AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 4 August 2017

R v Popovic; R v Koloamatangi (No 2)

[2017] NSWSC 1022

Homicide
CRIMINAL LAW MURDER TRIAL HEARSAY RULE

Citation: R v Popovic; R v Koloamatangi (No 2) [2017] NSWSC 1022
Court: Supreme Court of New South Wales
Date: 4 August 2017
Judge(s): N Adams J

Background

Two accused, Popovic and Koloamatangi, faced retrial on a charge of murdering a man at a Wollongong nightclub in the early hours of 8 September 2007. The Crown's case was that Popovic arranged the killing and Koloamatangi carried it out, against a backdrop of a long-running dispute between the deceased and another family.

Both accused had previously been convicted of the murder in 2014 following a joint trial with two co-accused. The Court of Criminal Appeal quashed all four convictions in September 2016: see Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202. The two co-accused were acquitted outright; new trials were ordered for Popovic and Koloamatangi.

The quashing of the co-accused's convictions created a significant evidentiary complication for the retrial. At the original trial, evidence had been admitted against all four accused on the basis of joint criminal enterprise. With that framework removed, the Crown had to establish the direct admissibility of each piece of evidence against the two remaining accused. Defence counsel sought pre-trial rulings on several contested items before the jury was empanelled.

  • Whether evidence of a confrontational visit to the deceased's home in May 2006 was admissible against the two accused.
  • Whether CCTV footage of a meeting at the North Wollongong Hotel on 31 August 2007 was admissible.
  • Whether additional portions of the deceased's wife's statement, not tendered at the first trial, were admissible, including hearsay statements attributed to Popovic.
  • Whether evidence of an altercation between the deceased and a co-accused at Splashes Nightclub on the night of the murder was admissible.
  • Whether hearsay evidence of words overheard during that nightclub altercation was admissible.

Decision

May 2006 confrontation: Adams J ruled this evidence inadmissible against the two accused. Because the co-accused at the centre of that incident had been acquitted, the Crown could not establish any direct connection linking Popovic or Koloamatangi to those events. The probative value to the present accused was insufficient to justify its admission.

North Wollongong Hotel CCTV: The footage, showing a meeting between the deceased and members of the Bubanja family on 31 August 2007, was ruled admissible. Its relevance to establishing the ongoing nature of the dispute was accepted, and no basis for exclusion was established.

Mrs Sekuljica's additional statement evidence: Adams J permitted the Crown to lead the additional portions of the deceased's wife's statement that were not called at the first trial, with two exceptions. Hearsay references to Popovic being present in a car outside the Hotel, and to a "heated argument" at the Hotel, were not admitted at that stage. The Crown was granted leave to make a further application once Mrs Sekuljica was available to give evidence on a voir dire.

Nightclub altercation and overheard words: Witness observations of the physical altercation between the deceased and a co-accused at Splashes Nightclub on the night of the shooting were admitted as directly relevant to the events immediately preceding the murder. However, hearsay evidence of words reportedly overheard during the argument, to the effect that there was a "problem which needed to be fixed," was excluded. The speakers were identified and available to be called; no exception to the hearsay rule under the Evidence Act 1995 (NSW) was established, and the Crown had conceded it was tendering those words for a hearsay purpose.

Orders Made

  • The Crown is not permitted to rely upon evidence of the events in May 2006.
  • The Crown is permitted to rely upon the CCTV footage at the North Wollongong Hotel on 31 August 2007.
  • The Crown is permitted to rely upon the parts of Mrs Sekuljica's statement not called at the first trial, except for the hearsay evidence that Popovic was present in a car outside the North Wollongong Hotel and that there was a "heated argument" at the Hotel. The Crown may make a further application to admit this evidence once Mrs Sekuljica is at court and available to give evidence on a voir dire.
  • The Crown is permitted to rely upon the observations made of the deceased and a co-accused at Splashes Nightclub on 8 September 2007 in the hours before the shooting.
  • The Crown is not permitted to rely upon any hearsay evidence as to what was overheard by witnesses during that argument.

Key Takeaways

  • Where joint criminal enterprise convictions are quashed and only some accused face retrial, evidence that was previously admissible against all accused under complicity principles must be re-assessed for direct admissibility against the remaining accused.
  • The Supreme Court confirmed that CCTV footage and direct witness observations of disputed interactions remained admissible to establish the background and context of an alleged murder, even in a retrial following quashed convictions.
  • Hearsay evidence is inadmissible where it is tendered for a hearsay purpose and no applicable exception under the Evidence Act 1995 (NSW) is identified, particularly where the makers of the statements are known and available to be called.
  • A further application for admission of partially excluded statement evidence was preserved, reflecting the court's recognition that admissibility questions are sometimes better resolved once a witness is present and can give evidence on a voir dire.
  • Pre-trial evidentiary rulings of this kind, while ordinarily better addressed during trial, may be required before jury empanelment where all parties agree and the Crown case structure makes the issues live from the outset.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 59, 65, 67, 135, 137

Cases:
- Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
- IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14
- Papakosmas v The Queen (1999) 196 CLR 297
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
- Colby v The Queen [1999] NSWCCA 261