Poynder v Kent & Ors; Sodomacco v O'Bryan & Anor [2008] VSCA 245

Poynder v Kent & Ors; Sodomacco v O'Bryan & Anor [2008] VSCA 245 - VSCA 2008 case summary — Zoe

[48]

Subsequently, Pitkethly telephoned Kent and told him that she had received a phone call from Kostadinovic and was concerned that he intended to visit her. O'Bryan consulted Daly about this call. They considered Kostadinovic's call to Pitkethly to be a breach of a bail condition that he not contact witnesses and decided to use the opportunity to arrest Kostadinovic to put pressure on him in accordance with the agreed plan. On 5 August 1998 O'Bryan and Goss drove to Sunshine, arrested Kostadinovic for breach of bail conditions, and conveyed him to the ESD offices, where he was interviewed by O'Bryan and Goss. The conversation was covertly recorded.
When O'Bryan and Goss questioned Kostadinovic on 5 August 1998 the requirements of sections 464A and 464C of the Crimes Act 1958 were not observed. Kostadinovic made a number of admissions about his dealings with Redford. As the conversation developed O'Bryan and Goss put pressure on Kostadinovic to make a statement. They told him that the statement could not be used against him. O'Bryan spoke of a "deal" that would enable him to 'get to go home today'. He was told that if his matter went to court there would be an application for a pecuniary penalty order for a sum of $48,000. Kostadinovic asked to speak to his solicitor Bernie (Balmer) and he was permitted to do so. He told the police that he was advised to "do a no comment statement". O'Bryan said to him, "Well you go to jail for 2 to 3 years if you don't, and that's getting worse. Because well your mum is in the shit now, she is, I'm not bullshitting you. You know we've got evidence against your mum and your dad from the past anyway, when they've assisted you when you've been trafficking. That's not the way we want to go obviously. We want to see you interstate, new identity, whatever your fucken need. You give evidence once against these, well really it's only one bloke, well there's a few of them and you walk free and it sounds like a pretty good fucken good deal." O'Bryan told him further, "The idea is that you go to Adelaide where you can grow as much dope as you want in your bedroom and not get knocked off at all. Wherever you want to go. That you're out of the picture, then you're not a problem for us and you're not a problem for yourself." O'Bryan told him "we can protect you from going to jail on this occasion for these offences, in the future, you really gotta keep your nose clean". Kostadinovic asked to speak to his parents, but was not permitted to do so. By these means, which included both inducements and threats, Kostadinovic was persuaded to make a statement.
The statement was endorsed as being taken and witnessed by O'Bryan at 6.25 pm on 5 August 1998. Kostadinovic stated that he had known Redford since the death of his mother on 25 November 1979. Redford was a friend of his father and visited their home. He had assisted Kostadinovic when he had been in trouble. Kostadinovic had been selling cannabis in the Sunshine area since he was 15 and in the previous two years Redford had brought cannabis to him to be sold on a number of occasions. The last occasion on which this had occurred was "about five months ago" when Redford brought a black rubbish bag full of cannabis to his house. The cannabis was wet and had been cut into pieces. Redford told him that the proceeds would have to be split five ways including Kostadinovic. The following day he went with his father to Swan Hill. His father was pulled up by police at Serpentine for speeding. Kostadinovic stated that he paid Redford $6000 for the cannabis.

[52]

Firstly, I am now of the view that there is an adequate body of evidence to indicate that the quantity of cannabis delivered to the police store in Collingwood on the afternoon of 13 March was substantially less than that seized from the two premises that morning.

Secondly, Kostadinovic can depose that he received from Redford a bag containing five or six pounds of cannabis of a similar description to that seized from the two premises. There is material to confirm that this occurred on 13 March and there is further evidence from those to whom he sold the cannabis and who made payments to him to confirm or corroborate his account. In the circumstances I think it can fairly be said that the case against Redford and Grant is, on the materials, a strong one and accordingly there is a reasonable prospect of conviction.

Also present with other police on the two raids were a Detective Sergeant Sodomacco and Detective Senior Constable Poynder. Each of these members was present when the cannabis was seized from the two locations, and when it was viewed by a Magistrate at the Moonee Ponds Police Station and then, later that day, it was these two members who delivered the balance of the cannabis that had not been stolen to the police property store in Collingwood.

On this material alone, it could be said that the case against these two members of participation in the theft is not strong, however, Kostadinovic was told by Redford that the proceeds of the sale of the cannabis was to be divided into five shares and that he, Kostadinovic, would receive only one. In my view, at least that fact that Kostadinovic was to receive one fifth of the proceeds would be admissible and it is at least arguable that Redford's utterance would be admissible against Grant, Poynder and Sodomacco. In these circumstances, I am also of the view that there is a reasonable prospect of conviction in respect of Sodomacco and Poynder.

I understand that investigators regard it as being possible that Poynder may decide to provide some material to assist the prosecution. I could only say that if this were to occur it would be of considerable benefit to the case generally.

I have also been asked to advise as to the position of several of the lay witnesses. It appears that Kostadinovic will be seeking an indemnity for the trafficking that he discloses. In my view, it would be desirable if he were to be indemnified and I would believe that should formal application be made that such indemnity would be most likely to be forthcoming from the Director. I understand that those persons to whom Kostadinovic sold the cannabis have been charged with offences appropriate to their roles in the transaction and, in my view, it would be desirable from the point of view of the conduct of the prosecution case if those persons were to proceed to court in respect of their charges. If this were to happen, I would of course expect that the court was made aware of the assistance they have provided in this matter.

[61]

The other major criticism relates to the prosecution assertion that there was a deficit in the quantity of drugs seized from Murphy's premises and that lodged at the police property store at Collingwood. Consideration of this aspect of the evidence deals directly with all charges. The prosecution says, and it is reasonably clear, that the seized plant material was removed from the premises in orange plastic bags found at one of the growing sites. It is also clear that the plants were not taken away whole, but cut up before being put into the bags, and that the root systems and stems from the base of the plants were not taken. The evidence suggests that the roots were embedded in the growing medium, and I think it is not speculation to conclude that it was easier to cut the plants off the roots rather than try to disentangle them from the growing medium.

The real argument has been over the number of plants found and the number of orange plastic bags used. The prosecution case was that all the bags full of plant material taken from the premises were not accounted for, and that there were in fact a larger number of filled bags taken than were lodged at the property store. In support of this proposition, evidence has been called from various sources, ranging from police at the raid to employees of the electricity supply company to the owner of one of the houses. Estimates of a disparate nature were given as to the amount of cannabis at each house, and careful consideration has to be given to the resolution of the contradictions thus found. In my view, the evidence of Thomsett and Fenwick is to be preferred on the issue of the quantity of material at the house. Larchin's evidence is clearly wrong in some not unimportant aspects, and his estimate of the material at the house seems to vary consistently upwards after being spoken to by members of the Ethical Standards Division. Taking all of the matters into account, including the evidence in respect to the return of the warrants at the Moonee Ponds Magistrates' Court, I am of the view that no jury could be satisfied that there was any discrepancy in the number of bags taken from the two premises, the number produced at the Moonee Ponds Court, and the number lodged at Collingwood.

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