Citation: R v Popovic, Miras; R v Burke, Christopher [2014] NSWDC 69
Court: District Court of New South Wales
Date: 21 May 2014
Judge(s): GD Woods QC DCJ
Background
Two accused faced charges arising from a conspiracy to import drugs. A key prosecution witness, Drago Popovic, had himself been charged in connection with the same conspiracy before ultimately pleading guilty. During the period he was still an accused, police interviewed him extensively over many months with a view to him becoming a cooperating "rollover" witness.
The interviewing process drew significant criticism. The primary AFP interviewing officer conceded in cross-examination that elements of the interrogation were improper or carried the potential for impropriety. These included suggesting answers to Popovic, disclosing perceived weaknesses in the Crown's case against one of the accused, implying a link between the quality of Popovic's evidence and any sentencing discount he might receive, and failing to record all conversations or retain documents shown to him.
Both accused applied to have critical parts of Popovic's evidence excluded. The Crown opposed the applications.
Legal Issues
- Whether Popovic's evidence was obtained improperly or in contravention of an Australian law within the meaning of s 138(1) of the Evidence Act 1995 (NSW)
- Whether, under the s 138 balancing test, the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained improperly
- Whether s 137 of the Evidence Act provided a separate and independent basis for excluding the evidence
Decision
Issue 1: Impropriety under s 138
The court found impropriety was plain on both limbs of s 138(1). The interviewing police had no clear guidelines for managing the complex situation they faced: a person simultaneously an accused and a potential Crown witness. The court identified six categories of procedural deficiency, including failures to record conversations, leading the witness, disclosing case weaknesses to him, implying a link between his evidence and sentencing benefits, failing to retain documents, and insufficient vigilance about the possibility Popovic was manipulating the process.
Issue 2: The s 138 balancing exercise
Despite finding impropriety, the court concluded the evidence should nevertheless be admitted. The case was complex, the telephone intercept evidence was extensive but often ambiguous, and Popovic's insider knowledge as a direct participant in the alleged conspiracy carried potential importance. Applying the factors in s 138(3) and the principles from Bunning v Cross, the court was satisfied the desirability of placing the evidence before the jury outweighed the undesirability of admitting improperly obtained evidence.
The court was careful to note that admitting the evidence did not mean the criticisms of it lacked merit. Defence counsel retained full opportunity to address the jury on the circumstances in which the evidence was obtained, and the court observed that an outcome favourable to the prosecution was by no means assured.
Issue 3: Section 137
The court rejected the separate s 137 application. Applying the approach confirmed in Shamouil v R [2006] NSWCCA 192, the arguments ultimately went to Popovic's reliability and credibility rather than to probative value in the relevant sense. The court saw no basis to remove from the jury the opportunity to evaluate Popovic's believability, particularly where his evidence in chief was capable of being regarded as consistent with the Crown case.
Orders Made
- Application to exclude certain evidence refused
Key Takeaways
- The District Court found clear impropriety under s 138(1) of the Evidence Act 1995 (NSW) where interviewing police disclosed case weaknesses to a potential cooperating witness, led his answers, implied a link between his evidence and sentencing benefits, and failed to record all conversations.
- Impropriety in obtaining evidence does not automatically lead to exclusion: the court must still conduct the balancing exercise under s 138(3), weighing the desirability of admitting the evidence against the undesirability of condoning the manner in which it was obtained.
- Under s 137, arguments directed primarily at a witness's credibility or reliability rather than at probative value do not, on the Shamouil approach, justify withdrawing the evidence from the jury.
- A finding that improperly obtained evidence is admissible does not insulate that evidence from vigorous challenge before the jury; the circumstances of its obtaining remain available as a basis for submissions on weight.
- The court stated an intention to forward its judgment to the Director of Public Prosecutions and the Australian Federal Police, urging the preparation of a formal protocol for police interrogating suspects who may become immunised or cooperating witnesses, noting no such guidance existed at the time.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Bunning v Cross [1978] 141 CLR 854
- Shamouil v R [2006] NSWCCA 192