R v Predragovic[2023] QCA 123

1. [1]
   MULLINS P:  I agree with Boddice JA.
2. [2]
   MORRISON JA:  I agree with the reasons of Boddice JA, and the orders his Honour proposes.
3. [3]
   BODDICE JA:  On 5 September 2022, the Attorney-General referred to this Court, pursuant to section 672A of the Criminal Code (Qld) (“the Code”), the appellant’s convictions in 1992 of one count of unlawful possession of a motor vehicle with a circumstance of aggravation (count 1); two counts of official corruption (counts 2 and 3); and two counts of unlawful possession of a motor vehicle (counts 4 and 5).
4. [4]
   The issue for determination under the reference is whether there has been a miscarriage of justice.

Background

5. [5]
   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.
6. [6]
   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]
7. [7]
   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.
8. [8]
   By letter dated 18 December 2020, the appellant petitioned the Governor of Queensland for a pardon in respect of his convictions.^[2]
9. [9]
   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

10. [10]
    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.
11. [11]
    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.
12. [12]
    The purported indemnity was subsequently found to have no basis in law.^[3]

Commission of Inquiry

13. [13]
    The Commission of Inquiry into Operation Trident found that:

    1. (a)
       The Operation was poorly conceived, incompetently executed and tainted from beginning to end by a variety of deceitful, dishonest and corrupt practices;^[4]
    2. (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;
    3. (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
    4. (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.
14. [14]
    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).

15. [15]
    Relevantly to the appellant’s offending, the Commission further found that after a briefing with the Criminal Justice Commission on 20 December 1989, the level of police supervised car theft feverishly increased with another 49 vehicles to be stolen unnecessarily, and that:

“Those few receivers against whom there was evidence prior to 20 December had all, except one, been introduced by Riesenweber.  So too were several more after 20 December…”

16. [16]
    Finally, the Commission of Inquiry found that so-called contemporaneous records were modified to match later prepared statements, and that there had been an attempt “to present to those accused and their representatives, to the courts, to the prosecuting authorities and to juries, the picture that the evidence which was given was contained in a contemporaneous record made at the time.  This picture was a totally misleading one.”^[7]  Whilst Riesenweber kept running sheets, these running sheets were the subject of correction and notation by Carmont, and that the suspected reason why Carmont made the changes and destroyed all trace of the originals “was to enable the relevant witnesses to assert in court that their modified running sheets were in fact contemporaneous notes, and then to refer to the version which by then contained additional material but which had been added to, and conformed with, the statements made months after the event.”^[8]

Reference

17. [17]
    The appellant’s application for a pardon is governed by sections 33 and 36 of the Constitution of Queensland 2001 (Qld) and section 18 and chapter 67 of the Code.  A pardon granted by the Governor has “the effect of discharging the convicted person from the consequences of the conviction”.^[9]  It is not, however, the equivalent of an acquittal, as the conviction is not eliminated itself.^[10]
18. [18]
    Upon the Governor receiving a petition, section 672A of the Code enables the whole case to be referred to the Court of Appeal “so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal”.^[11]
19. [19]
    A referral of the whole case, pursuant to section 672A, requires that the case “be heard and determined by the Court as in the case of an appeal by a person convicted”.  Accordingly, the appellant must establish a ground of appeal contained in section 668E(1) of the Code.
20. [20]
    The words “the whole case” in section 672A of the Code embrace the whole of the evidence properly admissible, whether “new”, “fresh” or previously adduced in the case against and the case for the appellant.^[12]
21. [21]
    In R v Daley; Ex parte Attorney-General (Qld),^[13] Keane JA said:

“This Court has held that the issue involved in determining a reference to it under Section 672A of the Criminal Code is the same as that posed by Section 668E(1).  The issue is whether there has been a miscarriage of justice.”

22. [22]
    A miscarriage of justice will be established if there is a “significant possibility” that had the whole case (including the new, fresh or further evidence), been adduced at the appellant’s trial, the jury acting reasonably would have acquitted the appellant.^[14]
23. [23]
    Under section 668E(1) of the Code, any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice.^[15]
24. [24]
    The appellant contends there has been a miscarriage of justice, because the Commission of Inquiry into Operation Trident disclosed fresh evidence, namely, facts which were deleterious to the credit of the two central witnesses, Riesenweber and Carmont, and had that evidence been available at trial, their evidence would have been excluded on the grounds of public policy.

Appellant’s trial

25. [25]
    The central issue at the appellant’s trial was whether the appellant knew that motor vehicles established to be in his possession were stolen.  The evidence relied upon to establish the appellant’s knowledge principally came from the testimony of Carmont and Riesenweber.  The appellant contended that Carmont and Riesenweber had fabricated incriminating statements against him, and Riesenweber had deceived the appellant into believing he was dealing with legitimate cars.
26. [26]
    Count 1^[16] alleged that the appellant had unlawful possession of a green Ford Fairlane, registration number 870-PMZ, between 30 October 1989 and 31 January 1990, which had been stolen on 19 October 1989 and stored on the appellant’s behalf.  Relevantly, Carmont gave evidence that he had seen that vehicle in the appellant’s possession on various occasions in January 1990, and that the appellant had made incriminating statements in relation to that vehicle.  In doing so, Carmont refreshed his memory from running sheets alleged to have been made on 25 January and 5 February 1990.
27. [27]
    Counts 2 and 3^[17] alleged the appellant gave money to two employees of the Public Service of Queensland for the issue of a driver’s licence to the appellant in the name of “Jack Govic”, without complying with the prerequisites for a licence.  The Crown case was that Riesenweber approached the appellant, suggesting he could obtain a driver’s licence in that name, without having to undertake a written test as required by the regulations, and that Riesenweber knew some police officers who could arrange this, but that one of the officers would require the appellant to repair his private vehicle in exchange.  It was further alleged that Riesenweber arranged for two police officers to issue the licence to the appellant, neither of whom were known to the appellant.
28. [28]
    Count 4^[18] alleged the appellant had possession of a silver Ford Fairmont Ghia, registration number 132-ACL, which had been stolen on 9 February 1990 in the presence of Riesenweber and Carmont, with the engine and chassis numbers, along with the compliance plates subsequently being changed by Carmont and another.  It was alleged the vehicle came into the appellant’s possession on the same day, after he paid money to the thief.  Relevantly, Carmont gave evidence of statements allegedly made by the appellant during that exchange, again, referring to a running sheet said to have been made in the course of the Operation.  It was further alleged that vehicle obtained a new registration number, 665-ASL, and on 26 February 1990 was acquired by a motor vehicle operator from the appellant.
29. [29]
    Count 5^[19] alleged the appellant had possession of a green Ford Fairlane, registration number 309-PWJ, which had been stolen on 23 February 1990, with Carmont and another changing the engine and chassis numbers and compliance plates that day.  Relevantly, Carmont gave evidence of a conversation with the appellant, before the appellant and two others left with the motor vehicle.  It was further alleged the Department of Transport issued a new registration number for that vehicle, 175-ATC, on 22 February 1990.^[20]
30. [30]
    At the commencement of the appellant’s trial, defence counsel objected to the admission of the whole of the evidence of the Crown witnesses who had engaged in such criminal conduct, in purported reliance upon the indemnity.  In essence, the objection was that the evidence to be led against the appellant by each of those witnesses had been unlawfully obtained in the prosecution of an illegal police operation, namely, Operation Trident.
31. [31]
    Defence counsel submitted that Carmont, who had operated undercover pretending to be a mechanic working on stolen cars, had committed many offences in the course of his activities in the Operation, and that in doing so had met the appellant, gaining evidence against him by allegedly witnessing the commission of offences by him, and by taping/recording conversations which were allegedly incriminating.
32. [32]
    Defence counsel further submitted that in the course of that illegal operation, Riesenweber assisted and counselled the appellant to commit counts 2 and 3, by arranging for him to meet with the two employees of the public service, and by arranging for them to cause the false driver’s licence to issue to the appellant.  The evidence gained against the appellant included the taping of a conversation with the appellant, in which the appellant allegedly offered the bribes to those public service employees.
33. [33]
    Defence counsel submitted that evidence to be led from other witnesses in respect of those offences was tainted by the unlawfulness of Riesenweber’s assistance and counselling of the commission of those offences, as Riesenweber was at all material times a police agent who had invited and encouraged the appellant to commit those offences.
34. [34]
    As part of this application, defence counsel asserted that once Riesenweber had infiltrated the alleged thieves, Carmont was introduced and thereafter authorised to commit offences with Riesenweber and the thieves, with some 68 vehicles being stolen with the assistance of police, some of which were sold by the thieves with the assistance of Riesenweber and Carmont.  Many cars were stripped down with Riesenweber and Carmont’s assistance at a facility known as the “stripping shed” located at Riesenweber’s residence and maintained by him.
35. [35]
    The application to exclude the evidence was dismissed by the trial judge on the basis that the stated particulars relied upon by defence, if proved, did not clearly disclose a basis for the exercise of a relevant discretion to exclude that evidence.
36. [36]
    Following that ruling and in the presence of the jury, the appellant changed his plea on counts 2 and 3 to guilty.  The trial judge thereafter refused an application by defence counsel to discharge the jury.
37. [37]
    At the conclusion of the Crown case, defence counsel again applied to exclude the evidence on the basis that it had been illegally or improperly obtained.  That application was also refused by the trial judge on the basis that it had not been established that Riesenweber and Carmont had acted illegally or improperly and, further, even if it could be concluded that there was illegality or impropriety, it was not of such a nature that the evidence should be ruled inadmissible in the exercise of the judge’s discretion.

Consideration

38. [38]
    The Attorney-General properly concedes that the evidence uncovered by the Commission of Inquiry constitutes new or fresh evidence which, had it been available at the appellant’s trial, would have been materially relevant.
39. [39]
    The Attorney-General also concedes this material establishes a miscarriage of justice in respect of counts 1, 4 and 5, given there is a significant possibility that a jury, if it had been aware of the fresh evidence, would have acquitted the appellant of these counts.
40. [40]
    The relevance of that material is obvious.  It completely undermined the accuracy of the evidence given by the two central witnesses, Riesenweber and Carmont, such that a jury could not have accepted their evidence as reliable and credible.
41. [41]
    The material had a further relevance.  If the trial judge had that material, at the time of consideration of the applications to exclude their evidence, a ruling would undoubtedly have been made excluding the evidence, on grounds of public policy.
42. [42]
    Even if the evidence had not been excluded, there is a significant possibility the jury would have acquitted the appellant of each of the counts, having regard to the unreliability of Riesenweber and Carmont.
43. [43]
    Having regard to the relevance of that evidence, a consideration of the whole of the case supports a conclusion that there was a miscarriage of justice at the appellant’s trial for counts 1, 4 and 5.
44. [44]
    The Attorney-General submits that counts 2 and 3 fell into a different category, as they were the subject of pleas of guilty during the course of the trial and the appellant has not adduced evidence within any of the three categories in Borsa v The Queen^[21] in order to set aside a plea of guilty, namely: that the appellant did not understand the nature of the counts or did not intend to admit guilt; that, upon the admitted facts, the appellant could not in law have been guilty of the offences; or that the guilty plea was obtained by improper inducement, fraud or intimation and the like.
45. [45]
    Whilst it is correct that the entry of pleas of guilty renders those counts different, a consideration of the circumstances of the entry of those pleas supports a conclusion that they were only entered after, and as a consequence of, the unsuccessful application to exclude the evidence.
46. [46]
    If, as ought to have been the case having regard to the new and fresh evidence, that application had been successful, pleas of guilty would not have been entered for those counts.
47. [47]
    Further, the conduct the subject of those counts, as particularised by the Crown, was conduct engaged in by the appellant at the express encouragement of Riesenweber.
48. [48]
    Those two factors support a conclusion that, notwithstanding those pleas of guilty, there was a miscarriage of justice in respect of counts 2 and 3.
49. [49]
    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

50. [50]
    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.
51. [51]
    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

52. [52]
    I would order:

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.