Citation: R v Stefan Mihajlovic [2019] NSWDC 74
Court: District Court of New South Wales
Date: 22 March 2019
Judge(s): Mahony SC DCJ
Background
The accused was tried alone by judge on a single count of dealing with proceeds of crime. On 16 November 2016, police conducting Operation Northmore XIV on the Newell Highway at Boggabilla stopped a Toyota Hi-Ace van travelling south. The accused was the sole occupant. After a negative roadside breath and drug test, police searched the vehicle and found $400,320 in cash concealed in a sealed compartment beneath a raised floor in the cargo area. A further $800 was found in the driver's door map compartment and was returned to the accused.
The van was registered to a Queensland man, Scott Martins, who had lent it to the accused. The accused maintained throughout that he had borrowed the van to drive to Melbourne to assist a close friend with caulking work, and that he had no knowledge of the concealed cash.
The trial proceeded on the Crown's circumstantial case. The court had previously ruled the vehicle search unlawful but exercised its discretion under section 138(1) of the Evidence Act 1995 to admit the evidence. The only live issue at trial was whether the accused had "dealt with" the money within the meaning of the relevant Crimes Act provisions, which required the Crown to prove beyond reasonable doubt that the accused knew of the cash and intended to deal with it.
Legal Issues
- Whether the Crown proved beyond reasonable doubt, on a circumstantial case, that the accused knew the cash was secreted in the vehicle and dealt with it as proceeds of crime
- Whether the circumstantial evidence led to an unavoidable conclusion of guilt or whether a reasonable hypothesis consistent with innocence remained open
- Whether any adverse inferences could be drawn from the accused's conduct, demeanour, clothing, failure to contact the vehicle owner, and other surrounding circumstances
Decision
Issue 1: Application of the circumstantial evidence standard
Mahony SC DCJ directed himself that in a circumstantial case the Crown must first establish basic facts, from which the only reasonable conclusion is guilt. If any other reasonable conclusion inconsistent with guilt arises from all the established facts viewed as a whole, the circumstantial case fails and a verdict of not guilty must follow (at [136]-[140]). Individual facts need not each be proved beyond reasonable doubt, but the combination must lead to an unavoidable conclusion (at [136]-[137]).
Issue 2: Reliability of the accused's evidence
The court found the accused to be an honest and reliable witness whose account was not substantially challenged in cross-examination (at [143]). The court accepted that police had either misunderstood or chosen to disregard the accused's answers, including his explanation that he was travelling to Melbourne for caulking work rather than carpentry (at [143]).
Issue 3: Circumstantial indicators relied upon by the Crown
Each of the Crown's circumstantial indicators was assessed and found to be unconvincing or equivocal. The conflicting police evidence about the accused's demeanour (described simultaneously as "fidgety and nervous" and "overly friendly") did not assist the Crown (at [144]). The accused's failure to contact the vehicle owner after arrest was explained by legal advice and carried no adverse inference (at [144]). The quantity of clothing was equivocal and consistent with a working trip to Melbourne (at [145]). No adverse inference arose from the "No Doz" packet photographs, as police had not identified the packet during the search and the accused denied ownership (at [145]). The vehicle owner's statutory declaration confirmed the van had custom-built under-floor storage for his camping and fishing equipment, which was also present in the cargo area (at [146]).
Issue 4: Conclusion on guilt
Having weighed all established facts together, the court found that the conclusion of guilt did not reasonably arise and that the Crown's circumstantial case had failed (at [147]). Even if a conclusion of guilt were considered reasonable, a competing reasonable hypothesis remained open: that the accused had no knowledge of the money and that the vehicle owner had arranged for its delivery to Melbourne, concealed within the van without the accused's awareness (at [148]). The court was not satisfied beyond reasonable doubt of the accused's guilt (at [149]).
Orders Made
- Verdict of not guilty
Key Takeaways
- In a judge-alone circumstantial case, all established facts must be weighed together; if any reasonable conclusion inconsistent with guilt remains open, the Crown's case fails regardless of whether individual inferences might otherwise support a finding of guilt (at [136]-[140]).
- A credible, largely unchallenged account from an accused asserting lack of knowledge of concealed property can defeat a Crown circumstantial case even where the accused was the sole occupant of the vehicle containing the property (at [143], [147]).
- Conflicting police evidence about an accused's demeanour carries little probative weight and may undermine rather than support the Crown's case (at [144]).
- Where an accused follows legal advice not to contact a third party after arrest, no adverse inference arises from that silence toward the third party (at [144]).
- The District Court confirmed that the presence of a vehicle owner with knowledge of a vehicle's concealed compartments, combined with an open alternative explanation for the trip, can constitute a sufficient competing hypothesis to prevent the Crown from establishing guilt beyond reasonable doubt on a circumstantial case (at [148]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Evidence Act (NSW) 1995
Cases
- Not stated