore XIV on Merriwa Street, Boggabilla. That operation involved the stopping of vehicles travelling both north and south on the major highway through Boggabilla during the hours of 6am to 6pm on two consecutive days.

11. Mr Noffke gave evidence that his duties as a Senior Constable involved pulling vehicles over for the purpose of an RBT and RDT. He gave further evidence that if he suspected “reasonable cause”, he would search any vehicle pulled over. Up to 40 officers were involved in the operation and he was working on the eastern side of Merriwa Street for traffic heading in a southerly direction.

12. Mr Noffke gave evidence that at 5.20pm a white Toyota Hi-Ace van, Queensland registration number 477 WCF was pulled over and the driver administered a breath test via Constable Lewis. That test was negative and the driver was then asked to move approximately 10 metres to undergo an RDT. Whilst the vehicle was in that position, Mr Noffke observed that the accused was the sole occupant of the vehicle and he had a conversation with Constable Lewis. Mr Noffke was subsequently informed that in that conversation the accused said he was driving to Melbourne to work, that he was a tradesman, and that there were no tools or luggage in the vehicle.

13. Mr Noffke gave evidence that he then asked a drug dog handler, Senior Constable Kotek, to come to the vehicle with a drug detection dog. Mr Noffke then spoke to the accused, and informed him that he intended to search his vehicle using the dog. He gave evidence that he did so based on “reasonable cause” and the warrant, by which he meant the warrant to carry out Operation Northmore. When asked how he determined there was reasonable cause for a search, he gave evidence that he based that determination on the conversation he had been told about, that the accused was going to Melbourne to work, he had no tools and he had observed a large amount of rubbish inside the vehicle which indicated that the driver was doing an “express run” and not stopping. He also observed a mattress and small overnight bag in the vehicle and those matters provided his reasonable suspicion.

14. Mr Noffke gave evidence of the search of the vehicle, during which, the accused was outside the vehicle. He gave further evidence that the dog entered the back section of the vehicle, following which, he entered it and searched the cargo area. He gave evidence that based on his experience, he believed that if anything was to be found in that vehicle it would be found in the cargo area.

15. Whilst conducting that search, Mr Noffke found a bag containing a large amount of cash under a false floor in the rear of the vehicle. He then instructed Constable Lewis to restrain the accused. A recording was made of the search. He recalled finding a large amount of fishing reels, between 30 and 40 in number, under the floor, but did not notice any other items.

16. In addition to the cash found in the cargo area, $800 was found in the driver’s door of the vehicle in the map compartment. Exhibit A was a disk of the search of the vehicle which was played in court. It went for nine minutes. Having viewed that video, Mr Noffke gave evidence that there were a number of items observed by him on top of what he described as the false floor to the rear of the vehicle. There was a tool box fastened to the frame of the vehicle. Mr Noffke had no recollection of the contents of the backpack that was located inside the front of the vehicle.

17. In cross-examination, Mr Noffke identified his statement made on 18 November 2016. He knew that the Northmore Operation was to take place approximately one week beforehand. It was identified by the numeral XIV and therefore there were 13 previous operations. He had been involved in similar operations since 2013. He disagreed that the intention of the operation was to stop virtually every car passing the RBT and RDT point. That was physically impossible because of the volume of traffic. He denied it was the intent of the operation to stop every car, however, he accepted that the Operational Order itself set out that a “concerted effort” was to be made to intercept the majority of vehicles. That meant as many as the police officers could within safety guidelines. He disagreed that that did not leave much scope for random stops. The mission of the operation was also read to Mr Noffke who agreed that it included not only traffic offences, but general criminal conduct. He agreed that amounted to a full ambit of policing and it was correct that police officers following those orders were to have in mind all of those offences.

18. On the question of reasonable suspicion as a basis for a search to be conducted, Mr Noffke gave evidence that he did not base his decision on s 36 of LEPRA. He believed at the time he had “reasonable cause” to search the vehicle.

19. He agreed that the warrant gave authority for the RBT and RDT to take place. It was put to him that once those tests were completed the driver should be required to be allowed to leave. Mr Noffke gave evidence that he made observations that led to his further investigation by way of searching the vehicle. It was put to him that he made deliberate observations to see if further investigations were warranted. He gave evidence that there were various indicators that he had been trained to look for over a period of 16 years in the police force. He disagreed that the accused should have been allowed to leave after the RBT. When asked what power he had to detain the vehicle following a negative result to that testing, he said:

“My observations and warrant led to further investigations.”

20. Mr Noffke gave evidence that a large majority of the vehicles were allowed to leave after testing. It was his observations which led this vehicle to being detained. He disagreed that the operational order required the vehicles, being vans, to be given priority for criminal investigation.

21. In respect of the vehicle, it was put to Mr Noffke that the rear of the vehicle was not constructed as a “false floor” so as to conceal anything, but that it was a common structure found in work-type vehicles. He said he could not comment, but when put to him that it was a raised floor, he said that it was a “false floor” because the floor of the van was underneath it.

22. Mr Noffke was challenged as to the observations he made of the vehicle and the hearsay evidence he relied on that the driver had told another police officer that he was going to Melbourne for work. That work involved him as a carpenter, plumber or tradie. When asked what type of work he believed the accused was to undertake, he said “tradie type work”. When asked about the tools that were required, he said he assumed that he would require either carpentry tools or plumbing equipment. He did not search the toolbox inside the vehicle before deciding to search the vehicle, only after he had made up his mind to search the vehicle.

23. Mr Noffke gave evidence that the RDT would take approximately five minutes and it was during that time that the conversation took place between the accused and Constable Crandon. He had called over the drug detection dog and its handler before he had the results of the RDT. The reason for that he described as “professional interest”. He had not known the exact terms of the conversation. It was put to him that he was always going to search the vehicle, with which he disagreed. He was asked when he made the decision to search, and he gave evidence that it was following his observations of the vehicle and the conversation with Constable Lewis.

24. It was put to Mr Noffke that there was nothing unusual about an “express run”. He said it was unusual with respect to truck drivers, as it gave rise to issues of fatigue management.

25. It was put to Mr Noffke that his observation that the vehicle may have been doing an express run had nothing to do with giving rise to a reasonable suspicion that there were drugs in the vehicle. He agreed that alone that would be the case, however, combined with his other observations, it gave rise to a reasonable suspicion.

26. When asked by what authority he put the drug detection dog into the van, he said:

“There was a warrant in existence and together with reasonable cause to search, and the dog was available for that purpose.”

27. It was put to him that many people travel with a backpack, and this was not a small backpack, but contained five compartments. The witness did not agree when asked what clothing he would expect to find. Mr Noffke gave evidence that a worker would need safety boots, work clothes, underwear, toiletries, towels, a safety vest and glasses if working on a construction site. He agreed that he did not ask him about what work he was going to, he did not feel that was necessary as he gleaned that information from other officers. When asked why he did not ask further questions of the accused, he said that he trusted other officers.

Evidence of Senior Constable Timothy McCarthy

28. Senior Constable McCarthy was the Officer in Charge. He had been involved in two previous operations nominated Northmore, of which there were two each year. His role in the operation carried out in November 2016 was criminal investigation. That involved anything involved in criminal investigation and most of the time that required vehicles to be searched. On 16 November 2016 at 5.20pm he was not involved in stopping vehicles for the purposes of RBT. He confirmed details in his statement made on 27 November 2016. He performed the RBT, however, when the vehicle was moved a distance of 10 metres for a RDT, he was away from the vehicle between 30 and 45 seconds conducting another test. He described the swiping process involved in the drug testing, which took a minimum of three minutes. When he returned to the van he overheard a conversation between Constable Crandon and the accused, and also made observations of the van. When the vehicle first pulled up for the RBT, he observed a drink bottle in the front passenger area and a backpack on the passenger seat. Whilst waiting for the drug test, he observed the floor in the back of the vehicle to be raised, and there was a mattress in the rear of the vehicle. Senior Constable Crandon had informed the accused that the police were going to search the van, to which the accused had stated “that’s fine”.

29. Exhibit B became the warrant authorising use of the drug detection dog. Senior Constable McCarthy gave evidence of the use of the dog to search the vehicle. He observed the dog to walk around the exterior of the vehicle, sniffing around the edges. The dog stopped at the sliding door to the rear compartment and loitered there. It did not indicate anything, meaning “sit and point” as it was trained to do. Senior Constable McCarthy could not recall if the dog entered the vehicle. However, he entered the vehicle to search it, together with Senior Constable Noffke. There were drawers in the raised floor area which were accessible from the side of the vehicle and from the rear of the vehicle. There were other areas which were not accessible and he and Senior Constable Noffke were responsible for lifting that part of the floor. They later learnt that there was a button in the front of the vehicle that enabled the floor to be lifted by way of gas struts hydraulically operated. The search revealed a mattress in the back and there “may have been a sleeping bag”, but he was not certain. Under a section of the floor over the wheel arch, which could not be accessed by the drawers, the search revealed a black shopping bag with a quantity of Australian currency in it. Also revealed under the floor were fishing reels and tackle. The cash located in the black bag comprised 40 bundles of cash. Also found was $800 located on the driver’s side map compartment. When that sum was found, the accused had said, “That’s mine for fuel to Melbourne”, and the cash was returned to the accused. When Senior Constable Noffke found the cash concealed in the back of the vehicle, the accused was arrested by Senior Constable Crandon and Constable Lewis and cautioned. The accused said:

“I don’t know. I didn’t know it was there till you pulled it out. I’m as shocked as you are.”

30. Later, in an ERISP interview, the accused offered no comment when the allegations were put to him and made no admissions.

31. The Officer in Charge was asked about a statement of Sergeant Mark Lyon made on 9 December 2016. When asked what was operating on his mind when the decision was made to search the vehicle, he said that the appearance of the accused when first stopped was of a person who was “a bit fidgety and nervous”, his story of going to Melbourne to work, and the presence of only a small bag led Senior Constable McCarthy to believe that he would have required more clothing, belongings and tools to be with him for that purpose.

32. Senior Constable McCarthy gave evidence that the cash was examined for fingerprints and the bag was forensically examined, however, no fingerprints were detected and any potential DNA samples were too weak for analysis. The accused had consented to a buccal swab to enable DNA testing.

33. Senior Constable McCarthy gave evidence that he made enquiries of Scott Martins, the owner of the vehicle, who lived in Queensland. Attempts to obtain a statement from Mr Martins had been unsuccessful, however, he had received a Statutory Declaration from him by way of his solicitor’s office. When served by email with a subpoena, Mr Martins had advised him that he had some work issues preventing him from attending at Moree District Court.

34. In cross-examination, it was put to Senior Constable McCarthy that Northmore was a combined operation involving traffic and criminal investigations. He agreed with that proposition “loosely”, but said that the criminal investigation was a bi-product of the traffic enforcements involved in RBT and RDT.

35. The witness understood that the operational orders requiring a “concerted effort” meant that a detailed, real effort should be made to pull over a majority of vehicles. Part of the orders have been redacted and when asked what vehicles were to be given priority, the Officer in Charge could not recall, and in any event, did not have authority to reveal what had been redacted from the document when it was produced on subpoena. The van was not the type of vehicle specified as more likely to be stopped. When asked whether the van was more likely to be searched, the Officer in Charge answered, “possibly”. Whether a decision was to be made to search the vehicle depended on the whole set of circumstances. The Officer in Charge acknowledged that police would have to have a reasonable suspicion upon which to base a decision to search the vehicle.

36. It was put to the Officer in Charge that both Senior Constable Noffke and Senior Constable Crandon both claimed to have initiated the search.

37. The witness was shown his statement (marked MFI 3). In [5] of that statement he recorded the conversation that took place between Senior Constable Crandon and the accused. It involved the following:

“Crandon: Where are you off to?

Accused: I am off to Melbourne to do some work with a mate. I can’t get much work around Brisbane.

Crandon: How long are you staying?

Accused: Depends how much work I can get, a couple of weeks. I’m only getting paid $4 or $5 an hour so I need to go and find some money.

Crandon: Whose van is this?

Accused: Scott’s. He’s a good mate of a mate’s. I borrowed it cause it’s got a bed in the back.

Crandon: What’s Scott’s surname?

Accused: I’m not sure, possibly Adams, he’s a mate of a mate. I borrowed it because of the mattress in the back. I’m not earning enough in Brisbane.

Crandon: What do you do?

Accused: I’m an apprentice plumber working for my dad. I can make more corking in Melbourne.

Crandon: Who is Scott?

Accused: A mate of a mate. He owns or works at a fishing tackle shop in Brisbane.

Crandon: What you’re telling me doesn’t add up. We are going to search your van because I think that you have prohibited drugs or other illicit items with you. We have a drug detection dog here and I’m going to get him to go over your van, okay?

Accused: Yeah fine. I don’t have anything on me.”

38. Senior Constable McCarthy agreed that he had no knowledge of the detection dog’s training. However, he gave evidence that rather than an indication, here there was a “soft indication”, by the drug detection dog during the search.

39. The Officer in Charge agreed that he had taken the accused’s licence from Senior Constable Crandon and conducted a number of checks. He did not see the accused have his licence returned to him. He was not in a position to disagree with a proposition that his licence was never returned to him before his arrest.

40. It was put to the witness that the backpack contained numerous items of clothing and toiletries. Following his arrest, the vehicle had been broken into whilst it was in police custody. The Officer in Charge was aware of that.

41. In respect to the clothing he observed in the vehicle, the Officer in Charge gave evidence that he would have expected “older type clothing”. He said it was more likely that he would be involved with “caulking” or “sealing surfaces” rather than “corking”. The Officer in Charge gave evidence that where the black bag was found was above the wheel arch, but not in an area of the false floor that was lifted by the hydraulic struts operated by a button in the front of the vehicle. There were brackets holding the floor down, and it took himself and Senior Constable Noffke quite a degree of force to lift the floor.

Evidence of Senior Constable Aaron Crandon

42. Senior Constable Crandon gave evidence via AVL. He was stationed at Moree Police Station in November 2016 and his role in Operation Northmore XIV was that of a member of the breath testing site team. He gave evidence that a number of police officers were involved including Highway Patrol and Criminal Investigation Police, including police from the Pro-active Crime Squad. The operation took place over two days between 6am and 6pm. At 5.20pm on 16 November 2016, a white Toyota Hi-Ace was pulled over with a number of other cars for a RBT. The accused was the only occupant of that vehicle. Senior Constable McCarthy conducted a RBT which was negative, and advised the driver to move the vehicle some 10 metres away for a RDT. That test involved a swab of saliva from the tongue of the driver being tested. The test took three minutes.

43. Senior Constable Crandon made a statement dated 7 December 2016, in which he recorded the conversation he had with the accused, which accorded with the conversation of which Senior Constable McCarthy gave evidence that he overheard. At the conclusion of that conversation, Senior Constable Crandon said to the accused:

“So a mate of a mate let you borrow his van to travel to Melbourne for an unknown period of time, but you don’t know his last name. What you’re saying doesn’t add up. I’m going to search your van because I believe there are prohibited drugs in it. I’ve got a drug detection dog here that I’m going to put through. Is the dog going to find anything?”

The accused said:

“No. That’s fine. I don’t have anything in here.”

44. When asked what he based his decision to search the vehicle on, Senior Constable Crandon gave evidence that there were a number of factors, including the van itself, its Queensland registration, the fact that it was travelling south, and it was a big van with only one person in it. That person was being overly friendly and a little forthcoming with information people do not usually give. He was going to Melbourne with just a small backpack in the front of the car.

45. The search of the vehicle commenced almost immediately and within a couple of minutes of Senior Constable Crandon speaking to the drug detection dog officer. He gave evidence that he could not remember speaking to other police about the conversation he had with the accused.

46. During the search, the dog handler alerted Senior Constable Crandon to some cash that was located near the driver’s seat compartment. The accused said that the $800 belonged to him, and Senior Constable Crandon handed the cash to him.

47. Senior Constable Crandon gave evidence that the drug detection dog and its handler searched the vehicle, and that after that search, other police, including Senior Constables Noffke and McCarthy, searched the vehicle. Senior Constable Crandon was not involved in the search but became aware that a quantity of cash was located under the floor near the rear of the vehicle. At that point, Senior Constable Noffke directed other police to arrest the accused. Senior Constable Crandon cautioned the accused and he indicated that he understood the effect of the caution. He was aware that fishing rods and tackle were found in the rear of the vehicle, but he did not search the backpack or see any other items in the rear of the vehicle.

48. During the RDT, Senior Constable Crandon gave evidence that he asked the accused to produce his licence. He recorded details of the licence in his police notebook, but did not know what happened to the licence. He was aware that checks were made on the licence, but could not recall what those checks involved.

49. Senior Constable Crandon was asked about what he meant when he said to the accused, prior to the search, “What you said doesn’t add up”. He gave evidence that that meant that what the accused had told him was not a reasonable explanation for his trip, and that he formed a belief that the vehicle may contain prohibited drugs, based on his previous experience and the size of the vehicle. His previous experience included a couple of the previous Operation Northmore’s conducted prior to Northmore XIV. One of those operations had involved an incident where a large quantity of cannabis was located. When asked what was it about the van that led to his belief, he said that it was “a large vehicle which could have concealed a large quantity of drugs”.

50. In cross-examination, Senior Constable Crandon agreed that Northmore XIV involved both traffic and pro-active policing in the operation. Pro-active policing involved trying to stop crime before it occurred. He agreed that in accordance with the operation orders, a very large number of cars were pulled over in the operation. Those orders included an order to make a “concerted effort” to pull over the majority of vehicles. It was put to Senior Constable Crandon that those vehicles were pulled over for pro-active policing rather than random breath testing, to which he answered, “not necessarily”. He agreed that there were 14 police officers working on the shift, some of whom were specifically engaged in pro-active policing, including investigating drug trafficking between Brisbane and Sydney. It was put to him that based on the mission statement, he was not just talking to the accused as a friendly guy, but as part of a pro-active policing policy. He agreed that was correct. Senior Constable Crandon did not tell the accused that he had a choice to speak to him because “I had no reason to tell him”. It was put to him that it was better if he did not tell him he had a choice, and he agreed that his concerns would be increased if the accused had not spoken to him. He agreed that if the accused declined to talk to him, he would have become more pro-active.

51. It was put to the police officer that he had no lawful authority to pull over vehicles for pro-active policing. It was further put that the operation was designed to use the vehicle of RBT legislation to stop vehicles for that purpose. That was without telling drivers that police would avail themselves of the opportunity for criminal investigation, with which Senior Constable Crandon agreed.

52. He also agreed that motorists with no options are compelled by the operation to come into his presence for the purpose of pro-active policing. He agreed that he knew that without the RBT he could not have the van in front of him for that purpose. He also agreed that without the RBT, the police had no intelligence on this vehicle.

53. In taking the accused’s licence, Senior Constable Crandon gave evidence that he relied on the power to require the driver to produce his licence. He could not recall whether he gave it back or whether he gave it to another police officer to carry out criminal checks. Paragraph [5] of the statement made by Senior Constable Anthony Lewis on 14 December 2016 (which was MFI 5 and became Ex F), was read to the witness. In it, Senior Constable Lewis stated that he took the licence from Senior Constable Crandon and returned to the parked police vehicle, a short distance away, where he conducted a number of checks upon the accused. Senior Constable Crandon gave evidence that he did not recall that. It was put to him that the operational orders provided for bi-State cooperation between the New South Wales and Queensland Police Forces, and it was well known that information could be expected to travel between the two police forces. Senior Constable Crandon was unable to comment on that proposition.

Other documentary evidence relied upon by the Crown

54. Exhibit B was the warrant authorising use of the drug detection dog to carry out general drug detection. That warrant authorised the use of a dog to carry out general drug detection in Merriwa Street, Boggabilla, and surrounding roads and area where vehicles are stopped in respect of this operation between Tuesday 15 November 2016 to 10am on Thursday 17 November 2016.

55. Exhibit C was the statement made by Sergeant Mark Lyon, who was the applicant for the drug dog detection warrant for Operation Northmore XIV. He was also present at the scene on Merriwa Street when the accused’s vehicle was searched, and later was responsible for counting the cash found in the vehicle, which totalled $400,320.00.

56. Exhibit D was the operational orders for Northmore XIV prepared by Sergeant Lyon and signed by the operation Commander, Superintendant Paul McDonald, on 14 November 2016.

57. Exhibit E was the Statutory Declaration of Scott Martins, in which he stated he was the owner of the Hi-Ace van. It also annexed documents showing ownership of the fishing rods and tackle.

58. Exhibit F was the statement of Senior Constable Anthony Lewis dated 14 December 2016.

Evidence in the Accused’s case

59. The accused gave evidence that on 16 November 2016 he was driving a borrowed Toyota Hi-Ace van. He was pulled over at Boggabilla to undergo an RBT. He had consumed no alcohol that day and the test was negative. He was then asked to move a distance of some 10 metres for RDT. The administration of that test took a number of minutes, during which, he was spoken by Senior Constable Crandon. He was asked to produce his driver’s licence, which he did. Senior Constable Crandon looked at it and then gave it to another police officer, who walked away with it to a police vehicle. He was then told that the result for the RDT was negative. He was not, however, allowed to leave and his licence was not given back. He was then asked a number of questions by Senior Constable Crandon and told him the truth. The conversation as recounted above in Senior Constable Crandon’s evidence was substantially true to the extent of 95%.

60. For example, he told Senior Constable Crandon that he was going to do “caulking” work and that he was going to be paid per lineal metre. Senior Constable Crandon had told him he was going to search the vehicle and asked him to get out.

61. The accused had no conversation with Senior Constable Noffke in which he was asked to get out of the car. He only heard Senior Constable Noffke say the words “get him, get him”, when he was searching inside the van.

62. The accused gave evidence as to how the search was conducted. In fact, two drug detection dogs were used and both went inside the vehicle.

63. After Senior Constable Noffke revealed the black bag, and yelled “get him, get him”, the accused gave evidence that he was grabbed by four or five officers all at once. He was taken to the side of the road next to the highway police car and was handcuffed.

64. He then had another conversation with Senior Constable McCarthy, in which Senior Constable McCarthy said:

“McCarthy: What’s in the car?

Accused: I have no idea.”

65. The accused then asked to watch the search. When he looked in the car he saw the cash laid out in bundles. It was the first time he had seen the money. He was asked, “What is this?”, and said, “I have no idea”.

66. When he was released from custody on 22 January 2017, the accused had returned to Brisbane and called the Boggabilla Police Station about his belongings. He described his backpack as having five big pockets and side pockets. He was told by police that the van was still in Boggabilla and he could get his property from it at any time. He gave evidence that he drove to the Boggabilla Police Station to find the van parked next to the station in an empty lot. It had been “bashed up”, with the windows broken and a number of panels kicked in as well. When he looked inside he saw a number of his shirts scattered around and his backpack missing. When he made enquiries at the police station, only the fishing rods had been taken into custody.

67. Exhibit 1 was a bundle of ten photographs of the vehicle and its contents.

68. The accused gave evidence that he had packed at least four or five t-shirts, two singlets, four pairs of underwear and four pairs of shorts, three pairs of socks, personal items including a toothbrush, toothpaste and moisturiser, and also in the backpack were an Ipod and back massager. The accused also had in his possession cold and flu tablets, a pillow, sleeping bag, blanket, towel, and an esky.

69. The accused gave evidence that he was intending to stay with a friend, Mr Vujadan Milojavic (known as “Vujo”) in Melbourne. Vujo was a close personal friend for over 10 years and he regularly stayed with him and his family.

70. The accused gave evidence that in 2016 he was an apprentice plumber employed by his father. He spoke to Vujo often and knew he worked with an uncle doing caulking work. The accused’s father was a builder and plumber, and in that work he was involved in constructing bathrooms which involved caulking. The accused gave evidence that he had told Vujo that if he needed help, the accused would go to Melbourne to help him out. He also gave evidence that he wanted to finish his apprenticeship.

71. In mid October 2016, the accused had spoken to Vujo, who told him he was under stress from builders. He asked the accused if he was free to come to Melbourne to help him. They had agreed in about mid October that he would come down. At that time, the accused and his brother shared a car. His brother had a business and needed the car for it.

72. The accused was at a social function when he told his friends that he was planning to go to Melbourne. Scott Martins was there, and said to him:

“Bro, I’ve got a van, I could lend it to you if you want. You are welcome to take it to Melbourne.”

73. The accused obtained his phone number and said, “Let me know when its free”.

74. The accused knew that Scott Martins’ job was in a fishing and camping store and that he was always going camping. He was told that Mr Martins would not be needing the van for a couple of weeks, and after speaking to Vujo, the accused spoke to Mr Martins and asked if he could pick the van up on 16 November. Mr Martins agreed.

75. On 15 November 2016, the accused had packed to go to Melbourne. On the morning of the 16th his brother had dropped him off to Scott Martins’ place. On the evening before, his father had told him:

“Take the inland route, it is the best route to Melbourne.”

76. The accused gave evidence that when he got to Mr Martins’ house he told him that he was going to Melbourne and he was not sure for how long. Scott Martins had said:

“No worries. Take it for as long as you need it. I’ve got fishing gear in the van. When you get to Melbourne one of my mates will come and look at it. Whatever gear he takes, he’ll sort it out.”

77. The accused asked Mr Martins who that person was, and Mr Martins replied:

“He will call you and say he’s Scott’s mate.”

78. The accused had left, intending to reach Dubbo that night. He had stopped for food and drink and had filled up with petrol. He also stopped for food after driving for a couple of hours.

79. The accused gave evidence that he had stayed with Vujo and his family on four or five previous occasions. He had also celebrated Vujo’s 21st birthday in Adelaide in 2012. They were both of Serbian background.

80. In cross-examination by the Crown, the accused said that he had known Scott Martins for some time. The social gathering when he spoke to him about the vehicle is not the first time that he had spoken to him. It was suggested to the accused that when he was asked by the police officers who the owner of the vehicle was, he only said, “Scott”, although he was well aware of his surname. It was suggested he did not want him to be drawn into “this mess”, to which he answered, “No”. It was suggested to him that it was clear that if the police ran checks on the licence plates, they would find out who the owner of the vehicle was.

81. The Crown suggested that he borrowed the van but did not advise the owner that he intended to go to Melbourne. Mr Martins’ statutory declaration made no mention of Melbourne. The accused could not recall that.

82. It was put to the accused that the arrangement was open ended. However, the accused gave evidence that Mr Martins told him he could take the van for as long as he needed it. He also gave evidence that he was aware that the fishing gear in the van related to Mr Martins’ fishing business. It was put to him that at no time did he ever say to the police that Mr Martins had a mate who was going to collect some of that gear in Melbourne. The accused said in answer to that proposition that he felt like he was being attacked by the police.

83. It was suggested to the accused that what he had in mind was driving directly to Melbourne and turning around and driving back. For that reason, there was no need to tell Mr Martins that he was going to Melbourne. He denied that.

84. The accused did agree, having been shown a google map (Ex G), that the journey to Melbourne would take 18 hours and 30 minutes. It was put to him that it was his intention to drive straight there and back, and the reason for that proposition was that there was no substantial personal gear of his in the van. He denied that.

85. The Crown put to him that the drive to Melbourne would take two to three days, and with one day turnaround, it was his intention to do the return journey in six to 10 days. The accused denied that proposition. It was put to him that that was the reason for him having a small amount of clothing, which he denied.

86. It was put to him that he had no clothes, for example, to socialise, however, the accused said “it would not be hard to buy clothes”. The Crown suggested that he had no intention of being there for more than a day or two if at all. It was also put to him that it would cost in fuel approximately $400 for the return journey. It was also put to the accused that it would not be profitable for Mr Milojavic to employ him.The accused did not agree.

87. The accused was asked about the photographs in Ex 1. In photographs numbered 3, 4 and 6, there was a packet of “No Doz”, a known stimulant. It was put to the accused that he was doing an “express run” and that he was using that medication to stay awake for as long as he could. The accused denied owning the packet and said he never had any drugs. Further, the police did not ask him about that.

78. The accused agreed that the cash had been secreted in part of the cargo area of the van which was not immediately accessible. He did not know that there was a capacity to lift the floor by way of the hydraulic lift until he saw the statutory declaration by Scott Martins. He therefore did not say anything to the police about that because he did not know.

79. The Crown cross-examined the accused about his return trip to Boggabilla to retrieve the contents of the vehicle. He said he wanted all of his belongings, including his clothes, Ipod and back massager. During the accused’s time in custody, Mr Martins had been aware of the vehicle location, although the accused had not spoken to him. When asked why, he said that he had sought advice from a lawyer in Sydney and received advice that it was in his best interest not to contact Mr Martins. It was put to him that it would have been the proper things to do to let Mr Martins know where the van was, however, the accused said that following his arrest, he did not regard him as a friend, and that he was more angry than anything.

80. When asked whether he collected the van, the accused answered, “My friend did”. He was asked whether he was sent by Mr Martins to get the van and he said, “No”. When asked why he got it, the accused said, “I had the key”. When asked why he had never contacted Mr Martins, the accused said:

“I was pissed off having been in gaol for so long when I hadn’t done anything wrong.”

91. It was put to the accused that the reality was that he was well aware that the cash was secreted in the van, which he denied.

92. It was further put that the reason he had so little clothing with him was that he intended to drive to Melbourne as rapidly as he could, stay there a short amount of time, and drive straight back, which he also denied. It was put to the accused that the purpose of his trip was to deliver the cash to a person in Melbourne, which the accused also denied.

93. In re-examination, the accused gave evidence that on the days that Vujo was working for his uncle, he would do caulking work for him. He expected to be paid roughly $3 per lineal metre for that work.

Evidence of Vujavin Milojavic

94. Mr Milojavic gave evidence that he was a close personal friend of the accused and a self-employed caulker, which involved sealing bathrooms and tiles. He had known the accused for 10 years and he knew his family. They had the same ethnic Serbian background.

95. Since 2014, Mr Milojavic had been sub-contracting to his uncle and working five to six days per week. Whilst continuing to work for his uncle full‑time, he had also been outsourcing work, after work and on weekends. He was getting that work from builders and the busy time of year was the last quarter of the calendar year when finishing trades were required to ensure that certificates of occupancy were issued.

96. By mid 2016, Mr Milojavic gave evidence that he had a lot of private work in addition to his full-time job. He had had a conversation with the accused in which the accused had said to him, “If you ever need help I could come down to Melbourne”. This was not an offer of employment, however, they kept in contact and he was getting very busy during the last quarter.

97. The witness knew that the accused was working for his father and that they had a bad relationship. Eventually he said to the accused:

“Why not come down and I’ll show you what’s involved. If you like it, I’ll give you $2 to $3 per lineal metre.”

98. He gave evidence that they discussed the tools and that he told the accused that he would need a caulking gun at a cost of $90, and a spray bottle. He was going to provide both.

99. The accused had also asked him whether he required safety clothing, but Mr Milojavic told him that the work was residential and he could wear what he was comfortable in. That would involve shorts or tracksuits. Safety gear was not required, nor were safety boots. Sneakers were worn during the work so as not to damage timber floors, tiles and carpets in the new dwellings.

100. They also had a conversation about where the accused would stay, namely, with Mr Milojavic and his family.

101. In cross-examination, the Crown questioned Mr Milojavic as to how he had built up his private work whilst working full-time for his uncle. He gave evidence that he worked after his shift finished until 6 or 7pm at night, as well as on Saturdays and Sundays doing private work. By doing so, he said he could earn up to $7,000 per week doing both his full-time work and his private work. When asked how long the accused was supposed to stay with him in Melbourne, he said, “Long enough to learn the ropes, possibly till the end of the year”. He took the month of January off and the accused could decide what he wanted to do then. His private work was booked two or three weeks in advance. He agreed that it was never the case that the accused was coming for a week or two only.

102. The witness also agreed that on previous visits the accused had socialised with him, going to bars, clubs or sporting events. The accused could borrow clothes from him and he had done so before.

103. The witness gave evidence that he had spoken to the accused in mid November and he had been told that the accused was borrowing a van to come to Melbourne. When he did not arrive, he tried to contact him because he was genuinely worried about him. He called his brother and was told that the accused had been arrested, maybe one or two days after he was due to arrive.

104. When asked how it was anticipated that the accused would get to job sites, the witness gave evidence that he would go with him at first and then use the van. He believed the accused could keep the van for a month.

105. In re-examination, the witness said he had had no direct conversation with the accused about borrowing clothes once the accused arrived in Melbourne. He first wanted to see how the accused would adapt to the work and therefore the period which he expected him to stay could be a few weeks or until the end of the year. He knew the accused was aware of the fundamentals of the job, but wanted to see if it worked out. He had the month of January to decide.

The Crown submissions

106. The Crown submitted that the evidence established that the accused drove the vehicle and was the sole occupant of it. The vehicle was registered to a Queensland owner, Mr Scott Martins, and $400,320.00 was secreted in a compartment in the raised floor structure in the cargo area of the vehicle. Although that compartment had drawers which were easily accessible, the area where the cash was located was not.

107. The Crown submitted the fact that the cash was bundled into 40 separate parcels, secured by rubber bands, gave rise to the inference that it was proceeds of crime.

108. The evidence established that also in the vehicle was a mattress and pillow, a small backpack and fishing tackle, which was from Mr Martins’ business.

109. The accused had a conversation with Senior Constable Crandon in which he told him he was heading to Melbourne for work, but that work was carpentry work involving caulking, and that the accused did not know the owner of the vehicle’s name, meaning surname. Senior Constable Crandon had made a contemporaneous entry of that conversation and the Crown also relied on the video recording of the search of the vehicle.

110. The Crown submitted that there were three elements of the offence, as outlined above. There was no issue in the trial as to the second and third offences, the real issue was element 1, namely, whether the accused “dealt with” the money as defined in s 193A(a) or (b).

111. It was the Crown case that the accused knew that he was in possession of the money, namely, that it was secreted in the vehicle. The Crown acknowledged that the accused had made no admissions and there was no physical evidence linking him with the money or the bag in which it was contained. The Crown relied on a circumstantial case where that conclusion was arrived at by inferences derived from the evidence. The accused was in a borrowed vehicle and it defied belief that the owner would permit someone to borrow a vehicle, knowing that the money was secreted in it. The accused had described an open-ended arrangement with the owner of the vehicle in which anything could happen, meaning accident, the vehicle being stolen or set on fire, and therefore, in the Crown’s submission, it defied belief that the accused was not aware of the money secreted in the vehicle.

112. In respect of the accused’s evidence that he had advised the owner of the vehicle that he was driving to Melbourne and the owner had told him of an arrangement whereby someone would meet him in Melbourne, the Crown submitted that evidence made his ignorance of the money all the more unbelievable. He was undertaking a very long drive with the opportunity for something to happen to the van.

113. It was submitted that the court would also take judicial notice of the fact that it was an open-ended arrangement and that the accused would need fuel expenses in excess of $400. The Crown also relied on the absence of clothing in the van for the accused to socialise whilst in Melbourne. There was no dispute that the accused had a limited amount of clothing with him, namely, four to five shirts, four pairs of shorts, four pairs of underwear and shoes. However, that was sufficient clothing for a return journey which would take two to three days, one day in Melbourne and the same journey back to Brisbane. Thus, the Crown submitted the clothing the accused had with him was consistent with delivery of the money on an express run. The Crown also referred to the packet of “No Doz” exhibited in the photographs of the van taken by the accused when he retrieved his property from Boggabilla. The Crown acknowledged there was no evidence from any police officer who searched the vehicle that that packet was in the vehicle at the time the accused was pulled over on 16 November 2016. The presence of the mattress in the vehicle, the Crown submitted, would give rise to an inference that the accused was to sleep in the vehicle and remain with the cash so as to avoid theft of it.

114. The Crown submitted that the court would not accept the accused as an honest or reliable witness. He had never contacted the owner in respect to the money, or to explain where the car was. Further, he had made a return to Boggabilla by driving over four hours to obtain his property. He was accompanied on that occasion by a friend who drove the van back to Brisbane, as the accused had the key to the vehicle. The Crown submitted that the last thing the accused would be doing was a favour to the owner if he was innocent of the matter charged. The Crown referred to the evidence of the accused that he was angry at the owner for putting him in the predicament he found himself in. It was submitted that it was more likely that he was responsible for the vehicle. It defied belief that he would do the owner a favour by returning the vehicle to him.

115. The Crown also referred to the accused’s evidence about the police search, namely, that he did not care about the search and did not stay for the duration of it.

116. Finally, the Crown submitted that the court would not accept that the accused intended to go to Melbourne for work. It was submitted that he knew the money was secreted in the van and therefore a verdict of guilty should follow.

Submissions on behalf of the accused

117. Learned Counsel for the accused submitted that many of the facts were not in contest. The Crown had accepted that there was no direct evidence that the accused was aware of the money in the vehicle. However, the Crown must establish beyond reasonable doubt that the accused knew of the presence of that money. In addition, the accused must not only have known the money was there, but also to have intended it to be there.

118. The accused’s case was clear, he knew nothing about the money. He first saw it when it was already laid out, as shown in the video evidence. He did not even see what it was that caused Mr Noffke to say, “Get him, get him”, before he was arrested.

119. The evidence established that the accused was concerned because country police were involved and asked to be taken back to the vehicle and observed the search take place. It was only after he had been seated in the sun for a period, that he asked to be taken inside.

120. Counsel submitted that the Crown submission was not correct that there was a contradiction in the accused’s case that he “didn’t care” about the search. It was only after he had seen the search and the money laid out, that he asked to be moved inside.

121. It was submitted that the accused had no burden of proof. He gave evidence of the circumstances in which he took the vehicle. Having given evidence, no inferences can be rationally drawn to the effect that he had knowledge of the money. The Crown had the onus to prove beyond reasonable doubt that the accused knew the money was there. The concept of dealing contained in s 193C, required not just bare knowledge, but an intention to do something with it. Counsel submitted that s 193A(a) or (b) applied here, and the Crown must satisfy the court beyond reasonable doubt that the accused knew it was there. However, in the face of the accused’s evidence, that he did not know the money was there, the Crown cannot establish that he did. All the Crown could establish here was that he was driving the vehicle, that the vehicle was stopped and searched and money was found in the vehicle. This was a “strands in the cable” case which required a direction as to circumstantial evidence. Determination of the issue depended on whether all the evidence led to an unavoidable conclusion that the Crown had established guilt. It was submitted that the Crown case here completely failed.

122. It was submitted that the accused did not tell lies in his evidence. He told the police officer that he would work for $3 per lineal metre, not per hour.

123. Counsel submitted that Mr Martins had chosen not to make himself available to give evidence at the trial. His statutory declaration included evidence that he had given the vehicle to the accused a couple of weeks beforehand, however, the accused had given sworn evidence that he picked it up on the morning of 16 November 2016. This gave rise to a rational competing hypothesis, consistent with innocence on the part of the accused. Further, the Crown did not challenge the accused in cross-examination on the proposition that he picked up the car that morning.

124. Having regard to the evidence as to the raised platform and the presence of rods and reels, it was submitted that they must have been put there by Mr Martins. Further, the fact that the gas struts did not lift up the area of the floor where the money was secreted, gave rise to a proposition that it was put in there for the long term, namely, it was intended not to be found by police or the accused, but rather, was intended for the person at the other end, namely, Melbourne. It was submitted this was a “perfect way for Scott Martins to get the money to Melbourne”. The accused was not taking issue with the third element, namely, that there was a reasonable suspicion that it was proceeds of crime because of the amount of money involved.

125. The statutory declaration of Mr Martins was remarkably brief and there had been no opportunity to cross-examine him. If he had in fact given the vehicle to the accused a couple of weeks earlier, there was no reason to leave the rods and reels in the vehicle. It was submitted that these were put in there for a purpose.

126. It was further submitted that the accused would be unlikely to contact Mr Martins following his arrest. He had received advice from a solicitor not to contact Mr Martins and it was reasonable for him to follow that advice. The reason for the accused going to Boggabilla was that he wanted his property back. That property included an Ipod and massager. He was then given the key to the vehicle by the police and he did not drive the vehicle back, but somebody else did. By getting his friend to return the vehicle, it was submitted that the accused had nothing to do with it. The Crown submission relating to the lack of clothes for the accused to spend time in Melbourne was not made out. Further, it was scandalous for the police to not take care of his property following his arrest. The fact that the accused had clothes for a week was entirely consistent with him staying in Melbourne to work and was at least equivocal with him merely doing a return trip.

127. Counsel adopted the submissions made on the application by the accused for a verdict by direction. It was submitted that, as the tribunal of fact, to convict the accused, the court would have to come to an unavoidable conclusion of his guilt. This was in the face of the spectre of Mr Martins’ ownership of the van, that Mr Martins knew of the construct of the floor in the cargo area of the vehicle, the accused had no knowledge of the placement of rods and reels, and that Mr Martins knew the vehicle was going to Melbourne. It was submitted that it was a striking discord in the Crown case, namely, the involvement of Mr Martins. The Crown case relied either on Mr Martins being in control and getting the accused to do a run, or, Mr Martins being in control and getting the accused unknowingly to do a run. The Crown could not establish the elements of the offence beyond reasonable doubt and therefore it was submitted there should be a verdict of not guilty.

Determination

Section 133 of the Criminal Procedure Act 1986 provides as follows:

“133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

128. The elements of the offence pursuant to s 193C(1) are set out above. There was no issue in this trial between the parties that in respect of the money secreted in the vehicle, there were reasonable grounds to suspect that the property was proceeds of crime. The issue was whether the Crown had proved beyond reasonable doubt the element of the offence that the accused had dealt with the property. Section 193A includes the following definition:

“Deal with includes:

(a) receive, possess, conceal or dispose of, or

(b) bring or cause to be brought into New South Wales, including transfer ot cause to be transferred by electronic communication, or

(c) engage directly or indirectly in a transaction, including receiving or making a gift.”

129. The Crown seeks to prove its case beyond reasonable doubt based on a circumstantial evidence case.

130. The first direction of law that I give myself is a direction concerning the Crown relying on a circumstantial case. The Crown submitted this was a “strands in the cable” case.

131. I therefore give myself the following direction. The onus of proving guilt in respect of the charge brought against the accused is on the Crown. It must establish the accused’s guilt beyond reasonable doubt. This mean that, in respect of each of the essential elements of the charge, I must be satisfied beyond reasonable doubt that the Crown has established its case before I can bring a verdict of guilty of the charge. My function as judge of the facts in this case extends beyond finding whether any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts that I do find to be established. “Inference” and “conclusion” mean the same thing. I will use the word “conclusion” to refer to the line of reasoning that the Crown intends to prove by its circumstantial case.

129. In this case, the Crown relied on what is called “circumstantial evidence” to prove its case. In relying upon that circumstantial evidence, the Crown asked that I find certain basic facts, and then from those facts draw a conclusion as the existence of a further fact, namely, that the accused had knowledge of the fact that the money was secreted in the cargo area of the van he was driving and therefore had the requisite intention to deal with that property as defined in s 193A of the Crimes Act 1900.

130. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be that a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused.

131. In a circumstantial case, the Crown lacks direct evidence of that kind. It does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying the accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken.

132. But in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence, then I am asked to reason in a staged approach. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact that the Crown asks me to find, based upon the basic facts, is that the accused person is guilty of the offence charged.

133. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). It will also depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find to be established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact of circumstance which is inconsistent with the accused’s guilt.

134. The correct approach is first to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. In that case it follows that I must find the accused not guilty.

135. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused’s guilt.

136. I understand that drawing a conclusion from set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion on mere speculation, conjecture or supposition.

137. In order to satisfy myself beyond reasonable doubt of the accused’s guilt of the offence, I must first be persuaded by the Crown that the inference or conclusion it relies upon, namely, that the accused knew of the presence of the cash in the vehicle and intended to deal with it, was a reasonable one to draw from the facts which I find established by the evidence. The Crown must then prove that the only reasonable inference or conclusion that can be drawn from a consideration of all of the established facts viewed as a whole, is that the accused, Stefan Mihajlovic, is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown’s circumstantial case has failed.

138. In my earlier judgment on the application by a verdict by direction, I made findings of fact on the basis of the evidence in the Crown case. They are as follows:

1. Operation Northmore XIV was an authorised joint police operation subject to Operational Orders contained in Ex D. Those orders set out assumptions for the operation which included offences against the Australian Road Rules, stolen property may be located in vehicles crossing State borders between New South Wales and Queensland, and that prohibited drugs may be located in vehicles and in possession of persons crossing the State border. Further, persons wanted for outstanding warrants and investigations may be located crossing the State border.

The orders contain the following statement under the heading “Mission”:

“To foster and encourage any bi-State cooperative approach to law enforcement, with emphasis on Speeding Offences, Drink Driving Offences, Driving Under The Influence (Drugs) Offences, Restraint Offences, Driver Fatigue Offences, Conveyance of Illicit Drugs between NSW and Qld and in general criminal conduct. …”

Under the heading “Execution”, the orders set out that the operation was to take place between 6am on Tuesday 15 November 2016 and 11am on Thursday 17 November 2016. The site was located on the Newell Highway outside the Boggabilla Police Station that was targeting northbound traffic as the priority. It included the following:

“A concerted effort shall be made to intercept the majority of vehicles seeking to traverse the stationery site on the Newell Highway …”

2. Operation Northmore operated between 6am and 6pm on 16 November 2016 at Merriwa Street, Boggabilla.

3. A Toyota Hi-Ace van driven by the accused, with Queensland number plates, travelling south on Merriwa Street, was pulled over for RBT at 5.20pm on 16 November 2016.

4. The RBT was negative. The driver was then asked to move the vehicle approximately 10 metres to a site for RDT.

5. During RDT, which took approximately three minutes, Senior Constable Crandon asked the accused a number of questions, which the accused answered voluntarily.

6. During that period, the accused was asked to produce his licence, which he did so. The licence was given to another officer and taken to a police vehicle for “checks”, which undoubtedly included criminal history checks.

7. At the end of the conversation, Senior Constable Crandon said, “What you’re telling me doesn’t add up, we’re going to search your van because I think you have prohibited drugs or other illicit items with you. We have a drug detection dog here and I’m going to get him to go over your van, okay?” The accused said, “Yeah fine. I don’t have anything on me.”

8. Senior Constable Noffke was told by another police officer of the conversation between Senior Constable Crandon and the accused. Relying on his own observations, he also gave evidence he formed an opinion that there was “reasonable cause” to search the vehicle and he spoke to the accused and told him he was going to do so, and asked the accused to get out of the vehicle.

That evidence is inconsistent with the evidence of Senior Constable Crandon and I do not accept it. Senior Constable Crandon actually was questioning the accused and informed him that he was going to search the vehicle because what the accused was telling him didn’t add up.

9. Senior Constable Noffke introduced the drug detection dog and its handler to the accused.

10. The drug detection dog made no indication in accordance with its training that prohibited drugs were secreted in the vehicle.

11. Senior Constable Noffke and Senior Constable Crandon then proceeded to search the cargo area of the vehicle.

12. In that cargo compartment was a tool box, which was not the subject of the search before the accused was informed of the police decision to search the vehicle.

13. Also included in the vehicle was a backpack containing clothing and personal items to the accused, which were not identified by the police search.

14. The police search located $800 in the driver’s side map compartment, which the accused claimed was his own. That money was returned to him.

15. I find based on the evidence that in the front of the vehicle was located one empty drink container and one container containing tea. Otherwise the evidence established that there was some confectionary wrappers present.

16. I find that the floor in the cargo compartment was not a “false floor” designed to conceal contents beneath it. Rather, it was constructed to provide storage space in the cargo area of the vehicle and was accessed either by the drawers facing the side and rear doors of the vehicle, or by operation of hydraulic struts activated from the driver’s position in the front of the vehicle.

142. Having now heard all the evidence in the case, I make the following further findings of fact:

1. The accused borrowed the vehicle from Mr Scott Martins and collected it on the morning of 16 November 2016 for the purpose of driving it to Melbourne.

2. The arrangement to borrow the vehicle was open-ended in that Mr Martins told the accused that he could use it for as long as he wanted the vehicle.

3. I accept the accused’s evidence and find as a fact that Mr Martins told the accused that a person would contact him when he was in Melbourne about the fishing tackle that was stored in the vehicle and would come and collect some of it.

4. I accept that the accused had sufficient clothing for him to work with his friend in Melbourne doing caulking work for a week.

5. The accused had made an arrangement with his friend in Melbourne to help him establish his business doing caulking work. That arrangement involved the accused being paid $3 per lineal metre and his friend taking a share of the cost per lineal metre for arranging that work.

6. I find that this was an arrangement whereby the accused was to see whether he liked doing the work before he decided to move to Melbourne permanently to do it.

7. I find as a fact that the accused was to stay with Vujadin Milojavic and his family whilst he was in Melbourne.

8. I find as a fact that the accused had $800 in cash as his own personal money for expenses to drive to and stay in Melbourne. This money was sufficient to provide for a return trip to Brisbane.

143. I further find that the accused was an honest and reliable witness whose evidence was not impugned in cross-examination in any substantial way. Other than not knowing the surname of Mr Martins when first asked by Senior Constable Crandon, the accused gave truthful answers to the police to the questions asked by Senior Constable Crandon. It is clear that the police either misunderstood some of those answers (eg. their understanding that he was doing carpentry work involving “corking”, rather than “caulking” work in bathrooms), or chose to ignore them, so as to arrive at a suspicion that the accused was in possession of prohibited drugs, which is not borne out by their search of the vehicle.

144. The evidence about the demeanour of the accused prior to his arrest does not assist the Crown case. The evidence of the officer in charge, Senior Constable McCarthy, that the accused was “a bit fidgety and nervous” does not sit well with the evidence of Senior Constable Crandon, that the accused was “overly friendly and a little forthcoming with information” during their conversation. The evidence that the accused never contacted the owner of the vehicle, Mr Martins, also does not assist the Crown case. He clearly did that on the advice of his solicitor, and no inference adverse to him can be drawn from the fact that once the key to the vehicle was returned to him, he had his friend return the vehicle.

145. Nor is the evidence of the amount of clothing and personal effects the accused had with him anything other than equivocal. The police evidence did not refer to the empty “No Doz” packet being found in the vehicle during its search, and the accused denied owning the packet, said he never had any drugs, and was not asked any questions by the police. No inference adverse to the accused could be drawn from the photographs in Ex 1.

146. The Crown case is further not assisted by the absence of Mr Martins. His statutory declaration, Ex E, merely confirms that he was the owner of the Hi‑ace van, that it had been custom built with under-floor storage for his camping and fishing equipment, and that the accused had asked to borrow the van for work.

147. Having regard to the whole of the evidence in this trial, and weighing all of the facts that I have found established by the evidence, I cannot come to an unavoidable conclusion that the Crown has established the guilt of the accused. Rather, having considered all of the facts together, I find that such a conclusion does not reasonably arise and that the Crown’s circumstantial case has failed. It follows that I must find the accused not guilty.

148. Whilst it is not necessary for me to so find, even if a conclusion of guilt was a reasonable one based on a combination of all of the established facts here, there is a reasonable conclusion arising from those facts which is inconsistent with the conclusion that the Crown case has been established beyond reasonable doubt. That other reasonable conclusion is that the accused had no knowledge whatsoever of the money secreted in the cargo area of the van, and that Mr Martins had arranged for its delivery to a person in Melbourne under the guise that it was the fishing tackle which was being delivered to that person who was to contact the accused following his arrival in Melbourne.

149. I am therefore not satisfied beyond reasonable doubt of the accused’s guilt and there will be a verdict of not guilty.

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Decision last updated: 26 March 2019