Citation: R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137
Court: Supreme Court of NSW
Date: 29 August 2017
Judge: N Adams J
Background
Two accused stood trial for the murder of a man shot dead at a Wollongong nightclub in the early hours of 8 September 2007. The Crown alleged that one accused arranged for the other to carry out the shooting. Both had been convicted at a 2014 trial, but the Court of Criminal Appeal ordered a new trial in 2016.
During the retrial, the Crown sought to tender statements made in September 2012 by the first accused's then-estranged wife, who died on 16 September 2012. Her statements described events on the night before the murder, including a dinner attended by both accused, a visit by one accused to the couple's apartment, and a phone call received by her husband in the early hours of 8 September 2007 about a shooting at the nightclub.
The proposed evidence was significant because the only phone call to the first accused around that time, according to the tendered call charge records, came from a mobile registered to the second accused. The Crown's accomplice witness had already given evidence that he used that phone to report the shooting and request payment. The deceased wife's account would, if admitted, corroborate that testimony.
Legal Issues
- Whether the deceased wife's representations were admissible under section 65(2)(d) of the Evidence Act 1995 (NSW) as statements made against the interest of the maker.
- Whether those representations were admissible under section 65(2)(c) as statements made in circumstances that make it highly probable they are reliable.
- Whether, even if admissible under section 65, the evidence should be excluded under section 137 as unfairly prejudicial.
Decision
Issue 1: Against interest under section 65(2)(d)
Adams J held that the representations themselves were not directly against the deceased's interests (at [55]-[58]). The three examples in section 65(7) each involve representations that are inherently damaging to the maker, such as admissions of criminal conduct or civil liability. By contrast, none of the deceased's specific representations, describing who attended a dinner, who visited her apartment, or that her husband received a phone call, were themselves against her interests (at [57]). It was only the act of cooperating with police generally that exposed her to potential harm from her estranged husband (at [58]). The court was not satisfied that the statutory language extends to representations that are benign on their face but whose disclosure places the maker at personal risk (at [60]-[61]).
Issue 2: Highly probable reliability under section 65(2)(c)
Adams J held that the Crown had not established the "highly probable" threshold required by section 65(2)(c) (at [74]-[75]). Three factors weighed against that conclusion. First, the statements were made more than five years after the events they described, which is a considerable delay in the context of such a demanding test (at [66]). Second, the deceased changed her account between the two September 2012 statements in material respects, including whether the Crown's accomplice witness attended the dinner and whether anyone visited the apartment that night (at [67]). Third, while the court accepted that the deceased was not suffering delusions or mental illness when she made the statements, the marked deterioration in her emotional state in the days following their making introduced uncertainty about the overall circumstances (at [68]-[69]). The court acknowledged that the deceased made the statements at personal risk, which carried some force, but found that factor insufficient on its own to satisfy the high threshold when weighed against delay and inconsistency (at [71]).
Issue 3: Section 137 exclusion
Having found the evidence inadmissible under section 65, the court did not need to determine the section 137 question.
Orders Made
- The hearsay evidence of Emily Popovic is inadmissible.
Key Takeaways
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Under section 65(2)(d) of the Evidence Act 1995 (NSW), the relevant inquiry focuses on whether the representations themselves are against the maker's interests, not merely whether the act of making statements to police exposed the maker to personal risk (at [56]-[58]).
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The three deemed examples in section 65(7) each involve representations that are directly harmful to the maker's legal position or reputation. Adams J confirmed that representations benign on their face do not become "against interest" simply because cooperating with police creates danger for the maker (at [57]-[60]).
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Satisfying the "highly probable" reliability test in section 65(2)(c) is an onerous standard. Significant delay between the events and the making of statements, combined with changes in the content of those statements, can defeat that standard even where the maker faced personal risk in coming forward (at [66]-[71]).
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Following Sio v The Queen [2016] HCA 32, when assessing the circumstances of a representation under section 65(2)(c), the focus is on objective circumstances that affirmatively warrant confidence in reliability, not merely on the absence of circumstances suggesting unreliability (at [70]).
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A person's severe emotional disturbance and paranoia in the days after making statements does not automatically render those statements unreliable, but the overall constellation of circumstances, including timing, consistency, and the maker's state at the time of making, must collectively satisfy the applicable statutory threshold (at [68]-[69], [73]-[74]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 59, 65, 137
Cases
- Conway (2000) 98 FCR 204; [2000] FCA 461
- Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
- R v Suteski (2002) 56 NSWLR 182
- R v Williams (2000) 119 A Crim R 490
- Sio v The Queen (2016) 90 ALJR 963; [2016] HCA 32