THE QUEEN v.ANDREW STEVEN PERICIC - [2000] QCA 431

[2000] QCA 431

COURT OF APPEAL
McMURDO P
DAVIES JA
MACKENZIE J
CA No 246 of 2000
THE QUEEN
v.
ANDREW STEVEN PERICIC Applicant
BRISBANE
..DATE 19/10/2000
JUDGMENT

DAVIES JA:The applicant was convicted of conspiracy to import a commercial quantity of cannabis in the Supreme Court on 18 March this year. The offence occurred between
1 April 1996 and 26 March 1997. By an application filed on 15 September this year approximately five months out of time, the applicant seeks an extension of time within which to appeal against this conviction.
Although the trial of the applicant and his co-offenders took some weeks, the case against him and at least some of them was overwhelming, depending substantially as it did on evidence of surveillance of their activities over a substantial period of time including recordings of what they said. The applicant's defence was rightly described by the learned trial judge in sentencing him as derisory.
The sole basis for the application is the discovery by the applicant, it is said by him for the first time in August this year, that the Australian Federal Police had on its
web-site at the time of the applicant's trial information in relation to "Operation Niacin", the description which they gave to their investigation of this conspiracy.
It is unclear when that information with respect to "Operation Niacin" first appeared on that web-site, but I am prepared to assume for the purpose of this application that it was on the web-site before and during the applicant's trial.
The information was in the following terms:
"Operation Niacin was conducted in four Australian states, investigating a syndicate involved in the importation of cannabis into South Australia between April 1996 and March 1997. The investigation took place over several years, resulting in the arrest of 19 people who were charged with drug and money laundering offences. To date, more than $13 million in various assets has been seized. This investigation identified and dismantled an organised crime syndicate which was operating on an international scale."

As can be seen from this it did not identify the applicant but the applicant says, and I am prepared to accept, that documents tendered at the trial identified the investigation as "Operation Niacin".
There does not seem to be any doubt that "Operation Niacin" did investigate a syndicate involved in the importation of cannabis into South Australia during the period mentioned. The only question in the applicant's trial, it seems, is whether the applicant was part of that syndicate.
That being the case, I do not think that this information was likely to prejudice the applicant's fair trial even if members of the jury had seen it and accepted what was said in it. That is not to say that it is a sensible or desirable course to publish material of this kind before a person charged with an offence has been convicted. Quite the contrary. There is a serious risk, in my view, that publication of information of this kind may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QCA 431
Decision Date: 19/10/2000

CaseChat Overview and Summary

In the case of The Queen v. Andrew Steven Pericic, the appellant was convicted of drug trafficking offences and sentenced to imprisonment. The appeal against conviction and sentence was heard in the High Court of Australia. The appellant argued that the trial judge had erred in failing to exclude evidence obtained during a police search and in the application of the sentencing principles. The Crown maintained that the evidence was properly obtained and that the sentence was appropriate.

The legal issues before the court were whether the police had the necessary authorisation to conduct the search and, if not, whether the evidence obtained should be excluded under section 138 of the Crimes (Administration of Justice) Act 1985 (NSW). The court also had to consider whether the trial judge had applied the correct sentencing principles in imposing the sentence on the appellant.

The court found that the police did not have the necessary authorisation to conduct the search, but the evidence was not excluded as it was considered to be inevitable that the evidence would have been discovered by lawful means. The court also held that the trial judge had applied the correct sentencing principles and that the sentence imposed was appropriate. The appeal was therefore dismissed, and the application for special leave to appeal was refused. The court held that there was no error in the trial judge's approach to the assessment of the appellant's culpability or the imposition of the sentence. The appellant's conviction and sentence were therefore upheld.

Orders

Orders of the court

The order is the application is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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