Koloamatangi v R; Popovic v R

[2020] NSWCCA 52

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Koloamatangi v R; Popovic v R [2020] NSWCCA 52

Hearing dates:

24 September 2019

Date of orders:

01 April 2020

Decision date:

01 April 2020

Before:

Bathurst CJ at [1]; Bell P at [384]; Price J at [385]

Decision:

(1)   Grant the applicants leave to appeal.
(2)   Appeal allowed.
(3)   Quash the conviction of the appellants for the murder of Dragan Sekuljica and in lieu thereof enter a verdict of acquittal.
(4) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) the following portions of the judgment be suppressed until further order on the grounds set out in s 8(1)(a), (c) and (e) of the Act: [179] second sentence; [184]-[185]; [196]-[205]; [207] third sentence, after “on the way” and before “so I just”; [210] second sentence; [211]-[219]; [220] first and second sentences; [222] first sentence after “made his first induced statement”.
(5)   Order 4 shall apply throughout the Commonwealth.
(6)   Grant leave to the parties and the Commissioner of Police to make an application within 7 days to vary the suppression order.

Catchwords:

CRIME – Appeals – Appeal against conviction - Miscarriage of justice – Principle of incontrovertibility – Whether evidence challenged acquittal of a non-party – Whether an abuse of process – No application of principle of incontrovertibility.

  CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Unreliable witnesses – Facts which required proof beyond reasonable doubt – Verdict of acquittal substituted.

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

AB v CD, EF v CD [2018] HCA 58; (2018) 93 ALJR 59
Abdallah v The Queen [2019] NSWCCA 294
AJS v The Queen (2007) 235 CLR 505; [2007] HCA 27
Dickson v R [2017] NSWCCA 78
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67
Hunter v Chief Constable of the West Midlands Police [1982] 1 AC 529
Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30
Kanann v R [2006] NSWCCA 109
Lane v R [2018] HCA 28; (2018) 92 ALJR 689
Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37
Nash v R [2019] NSWCCA 124
Popovic v R; Hristovski v R; Bubanja v R; Koloamatangi v R [2016] NSWCCA 202
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
R v King (1985) 17 A Crim R 184
R v Koloamatangi; R v Popovic (No 6) [2017] NSWSC 1631
R v Popovic; R v Koloamatangi (No 2) [2017] NSWSC 1022
Reichel v Magrath (1889) 14 App.Cas. 665
RG v R [2020] NSWCCA 17
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Storey v The Queen (1978) 140 CLR 364; [1079] HCA 39
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Proceedings 2012/370471
Tevi Koloamatangi (Applicant)
The Crown (Respondent)

  Proceedings 2012/232565
Zlatan Popovic (Applicant)
The Crown (Respondent)

Representation:

Proceedings 2012/370471

 

Counsel:
P Boulten SC (Applicant)
T F Woods (Applicant)
E Balodis (Respondent)
A B Douglas-Baker (Commissioner of Police)

 

Solicitors:
Katsoolis & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

 

Proceedings 2012/232565

 

Counsel:
M Ramage QC (Applicant)
E Balodis (Respondent)
A B Douglas-Baker (Commissioner of Police)

  Solicitors:
Toomey Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2012/370471; 2012/232565

Publication restriction:

See order 4.

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

R v Koloamatangi; R v Popovic (No 6) [2017] NSWSC 1631

Date of Decision:

17 November 2017

Before:

N Adams J

File Number(s):

2012/00232565; 2012/00370471

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants, Tevi Koloamatangi and Zlatan Popovic, were convicted of the 8 September 2007 murder of Dragan Sekuljica (the deceased). Each applicant sought leave to appeal against his conviction.

The applicants had previously been tried and convicted of the murder along with two others, Jason Hristovski and Dalibor Bubanja. However, on appeal, the convictions of Hristovski and Bubanja were set aside and a verdict of acquittal entered. The applicants also had their convictions quashed and a new trial was ordered. At the new trial, the applicants were again convicted by a jury. These convictions were the subject of this appeal.

In the early hours of 8 September 2007, the deceased was murdered by a masked gunman at Splashes Nightclub in Wollongong. The Crown case was that Koloamatangi was the gunman, and that Popovic was a party to a joint criminal enterprise to kill the deceased. The Crown also led evidence that Hristovski provided the gun used for the murder. The Crown case relied heavily on the evidence of a Mr Taylor and a Mr Radz (both pseudonyms), who had each received indemnities from prosecution for giving evidence. Mr Taylor claimed to have been with Koloamatangi throughout the evening of 7-8 September. He gave evidence that they had driven from Wollongong to Sydney after dinner on 7 September to drop Koloamatangi’s girlfriend home, and then returned to Wollongong. He said that they then went to Popovic’s house, Hristovski’s house to collect a gun, to his own house and then to Splashes Nightclub. He said he waited in the car while Koloamatangi shot the deceased, and then acted as a getaway car driver. Key evidence at the trial included records of telephone communications made by the various parties on the night of the murder, which was said to indicate their approximate locations. Mr Radz, who knew a number of the parties, claimed that Popovic and Koloamatangi had both confessed to him at various times.

The applicants appealed on a number of overlapping grounds. These included the contention that it would be a miscarriage of justice to permit the conviction, as the witnesses Mr Taylor and Mr Radz had recently been condemned as liars by the Court of Criminal Appeal. Similarly, it was contended that there was a miscarriage of justice because of the admission of the evidence of Mr Taylor that Hristovski supplied the gun. Another ground of appeal was that the verdict of the jury was unreasonable, and could not be supported, having regard to the evidence. Other grounds were also relied on.

The Court of Criminal Appeal unanimously granted the applicants leave to appeal, allowed the appeal and quashed the convictions, entering verdicts of acquittal.

Was there a miscarriage of justice in admitting evidence that Hristovski supplied the gun?

There was no miscarriage of justice in admitting evidence that Hristovski supplied the gun. Although Hristovski had previously been acquitted of the murder of the deceased, the admission of Mr Taylor’s evidence did not controvert his acquittal, as Mr Hristovski was not a party in the present proceedings. However, if further proceedings on a different charge with different elements were brought against Hristovski in relation to the supply of the gun, this would controvert his previous acquittal. This was because unlike a jury acquittal, Hristovski’s conviction was overturned by a judge who gave clear reasons for the acquittal, including her doubt that he provided a gun at all: [294]-[312] (Bathurst CJ), [384] (Bell P), [385] (Price J).

Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37; Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67; R v Carroll (2002) 213 CLR 635; [2002] HCA 55; Nash v R [2019] NSWCCA 124; Abdallah v The Queen [2019] NSWCCA 294; RG v R [2020] NSWCCA 17; Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30; Storey v The Queen (1978) 140 CLR 364 at 397; [1079] HCA 39; AJS v The Queen (2007) 235 CLR 505; [2007] HCA 27, considered.

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, referred to.

It was not an abuse of process to contend in proceedings against the applicants that the murder weapon was supplied by Hristovski. The use of the witnesses Mr Taylor and Mr Radz did not bring the administration of justice into disrepute: [312]-[318] (Bathurst CJ), [384] (Bell P), [385] (Price J).

Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42; Hunter v Chief Constable of the West Midlands Police [1982] 1 AC 529; considered.

Was the verdict of the jury unreasonable having regard to the evidence?

The verdict of the jury was unreasonable and could not be supported by the evidence. It was an indispensable link in the chain of reasoning that Hristovski supplied the gun, requiring proof beyond reasonable doubt. Having regard to the inconsistencies between Mr Taylor’s evidence and other evidence, and the need to treat his evidence with caution, as well as the unreliability of Mr Radz as a witness, there was a reasonable doubt that the deceased was shot by Koloamatangi at the request of Popovic: [346]-[368] (Bathurst CJ), [384] (Bell P), [385] (Price J).

Dickson v R [2017] NSWCCA 78, considered.

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56; Kanann v R [2006] NSWCCA 109, referred to.

Judgment

1. BATHURST CJ: The applicants, Tevi Koloamatangi (Koloamatangi) and Zlatan Popovic (Popovic), were charged with the murder of Dragan Sekuljica (the deceased) who was fatally shot inside Splashes Nightclub in Wollongong in the early hours of 8 September 2007.

2. Following a trial before N Adams J and a jury (the second trial), the applicants were convicted of the murder. Koloamatangi was sentenced to life imprisonment while Popovic was sentenced to imprisonment for 34 years with a non-parole period of 26 years.

3. Each of the applicants has sought leave to appeal against their convictions, whilst Koloamatangi has also sought leave to appeal against his sentence.

4. Prior to the second trial, the applicants were charged with and tried for the murder together with Jason Hristovski (Hristovski) and Dalibor “Daki” Bubanja (Bubanja). The Crown case at this first trial was that the accused were each a party to a joint criminal enterprise to kill the deceased. It was alleged that Koloamatangi was the gunman, Popovic had arranged the murder, Hristovski had supplied the gun and Bubanja had acted as a lookout at Splashes on the night of the murder.

5. Each accused was convicted at the first trial but their convictions were set aside on appeal: Popovic v R; Hristovski v R; Bubanja v R; Koloamatangi v R [2016] NSWCCA 202 (the previous judgment). The appeal succeeded on a number of grounds. Hristovski and Bubanja successfully claimed that the verdict should be set aside as unreasonable, and a verdict of acquittal was entered. The applicants, who did not appeal on this ground, were successful on other grounds. Their convictions were quashed and a retrial was ordered.

6. It will be necessary to say more about the previous judgment subsequently in this judgment. However it should be noted that in each trial the Crown case was that Koloamatangi was the shooter and that Popovic was a party to a joint criminal enterprise to kill the deceased. The Crown case in the second trial was pithily summed-up to the jury by the trial judge in the following terms:

“The third element is that the deliberate act [which caused the deceased’s death] was that of the accused Tevi Koloamatangi. This is the major area of dispute in the trial against Mr Koloamatangi. You must be satisfied beyond reasonable doubt that it was Mr Koloamatangi who shot the deceased. The Crown relies heavily on the evidence of Mr Taylor and Mr Radz to establish that Koloamatangi was the shooter.

…

The Crown case against Mr Popovic is that he was part of a joint criminal enterprise with Mr Koloamatangi to kill the deceased.

…

The evidence that Mr Popovic participated in that joint criminal enterprise also comes largely from Mr Taylor, and includes Mr Popovic giving directions to Mr Taylor, telling him the deceased was at Splashes, telling him where to get the weapon, liaising with Mr Koloamatangi by telephone just before the shooting, and arranging for Mr Koloamatangi to be paid after the shooting.”

7. It should also be noted that the Crown at each trial contended that the gun was supplied by Hristovski. For this contention the Crown relied in particular on the evidence of Mr Taylor (a pseudonym), an indemnified witness who claimed to have accompanied Koloamatangi in the period leading up to the shooting, and was in the vicinity of Splashes when the shooting took place. Thus in opening, the Crown summarised its case as to what occurred leading up to the shooting in the following terms:

“I expect you will hear some evidence in this trial from Mr Taylor that after he and Koloamatangi returned from dropping off Koloamatangi’s girlfriend in Sydney, they drove back to Wollongong and went to the accused Popovic’s unit. There they had a brief discussion and then the two men left and drove to a place called Warrawong to collect a firearm. I expect that you will hear, and learn, during this trial that at 1.03 in the morning Mr Popovic had a 72 second telephone conversation with Mr Koloamatangi. At 1.08 Mr Popovic made a telephone call to a man called [Hristovski]. At 1.09 Mr Popovic made another call to Mr Koloamatangi.

I expect that Taylor will tell you that he drove Koloamatangi from Wollongong, from the home of Popovic, to a place at Warrawong, where they stopped outside a man’s home. He, the man called [Hristovski], came outside [and] handed over a firearm to Koloamatangi.

I expect that you will hear some evidence of a discussion between Koloamatangi and the man [Hristovski] about the quality of the firearm that he had been provided with. Then I expect Taylor will tell you about a conversation that he had with the accused Koloamatangi about what was intended to be done with the gun.

I expect that you will hear that following that, Taylor drove with Mr Koloamatangi to Taylor’s then home at Corrimal, where he sourced some clothing for the accused Koloamatangi to wear, including a beanie; the beanie in which they cut eyeholes to enable it to be worn as a disguise.

I expect that another one of the telephone records will put Mr Koloamatangi and Taylor in the vicinity of Splashes Nightclub and during the period, until after the time of the shooting, which was very shortly after 3 o’clock in the morning, during that time the man Taylor will tell you that he was waiting in the car, but had his phone turned off.

I expect that Taylor will tell you that he waited for a long time in the car.”

The evidence at the trial

8. Because in the present appeal, the applicants content that the verdict was unreasonable, it is necessary to set out evidence from the second trial in some detail.

Mr Joseph Habak

9. Mr Habak was working as a security officer at Splashes Nightclub on the night in question. He agreed that Splashes was a nightclub situated at the very bottom floor of the Novotel building at North Beach in Wollongong.

10. Mr Habak said that on that night he was carrying out duties in the footpath area outside the club, which included checking the identification of people who wanted to go into the club. He said he was working there with a Mr Peter Somerville.

11. Mr Habak said that it was normal on a Friday and Saturday night for the club to remain open until the early hours of the morning, usually 3 am.

12. Mr Habak recalled being outside the club at around 3 am on the morning of the murder. He said that Mr Somerville was near him outside in the foyer area. He said that he recalled the deceased leaving the club and crossing the road with two men, including a taller man who he referred to as “Big Mick”.

13. Mr Habak said that the next thing he realised was that he heard some sort of “cap shots”, and saw the deceased running straight back towards him, going towards the club. He said that the deceased ran as fast as he could back inside the nightclub. Mr Habak then turned around and saw a gunman with a balaclava run straight past him into the nightclub. He recalled hearing a couple of shots in the foyer and his colleague Mr Somerville wanting to go back in. He said that there were two more shots and this time they were inside the club. He said that he grabbed Mr Somerville and said “Do not follow, do not go inside that place”. He told him to get into the corner and stay down.

14. Mr Habak said that moments later, the gunman ran out the door and crossed to the beachfront side opposite the Novotel. He said that he ran back inside and saw the deceased lying down, and that people were performing first aid.

15. Mr Habak was asked to describe the clothing the gunman was wearing. He said he just recalled that there was a black balaclava and that the top he was wearing had a hoodie, and was big and pretty baggy.

16. In cross-examination he agreed that he had told the police that the gunman was about five foot six inches tall and of small build.

Mr John Harris

17. Mr Harris witnessed the shooting. He said he had seen the man who was shot a little time earlier, naming him as the deceased. . He said he heard a shot and saw the deceased fall to the ground at the centre of the bar, and a man with a gun run over, stand over the top of the deceased, put the gun at the back of his head and pull the trigger. He said the shooter then ran straight out of the club. Mr Harris said that the shooter was not that tall but could not say anything else about his build or anything else apart from the fact that he was wearing a blue and white striped hoodie, with the hood over his head.

18. Mr Harris also gave evidence that he recalled a conversation earlier at Splashes Nightclub between two men, one of whom was the deceased. He said that the men were talking in two languages, one of which was English. He said at the time of the conversation they were pretty close to each other, describing the conversation as a normal conversation you have with a person under a metre or a metre away from each other.

19. Mr Harris was cross-examined on a statement made by him to the police, and he agreed that he described the jacket the shooter was wearing as one which was too big for him.

Mr Colin Walker

20. Mr Walker was also a security officer at Splashes Nightclub on the evening of 7 September 2007. He was responsible for supervising the security guards that evening.

21. Mr Walker agreed he knew some of the patrons by name, including a tall man known as Mick, and another man known as Daki Bubanja.

22. He said Mick was with Bubanja through the night.

23. Mr Walker said that at one stage he saw those two men standing at the bar with two other men, one of whom had very dark skin, and another of solid build wearing a black long sleeved shirt. He identified the man of solid build as the deceased.

24. Mr Walker then gave evidence that at some stage during the night or early morning he saw Bubanja and the deceased talking to each other. He stated:

“They were talking to each other, and then one bloke fired up. The guy with the dark shirt, he fired up.”

25. By “fired up”, he said he meant the man was getting cranky. He said that they were just having an argument and then Bubanja left.

26. Subsequently, he saw Mick and Bubanja talking inside the toilets.

27. Mr Walker then described the shooting in a similar manner to that described by the other witnesses. Like the other witnesses he confirmed the gun was black.

Mr Peter Somerville

28. Mr Somerville was another security officer. On the night in question he was one of the security supervisors at Splashes Nightclub. He said that for most of the night he worked at the entrance door, but from time to time went inside to make sure things were alright. He said that on the night in question there were between 100 to 150 patrons in the nightclub.

28. Mr Somerville recalled that at about a quarter to three or three in the morning, three patrons left the club. He said one of these men was taller than the other two, and of solid build. He recalled that a taxi pulled up and two of the men started to get into the back of the taxi whilst the third went around to the front. He said he then noticed someone coming out of the bushes. He said the person was dressed in all dark clothing, including a balaclava and hoodie.

29. Mr Somerville said that he heard two or three “cap shots” and saw the person who had been getting into the back seat run back across the road towards him and the club. He said that the person who came out of the bushes was running directly behind at a distance. He said that both men ran past him, and that as the second ran past he went to give chase, still not knowing the full extent of what was happening. It was at that time that the other security officer told him to take cover and that the man had a gun, and then he stopped pursuing him.

30. Mr Somerville said that he heard another two or three shots from inside the club, and that he saw the person who had run in second run straight out very, very fast across the road into the bushes and down towards the bike track.

31. Mr Somerville said that he then went inside to see what was going on, and saw a guard who had gotten shot, Robert Gyles, and tried to offer some assistance to him. He said that after giving that assistance he saw the deceased lying on the ground.

32. In cross-examination, Mr Somerville said that the only thing he saw in the shooter’s hand was a black object, and that the shooter was leaning forward with his arms outstretched and holding the black object in front of him.

Mr Robert Gyles

34. Mr Gyles was a security officer at Splashes Nightclub on the night in question. From about 2 am he moved to duties inside the nightclub.

35. Mr Gyles said that at around three o’clock he heard a door slam and turned around and noticed a guy running. He said that he approached the man and said “Put [your] arms out”. He grabbed hold of the man and said “You can’t come in here, mate”. He looked and noticed that the man had something like a hoodie on, which looked like a balaclava. He then heard a loud noise and felt pain in his left arm which folded him over, and the man “took off” and ran inside towards the bar area.

36. He said he then heard two or three shots. At that stage he thought it was a prank, because he had a jacket on and did not know he had been actually shot. He said he was going to approach the man again as he was running out, but saw what looked like a gun pointed at his head, so he covered his face and the man ran outside.

37. He said the gun looked like a small black handgun.

Mr Oliver Karovski

38. Mr Karovski was responsible for organising the entertainment at Splashes that night. He said that he was in the vicinity of the bar when he heard what he described as a pop. He looked in the direction of the bar and saw a man running, chasing another individual. He said that the person who was chasing ran to within a metre of the other and shot him in the head. He said that the guy who was shot fell to the floor, and that as he fell to the floor the shooter lent over and shot him in the head again. Mr Karovski said the shooter was wearing a dark jacket and had his face covered. He said he did not notice anything about the gun.

Mr Saso Mihailov

39. Mr Mihailov was assisting with the entertainment at the nightclub. He said that at three o’clock he was standing at the bar with a man called Darko Hristovski. He said that he heard a loud bang and saw a guy wearing a balaclava, positioning his hand over his face and running with a gun in front of his arms. He said that he grabbed Darko, and ran to a security office and locked them inside it.

40. He said that the man with the gun had dark attire and a balaclava on. He said that the man’s build was slim to fair.

41. Mr Mihailov said that after he closed the door to the security office, he heard two more bangs.

42. In cross-examination Mr Mihailov was referred to the statement he made to the police. He agreed that he described the gun to the police as a black gun which looked like a gun that the police use. He said it was a black gun held in two hands. He agreed that he also told the police that the man’s balaclava had eye holes cut in it and that you could see white skin around his eyes.

43. It was not suggested that the man Darko Hristovski was Jason Hristovski, who was alleged to have supplied the gun.

Mr Miodrog Milisic

44. Mr Milisic said that in 2007 he worked in the construction industry in Wollongong. He said he knew the deceased through work carried out in that area. Mr Milisic said that he also knew a man called George or Zoran Bubanja, the deceased being the godfather of one of this man’s children.

45. Mr Milisic said that he went to Splashes at about 11:30 pm on the night of 7 September with Stan Petrovic and Daki Bubanja, the son of George Bubanja. He said that when he got inside the nightclub he saw the deceased and talked to him.

46. Mr Milisic said he left Splashes by himself at about three o’clock.

47. Mr Milisic said he saw the deceased going towards a car stopped on the road. He said he heard a couple of bangs, and saw the deceased running back inside the club and a person running after him. He said that the last thing he remembered was going back inside and seeing the deceased on the floor. The only thing he recalled about the man who ran in behind the deceased was that he was wearing a black hoodie, with the hood over his head. He did not see the man’s face at all.

Mr Milos Bolic

48. Mr Bolic said that on Friday 7 September he went to Collegians Rugby League Club at Wollongong with two friends, Alex Ponjorac and Rajko. There he met, among others, Bubanja, Stan Petrovic and Mr Milisic. He said that he, Mr Ponjorac and Rajko decided to leave Collegians and go to Splashes Nightclub. He said that this occurred sometime between 9 and 10 pm. He said that he saw the deceased at the nightclub as well as Bubanja, Stan Petrovic and Mr Milisic.

49. Mr Bolic recalled that he left the nightclub before twelve o’clock that evening. In cross-examination he was asked to assume that the deceased arrived at Splashes at around 12:30 am and he accepted that if that was the case he left some time after midnight.

Mr Adrian Castagna

50. Mr Castagna was employed as the Master of Ceremonies at Splashes Nightclub. He said that on Friday 7 September he had a night off, but ended up going with a friend of his to the nightclub. He said that he went to the toilet and saw three men there, talking together in another language with what he described as a bit of “oomph”. He said by that, he meant that there was a lot of body language added to the words being used, and he understood some of the words being used which were swear words. He stated that the language was either Serbian or Macedonian.

51. Mr Castagna recalled that after he came back from the toilets, he requested his boss at the time, Milosh, to remove the people in the bathroom from the premises.

52. Mr Castagna said that at around three o’clock he was doing some work on a voluntary basis shutting down equipment and that he heard a noise, which he described as “[m]ore of a pop, not a bang”. He went inside the sound area and checked on the amplifiers, and when he came out he saw the gunman running out.

53. Mr Castagna recalled that the gunman was wearing a hooded jacket. He said that the gunman ran past him at a distance of a couple of metres. He said that he followed him outside the club.

54. Mr Castagna said that as he came out onto the staircase in front of Splashes there were a couple of people to the left and to the right, and that the gunman turned around and pointed the gun towards them, in Mr Castagna’s direction. He said he did not recall much at all about the gun.

55. Mr Castagna agreed that he told the police in his statement that the man was about 180 cm tall and of medium to large build. He agreed that he also told the police that the man was wearing a dark coloured hooded Adidas spray jacket with three stripes down the arm. He also agreed that he told the police that the gunman was holding a black coloured pistol which looked like a revolver.

56. Mr Castagna agreed in cross-examination that, although he recognised some swear words in the conversation between the men inside the bathroom, he did not understand the context in which these words were used.

Mr Alexander Gregory

57. Mr Gregory was working as a bar attendant from 9 pm on Friday 7 September to 3 am on Saturday 8 September. He said that at around 3 am there were about 20 people left in the bar.

58. Mr Gregory said he heard a male voice and a loud bang. He looked out and saw a man wearing a jacket and a balaclava. He said that the man was hunched over, looking down. He said that the balaclava had two eye holes and a mouth hole.

59. Mr Gregory said that he moved to a storeroom, and heard a second bang. He went and found other staff members, and they went around to the other side of the bar and saw a man lying on the ground.

60. Mr Gregory said that he did not see a gun, but did say that the gunman’s skin was white and his eyes were dark. He said the man was about 185 cm tall.

61. Mr Gregory agreed in cross-examination that when he made his statement to the police he said that he could see white skin through the eyeholes and the mouth hole of the balaclava.

Mr Aco Stevceski

62. Mr Stevceski gave evidence that, on the evening of 7 September, he went with a man named Nikola Vacic and the deceased to a place called The Brewery. He said that after that, they went to a hotel in Wollongong called The Harp, but that Mr Vacic was not allowed in.

63. He said that they later went to Splashes, and that when they got there Mr Vacic and the deceased met some people at the bar. He identified them as Nico and Daki. He was asked if the man called Daki was Daki Bubanja and he said he did not know his second name. Mr Stevceski said he did not stay with the deceased whilst they were at Splashes but that he saw him from time to time during the night. After refreshing his recollection from his statement, he said that the deceased would have been talking to Daki.

64. Mr Stevceski said that he did not see any argument occur between Daki and the deceased.

65. In cross-examination he agreed that until the deceased suggested they go to Splashes, there had been no plan to go there.

Ms Angela Djuraki

66. Ms Djuraki said her husband was a close friend of the deceased and a friend of Popovic. She said that she recalled in 2007 going to a café in the Wollongong Mall for a celebration with her husband. She said that the deceased, his wife and Popovic were also there.

67. Ms Djuraki said that in the first half of 2007 she and her family were living on a farm property at Kembla Grange. She recalled Popovic visiting with another person known as Doc. She recalled that Popovic asked if Doc could stay at their place for a night. She said that that was the only time she met Doc.

68. Ms Djuraki said that in May 2007 she went overseas with her children to visit her family. She said she regularly telephoned her husband and from time to time spoke with the deceased, as he was spending a lot of time with her husband and sometimes would answer the phone.

69. Ms Djuraki said she recalled a telephone conversation with the deceased where there was a reference to a person in Serbian history. The deceased said to her that Zlatan (Popovic) was the biggest traitor in Serbian history after Novakovic. She said Novakovic was a big traitor in Serbian history, that he was a bodyguard for a leader of the Serbian people in the war against the Turks and he killed the leader for money.

70. Ms Djuraki said that she returned home on 2 September and was pretty sure she saw the deceased on that day. She said that the deceased was very upset about things going on with Popovic and that he repeated that Popovic was a big traitor.

Mr Stanko Petrovic

71. Prior to September 2007, Mr Petrovic undertook an apprenticeship with Miodrog Milisic. Mr Petrovic agreed that he met the deceased during the second year of his apprenticeship.

72. Mr Petrovic agreed that on the evening of 7 September he went to Collegians Leagues Club at roughly nine o’clock. He said he met Mr Milisic there who was with Dalibor Bubanja. He agreed that Bubanja went by the nickname Daki.

73. Mr Petrovic agreed that at some point they went to Splashes Nightclub. He could not recall who suggested they go there.

74. Mr Petrovic was asked what time he left Splashes and said he could not remember, but did say that he left with Mr Ponjorac and somebody called Rajko. He said they went to get a kebab.

75. He said that after he had the kebab he headed back in the direction of Splashes. He said that he was walking by himself and that he stopped to have a smoke. He said that while he was sitting having a smoke something “went off like a firecracker” and he looked up and saw “a bloke chasing another bloke with a gun and shooting him”. He said they were on the road when he first saw them running back towards the club.

76. Mr Petrovic said he observed that it was the deceased being chased. He said that when he first saw the deceased, the deceased and Mr Milisic were going to get into a taxi.

77. Mr Petrovic noticed that the man chasing the deceased was wearing all black. He said that the last he saw was the two of them running into the club.

Mr Robert Freeborough

78. Mr Freeborough stated that he knew the deceased in 2006, and that they were good friends. He stated that he also knew a man called Miodrog Milisic, known as Mickey, who had an electrical business.

79. Mr Freeborough said he knew Daki and a man called Marco Bubanja, who were brothers. He agreed that he met their father, whose name was Zoran.

80. Mr Freeborough said that he saw the deceased at the North Wollongong Hotel on the afternoon of Friday 7 September. He said he arrived at the hotel at about 2:30 pm. He said that as well as the deceased, there was a man there called Ned Tripkovic, who left with the deceased later in the afternoon.

81. Mr Freeborough was then asked about events at the North Wollongong Hotel on the previous Friday, the week before the deceased was killed. He said that on that day he saw Daki and Marco Bubanja and their father Zoran at the hotel. He said they were not part of the group he usually met with on a Friday afternoon at the hotel.

82. Mr Freeborough said that he saw the deceased at the hotel on that day and had a drink with him. He said that Zoran and his two sons were in the lower section of the hotel, while he and the deceased were sitting on the verandah area.

83. Mr Freeborough recalled that the deceased left at one stage to go and speak to Daki and his father. He said that the deceased stayed down there with them for a few minutes. He said that when he returned he asked the deceased if everything was alright, and that the deceased “shrugged it off”.

CCTV evidence

84. Excerpts from CCTV cameras of the North Wollongong Hotel on 31 August 2007 were played to the jury. The tender of the CCTV footage formed the subject of Ground 3 of Popovic’s grounds of appeal.

85. CCTV footage was played of Splashes Nightclub on 7 and 8 September 2007.

Mr Peter Taylor (a pseudonym)

86. Mr Taylor stated that in 2007 he had known Popovic for nine or 10 years. He said that one of his jobs around the time of the murder was working as a delivery driver for Mamma’s Pizza, a shop owned by Popovic’s mother.

87. Mr Taylor said that he did not know Koloamatangi at that time, but that he first met him two weeks prior to the murder. He said that he met him through Popovic. At that time he knew Koloamatangi as Doc.

88. Mr Taylor said that before the murder he knew a man called Dalibor Bubanja. He initially said that he had met him between two and four weeks before the murder, but then stated that he was not actually 100 per cent sure whether he had met him prior to the murder.

89. Mr Taylor was asked whether he had ever been to Collegians Rugby League Club. He said that he had, and that he recalled going with Popovic. He said he recalled going there some two to three days prior to the murder. He was referred to records showing that he went there on 6 September 2007, and said that this was roughly between six and nine o’clock in the evening. He said that he went there with Popovic and Popovic’s wife, Emma. He said that Koloamatangi, his girlfriend also named Emma, Bubanja and Ali Nemr were there as well.

90. Mr Taylor said he was at the club for roughly an hour, and that during that time the three or four males there were having a private conversation. He said that he was standing back deliberately, not trying to partake in the conversation, and wanting not to be associated with the particulars of what was going on. He said that he did not hear any of the conversation at all.

91. Mr Taylor said he recalled the day before the deceased was murdered. He said that he saw Popovic that day, first at Kings Chinese restaurant and then at Popovic’s unit in George Street later that evening. He said that he went to Kings Chinese restaurant between six and seven o’clock at night time.

92. Mr Taylor said he met up with Popovic at the restaurant with Koloamatangi, his girlfriend Emma, Popovic’s wife Emma and two others whose names he could not remember. He said that one of these two was male and one was female.

93. Mr Taylor stated that there was general conversation at the dinner. He said that Popovic asked him to drop Koloamatangi and his girlfriend back to Sydney. He was asked whether there was any other conversation between Popovic and Koloamatangi at the table, and he said that they were quietly whispering between themselves. He said that he did not hear a word of what they said.

94. Mr Taylor said that he left the restaurant at roughly 8 o’clock. He said that he had his car in Wollongong and that he, Koloamatangi and Koloamatangi’s girlfriend drove to Sydney, dropped Koloamatangi’s girlfriend off there, and returned to Wollongong. He said he thought he drove to the Rocks, saying that it was close to the Sydney Harbour Bridge.

95. Shortly after giving this evidence, Mr Taylor said that he forgot to mention earlier that Popovic had told him to go to Sydney, and then call him and return to his (Popovic’s) unit.

96. Mr Taylor said that he could not be 100 per cent sure of the route he took to drop Emma off in Sydney, but that it would have been either Bulli Pass or Mount Ousley. He said that the drive took about an hour or an hour and 15 minutes, and that the drive back took roughly the same time.

97. Mr Taylor said that when he got back to Wollongong he called Popovic and proceeded to Popovic’s unit. He was asked when he got there, and replied, “I would say eleven, roughly eleven or twelve o’clock. I’m not –”. He said that when he arrived at the unit Popovic and his wife, Emma, were there. He said that she was asleep on the floor. He said he and Koloamatangi went into the unit, and that they all went into the kitchen area.

98. Mr Taylor was asked what happened next, and said that Popovic and Koloamatangi continued or started to have a conversation. He said that he did not hear much of it, and that he was deliberately standing back from the conversation. He was asked if he overheard any of the conversation and said, “Yes they were planning to go and see a person by the name of Dragan”. He said he may have met the deceased roughly a month before that.

99. Mr Taylor was asked if he heard any more of the conversation, and gave the following answer:

“I heard that they were going to commit a crime against [the deceased]. I wasn’t sure what it involved. I thought it was money or some bodily harm like a beating or something. They were my thoughts, I wasn’t told precisely and we were going to pick up something from this Jason Hristovski.”

100. He said that it was Popovic who said something about picking something up from Hristovski. He then said that Popovic and Koloamatangi began “whispering in each other’s ear”, and that then they left to go to Popovic’s house. He said that whilst he was in the kitchen Popovic’s wife woke up and went to bed.

100. Mr Taylor said that he was not told in the conversation what was to be picked up from Hristovski.

101. He was asked what happened next, and said, “Me and [Koloamatangi] went to [Hristovski]’s house and made some phone calls to [Hristovski] or [Popovic]. [Hristovski] came out of his house and handed, handed a rolled up bank bag in through the window of the door”. He said that Hristovski’s house was in the suburb of Warrawong, about a 15 minute drive from Popovic’s unit.

102. He was then asked the following questions and gave the following answers:

“Q. Now he handed this rolled up bank bag, can you describe the bag?

A. It was a, it was an old bank bag like, what do they call it, hessian, or the white bags that you used to get from the bank, yellowy. In it was a gun, that is something, when it was opened up.

Q. Where was it opened up and who opened it up?

A. [Koloamatangi] opened it up in the car and –

Q. Where did that happen?

A. That was out the front of [Hristovski]’s house.

Q. Okay he opened it up and what did you see?

A. A revolver, a black revolver.

…

Q. What happened next?

A. There was a discussion between [Koloamatangi] and [Hristovski] about the gun there.

Q. Tell us as best you can what was said about it?

A. [Koloamatangi] said ‘What the fuck is this? We were supposed to get something better than this’, the gun being as to my knowledge a lady’s handbag, a handbag snub nosed pistol which can be carried in a lady’s handbag.

Q. What, if anything, did [Hristovski] say in response to that?

A. He said ‘That’s all I have’.

Q. What happened then?

A. We returned, we returned back to my house.

Q. Can I ask you this, why did you go to your house?

A. To get some clothes, um, to get some clothes for Doc to get dressed in to go and do the shooting.

Q. By that time you knew it was a shooting, is that right?

A. I was pretty aware that it was, someone was going to get shot.

Q. So why did you go to your house?

A. To get a disguise, clothes.

Q. What happened when you got to your house?

A. I went to my house and got some long pants, some boots, a beanie and a hoodie and returned to the car.

Q. Before you got the clothes what was Doc wearing do you recall?

A. I can’t be a hundred per cent on the clothes that he was wearing. Maybe only a shirt and shorts, I am not too sure.

Q. Anyway you went and got you said long pants?

A. Correct.

Q. What sort of pants?

A. It could have been camouflage or green khaki pants.

Q. You said some boots?

A. Some boots, yes.

Q. What sort of boots?

A. They would have been just steel capped issue.

Q. What, like work boots?

A. Yeah, steel capped work boots.

Q. And you said a hoodie, what is a hoodie?

A. A hoodie, like a jumper with a hood.

Q. What colour was that do you recall?

A. It was navy blue.

Q. Anything else?

A. There was a beanie and gloves. I am not too sure on the gloves, if I had them.

Q. And the beanie, what colour was that do you recall?

A. It would have been black.

Q. All right was anything done with the beanie?

A. The beanie was made into a balaclava.

Q. How was that done?

A. Cut the beanie apart and put eye holes in with some scissors.

Q. Who did that?

A. In my statement I wrote that I did it. At the time I am not sure who actually did it, whether it was me or [Koloamatangi] but in the statement I said I done it.

Q. Are you saying you don’t –

BRASCH: I object.

CROWN PROSECUTOR: I haven’t said anything.

Q. Are you telling us you said that you said you did it in the statement, is that right?

A. That is correct but as I remember now [Koloamatangi] did cut the holes in it.”

104. Mr Taylor said that his house was between 20 and 30 minutes travel by car from Hristovski’s house, about 15 minutes back to Wollongong.

105. Mr Taylor said they drove to Splashes Nightclub to shoot a person by the name of Dragan. He said that they (he and Koloamatangi) were called by phone and told that the deceased was there. He said that Popovic either called him or Koloamatangi.

106. Mr Taylor said that when they got to Splashes they did a couple of laps of the nightclub, and that he then parked the car in the north car park, out of the way. He said he did that so he would not be seen on CCTV.

107. He said that after they parked, he pointed out a bunch of bushes and told Koloamatangi to go there and wait for the deceased to exit the nightclub. He said that the bushes were directly opposite the nightclub, across the road.

108. Mr Taylor was asked how long he was parked in the car park and he said for roughly an hour to an hour and a half, maybe two hours. He said that after about an hour or an hour and a half he heard shots fired. He said that he heard between three or four shots, separated by maybe one, two or three seconds. He said he then started the car and moved it to the exit of the car park, and waited for Koloamatangi to return.

109. At that point in the examination, the Crown asked Mr Taylor whether he had made some statements to the police concerning the incident in question, the first being on 4 June 2012. He agreed that he was given an indemnity under the Criminal Procedure Act1986 (NSW) to protect him from prosecution for his part in the killing of the deceased. He agreed that this indemnity required him to co-operate and give evidence in these proceedings.

110. Mr Taylor said that after he moved to the entrance opposite the car park he left the car running and waited for Koloamatangi to run back to the car, which he did within a couple of minutes. He said they then drove towards Sydney to Koloamatangi’s home. He said that this was in Coward Street, Mascot, and that it took roughly 45 to 60 minutes to get there.

111. Mr Taylor said that during the course of the drive he asked Koloamatangi, “Did you do what you had to do?” and that Koloamatangi said yes. He said that during the drive he spoke to Popovic on the telephone asking him if he could “fix Doc up”, meaning could he get some money for Koloamatangi. He said that the call was not from his phone.

112. Mr Taylor said that Popovic responded, “Go home and come and see me tomorrow”.

113. Mr Taylor said that after he reached Koloamatangi’s home, he dropped him off and returned to Wollongong. He said that Koloamatangi took the clothing he provided him with, and that he did not get any of it back.

114. Mr Taylor said that he got back to Wollongong between 5 and 6 am. He said that the next day he went to get money off Popovic for Koloamatangi and got around $15,000. He said that he gave the money to Koloamatangi when he returned to Mascot the following day.

115. Mr Taylor said that Koloamatangi’s girlfriend counted the money in their presence and that the money was short. He said it had nothing to do with him so he went back to Wollongong and relayed the message to Popovic that the money was short. He remembered Popovic saying in the following days, “the police are watching and it is red hot and tell Doc to wait for the money”.

116. Mr Taylor was referred to the period before the shooting, and said that in the weeks leading up to it he saw Popovic two or three times a week. He recalled at some stage before the shooting, going to a car park opposite where Popovic lived and meeting Koloamatangi, Bubanja, Hristovski and a man named Victor. He said that during conversation reference was made to the deceased and a man named Dusan Krstic. He said that Bubanja referred to the deceased and Dusan as “dogs”. He recalled having a separate conversation with Popovic in which Popovic said to him, “It’s war. Are you with me?” and that he replied, “Yes. You don’t have to ask”. Mr Taylor said that he did not know what Popovic was talking about.

117. Mr Taylor said he recalled telling the police about the gun. He remembered that it was a revolver with six bullets, with the brand “Astra” on the handle. He said that he saw the “Astra” sign on the handle the first time they picked it up from Hristovski’s house when it was pulled out of the bag. He said he thought he saw Koloamatangi put the gun back into the bag.

118. Mr Taylor agreed that between 2007 and 2012, he did not have contact with the police.

119. Mr Taylor said that after the shooting, Koloamatangi disposed of the gun. He said he knew this because Popovic asked him to retrieve the gun. He asked Koloamatangi whether he could have the gun so that he could dispose of it, and Koloamatangi said that he had already gotten rid of the gun, throwing it into a housing commission project around Surry Hills.

120. Mr Taylor said that, apart from the $15,000 he took to Koloamatangi the following day, he also took other money to him over a two to four week period. He estimated that these were bundles of $5,000 and $2,000. He repeated that he did not count the money. He said that Koloamatangi’s girlfriend, Emma, was there when he handed over the money, but that Popovic was not.

121. Mr Taylor agreed that he was shown a photograph of a gun by the police and said this gun was silver. He said that the gun he saw on the night was black. He described it as a snub-nosed woman’s pistol, meaning that the barrel of the gun is shortened so that it can go into a woman’s handbag.

122. Mr Taylor was referred again to the dinner at Kings Chinese restaurant on 7 September 2007, and to the discussion when he was told to collect something from Hristovski’s house. He said that at that stage he was told by Popovic that the deceased was at the North Wollongong hotel, and if anything changed he would let him know. He said that they later received a phone call that the deceased was at Splashes. He said this occurred between midnight and 1 am.

123. Prior to Mr Taylor being cross-examined, a schedule of telephone calls was tendered as Exhibit O, and a guide to the telephone calls as Exhibit P. A critical issue in the trial and in this appeal is what was shown by that schedule of telephone calls.

Mr Taylor’s cross-examination

Cross-examination on behalf of Koloamatangi

124. Mr Taylor was first cross-examined by senior counsel for Koloamatangi.

125. Mr Taylor agreed that his timeline commenced at whatever time it was that he left Kings Chinese restaurant for the trip back to Sydney with Koloamatangi and his girlfriend Emma. He was shown the record of calls and text messages he received from a woman named Tara Wilton, and agreed that this was at a time he was at the restaurant.

126. He was shown a call at 7:47:21 from which it appeared that Popovic’s phone was in contact with Ms Wilton. He agreed that this showed he was still at the restaurant at 7:47 pm, and that there were other communications or attempted communications going down to 8:48:53, when Ms Wilton rang Popovic’s phone. He agreed that all those communications occurred whilst the seven of them were at the Chinese restaurant. He agreed in those circumstances that the earliest time he left the Chinese restaurant was close to nine o’clock.

127. Mr Taylor was referred in the schedule of telephone calls (Exhibit O) to a call made at 10:16:32 from Koloamatangi to a man called Levy which was made from Mascot. He agreed that it appeared that at 16 minutes past 10 he and Koloamatangi were in the vicinity of Mascot. He was then referred to a call at 23:48 from Koloamatangi’s phone to an unknown person made from the Newtown area. It was put to him that at 11:48 pm they were still in the city, and he responded, “That’s what [the] phone documents say”. It was also put to him that if that was correct, they were in the city for an hour and a half, and did not drive straight back to Wollongong. He responded that as he recalled, they drove straight home from Sydney.

128. Mr Taylor was also referred to a number of telephone calls and messages passing between Koloamatangi and a Mr Brett Reynolds, and it was suggested to him that he drove Koloamatangi to Alexandria to supply drugs to Mr Reynolds. He denied this.

129. Ultimately, it was again suggested to him that the telephone records showed that he and Koloamatangi were in the Sydney metropolitan area for at least an hour and a half, and that they did not go directly back to Wollongong. He stated that that could be right.

130. Mr Taylor was then referred to a phone call about an hour later at 00:49:58 from Koloamatangi to Popovic. It was suggested to him that at 10 to 1, they were in Wollongong but had not met up with Popovic because Koloamatangi was ringing him. Mr Taylor agreed that was what it looked like.

131. Mr Taylor ultimately agreed that he arrived back in Wollongong at around 10 to 1. It was suggested to him that he then went to Mamma’s Pizza. He said he went straight to Popovic’s house with Koloamatangi.

132. In that context he was referred to a telephone call at 1:15 am from Koloamatangi to Popovic. It was put to him that Koloamatangi was at the Crown Street Mall and Popovic in the Wollongong CBD, so they were still not together. Mr Taylor said that this was obvious, if they were making phone calls to each other. He was then asked these questions and gave these answers:

“Q. All I’m suggesting to you is that they, when you got back to Wollongong, you did not immediately go to Zlatan Popovic’s place?

A. No I did go straight to there.

Q. Well how do you account for the fact that over at least a 20-minute period, Mr Popovic and Mr Koloamatangi are ringing each other within the Wollongong area?

A. Because that’s where the house is.

Q. Yes, but if they’re in the same room together, why would they be ringing each other?

A. I don’t know.

Q. They didn’t ring each other when they were in the same room, did they?

A. I don’t know.

…

Q. You were there, Mr Taylor, surely if you’d seen two people ringing each other on the phone in the same room you would have thought there was something rather odd going on?

A. Well usually you call someone when you’re going to meet them. Could be outside their house.

Q. For 20 minutes?

A. No. That wouldn’t happen.

Q. No. You see, the first phone call, as I said, which is to Zlatan Popovic by Mr Koloamatangi in Wollongong, was at 12:49 and 58 seconds. So nearly 10 to 1 in the morning. And that’s halfway down the page, on page 14. And he is ringing from the Wollongong CBD – Wollongong CBD, and he’s ringing Mr Popovic, who was at Wollongong CBD 3. So they’re not in the same place there, are they?

A. That could have been the way to the unit.”

133. Mr Taylor was then referred to calls between Popovic and Koloamatangi between 12:52:21 and 1:09:24. He accepted as correct that they were not together at that time, otherwise they would not be ringing each other.

134. Mr Taylor was then asked these questions:

“Q. What I am suggesting to you is that those telephone records, that entry at 1:15 and 18 seconds, indicates that Mr Koloamatangi and Mr Popovic are not in the same place, that is that they are not in Mr Popovic’s unit?

A. That would be correct.

Q. Now you estimated, didn’t you, that you went to – when you got to Mr Popovic’s unit, you were there for about an hour before you set off to Jason Hristovski’s?

A. Correct.

Q. And you said that consistently haven’t you, that it was about an hour?

A. That’s correct.

Q. So your hour, on these records, doesn’t start until 1:15 does it?

A. I’m not sure of the timeline.

Q. Well –

A. To be precise.”

135. Mr Taylor then said that by the time of the 1:15 am call they could have been at Popovic’s unit. He was then referred to the call at 1:09:24, and agreed that at that stage, Popovic and Koloamatangi were not in the same place.

136. He was then asked the following questions and gave the following answers:

“Q. So 1:09 and 24 seconds, they’re not in the same place, are they?

A. Yes. That’s correct.

Q. So let’s be generous and say that your hour starts at 1:09, that means that you don’t leave Mr Popovic’s unit until sometime around 2 o’clock, or shortly after, if you’re there for an hour?

A. Well again that was an estimated time on the meeting. That was estimated. It’s four years. Four years ago I gave – after the incident I gave the statement.

…

Q. I want to suggest that [counsel for Popovic at the first trial] said – that he took you to your statement of 9 July where you went through an exercise with the police where you gave details of various times. I suggest that – and do you remember saying to the police, at paragraph 10, we remained at [Popovic]’s unit for about one hour. And you answered yes. The next question was:

‘Q. So from the time you got back, you say you were there about an hour, is that right?

A. Yes.

Q. Do you want to alter that estimate to five or ten minutes, or can we say – are you pretty sure now that you were there for about an hour?

A. Yes, it was an hour.

Q. What?

A. It was an hour.

Q. You are happy with that are you?

A. Yes.’

So you were given ample opportunity on 14 May 2014, to alter the length of time that you said you were at Mr Popovic’s flat, and you stuck with an hour, didn’t you?

A. Yes.

Q. So what I want to suggest to you, that on the timeline that we’ve developed, that would mean that you were at Mr Popovic’s flat until – unit, until sometime around 2 o’clock the following morning?

A. Well again what you just read out, about an hour, or an estimate, can be short ten, 15 minutes. It can go over ten, 15 minutes, to my knowledge.

…

Q. On your estimate, if you didn’t arrive at [Popovic]’s unit until sometime after 1, what, 9 minutes past 1, then you wouldn’t have left there until around 2 o’clock, would you?

A. Again it was an estimate. It was over ten years ago. The statement –”

137. Mr Taylor agreed that on 10 September 2012 he went with Detective Chambers and Detective Sanvitalle on a car trip which followed the route he said he took on the night after he left Popovic’s unit. He agreed that it took 13 minutes to reach Blaxland Avenue, Warrawong, where Hristovski lived, and that he estimated the traffic conditions were similar to the traffic conditions on the night of the murder.

138. Mr Taylor agreed that he estimated that he and Koloamatangi were parked outside Hristovski’s house for 10 minutes. He also agreed that he then went from Hristovski’s house to his house to get the clothing to be worn by Koloamatangi. He was referred to his statement where he said that this trip took 19 minutes. He agreed that he said that he and Koloamatangi were at his house for about 15 minutes and that it took eight minutes to get from his house to the Novotel at Wollongong.

139. It was then put to him that because he went around the block a couple of times before he dropped Koloamatangi off, taking a maximum of 10 minutes, the overall time for the trips (from Popovic’s house) was 75 minutes. He agreed that was the estimated time.

140. It was suggested to him that in those circumstances he would have arrived at Splashes after the shooting occurred. He said they were estimated times. He said that the statements to the police were written four years after, and that if he said it was an estimate of an hour it could have been 15 minutes or half an hour.

141. It was put to him that he said he was in the car park for between an hour and an hour and a half before he heard the gunshot, and he said he had his phone turned off so he could not say exactly or precisely, and that it could have been 45 minutes. He agreed, however, that he had always said it was between an hour and an hour and a half.

142. Mr Taylor was referred to a telephone entry at 2:29:41, which was an unsuccessful call made from Popovic to him, with the record indicating that his phone at the time was at Wollongong CBD. It was suggested to him that the Wollongong CBD phone tower did not pick up calls received in the vicinity of the Novotel Hotel.

143. Mr Taylor was asked some questions about a man named Dave Sciberras. He said he was a brother of a friend he “used to knock around with”. He was asked for any explanation of why Mr Sciberras was trying to ring him on multiple occasions after midnight or in the early hours of the morning of 8 September. He said it could have been to catch up for a few beers. It was put to him that Mr Sciberras wanted to get in touch with him because he wanted to buy drugs from him, which Mr Taylor disagreed with.

144. Mr Taylor was then asked about his evidence concerning the colour of the gun. It was put to him that in all of his statements he described the gun as a gun that had a black handle and a silver barrel. He agreed. He also agreed that he described it in that way in his evidence before the court at the first trial.

137. He was asked whether he changed his evidence because someone suggested that the gun that was seen in the hands of the shooter was black. He responded, “Before, when the Crown asked me what colour was the gun, I did say it was black and realised later in my statement it was silver”. He said it was at night time and an honest mistake. He agreed that when he gave a statement to police, there was no prompting by anybody as to the colour, but that he volunteered that the gun was silver. He said “I just made the statement before that it was black to the Crown. I just rectified that situation with you”.

138. Mr Taylor was then referred to the following evidence given by him in relation to the gun in the first trial:

“ ‘Q. Did you see any identifying marks or anything like that?

A. Yes.

Q. What was that?

A. There was an Astra symbol on the handle.

Q. When you say symbol, was the word “Astra” written or something else?

A. No, sorry, not a symbol. There was a stamp; the “Astra” word written on it.

Q. What colour was it?

A. Silver, to my memory with a black handle.’

So as at April, 2014, your memory was that it was silver with a black handle, the same as in your statement, is that right?

A. That’s correct.

Q. So the first time you had ever told a court that it was black was in your evidence here?

A. Yes, I must have got it mixed up.

Q. Which part was mixed up?

A. The colour of the gun.

Q. I am suggesting to you that your memory would have been better in 2012, as to what colour the gun as, as it is in 2017?

A. I agree.

Q. So, it was silver?

A. Well, when we come to now and talking about it, I can’t tell you what colour the gun was, to be a hundred per cent certain.

Q. So, why did you tell the Crown in your evidence-in-chief before this court that the gun was black?

A. I’m sure that was the colour in the heat of the moment. I didn’t read the statement correctly before court and I made an accident – I messed up.”

147. Mr Taylor agreed that his evidence was that when they got to Hristovski’s house he contacted Popovic, so that Popovic could contact Hristovski and tell him to bring out whatever he was going to give them. It was then put to him in the context of the 1:08 am call from Popovic to Hristovski that this could not have been that call, because there was no corresponding call from Koloamatangi or him to Popovic, asking Popovic to ring Hristovski. Mr Taylor referred to a phone call directly after the 1:08 am call between Popovic and Koloamatangi. It was put to him that the phone call had to be the other way around, with either he or Koloamatangi first asking Popovic to ring Hristovski. He said it was not necessarily so, and that the travel time between Popovic’s unit and Hristovski’s house in Warrawong could be 10 minutes.

148. Mr Taylor agreed that when he drove Koloamatangi back from Sydney to Wollongong, Koloamatangi was not carrying a weapon nor did he have a disguise. He also agreed that as far as he understood, Koloamatangi had never been to Splashes Nightclub. It was again suggested to him that at 2:29 am he was not anywhere near Splashes Nightclub: see [142] above. It was put to him that he made up the story about Koloamatangi being involved in the shooting and he denied it. He also denied that he did the shooting.

Cross-examination on behalf of Popovic

149. Mr Taylor was cross-examined on his involvement in the supply of drugs, and on his arrest on 12 January 2012 for the supply of drugs on behalf of a man named Simon de Witt. He agreed that he was charged and pleaded guilty to two charges of supply prohibited drugs. It was put to him that he initially lied to the police at that time when he told them he knew nothing about the drugs He said that if he had told them that, it would have been a lie, but he also said that he could not remember the conversations he had had with the police. He agreed that he received a discount on sentence because of the assistance he provided to the police in connection with the supply of the drugs.

150. Mr Taylor agreed that he read each induced statement he made in relation to the murder of the deceased carefully and that they were true and correct. He agreed that but for the indemnity from prosecution he would not have given evidence.

151. Mr Taylor agreed that as of September 2007 he had met the deceased maybe once or twice. He agreed that he first met him some weeks before he died, and that he was introduced to him by Popovic.

152. Mr Taylor was asked about the meeting at the car park close to Woolworths: see [116] above. He agreed that he saw Bubanja at that meeting. He was then referred to his evidence where he had said that he was not 100 per cent sure that he actually did meet Bubanja before the murder. However Mr Taylor said that he was sure the meeting at the car park happened before the murder and that he met Bubanja.

153. It was put to him that what he was endeavouring to do was to remember what was in his statement and keep it as close to what was in it as he could, and he agreed. It was also put to him that he was not independently trying to recall the events, and he said that it had been over ten years from the incident and that he had spent numerous years trying to forget it.

154. Mr Taylor agreed that at the time of the dinner at Kings Chinese Restaurant on 7 September he was interested in being romantically involved with Ms Wilton. He said that he invited her to dinner, and that she did not come but that he and Popovic were encouraging her to come. He agreed that if she had turned up, he would have been quite keen to spend some time with her, and that Popovic was encouraging this to happen. It was then put to him, and he agreed, that if she had turned up he would have happily spent some time with her and “carry on” after the dinner. He was again asked if Popovic was encouraging the involvement and he said he did not know the specifics of the phone call between Popovic and Ms Wilton that night. It was put to him that he knew that if he had in fact “hooked up” with her that night he would not have been available to drive Koloamatangi to Sydney, and he said that was correct.

155. Mr Taylor was asked further questions concerning the length of time that he and Koloamatangi stayed in Popovic’s unit. He agreed that, as he had said in his statement to police, he stayed at Popovic’s unit for about an hour. He then gave the following answers:

“Q. So your position, at the time you made your statements to police, was that you were there for about an hour?

A. That’s correct.

Q. And you said that that was your estimate, even after giving consideration to the actual events what you could recall about what happened at [Popovic]’s unit that night, or the early hours of that morning; right?

A. Correct.

Q. And you were given – and you were asked questions about that yesterday?

A. Yes.

Q. And that remains your position, you think you were there for about an hour; that’s right?

A. Yes.”

156. Mr Taylor was referred to his evidence that it was whilst he was at Popovic’s house that he was told that the deceased was at the North Wollongong Hotel. It was suggested to him that when he first spoke to the police, he told them that when he and Koloamatangi returned to Wollongong he drove around for a short period of time, and that he did not tell them about having gone to Popovic’s unit. He said he could not recall that conversation. He agreed he had been to the North Wollongong Hotel on many occasions, and at times even with Popovic. He was asked whether he was aware that it closed at midnight, and he responded that he was vaguely aware, but not a hundred per cent sure. It was put to him that if, by a quarter to one in the morning, someone said to go to the North Wollongong Hotel, you would be thinking that it was not open. He said he could not remember the time it closed. However, he agreed that it was possible it closed at twelve o’clock.

157. It was put to him that in those circumstances there was never a conversation with Popovic where he told him to go to the North Wollongong Hotel. He denied this. However he also agreed that at the time, he probably knew that the North Wollongong Hotel would not have been open at a quarter to one, one o’clock or 1:15 on a Saturday morning.

158. Mr Taylor was then asked a series of questions concerning his knowledge of Hristovski’s house:

“Q. There was no calls made to - by you, or Mr Koloamatangi outside [Hristovski]’s house, was there?

A. Yes there was.

Q. In Warrawong?

A. Yes.

Q. So you drove to [Hristovski]’s house, and you made a phone call outside [Hristovski]’s house; is that right?

A. That’s correct.

Q. You met [Hristovski]once; that’s right?

A. Yes.

Q. You didn’t even know where he lived?

A. I would have known where he lived to go pick up the gun.

Q. You didn’t know where he lived, did you?

A. Yes I did.

Q. You hadn’t been there before?

A. Yes I would have, yes.

Q. You would have, you say?

A. To go pick up the gun, yes I would have, to go back there.

Q. You met him once?

A. Yes.

Q. There was no reason, or purpose, or way that you would have known where he lived in the street in Warrawong, was there?

A. Yes there was.

…

Q. You didn’t even have his phone number to call him?

A. That’s correct.

Q. Or did you?

A. Not that I’m aware of at the moment.

Q. In all your statements that you made to the police you never mentioned having gone to Mr Hristovski’s on occasion – another occasion, had you?

A. No.

Q. The fact the only time you ever mentioned it was when you gave evidence before, because you had to explain why you know where to go; isn’t that the case?

A. I think I had to explain how I knew the address, yes.

Q. And the first time you’d ever mentioned that you’d gone to Mr Hristovski’s residence was in the middle of giving evidence at the previous trial; that’s right isn’t it?

A. Okay.

Q Is that right? That’s right isn’t it?

A. If you’ve got the details, that would be.

Q. You certainly didn’t mention, when you gave evidence-in-chief today, about any occasion that you went to Mr Hristovski’s, did you?

A. (No verbal response).

Q. Other than the occasion you say you picked up the gun, you didn’t refer to any other occasion when you gave evidence-in-chief, did you?

A. I think I might have just a minute ago.

Q. No, but when you were asked questions by the prosecutor about the events of the 7th and 8th, and associated times in September, you never said anything then about the occasion you went to Mr Hristovski’s other than the time you collected the gun?

A. I was never asked.”

159. Mr Taylor was asked questions about his relationship with a woman named Amy Ewen. He agreed that around August or September 2007 she was in a relationship with Hristovski, and that in about 2008 he formed a relationship with her. He agreed that she discussed with him guns she had seen at Hristovski’s place, and that she may well have said that she had seen a silver gun in Hristovski’s possession although he couldn’t recall this.

160. Mr Taylor was shown the schedule of telephone calls, and it was put to him that there were no calls from Popovic to him or Koloamatangi at twenty past one in the morning until after two in the morning of 8 September. He responded in the following terms:

“A. When I received, I arrived back into Wollongong at 12 o’clock estimated time to be at [Popovic]’s unit for about an hour meaning, that is 1 o’clock, meaning I could have left there at 12 o’clock so that time line would start at 12:30 and if you look there’s plenty of phone calls in between that time between them numbers.”

161. Mr Taylor was shown the record of a call he received at 1:02:18. He agreed that it put his location at North Beach, which was essentially where the Novotel Hotel was. He was then shown a number of calls between 1:12:04 and 1:22:09 which were diverted to voicemail. He was asked whether that was the time he turned the phone off and he said he could not be sure. He also said he could not be sure at what location he turned the phone off. He was shown further phone records, which he agreed were consistent with him being in the suburb Loftus in South Sydney at about 12:15 am, arriving at Wollongong at 12:45 am and was at Splashes at North Beach by 1:02 am. It was put to him that in those circumstances there was no time to go to Hristovski’s house, get to his place and then to Splashes. He said that North Beach was on the way to Warrawong.

162. Mr Taylor was taken to a statement he made on 6 June 2012 to Detective Chambers. In that statement, Mr Taylor said that on 6 June 2012, Detective Chambers told him that he believed Mr Taylor’s telephone was turned off between 1:02 am and 5:03 am, and that that period would cover the time he was in Splashes and the period he dropped Koloamatangi home.

163. It was also put to him that in his earlier statement to the police, he told the detectives about the occasion when he took the $15,000 to Koloamatangi in Sydney, but that he told them the money was given to him by Bubanja, not Popovic. He said that he could not recall the conversations he had with the police before the first statement, and that this was not said.

Ms Snezana Sekuljica

164. Ms Sekuljica gave evidence that she was married to the deceased for about seven years prior to his death. She said that at the time of his death, the deceased was carrying out renovation work on a shop for a man called Dusan Krstic. She said that the deceased had employed Marco and Daki Bubanja when he had his building company.

165. Ms Sekuljica said that back in 2006, her husband carried out building work and construction of some units with Zoran Bubanja and that they had a falling out over some money that had not been paid to the deceased.

166. Ms Sekuljica said that the deceased had a close friend, Robert Freeborough, and another friend called Ned. She said the deceased would regularly meet with his friends on a Friday afternoon at the North Wollongong Hotel.

167. Ms Sekuljica said that the deceased went to the North Wollongong Hotel on the Friday before his death. She recalled that he rang her in the late afternoon or late evening to collect him from the hotel. She said that she did so, and that she drove him to Mamma’s Pizza. She said that the deceased told her that Zoran had turned up with Marco and Daki and some other men and they had had an argument. She said the deceased told her that they were going to Mamma’s Pizza to look for Popovic.

168. Ms Sekuljica said that Popovic was not at Mamma’s Pizza, but that whilst she was driving the deceased got a phone call from Popovic. She said that he and the deceased were arguing. She recalled the deceased saying, “You’re waiting for me at North Wollongong pub” and Popovic saying, “Come to me at Keira and I’ll fix you up there. Come and meet you up there”.

169. She said the deceased accused Popovic of betraying him. She said he said in Serbian, “You traitor” and “You’re like him”, referring to a traitor in Serbian history.

170. Ms Sekuljica said that the deceased and Popovic were swearing at each other. She said that the first she knew of any falling out between the deceased and Popovic was this incident at the North Wollongong Hotel.

171. It was suggested to Ms Sekuljica in cross-examination that the conversation in the car involved an argument about Serbian football, and she said she was not too sure, but that she didn’t think so.

Ms Amy Ewen

172. Ms Ewen gave evidence that in about August 2007 she moved in with Hristovski at Warrawong. She said that she got to know a number of people with whom he was friends, including Bubanja, Popovic and Mr Taylor.

173. She said that the relationship ended in early 2008, and that later in 2008 she formed relationship with Mr Taylor which continued until 2009.

174. Ms Ewen said that she thought Hristovski had two guns while she was living with him. She said they were handguns. She said that one was a revolver type weapon, and that the other was not bulky like the other one was. She recalled that they were both silver, but then stated she remembered the revolver one being silver and that she could not recall what the other one was exactly.

175. Ms Ewen said the night before the deceased was killed she was at the house at Warrawong and remained there all night. She said she was watching a movie with Hristovski. She said that she woke at some stage in the early morning and that Hristovski was not there. She recalled him returning around 9 to 10 am the next morning.

176. In cross-examination, Ms Ewen was asked about evidence she had given in the previous trial. It was put to her that she had agreed that it was possible she actually mentioned the silver gun to Mr Taylor, and she said she could not recall. It was also put to her that in her previous evidence, she agreed she discussed what was in her statement with Mr Taylor. She agreed that the fact the gun was a silver gun was mentioned in that statement.

Mr Timothy Berry

177. Mr Berry, a ballistics expert, expressed the view that Astra firearms, Rossi firearms and Hi-Point firearms were all capable of discharging the bullets which killed the deceased. He produced an example of what was said to be described sometimes colloquially as a snub nosed firearm. It was an Astra revolver, with a logo and the word Astra written on it.

178. In cross-examination by counsel for Koloamatangi, Mr Berry said that Astra make a number of different sized firearms, including the snub nosed type and full size revolvers. He agreed that in addition to the black one he produced they also make stainless steel revolvers.

Mr Johnny Radz (a pseudonym)

179. Mr Radz gave evidence that he was given an indemnity from prosecution for a number of offences, provided he co-operated in these proceedings. He identified the offences for which he received the indemnity as discharging a firearm at a dwelling house with reckless disregard for safety, discharging a firearm with intent to cause grievous bodily harm, using an unauthorised pistol and knowingly dealing with the proceeds of crime ($11,500). Mr Radz said that he knew each of the accused in the trial.

180. He agreed that it would be fair to say he had a criminal record. He said that he was sentenced to imprisonment in 2000, released on parole in 2006, that his parole was revoked in June 2007 and that he was released again on parole in October 2007. He said that he was also in custody from July 2008 to May 2009, and was arrested and imprisoned in relation to offences of 9 and 18 February 2013 for which he later received an indemnity.

181. Mr Radz said that he knew Popovic, having met him in 2000.

182. Mr Radz said that whilst on parole in 2006, he met Bubanja and became friends with him. He said he moved into Bubanja’s home and that there were two other men living there, Dario and Sandro.

183. Mr Radz said that he ceased living at Bubanja’s home in about the middle of 2006, subsequently living in a unit in Wollongong, before moving back to his parent’s place in Sydney. His move was as a consequence of his parole officer placing a condition on his parole not to remain in the Illawarra area. Mr Radz said that towards the end of 2006 he got married and was living in a suburb of Sydney. He said that Popovic visited him in around April 2007. He said Popovic told him that he and Zoran had been speaking, and that they both wanted Mr Radz to believe that he should be the man for the job to kill the deceased for money. He said he responded, “I’ve got a lot of drama at the moment” and that his wife was pregnant and he didn’t want to get involved. He said he was offered $40,000 to do the killing. The Zoran referred to presumably was Zoran Bubanja.

184. Mr Radz said that at the time, he was involved with outlaw motorcycle gangs, and that he was connected with the Nomads. He was asked in what way, and he said he was working for John Ibrahim, doing nightclub security at DCM’s in Oxford Street and Dragon Fly in Kings Cross.

185. Mr Radz said that in Easter 2007 the Nomads were involved in a dispute with the Comancheros. He recalled that he said to Popovic, “At the moment I’ve got dramas with the Comancheros”.

186. Mr Radz said that he was in custody from June to October 2007. He said that whilst he was in custody, he heard about the shooting of the deceased. He said that he attended Popovic’s wedding not long after he got released from custody in October 2007.

“[24]   When an accused person has been acquitted of a charge by verdict of a jury, it will not be possible to know why the jury reached its verdict. In those circumstances, the reference to the person having the ‘full benefit’ of an acquittal may reflect the opacity of that verdict. But it is important to recognise that the references made to the ‘full benefit’ of an acquittal are no more than a particular restatement of a more fundamental principle. That principle is that the verdict, as recorded in the court's record, is not to be controverted. And where, as here, the reasons for quashing the conviction are known, the reasons for directing entry of judgment and verdict of acquittal are known. There would be a controverting of that record only if the jury were to be left in a position where in the course of considering whether the appellant had committed an indecent act they might consider whether there had been, or may have been, an act of digital penetration of the complainant. A concession by the prosecution that the evidence may not be understood by the jury as establishing that there had been that penetration, or in default of such a concession, a direction to that effect, would give the appellant the full benefit of the verdict to which he was and is now entitled in respect of the count of incest.”

See also Island Maritime at [54]-[55].

310. In the present case, the previous judgment found that the Crown had not established beyond reasonable doubt that Hristovski participated in the murder by supplying the gun. At least in proceedings to which Hristovski was a party, any evidence seeking to establish that he did so would controvert the acquittal.

311. It should be noted that, contrary to the suggestion made by the Crown, this conclusion does not involve treating as evidence the findings of fact made in the previous proceedings, as distinct from the conclusion in the previous proceedings that one element of the offence charged against Hristovski had not been made out.

312. However, as I have indicated, the doctrine of incontrovertibility does not have application in the present case as Hristovski was not a party in these proceedings. It remains to be considered whether it was an abuse of process to assert in the present case and to lead evidence that the gun was supplied by Hristovski, when the Court of Criminal Appeal in the previous judgment concluded on the evidence in that case that there was at least a reasonable doubt that Hristovski supplied the gun. That falls to be considered in the context that, although no verdict of acquittal was entered in favour of the applicants, they were participants in the trial from which the appeal was brought and in the appeal in which the finding in relation to Hristovski was made. Having regard to the way the Crown put its case at the first trial, it is difficult to see why a verdict of acquittal would not have been entered in favour of the applicants had such an order been sought. However it was not and a new trial was ordered.

313. No question of issue estoppel arises if only for the fact that the doctrine has no application in the criminal law in this country: Rogers at 255, 278; Carroll at [35]-[36]. However, as was pointed out in Carroll at [47], there may be cases where a second prosecution is oppressive and an abuse of process even though there is no direct inconsistency between the new charge and the earlier verdict.

314. Senior counsel for Koloamatangi submitted that the proceedings and the evidence of Mr Taylor and Mr Radz brought the administration of justice into disrepute. It was accepted by Mason CJ in Rogers at 256, referring to Walton v Gardiner (1993) 177 CLR 378 at 395; [1993] HCA 77 and Hunter v Chief Constable of the West Midlands Police [1982] 1 AC 529, that there were two aspects to abuse of process in these circumstances, first, the vexation, oppression and unfairness to the other party and second, the matter complained of bringing the administration of justice into disrepute.

315. Hunter involved the collateral attack on a decision on a voir dire that the accused had not been assaulted in the course of making a confession and that the confessions that they made were made voluntarily. Evidence of the confessions was admitted and the appellants convicted. A civil claim by the appellants relying on new forensic evidence that they were unlawfully assaulted and making the same allegations as on the voir dire and at the trial, was struck out as being collateral attack on the previous decision and an abuse of process. Lord Diplock, with whom the other members of the bench agreed, cited with approval the following passage from the speech of Lord Halsbury LC in Reichel v Magrath (1889) 14 App.Cas. 665:

“ … I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.”

316. However, notwithstanding the fact that a critical issue in the first trial was relitigated in the present case, I do not think the bringing of the proceedings and the use made of the evidence of Mr Taylor and Mr Radz can be said to be an affront to the administration of justice in the sense referred to in these authorities. First, as I indicated, the present proceedings do not controvert Hristovski’s acquittal as Hristovski was not a party. Second, the proceedings were brought as a result of an order that there be a retrial. Third, the retrial did not make the allegation that either Hristovski or Bubanja were parties to the joint criminal enterprise. Fourth, there was nothing to suggest that the retrial would not involve the evidence of Mr Taylor as to the manner in which he obtained the gun. The Crown opened the case on that basis and no application was made to stay the proceedings or to exclude or limit the evidence of Mr Taylor.

317. In these circumstances it does not seem to me that the manner in which the Crown conducted the retrial or the use of the evidence of Mr Taylor and Mr Radz involved an abuse of process.

318. So far as the evidence of Mr Radz was concerned, the decision in the previous judgment related to the admissions allegedly made to him by Bubanja. The Court did not deal with the admissions he alleged were made to him by the applicants. The fact that Mr Radz was found to be a witness who lacked credibility in the previous judgment does not mean his evidence could not be relied on in respect of different admissions by different persons in the present case.

319. It follows that neither ground 1 nor ground 2 of each of the applicant’s grounds of appeal has been made out.

Ground 3 (Koloamatangi) and ground 5 (Popovic): Unreasonable verdict

320. It was common ground between the parties that the case was put on the basis that Koloamatangi was the shooter. Further, it was not suggested that the jury could find the shooting occurred other than with a gun supplied by Hristovski. The Crown did not attempt to argue the case in this Court on a different basis to how it was run at the trial, nor could it do so: R v King (1985) 17 A Crim R 184 at 187. For this Court to consider the case on a different basis to the way it was put to the jury would impermissibly substitute trial by this Court for a trial by a jury: Lane v R [2018] HCA 28; (2018) 92 ALJR 689 at [59]. In these circumstances the submissions of the parties unsurprisingly focused on the evidence of Mr Taylor with particular reference to telephone calls from which it was contended his movements could be traced on the night of 7-8 September.

a   The applicants’ submissions

321. In contending that the verdict was unreasonable, senior counsel for Koloamatangi referred to Mr Taylor’s evidence that after the dinner at Kings Chinese restaurant, he and Koloamatangi dropped Koloamatangi’s girlfriend off in Sydney. He referred to Mr Taylor’s evidence that he arrived at Popovic’s unit at eleven or twelve o’clock that night: see [97] above.

322. Senior counsel for Koloamatangi, referring to the telephone records, said it was impossible for Mr Taylor to have been in Wollongong at eleven or twelve o’clock. He referred in that context to the telephone records which showed a call at 11:25 pm from Koloamatangi’s phone which was picked up at a cell tower at Newtown East and one at 11:48 pm which was picked up at Newtown.

323. Senior counsel for Koloamatangi then referred to a call received on Mr Taylor’s phone at 11:58:19 from a cell tower at Rockdale, and one at 12:14:49 which was received on Mr Taylor’s phone from a cell tower Loftus 2 which he submitted was about 35 or 40 minutes north of Wollongong. He then referred to a call at 12:46:44 which Mr Taylor received from cell tower Wollongong-1. He submitted this demonstrated that Koloamatangi and Mr Taylor did not arrive back in Wollongong until about 12:45 am.

324. Senior counsel for Koloamatangi then referred to a call from Koloamatangi to Popovic at 12:49 am which he submitted demonstrated that Koloamatangi and Mr Taylor had not met up with Popovic by that time. It should be noted that Mr Taylor conceded in cross-examination that, notwithstanding his earlier evidence, he in fact arrived back in Wollongong at about 1:00 am.

325. Senior counsel for Koloamatangi then referred to the call at 1:15 am made by Koloamatangi to Popovic. The call from Koloamatangi’s phone was picked up by the Vodafone cell tower at Crown Street Mall, Wollongong, and received by Popovic from an Optus tower Wollongong CBD 3. Senior counsel for Koloamatangi said it was the Crown case that it could be inferred that the call was made in a cul-de-sac outside Hristovski’s house so as to prompt Hristovski to bring out the gun. He said this was undermined by Mr Taylor’s evidence that he had been at Popovic’s house for an hour. He submitted there was no other evidence to support the inference that the call was made outside Hristovski’s house. He submitted that it was theoretically possible but unlikely that a call from outside Hristovski’s house at Warrawong would have been picked up by a tower at Crown Street Mall. In that context he referred to the evidence of Mr Chang and Mr Khatiz to which I have referred above. He accepted there were a lesser number of Vodafone towers in 2007 than in 2012 when the computer simulation was carried out, but stated that in 2007 there were Vodafone towers at Warrawong and Berkeley. He emphasised that the hours between 1 am and 3 am were not high traffic times and that there was no evidence that terrain made any particular difference. He referred to the evidence of Mr Chang to which I have referred at [252]. However, it should be borne in mind in relation to that evidence that Koloamatangi was using a Vodafone telephone, not an Optus telephone.

326. In relation to Vodafone, senior counsel for Koloamatangi referred to the evidence of Mr Khatiz concerning Exhibit AB to which I have referred at [256]-[259]. He accepted that the range of the Wollongong CBD tower in 2007 would have been greater than 42 kilometres but submitted it was likely that closer towers would have received a call made from Hristovski’s house. He also referred to the evidence of Mr Khatiz to which I have referred at [263]-[265]. He emphasised again that there was no calls received through Berkeley or Warrawong where calls on Koloamatangi’s phone from outside Hristovski’s house would have been likely to end up.

327. Senior counsel for Koloamatangi also referred to Mr Taylor’s evidence of his knowledge of Hristovski’s address. He referred in particular to the evidence which I have set out at [158]. He submitted the statement made by Mr Taylor that he had gone to Hristovski’s house once before was a recent invention.

328. Senior counsel for Koloamatangi also referred to Mr Taylor’s cross-examination concerning the colour of the gun which was used in the shooting (see [144]-[146] above). He submitted that in considering the unsafe and unsatisfactory ground, the fact that he had mentioned a particular type of gun coupled with the fact that he got the colour of the gun wrong, did not lead to the conclusion he knew the gun was an Astra gun because Koloamatangi took it out of the bag and used it. He also noted that other witnesses to the shooting suggested the shooter had white skin.

329. In relation to Mr Radz, senior counsel for Koloamatangi referred to his extensive criminal record which I have summarised at [198]-[218].

330. Senior counsel for Popovic emphasised the inconsistencies in Mr Taylor’s evidence which I have summarised above. He submitted that during the course of his evidence Mr Radz admitted that he had lied on at least 11 different occasions. He said that one noteworthy fact of Mr Radz’s evidence was his claim that he and Popovic never discussed the murder when they were in gaol and played chess together: see [227].

b   The Crown’s submissions

331. The Crown referred to Exhibit Y which showed Hristovski’s residence, Popovic’s residence and the cell towers surrounding their residences.

332. It was submitted by the Crown that Mr Taylor and Koloamatangi were not at Popovic’s house for an hour. The Crown accepted that it followed Mr Taylor had to be found unreliable to this extent, but submitted that people are notoriously unreliable on the issue of time. He submitted that the 1:15 am call was the call from Koloamatangi to Popovic for the purpose of arranging the meeting with Hristovski outside his house. He submitted that one possibility was that Mr Taylor and Koloamatangi were at Popovic’s unit for a period of less than 11 minutes after 12:52 am or that they were there before 12:49 am for a short period of time.

333. The Crown also sought to trace Mr Taylor’s movements by reference to the phone calls made on the evening of 7-8 September 2007. The Crown referred to Mr Taylor’s evidence of the dinner at Kings Chinese restaurant: see [153] above. He referred to a call from Koloamatangi’s phone to Tara Wilton at 9:05 pm going through Brokers Point, which he submitted indicated that by that time Koloamatangi must have moved from the restaurant. He then referred to a call at 9:43 pm from Koloamatangi to Popovic which was picked up at Engadine, substantially north of Wollongong. He then referred to calls from Koloamatangi’s phone up to and including a call at 23:48:53 which was picked up by the Newtown cell tower.

334. The Crown then referred to a call received by Mr Taylor through the Optus cell tower at Rockdale at 11:58:19 and then a call at 12:14:49 from a Mr Scibberas to Mr Taylor through the Optus tower Loftus 2, which he submitted indicated that Mr Taylor was moving south. He then referred to a further call from Mr Scibberas to Mr Taylor at 12:46:44 which was forwarded through the Optus cell tower Wollongong-1. He said that that showed Mr Taylor was on his way back to Wollongong.

335. The Crown then referred to the call at 12:49:58 from Koloamatangi to Popovic. It was accepted that the call made at that time was not a call for the purpose of having Hristovski come out to supply the gun. The Crown submitted that that call occurred later.

336. The Crown pointed out there was no communication between Popovic and Koloamatangi for about 11 minutes between 12:52:21 and 1:03:07. He referred to Mr Taylor’s evidence of what occurred in Popovic’s unit: see [98]-[100]. He submitted that Mr Taylor could have been there for a shorter period; that he could have been there for less than 10 minutes and then left. As I have indicated, the Crown accepted that Mr Taylor had to be found to be unreliable on this issue.

337. The Crown accepted that during the 10 or 11 minute period between 12:52 am and 1:03 am, Popovic made a number of unsuccessful attempts to call Bubanja, unsuccessfully tried to call Hristovski and had a short four second call with a person called Ned (a pseudonym). It should also be noted that during that period, Mr Taylor received a call from Mr Scibberas that lasted for 46 seconds, and one from an unknown person which lasted for 38 seconds. Both these calls were received by Mr Taylor from the Optus cell tower North Beach 1 which was at the site of the Novotel Hotel. However, Mr Taylor’s evidence was that he was not in the vicinity of the Novotel Hotel at that time.

338. The Crown submitted that it was a possibility that the murder was arranged or confirmed in 11 minutes interspersed by a few attempted phone calls. He said another alternative was that it was done before 12:49 am for a similar length of time.

339. The Crown next pointed to the fact that at 1:15 am Koloamatangi called Popovic, the call going through the Vodafone tower at Crown Street Mall and being received by Popovic through the Optus Wollongong CBD 3 tower. This was the call the Crown submitted was for the purpose of arranging for Hristovski to come out of his house to hand over the gun.

340. The Crown referred to a call made by the deceased at 2:59:05 to a taxi company which went through the Vodafone cell tower at Thirroul. He noted that at the time of the call, immediately before his death, the deceased was at Splashes Nightclub. He pointed to the fact the Vodafone coverage maps showed coverage of that tower did not extend anywhere near to Splashes Nightclub. He submitted that that called into question the assumption that a person’s location could be established by reference to phone calls that were made. He pointed out the Court had no details of the Vodafone 2007 coverage.

341. The Crown submitted that to the extent the attack on Mr Taylor’s evidence was based on the fact that a critical part of his story relating to the visit to Hristovski’s house was not supported by phone records, the records were neither exact nor necessarily accurate, and that it would be incorrect to proceed on the assumption that the A and B locations on the map (the locations to which the call went and from which it was received) were surrogates for the physical location of people. The Crown accepted that it was critical to its case that one hour was compressed into 10 minutes, and that the mobile records were so unreliable that they could not be used to reject the proposition that the call at 1:15 am took place outside Hristovski’s house. It was submitted that although the jury had to be satisfied the gun was received from Hristovski, that was not a matter which was required to be proved beyond reasonable doubt, being an element in a circumstantial case.

342. The Crown then referred to a call at 1:48:50 from Koloamatangi’s phone which went through the Brokers Point Vodafone tower. He submitted this was consistent with Mr Taylor and Koloamatangi having gone to Mr Taylor’s house to get clothes. He accepted there was a difficulty in picking and choosing between the reliability of particular phone call entries in determining the whereabouts of the maker and recipient of those calls.

343. The Crown referred to Mr Taylor’s evidence that the elapsed time between Mr Taylor and Koloamatangi leaving Popovic’s unit and parking the car at Splashes was 75 minutes (see [137]-[139]). He referred to a call from Koloamatangi to Mr Taylor at 2:16:31 which was diverted to voicemail. He submitted that was consistent with Koloamatangi and Mr Taylor leaving Popovic’s unit a little before 1:03 am, having separated at Splashes at the time of the phone call. The call was routed through Vodafone’s Brokers Point tower, rather than the towers closest to Splashes, Crown Street Mall and Wollongong CBD. The Crown also referred to the unanswered calls shown to have been made by Popovic to Mr Taylor and Koloamatangi between 2:29:27 and 2:30:10, a further unanswered call to Koloamatangi at 2:59:28, and a call from Koloamatangi to Popovic at 3:11:53 which went through the Brokers Point tower. He stated this sequence of calls was consistent with Popovic being the “offsite manager”. He noted that the call to Mr Taylor at 2:29:41 was forwarded through the Optus tower Wollongong CBD 1800. He referred to Mr Chang’s evidence that the call made to an Optus telephone in the Novotel parking area would likely be sent by the North Beach 1 cell tower. He also referred to Mr Chang’s evidence, which said that coverage would be affected in extreme weather and if a call was made inside a building.

331. The Crown submitted that subsequent calls showed Koloamatangi and Mr Taylor returning to Sydney, which was consistent with Mr Taylor’s evidence. He submitted that the evidence of the skin colour of the shooter was inconclusive.

c   Submissions in reply

345. In reply, senior counsel for Koloamatangi referred to the fact that the Crown case was that the call at 1:15 am from Koloamatangi to Popovic was made in the cul-de-sac outside Hristovski’s house. He said apart from problems with the cell towers, there was a further problem with timing. He referred to the fact that at 12:52:21, Popovic rang Koloamatangi, which he submitted showed that Koloamatangi had not yet arrived at Popovic’s unit. He said that a 10 minute meeting could only just be squeezed in and there was perhaps even less time after making allowance for the time between 12:52:21 and the arrival at Popovic’s unit.

Consideration

346. In Dickson v R [2017] NSWCCA 78 I summarised the principles applicable to an unreasonable verdict ground of appeal as follows:

“[84]   The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-494, namely that the Court is required to make its own ‘independent assessment of the evidence’. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M supra the Court also stated (at 494) that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’ and ‘[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred’: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].

[85]   As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

[86]   In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 at [46]-[48].”

347. In considering this question, it is also important to bear in mind the fact that the jury is the constitutional tribunal for dealing with contested issues of fact and that the setting aside of a jury verdict is a serious step not to be taken without particular regard to the advantage enjoyed by the jury: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65].

348. Notwithstanding the primacy of the jury as the tribunal of fact and the advantages they had in seeing the witnesses, in particularly Mr Taylor and Mr Radz, in my opinion it was not open to them to find the applicants guilty of the murder in the particular circumstances of the present case.

349. The Crown’s case was that Koloamatangi shot the deceased with a gun supplied by Hristovski. There was no suggestion that the gun could have been obtained from any other source. It follows in my opinion that it was an indispensable link in the chain of reasoning, to lead to a conclusion of guilt, that Hristovski supplied the gun. This was therefore a matter which required proof beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 576, 578, 581; [1990] HCA 56.

350. The evidence of Mr Taylor was of critical importance to the Crown case. Mr Taylor was a person who, on his own admission, was involved in the shooting and had received an indemnity from prosecution. His evidence thus needed to be treated with caution: see the decision of this Court in Kanann v R [2006] NSWCCA 109 in the context of warnings to be given pursuant to s 165(1)(d) of the Evidence Act.

351. Mr Taylor’s evidence initially was that he arrived back in Wollongong from Sydney at about 11 pm or 12 am on the night of 7-8 September. Mr Taylor then said he went to Popovic’s unit where the conversation which is referred to at [98]-[100] above took place. He did not say in chief how long he and Koloamatangi stayed at Popovic’s unit. He said he then went to Hristovski’s house, back to his home and then to Splashes Nightclub. In cross-examination he agreed that the total lapsed time between leaving Popovic’s unit and parking at Splashes was around 75 minutes: see [139]. In chief he said he was parked at Splashes Nightclub for about an hour to an hour and a half, or maybe two hours, until the shooting took place: see [108].

352. As I have said, Mr Taylor in chief did not provide an estimate of the time spent at Popovic’s unit. However, to enable him to drive to Hristovski’s house at Warrawong, return to his house and then arrive at Splashes at 2 pm one hour before the shooting, it would have been necessary for him to leave Popovic’s unit at 12:45 am (75 minutes before his arrival at Splashes at 2 am).

353. The difficulty is that Mr Taylor’s evidence that he arrived back in Wollongong between 11 pm and 12 am was demonstrably incorrect. In cross-examination Mr Taylor initially maintained that he and Koloamatangi drove straight back from Sydney, but when faced with the telephone records, ultimately conceded that it could be correct that he remained in the Sydney metropolitan area for one and a half hours. Mr Taylor was referred to the telephone call from Koloamatangi to Popovic at 00:49:58 and agreed that it looked as if he and Koloamatangi had not met Popovic by that time.

354. The Crown accepted that, having regard to the time that Koloamatangi and Mr Taylor reached Wollongong, there would have been no time for a one hour meeting. The Crown’s position ultimately was that there was a very short meeting of about 11 minutes or less between 12:52:21 and 1:03:07: see [332]. The Crown accepted Mr Taylor had to be found unreliable on this issue. In cross-examination by counsel for Koloamatangi, although Mr Taylor generally adhered to his statement that the meeting took an hour, when confronted with the fact that that meant he left Popovic’s unit about 2 am he said it was an estimate, and that it could have been a shorter time of 10 to 15 minutes. He then said “It can go over 10, 15 minutes to my knowledge”. However, in subsequent cross-examination by counsel for Popovic, he said his position remained that he was there for an hour: see [155].

355. There is another difficulty with Mr Taylor’s evidence surrounding the obtaining of the gun. The Crown case as articulated in the appeal was that the call at 1:15 am was from Koloamatangi to Popovic for the purpose of arranging for Hristovski to come outside to hand over the gun. The suggestion is said to be supported by the fact that five minutes later a call was made from the phone of Emily Martin, Popovic’s then wife, to Hristovski. Other than that, there is no evidence that Popovic was in contact with Hristovski until 1:59:52.

356. There is a further difficulty. Mr Taylor was asked about the call at 1:15 am. He did not suggest that the call was made from outside Hristovski’s house. Rather, he speculated that the call was made from Popovic’s unit: see [134]-[135]. Ultimately, he seemed to resort to his original position that he arrived at Popovic’s unit at 12 am: [160].

357. There are two further difficulties with the Crown theory. The first is the unsatisfactory evidence that Mr Taylor gave concerning his knowledge of Hristovski’s house: see [158]. Further, Hristovski’s then girlfriend, Amy Ewen, stated that when she woke in the early morning Hristovski was not at the house: see [175]. These matters, although by no means conclusive, cast further doubt on the Crown theory.

358. Much reliance was placed by the applicants on the fact that the call said to be made outside Hristovski’s house was routed through the Vodafone tower at Crown Street Mall rather than the cell towers at Warrawong or Berkeley. I do not think this had the significance attributed to it by the applicants. The Vodafone coverage map was not based on the cell towers Vodafone had in the area in 2007, which was common ground were less than those which existed in 2012 at the time the coverage maps were prepared. Significantly, Hristovski himself made calls at 1:28:50 and 1:29:15 which were routed through the Vodafone cell tower Wollongong CBD, whilst calls at 1:29:41 and 1:29:53 were routed through Berkeley. In these circumstances, the fact that Koloamatangi’s call was routed through Crown Street Mall does not disprove the Crown theory. Equally, it does nothing to support it.

359. Finally, there is Mr Taylor’s evidence of the colour of the gun. His evidence that it was silver was inconsistent with that of the other witnesses who described it as black. He agreed Amy Ewen may well have told him she saw a silver gun in Hristovski’s premises. Amy Ewen said she discussed her police statement with Mr Taylor and she agreed the statement mentioned a silver gun. Once again this evidence of itself would not give rise to a reasonable doubt that Hristovski supplied the gun, particularly when Mr Taylor correctly identified the gun as an Astra. However, it does not support the Crown theory.

360. The most significant piece of evidence supporting the proposition that the deceased was shot by either Koloamatangi or Mr Taylor at the request of Popovic is the sequence of calls to which I have referred at [343]. However, that sequence does not lend any support to the theory that the gun was obtained from Hristovski, an integral part of the Crown case. Further, Popovic’s attempted call to Mr Taylor at 2:29:41 was received through the Optus tower Wollongong CBD 1-800 rather than through the North Beach 1 tower which was adjacent to the Novotel Hotel. The coverage maps for Optus did not have the same difficulties as those for Vodafone.

361. Taking all these matters into account, I am left with a reasonable doubt that Mr Taylor’s evidence establishes that the deceased was shot by Koloamatangi at the request of Popovic. In particular, I am not satisfied beyond reasonable doubt or for that matter, on the balance of probabilities, that Hristovski supplied a gun to Mr Taylor and Koloamatangi to enable the murder to take place.

362. There remains the evidence of Mr Radz. Having regard to his evidence, Mr Radz could not only be described as a seasoned criminal but also as a serial liar. Further, as is apparent from his cross-examination, a number of lies were told in an endeavour to either obtain bail or get an indemnity from prosecution. He was an entirely unreliable witness.

363. The admissions Mr Radz said were made to him were made in circumstances which could only be described as unusual. The admission by Popovic was made apparently out of the blue on a walk in a park: [188]. Notwithstanding this, Mr Radz stated that the murder was never discussed with Popovic whilst they were together in gaol playing chess: see [227].

364. The admissions said by Radz to have been made to him by Koloamatangi were made in equally unusual circumstances. The first was made through a high wire fence, apparently unsolicited. As was put in cross-examination, Koloamatangi was said to have come up to the fence and, without any discussion, made the admission.

365. Mr Radz admitted that from the time of that admission until 2013 he had no contact with Koloamatangi. His evidence was that after that lapse of five years, he and Koloamatangi passed in a prison corridor and he asked Koloamatangi whether he had been paid. Mr Radz accepted the admission was made when he and Koloamatangi were passing like ships in the night. Once again the circumstances of the admission were, to say the least, unusual.

366. Further, the admissions he claimed to have been made to him were different to those which he said were made in the interview of 4 July 2013 with Mr Durant: see [266]-[269] above.

367. Having regard to the unreliability of Mr Radz and the unusual circumstances in which the admissions were made, it was not open to the jury in my opinion to be satisfied beyond reasonable doubt that the applicants were guilty of the murder on the basis of his evidence, whether alone or in conjunction with the other evidence at the trial including that of Mr Taylor.

368. It follows, this ground of appeal has been made out and the verdicts of guilty should be quashed.

The additional grounds of appeal

369. Popovic relied on two additional grounds of appeal.

370. Ground 3: The learned trial judge erred on 4 August 2017 in admitting evidence of events at the North Wollongong Hotel on 31 August 2007 and immediately following.

371. Ground 4: The learned trial judge erred on 4 August 2017 in admitting evidence of events involving Dalibor (Daki) Bubanja at the Splashes Nightclub.

372. Because of my conclusion that the verdicts were unreasonable, these grounds can be dealt with shortly.

Ground 3

373. Ground 3 involves the admission of evidence of events at the North Wollongong Hotel on 31 August 2007. The evidence was CCTV footage of a meeting between the deceased, Zoran Bubanja and Daki Bubanja at the hotel. CCTV footage showed there was some finger pointing and arm movement. There was no evidence of what was said in the conversation.

374. The trial judge in her judgment of 4 August 2017 [2017] NSWSC 1022, considered that contrary to the view taken by Adamson J in the previous judgment, the CCTV footage could be considered by the jury as showing a heated exchange, which ultimately resulted in the telephone conversation between Popovic and the deceased to which I referred at [168]-[170].

375. It seems to me that the CCTV footage showed a meeting which was at least argumentative and which provides some context to the conversation between Popovic and the deceased about which Ms Sekuljica gave evidence. Although the evidence could properly be described as being on the periphery of what was relevant, I do not think her Honour erred in the conclusion she reached. Further, her Honour was correct in stating that in light of the fact that the jury would be directed that the evidence could only be used to place a subsequent telephone conversation in context, the evidence should not be excluded under s 137 of the Evidence Act.

376. This ground of appeal has not been made out.

Ground 4

377. This ground apparently relates to the evidence of Mr Harris, Mr Walker and Mr Castagna of an argument between the deceased and Bubanja at Splashes on the night of the murder. So far as Mr Harris’ evidence is concerned, the trial judge in the same judgment of 4 August 2017 ruled the evidence admissible on the basis of evidence given by him on a voir dire. The difficulty is that Mr Harris ultimately did not give the evidence complained of but merely said he saw two men engaged in conversation: see [18] above. Thus the ruling whether right or wrong had no effect on the trial.

378. I have set out the evidence of Mr Walker above. His evidence did not go as far as that given by him on the voir dire in respect to which her Honour made the ruling: see [2017] NSWSC 1022 at [77]. Notwithstanding, he did give evidence of an argument between Bubanja and the deceased at Splashes Nightclub on the night of the murder.

379. Her Honour stated it was relevant to show an ongoing feeling of ill-will between the deceased and Bubanja. The difficulty is that Bubanja had been acquitted of the murder. Whilst there may have been ongoing ill-will between the deceased and Bubanja that cannot be linked to the murders, particularly when having regard to the evidence of Mr Taylor, the conversation at Splashes took place sometime after the murder was alleged to have been planned. In my opinion, her Honour erred in the admission of this evidence.

380. The same may be said of the evidence of Mr Castagna. I have set out his evidence at [50]. He accepted that the deceased arrived at Splashes at 12:30 am. He said an argument took place but did not identify the persons involved. As with the evidence of Mr Walker, it does not seem to me to be relevant. Her Honour with respect erred in admitting it.

381. That said, the evidence the subject of this ground in the context of the trial seems entirely inconsequential. Having regard to the conclusion which I have reached it is not necessary to consider the operation of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW).

Conclusion

382. Having regard to Order 1 of the orders made by the Court on 24 September 2019, orders should be made suppressing those portions of the judgment which tend to identify Mr Radz. The parties, and the Commissioner of Police, will have the opportunity within 7 days of delivery of this judgment to make submissions as to whether the suppression order should be varied.

383. In the result I make the following orders:

1. Grant the applicants leave to appeal.

2. Appeal allowed.

3. Quash the conviction of the appellants for the murder of Dragan Sekuljica and in lieu thereof enter a verdict of acquittal.

4. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) the following portions of the judgment be suppressed until further order on the grounds set out in s 8(1)(a), (c) and (e) of the Act: [179] second sentence; [184]-[185]; [196]-[205]; [207] third sentence, after “on the way” and before “so I just”; [210] second sentence; [211]-[219]; [220] first and second sentences; [222] first sentence after “made his first induced statement”.

5. Order 4 shall apply throughout the Commonwealth.

6. Grant leave to the parties and the Commissioner of Police to make an application within 7 days to vary the suppression order.

384. BELL P: I agree with Bathurst CJ.

385. PRICE J: I agree with Bathurst CJ and the orders he proposes.

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Amendments

16 April 2020 - Numbering of paragraphs amended

22 April 2020 -

Redacted paragraphs amended

29 April 2020 - Order made by the Court:

"Pursuant to s.13 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ('the Act'), the suppression order over the following parts of the judgment be rescinded: [179], second sentence; [184]-[185]; [196]-[197]; [210], second sentence."

30 April 2020 - Order made by the Court:

"Pursuant to s 13 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the suppression order over the following parts of the judgment be rescinded: [198]-[202]."

Decision last updated: 30 April 2020