Citation: Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
Court: Court of Criminal Appeal, New South Wales
Date: 21 September 2016
Judge(s): Beazley P; R A Hulme J; Adamson J
Background
On 8 September 2007, a man was fatally shot outside a Wollongong nightclub. Four men were convicted of his murder by jury on 24 May 2014, approximately seven years after the shooting. The Crown alleged each played a distinct role in a joint criminal enterprise: one as the gunman, one as the organiser, one as the supplier of the firearm, and one as a lookout at the venue on the night.
The Crown's case rested heavily on two principal witnesses, both of whom had been granted indemnities in exchange for their testimony. The credibility of those witnesses was therefore a central battleground at trial.
All four applicants sought leave to appeal their convictions. One also sought leave to appeal against sentence.
Legal Issues
- Whether the trial judge was required to give a "Shepherd direction" (requiring the jury to be satisfied beyond reasonable doubt of an intermediate fact, namely the supply of the firearm, before relying on it to infer guilt)
- Whether the trial judge's warnings about the credibility and reliability of the indemnified Crown witnesses were adequate under the Evidence Act 1995 (NSW), s 165
- Whether the trial judge misdirected the jury by giving an erroneous hearsay warning in relation to a police officer's note
- Whether the trial judge erred by inviting the jury to consider why one of the Crown witnesses would have a reason to lie
- Whether the summing-up was so imbalanced overall as to deny the applicants a fair trial
- Whether the verdicts against two of the applicants were unreasonable and unsupported by the evidence
Decision
The Shepherd direction (firearm supply): The Court found no error in the trial judge's refusal to give a Shepherd direction requiring the jury to be satisfied beyond reasonable doubt that one applicant supplied the firearm before treating that fact as a basis for inferring guilt. The directions on the burden and standard of proof were sufficient, and the Crown case had specifically highlighted the gun supply as a central plank.
The hearsay warning and unreliability warnings: The trial judge gave the jury a hearsay warning about a detective's contemporaneous note when the hearsay rule did not in fact apply, because the note was relevant for a non-hearsay purpose. That error was damaging in itself because it undermined the defence challenge to one witness's credibility. The s 165 unreliability warnings that were given were then drained of substantial force by the separate error identified below.
Inviting the jury to consider why a witness would lie: The trial judge invited the jury to consider whether one of the Crown witnesses had a reason to lie. The Court held this was an error. It carried the implicit message that, if the jury could identify no reason for the witness to fabricate, they ought to accept his account. That framing cut against the statutory warnings about unreliability and effectively undermined them.
Overall imbalance in the summing-up: The Court found a consistent pattern throughout the summing-up in which the trial judge raised ways the jury might assess evidence favourably to the Crown that had not been advanced by the prosecutor in closing address. The Crown conceded at the appeal hearing that no comparable assistance had been extended to the defence. Because defence counsel had no opportunity to respond to these Crown-favourable suggestions, the cumulative effect was a miscarriage of justice. Two applicants (the organiser and the alleged gunman) were granted retrials. For the remaining two (the alleged lookout and the alleged firearm supplier), the Court went further and found the guilty verdicts were unreasonable, entering acquittals.
Orders Made
- Leave to appeal granted for all four applicants
- Appeals allowed for all four applicants
- Convictions quashed for all four applicants
- Retrials ordered for two applicants (Popovic and Koloamatangi)
- Verdicts of acquittal entered for two applicants (Hristovski and Bubanja)
- Sentence appeal by Bubanja did not require determination in light of the acquittal
Key Takeaways
- A Shepherd direction is not required simply because an intermediate fact forms part of the circumstantial case against an accused; where the burden and standard of proof directions are otherwise adequate and the Crown has prominently relied on that fact, no additional direction is mandated.
- Giving a hearsay warning about evidence that is not in fact subject to the hearsay rule is a misdirection, particularly where it has the practical effect of undermining a challenge to a Crown witness's credibility.
- Directing a jury to consider whether a witness had a reason to lie creates a risk of reversing the proper framework for assessing unreliable evidence; it may convey that an absence of identifiable motive to lie is itself a reason to accept disputed testimony.
- The Court of Criminal Appeal confirmed that cumulative errors in a summing-up may together constitute a miscarriage of justice even where individual passages, taken in isolation, might not be decisive.
- Where a trial judge raises Crown-favourable considerations that were not put by the prosecutor in closing address, fairness requires that equivalent assistance be extended to the defence, or that care be taken to ensure defence counsel has a meaningful opportunity to respond.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), ss 60, 165
Cases:
- Shepherd v The Queen (1990) 170 CLR 573
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199
- R v Davidson [2009] NSWCCA 150; 75 NSWLR 150
- Adam v The Queen [2001] HCA 57; 207 CLR 96
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Palmer v The Queen (1998) 193 CLR 1
- Cesan v The Queen [2008] HCA 52; 236 CLR 358
- R v Birks (1990) 19 NSWLR 677
- R v Jovanovic (1997) 42 NSWLR 520
- R v Masters (1992) 26 NSWLR 450
- Kanaan v R [2006] NSWCCA 109
- Huynh v The Queen [2013] HCA 6; 87 ALJR 434