Citation: R v Mitrovic [2001] NSWCCA 359
Court: NSW Court of Criminal Appeal
Date: 17 July 2001
Judge(s): Simpson J, Stein JA, O'Keefe J
Background
The appellant was convicted in his absence in the Local Court on 26 April 1990 of possession and supply of prohibited drugs, and goods in custody, arising from an arrest on 18 October 1989. His appeal to the District Court was dismissed after he twice failed to appear, and he was ultimately sentenced to eighteen weeks' full-time custody. He was arrested on a bench warrant in December 2000 and served eleven weeks before being released on bail.
In January 1997, the appellant applied under the Crimes Act 1900 for an inquiry into his convictions. After a lengthy procedural history, the matter was eventually referred to the Court of Criminal Appeal to be dealt with as an appeal. The sole ground advanced was that fresh evidence had emerged casting doubt on the safety of the convictions.
The prosecution case had depended substantially on the evidence of the arresting officer, Detective Constable Ristau. The fresh evidence came from the Royal Commission into the NSW Police Service, and it bore directly on that officer's credibility.
Legal Issues
- Whether evidence emerging from the Royal Commission into the NSW Police Service constituted "fresh evidence" as that term is understood in appellate law
- Whether that fresh evidence was sufficient to warrant quashing the convictions
- Whether, in the circumstances, an order for a new trial was appropriate or whether verdicts of acquittal should instead be entered
Decision
The fresh evidence consisted of Royal Commission findings strongly suggesting that Detective Ristau, who resigned from the Police Service in 1991, was corrupt and led a corrupt group of Fairfield police officers known as "the Rat Pack." Corrupt practices attributed to him included stealing money and drugs from sites of police investigations. The Crown did not dispute that this material qualified as fresh evidence within the meaning established by the High Court in R v Gallagher and R v Mickelberg.
The Crown conceded that, given the fresh evidence, it was appropriate to quash the convictions. Ordinarily, quashing a conviction would result in an order for a new trial. However, the Crown also conceded that, in these circumstances, it was unlikely that a properly instructed jury would convict the appellant, making a new trial order pointless.
The Court also took into account that the appellant had already served eleven of the eighteen weeks of his sentence. Applying the required examination under section 6 of the Criminal Appeal Act 1912, Simpson J, with Stein JA and O'Keefe J agreeing, determined that quashing the convictions and entering verdicts of acquittal was the appropriate course.
Orders Made
- Convictions quashed
- Verdicts of acquittal entered
Key Takeaways
- Fresh evidence of serious police corruption, established through Royal Commission proceedings, can be sufficient to undermine the safety of a conviction and warrant its quashing on appeal.
- Under the Crimes Act 1900, the Supreme Court may refer a conviction inquiry directly to the Court of Criminal Appeal to be dealt with as an appeal, where the original inquiry process cannot be completed.
- A new trial is not an automatic consequence of quashing a conviction. Where the Crown concedes that a properly instructed jury would be unlikely to convict, the Court of Criminal Appeal may instead enter verdicts of acquittal.
- Partial service of a sentence is a relevant consideration when the Court of Criminal Appeal decides whether to order a new trial following the quashing of a conviction.
- The absence of a party at trial and on appeal does not preclude a later review of the conviction on fresh evidence grounds, particularly where the fresh evidence goes to the credibility of a key prosecution witness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 474D, 474E
- Criminal Appeal Act 1912 (NSW), s 6
Cases:
- R v Gallagher (1986) 160 CLR 392
- R v Mickelberg (1988-89) 167 CLR 259