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Koloamatangi v R; Popovic v R

Koloamatangi v R; Popovic v R

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Case Copied 1 April 2020 91 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCCA 52
Decision Date: 01 April 2020

CaseChat Overview and Summary

The appeals in Koloamatangi and Popovic arose from the trial of two separate criminal matters, where the appellants sought to overturn their convictions on the grounds of alleged miscarriage of justice. Both appellants argued that the principle of incontrovertibility was not properly applied by the trial judge, leading to their convictions. The High Court of Australia was tasked with determining whether the trial judge's handling of evidence and application of the principle of incontrovertibility constituted an abuse of process, and whether the verdicts reached were unreasonable given the unreliability of certain witnesses and the need for proof beyond reasonable doubt.

The central legal issues revolved around the trial judge's interpretation and application of the principle of incontrovertibility, which is a doctrine that limits the scope of evidence that can be considered in a criminal trial. Specifically, the court had to assess whether the evidence challenged the acquittal of a non-party and whether the trial judge's process was an abuse. Additionally, the court examined whether the verdicts were unreasonable in light of the unreliability of key witnesses and the high standard of proof required in criminal cases.

In addressing these issues, the court found that the trial judge did not improperly apply the principle of incontrovertibility. The court held that the evidence did not challenge the acquittal of a non-party and that there was no abuse of process. However, the court determined that the verdicts were unreasonable because they were based on unreliable witness testimonies and did not meet the standard of proof beyond reasonable doubt. Consequently, the appeals were allowed, and the verdicts of acquittal were substituted with verdicts of guilty for both appellants.

The final orders included the quashing of the original verdicts and the entry of new verdicts of guilty for both Koloamatangi and Popovic. The cases were remitted to the relevant courts for appropriate sentencing.

Orders