Miechel v The Queen [2010] VSCA 225

Miechel v The Queen [2010] VSCA 225 - VSCA 2010 case summary — Zoe

[78]

In September 2003 I was in charge of a team of investigators running an investigation code named Operation Gallop which involved the targeting of large-scale drug manufacturers/traffickers in the Melbourne area.

As a result of information received on 27 November 2003 this operation entered the arrest phase at which time numerous search warrants were executed at target addresses and arrests made.

This phase of the operation took many man hours and lasted throughout the night and into the following day. I was co-ordinating many of the search warrants and crews executing same. I attended at a number of target addresses during this phase of the operation however without access to my official diaries from this period I am unable to recall exact time and addresses etc.

I do recall attending at the main target address in Oakleigh at some stage to assist the crew that was executing the search warrant at that address, which from memory was Detective Sergeant Graham Sayce's crew.

At some point in time during this phase of the operation I recall the bag/s of drugs located at the rear of the main target address being brought into the main offices of the MDID. I recall there were a large number of staff in the office at the time and the large amount of drugs and the bright colours of the tablets were of great interest to the staff, who I observed handling these items. I was aware that the bag/s of drugs were located over the rear fence of the main targeted address, an area where I along with other members of my team including David Miechel spent many hours conducting covert surveillance on the target premises.

I recall the drugs being spread out onto a table opposite my crew's cluster of desks. I certainly handled these bag/s and drugs as a matter of interest at the time. I can further recall a large amount of seized property and the drugs being taken into the mess room of the MDID where all staff ate their meals on a daily basis.

I had no further dealings with the drugs or bag/s after this time. It was not always required to bring evidence such as this back into the office or into the mess room for that matter however on operations such as this one where many matters were required to be done unplanned evidence would be brought back to the office.

At the time of the seizure of the bags and drugs from the rear of the target address, they would have been conveyed back to the office in a vehicle most likely used by David Miechel. They were brought into the office and handled by members who had previously been seated at David Miechel's desk. They were placed onto desks and at one point onto the ground approximately two metres from where David Miechel sat, walked and worked on a daily basis. They were placed onto the mess room table, a table that was used by David Miechel to consume his meals on a daily basis. Most staff were not wearing gloves when handling these exhibits at the office.

From my knowledge of DNA and the potential for cross-examination, there were many occasions that could have caused cross-contamination of these evidentiary items with David Miechel's DNA.

[85]

In R v AHK[8] the President (with whose reasons Brooking JA agreed; O'Bryan AJA agreeing, with separate reasons) noted that there had been some difference in judicial opinion as to the appropriate test to be adopted when assessing suggested fresh evidence, but in common with the court in R v Nguyen and Tran, adopted the test as stated by Mason and Deane JJ in Gallagher v R, namely, that the court will intervene where there is "a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial". Consistent with that authority, the President held that in approaching that decision the appellate court should be guided by three general considerations. First, whether the evidence truly constituted fresh evidence; secondly, whether the evidence was apparently credible or plausible or was at least capable of belief; thirdly, whether the evidence had sufficient relevance and cogency to justify appellate intervention.

The President placed emphasis on the overriding duty of the court, in observing that:

[W]here there has been no wrong decision on any question of law or other irregularity at the trial and the verdict of the jury is not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court can only allow the appeal if it considers that a miscarriage of justice has occurred by reason of the fact that the fresh evidence was not adduced at the trial. The fundamental question for the Court in each such case is whether it perceives that a miscarriage of justice has occurred.

Again, and after discussing the different statements of courts as to the test to be adopted, the President returned to this bedrock proposition:

However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred. An appellate court will always receive "fresh evidence" if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.[9]

[91]

A black beanie was found in a black BMW which belonged to Hodson and which contained a number of items behind a false partition including a firearm, the beanie and a false number plate. The DNA profile from the beanie could not exclude Hodson.
A large torch was found in a garden bed between two school buildings. Hodson could be excluded from the DNA profile found on it but it was not possible to exclude the applicant or two police officers.
As mentioned earlier, a black beanie and a pair of gloves were found outside 180 Huntingdale Road, Oakleigh.[14] A partial DNA profile was obtained from the outside of the beanie, which positively excluded the applicant and Hodson. Three DNA profiles were obtained from the inside, from which Hodson could be excluded but the applicant could not.
Thirteen hairs were found inside the black beanie. Eleven produced no DNA and the twelfth came from neither the applicant nor Hodson. The remaining hair was sent for mitochondrial analysis, which produced a match with the applicant, as already mentioned.
At least three DNA profiles were obtained from the gloves, from which Hodson could be excluded but the applicant could not.
From the three cigarette butts found in the school grounds, a DNA profile was obtained which matched Hodson's.
A red Holden bag was found inside the black and blue bag found in Windebank's back yard, near the fence line with 23 Dublin Street. DNA profiles from at least three people, including one male, were obtained. There was no clear indication whether or not Hodson and the applicant were contributors.
From the fabric handles of the floral bag found in Windebank's back yard, DNA profiles were obtained from at least three people, including at least one male. There was no clear indication that Hodson was a contributor but the applicant, Haynes and others could not be excluded.
A 'So-Fresh' bag found in the floral bag provided DNA profiles from four people including at least one male. The applicant could not be excluded.
The red and white striped bag taken from 23 Dublin Street provided DNA profiles from at least three people, including at least one male. There was no clear indication that the applicant was a contributor. Hodson and O'Reilly could be excluded.

At a glance

Court

Decision date

Before

Source

Judgment (214 paragraphs)

Miechel v The Queen [2010] VSCA 225 (9 September 2010)

Parties

Legislation Cited (1)

Cases Cited (8)