Citation: R v Popovic; R v Koloamatangi (No 5) [2017] NSWSC 1200
Court: Supreme Court of New South Wales
Date: 7 September 2017
Judge(s): N Adams J
Background
Two accused, referred to here as the first accused and the second 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 the first accused arranged for the second accused to carry out the shooting. Both had previously been convicted of the same offence at a 2014 trial, but the Court of Criminal Appeal ordered a new trial in September 2016. Both were ultimately convicted again on 5 September 2017.
This judgment records the court's reasons for two evidentiary rulings made during the retrial. The first concerned a statement made by a former co-accused (acquitted on appeal) in the presence of both accused, as recounted by a Crown witness known as Peter Taylor. The second concerned telephone call records involving that former co-accused, which the Crown sought to include in an exhibit.
The former co-accused had been acquitted by the Court of Criminal Appeal, and defence counsel argued that admitting evidence of his words and telephone activity risked prejudicing the jury by inviting impermissible speculation about his involvement or about criminal conduct more broadly.
Legal Issues
- Whether Peter Taylor's evidence that the former co-accused called the deceased a "dog" and said he was speaking to police, in the presence of both accused, was relevant under s 55 of the Evidence Act 1995 (NSW)
- Whether that evidence was inadmissible hearsay under s 59 of the Evidence Act
- Whether the evidence should be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
- Whether telephone records of calls to and from the former co-accused on 7 and 8 September 2007 should be excluded from the Crown's schedule of calls (Exhibit O)
Decision
Peter Taylor's Evidence
Adams J found that the evidence of what was said at the Woolworths car park meeting was relevant under s 55. A jury could rationally conclude that the first accused's presence when a member of the Bubanja family expressed hostility toward the deceased tended to prove the existence of an ongoing dispute between the first accused and the deceased at the time of the murder. Because the evidence was not tendered for the truth of what was said (but rather to establish context and motive), the hearsay rule in s 59 did not apply.
On the s 137 question, Adams J accepted that the probative value of the evidence was not significant, but was not satisfied that the jury would use it in a way logically disconnected from the issues in the case. To minimise any residual prejudice, the court limited Mr Taylor's evidence to the description of the deceased as a "dog," excluding the reference to speaking to police. The word "dog," though carrying particular connotations in criminal contexts, is not exclusively used in that sense, and the jury could properly treat it as evidence of one party's hostility toward the deceased in the presence of the first accused.
Telephone Records
Adams J ruled that the telephone calls between the first accused and the former co-accused on 7 and 8 September 2007 should remain in the schedule. The calls were relevant to the Crown's case on motive and the circumstances surrounding the night of the murder. The court reviewed the Court of Criminal Appeal's findings about the former co-accused's telephone activity and was not satisfied that including those calls in the exhibit conflicted with anything the CCA had determined.
Any risk that the jury might impermissibly speculate about the former co-accused's criminal involvement was addressed by a direction during summing up, making clear that it was no part of the Crown case that he bore criminal responsibility for the murder. The court also noted that evidence before the jury showed the former co-accused had reacted with grief after the shooting, referring to the deceased by an affectionate Serbian term meaning godfather.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 55 of the Evidence Act 1995 (NSW), the threshold for admissibility is whether evidence could rationally affect the probability of a fact in issue; the court confirmed this test was satisfied by evidence placing an accused in the presence of hostile statements about a murder victim in the lead-up to the killing.
- Evidence of words spoken in the accused's presence was not inadmissible hearsay under s 59 where it was tendered to establish context and motive rather than to prove the truth of what was said.
- The s 137 balancing exercise requires assessing the capacity of evidence to support factual findings against the risk that a jury will use it in a way logically unconnected with the issues in the case. The assessment of probative value for this purpose does not involve evaluating the credibility or reliability of the evidence, following IMM v The Queen (2016) 257 CLR 300.
- Where prejudice from admissible evidence can be cured or minimised, limiting the evidence (here, excluding the police reference while retaining the hostile description) or giving a jury direction may be a sufficient response rather than wholesale exclusion.
- An acquittal by an appellate court does not automatically render evidence of a former co-accused's words or conduct inadmissible in a subsequent retrial of remaining accused; admissibility turns on the established relevance and prejudice framework.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 59, 137
Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Papakosmas v The Queen (1999) 196 CLR 297
- Colby v The Queen [1999] NSWCCA 261
- Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
- R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110